Shuman v. Strauss
New York Court of Appeals
Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term denying motion on the part of plaintiff for leave to issue execution. The plaintiff commenced the action by service of summons in the form prescribed by the first subdivision of section 129 ■of the Code. No copy of the complaint was served with the summons.
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Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term denying motion on the part of plaintiff for leave to issue execution. The plaintiff commenced the action by service of summons in the form prescribed by the first subdivision of section 129 ■of the Code. No copy of the complaint was served with the summons. Upon an affidavit of the non-appearance of the defendant, plaintiff procured an assessment of damages by the clerk and perfected judgment thereon on the 21st January, I860. The complaint alleged fraud in the contracting…
1Opinion of the CourtAllen, J.
Had the plaintiff applied to the court, upon affidavits disclosing the questions to be litigated, for leave to bring an action upon his judgment under section 71 of the Code, it would have been granted.
The denial of this motion for leave to issue execution was no hindrance to an application for leave to sue; and that, rather than an appeal to this court, was the proper remedy for the plaintiff. It was not a case for the determination of the questions of fact and of law involved upon a summary application of this character, and the Superior Court very properly refused the leave asked; but the…
2Cases cited3 opinions
- Suydam v. . BarberNew York Court of Appeals · 1858
- Goodrich v. DunbarNew York Supreme Court · 1854
- Elwood v. . GardnerNew York Court of Appeals · 1871
3Cited by1 opinion
- Von Rhade v. Von RhadeNew York Supreme Court · 1874