Beards v. . Wheeler
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the third judicial department, affirming an order of Special Term, denying a motion made by plantiff to set aside certain executions issued upon judgments against defendant in suits by other creditors, on the ground of fraud, or to postpone their payment until the satisfaction of plaintiff's executions.
Read the full summary
Appeal from order of the General Term of the Supreme Court, in the third judicial department, affirming an order of Special Term, denying a motion made by plantiff to set aside certain executions issued upon judgments against defendant in suits by other creditors, on the ground of fraud, or to postpone their payment until the satisfaction of plaintiff's executions. (Reported below, 11 Hun, 530.) The following facts appeared upon the motion : On October 26, 1876, plaintiffs commenced an action against defendant upon two promissory notes. On November first, they commenced another action.…
1Opinion of the CourtDanforth, J.
If it is assumed that the appellants make a case upon the motion papers it was entirely in the discretion of the Supreme Court at Special and General Term whether the matter involved should be disposed of on motion or by an action. (Foote v. Lathrop, 41 N. Y., 359.) Indeed the latter is the more appropriate method (Brinkerhoff v. Marvin, 5 Johns. Ch., 320; Miller v. Earle, 24 N. Y., 112), and therefore no appeal lies to this court. (Foote v. Lathrop, supra; Anonymous, 59 N. Y., 315.)
But the order was properly made. The plaintiffs, Beards and others, were not entitled to judgment until the…
2Cases cited1 opinion
- Brinkerhoff v. MarvinNew York Court of Chancery · 1821
3Cited by16 opinions
- In Re the Estate of KillanNew York Court of Appeals · 1902
- Western Union Telegraph Co. v. ShepardNew York Court of Appeals · 1901
- Beach v. BeachSupreme Court Of The Territory Of Dakota · 1889
- Barkley v. New York Centrall & Hudson River RailroadAppellate Division of the Supreme Court of the State of New York · 1899
- Dutton v. SmithAppellate Division of the Supreme Court of the State of New York · 1896
11 more not listed; retrieve them via the Exa API.