Legal Opinion

Bank of Genesee v. . Spencer

New York Court of Appeals

Decided September 5, 1858PublishedCited by 20 opinions

Appeal from the Supreme Court. In 1846 the plaintiff recovered judgment in that court against Spencer, Thomas and Burnet, who resided in different counties, and execution was immediately issued to the sheriffs of each of the counties, and was by them respectively returned unsatisfied.

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Appeal from the Supreme Court. In 1846 the plaintiff recovered judgment in that court against Spencer, Thomas and Burnet, who resided in different counties, and execution was immediately issued to the sheriffs of each of the counties, and was by them respectively returned unsatisfied. Burnet having died, the plaintiff, in 18-54, issued an execution to the sheriff of Erie county, where Spencer then resided, against him and Thomas, the surviving defendants, without any application to the court for leave to do so. This execution having been returned unsatisfied, the plaintiff instituted…

1Opinion of the Court

The order of the Supreme Court, from which this appeal is brought, is clearly not appealable. It neither affects a substantial right, nor is it a final order in a summary application in an action after judgment, within the provisions of the 11th section of the Code.

First. It does not affect a substantial right. 1. If an execution, issued after five years from the time of perfecting judgment without leave of the court, be absolutely void, there is no pressing necessity for setting it aside. It would constitute no defence to an action against the party issuing it for any act or proceeding under…

2Cases cited1 opinion

  1. Jones v. . DerbyNew York Court of Appeals · 1857

3Cited by20 opinions

  1. Aultman Taylor Co. v. . SymeNew York Court of Appeals · 1900
  2. Gardner v. Mobile & Northwestern RailroadSupreme Court of Alabama · 1893
  3. Whitney v. . TownsendNew York Court of Appeals · 1876
  4. Jones v. DavisWisconsin Supreme Court · 1868
  5. Montrait v. HutchinsNew York Supreme Court · 1875

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