Bowie v. Brahe
The Superior Court of New York City
The plaintiff moves for an order directing the sheriff to execute a writ of Habere facias possessionem, in a particular manner. Plaintiff and defendant owned adjoining lots. Defendant erected a building on his lot, and encroached one inch and seven-eighths of an inch on the easterly side of plaintiff’s lot. Plaintiff then built on his own lot, placing his easterly wall directly against the westerly wall of defendant’s building.
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The plaintiff moves for an order directing the sheriff to execute a writ of Habere facias possessionem, in a particular manner. Plaintiff and defendant owned adjoining lots. Defendant erected a building on his lot, and encroached one inch and seven-eighths of an inch on the easterly side of plaintiff’s lot. Plaintiff then built on his own lot, placing his easterly wall directly against the westerly wall of defendant’s building. He subsequently brought an action of ejectment to recover the one and seven-eighth inches, and obtained judgment. A writ of possession was issued to the sheriff.…
1Opinion of the Court
Oaeley, Ch. J.
The court will not direct the sheriff in what manner he shall execute process. This is regarded, as an application made with a view to obtain the advice of the court. The court should not advise the sheriff, by ordering him to do particular acts, as being essential and proper in the rightful performance of his duty.* Although so ordered, he might be prosecuted for his acts, and the court might be placed in the position of being required to give judgment upon a matter which it had pre-judged without due consideration; and the sheriff might be subjected to damages for obeying an…
2Cited by3 opinions
- McSorley v. GomprechtThe Superior Court of New York City · 1892
- Treiber v. MouriocourtCity of New York Municipal Court · 1932
- Yokoyama v. San Carlos Operating Co.City of New York Municipal Court · 1932