Union Bank of Troy v. Sargeant
New York Supreme Court
APPEAL by the defendant Lown, from an order of the county judge of ¡Rensselaer county, appointing a receiver in proceedings supplementary to execution.
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APPEAL by the defendant Lown, from an order of the county judge of ¡Rensselaer county, appointing a receiver in proceedings supplementary to execution. The defendant raised various objections to the preliminary affidavit upon which the proceedings were originally founded, which he alleged were made before the county judge, where the motion for the appointment of a receiver was made, upon the report of the referee to whom it was referred to examine the defendants, but which did not appear to have been urged, by any of the papers upon which the appeal was heard.
1Opinion of the Court
By the Court, Miller, J:
It may be questionable whether the defendant has not waived the right to object to the preliminary affidavit, by appearing before the referee and submitting to an examination. It has been held, in several cases, that such appearance is a waiver.
In Viburt v. Frost, (3 Abb. 120, 121,) Duer, J. says: “If the original order for the debtor’s appearance was a nullity, he was not bound to appear; nor was he bound, when he appeared, to submit to an examination. His appearance and submission' to an examination must, therefore, be regarded, if the order for his appearance was…
2Cases cited5 opinions
- Conway v. HitchinsNew York Supreme Court · 1850
- Sandford v. SinclairNew York Court of Chancery · 1840
- Bingham v. DisbrowNew York Supreme Court · 1862
- Owen v. DupignacNew York Court of Common Pleas · 1859
- United States v. D'AuterieveSupreme Court of the United States · 1854
3Cited by6 opinions
- Aultman Taylor Co. v. . SymeNew York Court of Appeals · 1900
- Eddy v. ColdwellOregon Supreme Court · 1892
- Clinkscales v. HallSupreme Court of South Carolina · 1881
- Green v. BookhartSupreme Court of South Carolina · 1883
- Aultman Taylor Co. v. . SymeNew York Court of Appeals · 1900
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