Olcott v. Frazier
New York Supreme Court
Motion that the sheriff of Kings county be ordered to pay over to the plaintiffs the balance of moneys levied on two writs of ft. fa. against the defendant, one in favor' of Walsh & Mallory, received by the sheriff December 10th, 1842, and the other in favor of the plaintiffs, received the '28th of January following. The' balance sought to be thus reached was what would remain after deducting sufficient to pay the execution in favor of Walsh & Mallory.
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Motion that the sheriff of Kings county be ordered to pay over to the plaintiffs the balance of moneys levied on two writs of ft. fa. against the defendant, one in favor' of Walsh & Mallory, received by the sheriff December 10th, 1842, and the other in favor of the plaintiffs, received the '28th of January following. The' balance sought to be thus reached was what would remain after deducting sufficient to pay the execution in favor of Walsh & Mallory. The motion was resisted on the ground, among others, that the goods were seized while on premises' occupied by the defendant as the tenant of…
1Opinion of the Court
By the Court, Cowen, J.
It was thrown out by the landlord’s counsel, that the 'Olcotts are not in a position to contest the validity.of the notice, because it was not given in reference to their execution. The objection is, I think, without foundation. AH the moneys levied must be applied to the successive executions, bating what may be arrested by a regular notice from the landlord. The irregularity, therefore, if there be one, enures as well to the. benefit of the Olcotts as of Walsh & Mallory to whom it was immediately given..
The sheriff cannot, as against a party interest, waive due notice…
2Cases cited2 opinions
- Farington v. BaleyNew York Supreme Court · 1839
- Miller v. JohnsonNew York Supreme Court · 1834