Allen v. Stone
New York Supreme Court
This was a motion by Stone, the defendant in error, to set aside an execution against him, issued on a judgment docketed in October, 1850; or for a perpetual stay thereon.
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This was a motion by Stone, the defendant in error, to set aside an execution against him, issued on a judgment docketed in October, 1850; or for a perpetual stay thereon. It appeared by the affidavits, that in 1845, one Chalmers, since deceased, who had before then been employed as a printer by Stone, in Plattsburgh, the residence of Stone, Chalmers then residing in Whitehall, the residence also of Allen, got some one to make up an account in favor of Stone against Allen for advertising in the paper of the former the hotel of the latter, pretending that Stone had assigned the account to him.…
1Opinion of the CourtHand, J.
The affidavits of the parties are somewhat conflicting as to the time when Stone first knew of the pendency of the suit; which is, no doubt, attributable to mere forgetfulness on the part of one of them. Both appear to be very candid, and are only struggling to rid themselves of a burden attempted to be cast upon one of them, through the fraud and crime, (judging from the affidavits,) of another person. One affidavit however, states the admission of both Chalmers and Allen, repeatedly, that Stone was ignorant of the existence of the suit, and therefore, as a matter of fact, I can not find…
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