Walters & Farley v. Sykes & Harman
New York Supreme Court
Motion to set aside a writ of fi. fa. for irregularity. A deputy sheriff of Oswego received the writ, with a letter from the plaintiffs’ attorneys, directing him to endorse it as received January 6, 1840, at 9 A. M. The letter was dated the 3d January, and mailed before judgment was perfected. It enclosed the writ, with the intention to perfect the judgment at the time when the sheriff was directed to endorse the writ as received.
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Motion to set aside a writ of fi. fa. for irregularity. A deputy sheriff of Oswego received the writ, with a letter from the plaintiffs’ attorneys, directing him to endorse it as received January 6, 1840, at 9 A. M. The letter was dated the 3d January, and mailed before judgment was perfected. It enclosed the writ, with the intention to perfect the judgment at the time when the sheriff was directed to endorse the writ as received. It came to the hands of the deputy on the fourth, but he endorsed it as received on the sixth day of January, and on the latter day after the record was signed and…
1Opinion of the Court
By the Court,
Cowen, J.
An unqualified mailing of the writ and its receipt by the deputy sheriff would undoudedly have been an issuing of it, and that would' have been irregular until the jud'gment had been perfected. Marvin v. Herrick, 5 Wendell, 109. But he was directed by the plaintiffs’ attorney to endorse it as received at a time after the record was in fact filed, and he did so—doing no act under it till after the judgment was perfect. I do not see why the delivery may not as well be thus qualified and rendered finally effectual, as if it had been sent to a neighbor of the sheriff, to…
2Cases cited1 opinion
- Marvin v. HerrickNew York Supreme Court · 1830
3Cited by13 opinions
- Rowe's Adm'r v. Habdy's Adm'rSupreme Court of Virginia · 1899
- Rogers v. MarshalSupreme Court of the United States · 1864
- Williams v. McGradeSupreme Court of Minnesota · 1868
- Smith v. . ErwinNew York Court of Appeals · 1879
- Root v. . WagnerNew York Court of Appeals · 1864
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