Sacia v. Nestle
New York Supreme Court
Motion to set aside execution. Judgment was recovered in November, 1838, for $88.06, and execution issued 23d Nov., 1838. The sheriff received $50 on the execution, and indorsed a return of nulla bona as to the residue.
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Motion to set aside execution. Judgment was recovered in November, 1838, for $88.06, and execution issued 23d Nov., 1838. The sheriff received $50 on the execution, and indorsed a return of nulla bona as to the residue. The $50 was paid to J. Sacia, September 14, 1839. The execution was returned and filed on the 16th April, 1856; and immediately thereafter a transcript of the judgment was procured from the clerk of court of appeals, and docketed in Montgomery county; and another execution was issued upon such judgment, with direction to collect the balance due and interest. The plaintiff…
1Opinion of the Court
Paige, Justice.
The oath of payment of the judgment by Failing, is contradicted by the affidavit of the plaintiff; and the only question to be determined is, wdiether the second execution was regularly issued without leave of the court, obtained on motion, wdth notice to the defendant. The second execution was issued after the lapse of seventeen years from the entry of the judgment, and the issuing of the. first execution.
It was held by Mason, Justice, in Pierce agt. Craine, (4 How. Pr. R. 257,) where an execution had been issued on a judgment docketed in Nov. 1839, within the two years…
2Cases cited3 opinions
- Thorp v. FowlerNew York Supreme Court · 1826
- Jackson ex dem. Thompson v. StilesNew York Supreme Court · 1812
- Lansing v. LyonsNew York Supreme Court · 1812