Gregory v. Levy
New York Supreme Court
Allen, Hubbard and Pratt, Justices. Demurrer to answer. The complaint in this action sets forth that on the 3d day of June 1851, the plaintiffs commenced an action against one Sylvester Levy, to recover a debt; that at the time of issuing the summons, an order of arrest was obtained under subdivision 4 of section 179 of the Code; that Levy was arrested thereon and discharged from custody upon the defendants in this action executing an undertaking of bail under section 187;…
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Allen, Hubbard and Pratt, Justices. Demurrer to answer. The complaint in this action sets forth that on the 3d day of June 1851, the plaintiffs commenced an action against one Sylvester Levy, to recover a debt; that at the time of issuing the summons, an order of arrest was obtained under subdivision 4 of section 179 of the Code; that Levy was arrested thereon and discharged from custody upon the defendants in this action executing an undertaking of bail under section 187; that judgment was rendered against Levy, the debtor, and executions against his property and person duly issued and…
1Opinion of the Court
By the Court, Hubbard, Justice.
The theory of the defendants’ answer is that no breach of the undertaking can be alleged, because the record of judgment in the action against Sylvester Levy does not show that the action was one in which a personal *38execution could issue, and that hence Levy was not bound to hold himself amenable to the ca. sa. which was issued and returned non est inventus.
Without deciding this precise question, applicable in a case where the debtor is himself interposing the objection, we think the demurrer must be sustained on the ground that sureties of bail, can not raise…
2Cases cited1 opinion
- Holbrook v. WrightNew York Supreme Court · 1840
3Cited by1 opinion
- Kelly v. . McCormickNew York Court of Appeals · 1863