Cooper v. Bailey
Appellate Division of the Supreme Court of the State of New York
Appeal from special term. Action by Charles Cooper against William Trist Bailey. From order denying defendant’s motion to set aside execution, he appeals. The plaintiff has a judgment against the defendant of March 5, 1892, for $4,980, which has not been paid» At the time the judgment was recovered, the property of the defendant was incumbered by mortgages. Foreclosure suits were begun in April, 1892, which are still pending. This plaintiff was made a party thereto.
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Appeal from special term. Action by Charles Cooper against William Trist Bailey. From order denying defendant’s motion to set aside execution, he appeals. The plaintiff has a judgment against the defendant of March 5, 1892, for $4,980, which has not been paid» At the time the judgment was recovered, the property of the defendant was incumbered by mortgages. Foreclosure suits were begun in April, 1892, which are still pending. This plaintiff was made a party thereto. In June, 1901, the plaintiff, upon notice to the defendant, asked leave of the court to issue execution on his judgment. At such…
1Opinion of the CourtJenks, J.
I think that the order should be affirmed. The plaintiff could issue execution at any time within five years after the entry of judgment. Section 1375, Code Civ. Proc.. But after five years, issue of execution was prohibited, without an order of leave made by the court, unless during that period an execution had been *668issued, and returned wholly or partly unsatisfied or unexecuted. Section 1377, Id. As it appears in this case that such execution had. been issued within the said five years, the issue of the second execution was the legal right of the plaintiff, and no application to the court…
2Cases cited6 opinions
- Van Rensselaer v. . WrightNew York Court of Appeals · 1890
- Faneuil Hall National Bank v. BussingNew York Court of Appeals · 1895
- Kennedy v. . ThorpNew York Court of Appeals · 1872
- Brown v. . ChubbNew York Court of Appeals · 1892
- McCorkle v. HerrmannNew York Supreme Court · 1889
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