People ex rel. Bailey v. Judges of the Albany Mayor's Court
New York Supreme Court
Costs against administrators. H. C. Whelpley, as collector* of the goods of Erastus Young, deceased, brought an action of replevin in the mayor’s court of Albany, against E. Bailey, and declared that the defendant had received of Young, in his life time, certain property, to be delivered to him or his representative upon request; and that though requested by Young in his life time, and by the plaintiff since the death of Young, the defendant had not delivered up the…
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Costs against administrators. H. C. Whelpley, as collector* of the goods of Erastus Young, deceased, brought an action of replevin in the mayor’s court of Albany, against E. Bailey, and declared that the defendant had received of Young, in his life time, certain property, to be delivered to him or his representative upon request; and that though requested by Young in his life time, and by the plaintiff since the death of Young, the defendant had not delivered up the property, but detained the same. The defendant pleaded, 1. non detinet. and 2. that the plaintiff was not, and never had been,…
1Opinion of the Court
By the Court,
Savage, Ch. J.
There is no objection to the execution on the ground of variance from the record. The plaintiff is described in the record as collector, and he is so described in the execution; but that is mere description, and no admission that he was in truth collector. The record finds that he was not, and never had been collector, &c. The execution, I apprehend, was not set aside on that ground, nor because the word mayor is left out after the mayor’s name in *488the teste of the writ. It was not alleged that John Townsend was not in fact mayor at the time when the writ was tested.…
2Cited by18 opinions
- Butler v. Hempstead's AdministratorsNew York Supreme Court · 1837
- Lyon v. MarshallNew York Supreme Court · 1851
- Thacher v. BancroftNew York Supreme Court · 1862
- Kent v. BothwellMassachusetts Supreme Judicial Court · 1890
- Lawrence v. VilaWisconsin Supreme Court · 1866
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