Montrait v. Hutchins
New York Supreme Court
Motion to have the judgment herein canceled and satisfied of record, on the ground that it has ■ been fully paid, and for general relief. The judgment was entered in this action on the 27th December^ 1864, for $92.45, with $14.95 costs. The moving papers on the part of the defendant state that, about the time of the entry of judgment, the defendant paid to the plaintiff the full amount of the recovery.
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Motion to have the judgment herein canceled and satisfied of record, on the ground that it has ■ been fully paid, and for general relief. The judgment was entered in this action on the 27th December^ 1864, for $92.45, with $14.95 costs. The moving papers on the part of the defendant state that, about the time of the entry of judgment, the defendant paid to the plaintiff the full amount of the recovery. That he first paid the debt or claim, and soon thereafter paid the costs in full. That after the lapse of ten years, and on the 30th December, 1874, and without leave of the court so to do,…
1Opinion of the CourtBookes, J.
More than five years elapsed after the entry
of judgment before the execution was issued. It was. therefore irregularly issued, without leave of the’ court (Code, § 284). But this irregularity cannot be urged on this motion, because not specified in the notice of motion (Rule 46, and cases cited in note; Wait’s Prac., vol. 4, pp. 638, 639, and cases there cited). Hor is it sufficient that, the moving affidavits specify the irregularity. The notice of motion, or order to show cause, when the case comes before the court on an order to show cause, should point it out. The execution was not void,…
2Cases cited1 opinion
- Bank of Genesee v. . SpencerNew York Court of Appeals · 1858
3Cited by4 opinions
- German-American Bank v. DorthyAppellate Division of the Supreme Court of the State of New York · 1899
- Gove v. StewartThe Superior Court of the City of New York and Buffalo · 1892
- Metropolitan El. Ry. Co. v. JohnstonNew York Supreme Court · 1895
- Van Etten v. HasbrouckNew York Supreme Court · 1886