Ross v. Ross
New York Court of Common Pleas
Appeal from an order of this court made on motion of Elizabeth J. Parkinson, directing the sheriff to pay to her the surplus in his hands arising from a sale of certain premises under an execution in this action against the property of the defendant.
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Appeal from an order of this court made on motion of Elizabeth J. Parkinson, directing the sheriff to pay to her the surplus in his hands arising from a sale of certain premises under an execution in this action against the property of the defendant. Mrs. Parkinson, to whom the surplus was awarded, was the grantee of the premises in question from the judgment debtor by deed recorded March 30th, 1881. On the sale under the execution in this action, which took place June 1st, 1881, she bought the premises, paying $702 to the sheriff. He satisfied the execution in this action, and held a surplus…
1Opinion of the CourtJ. F. Daly, J.
[After stating the facts as above.]—A person having a lien on real property sold by virtue of an execution, and being entitled to the surplus arising on such sale, after satisfaction of the execution, may apply to the court from which the process issued for an order directing the sheriff to pay over such surplus. The application is by motion, and if there be a dispute as to the right to the surplus, it will be granted when the equity of the case can be accurately ascertained (Williams v. Rogers, 5 Johns. 163-7).
It seems proper that such a motion should be made in the action in which the…
2Cases cited4 opinions
- Williams v. RogersNew York Supreme Court · 1809
- Every v. EdgertonNew York Supreme Court · 1831
- Van Nest v. YeomansNew York Supreme Court · 1828
- McLaughlin v. MayorNew York Court of Common Pleas · 1879