Matter of Holmes
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 16,1891, which reversed an order of Special Term, denying a motion, for an order to issue execution and granted said motion. The facts, so far as material, are stated in the opinion. The application 'having been made by petition, and not by affidavit, is irregular, and the order made therein is void, unless this irregularity was expressly waived, which was not done.
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Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 16,1891, which reversed an order of Special Term, denying a motion, for an order to issue execution and granted said motion. The facts, so far as material, are stated in the opinion. The application 'having been made by petition, and not by affidavit, is irregular, and the order made therein is void, unless this irregularity was expressly waived, which was not done. (Code Civ. Pro. § 1381;) The judgment herein referred to having been recovered nearly seven years after the conveyance of…
1Opinion of the Court
Earl, Ch. J.
On the 26th day of October, 1880, John A. Holmes and others recovered a judgment against James Boyle for $9,637.30, which was on that day docketed in the clerk’s office of the city and county of FTew York. Boyle died on the 26th day of January, 1881. On the 1st day of FTovember, 1873, Boyle owned certain real estate in the city of Flew York, ¡and on that day he executed a deed thereof to Andrew Little, "which deed was placed upon record. It is now claimed by Holmes, the petitioner, who has become the sole owner of the judgment, that that deed was not delivered to Little and,…
2Cited by3 opinions
- Le Fevre v. PhillipsNew York Supreme Court · 1894
- Van Loan v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1905
- Truesdell v. Property of GreenAppellate Division of the Supreme Court of the State of New York · 1916