Fonda & Hoag v. Gross
New York Supreme Court
Error from the Montgomery common pleas. Gross brought .an action of replevin against Fonda and Hoag, for taking a quantity of household furniture, in the use and occupation of one Van Horne. The furniture was sold at sheriff’s sale in 1829, on several executions against Van Horne, and bought in by C. E. Yates, who paid the amount of his bid. it did not appear that Yates was a plaintiff in either of the executions.
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Error from the Montgomery common pleas. Gross brought .an action of replevin against Fonda and Hoag, for taking a quantity of household furniture, in the use and occupation of one Van Horne. The furniture was sold at sheriff’s sale in 1829, on several executions against Van Horne, and bought in by C. E. Yates, who paid the amount of his bid. it did not appear that Yates was a plaintiff in either of the executions. The property was left in the possession of Van Horne until May, 1831 ,when it was sold by Yates to Gross, the plaintiffin this suit, and a bill of sale duly executed. Gross also…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
An execution levied, and then delayed, at the request of the plaintiff, for some time after the return day, where the property levied upon is left in the possession of the defendant in the execution, becomes, without a reasonable excuse, dormant, and is postponed, on the ground of fraud, either express or implied, to a junior execution. This principle has been frequently asserted and applied. 11 Johns. R. 110. 15 id. 429. 17 id. 332. 4 Wendell, 332. In one case the first execution was pronounced fraudulent, where the delay was for more than a year, and in another…
2Cases cited2 opinions
- Gardner v. AdamsNew York Supreme Court · 1834
- Benjamin v. SmithNew York Supreme Court · 1830
3Cited by7 opinions
- Stimson v. . WrigleyNew York Court of Appeals · 1881
- Francisco v. BenepeMontana Supreme Court · 1886
- Betz v. ConnerNew York Court of Common Pleas · 1878
- Woodworth v. WoodworthNew York Supreme Court · 1856
- Chambers v. . LewisNew York Court of Appeals · 1863
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