Board of Commissioners v. Harvey
New York Supreme Court
Motion to set aside an execution against the body of the defendant, issued April 23, 1870, on a judgment recovered March 8, 1870, for penalties under the excise laws, an execution against property having first been issued and returned unsatisfied.
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Motion to set aside an execution against the body of the defendant, issued April 23, 1870, on a judgment recovered March 8, 1870, for penalties under the excise laws, an execution against property having first been issued and returned unsatisfied. The motion was based qpon the ground that by the act of the legislature, entitled ‘‘ An act regulating the sale of intoxicating liquors,” passed April 11, 1870, the plaintiff had ceased to exist when the execution was issued, and plaintiff’s counsel therefore had nó power or authority to issue it.
1Opinion of the CourtBoardman, J.
This motion might be denied upon the ground that the execution against the body of the defendant had never been served; that defendant had never been arrested-thereon. Until the defendant has been subjected to wrong by reason of the issuing of this execution he could not be heard in court on such a motion.
*192But I prefer to consider the question on its merits, and upon such consideration entertain no doubt that the motion must be denied. The act of 1870, (April 11,) does not repeal the act of 1857, but on the contrary, provides, that the same “ shall be taken and construed as a part of this…
2Cases cited1 opinion
- Van Rensselaer v. SecorNew York Supreme Court · 1860