Aultman & Taylor Co. v. Syme
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, The Aultman & Taylor Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 10th day of October, 1900, setting aside an execution upon the ground that more than five years had elapsed since the entry of 'the judgment at the time when the execution was issued.
1Opinion of the Court
Hatch, J.:
The law has been settled in this case, and as settled it is decided that the execution upon which the creditor’s action was founded was; issued after the lapse of five years from the entry of the judgment without leave of the court being first obtained. (Aultman & Taylor Co. v. Syme, 23 App. Div. 344; S. C. on appeal, 163 N. Y. 54.) Such fact, however, did not render the execution void; it was only voidable and subject to be set aside upon motion. (Bank of Genesee v. Spencer, 18 N. Y. 150.)
When the case was before this court it held that the execution could not be made the basis…
2Cases cited5 opinions
- Aultman Taylor Co. v. . SymeNew York Court of Appeals · 1900
- Wright v. . NostrandNew York Court of Appeals · 1883
- Bank of Genesee v. . SpencerNew York Court of Appeals · 1858
- Aultman & Taylor Co. v. SymeAppellate Division of the Supreme Court of the State of New York · 1897
- Wooster v. WuterichThe Superior Court of New York City · 1876