American Surety Co. v. Cosgrove

New York Supreme Court

American Surety Co. v. Cosgrove

40 Misc. 262, 81 N.Y.S. 945

CourtNew York Supreme Court

DecidedMarch 15, 1903

StatusPublished

Cited by9 cases

This text of 40 Misc. 262 (American Surety Co. v. Cosgrove) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Surety Co. v. Cosgrove, 40 Misc. 262, 81 N.Y.S. 945 (N.Y. Super. Ct. 1903).

Pincite

Opinion

Bischoff, J.

The issuance of execution against the defendant’s property to the county of Chemung, as the place where he at the time resided, is sought to be justified solely upon the fact that [264]*264the defendant was within that county as a prisoner in the Elmira Reformatory, whither he was sent upon his conviction of a crime. Ooncededly, the last place of the defendant’s sojourn within the State was the city of Hew York, and it is impossible to hold that, for the purposes of an execution against his person (Oode Civ. Pro., § 1489), he “ resided ” where he was imprisoned. Whether the word “ residence ” be taken in the sense of domicile or of abode, it implies a place where the party is situated through choice, and where, in some conceivable matter, "his personal belongings would be the more readily found; and it has been distinctly ruled that neither in its legal nor in its popular meaning is the word “ residence ” satisfied by an incarceration in any particular place. Grant v. Dalliber, 11 Conn. 234.

There was an absolute failure of compliance with section 1489 of the Oode of Civil Procedure in that, before the issuance of execution against the person of the defendant, no execution against his property had been issued to the county of his residence. The execution against the defendant’s person should therefore be vacated and he be given his liberty.

Motion granted, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Bischoff, J.

The issuance of execution against the defendant’s property to the county of Chemung, as the place where he at the time resided, is sought to be justified solely upon the fact that [264]*264the defendant was within that county as a prisoner in the Elmira Reformatory, whither he was sent upon his conviction of a crime. Ooncededly, the last place of the defendant’s sojourn within the State was the city of Hew York, and it is impossible to hold that, for the purposes of an execution against his person (Oode Civ. Pro., § 1489), he “ resided ” where he was imprisoned. Whether the word “ residence ” be taken in the sense of domicile or of abode, it implies a place where the party is situated through choice, and where, in some conceivable matter, "his personal belongings would be the more readily found; and it has been distinctly ruled that neither in its legal nor in its popular meaning is the word “ residence ” satisfied by an incarceration in any particular place. Grant v. Dalliber, 11 Conn. 234.

There was an absolute failure of compliance with section 1489 of the Oode of Civil Procedure in that, before the issuance of execution against the person of the defendant, no execution against his property had been issued to the county of his residence. The execution against the defendant’s person should therefore be vacated and he be given his liberty.

Motion granted, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

40 Misc. 262, 81 N.Y.S. 945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-surety-co-v-cosgrove-nysupct-1903.

Opinion

Related

Cite This Page — Counsel Stack