Bennett v. . Morehouse

New York Court of Appeals

Bennett v. . Morehouse

42 N.Y. 189, 1870 N.Y. LEXIS 38

CourtNew York Court of Appeals

DecidedMarch 19, 1870

StatusPublished

Cited by1 cases

This text of 42 N.Y. 189 (Bennett v. . Morehouse) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennett v. . Morehouse, 42 N.Y. 189, 1870 N.Y. LEXIS 38 (N.Y. 1870).

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Opinions

The question involved in these appeals is one of practice merely in the court below. The judgments were for the recovery of money against the defendants, Joel and Tallcott Morehouse, and the amount recovered was also adjudged to be a lien and charge upon certain real estate devised to them by their father, and particularly described in the judgments, which was directed to be sold by the sheriff of Saratoga county, for the satisfaction of the debts. The executions issued thereon were, as stated in the motion papers, "in the usual form of executions or fi. fa's, issued upon judgments for money," and it was claimed by the appellants that they were not appropriate to the enforcement of these judgments, and on that ground, and on some allegations as to the course of proceedings thereon, an application was made at Special Term to set them aside, which was denied, and the appeal to this court is from an order of affirmance by the General Term.

The respondent was entitled to the collection of the money recovered by him, and if the executions issued were not in the form prescribed by law, it was an irregularity, subject to correction by the court below; and it is settled by the decision in the case of Bank of Genesee v. Spencer (18 N.Y. Rep., 150), that the order of the character appealed from does not affect a substantial right, within the third subdivision of section 11 of the Code. It related to the form and order of proceedings, and was the exercise of the jurisdiction of that court to control and regulate its process.

Orders in such cases are not appealable to this court.

If, however, an appeal was allowed, I concur in the views expressed in the opinion of BOCKES, J., at Special Term, on the merits. He has fully and ably considered the question *Page 192 raised by the motions, and I cannot add anything material or useful to what he has there stated.

My conclusion is, that the appeals should be dismissed, or, if retained, the order should be affirmed, with costs in each case.

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The question involved in these appeals is one of practice merely in the court below. The judgments were for the recovery of money against the defendants, Joel and Tallcott Morehouse, and the amount recovered was also adjudged to be a lien and charge upon certain real estate devised to them by their father, and particularly described in the judgments, which was directed to be sold by the sheriff of Saratoga county, for the satisfaction of the debts. The executions issued thereon were, as stated in the motion papers, "in the usual form of executions or fi. fa's, issued upon judgments for money," and it was claimed by the appellants that they were not appropriate to the enforcement of these judgments, and on that ground, and on some allegations as to the course of proceedings thereon, an application was made at Special Term to set them aside, which was denied, and the appeal to this court is from an order of affirmance by the General Term.

The respondent was entitled to the collection of the money recovered by him, and if the executions issued were not in the form prescribed by law, it was an irregularity, subject to correction by the court below; and it is settled by the decision in the case of Bank of Genesee v. Spencer (18 N.Y. Rep., 150), that the order of the character appealed from does not affect a substantial right, within the third subdivision of section 11 of the Code. It related to the form and order of proceedings, and was the exercise of the jurisdiction of that court to control and regulate its process.

Orders in such cases are not appealable to this court.

If, however, an appeal was allowed, I concur in the views expressed in the opinion of BOCKES, J., at Special Term, on the merits. He has fully and ably considered the question *Page 192 raised by the motions, and I cannot add anything material or useful to what he has there stated.

My conclusion is, that the appeals should be dismissed, or, if retained, the order should be affirmed, with costs in each case.

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Bluebook (online)

42 N.Y. 189, 1870 N.Y. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-morehouse-ny-1870.

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