Blake v. Locy

6 How. Pr. 108

• Court: New York Supreme Court
• Decided: October 15, 1850
• Status: Published

Opinion

Welles, Justice.

The objection that the affidavit and notice of motion are w-rongly entitled, can not be maintained {Code, § 406). Neither do I think the objection that the notice does not point out the irregularity complained of can prevail. The objection to the proceedings in question is radical and goes to the jurisdiction of the officer before whom they were had. That in relation to the referee appointed by him is sufficiently pointed out. That objection, however, could not in any event be entertained on this motion. It should have been raised before the officer who made the order, and could only be brought before the court on appeal, provided his decision could be reviewed at all.

The objection that a justice of this court has no jurisdiction to make the orders in question, would seem to be unanswerable, provided it can be considered on this motion. Where the execution is issued on a judgment of the County Court, the order must be made by a county judge {Code, §292). In this case the judgment was -by the County Court of Livingston county. If the justice who made these orders had been referred to the provisions of the section cited, he would undoubtedly have declined acting.

I had doubts at first whether the application to vacate these orders should not have been made in the first instance to the officer who granted them; but upon examination am satisfied the present motion for that purpose may be entertained, and that under section 324 of the Code, either course wmuld be regular. The motion is therefore granted with $ 10 costs.