Board of Commissioners v. Harvey

New York Supreme Court

Board of Commissioners v. Harvey

39 How. Pr. 191

DecidedMay 15, 1870

StatusPublished

This text of 39 How. Pr. 191 (Board of Commissioners v. Harvey) 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

Board of Commissioners v. Harvey, 39 How. Pr. 191 (N.Y. Super. Ct. 1870).

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Opinion

Boardman, 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.

[192]*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 (1870,) act,” except when inconsistent or in conflict with the new act. This last act is not therefore, in its terms retrospective in its action and does not purport to take away any rights already vested. Even if it were retrospective, it could not deprive plaintiffs of rights vested in them by. virtue of a judgment recovered. (Pruyn Overseers, &c., agt. Tyler, 18 How., 361 ; Van Rensselaer agt. Secor, 32 Barb., 469; Berley agt. Rampacher, 5 Duer., 183; Butler agt. Palmer, 1 Hill., 325; Dwarris on Statutes, 676).

The plaintiff’s rights under this judgment are therefore, unaffected by the act of 1870, and they have a legal existence, and being to enforce such rights, since such condition and power in no way conflicts with the new law, or is in consistent therewith.

For these reasons the motion of the defendant must be denied with $10 costs of motion.

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Boardman, 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.

[192]*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 (1870,) act,” except when inconsistent or in conflict with the new act. This last act is not therefore, in its terms retrospective in its action and does not purport to take away any rights already vested. Even if it were retrospective, it could not deprive plaintiffs of rights vested in them by. virtue of a judgment recovered. (Pruyn Overseers, &c., agt. Tyler, 18 How., 361 ; Van Rensselaer agt. Secor, 32 Barb., 469; Berley agt. Rampacher, 5 Duer., 183; Butler agt. Palmer, 1 Hill., 325; Dwarris on Statutes, 676).

The plaintiff’s rights under this judgment are therefore, unaffected by the act of 1870, and they have a legal existence, and being to enforce such rights, since such condition and power in no way conflicts with the new law, or is in consistent therewith.

For these reasons the motion of the defendant must be denied with $10 costs of motion.

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39 How. Pr. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-commissioners-v-harvey-nysupct-1870.

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