Boker v. Curtis

2 Edw. Ch. 111, 1833 N.Y. LEXIS 184, 1833 N.Y. Misc. LEXIS 15

• Court: New York Court of Chancery
• Decided: September 16, 1833
• Status: Published

Opinion

The Vice Chancellor:

In relation to a stay of proceedings at law after judgment, the statute requires that a sum, equal to the judgment and including costs, shall be deposited or a bond given, with sureties. And such a bond cannot be allowed by an injunction master: it must be sanctioned by the Court.

But, the counsel for the complainants contend that the present case is not embraced by the statute: inasmuch as it does not “ stay proceedings at law”—the executions having been levied and the property sold, thereby terminating the legal acts. I examined this very point in the case of Perry v. Hutchinson ;

(a) and decided against an injunction which had been similarly granted. I still hold to the opinion I there gave. The injunction against the sheriff certainly acts as a stay of proceedings at law: for the plaintiffs in the judgments can proceed to compel the sheriff to return the writs and pay over the amounts levied: this injunction stays such proceedings. It was therefore irregular without the deposit or security, and must be set aside with costs.

I have thought it right to look a little into this bill. There appears to me equity enough to consider it favorably. The case is one which would require the interposition of the Court, when properly applied for. Although I must set aside this injunction, yet I will give the complainants leave £o file the necessary bond, instead of the deposit. They may do this any time to day; and when done, a fresh injunction may issue pursuant to the prayer of the bill.

6th February 1833.