Brush v. Lee

New York Supreme Court

Brush v. Lee

18 Abb. Pr. 398

CourtNew York Supreme Court

DecidedMarch 15, 1865

StatusPublished

Cited by1 cases

This text of 18 Abb. Pr. 398 (Brush v. Lee) 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

Brush v. Lee, 18 Abb. Pr. 398 (N.Y. Super. Ct. 1865).

Pincite

Opinion

By the Court.—T. A. Johnson, J.

I am prepared to agree to the affirmance of the j udgmeut, on the ground that the execution issued to the sheriff of Kings county, on which the sheriff’s deed in question was founded, was wholly invalid. The Code (§ 64, subd. 13) provides how executions upon judgments like the one in this case shall be issued. “If the judgment be docketed with the county clerk, the execution shall be. issued by him to the sheriff.” The authority being given to the county clerk exclusively to issue the execution in such a case, it seems to me, it can no more be issued by an attorney than it could had the judgment remained before the.justice. Being issued without authority of law, it was wholly invalid, and conferred no power upon the sheriff to transfer the title of the plaintiff’s testator to any one.

I think the judge at special term was right also in'holding that the defendant’s proceedings upon the judgment were not stayed at the time the executions were issued. But upon the question of fraud (aside from the issuing of the execution by the attorney), I should find it exceedingly difficult to agree with the learned justice at special term.

Sutherland and Clerke, JJ., concurred.

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By the Court.—T. A. Johnson, J.

I am prepared to agree to the affirmance of the j udgmeut, on the ground that the execution issued to the sheriff of Kings county, on which the sheriff’s deed in question was founded, was wholly invalid. The Code (§ 64, subd. 13) provides how executions upon judgments like the one in this case shall be issued. “If the judgment be docketed with the county clerk, the execution shall be. issued by him to the sheriff.” The authority being given to the county clerk exclusively to issue the execution in such a case, it seems to me, it can no more be issued by an attorney than it could had the judgment remained before the.justice. Being issued without authority of law, it was wholly invalid, and conferred no power upon the sheriff to transfer the title of the plaintiff’s testator to any one.

I think the judge at special term was right also in'holding that the defendant’s proceedings upon the judgment were not stayed at the time the executions were issued. But upon the question of fraud (aside from the issuing of the execution by the attorney), I should find it exceedingly difficult to agree with the learned justice at special term.

Sutherland and Clerke, JJ., concurred.

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Bluebook (online)

18 Abb. Pr. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brush-v-lee-nysupct-1865.

Opinion

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