Crosby v. Root

19 Misc. 359, 43 N.Y.S. 512

• Court: City of New York Municipal Court
• Decided: February 15, 1897
• Status: Published

Opinion

Corlan, J.

This is "an "appeal from" 'an order vacating and. setting aside an execution against the person of the defendant.

The action was commenced by the service of a'summons with notice, as required by the Code, section 119, and the defendant defaulting. ' - . • •

■ Then plaintiff framed a c’omplaint under subdivision 4 of section 549 of the Code of Civil Procedure and entered judgment without application to the court.

Subsequently) an execution against the property of the defendant, was returned unsatisfied and an execution against the person issued.

"We are not called upon in this appeal to pass upon the regularity of the entry of the judgment.

That can only be done upon a direct application made for that purpose.

The only question before us is the order vacating the body execution. '

No claim was made that the execution-is faulty in form or prematurely or irregularly issued, but rather that the judgment was irregularly entered.

While the judgment remains in force, it is sufficient to maintain the execution' against the person.

This court has passed upon this question in Roeber v. Dawson, 15 Civ. Pro. 417.

Order vacating execution reversed, with costs.

Pitzsimons and McCarthy, JJ., concur.

Order reversed, with costs.