Davis v. Ainsworth

14 How. Pr. 346

• Court: New York Supreme Court
• Decided: January 15, 1856
• Status: Published

Opinion

Paige, Justice.

The motion is properly made to the court. The attachment was issued by Justice Bockes in an action pending in the supreme court, as one of its judges, and not as a commissioner acting under the Revised Statutes. (2 Wendell, 298.) The proceeding, therefore, did not die when his term of office expired. The provisions of the Revised Statutes, in relation to attachments against absent debtors, are made applicable to the manner of executing the warrant of attachment issued under the Code, by third persons, of the property attached, and to claims by virtue of such warrant, and to proceedings in case such property, or a part thereof, is perishable. (§§ 232 and 233 of the Code.)

I think, from the evidence, that the only portion of the attached property which I can regard as perishable is the potatoes. An order may be entered authorizing the sheriff to sell them at public auction: the proceeds, deducting the expenses of the sale, must be retained in his hands, to be disposed of in the same manner as the potatoes would have been had they remained unsold. (2 R. S. p. 4, § 9, Ist ed.)