Deyo v. Borley

18 N.Y.S. 300, 43 N.Y. St. Rep. 638, 63 Hun 631

• Court: New York Supreme Court
• Decided: March 15, 1892
• Status: Published

Opinion

Herrick, J.

The executors of the plaintiff, Richard Deyo, were entitled to enforce, the unpaid judgment against the defendant, John Borley. They authorized the issuing of execution upon the judgment, and the commencement of proceedings supplementary to execution against the defendant. The execution issued was in proper form. • The only criticism that is passed upon it is that it was not properly indorsed as having been issued by the personal representatives of the deceased plaintiff, and the whole objection to the regularity of the proceedings is based upon the lack of such indorsement of the execution. No substantial right of the defendant has been infringed upon. The executors of Richard Deyo were entitled to have an execution issued against the defendant. The error alleged, if it is one, did not render the execution void; it was a curable irregularity. Hill v. Haynes, 54 N. Y. ; Douglas v. Haberstro, 88 N. Y. 611; Wright v. Nostrand, 94 N. Y. 48. No objection was made by the defendant, Borley, at or prior to his examination, or to the appointment of the receiver, to the regularity of the proceedings; such objections should have been made then. Wright v. Nostrand, 94 N. Y. 45. The order appealed from should be affirmed, with $10' costs and printing disbursements to the respondent.