Ex parte Aldrich

Court for the Trial of Impeachments and Correction of Errors

Ex parte Aldrich

1 Denio 662

CourtCourt for the Trial of Impeachments and Correction of Errors

DecidedSeptember 15, 1845

StatusPublished

Cited by5 cases

This text of 1 Denio 662 (Ex parte Aldrich) is published on Counsel Stack Legal Research, covering Court for the Trial of Impeachments and Correction of Errors primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex parte Aldrich, 1 Denio 662 (N.Y. Super. Ct. 1845).

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Opinion

By the Court, Beardsley, J.

Where a party, as assignee oí a judgment, is seeking to redeem lands sold under execution, he must present to and leave with the officer or purchaser, amongst other evidences of his right, a true copy of the assignment of said judgment, "verified by his affidavit, or by the affidavit of some witness to such assignment.” (2 R. S. 373, § 60.) No affidavit is made by either of the two subscribing witnesses to this assignment, and the party himself, in his affidavit, only says that the judgment belonged to him. This is in no sense a verification of the copy of the assignment, and is wholly insufficient. The statute must be strictly complied with, and this is hardly an approach to it. But the affidavit of Thomas Coman is relied upon for this purpose. He was not a subscribing witness to the assignment, nor does he state in terms," that he was [664]*664present when it was executed. He does, however, say “ said assignment was executed in the presence of the subscribing witnesses thereto,” although he fails to disclose the manner in which he ascertained that fact. He may have been present when the assignment was made, and in that manner may be able to verify the fact that it was executed “ in the presence of the subscribing witnesses thereto.” But if this were so, he would not be allowed to prove the execution of the assignment at law or in equity, unless some sufficient reason for the non-production of the subscribing witnesses was shown; and I think he cannot be regarded as a “ witness to such assignment” within the meaning of the statute. None but a subscribing witness can, in my opinion, satisfy these words. As this copy of the assignment was not duly verified, Griffin failed to acquire the title which Aldrich had by the original purchase. The right of Aldrich was not impaired or affected by this effort to redeem, and he is now entitled to a conveyance from the sheriff.

Motion granted.

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By the Court, Beardsley, J.

Where a party, as assignee oí a judgment, is seeking to redeem lands sold under execution, he must present to and leave with the officer or purchaser, amongst other evidences of his right, a true copy of the assignment of said judgment, "verified by his affidavit, or by the affidavit of some witness to such assignment.” (2 R. S. 373, § 60.) No affidavit is made by either of the two subscribing witnesses to this assignment, and the party himself, in his affidavit, only says that the judgment belonged to him. This is in no sense a verification of the copy of the assignment, and is wholly insufficient. The statute must be strictly complied with, and this is hardly an approach to it. But the affidavit of Thomas Coman is relied upon for this purpose. He was not a subscribing witness to the assignment, nor does he state in terms," that he was [664]*664present when it was executed. He does, however, say “ said assignment was executed in the presence of the subscribing witnesses thereto,” although he fails to disclose the manner in which he ascertained that fact. He may have been present when the assignment was made, and in that manner may be able to verify the fact that it was executed “ in the presence of the subscribing witnesses thereto.” But if this were so, he would not be allowed to prove the execution of the assignment at law or in equity, unless some sufficient reason for the non-production of the subscribing witnesses was shown; and I think he cannot be regarded as a “ witness to such assignment” within the meaning of the statute. None but a subscribing witness can, in my opinion, satisfy these words. As this copy of the assignment was not duly verified, Griffin failed to acquire the title which Aldrich had by the original purchase. The right of Aldrich was not impaired or affected by this effort to redeem, and he is now entitled to a conveyance from the sheriff.

Motion granted.

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Bluebook (online)

1 Denio 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-aldrich-nycterr-1845.

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