Herkimer County Bank v. Brown

New York Supreme Court

Herkimer County Bank v. Brown

6 Hill & Den. 232

DecidedDecember 15, 1843

StatusPublished

This text of 6 Hill & Den. 232 (Herkimer County Bank v. Brown) 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

Herkimer County Bank v. Brown, 6 Hill & Den. 232 (N.Y. Super. Ct. 1843).

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Opinion

By the Court, Bronson, J.

The answering affidavits have brought this case within a narrow compass. As the proof stands, we cannot say that the attorney, or the assignees of the bank judgment, have ever given any instructions for delay, or that they have in any way interfered with the command of the writ to levy and collect the money; unless we infer instructions, against the positive denial of the parties, from the delay which actually took place. To declare the bank execution dormant under such circumstances would be going further than the cases have yet gone, and we think the motion ought not to be granted. In all the cases where the first execution has lost its preference, something was said by the plaintiff or his attorney at the time the execution was issued, or at some subsequent period, from which the sheriff could reasonably infer that he was authorized to give indulgence, instead of complying strictly with the command of the writ. But here no such thing appears. There is nothing but the naked fact that the assignees of the judgment did not rule the sheriff to proceed, or take any other measures to hasten his movements. That only warrants the inference that the assignees acquiesced in the course pursued by the sheriff. But mere acquiescence, without doing or saying any thing to encourage or sanction the delay, we think [234]*234is not enough to render the execution dormant,

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By the Court, Bronson, J.

The answering affidavits have brought this case within a narrow compass. As the proof stands, we cannot say that the attorney, or the assignees of the bank judgment, have ever given any instructions for delay, or that they have in any way interfered with the command of the writ to levy and collect the money; unless we infer instructions, against the positive denial of the parties, from the delay which actually took place. To declare the bank execution dormant under such circumstances would be going further than the cases have yet gone, and we think the motion ought not to be granted. In all the cases where the first execution has lost its preference, something was said by the plaintiff or his attorney at the time the execution was issued, or at some subsequent period, from which the sheriff could reasonably infer that he was authorized to give indulgence, instead of complying strictly with the command of the writ. But here no such thing appears. There is nothing but the naked fact that the assignees of the judgment did not rule the sheriff to proceed, or take any other measures to hasten his movements. That only warrants the inference that the assignees acquiesced in the course pursued by the sheriff. But mere acquiescence, without doing or saying any thing to encourage or sanction the delay, we think [234]*234is not enough to render the execution dormant,

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Bluebook (online)

6 Hill & Den. 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herkimer-county-bank-v-brown-nysupct-1843.