Hommedieu v. Stowell

18 Abb. Pr. 336

• Court: New York Supreme Court
• Decided: February 15, 1865
• Status: Published

Opinion

Balcom, J.

After Augustus L. Ballard, Esq., left the State and became a resident of Wisconsin, his name could not be used as plaintiff’s attorney in enforcing the judgment. (The Chautauque County Bank a. Risley, 6 Hill, 375 ; Diefendorf a. House, 9 How. Pr., 243; Richardson a. The Brooklyn C. & N. Railroad Co., 22 Ib., 368.) The execution, to which his name was signed by his consent in 1859, was therefore irregular. But I do not think that execution was absolutely void, though the Code declares that the same must be “ subscribed by the party issuing it or his attorney.” (§ 289.) It was not a forgery, and was good in form. It was therefore only voidable by motion to set it aside. (Grah. Pr., 2 ed., 363, 4 and 5.)

It follows that so long as that execution and the return on it stand, it cannot be said the second execution was irregularly issued, in January, 1865, because leave to issue it was not obtained of the court. (See Code, §§ 283, 284.)

For these reasons I am of the opinion the motion to set aside . the second execution should be denied, with $10 costs, but without prej udice. s x

Note.—Chapter 43 of the Laws of 1862 (Laws of 1862, 139), authorizes certain u on-resident, attorneys to practise law in this State, “whose only office for the transaction of law business is within this State.”