Kennedy v. O'Brien

New York Court of Common Pleas

Kennedy v. O'Brien

2 E.D. Smith 41

DecidedMay 15, 1851

StatusPublished

This text of 2 E.D. Smith 41 (Kennedy v. O'Brien) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennedy v. O'Brien, 2 E.D. Smith 41 (N.Y. Super. Ct. 1851).

Pincite

Opinion

By the Court. Ingraham, First J.

There can be no doubt of the prbpriety of the decision in the court below. The action was brought to recover back moneys paid on execution, upon the ground of reversal of the judgment by this court.

The evidence offered was not sufficient to .establish that fact. There should have been a judgment entered upon the appeal and decision in this court, and the judgment-record would have been the proper evidence. The witness who had custody of the judgment books, stated that no judgment had been entered.

The proper course, where a party appealing is entitled to restoration, is a motion in this court for restoration; and on [42]*42that motion being granted, it becomes a part of the judgment in this court, and the amount can be collected by execution, with the costs.

The judgment in this case must be affirmed.

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By the Court. Ingraham, First J.

There can be no doubt of the prbpriety of the decision in the court below. The action was brought to recover back moneys paid on execution, upon the ground of reversal of the judgment by this court.

The evidence offered was not sufficient to .establish that fact. There should have been a judgment entered upon the appeal and decision in this court, and the judgment-record would have been the proper evidence. The witness who had custody of the judgment books, stated that no judgment had been entered.

The proper course, where a party appealing is entitled to restoration, is a motion in this court for restoration; and on [42]*42that motion being granted, it becomes a part of the judgment in this court, and the amount can be collected by execution, with the costs.

The judgment in this case must be affirmed.

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Bluebook (online)

2 E.D. Smith 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-obrien-nyctcompl-1851.