Kohn v. Burtnett

New York Supreme Court

Kohn v. Burtnett

59 How. Pr. 410

DecidedJuly 15, 1880

StatusPublished

This text of 59 How. Pr. 410 (Kohn v. Burtnett) 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

Kohn v. Burtnett, 59 How. Pr. 410 (N.Y. Super. Ct. 1880).

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Opinion

Potter, J. —

In Ms opinion, says that formerly “ such was' the effect of the judgment, but by an amendment of the Code of Procedure, section 183, the defendant has twenty days after service of the order to move to vacate the order (Pilo agt. Cluhey, 36 Howard, 179). By section 576, Code of Civil Procedure, a defendant may apply to vacate an order of arrest at any time before final judgment. The application was made in this case before judgment and in season. The judgment only determined the fact and amount of the defendant’s indebtedness, and not necessarily what Mnd of execution may be issued to enforce it. The question whether the execution could be issued against the body could only be determined in this action by the existence of the order of arrest after the defendant had lost the right to move to vacate such order. The defendant has not expressly or impliedly consented to abandon his motion.” Judge Potter denies the motion, unless defendant proceeds with the taking of evidence and concludes it witMn thirty days.

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Potter, J. —

In Ms opinion, says that formerly “ such was' the effect of the judgment, but by an amendment of the Code of Procedure, section 183, the defendant has twenty days after service of the order to move to vacate the order (Pilo agt. Cluhey, 36 Howard, 179). By section 576, Code of Civil Procedure, a defendant may apply to vacate an order of arrest at any time before final judgment. The application was made in this case before judgment and in season. The judgment only determined the fact and amount of the defendant’s indebtedness, and not necessarily what Mnd of execution may be issued to enforce it. The question whether the execution could be issued against the body could only be determined in this action by the existence of the order of arrest after the defendant had lost the right to move to vacate such order. The defendant has not expressly or impliedly consented to abandon his motion.” Judge Potter denies the motion, unless defendant proceeds with the taking of evidence and concludes it witMn thirty days.

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Bluebook (online)

59 How. Pr. 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kohn-v-burtnett-nysupct-1880.