Maher v. . Carman

38 N.Y. 25, 5 Trans. App. 25

• Court: New York Court of Appeals
• Decided: January 5, 1868
• Status: Published

Opinions

Upon an examination of the printed case, we find no cause for the reversal of this judgment.

The principal questions made arose on the motion for a nonsuit, upon the ground, first, that there was an absence of proof that an execution had been issued upon the judgment to the county of Richmond, and returned unsatisfied; and, second, that there was no proof that a certificate that the stock of the company had not been paid in had been filed in the county of Richmond. As to the first, I think it was not essential that an execution should be issued to and returned from two counties.

The certificate of the formation of the company was filed in New York, and, although it recites that the operations of the company are to be carried on both there and in Richmond county, it was sufficient that one execution was issued and returned.

The statute (S.L. of 1848, ch. 40, § 24) speaks of "an execution," and not of several executions. The statute was complied with when one execution was issued. It was enough that a fair and reasonable effort had been made to collect the judgment by execution. But it was unnecessary to issue more than one execution upon the plaintiff's judgment, as it appears that all the property in Richmond county had been sold and a receiver appointed.

As to the second objection, the proof would have been, at most, negative testimony, and, there being no evidence that the original certificate had been filed in Richmond county, the evidence that none had been filed in New York, established, at least, a prima facie case in this particular.

Beyond this, the evidence was not important.

The other exceptions taken do not present any serious questions for consideration, and none of them can be maintained.

The judgment should be affirmed.