Muldoon v. Pierz

New York Supreme Court

Muldoon v. Pierz

1 Abb. N. Cas. 309

CourtNew York Supreme Court

DecidedDecember 15, 1876

StatusPublished

Cited by2 cases

This text of 1 Abb. N. Cas. 309 (Muldoon v. Pierz) 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

Muldoon v. Pierz, 1 Abb. N. Cas. 309 (N.Y. Super. Ct. 1876).

Pincite

Opinion

Lawrence, J.

The judgment was obtained against August Pierz, and the order for the examination on proceedings supplementary to execution was served on Anthony Pirz. The order required the debtor to [311]*311appear before a referee, to be examined in Queens county, and Anthony Pirz having failed to appear, the motion is to punish him for contempt. In Farnham v. Hildreth (32 Barb. 277) it was held that a judgment and execution against Freeman Hildredth, will not authorize a sale of the property of Truman Hildreth, although the latter may be the individual intended; that the judgment and execution must describe the party whose property is sought to be taken, and it is not enough that the right man is made to pay a debt. Also, that where a defendant sued by a wrong name fails to appear in the action, he does not waive his right to object to the misnomer, after judgment and execution. This case seems decisive of this motion. Even if Anthony was the real person intended, he cannot be considered as in contempt for failing to comply with an order directed to August. This case differs from the case of Breen, which I decided last March. There Breen had appeared and defended the action; and I held that, under the circumstances, he could not complain that he was arrested on an execution in which his name was erroneously stated. Here the defendant never has appeared in response to or in any •way recognized or admitted the validity of the order.

The motion to punish Anthony Pirz for contempt, is therefore denied, but without costs.

There was no appeal.

Free access — add to your briefcase to read the full text and ask questions with AI

Lawrence, J.

The judgment was obtained against August Pierz, and the order for the examination on proceedings supplementary to execution was served on Anthony Pirz. The order required the debtor to [311]*311appear before a referee, to be examined in Queens county, and Anthony Pirz having failed to appear, the motion is to punish him for contempt. In Farnham v. Hildreth (32 Barb. 277) it was held that a judgment and execution against Freeman Hildredth, will not authorize a sale of the property of Truman Hildreth, although the latter may be the individual intended; that the judgment and execution must describe the party whose property is sought to be taken, and it is not enough that the right man is made to pay a debt. Also, that where a defendant sued by a wrong name fails to appear in the action, he does not waive his right to object to the misnomer, after judgment and execution. This case seems decisive of this motion. Even if Anthony was the real person intended, he cannot be considered as in contempt for failing to comply with an order directed to August. This case differs from the case of Breen, which I decided last March. There Breen had appeared and defended the action; and I held that, under the circumstances, he could not complain that he was arrested on an execution in which his name was erroneously stated. Here the defendant never has appeared in response to or in any •way recognized or admitted the validity of the order.

The motion to punish Anthony Pirz for contempt, is therefore denied, but without costs.

There was no appeal.

Cite This Page — Counsel Stack

Bluebook (online)

1 Abb. N. Cas. 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muldoon-v-pierz-nysupct-1876.

Opinion

Related

Cite This Page — Counsel Stack