Parfitt v. Warner

13 Abb. Pr. 471

• Court: New York Supreme Court
• Decided: September 15, 1861
• Status: Published

Opinion

Br the Court.

*— Ingraham, J.

—The undertaking was not void, and might be sufficient for all purposes under the Code, though not in exact compliance with the statute.

In such a case, the proper course was to move to set it aside, and to allow the plaintiff to proceed and sell, or to give notice of the defect in the undertaking.

To warrant the course taken in this case, without notice of any kind, would be doing injustice to the parties, and encouraging a course of proceeding which ought not be approved, of.

The order should be reversed, and the sale vacated and discharged, without prejudice to a motion of the plaintiff to set aside the undertaking.

Present, Clerke, P. J., Ingraham and Leonard, JJ.