People ex rel. Luther v. Onondaga C. P.

19 Wend. 79

Opinion

By the Court,

Cowen, J.

The court below allowed Luther to come and be subrogated in the place of the plaintiff as against Marshall the defendant, but not as against the purchasers of his real estate on subsequent judgments and executions. I. think they had a right to do so in their discretion. The levy by Luther, although Marshall subtracted the property before Baldwin and Brewster got their judgments, might well have induced them to suppose that the first judgment was satisfied, and led them on in their own suits to expense and trouble. All this was, very likely, in consequence of Luther’s neglect. He levied on personal property, which was prima facie a satisfaction. He was careless in not keeping it, and in leaving it with Marshall. I think this case is within the principle of Wood v. Torrey, 6 Wendell, 562, and therefore the motion must be denied, with costs to be paid by the relator.