Risk v. Uffelman

City of New York Municipal Court

Risk v. Uffelman

6 Misc. 216, 26 N.Y.S. 880, 56 N.Y. St. Rep. 539

DecidedDecember 15, 1893

StatusPublished

This text of 6 Misc. 216 (Risk v. Uffelman) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Risk v. Uffelman, 6 Misc. 216, 26 N.Y.S. 880, 56 N.Y. St. Rep. 539 (N.Y. Super. Ct. 1893).

Pincite

Opinion

McCarthy, J.

The justice of the District Court had jurisdiction and control over all processes issuing out of his court, and could, on the return day of the summons, or at any other [217]*217time to which the action was adjourned, vacate the warrant of attachment and dismiss the action. Code Civ. Proc. §§ 2916, 2917.

The original summons and papers in the case of Tilly Seligman v. Risk were not returned to the court on the morning of the return day of the summons, but the defendant, who had been served with a copy of the summons and papers on the attachment, voluntarily appeared and answered, and during the regular proceedings of the court the justice, on motion of defendant’s attorney, called the parties to the action, and plain tiff failing to appear, vacated the attachment and dismissed the action. This was done on the copy summons and other papers, and he had the power to do so.

When the attachment was vacated and the action dismissed the plaintiff herein had a right of action against the sureties on the undertaking on attachment.

The questions as to whether a levy had been made, and as to whether the property was sold by the marshal, or under his directions, were disputed ones, and were, therefore, properly left to the jury, and, on such questions, them finding is conclusive.

We find no material error in the case, and judgment should, therefore, be affirmed, with costs.

Ehblich, Ch. J., concurs.

Judgment affirmed, with costs.

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McCarthy, J.

The justice of the District Court had jurisdiction and control over all processes issuing out of his court, and could, on the return day of the summons, or at any other [217]*217time to which the action was adjourned, vacate the warrant of attachment and dismiss the action. Code Civ. Proc. §§ 2916, 2917.

The original summons and papers in the case of Tilly Seligman v. Risk were not returned to the court on the morning of the return day of the summons, but the defendant, who had been served with a copy of the summons and papers on the attachment, voluntarily appeared and answered, and during the regular proceedings of the court the justice, on motion of defendant’s attorney, called the parties to the action, and plain tiff failing to appear, vacated the attachment and dismissed the action. This was done on the copy summons and other papers, and he had the power to do so.

When the attachment was vacated and the action dismissed the plaintiff herein had a right of action against the sureties on the undertaking on attachment.

The questions as to whether a levy had been made, and as to whether the property was sold by the marshal, or under his directions, were disputed ones, and were, therefore, properly left to the jury, and, on such questions, them finding is conclusive.

We find no material error in the case, and judgment should, therefore, be affirmed, with costs.

Ehblich, Ch. J., concurs.

Judgment affirmed, with costs.

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Bluebook (online)

6 Misc. 216, 26 N.Y.S. 880, 56 N.Y. St. Rep. 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/risk-v-uffelman-nynyccityct-1893.