Toole v. de Goicouria

36 How. Pr. 127

• Court: New York Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

This was an action brought to recover the sum of $2,613.07 of the defendant, as acceptor of a bill of exchange for that amount.

After the action had been at issue for some time, the plaintiff obtained an order of arrest against the defendant on the ground that he was about to leave the country, and that he had concealed his property with intent to defraud his creditors ; and subsequently took an inquest because an affidavit of merits had not been filed and served.

After the- inquest had been taken and while further proceedings on the part of plaintiff were stayed pending a motion to open the same—the defendant moved to vacate the order of arrest upon the plaintiff’s affidavits.

The motion was argued before Judge Ingraham, on the 20th November, 1867, and the plaintiff urged the preliminary objection that the motion was made after judgment, an inquest having been taken;—:the justice decided the objection insufficient—but denied the motion in the following language:

Per Ingraham, J.

“The judgment is not perfect until “ entered in the judgment book.”

“ Upon the merits, I think the sufficiency of the affidavits “ is to be doubted, but as there are some decisions holding “them to be sufficient, I shall deny this motion, leaving the “ defendant to his appeal to the general term.”

An order was entered denying the motion; the defendant appealed to the general term; the appeal was argued at the January term, 1868,' before Barnard, Ingraham and Sutherland, Justices, and the order of Judge Ingraham, at special term reversed, no opinions being written as the judges did not reserve their decision.