Van Waggenen v. McDonald

3 Wend. 478

• Court: New York Supreme Court
• Decided: January 15, 1830
• Status: Published

Opinion

By the Court,

Sutherland, J.

' The proceeding complained of was undoubtedly improper; but I am inclined to think it was an irregularity which should have been corrected by motion in the court below, and is not a subject of a writ of error. The error is no part of the record ; it occurred in an interlocutory proceeding in the cause, which the court below, under certain circumstances, might, in the exercise of a sound discretion, have refused to set aside. It it should have appeared (as it might on motion) that the defendant below assented to the course of proceeding before the sheriff, he would have been precluded from availing himself of the irregularity. (Colden v. Knickerbacker, 2 Cowen, 51. 2 Dunlap’s Pr. 1147 to 1154. 1 Archb. Pr. 211.) The judgment must be affirmed.

Judgment affirmed-.