Wood v. Derrickson

1 Hilt. 410

• Court: New York Court of Common Pleas
• Decided: August 15, 1857
• Status: Published

Opinion

INGRAHAM, First Judge. —

There is no ground upon wbicb this appeal can be sustained.

The action was upon an undertaking given on appeal, and was conditioned for tbe payment, of all costs and damages wbicb might be awarded on appeal, and of tbe judgment of affirmance. It did not require tbe issuing an execution, but was forfeited as soon as tbe affirmance of the judgment took place, and tbe debtor made default in its payment.

Tbe answer merely sets up that tbe defendant was tbe owner of real estate, and tbe execution issued was returned by tbe sheriff before tbe expiration of sixty days, at tbe plaintiff’s request, without attempting to make tbe money out of tbe real estate.

This formed no defence to tbe action. It did not relieve tbe defendants from their liability previously incurred. It may be that the surety might have required the creditor to issue an execution and levy on the real estate; but, without such a request, he cannot complain that the creditor has not pursued his remedy further against his debtor than the issue of an execution.

The order appealed from is affirmed, with costs.