Wright v. Strong

3 How. Pr. 112

• Court: New York Supreme Court
• Decided: September 15, 1847
• Status: Published

Opinion

Harris, Justice.

This motion must be denied. The positive statement in the affidavit of the Defendant that no execution upon the judgment upon which the bill is filed has ever been returned, is a sufficient answer to the motion. If the statement is true—and for the purposes of this motion, it must be taken to be true—the Plaintiff has no right to take the Defendants’ property out of their hands, under proceedings for the appointment of a receiver. But as it is evident that there is some mistake or error on one side or the other in relation to the execution, the Plaintiff must have liberty to renew the motion, and the costs of this motion are to abide the event of the suit. In this way, the party who is eventually shown to be in the right, upon the question, will obtain his costs upon this motion.