Bell v. Bell

Decided February 15, 1845

New York Supreme Court · decided 1845-02-15

Motion by defendant to set aside execution.—The defendent moves to set aside execution issued on a judgment confessed on bond and warrant of attorney, on the grounds that it was issued before the expiration of thirty days after the entering of judgment. The plaintiff insists that the release of errors in the warrant of attorney authorized the issuing of the execution at any time, and releases all errors in the issuing, as well as the form of execution.

Decided 1845-02-15

Nelson, Chief Justice.

¶1We have decided that point against you.

¶2The plaintiff then read affidavit, showing that after the fi. fa. was issued and a levy made by the deputy sheriff, the deputy sheriff told defendant that he had received notice from plaintiff’s attorney that some of the money to be collected must be paid to plaintiff’s attorney, and not to the plaintiff. To this the defendant replied, that the deputy sheriff must not pay any thing to plaintiff’s attorney, but must pay all he collected on the fi. fa. to the plaintiff in person.

¶3Nelson, Chief Justice.—That was a waiver of the irregularity.

¶4Decision.—Motion denied, with costs.