¶1The executors of the plaintiff, Richard Deyo, were entitled to enforce, the unpaid judgment against the defendant, John Borley. They authorized the issuing of execution upon the judgment, and the commencement of proceedings supplementary to execution against the defendant. The execution issued was in proper form. • The only criticism that is passed upon it is that it was not properly indorsed as having been issued by the personal representatives of the deceased plaintiff, and the whole objection to the regularity of the proceedings is based upon the lack of such indorsement of the execution. No substantial right of the defendant has been infringed upon. The executors of Richard Deyo were entitled to have an execution issued against the defendant. The error alleged, if it is one, did not render the execution void; it was a curable irregularity. Hill v. Haynes, 54 N. Y. *301156; Douglas v. Haberstro, 88 N. Y. 611; Wright v. Nostrand, 94 N. Y. 48. No objection was made by the defendant, Borley, at or prior to his examination, or to the appointment of the receiver, to the regularity of the proceedings; such objections should have been made then. Wright v. Nostrand, 94 N. Y. 45. The order appealed from should be affirmed, with $10' costs and printing disbursements to the respondent.
18 N.Y.S. 300
Deyo v. Borley
Decided March 15, 1892
New York Supreme Court · decided 1892-03-15
<p>Supplementary Proceedings—Death op Execution Plaintiff.</p> <p>Where an execution is issued on a judgment recovered by a decedent, the failure to indorse thereon that it was issued by the personal representatives of decedent is a curable irregularity; and no objection to the execution having been made by defendant for that reason at or prior to the appointment of a receiver in supplementary proceedings, or to defendant’s examination thereon, none can be made thereafter.</p>
Relies on Wright v. . Nostrand · Douglas v. . Haberstro
Affirmed · Decided 1892-03-15