¶1The defendant moved to set aside an execution, on the ground of its payment before execution issued, and produced a receipt in full, given by the plaintiff, who alleged that the receipt had been obtained by fraud. The court were at first inclined to disregard on this motion the plaintiff’s allegations, but, after consideration, directed the motion to lie over until the next special term, so that a cross-motion might be made by the plaintiff for leave to proceed on the execution, the defendant having liberty to answer. The costs of the present motion to abide the event of the plaintiff’s motion.
18 Wend. 269
Brown v. Burdick
Decided June 15, 1835
New York Supreme Court · decided 1835-06-15
<p>Where a motion is made by a defendant to set aside an execution on the ground that the judgment was paid and satisfied before the issuing of the execution, and a receipt in full is produced ; and the plaintiff comes in and answers that there was fraud in obtaining the receipt, the motion will be suspended until the next special term, when the plaintiff will be required • to move for leave to issue the execution, the defendant to have leave to answer, and the costs of the defendant’s motion will abide the costs of the motion on the part of the plaintiff.</p>
Decided 1835-06-15