Public-domain · open source
OpenJurist

2 Abb. Pr. 161

Bowie v. Brahe

The Superior Court of New York City

Decided October 15, 1855

The Superior Court of New York City · decided 1855-10-15

The plaintiff moves for an order directing the sheriff to execute a writ of Habere facias possessionem, in a particular manner. Plaintiff and defendant owned adjoining lots. Defendant erected a building on his lot, and encroached one inch and seven-eighths of an inch on the easterly side of plaintiff’s lot. Plaintiff then built on his own lot, placing his easterly wall directly against the westerly wall of defendant’s building.

Cited by 3 later decisions — most recently September 1932

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1855-10-15

View the full empirical analysis of this case →

Oaeley, Ch. J.

¶1The court will not direct the sheriff in what manner he shall execute process. This is regarded, as an application made with a view to obtain the advice of the court. The court should not advise the sheriff, by ordering him to do particular acts, as being essential and proper in the rightful performance of his duty.* Although so ordered, he might be prosecuted for his acts, and the court might be placed in the position of being required to give judgment upon a matter which it had pre-judged without due consideration; and the sheriff might be subjected to damages for obeying an order, and that, too, by the judgment of the court, in obedience to whose order the acts were done.

¶2The sheriff must act, under the advice of his counsel, on his own responsibility, if he should refuse to return the writ, the court would compel him to do it. When he has made a return, if the plaintiff deems it false, he must seek his remedy by action or otherwise, as he may be advised.

¶3The motion must be denied.

¶4 Compare Curtis a. Leavitt, 1 Ante 274, in which it was held that a special receiver appointed in the course of an action to take custody of a fund in suit, is an officer of the court, and as such is entitled to the instructions of the court, when the question is what is his duty under the orders made in the cause.

/2/abbpr/161 · .json · Public domain