¶1This 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.
3 How. Pr. 112
Wright v. Strong
Decided September 15, 1847
New York Supreme Court · decided 1847-09-15
The Plaintiff upon the usual papers moved for a reference to appoint a receiver upon a creditor’s bill. The Defendants in opposition read an affidavit, in which it was stated positively, that no execution upon the judgment upon which the bill was founded had ever been returned.
Decided 1847-09-15