Spilker v. Abrahams

The judgment was obtained in an action for malicious, prosecution and false imprisonment. It was docketed in ¡New York county, where the defendant’s place of business was, and he was subsequently examined in supplementary proceedings. Upon the examination he testified that he was temporarily residing with his. mother-in-law in Richmond county; thereupon an execution was issued to the sheriff of Richmond county against the property of the defendant, who returned it unsatisfied. The plaintiff then issued an execution against the person of the defendant, which it is now sought to set aside. There is no question but that plaintiff had a right to issue execution against the person of the defendant, but it is contended that it was improperly issued to the sheriff of the county where the defendant says he was only temporarily sojourning. He "alleges that his place of business was in the borough of Manhattan, though it appears that his name was in the Staten Island telephone directory, and there was sufficient evidence before the learned justice at Special Term to warrant a finding that the defendant was a resident, of Richmond county. ¡No sucli finding was necessary, however, because the Code of Civil Procedure, section 1365, provides that an execution against the person' may be issued to any county, and the execution was properly issued without regard to defendant’s legal residence. If it were necessary that the execution be issued to the sheriff of the county of the debtor’s legal residence, it would be an easy matter to avoid its effects by remaining away from that county, This enactment was to prevent such a result.

It follows, therefore, that the ..order must be affirmed, with ten dollars costs and disbursements.

Jerks, Burr, Thomas and Carr, JJ.,, concurred.

■Order affirmed, with ten dollars.costs and disbursements.