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Beekman v. Bemus

7 Cow. 417-1 Court N.Y. Sup. Ct. English

Contents

Majority

p. 417-1
Beekman against Bemus.
UTICA,
August, 1827.

Headnote

Whera exo cution is exeexecution boa“d “°r® have elapsed o?mperfecting judgment, order to stay the°comtSeán not relieve by ordering a writ of error to operate ?s a su" persedeas.
The plaintiff’s attorney, being informed that the defendant’s attorney wished to bring error, the former promised to give the latter notice when he filed his record, so that th e latter might bring error and put in bail in season to stay proceedings. The record being sent to the plaintiff’s counsel to file, if he should think it proper, previous to amending the postea, a motion for which was in plation, he filed the record; and no notice of this was given to the defendant’s attorney, till after 4 days had elapsed from the time of filing it. A fi.fa. was, in the meantime, levied
A motion was now made for leave to bring error, and . o i put m bail, so as to stay execution.
J. Ellsworth, for the motion.
W. L. F. Warren, contra,
cited 9 John. 66 ; 17 id. 34; Dunl. Pr. 1138.

This is the common case of the 4 days expired after judgment perfected, and no order to stay proceedings. wrfi 0f exxor ig filed or bail put in. The execution *being levied, we cannot give relief. The defendant must rely on the restitution which follows the reversal of the judgment, if it shall be reversed on error.

Motion denied.[1]

Footnotes

  1. (a) (a) Vid. Jackson v. Schawber, ante, 417.