Majority
p. 473Delafield vs. Sandford. moved to vacate an order made on allowing a writ of error to stay proceedings. Delafield perfected his judgment in this court, and issued and levied his fi. fa. against Sandford, who, after the lapse of three months, sued out a writ of error to the court for the correction of errors, obtained the order in question, and served it on the sheriff. The latter thereupon declined to proceed to a sale.
Headnote
Where a writ of error was allowed three months after judgment, and an order made and served staying proceedings; held, a supersedeas oí execution, though the sheriff had previously levied.The rule, however, was otherwise previous to the enactment of the revised statutes.
J. Edwards, for the plaintiff,
p. 474Edwards said, the writ should have been sued out within four days after judgment perfected. At any rate, it was too late to obtain the order after levy made. (Grab. Practice, 2d ed. 354,355, 953 ; 7 Cowen, 418; 9 Wend. 224 ; 21 id. 287 .)
A. Gibbs, contra.
This motion would have been well founded had it been made before the revised statutes ; but now a writ of error and order obtained at any time stays proceedings even after levy. (2 R. S. 494, 5, 2d. ed. § 29, 30.) The provision in the last section is, that if an execution shall have been issued and not fully executed, the service of the order shall stay, &c. It is supposed that the levy is a full execution within the meaning of the statute. Not so. To complete the execution, there must be a sale at least. There is no cause, therefore, either for setting aside the order or directing the sheriff to proceed.
Motion denied.
Cases cited
- People v. Allen 9 Wend. 224 p. 474