Majority
p. 884WALL ST. EXCH. BLDG. ASS’N v. NEW YORK & W. CONSOL. OIL CO. (Supreme Court, Special Term, New York County. December 16, 1907.)
Headnote
Execution—Vacation—Stay Pending; Appeal.Where a notice of appeal from a judgment and undertaking were not served until after the expiration of a stay granted by the trial justice, a levy on personal property would be discharged only on condition that the appellant pay the sheriff’s and keeper’s fees, under Code Civ. Proc. § 1311.
Action by the Wall Street Exchange Building Association against the New York & Western Consolidated Oil Company. On motion to discharge an execution levy on personal property. Motion granted, on condition.
Frost & Ni'eman, for the motion.
Alfred E. Ommen, opposed.
As the time within which an execution might have been issued without leave commenced to run on the day on which
p. 885
the judgment was entered (Aultman & Taylor Co. v. Syme, 163 N. Y. 54 , 57 N. E. 168 , 79 Am. St. Rep. 565 ), the stay granted by the trial justice expired on the 23d, instead of' the 26th, day of November, 1907. The notice of appeal and undertaking were served upon the last-mentioned date, and under these circumstances the defendant (appellant) should pay the sheriff’s fees and keeper’s fees, to be taxed, as a condition to the granting of the motion to discharge the levy upon personal property, pursuant to sectioq 1311 of the Code of Civil Procedure.
Motion disposed of as indicated, with $10 costs to the plaintiff (respondent) to abide the event.
Cases cited
- Aultman & Taylor Co. v. Syme 163 N. Y. 54 at 57 p. 885