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Sullivan v. Van Valkenburg

128 N.Y.S. 624 Court N.Y. App. Term Decision date 1911-03-21 English

Delivered by SEABURY, J.

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p. 624
SULLIVAN v. VAN VALKENBURG.
(Supreme Court, Appellate Term.
March 21, 1911.)

Headnote

Execution (§ 158[1] )—Stay.
Where a stay of execution for 30 days was granted upon consent, and prior to the expiration thereof an execution was issued, a motion should have been granted to set it aside.
[Ed. Note.—For other cases, see Execution, Dec. Dig. § 158.[1] ]
Appeal from City Court of New York, Special Term.
Action by Francis Sullivan against Nevada Van Valkenburg. Judgment for defendant. From so much of an order of the City Court as denied his application to set aside an execution, etc., plaintiff appeals.
Order modified, and motion granted.
Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Wales F. Severance, for appellant.
Hoadly, Lauterbach & Johnson, for respondent.

A stay of the execution for the period of 30 days was granted upon consent. Prior to the expiration of the itay, an execution was issued. The motion, which was made to set aside the execution, should have been granted.

The order appealed from is modified, to the extent that the plaintiff’s motion to set aside the execution is granted, without costs, and, as modified, it is affirmed, with $10 costs and disbursements to the appellant. All concur.