Koehler v. Gorman — 23 N.Y.S. 1164

Majority

p. 1164

KOEHLER, Appellant, v. GORMAN, Sheriff, Respondent.

(City Court of New York,

General Term.

March 17, 1893.)

Headnote

Appeal from trial term.

Action by David M. Koehler, as surviving partner of the firm of D. M. Koehler & Son, against John J. Gorman, as sheriff, etc.

Argued before EHRLICH, O. J„ and McGOWN and FITZSIMONS, JJ.

Charles Goldzier, for appellant.

William E. Stillings, for respondent.

The stay of proceedings contained in the order to show cause, dated July 28, 1892, applied to all of the property levied upon by the defendant under the executions issued by plaintiff against Frank O. Sullivan, and restrained, forbade, and prevented defendant from proceeding further under said executions until said stay was dissolved, which did not occur until August 9, 1892. It is therefore very evident that the sheriff had not 60 days free from said stay during which he could exercise his official duties, and consequently this action was prematurely brought. Therefore the trial justice was right in dismissing the complaint herein.

Judgment affirmed, with costs.