p. 67The Corn Exchange Bank of Chicago, Appl’t, v. Alphonso W. Blye, as Receiver, Etc., Resp’t.(Supreme Court, General Term, First Department,Headnote
1. Execution—Imprppee. issuance of—Costs on motion to set aside.An execution issued in this action was given to a messenger to be delivered to the sheriff who received it on the following day. Before the execution had yet reached the sheriff, an order staying the plaintiff’s proceedings had been granted and served by being placed in the office of the plaintiff’s attorney in a conspicuous place during the hours allowed for that purpose, the office being open and no person therein to receive it, a motion having been made to set aside the execution. Meld, That the stay having been properly granted and served, the only question to be considered was whether under the circumstances costs of the motion should be imposed, and that this was properly determined in favor of the defendant,inasmuch as the regularity of the execution was sought to be maintained and seizure made under it.
2. Same—Service of papers—When effectual.
Meld, The fact that the attorney for the plaintiff did not find the papers thus served furnished no answer to the positive proof of their service.
Appeal from an order setting aside an execution.
L. A. Gould, for appl’t; Elihu Bool, for resp’t.
The execution issued herein was given to a messenger on the first of June last, to be taken to the sheriff of Orange county, who received it on the following day. When the execution was on its way to the sheriff an order staying the plaintiff’s proceedings had been granted and it was served prior to his receipt of the execution. It was served upon the plaintiff’s attorney by putting it in a conspicuous place in.his office during the hours allowed for that purpose, the office being open and no person therein to receive it. The learned justice in the court below regarded these as established facts and we see no reason to doubt the correctness of this conclusion. The attorney for the plaintiff did not find the papers at his office when he arrived there on the second of June as he asserts, but this is no answer to the positive proof that they were left therein. The stay having been granted and properly served, the only question to be consulted was whether under the circumstances costs of the motion should be imposed, and this was properly de
p. 68termined in favor of the defendant inasmuch as the regularity of the execution was sought to be maintained and the seizure made under it as well. The order appealed from cannot be disturbed for any reason apparent on the record. It must therefore be affirmed, with ten dollars costs and the disbursements of this appeal. Ordered accordingly.
Van Brunt, Oh. J., and Daniels, J., concur.