New York Court of Appeals Case and Exceptions

New York Court of Appeals Case and Exceptions

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1879 edition. Excerpt: ... To give the complaint the most favorable construction, it amounts to the sworn or unsworn declaration of one of the plaintiffs, which is in conflict, with the testimony of the Sheriff, and at the utmost raised a question of fact, which the appellant did not ask to be submitted to the jury, but placed his defence upon legal grounds, by asking the Court to direct a verdict in his favor, thus estopping himself from now raising the question that this question should have been submitted to the jury. tin N. Y. 459; 4: id. 84; IS id. 55K. This whole question was discussed on page 16 of the respondents' Points, and therefore could not have been overlooked by the Court. The position of the appellant, that the statement in the complaint in the action against the Sheriff is to obliterate the testimony of the Sheriff in this case, cannot be sustained. At the trial he chose to put his defence upon legal grounds, thus assuming tlie truth of the Sheriff's statement. As to the second ground, that the Court overlooked its decision in Gil N. Y. 161, it could not have been overlooked, as that case is distinguished from this on page 16 of my Points. Tim case in 60 N. Y. was an action by these respondents against the Sheriff for not making the execution. It necessarily proceeded upon the assumption of a delivery of the execution. While the complaint in that action is set forth in the case, the answer is not, but we get an idea of what it is, from the opinion of Judge Allen in 60 N. Y. It was, it seems, admitted by the answer, that the execution was handed to and left with the deputy, and that it was not delivered to the Sheriff in any other manner. This the Court very properly held was an admission of the delivery of the execution: "That more

Product details

  • Paperback | 352 pages
  • 189 x 246 x 19mm | 630g
  • United States
  • English
  • black & white illustrations
  • 1236934318
  • 9781236934314