Carswell v. Neville

12 How. Pr. 445 | N.Y. Sup. Ct. | 1854

Morris, Justice.

In this case Mr. Man presented to me two petitions, one of them signed by Mr. Man as the attorney for the defendant in this suit; and the other as the attorney for Greenbury Dorsey, an attaching plaintiff in another suit against the defendant in this suit.

These petitions ask for an order directing the plaintiff to show cause why Neville, the defendant, should not be let in to defend this suit; and for an order compelling the plaintiff to make Greenbury Dorsey a defendant in this suit, to enable him to litigate plaintiff’s claim against Neville in this suit, and his lien upon the property attached by him.

Neville being a non-resident, and the judgment not having been perfected against him for more than a year, the Code permits him to come in and defend, upon presenting a proper case. If he should be let in to defend, that fact does not of itself open the judgment or stay proceedings upon the execution. I have, therefore, on Neville’s application, granted the order to show cause.

Should Dorsey be made defendant, it would open the judgment and stay proceedings upon it. He is too late for such a favor. The case in 3d Code Reporter, 172, relied upon by Dorsey’s counsel, is where the application was made before judgment. ' In this case, Dorsey attached as early as February, 1853, and the plaintiff in this suit recovered judgment in August, 1854.

I refuse Dorsey’s application.