43 N.Y.S. 684 | N.Y. Sup. Ct. | 1896
This motion was urged upon the argument upon the sole ground that .the return of the execution upon which the order in supplementary proceedings was granted herein was made at the request of plaintiff’s attorney. There was no claim of any fraud or collusion between such attorney and the. sheriff or that there was property out of which said execution should have been collected. In fact it appears by the affidavit of the deputy sheriff upon which in part the order herein was granted that the execution in this case was returned at the same time with others in his hands.
Defendants upon this motion seek simply to set aside the order in supplementary proceedings. They do not directly attack or ask to have set aside' the return of the sheriff upon which, that order was granted. So long as that return stands it is a sufficient basis for the order and the latter should, not be set aside. Spurling v. Levy, 10 Abb. Pr. 426; Tyler v. Willis, 33 Barb. 327, 332.
Furthermore the mere return of an execution inside of the sixty days fixed by law, even though made at the suggestion or request of the plaintiff’s attorney, does not invalidate or vitiate such return. In order to accomplish such latter result there must be present some other element, such as collusion between the plaintiff and the sheriff, or intentional omission to attempt to collect such execution. Forbes v. Waller, 25 N. Y. 430; Renaud v. O’Brien, 35 id. 97, 100; Pudney v. Griffiths, 15 How. Pr. 410.
Motion denied, with $10 costs.