15 How. Pr. 410 | N.Y. Sup. Ct. | 1858
It is asserted, and for the purpose of this motion admitted, that the plaintiffs directed the sheriff to return the execution, issued in this action, before the expiration of the sixty days, and before any effort was made to levy upon property subject to execution.
How, supplementary proceedings under the. first part of sec
There is nothing under the present system superseding this requirement. The remedy by execution must still be exhausted : it must be really exhausted—it must not be a sham attempt to do so; but the proper officer must be allowed to take the usual course to effectuate the object which the process was designed to serve.
This, certainly, is not done when the plaintiffs in an action interpose and prevent the sheriff from even searching for property, by prematurely directing him to return the execution, for the express purpose of enabling them to commence these proceedings.
The order must be set aside, with $.5 costs.