Doty v. Russell & Pearl

By the Court, Marcy, J. The objection that this motion is too late cannot be sustained. The rule of law in reference to such objection relates generally to a mere irregularity, which is waived by a delay in seeking to correct it. But, looked at in that light, I doubt whether the objection could prevail; for it does not appear that after the party was apprized of the determination of the defendants to proceed on the execution, there was time to prepare for and make the motion previous to the first day of the last May term. The delay since has been waived. Another objection in its nature preliminary, is made. It is said that a motion was made at the August term of this court in 1828, which involved the same question now before us, viz. the subsisting validity of the judgment in favor of Russell and Pearl. Prom an examination of the papers then before the court, it would seem that the question we are now to pass on was brought directly under the consideration of the court. The court was then asked to declare the judgment in this cause satisfied, because it had been set off against the plaintiff’s claims before the referees. We are now asked to set aside thefi.fa. on the same ground. The decision of that motion is to be considered as establishing the validity of the judgment, 11 Johns. R. 513; [132] 13 id. 240; 14 id. 404; but that does not wholly dispose of this motion. The defendants are proceeding to enforce the judgment to the full amount, whereas by the papers now before us it manifestly appears that the whole of the judgment, except $64,52, was set off in the suit of Doty against Russell. We therefore direct a perpetual stay of proceedings on the payment of that sum with the interest thereof from the time of the confirmation of the report of the referees, and the sheriff’s fees; and if that sum be not paid, that the defendants have leave to collect the same on the execution issued in this cause, with interest and fees.