Cook v. Kirtland 2 How. Pr. 109

*In the matter of the application of Thomas W. Cook and Eliphalet W. Sherwood agt. Am brose Kirtland, Assistant Justice of the city of New York.

An alternative mandamus will be allowed, requiring a justice to issue an execu tion upon a judgment rendered by and before him, where he refuses, on the ground of want of jurisdiction; it appearing that an appellate court decided that he had jurisdiction.

April Term, 1846.

Motion ex parte for a mandamus.

The applicants, Cook & Sherwood, commenced a suit by personal service of summons, and on the 25th of September, 1844, recovered a judgment for $36.12 damages and costs, before A. Kirtland, Esq., assistant justice of the city of New York, against Daniel Cutter.

Oh the 1st of October last, plaintiffs’ attorney in the judgment applied to the justice for execution; the justice refused to issue it, on the ground that he had been informed, after the judgment was rendered, that the defendant Cutter was, at the time the suit was commenced and judgment recovered, a nonresident, residing in the county of Kings, and that the summons was made returnable more than four days from its date, in violation of the § 33 of the act entitled, “ An act to abolish imprisonment for debt,” &c., passed April 26,1831. Cook & Sherwood thereupon commenced an action of debt on the judgment, in the marine court of the city of New York. Cutter pleaded the fact that he was a non-resident at the time the suit before the assistant justice was commenced, and judgment rendered, and that the judgment was therefore void for want *of jurisdiction. The marine court rendered judgment for the defendant Cutter on the ground stated.

Cook & Sherwood removed the cause from the marine court, to the superior court of the city of New York, by certiorari, where the judgment of the marine court was reversed *110without costs. Cook & Sherwood thereupon again requested-the assistant justice (Kirtland) to issue execution on the original judgment rendered by and before him, who refused, on the ground that he considered he had no jurisdiction.

A. 0. Bradley, counsel.

Mann & Rodman, attorneys.