Assuming that the motion to set aside a voidable execution was addressed to the sound discretion of the court, I cannot see that the court wrongfully exercised that discretion in setting aside this execution.
The prevailing opinion sedms to hold that the plaintiff was bound to know the law as ultimately determined by the Court of Appeals, and that it was laches for him not to move to set aside the execution as soon as it was issued, or at a reasonable time thereafter. On a question of laches I do not think that a party could be assumed to know the law better than the Appellate Division of the Supreme Court. This court held that the execution was absolutely void. It was not until the decision of the Court of Appeals that it was established that the execution was voidable only. If the execu-. tion was void, a motion to set it aside would have been certainly denied on the ground that such a motion was unnecessary and improper. (Bank of Genesee v. Spencer, 18 N. Y. 150.) And if the defendant in good faith relied upon the fact that the execution was void, and failed to make this motion, because such a motion would have been improper, I cannot see that he was guilty of laches. The case seems to have been decided by the Court of Appeals May 1, 1900, and this motion was noticed September 22, 1900. This, certainly, does not seem to be such laches as would justify us in reversing the action of the Special Term. A summer vacation intervened, and the motion was made before the commencement of the October Term, which appears to have been the first term at which the case could have been tried after the decision of the Court of Appeals.
I do not think, therefore, that we are justified in reversing this order.
Van Brunt, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.