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2 1106, Con- $ 1366. An execution must intelligibly describe the judg: sol. Act. ment, stating the names of the parties in whose favor, and 88 N. Y. 611. against whom, the time when, and the court in which, the

judgment was rendered ; and, if it was rendered in the supreme court, the county in which the judgment-roll is filed. It must require the sheriff to return it to the proper clerk. within sixty days after the receipt thereof. Except as otherwise prescribed in the next section, it must be made return. able to the clerk, with whom the judgment-roll is filed.

$ 1367. Where an execution is issued out of a court, other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk, with whom the transcript is filed, and the time of filing; and it must be made returnable to that clerk. If the judgment was rendered in a justice's court, it must specify the justice's name; and it must omit the specifi

cation, respecting the filing of the judgment-roll. 1 City Ct.883. § 1368. An execution, issued upon a judgment for a sum

of money, or directing the payment of a sum of money, must specify, in the body thereof, the sum recovered, or directed to be paid, and the sum actually due when it is issued. It may specify a day, from which interest upon the sum due is ie be computed; in which case, the sheriff must collect interest accordingly, until the sum is paid. If all the parties, against whom the judgment is rendered, are not judgment debtors,

the execution must show who is the judgment debtor. DON.Y. 366.

§ 1369. An execution against property must, if the judg: ment-roll is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that county. It must, except in a case where special provision is otherwiso made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's

office of the county, or at any time thereafter. 134 N.Y.627. $ 1370. Where a warrant of attachment, issued in the

action, has been levied, by the sheriff, the execution must substantially require the sheriff to satisfy the judgment, as follows:

1. Where the judgment debtor is a non-resident, or a foreign corporation, and the summons was served upon him or it, without the State, or otherwise than personally, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and the judgment debtor has not appeared in the action ; out of the personal property attached, and, if that is insufficient, out of the real property attached.

2. In any other case, out of the personal property attached; and, if that is insufficient, out of the other personal property of the judgment debtor; if both are insufficient, out of the real property attached ; and, if that is insufficient, out of the real property, belonging to him, at the time when the judg. ment was docketed in the clerk's office of the county, or at

any time thereafter. 29 Aun, 14

$ 1371. An execution against real or personal property, in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property, or trustee, must substan

98 N. Y. 1.

SS 1372–1378

EXECUTION GENERALLY.

277

tially require the sheriff to satisfy the judgment, out of that property.

$ 1372. An execution against the person must substantially require the sheriff to arrest the judgmert debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged according to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued

$ 1373. An execution for the delivery of the possession of. 1 CityCt.383 real property, or a chattel, must particularly describe the property, ard designate the party to whom the judgment awards the possession thereof; and it must substantially require the sheriff, to deliver the possession of the property, within his county, to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires.

1374. Where a judgment awarıls different sums of money, to or against different parties, a separate execution may be issued, to collect each sum so awardeil; subject to the power of the court, to control the enforcement of the executions, upon motion, where the collection of one execution will, wholly or partly, satisfy another.

$ 1375. Except as otherwise specially prescribed by law, the party recovering a final judgment, or bis assignee, inay Lave execution thereupon, of course, at any time within tive years after the entry of the judgment. $ 1376. [Amd 1877, 1885, 1887.] Where the party recov

15 Abb. N ering a final judginent has died, execution may be issued at

C. 431 any time within five years after the entry of the judgment, by his personal representatives, or by the assignee of thé judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same. And where a party or one or inore of several parties against whom a judgment for the recovery of possession of real property has been obtained, has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giving twenty days' notice to the occupants of the lands so recovered, and to the grantees or devisees of said deceased, or, if he died intestate, to the beirs-at-law of said deceased; said notices to be served in the same manner as a summons is directed to be served in an action in the supreme court.

$ 1377. [Am'd 1879.) After the lapse of five years from 87 N. Y. 623. the entry of a final judgment, execution can be issued there. 38 Hun, 142. upon, in one of the following cases only :

2+NY.State *1. Where an execution was issued thereupon, within five Rop. 40. years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted.

2. Where an order is made by the court, granting leave to issue the execution.

& 1378. Notice of an application for an order, granting |

leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State, and personal service can, with reasonalile diligence, be made upon him therein; otherwise, notice must be given in such manner as the court directs. Where the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be granted, except on proof, by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.

$ 1379. An execution to collect a sum of money cannot 130 N.Y. 313, 145 N.Y. 342.

be issued against the property of a judgment debtor, who has 146 N.Y. 342 died since the entry of the judgment, except as prescribed in

the next two sections.

Id. 489.

28 Hun, 452; $ 1380. [Am'd 1879, 1885, 1890, 1894.] After the expiration 29 Id. 12; 41 of one year from the death of a party, against whom a tinal 15 N.Y state judgment for a sum of money, or directing the payment Rep. 217; 34 of a sum of money is rendered, the judgment may be

enforced by execution against any property upon which 130 N.Y.313. it is a lien, with like effect as if the judgment debtor was 81 Hun, 232, still living. But such an execution shall not be issued, un

less an order granting leave to issue it is procured from the court, from which the execution is to be issued, and a decree to the same effect is procured from a surrogate's court of this state, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty.one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll. But where the decedent died intestate and letters of administration upon bis estate have not been granted within three years after his death by the surrogate's court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death,

and letters testamentary or letters of administration have not beeu granted within the same time by the surrogate's court of the county in which the property on bch the judgmentis alien is situitel, such court may grant the decree where it appears that i he decedent did not lease any personal property within the State upon which to aidim nister. In such case the lien of the judgnient existing the d.cedent's death continues for three years arid six months as aforesaid. Provided, however, that such judgment li. n, existing at the decedent's death, upon the decedent's real pioperty, or some portion thereof, may beenforced and payment thereof obtained during the said three years after granting of letters testamentary, or letters of alministration, by the pro. ceedling provided and prescribed by title five of chapter eighteen of this act. But this section shall not apply to real estate which shall have been conveyed, or h renfter may be conveyed by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors or any of them, and any judg1.ent creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent ly the judgment and decree of any court of competent jurisdictii n, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced, as aforesaid, and shall indorse on kaii execution the words “issued undersection thirteen hundred and eighty of the code of civil pricedure," wherenpon said sheriff shall enforce said execution as ther in directed, against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto.

4 Redf, 374

$ 1381. [Am'd 1889.] Leave to issue an execution as pre- 29 Hun, 12. scribed in the last section, must be procured as follows:

1. Notice of the application to the court from which the 30 Hun, 570 execution is to be issued, for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue

Dem. 349.

if the execution, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice muit be given ; until provision is so made therein, it must be served either personally or in such manner as the court prescribes in an order to show cause. Leave shall not be granted, except upon prvof by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.

2. For the purpose of procuring a decree from the surrogate's court granting leave to issue the execution, the judg. ment creditor must present to that court a written petition, duly verified, setting forih the facts, and praying for kuch a decree; and that the persons specified in the fist subali. vision of this section, may be cited to show cause why it should not be granted. Upon the presentation of suh a pe. tition the surrogate must issue a citation accordingly, whieb said citation may be served in the same manner as is provided in the first subdivision of this section for the service or giving of a notice to the parties or persons therein men. tioned, and, if the general rules of practice of the supreme court do not provide for a mode of giving such rolice, such citation must be served in such manner as the surrogate by order way prescribe, or as is otherwise provided by law; and, upon the return thereof, he must make such a decrec in the prem.ises as justice requires.

$ 1382. The time during which the person, entitled to enforce a judgment, is stayed from enforcing it, by the provision of a statute, or by an injuuction or o her orde, or in consequence of an appeal, is not a part of the time, limitel, hy this title, for issuing an execution thereupon, cr for mak. ing an application for leave to issue such an execution.

$ 1383. The last six sections do not affect the right of a judgment creditor to enforcen judgment, against the property of one or more surviving judgment deb ors, as if all the judgment debtors were living. In that case, in escution must be issued in the usual form ; but the aitorney fr the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judgment debtor. and requiring the sheriff not to collect the execution, out of any property which belonged to him.

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