Olmsted v. Vredenburgh

Harris, Justice. The defendants’ attorney states, in his affidavit, that the execution in question had been issued against the individual property of the defendants, and that the sheriff had levied upon the personal property of one of the defendants. The plaintiff’s attorneys, on the other hand, state that the execution was issued against the defendants, as executors of the last will and testament of Peter Vredenburgh, deceased, and not against them in their individual capacity. What is, in fact, the form of the execution, does not appear. But I think enough appears to show that the execution is not in conformity with the requirements of the 289th section of the Code. The judgment is against the personal property of Peter Vredenburgh, deceased, in the hands of the defendants, as his executors. It is not enough, in such a case, that the execution describes the defendants in their representative capacity. This would not prevent the sheriff from levying, as he has done in this case, upon the individual property of the defendants. The second sub-division of the section referred to is imperative, that the execution shall require the officer to satisfy the judgment out of the property which, according to the judgment, is liable for its payment. The execution is also irregular in directing the collection of the whole amount of the judgment. The defendants’ account as executors had been li rendered and settled.” It was therefore unnecessary to procure an order of the surrogate, granting leave to issue execution. But it is expressly provided that, in such a case, “ the execution shall issue only for the sum that shall have appeared, on the settlement of such account, to have been a just proportion of the assets applicable to the judgment.” (See 2 R. S. 88, § 32.) This provision of the Revised Statutes is still operative. (See Code, § 471.) 218 The exigency of the writ, therefore, should have been to require the sheriff to collect, from the assets of the deceased in the hands of the defendant, Levi Vredenburgh, the sum of $91.56, and from the assets in the hands of the defendant, Benjamin P. Vredenburgh, the sum of $41.54. Beyond this, the plaintiff was not authorized to go. The execution being thus irregular, the motion must be granted; but with liberty to the plaintiff to amend, on payment of the cosft of the motion.