Baumler v. Ackerman

Lewis, J. Plaintiff recovered a judgment against the defendant in the court of a justice of the peace of Erie county on the 1st day of November, 1876, for $107.45. On the same day a transcript of said judgment was filed, and the judgment was docketed in the office of the clerk of Erie county. An execution was issued upon said judgment on the said 1st day of November to the sheriff of Erie county, where the defendant then resided. The execution was duly returned wholly unsatisfied. A second execution was issued upon the judgment on the 7th day of April,«1891, to the sheriff of Erie county where the defendant still resided. The second execution was returned wholly unsatisfied, and the plaintiff thereupon instituted proceedings supplemental to execution before the judge of said county. Upon motion of the defendant, the order appealed from was granted by said county judge on the ground that, more than 10 years having elapsed after the return of the first execution, the statute of limitations had run against plaintiff’s right thereto. Plaintiff’s contention is that, his proceedings having been instituted within 10 years after the return of the second execution, they were regular under section 2435 of the Code of Civil Procedure. That section provides that proceedings supplemental to execution may be instituted at any time within 10 years after the return of an execution against property unsatisfied, etc. The decision of this appeal depends upon the question, which one of the executions comes under the provisions of said section 2435. An execution was returned unsatisfied in the year 1876. The right to institute these proceedings then accrued to the plaintiff. He permitted more than 10 years to expire before instituting them. We think his right to institute the proceedings had expired by limitation of time. It was decided in Conyngham v. Duffy, 125 N. Y. 200, 26 N. E. Rep. 142, that by chapter 4 of the Code of Civil Procedure a limitation for the instituting of such proceedings is fixed at 10 years from the accruing of the right thereto; that the limitation of time was fixed by sections 388, 414, and 415 of such chapter. The plaintiff’s j udgment had ceased to be a lien upon the real property of the defendant when his proceedings were instituted. The execution was ineffectual, therefore, to reach that class of property. It was held in Dix v. Briggs, 9 Paige, 596, that, in order to institute a creditor’s bill, there must have been issued and returned an execution against real estate. It is suggested by the appellant that provision is made for such proceedings after the lapse of 10 years by section 12521 of the Code of Civil Proced [437] ure. That section has relation only to judgments rendered after the adoption of that section into the Code. That section had not become a part of the Code at the time of the docketing of plaintiff’s judgment. We think that the order appealed from was properly granted, and that it should be affirmed, with $10 costs and the disbursements of the appeal. All concur. Footnotes [1] Code Civil Proc. § 1252: “Where ten years alter filing the judgment roll have expired, real property * * * in any county may be levied upon by * * * an execution to the sheriff of that county, upon a judgment hereafter rendered. ”