Marine Bank v. Van Brunt

Davis, P. J.: Section 284 of the Code, which provides that after the lapse of live years from the entry of judgment, the execution can be issued only by leave of the court upon motion, with personal notice to the adverse party, or of publication if he be absent or non-resident, but that such leave shall not be necessary when the execution has been'7 issued upon the judgment within the five years and returned unsatisfied in whole or in part, only applies to cases where the judgment debtor is living. Where the judgment debtor is deceased, the right to issue execution is controlled and regulated by section 376 of the Code, under which personal representatives of a deceased judgment debtor may be summoned, as provided by that section, at any time within one year after the appointment, to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands. In the ease provided for by the latter section, it is of no importance whether the execution has been issued and returned unsatisfied in the lifetime of the deceased, and within five years of the rendition of the judgment, or not. The proceeding required by section 376 of the Code is necessary.before execution can issue in any judgment against the representative of a deceased person, and is in lieu of the old process of scire facias. In the Marine Bank of Chicago v. Van Brunt (49 N. Y., 160), it was held by the Court of Appeals that an order under this section was necessary in addition to the order of the surrogate required by chapter 295 of the Laws of 1850. No application had been made before the issuing of the execution in this case to the court under [381] section 376. The order appealed from was therefore correct, although the reason assigned for it was not the correct one. Besides, it now appears to this court that since the order of the court below, the order made by the surrogate has been reversed by this court, and a new hearing ordered before him, upon the application for leave to issue the execution. The right to issue the execution therefor, under that order, has fallen to the ground, and the sale under such execution cannot be upheld. It will only be an additional embarrassment to the appellant if this court were to reverse the order of the Special Term, after having reversed the order of the surrogate. We base our decision, however, upon the ground first above suggested. The order of the court below must be affirmed, with ten dollars costs and disbursement's. Beady and Daniels, JJ., concurred. Order affirmed, with ten dollars costs and disbiirsements.