Evans v. Hill

Per Curiam: Notwithstanding some prior decisions, we think that the cases of Allyn v. Thurston (53 N. Y., 622) and of Estes v. Wilcox (67 N. Y., 264) have settled the doctrine that the plaintiff, as a mere simple contract creditor, cannot maintain an action of this kind. The latter cause seems to overrule McCartney v. Bostwick (32 N. Y., 53) and also, by implication, Loomis v. Tifft (16 Barb., 541). See also Geery v. Geery, cited in Milton v. Miller (14 Sup. Ct. [N. Y.], 208). Next as to the judgment. .The Old Code, section 282, by the amendment of 1851, declared that a judgment should be a lien for ten years from the time of docketing. Scott v. Howard (3 Barb., 319) was decided before this amendment was enacted. We must consider this section of the Old Code, thus amended, to be a substitute for section 5 (4) (2 R. S. [m. p.], 359). It is unnecessary to decide whether or not, after the lapse of ten years, and before the presumption of payment by the expiration of twenty years, a plaintiff can issue an execution and sell real estate.. (Old Code, sec. 289, sub. 1; secs. 283 and 284.) It is possible, that an execution might be levied, although the judgment were; no longer a lion. See remarks of Judge Bronson in Wood v. Colvin (5 Hill, 230). The New Code, section 1252, has provided a special mode of levying an execution upon land after the lien of the judgment has expired. It is enough, however, for the present case that the lien acquired by docketing the judgment had expired ; and that the judgment creditor had not acquired (if he could acquire) any lien upon the [466] land by tbe levy of an execution thereon. He was, therefore, in no position to maintain this action. The judgment should be affirmed, with costs. Present- — - Learned, P. J., and Boardman, J. ; Follett, J., taking no part. Judgment affirmed, with costs.