Kirschner v. Edelstein

Benjamin Brenneb, J. Motion to vacate execution, allegedly issued in violation of subdivision (b) of rule XII of the Buies of the Municipal Court of the City of New York, and of a five-day stay of execution of judgment. A judgment for plaintiff, with such stay of execution, was entered in the office of the clerk of the Municipal Court on December 17, 1957. A transcript of same was filed in the office of the Clerk of the County of Kings on December 24, 1957. Execution thereon issued to the sheriff on December 27,1957 though the actual levy was not made by him until January 7, 1958. Subdivision (b) of rule XII of the New York City Municipal Court Buies prohibits issuance of execution unless service of a copy of the judgment be made as therein required. This rule is not operative with regard to an execution filed in the County Clerk’s office and violation thereof does not constitute a defect which would cause such an execution to be vacated as a matter of law. (Chase Watch Corp. v. Heins, 284 N. Y. 129.) Where a transcript of a judgment is filed in the County Clerk’s office, the Supreme Court of that county has exclusive jurisdiction over the issuance of an execution. (Friedman v. Metropolitan S. S. Co., 109 App. Div. 600.) The motion to vacate the execution is therefore denied. Settle order on notice.