Opinion
April, 1908.
David J. Gladstone, for plaintiff.
Fromme Brothers, for defendants.
This is a motion to vacate and set aside an execution issued under section 1252 of the Code of Civil Procedure on the following grounds: 1. That said execution and said notice fail to properly specify the interest of the judgment debtor, the defendant Coutant, in the real property sought to be levied upon. 2. That the said execution fails to require the sheriff to levy upon personal property of the judgment debtor before levying upon the real estate. 3. That no leave to issue said execution has been obtained or granted. 4. That said judgment is not enforceable by process of execution by plaintiff's executors herein.
I will take up each ground in the order named.
1. The execution, after recitals, reads: "Therefore We Command you to satisfy the said judgment out of all the right, title and interest which the above-named defendant Charles A. Coutant had on the 19th day of March, 1908, the date of filing of your notice of levy with the Clerk of the County of New York, as provided for by section 1252 of the Code of Civil Procedure, in the following described premises; the interest of the judgment debtor, Charles A. Coutant, in the said premises is an estate in fee simple." Then follows description of property.
The case of Garczynski v. Russell, 75 Hun, 497, and cases cited, holds:
(a) That the only interest of the judgment debtor that can be sold by virtue of section 1252 is the right, title and interest at the time of recording and indexing the notice;
(b) That the execution issued under section 1252 should correctly state the interest which the party issuing the execution is entitled to have sold; and
(c) That the provisions of section 1369 of the Code of Civil Procedure do not control as to the form of the execution to be issued under section 1252.
Inasmuch as the execution under consideration, after directing the sheriff "to satisfy the said judgment out of all the right, title and interest which the above-named defendant Charles A. Coutant had on the 19th day of March, 1908, the date of filing of your notice of levy" with the clerk of the county of New York, describes that interest as "the interest of the judgment debtor, Charles A. Coutant, in the said premises is an estate in fee simple," it complies with the rule as laid down in the case cited relative to specifying the judgment debtor's interest in the real property sought to be levied upon and sold, and, therefore, the first ground for vacating and setting aside the same is not well taken.
2. The second ground is also disposed of by the case of Garczynski v. Russell, supra, because in order to sustain that ground it would be necessary to invoke the provisions of section 1369 of the Code of Civil Procedure, and this case holds that this latter section does not apply where an execution is issued under section 1252. The language of 1369 is: "It must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter."
In the case under consideration special provision is otherwise provided by law, viz., section 1252 of the Code of Civil Procedure. It, therefore, follows that the second ground is not well taken.
3. The third ground is answered by the provisions of section 1377 of the Code of Civil Procedure, which provides: "After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, in one of the following cases only:
"1. Where an execution was issued thereupon, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted."
It appears from the papers in this case that an execution was issued thereupon within five years after the entry of judgment, and was returned by the sheriff wholly unsatisfied, and I know of no limitation placed upon section 1377, and, therefore, the third ground is not available.
4. Prior to the enactment of section 1376 of the Code of Civil Procedure, an execution could not be issued after the death of the judgment creditor; his personal representatives had to bring an action on the judgment. Wheeler v. Dakin, 12 How. Pr. 537.
This rule has been changed by sections 1376 and 1377, which must be read together in order to give them full force and effect.
The case of Atlas Refining Co. v. Smith, 52 A.D. 109, cited by counsel for defendants, is not applicable to the case under consideration. There the judgment debtor had died and the court decided it was necessary to apply for leave to issue an execution against the decedent's estate, as provided by sections 1379, 1380 and 1381 of the Code of Civil Procedure. In this case the execution is issued, not against the decedent's estate, but by a decedent's estate against a living person. I, therefore, hold that the fourth ground has not been sustained by defendants.
Motion is, therefore, denied.