Opinion
December 15, 1922.
Meyer Levy, for the appellant.
No appearance for the respondent.
On March 3, 1911, in an action in the Supreme Court, wherein the Rexton Realty Company was plaintiff and Simon Zuchtman and others were defendants, a judgment was obtained in favor of the plaintiff against Zuchtman and one Randell for the sum of $1,544.49. Judgment was duly docketed, but no execution was issued thereon. On September 18, 1922, the judgment was duly assigned to Alexander Schaie who moved for leave to issue an execution pursuant to section 653 of the Civil Practice Act, alleging that, while the defendant Zuchtman had no tangible property upon which the execution could be levied, he did have certain intangible property that could be reached by supplementary proceedings, and alleging that the judgment had not been paid. Notice of this application was served on Zuchtman, and he appeared and denied that he had any leviable property, and specifically denied that he had any bank account. The learned justice at Special Term denied the application, on the ground that the papers did not show that Zuchtman had property that could be levied upon by execution. In my opinion this was error.
The reason that a judgment creditor, who has neglected for more than five years to issue an execution upon a judgment, is required to apply to the court, is that by the delay a presumption that the judgment has been paid arises. If a judgment has not been paid, the judgment creditor has a right to enforce it by execution and proceedings supplementary thereto. It is not necessary that he should demonstrate in advance that he would be able to collect under the judgment. He has a right to exhaust his legal remedy.
The purpose of the section of the Code of Civil Procedure (§ 1378) from which section 653 of the Civil Practice Act is derived, is discussed in Betts v. Garr ( 26 N.Y. 383).
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
CLARKE, P.J., SMITH, GREENBAUM and FINCH, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.