purchasers (Talbert v. Melton, 9 Sme. & M. 9). Where the lien of a judgment has ceased by lapse of time, perhaps the court will interfere in a summary way, and order a perpetual stay of execution (Wilson v. Smith, 2 Code Rep. 18).

a. The liens of judgment creditors, if the land be sold on a prior judgment, are transferred to the surplus, which must be applied to them in their order of priority (Averill v. Loucks, 6 Barb. 470).

b. A judgment filed and docketed after the decease of the defendant, does not bind real estate (Clarke's case, 15 Abb. 227).

c. A mortgage for subsequent advances, takes priority of a judgment obtained intermediate the mortgage and making the advances (Robinson v. Williams, 22 N. Y. 380).

d. Priority of judgments in distribution of estates in surrogates' courts, depends upon the date of their recovery, not the date of docketing (Harned's case, 4 Abb. 270). A judgment for costs recovered against husband and wife during coverture, did not bind the wife's separate estate (Tisdale v. Jones, 38 Barb. 523).

e. Where a judgment is vacated and afterwards the order vacating it is reversed, the lien of the judgment is revived, except as to intervening bona fide purchasers or incumbrancers (King v. Harris, 34 N. Y. 330).

f. The tender of the amount due upon a judgment not accepted, does not operate to extinguish the lien (The People v. Beebe, 1 Barb. 379; see however, Kortright v. Cady, 21 N. Y. 343).

g. When the amount due on a judgment is paid by one not bound by it, the judgment is extinguished or not, according to the intent of the payer. (Harbeck v. Vanderbilt, 20 N. Y. 395; and see Alden v. Clark, 11 How. 209).

h. On a judgment against principal and surety, the surety may pay the amount of the judgment and take an assignment of it and prosecute the judg ment against the principal (Alden v. Clark, 11 How. 209). A judgment cannot be kept alive after it is satisfied (Conor v. Hernstein, 6 Rob. 552).

i. A judgment against several defendants for separate sums, but providing that in case of the insolvency of any such defendants the others shall be liable in a fixed proportion, but not to exceed a certain sum, is to be docketed as a judgment for the amount of the ultimate contingent liability (Rankin v. Sacchi, 16 Abb. 368).

j. A judgment docketed correctly as to the christian and surname of the defendant, but incorrectly as to the initial of the middle name, the docket was afterwards corrected,-held that the judgment took priority as a lien from the date of the original docketing, as against subsequent judgments obtained before the correction (Geller v. Hoyt, 7 How. 265; and see Aylesworth v. Brown, 10 Barb. 167).

k. The date and order of a judgment lien is in all cases a question of time, depending on the day and hour when the judgment was docketed (Blydenburgh v. Northrop, 13 How. 289).

7. The lien of a judgment does not in equity attach upon the mere legal title to lands, existing in the defendant when the equitable title is in another. (Lounsbury v. Purdy, 11 Barb. 490; 16 Barb. 376; 18 N. Y. 515; Averill v. Loucks, 6 Barb. 20; see Parshall v. Shirts, 54 Barb. 99). Judgments do not become liens on leasehold premises unless or until the judgment debtor, the lessee, is in posession (Crane v. O'Connor, 4 Edw. Ch. R. 409). As to liens against lands contracted to be sold (Smith v. Gage, 41 Barb. 60).

m. As to docketing and filing transcripts of judgments against stockholders in banking corporations see laws 1863, ch. 372, § 6.

n. Secured on appeal. [This provision does not apply to judgments docketed prior to July 10, 1851.] The sureties upon an appeal are not entitled to notice of an application on the part of the applicant for an order directing an entry secured on appeal on the docket (Livingston v. Roberts, 3 Abb. 231; 5 Duer, 680). The order does not discharge them (Burrall v. Vanderbilt, 6 Abb. 70). The granting or refusing such an order rests in the

discretion of the court (Fitch v. Livingston, 4 Sand. 712; Orchard v. Binninger, 4 Abb. N. S. 368; Livingston v. Roberts, 3 Abb. 231). And it may direct the entry on such terms as it may deem fit (Bergen v. Stewart, 28 How. 6). The leave to make this entry cannot be granted until security be given sufficient to stay execution (Hoppock v. Cottrell, 13 How. 461). The order will not be granted where the respondent has done any act whereby the sureties on the appeal are discharged of their liability. As where the respondent has since perfecting the appeal released from the operation of the judgment part of the appellant's real estate (Wells v. Kelsey, 25 How. 384; 16 Abb. 221, note).

a. No appeal lies from an order denying an application for leave to make the entry (Fitch v. Livingston, 4 Sand. 712). It may be referred to a referee to report on the sufficiency of the sureties (Munn v. Barnum, 2 Abb. 411).

b. Setting aside judgment for irregularity.—What degree of laches in moving to set aside a judgment for irregularity will authorize the court to set aside the motion (Martin v. Lott, 4 Abb. 365).

c. Semble, a motion to set aside a judgment must be made in the district in which the action was triable (Gould v. Torrance, 19 How. 560).

d. Motion to set aside a judgment for irregularity must be made within one year (see ante, p. 273, b, 430, g; and Park v. Church, 5 How. 381; Cook v. Dickerson, 1 Duer, 687). This does not apply to a motion to set aside a void judgment (Hallett v. Righters, 13 How. 43).

e. Only a party to the record, or one having an interest to protect, can move to set aside a judgment (Re Beers, 5 Rob. 643).

TITLE IX.

Of the execution of the judgment in civil actions.

CHAPTER I. THE EXECUTION.

II. PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION.

CHAPTER I.

The Execution.

SECTION 283. Execution within five years, of course.

284. Execution can only be issued by leave of court after five years. Leave, how obtained.

285. Judgment, how enforced.

286. The different kinds of execution.

287. To what counties execution may be issued. Execution
against a married woman.

288. Execution against the person, in what cases.
289. Form of the execution.

290. Execution to be returnable in sixty days.

291. Existing laws relating to execution continued.

§ 283. (Am'd 1866.) Execution within five years, of course. Writs of execution for the enforcement of judgment as now used, are modified in conformity to this title, and the party in

whose favor judgment has been heretofore or shall hereafter be given, and in case of his death, his personal representatives duly appointed, may, at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title.

a. To what judgment this section applies.-This and the next section apply as well to judgments rendered before the code took effect, as to those rendered in actions commenced since (Catskill Bank v. Sandford, 4 How. 101; Swift v. De Witt, 3 How. 280).

b. When executions may issue.-Executions may be issued immediately on perfecting judgment, and at any time within five years thereafter (Swift v. De Witt, supra). But the judgment record should be actually filed before execution issues (5 Wend. 109; 20 Johns. 307; 2 R. S. 360, § 11); it may, however, be ordered to be filed nunc pro tunc (3 Cow. 39; 22 Wend. 566; and see 11 Barb. 500; Townshend v. Wesson, 4 Duer, 342).

c. Judgment standing as security.—Where a judgment is permitted to stand as security, and the defendant admitted to come in and defend, the judgment creditor has no right to enforce payment of the judgment pending the litigation on the defense interposed (Ford v. Whitridge, 9 Abb. 416; and see Union Bank v. Mott, id. 106; 17 How. 354); and the fact that a party is permitted to enter judgment on a verdict as security, does not prevent a motion for a new trial on a case (Benedict v. Caffee, 3 Duer, 669).

d. Corporation of New York City, execution against.—No execution can be levied upon property of the Corporation of the City of New York" until after ten days' notice in writing, of the issuing of such execution shall have been given to the Comptroller of said city, by either the party adverse in interest, his agent, attorney or sheriff" (1860, p. 646, § 5). This provision applies only to actions commenced subsequent to 14 April, 1860 (id. § 6); see laws of 1865, ch. 646, s. 1, restraining an execution on judgments against the city of New York until moneys necessary for the payment of such judgment have been raised by taxation (Hadfield v. Mayor, &c. of N. Y. 2 Abb. N. S. 95; Smith v. Mayor of N. Y. 7 Rob. 190).

e. Execution against executor or administrator.—No execution shall issue upon a judgment against an executor or administrator, until an account of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him. And if an account has been rendered to the surrogate by such executor or administrator, execution shall issue only for the sum that shall have appeared on the settlement of such account to have been a just proportion of the assets applicable to the judgment (2 R. S. 88, § 32; see Winne v. Van Schaick, 9 Wend. 448; The People v. Judges of Albany, 9 Wend. 489; Mulheran's Ex'ors v. Gillespie, 12 Wend. 349; The People v. Judges of Erie, 4 Cow. 445; Olmstead v. Vredenburg, 10 How. 215; Mills v. Thursby, 11 How. 126; Mills v. Thursby, 2 Abb. 432, and note to § 289, post).

f. Where a creditor shall have obtained a judgment against any executor or administrator, after a trial at law upon the merits, he may at any time thereafter apply to the surrogate having jurisdiction, for an order against such executor or administrator, to show cause why an execution on such judgment should not be issued (2 R. S. 116, § 19), proceedings to obtain said order, see id. §§ 20, 21, 22.

g. A surrogate has the same power to direct an execution on a judgment recovered against an administrator, for liabilities incurred by him in the administration of the estate, as he has to order such process to issue on a judgment for a debt owing by the deceased, and it is his duty so to order, on the request of the creditor (Re Thompson's Estate, 41 Barb. 237). An order by a

surrogate, granting leave to issue execution against an executor, cannot be reviewed on appeal unless the appellant gives security for the payment of the full amount directed to be levied, and with interest and the costs of appeal (Mitchell v. Mount, 19 Abb. 1). But it seems such an order cannot be reviewed in respect to the sufficiency of the assets (id.; see St. John v. Voorhies, 19 Abb. 53).

a. Execution against property of a deceased judgment debtor.-Where a sole defendant dies after judgment and before execution, no execution can issue within one year after. But where the judgment is against several defendants, the death of one does not stay execution against the surviving defendants (19 Wend. 614; Bellinger v. Ford, 21 Barb. 311; see, however, Laws 1850, ch. 295; Alden v. Clarke, 11 How. 213; Flanagan v. Tinen, 53 Barb. 587; 37 How. 130; and Execution against Executor &c. supra).

b. It seems that the law of 1850, ch. 295, does not supersede the necessity of proceedings in the nature of a scire facias, before an execution can be issued after the death of a judgment debtor (Frink v. Morrison, 13 Abb. 80). c. A mortgagor, or subsequent judgment creditor, cannot move to have an execution set aside for irregularity, as issued after the death of the judgment debtor, and without a proceeding in the nature of a scire facias (Frink v. Morrison, 13 Abb. 80).

d. When a surrogate on the application of a judgment creditor of a decedent has determined that the judgment is a subsisting claim against the estate, and has entered his determination in the book of his proceedings, his duty is ended; he cannot determine what the judgment creditor owes the estate and deduct the amount from the judgment (Cleveland v. Whiton, 31 Barb. 544).

e. Execution in favor of a deceased judgment creditor.— On the death of the plaintiff, after final judgment in his favor, his personal representatives may bring an action on the judgment to obtain the same relief as was formerly obtained by scire facias (Ireland v. Litchfield, 8 Bosw. 634). Where it appeared that a transcript of a judgment was filed in April, 1844, and that in January, 1850, an execution on such judgment was issued by order of the court; and it further appeared, that at the time of making such order, the plaintiff had been dead upwards of three years; and it did not appear that the parties who procured the order to issue the execution were the legal representatives of the deceased, the execution was set aside (Bellinger v. Ford, 14 Barb. 250; 21 id. 311).

f. An execution cannot issue on a judgment after the death of the judgment creditor. The remedy to enforce the judgment is an action by the executor of the judgment creditor, praying a judgment that he be at liberty to issue execution on the judgment in the name of such executor, to be levied of any lands which the defendant held when the judgment was docketed (Thurston v. King, 1 Abb. 127; Wheeler v. Dakin, 12 How. 537). Such an action is not an action on a judgment, and may be brought without leave of the court (id.)

g. After the death of a judgment creditor, his executors moved, on notice to the judgment debtor, for leave to issue execution on the judgment; the motion was denied (Jay v. Martine, 2 Duer, 654). The executors should have proceeded on the judgment, and to enforce it by an action under ch. 2 tit. 13, of the Code (§ 428). An assignee of a judgment, if the plaintiff be dead, can maintain an action to obtain judgment, that he have execution of the original judgment (Cameron v. Young, 6 How. 372).

h. Execution after discharge under insolvent debtor's act. -The proper mode of testing the validity of a discharge in insolvency, is by an action on the judgment, not by issuing an execution, or an order to examine the defendant in proceedings supplementary to the execution; for the validity of the discharge will not be considered on a motion to set aside an execution, or an order for the examination of a judgment debtor on the ground of such discharge (Dresser v. Shufeldt, 7 How. 85; Rich v. Salinger, 11 Abb.

344; Stuart v. Salinger, 14 Abb. 291, and cases in notes, id.; see also Smith v. Paul, 20 How. 97); but semble, a discharge in insolvency which has been declared void, will not prevent the judgment creditor issuing an execution on his judgment (see Small v. Wheaton, 2 Abb. 316; 4 E. D. Smith, 427; Browne v. Bradley, 5 Abb. 141).

a. Execution on satisfied judgment.-An execution cannot issue on a judgment satisfied by filing a certificate as prescribed 2 Rev. Stat. 362. If the satisfaction is voidable for any cause, the satisfaction should be vacated before issuing execution (Ackerman v. Ackerman, 14 Abb. 229).

b. When the satisfaction of a judgment was produced by the sale upon the execution of real estate, supposed to belong to the judgment debtor, and it was afterward discovered that he had no title, and that none was obtained by the purchaser, an order of the supreme court vacating the satisfaction and authorizing a new execution, was affirmed (Suydam v. Holden, Court of Appeals, October, 1853; and see Field v. Paulding, 3 Abb. 139; 1 Hilton, 187).

c. An execution should not be set aside on motion, on the ground that the judgment has been satisfied, where the evidence is conflicting (Frink v. Morrison, 13 Abb. 80).

d. A satisfaction obtained conditionally, if the condition is not performed, the court will restore the judgment (Slocum v. Freeman, 2 Trans. App. 303).

e. Execution against husband and wife.-On judgment for the plaintiff, in an action for a tort against husband and wife, "execution may issue against both defendants * * * and it may be satisfied out of the property of the husband, or the separate property of the wife" (Marsh v. Potter, 30 Barb. 506; Flanagan v. Tinen, 53 Barb. 587; 37 How. 130; and see Solomon v. Waas, 2 Hilton, 181; Charles v. Lowenstein, 26 How. 29); as to execution against property of married women, see § 287; and as to execution against the person of a married woman, see in note to § 288.

§ 284. (Am'd 1849, 1851, 1858.) After five years, to be issued only by leave of court. Leave, how obtained.

After the lapse of five years from the entry of judgment, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent, or nonresident, or cannot be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment, or some part thereof, remains unsatisfied and due. But the leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part.

When judgment shall have been rendered in a court of justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the county court of the county where the judgment was rendered, or in the city and county of New York, to the court of common pleas of that city and county.