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upon

of fact, to be upon di

property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.

$278. [Sec. 233.] Judgment upon an issue of law not tried at a general term or an issue of fact, or upon confession, or upon Judgment failure to answer, (except where the clerk is authorized to of law or enter the same by the first sub-division of section two hundred and forty-six, and by section three hundred and eighty-four,) judge or on shall in the first instance be entered upon the direction of a single judge, or report of referees, subject to review at the general general term on demand of either party, as herein provided. Judgment upon the report of referees may be entered upon the whole issue.

rection

a single

of

report of

referees,

subject to

review at

term.

Amended

1849, 1851. Van Valkenburgh et al. vs. Allendorph et al. 4 How. 39.

Clerk to keep a

§ 279. [Sec. 234.] The clerk shall keep among the rejudgment cords of the court, a book for the entry of judgments, to be called the "judgment book."

book.

Judgment

§ 280. [Sec. 235.] The judgment shall be entered in to be enter the judgment book, and shall specify clearly the relief granted, or other determination of the action.

ed in judgment book.

Judgment roll.

§ 281. [Sec. 236.] Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after enAmended tering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll;

1849, 1851.

1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment.

2. In all other cases the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, bill of exceptions, case, and all orders relating to a change of parties, and all orders and papers in any way involving the merits, and necessarily affecting the judgment.

The attorney has nothing to do with making up the judgment roll; it is the duty of the clerk. Renouil vs. Harris, 2 Sand. 642.

When the case is made and settled, it forms a part of the judgment roll, Lynde vs. Cowenhoven, 4 How. 327.

it be
may

Judgment

§282. Sec. 237.] On filing a judgment roll upon a judgment, dat directing in whole or in part the payment of money, docketed with the clerk of the county where it was rendered, and

in

cases and how to be docketed.

any other county, upon the filing with the clerk thereof a tran- Amended script of the original "docket," and shall be a lien on the real property in the county where the same is docketed, of every person against whom.any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered. But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment that the same is "secured on appeal," and thereupon it shall cease during the pending of the appeal to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith.

Supreme Court Rule, 4.

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, as prescribed by this title.

284.

After five years, to be issued only by leave of court. Leave, how obtained. Execution on judgment of justices' or other inferior courts when docketed, how issued.

285. Other judgments, how enforced.

286. The different kinds of execution.

287. To what counties execution may be issued.

288. Execution against the person, in what cases, and when.

[blocks in formation]

290.

To be returnable in sixty days.

291.

Existing laws relating to execution continued, until otherwise provided.

Execution § 283. [Sec. 238.] Writs of execution for the enforce

within five

course as

by this

years, of ment of judgments as now used, are modified in conformprescribed ity to this title, and the party in whose favor judgment has title. been heretofore or shall hereafter be given, may at any Amended time within five years after the entry of judgment, pro1849. ceed to enforce the same as prescribed by this title.

After five

years to be

by leave of court.

§ 284. [Sec. 239.] After the lapse of five years from the issued only 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 non-resident, 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. Leave how Such leave shall not be given, unless it be established by the oath of the party, or other satisfactory proof that the judg1849, 1851. ment or some part thereof remains unsatisfied and due.

obtained.

Amended

Execution on judgment of

justices' or

When judgment shall have been rendered in a court of justice of the peace, or in a justices' or other inferior court in a other infe- 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

rior courts

how issued.

the city and county of New-York, to the court of common pleas of that city and county.

Executions may be issued as soon as judgment is entered. De Witt ads. Swift and Waldon, 3 How. 280; the Catskill Bank agt. Sanford, 4 How. 101. The last two sections apply to judgments obtained before as well as after the code took effect. The Catskill Bank agt. Sanford, 4 How. 101. Contra, Merrit vs, Wing et al., id. 14.

An execution may issue by consent at any time. Merrit vs. Wing et al. 4 How. 14.

Executions in certain cases may issue after five years without leave of the court. Pierce vs. Craine, et al., 4 How. 257.

Unless the judgment show an action in tort, a ca sa will not issue. Grid. ley agt. McCumber, 5 How. 414.

when dock

eted, how issued.

ments how

1849.

§ 285. [Sec. 240.] Where a judgment requires the pay- Other judgment of money or the delivery of real or personal property, enforced. the same may be enforced in those respects by execution, Amended as provided in this title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he refuse he may be punished by the court as for a contempt.

ent kinds of

1849.

§ 286. [Sec. 240.] There shall be three kinds of execu- The differtion; one against the property of the judgment debtor; execution. another against his person; and the third for the delivery Amended of the possession of real or personal property, or such delivery with damages for withholding the same. They shall be deemed the process of the court, but they need not be sealed nor subscribed, except as prescribed in section 289. §287. [Sec. 242.] When the execution is against the pro- To what perty of the judgment debtor, it may be issued to the sheriff of executions any county where the judgment is docketed. When it requires sued. the delivery of real or personal property it must be issued to Amended the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property adjudged to be sold, must [NOTES.]

8

counties

may be is

1851.

Execution against the

what cases

be sold in the county where it lies, by the sheriff of the county or by a referee appointed by the court for that purpose, and thereupon the sheriff, or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interests of the parties adjudged by the decree to be sold.

§ 288. [Sec. 243.] If the action be one in which the deperson, in fendant might have been arrested, as provided in section and when. 179 and section 181, an execution against the person of the Amended judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part.

1849.

Form of the execu

A ca sa may issue on a judgment recovered in an action for criminal conversation with the plaintiff's wife. Delamater vs. Russell, 4 How. 234; S. C. 2 Code Rep. 147.

So too on an action for seduction. Taylor vs. North, 3 Code Rep. 9. So too for breach of duty as a common carrier. Burkle vs. Ellis, 4 How. 288.

§ 289. [Sec. 244.] The execution must be directed to the tion. sheriff, or coroner, when the sheriff is a party or interested, Amended subscribed by the party issuing it, or his attorney, and must

1849.

intelligibly refer to the judgment, stating the court, the county where the judgment roll or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, and shall require the officer substantially as follows:

1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and if sufficient. personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter:

2. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees

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