thereof, he must make such a decree in the premises, as justice requires. New. Wallace v. Swinton, 64. Y. 188, Nims v. Sabine, 44 How. 252; Alyn v. Thurston, 5 Hun, 105; Marine Bk. 3. Van Brunt, 49 N. Y. 160. $1382. Time of stay by order, etc., not reckoned under this title. The time during which the person, entitled to enforce a judgment, is stayed from enforcing it, by the provision of a statute, or by an injunction or other order, or in consequence of an appeal, is not a part of the time, limited by this title, for issuing an execution thereupon, or for making an application for leave to issue such an execution. New in form. See Underwood v. Green, 56 N. Y. 247. 1383. Execution against surviving judgment debtors. The last six sections do not affect the right of a judgment creditor to enforce a judgment, against the property of one or more surviving judgment debtors, as if all the judgment debtors were living. In that case, an execution must be issued in the usual form; but the attorney for the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judgment debtor, and requiring the sheriff not to collect the execution, out of any property which belonged to him. New. Day v. Rice, 19 Wend. 614. § 1384. Sale on execution, etc.; when and how conducted. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. 2 R. S. 369, § 36 (2 Edm. 383), am'd. Carnrick v. Myers, 14 Barb. 9. § 1385. Penalty for taking down or defacing notice of sale. A person who, before the time fixed for the sale, in a notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the sheriff, or by his authority, forfeits fifty dollars to the judgment creditor, and the same sum to the judgment debtor; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture or the execution was previously satisfied. Id., 39, am'd, 1386. Validity of sale, when not affected by sheriff's default, etc.- An omission by the sheriff to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not effect the validity of a sale, made by virtue of an execution, to a purchaser in good faith, without notice of the omission or offence. 2 R. S 369, 40. Phillips v. Schiffer, 7 Lans. 347; Moyer r. Hinman, 13 N. Y. 189: Lefevre v. Laraway, 22 Barb. 167; Smith v. McGowan, 3 id. 409; Wood v. Morehouse, 45 N. Y. 369; 1 Lans. 405. See Phillips v. Schiffer, 14 Abb. N. S. 101; Wood v. Morehouse, 45 N. Y. 368; Frederick v. Wheelock, 3 T. & C. 210. 1387. Purchases on such sales, by certain officers, prohibited. The sheriff, to whom an execution is directed, or the under-sheriff or deputy sheriff, holding an execution, and conducting a sale of property by virtue thereof, shall not, directly or indirectly, purchase any of the property at the sale. A purchase made by him, or to his use, is void. Id., 41. Jackson v. Collins, 3 Cow. 89. 1388. When execution to be enforced by undersheriff. Where the sheriff, to whom an execution is delivered, dies, is removed from office, or becomes otherwise disqualified to act, before the execution is returned, his under-sheriff must proceed upon the execution, as the sheriff might have done. If there is no under-sheriff, the court, from which the execution issued, may designate a person to proceed thereupon; who may complete the same, as an under-sheriff might have done. The person so designated must give such security as the court directs. He is deemed an officer; and is subject to the same obligations and liabilities, and has the same power and authority, in relation to the object of his appointment, as a sheriff, and is entitled to fees accordingly. But this section does not apply, in a case where special provision is otherwise made by law, for the enforcement of an execution, after the death, removal from office, or other disqualification, of the sheriff, or under-sheriff. 2 R. S. 374, 65 and 66 (2 Edm. 388). • Error in engrossing for 44 affect." TITLE II. Execution against property. ARTICLE 1. Property exempt from levy and sale. 2. Lien of an execution upon personal property; levy upon and sale of personal property. Rights of indemnitors of sheriff. 3. Sale, redemption, and conveyance of real property; rights and Ifabilities of persons interested. 4. Remedies for failure of title to real property sold, and to enforce contribution. ARTICLE FIRST. PROPERTY EXEMPT FROM LEVY AND SALE. SEC. 1389. Certain special exemptions not affected by this article. 1390. What personal property is exempt, when owned by a householder. 1391. Additional personal property exempt in certain cases. 1393. Military pay, rewards, etc., exempt from execution and other 1394. Right of action for taking, etc., exempt property. 1395. Burying ground; when exempted. 1396. How exempt burying ground designated. 1397. Homestead; when exempted. 1398. How exempt homestead designated. 1399. Married woman's homestead; when exempted. 1400. When exemption to continue after owner's death. 1401. Exemption; when not affected by temporary suspension of residence. 1402. If value of homestead exceeds $1,000, lien attaches to surplus. 1403. Id.; how proceeds to be marshalled when property is sold. 1404. Exemption of real property, how cancelled. §1389. Certain special exemptions not affected by this article.-The enumeration, in this article, of the property which is exempt from levy and sale by virtue of an execution, does not repeal any special provision of law, relating to such an exemption, which, by its terms, is applicable only to a particular class of persons, or corporations, or to a particular locality, or otherwise to a special case. Designed to guard against a repeal, by implication, of provisions like L. 1347, ch. 133, 10 (2 R. S., 5th ed., 630; 3 Edm. 748); L. 1851, ch. 122, 19 (2 R. S., 5th ed., 784; 3 Edm. 782); L. 1866, ch. 273, 26 (6 Edm. 715); L. 1867, ch. 516; and various similar statutes. 1390. What personal property is exempt, when owned by a householder. The following personal property, when owned by a householder, (1) is exempt from levy and sale by virtue of an execution; and each moveable article thereof continues to be so exempt, *See Laws 1878, ch. 33. while the family, or any of them, are removing from one residence to another: 1. All spinning wheels, weaving looms, and stoves, put up, or kept for use, in a dwelling house; and one sewing machine, with its appurtenances. 2. The family bible, family pictures, and schoolbooks, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as pa.t of the family library.(2) 3. A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured therefrom; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour, and vegetables, actually provided for family use; and necessary fuel, oil, and candles, for the use of the family for sixty days.(3) 5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its appendages; one pair of and irons; one coal scuttle; one shovel; one pair of tongs; one lamp and one candlestick. (4) : 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars.(5) 2 R. S. 367, 22 (2 Edm. 380), as am'd by L. 1860, ch. 152; with additions. Brooks v. Hathaway, 8 IIun, 290; Finnin e. Malloy, 33 N. Y. Supr. 382; Becker . Becker, 47 Barb. 497; Mickes r. Tousley, 1 Cow. 114; Kneettle v. Newcomb, 22 N. Y. 249; 31 Barb. 109; Cole v. Stevens, 9 Id. 676; Mathewson e. Waller, 3 Denio, 52; Brackett v. Watkins, 21 Wend. 68: Cox r. Stafford, 14 How. 519; Hasbrouck v. Lounsbury, 25 N. Y. 598. (1) Woodward v. Murray, 18 Johns. 400; Bowne v. Witt, 19 Wend. 475; Griffin e. Sutherland. 14 Barb. 456; Hutchinson v. Chamberlain, 11 N. Y. Leg. Obs. 245; Brigham v. Bush, 33 Barb. 596; Van Vechten v. Hall, 14 How. 436. (2) Robinson's case, 3 Abb. 466. (3) Hasbrouck . Bouton, 41 How. 208: s. c., 60 Barb. 413; Carpenter v. Herrington, 25 Wend. 370; Hall r. Penney, 11 id. 44: Brackett v. Watkins, 21 id. 68; Farrell e. Higley, Hill & D. Supp. 87: Shaw e. Davis, 55 Barb. 389. (4) Bowne 2. Wilt, 19 Wend. 475. (5) Morse r. Keyes. 6 How. 18; Reinecke r. Flecke, 35 N. Y. Supr. 491. 1391. [Amended, 1879.] Additional personal property exempt in certain cases. - In additiou to the exemptions, allowed by the last section, necessary household furniture,(1) working tools(2) and team (3) professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, (4) or having a family for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchasemoney(5) of one or more articles, except as prescribed in this or the last section. L. 1842, ch. 157, 1, as am'd by L. 1866, ch. 782 (4 Edm. 626; 6 Edm. 830): also L. 1858, ch. 107, 31 (3 R. S., 5th ed., 646; 4 Edm. 635). Danks r. Quackenbush, 3 Denio, 594: Kneettle e, Newcomb, 22 N. Y. 251; 31 Barb. 159: Smith v. Íll, 22 id. 656; Cole r. Stevens, 9 . 676; Mathewson v. Waller, 3 Den.52: Vedder v. Alkenbrack, 6 Barb. 327; Hickox v. Fay, 36 id.9; Earl. Camp, 16 Wend. 562; Fields e. Moul, 15 Abb. 6; Cox v. Stafford, 11 How. 519. (1) Bitting e. Vandenburgh, 17 How. 80. (2) Robinson's case, 3 Abb. 466; Bitting. Vandenburgh, 17 How. 80: Ford v. Johnson, 34 Barb. 364; Morse v. Keyes, 6 How, 20. (3) Dains v. Prosser, 32 Barb. 20: Hutchinson v. Chamberlain, 11 N. Y. Leg. Obs. 218; Harthouse v. Rikers, 1 Duer, 606; s. c., 11 N. Y. Leg. Obs. 223: Eastman v. Caswell, 8 How. 75; Morse v. Keyes, 6 id. 20; Wilcox v. Hawley, 31 N. Y. 618; Hoyt v. Van Alstyne, 15 Barb. 568; Lockwood v. Younglove, 27 Id. 505; Wheeler r. Cropsey, 5 How. 283; 1 Den. 123; Van Buren v. Loper, 29 Barb. 388; Stewart . Brown, 37 N. Y. 350; Rue v. Alter, 5 Den. 119; Radcliff v. Wood, 25 Barb. 52; Seaman v. Luce, 23 id. 240; Smith r. Slade, 57 1d. 637; Cogsdill. Brown, 5 Hun, 341: Finnin v. Malloy, 33 N. Y. Supr. 382. (4) Reinecke . Flecke, 35 N. Y. Supr. 491; Bowne v. Wilt, 19 Wend. 475; Griffin e. Sutherland, 14 Barb.456; Hutchinson v. Chamberlain, 11 N. Y. Leg. Obs. 248; Bowman v. Quackenboss, 3 Code R. 17; Brigham . Bush, 33 Barb. 596. (5) Hoyt v. Van Alstyne, 15 Barb. 568; Davis v. Peabody, 10 td. 91; Cole v. Stevens, 9 id, 676; 6 How. 424; Barnes v. An derson, 4 N. Y. Leg. Obs. 346; Hutchinson v. Chamberlain, 11 id. 248; Hickox v. Fay, 36 Barb. 9; Van Buren v. Loper, 29 id. 388; Craft v. Curtis, 25 How. 163; Cox v. Stafford, 14 How. 519; Mathewson v. Waller, 3 Denio, 52; Snyder v. Davis, 1 Hun, 350; s. c., 3 T. & C. 596. 1392. [Amended, 1877.] Woman entitled to same exemption as a householder. Where the judgment debtor is a woman, she is entitled to the same exemp tions, from levy and sale by virtue of an execution, Bubject to the same exceptions, as prescribed in the last two sections, in the case of a householder. New. 1393. Military pay, rewards, etc., exempt from execution and other legal proceedings.. The pay and bounty of a non-commissioned officer, musician, or private, in the military or naval service of the United States; a land warrant, pension, or other reward, here. tofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, Error in engrossing for "exempt." |