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1381. Leave, how obtained.
1382. Time of stay by order,
etc., not reckoned un-
der this title.

1383. Execution against sur-
viving judgment debt-

ors.

1384. Sale on execution, etc.; when and how conducted.

1385. Penalty for taking down

or defacing notice of
sale.

#1886. Validity of sale, when not
affected by sheriff's de-
fanit, etc.

1387. Purchases on such sale,
by certain officers, pro-
hibited.

1388. When execution to be
enforced by under-
sheriff.

§ 1362. An execution must be directed to the sheriff, unless he is a party or interested; in which case it must be directed as prescribed in section one hundred and seventythree of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular coroner; in which case it must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of money, or directing the payment of a sum of money, the order does not take effect, until the person so designated execites, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be collected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly.

1363. The sheriff, to whom an execution is directed and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour and minute, when he received it.

1364. There are four kinds of execution, as follows: 1. Against property.

2. Against the person.

3. For the delivery of the possession of real property, with or without damages for withholding the same.

4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof.

An execution is the process of the court, from which it is issued.

§ 1365. An exeution against property can be issued only to a county, in the clerk's office of which the judgment is docketed. An execution against the person may be issued to any county. An execution for the delivery of the possession of real property, must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found; or to the sheriff of the County where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties.

29 Hun, 644. 110 N. Y. 366.

? 1106, Consol. Act.

88 N. Y. 611.

1 City Ct.383.

110 N.Y. 366.

134 N. Y. 527.

98 N. Y. 1.

29 Hun, 14

§ 1366. An execution must intelligibly describe the jud ment, stating the names of the parties in whose favor, a against whom, the time when, and the court in which, t judgment was rendered; and, if it was rendered in the s preme court, the county in which the judgment-roll is file It must require the sheriff to return it to the proper cler within sixty days after the receipt thereof. Except as othe wise prescribed in the next section, it must be made retur able to the clerk, with whom the judgment-roll is filed.

§ 1367. Where an execution is issued out of a court, oth than that in which the judgment was rendered, upon filing transcript of the judgment rendered in the latter court, must also specify the clerk, with whom the transcript is file and the time of filing; and it must be made returnable to th clerk. If the judgment was rendered in a justice's court, must specify the justice's name; and it must omit the speci cation, respecting the filing of the judgment-roll.

§ 1368. An execution, issued upon a judgment for a su of money, or directing the payment of a sum of money, mu specify, in the body thereof, the sum recovered, or directe to be paid, and the sum actually due when it is issued. may specify a day, from which interest upon the sum due is t be computed; in which case, the sheriff must collect intere accordingly, until the sum is paid. If all the parties, agains whom the judgment is rendered, are not judgment debtor the execution must show who is the judgment debtor.

§ 1369. An execution against property must, if the jud ment-roll is not filed in the clerk's office of the county to whic it is issued, specify the time when the judgment was dockete in that county. It must, except in a case where special pro vision is otherwise made by law, substantially require th sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and, if sufficient personal propert cannot be found, out of the real property, belonging to hin at the time when the judgment was docketed in the clerk office of the county, or at any time thereafter.

1370. Where a warrant of attachment, issued in the action, has been levied, by the sheriff, the execution mus substantially require the sheriff to satisfy the judgment, a follows:

1. Where the judgment debtor is a non-resident, or a for eign corporation, and the summons was served upon him of it, without the State, or otherwise than personally, pursuant to an order obtained for that purpose, as prescribed in chap ter fifth of this act, and the judgment debtor has not appear ed in the action; out of the personal property attached, and if that is insufficient, out of the real property attached."

2. In any other case, out of the personal property attached and, if that is insufficient, out of the other personal propert of the judgment debtor; if both are insufficient, out of th real property attached; and, if that is insufficient, out of to real property, belonging to him, at the time when the jud ment was docketed in the clerk's office of the county, or a any time thereafter.

§ 1371. An execution against real or personal property in the hands of an executor, administrator, heir, devise legatee, tenant of real property, or trustee, must substan

tially require the sheriff to satisfy the judgment, out of that property.

$1372. An execution against the person must substantially require the sheriff to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged according to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued.

§1373. An execution for the delivery of the possession of 1 CityCt.383. real property, or a chattel, must particularly describe the property, and designate the party to whom the judgment awards the possession thereof; and it must substantially require the sheriff, to deliver the possession of the property, within his county, to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires.

1374. Where a judgment awards different sums of money, to or against different parties, a separate execution may be issued, to collect each sum so awarded; subject to the power of the court, to control the enforcement of the executions, upon motion, where the collection of one execution will, wholly or partly, satisfy another.

§ 1375. Except as otherwise specially prescribed by law, the party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after the entry of the judgment.

$ 1376. [Am'd 1877, 1885, 1887.] Where the party recovering a final judgment has died, execution may be issued at any time within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same. And where a party or one or more of several parties against whom a judgment for the recovery of possession of real property has been obtained, has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giving twenty days' notice to the occupants of the lands so recovered, and to the grantees or devisees of said deceased, or, if he died intestate, to the heirs-at-law of said deceased; said notices to be served in the same manner as a summons is directed to be served in an action in the supreme court.

§ 1377. [Am'd 1879.] 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.

2. Where an order is made by the court, granting leave to issue the execution.

§ 1378. Notice of an application for an order, granting |

15 Abb. N.

C. 431

87 N. Y. 623. 38 Hun, 142. 24 N.Y.State Rep. 40.

130 N.Y. 313.

28 Hun, 452; 29 Id. 12; 41

Id. 196.

15 N.Y.State Rep. 217; 34

Id. 489.

130 N.Y. 313.

131 Id. 80.

leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State, and personal service can, with reasonable diligence, be made upon him therein; otherwise, notice must be given in such manner as the court directs. Where the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be granted, except on proof, by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.

§ 1379. An execution to collect a sum of money cannot be issued, against the property of a judgment debtor, who has died since the entry of the judgment, except as prescribed in

the next two sections.

§ 1380. [Am'd 1879, 1885, 1890.] After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment-debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate's court of this State, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment-debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll. But where the decedent died intestate and letters of administration upon his estate have not been granted within three years after his death by the surrogate court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the State at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate's court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the State upon which to administer. In such case the lien of the judgment existing at the decedent's death continues for three years and six months as aforesaid. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed by the deceased judgment-debtor during his lifetime, if such conveyance was made in fraud of his creditors, or any of them, and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment or decree of any court of competent jurisdiction, may enforce his said judgment against such real property, with like effect as if the judgment-debtor was living, and it shall not be neces sary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex there

to a description of the real estate against which the same is sought to be enforced, as aforesaid, and shall indorse on said execution the words "issued under section thirteen hundred and eighty of the Code of Civil Procedure," whereupon said sheriff shall enforce said execution as therein directed, against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto.

§ 1381. [Am'd 1889.] Leave to issue an execution as prescribed in the last section, must be procured as follows: 1. Notice of the application to the court from which the execution is to be issued, for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue of the execution, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice must be given; until provision is so made therein, it must be served either personally or in such manner as the court prescribes in an order to show cause. Leave shall not be granted, except upon proof by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.

2. For the purpose of procuring a decree from the surrogate's court granting leave to issue the execution, the judgment creditor must present to that court a written petition, duly verified, setting forth the facts, and praying for such a de cree; and that the persons specified in the first subdivision of this section, may be cited to show cause why it should not be granted. Upon the presentation of such a petition the surrogate must issue a citation accordingly, which said citation may be served in the same manner as is provided in the first subdivision of this section for the service or giving of a notice to the parties or persons therein mentioned, and, if the general rules of practice of the supreme court do not provide for a mode of giving such notice, such citation must be served in such manner as the surrogate by order may prescribe, or as is otherwise provided by law; and, upon the return thereof, he must make such a decree in the premises as justice requires.

§ 1382. 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.

1383. 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.

§ 1384. 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.

29 Hun, 12.

4 Redf. 374.

30 Hun, 570

1 Dem. 349.

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