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able by the court and not by the clerk," substitute: with costs, the same having been adjusted by the court at the sum of dollars as per bill of costs filed with the clerk of this court on this day]; Now, on motion of A. T. (plaintiff's] attorney, it is adjudged that (proceeding as in the order for judgment; see preindled thoron mo ceding Form]: 29
[Signature of], Clerk.
28 See Cochran's Executor v. Inger. Rome, etc., R. R. Co., 131 id. 37. But soll, 11 Hun, 342, where it was held the scope of the judgment, to which that on such a remittitur the court plaintiff is entitled to upon filing the below has power to adjust the costs remittitur, must accord with the alle in cases where the clerk of the courtgations of fact in the complaint. Harcannot do it.
riman v. City of Yonkers, 109 App. 29 The granting of judgment abso Div. 246, 95 N. Y. Supp. 816. The lute for plaintiff by the Court of Ap particular character of the relief to peals has the same effect as if the be awarded may still rest in the Suplaintiff's whole cause of action was preme Court. See Bates t. Holbrook, admitted, and a default had occurred. 171 N. Y. 688. For proceedings upon See City Trust, etc., Co. v. Am. Brew plaintiff's assessment of damages, see ing Co., 182 N. Y. 285; Bossout 0. Forms 1573, etc., p. 1758.
EXECUTING THE JUDGMENT.
FORMS. I. LEAVE TO ISSUE EXECUTION. 2181. Order of surrogate that execu2164. Affidavit to obtain leave to issue
tor (or administrator) ren
der an intermediate account execution for possession of
(under N. Y. Code Civ. Pro., realty after death of party against whom judgment was
§ 2725, subd. 1).
2182. Order of surrogate allowing exhad. 2165. Notice of motion thereon.
ecution against executor or 2166. Order thereon.
administrator as such. 2167. Affidavit to move for leave to
II. THE EXECUTION AND INDORSEissue execution after lapse of
MENTS. five years. 2168. Notice of motion thereon.
2183. Execution against property, on 2169. Another Form, by order to show
judgment recovered in a cause directing mode of ser
court of record, etc. vice.
2184. - - - from a County Court, 2170. Order thereon.
upon a judgment rendered in 2171. Afidavit to move for execution
a court of a justice of the against property of a judg.
peace, etc. ment debtor having died after
2185. - - where attachment had judgment.
been levied and debtor was 2172. Notice of motion thereon.
personally served within the 2173. Another Form, by order to show
State, or (being a resident) cause directing mode of ser
was served by publication, or vice.
without the State. 2174. Order thereon.
2186. --- where attachment had 2175. Petition to Surrogate's Court
been levied and debtor is a for execution against prop
nonresident, or a foreign corerty of a judgment debtor
poration, and has not been having died since judgment.
served personally within the 2176. Decree thereon.
State, and has not appeared. 2177. Affidavit or petition to obtain 2187. – against joint property, where execution or judgment against
an attachment has been levied, executor or administrator as
and the debtors have apsuch.
peared, or been personally 2178. Notice of application to surro.
served within the State. gate thereon.
2188. – against joint property of all, 2179. Another Form, by order to show
and separate property of some cause, with directions as to
of the judgment debtors, service.
where part only have been 2180. Undertaking by legatee or next
served. of kin before issuing execu- 2189. — against property issued to a tion on judgment against ex.
sheriff who has levied an at. ecutor or administrator.
tachment in the action, but
whose term of office has ex III. LEVY AND INDEMNITY, ETC. pired.
22 12. Bond to indemnify the sheriti 2190. - for the possession of a chat
on his levying execution. tel with or without damages
2213. Notice to sheritf of third per. for the taking or detention
son's claim to property levied thereof.
on; notice thereof to execu2191. The same; in favor of defend
tion creditor, etc. ant unless plaintiff pays
2214. Undertaking to indemnify shervalue of special property in
iff for not relinquishing lesy. chattel, etc.
2215. Notice by officer, indemnified. 2192. Execution for delivery of pos
that he is sued, given to ensession of real property with
title him to recover over on da mages.
the indemnity. 2193. – for deficiency in foreclosure. 2216, Order staying sheriff from re2194. – against property of an unin
moving property or releasing corporated association. 2195. - against real or personal 2217. Affidavit of sheriff to obtain orproperty in the hands of an
der extending time to return executor, etc.
conflicting execution, ete. 2196. — upon surrogate's decree. 2218. Order thereon. 2197. Affidavit upon application for 2219. Notice of motion thereon.
special execution under Code
IV. PURCHASE AND BEDEMPTION. 2198. Order therefor.
2220. Affidavit by purchaser at execu2199. Special execution under Code
tion sale for order to enjoin Civ. Pro., $ 1391.
waste. 2200. Indorsement on execution 2221. - by redeeming creditor of (against property).
amount due remaining un2201-2211. Statements suitable to in
paid, on judgment. sert or substitute in forego. 2222. - of agent to sum remaining ing Form.
unpaid on mortgage. I. LEAVE TO ISSUE EXECUTION.
FORM No. 2164. Affidavit to obtain leave to issue execution for possessica of realty after
death of party against whom judgment was had. 1
Y. Z., being duly sworn, says:
II. That final judgment herein was duly entered in his favor and against Y. Z., of , the above-named [defendant], on the
day of , 19 , for the recovery of the possession of the following real property, to wit: [description].
III. That thereafter and on or about the day of 19, the said [defendant] died intestate, leaving A. B. and C. D. his only heirs-at-law (or, leaving a last will and testament, which has been duly admitted to probate by the surrogate of the county of , whereby he devised the said real property
1N. Y. Code Civ. Pro., § 1376 (clause 2). See notes, pp. 2125-2126.
to A. B. and C. D.], who are the present and sole occupants of the land so recovered [or, otherwise according to the case]. [Jurat.]
[Signature.] FORM No. 2165. Notice of motion for leave to issue execution for possession of realty after
death of party against whom judgment was had.2 [Title of court and action.]
Please take notice, that (upon the annexed affidavit of A. T., verified the day of , 19 ] application will be made to this court, at a Special Term thereof, to be held at the City Hall [or, County Court House], in the city of , in the county of
, on the day of , 19 , at o'clock in the
noon of that day, or as soon thereafter as counsel can be heard, for an order granting leave to issue and execute an execution or writ of possession for the delivery of the possession of the real property described in the judgment rendered the day of , 19 , in the above-entitled action, in the Court of
, in favor of the said [name] against the said [name], and for such other or further relief as may be just. The said property is thus described in said judgment [description.] [Date.]
[Signature and office address of], [Address] To
Attorney for [moving party.] [Occupants of the lands, and to the heirs or
devisees, or grantees, of the deceased.]
FORM No. 2166. Order granting leave to issue execution for the possession of realty on a judgment iuvovered against a party since deceased.3
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of action.] lpon reading and filing the affidavit of A. B., verified on the
day of , 19, and upon proof of due notice of this motion to all the persons entitled to such notice, and after hearing A. T., Esq., attorney for [plaintiff], in support of the motion, and Z. T., Esq., attorney for the heirs at law or, devisees — or
2 Twenty days' notice must be given, and served in the same manner as a summons in an action in the Supreme Court. N. Y. Code Civ. Pro., 8 1376. Hence notice should not be given by an order to show cause which, by the rules of practice, must be returnable
in less than eight days. Application should be made to the court. See next note.
3 See Form 2192, p. 2157, for an ex. ecution for possession of real property.
Under N. Y. Code Civ. Pro., & 1376, apply for this order to the court in
other parties] of the deceased [or, no one appearing], in opposition thereto, and due deliberation being had; Now, on motion of A. T., Esq., attorney for the plaintiff, it is:
ORDERED, that leave be and hereby is granted to [name] the [plaintiff] herein, to issue and execute an execution upon the judgment rendered herein on the day of , 19 , in favor of said plaintiff and against the above-named defendant [name], now deceased, for the recovery of the possession of the real property described in the said judgment, and that such execution may be issued in the same form and be executed in the same manner as if the said judgment-debtor was still living. Enter: [signature of judge by initials of name and title].
FORM No. 2167. Affidavity to move for leave to issue execution after lapse of five years. [Title of court and action.] [Venue.]
A. B., being duly sworn, says:
which judgment was rendered, “ 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 man ner as a summons is directed to be served in an action in the Supreme Court.” Although this section ($ 1376) does not expressly require the application to be made to the court instead of a judge, yet by section 1377 of the Code it is evident that it should be made to the court.
4 A petition will not, it seems, sufice. Matter of Holmes, 59 Hun, 369, 13 N. Y. Supp. 100.
5 X. Y. Code Civ. Pro., &$ 1377. 1378. The five years are computed from the time of docketing (Kupfur l'. Frank, 30 Hun, 74), and include the day of docketing. Aultman, etc., Co. r. Taylor, 163 N. Y. 54. And by Code Civ. Pro., $ 1382. a stay is not counted as a part of the time limited for issuing an execution, or for making an application for leave to issue an execution from a court of record.
In Mereness r. Brenon, 7 Wkly. Dig. 24, it was held that leave to issue execution (for the first time) after
five years may be granted upon motion of the personal representative of a deceased judgment creditor. Or. bp the representative of a deceased joint plaintiff uniting with the surviving plaintiff. Matter of Armstrong, 35 Misc. 327, 71 V. Y. Supp. 951.
If execution has been issued and returned wholly or partly unsatisfied or unexecuted within the five years, no leare of court is necessary to issue it again. Cooper 1. Bailey. 69 App. Div, 358, 74 N. Y. Supp. 667: Imp. Bank 1. Quackenbush, 80 Hun, Ill, 30 N. Y. Supp. 35; rer'd. on another point, 143 V. Y. 567. And even if issued (for the first time) after the said five years without leave. the execution is not void, but voidable only in the discretion of the court. See Aultman, etc., Co. v. Syme. 56 App. Div. 165, 67 Y. Y. Supp. 530; id., 163 N. Y. 54; Bank of Genesee r. Spencer. 18 N. Y. 150; Wooster 1. Wuterich, 2 Abb. X. C. 206.
6 The Code does not expressly require the affidarit to be made by a party to the judgment-record. An assignee of the judgment may make the affidavit. See Duell t. Alvord, 41 Hun, 196, 198.