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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 preceding Form].29

28 See Cochran's Executor v. Ingersoll, 11 Hun, 342, where it was held that on such a remittitur the court below has power to adjust the costs in cases where the clerk of the court cannot do it.

29 The granting of judgment absolute for plaintiff by the Court of Appeals has the same effect as if the plaintiff's whole cause of action was admitted, and a default had occurred. See City Trust, etc., Co. v. Am. Brewing Co., 182 N. Y. 285; Bossout v.

[Signature of], Clerk.

Rome, etc., R. R. Co., 131 id. 37. But the scope of the judgment, to which plaintiff is entitled to upon filing the remittitur, must accord with the alle gations of fact in the complaint. Harriman v. City of Yonkers, 109 App. Div. 246, 95 N. Y. Supp. 816. The particular character of the relief to be awarded may still rest in the Supreme Court. See Bates v. Holbrook, 171 N. Y. 688. For proceedings upon plaintiff's assessment of damages, see Forms 1573, etc., p. 1758.

CHAPTER XVI.

EXECUTING THE JUDGMENT.

ARTICLE I. EXECUTION AGAINST PROPERTY.

II. EXECUTION AGAINST THE PERSON.

III. ENFORCING JUDGMENT FOR SPECIFIC RELIEF BY JUDICIAL SALE
OR OTHERWISE.

V. ENFORCING JUDGMENT FOR COSTS AGAINST A THIRD PERSON IN-
TERESTED.

ARTICLE I.

EXECUTION AGAINST PROPERTY.

FORMS.

I. LEAVE TO ISSUE EXECUTION. 2164. Affidavit to obtain leave to issue execution for possession of realty after death of party against whom judgment was had.

2165. Notice of motion thereon. 2166. Order thereon.

2167. Affidavit to move for leave to
issue execution after lapse of
five years.

2168. Notice of motion thereon.
2169. Another Form, by order to show
cause directing mode of ser-
vice.

2170. Order thereon.

2171. Affidavit to move for execution against property of a judg ment debtor having died after judgment.

2172. Notice of motion thereon.

2173. Another Form, by order to show cause directing mode of service.

2181. Order of surrogate that executor (or administrator) render an intermediate account (under N. Y. Code Civ. Pro., § 2725, subd. 1).

2182. Order of surrogate allowing execution against executor or administrator as such.

II. THE EXECUTION AND INDORSE-
MENTS.

2183. Execution against property, on
judgment recovered in a
court of record, etc.

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from a County Court,

upon a judgment rendered in a court of a justice of the peace, etc.

where attachment had been levied and debtor was personally served within the State, or (being a resident) was served by publication, or without the State.

where attachment had been levied and debtor is a nonresident, or a foreign corporation, and has not been served personally within the State, and has not appeared. against joint property, where an attachment has been levied, and the debtors have appeared, or been personally served within the State.

against joint property of all, and separate property of some of the judgment debtors, where part only have been served.

against property issued to a sheriff who has levied an attachment in the action, but

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III. LEVY AND INDEMNITY, ETC. 2212. Bond to indemnify the sheriff on his levying execution. 2213. Notice to sheriff of third person's claim to property levied on; notice thereof to execution creditor, etc. 2214. Undertaking to indemnify sheriff for not relinquishing levy. 2215. Notice by officer, indemnified, that he is sued, given to entitle him to recover over on the indemnity.

2216. Order staying sheriff from removing property or releasing levy.

2217. Affidavit of sheriff to obtain order extending time to return conflicting execution, etc.

2218. Order thereon.
2219. Notice of motion thereon.

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2198. Order therefor.

2199. Special execution under Code

Civ. Pro., § 1391.

2200. Indorsement on execution (against property).

2221.

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by redeeming creditor of amount due remaining unpaid, on judgment.

of agent to sum remaining unpaid on mortgage.

I. LEAVE TO ISSUE EXECUTION.

FORM No. 2164.

Affidavit to obtain leave to issue execution for possession of realty after death of party against whom judgment was had.1

[Title of court and action.]

[Venue.]

Y. Z., being duly sworn, says:

I. That he is the [plaintiff] in the above-entitled action. II. That final judgment herein was duly entered in his favor and against Y. Z., of the above-named [defendant], on the 19 for the recovery of the possession of

day 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

1 N. 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.]

FORM No. 2165.

[Signature.]

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.]

day of

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Please take notice, that [upon the annexed affidavit of A. T., verified the 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

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on the

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in the county of

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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

Court of

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19, in the above-entitled action, in the 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.]

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[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 ..overed against a party since deceased.3

At a Special Term [etc., as in
Form 820, p. 1174].

[Title of action.]

Upon 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., § 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.
next note.

See

3 See Form 2192, p. 2157, for an execution 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.

Affidavit to move for leave to issue execution after lapse of five years.5 Title of court and action.]

[Venue.]

A. B., being duly sworn, says:

I. That he is the [plaintiff]

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 manner 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 sec tion 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 N. Y. Code Civ. Pro., §§ 1377, 1378. The five years are computed from the time of docketing (Kupfur r. Frank, 30 Hun, 74), and include the day of docketing. Aultman, etc., Co. v. 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

above-named.

five years may be granted upon motion of the personal representative of a deceased judgment creditor. Or, by the representative of a deceased joint plaintiff uniting with the surviving plaintiff. Matter of Armstrong, 35 Misc. 327, 71 N. Y. Supp. 951.

If execution has been issued and returned wholly or partly unsatisfied or unexecuted within the five years, no leave of court is necessary to issue it again. Cooper r. Bailey, 69 App. Div. 358, 74 N. Y. Supp. 667; Imp. Bank r. Quackenbush, 80 Hun, 111, 30 N. Y. Supp. 35; rev'd. on another point, 143 N. 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 N. Y. Supp. 530; id., 163 N. Y. 54; Bank of Genesee r. Spencer. 18 N. Y. 150; Wooster v. Wuterich, 2 Abb. N. C. 206.

6 The Code does not expressly require the affidavit to be made by a party to the judgment-record. An assignee of the judgment may make the affidavit. See Duell r. Alvord, 41 Hun, 196, 198.

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