II. That final judgment was duly rendered in the aboveentitled action, in favor of the [plaintiff] and against the [defendant], in this court, for the sum of dollars and

day of

cents [or specify other relief granted], and the same was duly docketed therein on the 19, [in case of a judgment of a court of record, add: in the clerk's office of said court or if the Supreme Court: in the county clerk's office of county in case of a judgment in the N. Y. City Municipal Court, or in a justice's court, add, instead: and a transcript thereof was duly filed and the judgment docketed in the office of the clerk of the county of

on the

day of

III. That no execution has ever been issued on said judgment [and in case of a money-judgment, add: and the same remains wholly unsatisfied, and no part thereof has ever been paid1o or collected or if partly collected, substitute after the word "judgment": and the same remains partly unsatisfied in that there has been collected thereon only the sum of dollars

and

cents, which was paid on the

day of

19, but leaving the sum of dollars and cents still due and unpaid upon said judgment or otherwise state the facts concisely].

[Or in case of an assignment of the judgment, substitute:11] III. That the said judgment was assigned by [plaintiff] on the day of ,19, to [naming assignee]. That as the deponent has been informed by the said assignor and verily believes, prior to said assignment no execution was ever issued upon the said judgment [if money judgment, add: and at the time of said assignment the judgment remained wholly unsatis

7 Application for leave to issue execution on such a judgment must be made to the Supreme Court.

8 Apply to the County Court of the county in which such a judgment was rendered for leave to issue execution thereon. N. Y. Code Civ. Pro., § 3022 (last clause). See also id., §§ 3133, 3225 and 3226, for the same provision for Justices' Courts of certain cities.

9 Since the amendment of 1894 to sections 376, 382 and 3017 of the Code, a judgment of a court not of record is presumed paid only after the lapse of twenty years, provided a transcript of the judgment is obtained within six years and the judgment docketed in the county clerk's office.

10 See Wadley v. Davis, 30 Hun,

570, and Duell v. Alvord, 41 id. 196, holding that an affidavit to the effect "that said judgment is wholly unsatisfied and unpaid" is sufficient in the absence of any evidence to the contrary. That a court in such a case is bound to be "satisfied" within the meaning of the Code, see Kincaid v. Richardson, 9 Abb. N. C. 315, 321. But the affidavit should be made by one presumed to have knowledge of any payment.

11 This clause when used it would be well to have supplemented by the affidavit of the assignor, to the effect that before the assignment no execution had been issued and nothing paid on the judgment, etc. Or show inability to present such affidavit.

fied and unpaid, and that no execution has been issued since the assignment, and that the judgment still remains wholly unsatisfied and unpaid].

[If an order to show cause is asked, state reason, as thus:] IV. An order to show cause is necessary for the reason that it is essential that such order should provide for the manner of giving notice1 of the application for leave to issue execution to the said [judgment debtor], who resides out of this State at [or, who resides in this State at

in

but

the State of personal service cannot with reasonable diligence be made upon him-setting forth in detail the efforts made to serve him; see Forms in Volume I, Chap. IV].

V. No previous application has been made for the order to show cause now sought.

[Jurat.]

FORM No. 2168.

[Signature.]

Notice of motion for leave to issue execution after the lapse of five years.13 [Move the court, see Forms 815, etc., and state order asked, as thus:] granting leave to issue an execution on the final judgment rendered in this action in the Court of and entered

Another Form, by order to show cause, directing mode of service.14

[Title of action.]

At a Special Term [etc., as in
Form 820, p. 1174 of this volume).

On the annexed affidavit of A. B., verified the

day of

19, and on motion of A. T., Esq., attorney for

[judgment creditor or assignee]: *

ORDERED, that the [parties to be served] herein show cause at a Special Term of this court to be held at the County Court House [or, City Hall in the [city] of

12 N. Y. Code Civ. Pro., § 1378 (first clause).

13 As to manner of service, see N. Y. Code Civ. Pro., § 1378. The judgment debtor alone need be served. Shultes v. Sickles, 70 Hun, 479, 24 N. Y. Supp. 145; aff'd, 147 N. Y. 704.

14 Must be a court order. § 1378. See Vol. I, p. 128, paragraph 106, and note 45 thereto, to the effect that application for such an ex parte order to show cause (used as a short notice of motion) must be made to the court before whom the motion is to be made,

on the

dar

or a judge thereof; and as an order granting leave to issue execution is to be made by the court (N. Y. Code Civ. Pro., § 1377), this order to show cause must be made returnable before the court out of which the execution is to be issued. In courts of record this is the court in which the judg ment was originally rendered; but in the case of judgments of inferior courts, such as those rendered in Justices' Courts and in New York city Municipal Courts, these applications must be made to the County Court of

19

at

o'clock in the

day of

noon, or as soon

19

of thereafter as counsel can be heard, why an execution should not issue on the final judgment of this court [or, specify other court] entered in this action on the [a transcript of which was duly filed in the county clerk's office on the day of 19], and why the said [judgmentcreditor] should not have such other or further relief as may be just.

[When adverse party is a nonresident, and his exact residence is doubtful, add:15] And it is further ORDERED, that notice of this application for leave to issue such execution be given to the said [adverse party] by serving on him personally, on or before the 19 a copy of this order and

day of

in the State of

or at

the annexed affidavit, at such other place in the said State as the said [adverse party] may be found.

[Or where judgment debtor cannot be served personally with reasonable diligence:] And it is further ORDERED, that a copy of this order and of the said affidavit be served upon [adverse party], by a publication of this order once a week for successively in the

of

before the

day of

weeks

on or

, a newspaper published in the county. and by depositing in the post office at 19 a copy of this order and said affidavit, contained in a securely-closed postpaid wrapper directed to the said [adverse party; or state other manner of serrice as may be directed by the court].

[For another form of direction, see Form 2173.]

Enter: [signature of judge by initials of name and title].

FORM No. 2170.

Order granting leave to issue execution after the lapse of five years.16

[Title of action.]

At a Special Form [etc., as in Form 820, p. 1174 of this volume].

The motion for leave to issue execution on the final judgment entered in this action and duly docketed on the

the county in which the judgment was rendered, and to the Supreme Court for the county of New York respectively. Id., §§ 3022 (last clause) and 3220.

15 Under N. Y. Code Civ. Pro., 1378, such an order to show cause used as a short notice of motion "must be served personally upon the

day of

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."

16 N. Y. Code Civ. Pro., §§ 1377,

1378.

19

[and the transcript of which was duly filed and the judgment docketed in the office of the clerk of

,

on the

day of 19], having been duly heard; and upon reading and filing the affidavit of , verified on the

, 19

day of 19 [whereby it is proved to the satisfaction of the court that the said judgment remains wholly — or, partly — unsatisfied]; and upon reading and filing the notice of motion [or, order to show cause] dated the day of and upon reading and filing [specifying papers in opposition], and after hearing A. T., Esq., attorney for [judgment creditor or assignee], in support of the motion, and Z. T., Esq., attorney [or, and on reading and filing proof of due service of notice of motion and no one appearing] for [the judgment debtor] in opposition, and after due deliberation being had thereon; Now, on motion of A. T., Esq., attorney for [judgment creditor or assignee], it is:

ORDERED, that said motion be and the same is hereby granted, and that leave be and hereby is given to the said [judgment creditor or assignee] to issue an execution upon the said judgment. Enter: [signature of judge by initials of name and title].18

FORM No. 2171.

Affidavit to move for execution against property of a judgment debtor having died after judgment.19

[Title of court and action.]

[Venue.]

A. B., being duly sworn, says:

I. That he is the [plaintiff] in the above-entitled action.

II. That the [plaintiff] * on the
Court of the

in the

17 It may be well to insert this recital in case of a money judgment. See Code Civ. Pro., § 1378.

The validity of the judgment is not an issue which can be raised upon the motion. Matter of Armstrong, 35 Misc. 327, 71 N. Y. Supp. 951.

18 Leave to issue nunc pro tunc will not be granted with a possible result of exposing subsequent purchasers to litigation. Hansee v. Fiero, 56 Hun, 563, 25 Abb. N. C. 46, 10 N. Y. Supp. 494.

of

day of 19 " [or, before J. P., Esq.,

19 Unnecessary for purpose of enforcing execution issued before the debtor's death. Wood v. Morehouse, 1 Lans. 405; Allan v. Hoffman, 11 Va. L. J. 663.

Required where death is before issue of execution, by N. Y. Code Civ. Pro., §§ 1379, 1380, 1381. See, also, note 28, p. 2132. An execution issued without leave is void. Prentiss v. Bowden, 145 N. Y. 342.

The Code does not expressly require the affidavit to be made by a party

-or, in the Municipal district], in the

a justice of the peace of the town of Court of the city of New York, in the county of recovered a final judgment against the [defendant], the said Y. Z., for [or, directing the payment by the said Y. Z. to the said A. B., of] the sum of dollars and cents damages and costs. [May add facts showing the judgment to be a lien20 on property described, as for instance:] That the judgment-roll upon said judgment was duly filed21 and the judg ment duly docketed in the office of the clerk of the county of [or, of the ], on the day of 19 [and in case of a judgment of any court other than the Supreme (and including also cases where execution is to be issued to another county), add: and a transcript of said judgment was duly filed and the judgment was duly docketed in the county clerk's office,22 on the

Court of

day of day of

19 ].

19 "

23

III. That said Y. Z. died on the intestate, leaving C. D. and E. F. as 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 the real property hereinafter described was devised to C. D. and E. F.], and letters of administration [or, letters testamentary under said will] were duly granted upon the estate of the said deceased judgment debtor by the surrogate of county to [naming administrator — or, to said will], on the

day of

the executor named in 19 and the said ad

ministrator [or, executor] has duly qualified as such [and more

to the judgment-record, and it may be made by an assignee of the judgment. See Duell v. Alvord, 41 Hun, 196. Instead of obtaining an order of court and a decree of the surrogate granting leave to issue an execution, a judgment creditor may in some cases find it a preferable course to apply (after six months have elapsed after the issue of letters) to the surrogate by petition for an order directing the executor or administrator to pay the judgment (or a just proportion thereof) out of assets in his hands. N. Y. Code Civ. Pro., § 2722. And see McNulty r. Hurd, 72 N. Y. 518.

20 N. Y. Code Civ. Pro., § 1389 (first clause). If the judgment is not a lien on any property against which it may be enforced, execution may, notwithstanding, be issued thereon

with leave of court. Atlas Refining Co. r. Smith, 52 App. Div. 109, 64 N. Y. Supp. 1044, reviewing and distinguishing the earlier statutes, and cases thereunder holding to the contrary.

21 By N. Y. Code Civ. Pro., § 1250, a judgment does not become a lien on real property and chattels real until the judgment-roll is filed and the judgment docketed. In case of a justice's judgment, however, omit statement as to filing of judgment-roll. See id., § 1367.