of administration with the will annexed] upon the estate of said deceased were issued to the said Y. Z.; Now, THEREFORE, pursuant to the requirement of the said surrogate upon such application, and according to the statute in such case made and provided, we, C. D., of No. of 54 , and State of , county of street, in said street, in the New York, and E. F., of No. county and State, do hereby jointly and severally undertake and become bound in the sum of dollars to the said Y. Z. as [executor] aforesaid, that if, after the collection of any sum of money by virtue of the execution which the said surrogate shall, upon said application, permit to be issued upon the said judgment, the remaining assets56 are not sufficient to pay all sums for which the said Y. Z. is chargeable for expenses, claims entitled to priority as against the said A. B., and the other legacies [or, distributive shares] of the same class as the said A. B.'s, then the said A. B. will refund to the said Y. Z. as [executor] aforesaid the sum so collected, or such ratable part thereof, with the other legatees [or, representatives] in the same class as the said A. B. as shall be necessary to make up the deficiency. [Date.] [Signatures.] [Acknowledgment, affidavit of sufficiency, and approval as in Forms Nos. 822-824, pp. 1176-1177 of this volume.] [File in surrogate's court, and serve copy with notice of filing, as in Form No. 825, p. 1177 of this volume.] FORM No. 2181. Order of surrogate that executor (or administrator) render an intermediate account (under N. Y. Code Civ. Pro., § 2725, subd. 1).57 [As in Form 2179 or 2176 to the (according to the case), continuing thus:] ORDERED, that the said executor [or, administrator] Y. Z. render and file an intermediate account of his proceedings, together with the vouchers in support of the same on or before the day of 19; and it is further 54 It is not essential that the creditor join. 55 N. Y. Code Civ. Pro., § 812. 56 The fair construction of the statute seems to be that if the assets remaining after collection of this judg ment-creditor's claim are sufficient when properly administered, then the obligation is null. 57 See Matter of Cong. Unit. Soc., 34 App. Div. 387, 54 N. Y. Supp. 269 The intermediate accounting will not be directed in the absence of proof of assets in the moving papers. Matter of Thurber. 37 Misc. 155, 74 N. Y. Supp. 949. ORDERED, that this application for leave to issue execution upon the aforesaid judgment be and the same is hereby adjourned to said day of 19 [Signature of], Surrogate. FORM No. 2182. Order of surrogate allowing execution against executor or administrator as such.58 [Title of court and proceeding as in Form 2176.] Application having been made to me by A. B., for an order permitting an execution to issue upon the judgment in the above mentioned action, and due proof having been made to me that [here recite succinctly the facts deemed established], and on reading and filing proof of the personal service upon the said executor [or, administrator], of at least six days' notice of the application for this order [or, if service was pursuant to order to show cause, say: proof of due service upon said of due notice of this application, pursuant to the directions of this court in its order to show cause dated the 19 ]; day of [If the judgment is for a legacy or distributive share, add: And on reading and filing the undertaking of the said applicant, heretofore required by me to be given before granting this order, according to the provisions of section 1827 of the Code of Civil Procedure;] And it appearing to my satisfaction [from the intermediate account of the executor (or, administrator) rendered herein], that the assets of the said estate are [or, are not- or, will — or, will not be] sufficient,50 after the payment of all sums chargeable against him for expenses and for claims entitled to priority of payment as against the said judgment-creditor, to pay in full all the demands of the same class against the said estate [and if not sufficient, add: and that the sum below mentioned is not 58 N. Y. Code Civ. Pro., §§ 1825, 1826. Such an execution does not bind the real estate of the decedent, unless the judgment by its terms is a lien thereon. Id. § 1823. 59 To ascertain the sufficiency of the assets, etc., upon an application for this order, the surrogate has power, in his discretion, to make an order requiring the executor (or, administrator) to render an intermediate account. Id., § 2725. By id., 2552, this "order, permitting a judgment-creditor to issue execution against an executor or administrator, is, except upon an appeal therefrom, conclusive evidence that there are sufficient assets in his hands to satisfy the sum for which the order permits the execution to issue." See Matter of Weil, 110 App. Div. 67. GO The claimant gains no priority by securing a judgment against the representative. Code Civ. Pro., § 2719. more than the said A. B.'s just proportion of the assets of the estate]; it is, on motion of A. T., attorney for said A. B., ORDERED, that the said application be and the same is hereby granted, and that an execution upon the said judgment, in due form of law, be and hereby is permitted to issue in favor of the said judgment-creditor and against the said executor [or, administrator] to collect the sum of dollars [with interest from the day of 19 ]. [Signature of], Surrogate. II. THE EXECUTION AND ENDORSEMENTS. FORM No. 2183. Execution against property,61 on judgment recovered in a court of record, etc. The People of the State of New York, to the Sheriff of the county of greeting: Note on executions in favor of and against particular parties.- Under Greater New York Charter, § 264, no execution can lawfully issue upon a judgment recovered upon certain claims against New York city "until after ten days' notice in writing of the recovery of such judgment shall have been given to the comptroller" of said city. The surrogate must consider all claims of equal right, whether reduced to judgment, or not, or even if in dispute. See Matter of Miner, 39 Misc. 605, 80 N. Y. Supp. 643. 61 For an execution solely against personal property upon an order directing the payment of costs (motion or interlocutory) or other sum of money (under N. Y. Code Civ. Pro., §§ 3233 and 779), see Vol. I, p. 304 (Form No. 181); and also, id., p. 252, paragraph 89, as to when leave is necessary to issue such an execution. Leave of court is necessary before selling, under an execution, property in the hands of a receiver, even though the levy is made before the receiver is appointed. Walling t. Miller, 108 N. Y. 173. See Forms 758767 in volume I for motions asking leave to interfere with assets in the hands of a receiver, which may be easily adapted for this purpose. 62 Under id., § 1362, an execution That no execution can issue upon a judgment against the people of the State, see N. Y. Code Civ. Pro., § 1985 (last clause). As to an execution against the individual property of certain public officers upon a judgment against them in their official capacity, see id., § 1931. Under id., § 1375, "except other must be directed to the sheriff, unless he is a party or interested." As to what has been held a sufficient direction to a sheriff, see White r. Coulter, 59 N. Y. 629, at p. 631. By N. Y. Code Civ. Pro., § 706, where a levy of attachment has been made, but final judgment has not been recovered by plaintiff until after the expiration of the sheriff's term of office, the execution against property must still be directed to and executed by that sheriff, unless another person is designated by law to complete the unfinished business of such office, or in that case to the person so designated. See Form No. 2189, and see Code Civ. Pro., $$ 707, 708. As to what sheriff and upon what judgment execution must issue to entitle a judgment creditor to maintain supplementary proceedings, see id., § 2458. As to what sheriff an execution should be directed to in order to sustain a creditor's action, see id., § 1872. 63 day of WHEREAS, judgment was rendered on the one thousand nine hundred and in the [here name the court], * in an action between [naming all the plaintiffs], plaintiffs, and [naming all the defendants who are debtors], defendants, in favor of the said [naming judgment creditor], against wise 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;" and by id., § 1376 (as amended in 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." If the judgment has been assigned, the original judgment-creditor has no authority to issue an execution. Matter of Mawson v. Wermuth, 182 N. Y. 234. The five years are computed from the time of docketing. Kupfer v. Frank, 30 Hun, 74. But after the said five years execution cannot be issued without leave of court, unless an execution was issued within that time, "and has been returned wholly or partly unsatisfied or unexecuted" (N. Y. Code Civ. Pro., § 1377), i. e., if the execution has been issued and thus returned within the five years, no leave of court is necessary to issue it again. Cooper v. Bailey, 69 App. Div. 358, 74 N. Y. Supp. 667; Imp. Bank v. Quackenbush, 80 Hun, 111, 30 N. Y. Supp. 35; rev'd, on another point, in 143 N. Y. 567. And even if 63 By N. Y. Code Civ. Pro., § 1366, "an execution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which the judgment was rendered." If a prior judgment on default has been entered in the action, and allowed to stand as security upon opening the default. the execution is properly issued upon the later judgment. Holmes t. Rogers, 2 N. Y. Supp. 501. 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 v. Spencer, 18 id. 150; Wooster v. Wuterich, 2 Abb. N. C. 206. As to the necessity and manner of obtaining the leave of court and of the surrogate, before issuing execu tion against the property of a judg ment-debtor who has died since the entry of judgment, see Forms 21712176; N. Y. Code Civ. Pro., §§ 13791381. As to the manner of issuing and levying execution against real prop erty or a chattel real when ten years after the filing of the judgment roll have expired, see id., § 1252. By id., 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 for issuing an execution thereupon, or for making an application for leave to issue such an execution." By id., § 1490, an execution against the property of a judgment-debtor cannot be issued without leave of the court while an execution against his person, issued in the same action, remains unreturned. See, also, id., In Reid v. Stegman, 15 Abb. N. C. 422, where a judgment was rendered against the board of commissioners of charities, etc., consisting of three persons named, it was held (affirming judgment in favor of sheriff in action for non-return of execution) that an execution thereon against the three persons named individually was unauthorized and void, and that the sheriff was justified in his refusal to execute it, even though regular upon its face. the said [naming debtor], t for the sum of 65 dollars and cents, as appears to us by the judgment-roll, filed in the office of the clerk of the county of [or, of the court of and whereas the said judgment was duly docketed in the office of the clerk of your county, on the day68 of in the year one thousand nine hundred and § 1491-1495 for other provisions as to the issue of an execution against the property of a judgment-debtor in a case where an execution against his person has been issued. Under id., § 1829, "an execution may be issued in the name of an executor or administrator, in his representative capacity, upon a judgment recovered by any person who preceded him in the administration of the same estate in any case where it might have been issued in favor of the origi nal plaintiff, and without a substitution." Under id., §§ 1815, 1816, in case of a judgment against an executor or administrator in an action brought against him both in his representative capacity and also personally, “so much of the judgment as awards a sum of money against him personally may be separately docketed, and a separate execution may be issued thereupon as if the judgment contained no award against him in his representative capacity." Such execution against him personally may 64 By N. Y. Code Civ. Pro., § 1368 (last clause), if all the parties against whom a judgment for a sum of money, or directing payment of a sum of money, is rendered, are not judgment debtors, the execution thereon must show who is the judgment-debtor. 65 By id., § 1368 (first clause), “an execution issued upon a judgment for a sum of money, or directing the payment of a sum of money, must specify in the body thereof the sum recovered or directed to be paid, and the sum actually due when it is issued." 66 By id., § 1366 (second clause), an execution upon a judgment rendered in the Supreme Court must state the county in which the judgvent roll is filed. 67 be issued without leave; but otherwise of the execution against him in his representative character. Id., § 1825. By id., 1817, in an action against two or more executors or administrators representing the same decedent, where only part of them are served, or appear, judgment in favor of the plaintiff may be entered, and in a proper case execution may be issued against all the defendants as if all had appeared. By id., § 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." By id., § 3249, "where costs are awarded against an infant plaintiff, they may be collected by execution or otherwise from his guardian ed litem in like manner as if the latter was the plaintiff.” 67 See note on the county to which execution may issue (below). An execution is fatally defective which fails to state that the judg ment has been docketed in the county to which it is issued. Nauz r. Oakley, 60 Hun, 431, 15 N. Y. Supp. 1. 68 Under N. Y. Code Civ. Pro, § 1369 (first clause), an executio against property must, if the judg ment-roll is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that county." Under this section and section 1365, an execution issued out of the New York City Court before a transcript is filed in the office of the county clerk, is void. Dunham v. Reilly, 110 N. Y. 366. |