dollars and day70 of ; and whereas the sum of with interest,69 from the Note on the county to which execu tion may issue.- Under id., § 1365, an execution against property can be issued only to a county in the clerk's office of which the judgment is docketed;" and as by section 3347 (subd. 10), this requirement applies to any court of record, it was held in Disosway v. Hayward, 1 Dem. 175, that the decree of a surrogate directing the payment of money must first be docketed in the county clerk's office before an execution thereon can be issued by the surrogate or the clerk of his court to the sheriff of the surrogate's own county; and that an execution against property, issued without such docketing, is irregular, and must be set aside on motion. An execution cannot issue upon a New York City Court judgment, even in New York county, until transcript filed and judgment docketed. Dunham r. Reilly, 110 N. Y. 366. An execution issued to another county prior to the judgment being docketed in such county, is a nullity. Nauz r. Oakley, 60 Hun, 431, 15 N. Y. Supp. 1. As a matter of convenience, the sheriff or clerk of another county may be constituted an agent to fill a blank in an execution so as to accurately designate the time when the judgment was docketed in that county. See Chase v. Ostrom (Wis., Jan., 1881), 7 N. W. Rep. 299, where it was held that a county clerk to whom the transcript of a judgment rendered and docketed in another county has been sent by the party or attorney obtaining such judgment, together with an execution thereon duly signed and filled out, except the dates of filing such transcript and docketing such judgment by him, and with directions to file the transcript, docket the judgment, and then fill the blanks in the execution and deliver the same to the sheriff, may act as the clerk or agent of the party or attorney giving such directions in so doing; and if he does so act the execution will be deemed issued as of the date when it is delivered to the sheriff. cents, By a special provision, however, in the act for the organization of the City Court of Yonkers (a court of record), an execution from that court may issue directly to the sheriff of Westchester county without the filing of a transcript or docketing the judg ment in the office of the county clerk. See Prime v. Anderson, 29 Hun, 644, so holding and affirming an order denying motion to vacate supplementary proceedings based upon the return of such an execution unsatisfied. But an execution against the person may be issued to any county irrespective of the county where the judgment is docketed. N. Y. Code Civ. Pro., § 1365; and see, also, Form 2223, p. 2180, of this volume. By this section also (§ 1365) “executions upon the same judgment may be issued at the same time to two or more different counties after the judgment has been docketed in such counties. So, too, by N. Y. Code Civ. Pro., §§ 1364, 1365, and 347, an execution against property upon a judg ment of a County Court may issue to the sheriff of any county in the State, 69 See N. Y. Code Civ. Pro., § 1211, and next note (below). 70 By id., § 1368 (second clause), the execution may specify a day from which interest upon the sum due is to be computed, in which case the sheriff must collect interest accordingly until the sum is paid. See Todd v. Botchford, 86 N. Y. 517, holding that where an execution omits to give directions as to the collection of interest (under Code Civ. Pro., § 1303), it is satisfied when the amount of the judgment is collected, and that no second execution can be issued to collect the interest, and that it is error to deny a motion to set aside such a second execution. But the original execution may be amended by adding accrued interest, even after collection by sheriff and return of the execution. Kokomo Straw Board Co. v. Inman, 21 N. Y. Supp. 705. actually due thereon: Therefore, we command you, that you satisfy the said judgment ** out of the personal property of the said judgment-debtor [or, said judgment-debtors, or either of 72 after the judgment has been docketed in the clerk's office of that county; and by Id., §§ 338 and 339, an execution upon a judgment of the City Court of New York must be directed to and executed by the sheriff, and where the judgment is "for a sum exceeding twenty-five dollars, may be issued out of the court, tested in the name of the chief justice thereof, to the sheriff of any county wherein the judgment has been duly docketed." So, also, an execution upon a surrogate's decree, directing the payment of a sum of money, may issue to any county in the State after the decree has been docketed in the county clerk's office of that county. See Disosway r. Hayward, 1 Dem. 175 (above), citing N. Y. Code Civ. Pro., $$ 1365, 1369, 2553 and 2554, which latter section see cited below as to other requisites of an execution upon such a decree. But these provisions of § 1365 (abore), as to executions issuing to counties other than the one in which the judgment was rendered, apply only to an execution upon a judg ment of a court of record (Id., § 3347, subd. 10); and an execution upon a justice's judgment or a judgment of a Municipal Court of the city of New York cannot be issued in any county other than the one in which the judg. ment was rendered, until a transcript has been filed and the judgment docketed in the clerk's office of the county in which the judgment was rendered, and also a transcript of such docket has been obtained from such county clerk and filed in the county clerk's office of such other county; and then the execution (having the requisites specified in § 1367 of the Code) must be issued by the clerk of such other county out of the County Court of his county to the sheriff thereof. N. Y. Code Civ. Pro., $$ 3017-3022, 3043; N. Y. Municipal Court Act, §§ 260 71 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 269. See, also, Matter of Stumpp, 31 Misc. 41, 66 N. Y. Supp. 172. In Vedder c. Lansing, 44 Hun, 590, it was held (citing Code Civ. Pro., § 347, among others) that the county clerk of the county in which a justice's judgment has been rendered might issue the execution out of the County Court of his county to the sheriff of another county in the clerk's office of which the judgment had also been docketed, and that, too. even though the execution was properly issuable by the clerk of such other county under Code Civ. Pro.. §§ 3022 and 3043. But there was a dissenting opinion, and it is to be observed that in this case the execution was issued (after a period of five years) pursuant to leave of court, which (under id., § 3022), had to be obtained from the County Court of the county in which the judgment had been rendered. By N. Y. Code Civ. Pro., § 1367. "where an execution is issued out of a court other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court," the execution "must also specify the clerk with whom the transcript is filed, and the time of filing, and it must be made returnable to that clerk;" and "if the judgment was rendered in a justice's court, it must specify the jus tice's name; and it must omit the specification respecting the filing of the judgment roll. These provisions (of section 1367) apply to executions upon such judgments as those of justices' courts (and also of the justices' courts of Albany and Troy, and the Municipal Court of the city of Roch ester), where the execution is issued out of a County Court by the county clerk upon the filing of a transcript of such a judgment and the docketing thereof in his office under id., §§ 30173022, 3043, 3225 and 3226; and also recovered or directed to be paid, and the sum actually due when it is issued." 72 By N. Y. Code Civ. Pro., § 1369 (second clause), an execution against them] in your county; and if sufficient personal property cannot be found, then out of the real property in your county belonging to said judgment-debtor [or if there are several: said judgment-debtors, or either of them], at t† the time when the said judgment was so docketed in your county, or at any time. thereafter, in whose hands soever the same may be, ‡‡ and return this execution, within sixty days after its receipt by you,TM to executions issued out of the Supreme Court for the counties embraced within Greater New York, by the county clerk to the sheriff of that county, upon judgments of the Municipal Courts of said city, upon the filing of a transcript and docketing such a judgment in his office; and also to executions issued out of a property "must (except in a case where special provisie is otherwise made by law) substantially require the sheriff to satisfy the judgment out of the personal property of the judg ment-debtor, and if sufficient personal property cannot be found, out of the real property belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter." But such " special provision is otherwise made by law" by id., § 1277, in the case of an execution upon a judg ment by confession where a part only of the debt is due; and by section 1370 where an attachment has been levied; and by section 1371 in case of "an execution against real or personal property in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property, or trustee;" and by section 1383 in case of an execution against the property of one or more surviving judgment debtors; and by section 1433 in case of an execution upon a judgment recovered for a mortgage debt, or any part thereof; " and by section 1825 in case of an execution issued "upon a judgment for a sum of money against an executor or administrator in his representative capacity;" and by section 1883 in case of an execution upon a judgment recovered against the sheriff and any of his sureties in an action" upon his official bond; and by section 1921 in case of an execution upon a judgment rendered in an action against an unincorporated as 66 66 75 County Court by a county clerk in a county other than those embraced within Greater New York upon such a Municipal Court judgment upon the filing in his office of a transcript furnished by the county clerk of any such county upon the docketing of such a judgment in his office. See Municipal Court Act, §§ 260-269. sociation; and by section 1931 in case of an execution against certain public officers; and by sections 1934 and 1935 in case of an execution upon a judgment rendered against two or more defendants jointly indebted upon contract where the summons had been served upon one or more, but not upon all of the defendants; in all of which cases the particular sections of the Code thus referred to should be examined to determine what particular indorsements should be made upon, or directions given to the sheriff in, the execution proper for each case, although all these executions against property are in other respects substantially the same in form. Forms Nos. 2201-2211, post, for examples of such special indorsements. As to the necessary directions to be contained in an execution for the delivery of the possession of a chattel, or real property, or in an execution against the person, see N. Y. Code Civ. Pro., §§ 1372, 1373, and Forms 2190, 2192, and notes thereto, and Form 2223. See 73 It is not essential to name all. See note 35 to Form 2200, and Ruckman v. Decker, 28 N. J. Eq. 5. 74 See, in judgment-creditor's action, Garczynski v. Russell, 75 Hun, 497, 27 N. Y. Supp. 465. 75 Under N. Y. Code Civ. Pro., §§ 1366, 1367, every execution must require the sheriff to return it within sixty days after the receipt thereof to the clerk with whom the judgmentroll is filed, except when issued out [or, of the to the clerk of the county of court of - specifying the clerk with whom the judgment-roll was filed, unless the execution was issued out of a court other than that in which the judgment was rendered, in which case specify the clerk with whom the transcript from the lower court was filed. Witness, Hon. [here name any justice of the Supreme Court, if the execution is issued from that court, adding:] justice of our said court [or if from New York City Court, name the chief-justice thereofTM8], at of a court other than that in which the judgment was rendered (as in the case of the inferior courts specified in general note, p. 2148, above), in which case it must be made returnable to the clerk with whom the transcript is filed, and who (under N. Y. Code Civ. Pro., §§ 3017, 3043, 3225, etc.), issues the execution in question. Hence, in Schwartz et al. v. Lewis (N. Y. Daily Register, Oct. 6, 1886), where an execution against property was issued out of the Supreme Court in New York county to the sheriff of King's county, it was held that (under Code Civ. Pro., § 1366), the execution must be returned to the clerk of New York county, where the judgment-roll was filed; and that a return to the clerk of King's county was not a return to the proper clerk within the meaning of the Code, so as to support an execution against the person based upon such return. So 66 76 By N. Y. Code Civ. Pro., § 1364, an execution is the process of the court from which it is issued," and therefore (under id., §§ 22, 23, and 24), it must be in the name of the people of the State; and when "issued out of a court of record," must be tested in the name of a judge of the court on any day, and must, before the delivery thereof to the sheriff to be executed, be subscribed or indorsed with the name of the attorney for the party or person at whose instance it was issued, or with the signature of the county clerk when issued by him under id., §§ 3017, 3043 and 3225, etc.; but when thus subscribed or indorsed, the execution is "not void or voidable by reason of having no seal or a wrong seal there the day of , one held, setting aside a body execution on, or of any mistake or omission in the teste thereof, or in the name of the clerk, unless it was issued by special order of the court." See Douglas . Haberstro, 88 N. Y. 611. holding that the entire omission of a teste does not render the process void. but is a mere irregularity which may be amended or disregarded, and cannot be taken advantage of by a sheriff, either in his official character or as bail. See, also, Wright e. Nostrand, 94 id. 31, at pages 47 and 48, for a dictum to the same effect, together with authorities on amendable defects in executions; Burch v. Burch, 51 Misc. 232. 77 This is not the judge's signature. The attorney inserts the name. 78 Code Civ. Pro., § 338, subd. 1. thousand nine hundred and [Signatures and office address of], Attorney for [creditor]. [Or where execution must be issued by a By N. Y. Code Civ. Pro., § 2554, an execution against property to enforce a surrogate's decree directing the payment of money, "must be issued by the surrogate or the clerk of the Surrogate's Court under the seal of the court, and must be made returnable to the court," thus forming another exception to the general requirement of section 1366 (cited in note 1, on this page, above), that an execution must be made returnable to the clerk with whom the judgment roll is filed. Hence it was held in Bingham v. Burlingame, 33 Hun, 211, that an execution issued by an attorney upon a decree of the surrogate, and tested in the name of one of the justices of the Supreme Court, was void, because not issued by the surrogate or his clerk under the seal of his court, as required by section 2554 of the Code. But this section (section 2554) also provides that "in all other respects the provisions" of the Code " relating to an execution against the property of a judgment-debtor, issued upon a judgment of the Supreme Court and the proceedings to collect it, apply to an execution issued from the surrogate's court and the collection thereof, the decree being for that purpose regarded as a judgment (see People ex rel. Sackett r. Woodbury, 70 App. Div. 416, 75 N. Y. Supp. 236); except that" supplementary proceedings, "if founded upon such a decree, must be taken as if the decree was a judgment of the County Court, or, in the city of New York, of the Supreme Court." A decree for costs alone may be enforced only by execution, and not by contempt proceedings. Matter of Hirsch, 185 N. Y. 598; Matter of Humfreville, 154 id., 115. 79 No seal was necessary under the old Code. See N. Y. Code Civ. Pro., 66 county. And §§ 286 and 289 (first clause). doubtless no change in the law was intended in the new Code. See Throop's Note to N. Y. Code Civ. Pro., § 1364. But under sections 1366 and 24 of the Code of Civil Procedure a seal would seem to be proper, and especially so when the execution is issued by a county clerk; yet, when the execution is issued by the attorney, the practice now (as formerly under the old Code) is to omit the seal, and (under section 24) such omission does not render the execution void, or even voidable, unless it is "issued by special order of the court." Whether an order granting leave to issue an execution is such a "special order" within the meaning of that section does not seem to have been passed upon by the courts. It would be safe practice to add a seal in such a case. Compare the following cases, which construe substantially the same provision of law in the Judiciary Act of 1847 (L. 1847, chap. 280, § 57), and hold that a commission to take testimony out of the State must be sealed, because it is a process that does not issue of course, but upon a special order of the court upon motion. Whitney v. Wyncoop, 4 Abb. Pr. 370; Tracy r. Suydam, 30 Barb. 110, 115 (where the court said: "The Judiciary Act of 1847 only dispensed with the seal in respect to process which issues of course, without any application to the court "); Ford . Williams, 24 N. Y. 359; and see Mason & Hamlin Organ Co. v. Pugsley, 19 Hun, 282, holding a seal necessary to such a commission under the Code, because (per curiam) “the Code of Civil Procedure (§ 24) has effected no change of the law in this particular." 80 See preceding note 79. The execution should be signed and issued by the attorney of record for the judg |