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; and whereas the sum of dollars and with interest, 69 from the dayło of , 19
cents, , is now
Vote 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 with out 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 t. Reilly, 110 N. Y. 366.
An execution issued to another county prior to the judgment being docketed in such county, is a nullity. Xauz l'. Oakley, 60 Hun, 431, 15 N. Y. Supp. 1.
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 judgment 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., 8 1365; and see, also, Form 2223, p. 2180, of this volume.
By this section also ($ 1365) "exe. cutions 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., 88 1364, 1365, and 347, an execution against property upon a judgment of a County Court may issue to the sheriff of any county in the State,
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 1. 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 beon 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 a gent 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.
69 See Y. Y. Code Civ. Pro., & 1211, and next note (below).
70 By id., 8 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 r'. 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: 71 || Therefore, we command you, that you satisfy the said judgment ** out of the personal property of the said judgment-debtor#2 [or, said judgment-debtors, or either of after the judgment has been docketed 269. See, also, Matter of Stumpp, 31 in the clerk's office of that county; Misc. 41, 66 X. Y. Supp. 172. and by Id., $8 338 and 339, an execu. In Vedder . Lansing, 44 Hun, tion upon a judgment of the City 590, it was held (citing Code Cir, Court of New York must be directed Pro., $ 347, among others) that the to and executed by the sheriff, and county clerk of the county in which where the judgment is “for a sum a justice's judgment has been renexceeding twenty-five dollars, may be dered might issue the execution out is ued out of the court, tested in the of the County Court of his county to name of the chief justice thereof, to the sheriff of another county in the the sueriff of any county wherein the clerk's office of which the judgment judgment has been duly docketed." had also been docketed, and that, too,
So, also, an execution upon a sur- even though the execution was proy. rogate's decree, directing the payment erly issuable by the clerk of such of a sum of money, may issue to any other county under Code Civ. Pro.. county in the State after the decree 88 3022 and 3043. But there was a has been docketed in the county dissenting opinion, and it is to be clerk's office of that county. See observed that in this case the espeuDicosway r. Hayward, 1 Dem. 175 tion was issued (after a period of five labore), citing X. Y. Code (iv. Pro.. years) pursuant to leave of court, $$ 1365, 1369, 2553 and 2554, which which (under id., $ 30221, had to be latter section see cited below as to obtained from the County Court of other requisites of an execution upon the county in which the judgment such a decree.
had been rendered. But these provisions of $ 1365 By X, Y. Code Civ. Pro., 1367, (abore), as to executions issuing to “where an execution is issued out of counties other than the one in which a court other than that in which the the judgment was rendered, apply judgment was rendered, upon filing a only to an execution upon a judg. transcript of the judgment rendered ment of a court of record (Id., $ 3347, in the latter court," the execution subd. 10); and an execution upon a “must also specify the clerk with justice's judgment or a judgment of whom the transcript is filed, and the a Municipal Court of the city of New time of filing, and it must be made York cannot be issued in any county returnable to that clerk;" and "ii other than the one in which the judg. the judgment was rendered in a jusment was rendered, until a transcript tice's court, it must specify the jus has been filed and the judgment dock tice's name; and it must omit the eted in the clerk's office of the county specification respecting the filing of in which the judgment was rendered, the judgment roll. These provisions and also a transcript of such docket (of section 1367) apply to executicos has been obtained from such county upon such judgments as those oi jus. clerk and filed in the county clerk's tices' courts (and also of the justice oflice of such other county; and then courts of Albany and Troy, and the the execution (having the requisites Municipal Court of the city of Rohspecified in $ 1307 of the Code) must ester), where the execution is issueil be issued by the clerk of such other out of a County Court by the courts county out of the County Court of his clerk upon the filing of a transcript county to the sheriff thereof. N. Y. of such a judgment and the docketing Code Civ. Pro., 883017-3022, 3043; thereof in his office under id., $3017X. Y. Municipal Court Act, $$ 200- 3022, 3043, 3225 and 3226; and also
il By id. 8 1368 (first clause), “an recovered or directed to be paid, and execution issued upon a judgment for the sum actually due when it is a sum of money, or directing the issued." paynent of a sum of money, must 72 By N. Y. Code Civ. Pro. $ 1:3669 specify in the body thereof the sum (second clause), an erecution against
them"3] 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 ft the time when the said judgment was so docketed in your county, or at any time thereafter, 14 in whose hands soever the same may be, 11 and return this execution, within sixty days after its receipt by you, 15 to executions issued out of the Su County Court by a county clerk in a preme Court for the counties embraced county other than those embraced within Greater New York, by the within Greater New York upon such county clerk to the sheriff of that a Municipal Court judgment upon the county, upon judgments of the Mu- filing in his office of a transcript furnicipal Courts of said city, upon the nished by the county clerk of any filing of a transcript and docketing such county upon the docketing of such a judgment in his office; and such a judgment in his office. See also to executions issued out of a Municipal Court Act, $ $ 260–269. property “must (except in a case sociation; and by section 1931 in case where special provision is otherwise of an execution against certain public made by lau ) substantially require officers; and by sections 1934 and the sheriff to satisfy the judgment out 1935 in case of an execution upon a of the personal property of the judy. judgment rendered against two or ment-debtor, and if sufficient personal more defendants jointly indebted upon property cannot be found, out of the contract where the summons had been real property belonging to him, at served upon one or more, but not the time when the judgment was upon all of the defendants; in all of docketed in the clerk's office of the which cases the particular sections of county, or at any time thereafter." the Code thus referred to should be But such a special provision is other examined to determine what particuucise made by law” by id., & 1277, in lar indorsements should be made upon, the case of an execution upon a judg- or directions given to the sheriff in, ment by confession where a part only the execution proper for each case, of the debt is due; and by section although all these executions against 1370 where an attachment has been property are in other respects sublevied; and by section 1371 in case of stantially the same in form. See “ an execution against real or per- Forms Vos. 2201-2211, post, for ex. sonal property in the hands of an amples of such special indorsements. executor, administrator, heir, devisee, As to the necessary directions to be legatee, tenant of real property, or contained in an execution for the de• trustee; ” and by section 1383 in case livery of the possession of a chattel, of an execution against the property or real property, or in an execution of one or more surviving judgment against the person, see N. Y. Code debtors; and by section 1433 in case Civ. Pro., $8° 1372, 1373, and Forms of an execution upon a judgment re- 2190, 2192, and notes thereto, and covered for a “ mortgage debt, or any Form 2223, part thereof;" and by section 1825 in 73 It is not essential to name all. case of an execution issued “ upon a See note 35 to Form 2200, and Ruck. judgment for a sum of money against man r. Decker, 28 N. J. Eq. 5. an executor or administrator in his 74 See, in judgment-creditor's acrepresentative capacity;” and by sec- tion, Garczynski v. Russell, 75 Hun, tion 1883 in case of an execution upon 497, 27 N. Y. Supp. 465. a “ judgment recovered against the 7 5 Under N. Y. Code Civ. Pro., sheriff and any of his sureties in an $$ 1366, 1367, every execution must action” upon his official bond; and require the sheriff to return it within by section 1921 in case of an execu- sixty days after the receipt thereof to tion upon a judgment rendered in an the clerk with whom the judgmentaction against an unincorporated as roll is filed, except when issued out
to the clerk of the county of [or, of the court of
- specifying the clerk with whom the judgment-roll uis 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 uus filed.
Witness, 76 Hon. [here name any justice of the Supreme C'ourt, 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 thereof78], at the day of one
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, abore), in which case it must be made returnable to the clerk with whom the transcript is filed, and who (under X. Y. Code Civ. Pro., 88 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
held, setting aside a body execution based upon such a return, and also holding that the court had no power to permit the proper return to be made nunc pro tunc in such a case. See, also, N. Y. Code Cir. Pro. $ 1206 (last clause). And see id., § 102, etc., as to duties of sheriff in making returns, etc. In Douglas r. Haberstro, 88 N. Y. 611, it was held that where a body execution did not direct the time of its return, such an omission did not render the process void. but it was a mere irregularity which might be amended or disregarded, and could not be taken adrantage of by the sheriff. And see dictum to same effect as to any execution, in Wright 1. Nostrand, 94 Y. Y. 31, at p. 48. See, also, Witbeck r. Van Rensselaer, 64 id. 27, cited in note 11, p. 2157, as to return in case of an ere cution for delivery of possession of real property.
76 By M. Y. Code Civ. Pro., $ 1364, “an execution is the process of the court from which it is issued,” and therefore (under id., 88 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 sherifr to be executed, be subscribed or indorsed with the name of the attorney for the party or person at whose in stance it was issued, or with the signature of the county clerk when issued by him under id., $8 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.
on, or of any mistake or omission in the teste thereof, or in the name of the clerk, unless it was issued br special order of the court." See Douglas r. Haberstro, 88 X. 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 sheriti, either in his official character or as bail. See, also, Wright r. 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
[Signaturedu and office address of],
Attorney for (creditor]. [Or where execution must be issued by a county clerk — signature of],
County clerk of county.
[Or, surrogate, or clerk of his court.] By N. Y. Code Civ. Pro., § 2554, 88 286 and 289 (first clause). And an execution against property to en- doubtless no change in the law was force a surrogate's decree directing intended in the new Code. See the payment of money, “must be Throop's Note to N. Y. Code Civ. Pro., issued by the surrogate or the clerk $ 1364. But under sections 1366 and of the Surrogate's Court under the 24 of the Code of Civil Procedure a seal of the court, and must be made seal would seem to be proper, and returnable to the court," thus form- especially so when the execution is ing another exception to the general issued by a county clerk; yet, when requirement of section 1366 (cited in the execution is issued by the attornote 1, on this page, above), that an ney, the practice now (as formerly execution must be made returnable to under the old Code) is to omit the the clerk with whom the judgment seal, and (under section 24) such roll is filed.
omission does not render the execullence it was held in Bingham v. tion void, or even voidable, unless it Burlingame, 33 Hun, 211, that an is “ issued by special order of the execution issued by an attorney upon court.” Whether an order granting a decree of the surrogate, and tested leave to issue an execution is such a in the name of one of the justices of “special order” within the meaning the Supreme Court, was void, because of that section does not seem to have not issued by the surrogate or his been passed upon by the courts. It clerk under the seal of his court, as would be safe practice to add a seal required by section 2554 of the Code. in such a case. Compare the followBut this section (section 2554) also ing cases, which construe substanprovides that “in all other respects tially the same provision of law in the provisions” of the Code “ relating the Judiciary Act of 1847 (L. 1847, to an execution against the property chap. 280, $ 57), and hold that a comof a judgment-debtor, issued upon a mission to take testimony out of the judgment of the Supreme Court and State must be sealed, because it is a the proceedings to collect it, apply process that does not issue of course, to an execution issued from the sur. but upon a special order of the court rogate's court and the collection upon motion. Whitney v. Wyncoop, thereof, the decree being for that pur 4 Abb. Pr. 370; Tracy 1. Suydam, 30 pose regarded as a judgment (see Barb, 110, 115 (where the court said: People ex rel. Sackett 1. Woodbury, “The Judiciary Act of 1847 only dis70 App. Div. 416, 75 N. Y. Supp. pensed with the seal in respect to 236); except that” supplementary process which issues of course, withproceedings," if founded upon such a out any application to the court ”); decree, must be taken as if the decree Ford v. Williams, 24 N. Y. 359; and was a judgment of the County Court, see Mason & Hamlin Organ Co. v. or, in the city of New York, of the Pugsley, 19 Hun, 282, holding a seal Supreme Court.”
necessary to such a commission under A decree for costs alone may be the Code, because (per curiam) “the enforced only by execution, and not Code of Civil Procedure ($ 24) has by contempt proceedings. Matter of effected no change of the law in this Hirsch, 185 N. Y. 598; Matter of particular." Humfreville, 154 id., 115.
80 See preceding note 79. The exe. 79 No seal was necessary under the cution should be signed and issued old Code. See N. Y. Code Civ. Pro., by the attorney of record for the judge