In re Matteson. procured from a surrogate's court of this state which has duly granted letters testamentary, or letters of administration, upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section 1251 of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent; and for that purpose such a lien, existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll. But where the decedent died intestate, and letters of administration upon his estate have not been granted within three years after his death, by the surrogate's court of the county in which the decedent resided at the time of his death, or if the decedent resided out of th state at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate's court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree, where it appears that the decedent did not leave any personal property within the state upon which to administer. In such case the lien of the judgment existing at the decedent's death continues for three years and six months as aforesaid. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed, by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors, or any of them, and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of any court of competent jurisdiction, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living, and it shall not be In re Matteson. necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced, as aforesaid, and shall indorse on said execution the words, issued under section thirteen hundred and eighty of the Code of Civil Procedure,' whereupon said sheriff shall enforce said execution as therein directed, against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution, and the redemption thereof, shall apply thereto." By the first part of the third sentence of above section the order of the county court or decree of surrogate cannot be made nor execution issued until the expiration of three years after letters testamentary or of administration have been granted; and immediately following, in the same sentence, are these words: "And for that purpose such a lien existing at the decedent's death continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll." These provisions were undoubtedly made to enable the administrator or executor to make an inventory of the personal property, and ascertain whether the judgment, or any part thereof, could be paid or satisfied from the personal property. And it is quite clear that the words, "existing at the decedent's death," are here used only as qualifying words as to the time such lien must commence, and not otherwise in any way affecting the limitation of the time from three years and six months from granting of letters. This view is confirmed by the remaining sentences of said section 1380, providing for cases in which, under the circumstances therein named, leave to issue execu In re Matteson. tion may be granted, where letters have been issued, and limiting the last sentence of such section as follows: "In such case the lien of the judgment existing at the decedent's death continues for three years and six months," as aforesaid. There is no time limited by the Code or practice in which letters of administration may be issued after the decedent's death. If not issued in three years after such death, they may be issued thereafter upon the petition of any creditor, next of kin, or other person interested in the estate contingently or ortherwise. Bearing in mind that no order for leave to issue execution can be made under section 1380 in less than three years after letters testamentary or of administration have been granted, and such leave is obtained by section 1381 of Code, which expressly provides that notice of application for leave to issue execution "must be given to the executor or administrator," suppose the next of kin or creditors neglect to obtain such letters, as in this case, until about the time or after the three years and six months have expired from the death of decedent, instead of same time after letters have issued, the latter time dating from issuing of letters is wisely provided for in the construction of the word "thereafter," as claimed by the petitioner, so as to give reasonable time to examine the condition of the personal estate, and make an inventory absolutely necessary to ascertain the value of the personal property that may be applied in payment of the judgment, or some part thereof, whereas in the former case no such remedy would exist. If the meaning of the word " thereafter" is as claimed by the mortgagee as used in section 1380, why should the words " as aforesaid " have been used at the close of the last sentence of said section in place of the word "thereafter," so the sentence would read: "In such case the lien of the judgment existing at the decedent's death continued three years and six months thereafter," instead of "as aforesaid," and thereby giving such sen Patten v. United Life and Accident Insurance Co. tence a meaning as claimed by the mortgagee. The question is new, and I have been unable to find any authority bearing upon it, except the decision of the learned county judge of Chautauqua county, granting an order a few days since in this case upon the same facts as herein, for leave to issue an execution to collect the judgment in question by sale of said land. I do not think that the case of Platt v. Platt, 15 N. Y. St. Rep. 217, cited by the counsel for the mortgagee, is in point, as the precise question here involved was not in it. The following authorities were cited by counsel as bearing upon the questions raised: Townsend v. Tolhurst, 10 N. Y. Supp. 378, and cases therein cited; Code, §§ 1251, 1377, 1379, 1381, 3017; In re Holmes, 13 N. Y. Supp. 100; Waltermire v. Westover, 14 N. Y. 16. I direct decree for leave to issue execution to sell the land, as prayed for in the petition. PATTEN, RESPONDENT, v. UNITED LIFE AND ACCIDENT INSURANCE CO., APPELLANT. COURT OF APPEALS; JUNE, 1892. $ 834. Privileged communication—what communication to physician is not privileged. A physician who has attended a decedent may properly testify to the number of times, dates, and hours when he professionally attended the decedent, and as to whether or not the decedent was then sick. Such testimony is not testimony which he has ac Patten v. United Life and Accident Insurance Co. quired while attending decedent as a patient in a professional capacity. Where answers to interrogatories contained in a deposition taken under a commission were excluded on the ground that the questions related to information obtained by the witness while he was attending a decedent as such decedent's physician, need not be inserted in a case to entitle the party proposing to read such deposition to a review of the exceptions taken to the exclusion of such testimony. In an action upon a policy of life insurance where the defence is that the decedent having failed to pay an assessment had in order to secure his reinstatement falsely certified that he was in good health, the defendant may show that the decedent was not in good health at the time he signed the certificate, and the testimony of a physician to the effect that he was professionally attending the decedent at that time, and that the decedent was then sick, is material and competent. In such a case the fact that a daughter of the decedent examined as a witness by the defendant insurance company, testified that at and prior to the date of the certificate her father was in good health, does not bind the defendant, she being a hostile witness, largely interested in the success of the plaintiff, who was her mother. (Decided June 7, 1892.) Appeal by the defendant from a judgment of the general term of the supreme court in the first department affirming a judgment entered in favor of the plaintiff upon a verdict directed for her. The facts are stated in the opinion. Harry Wilbur, for defendant, appellant. J. A. Shoudy, for plaintiff, respondent. EARL, C.J.-This action was brought on a policy of insurance upon the life of James Patten. The defendant is an assessment insurance company, and the policy by its terms was made payable to the plaintiff. It was |