Guiterman v. Coutant — 128 A.D. 452

Majority

p. 452

Simon Guiterman, Respondent, v. Charles A. Coutant, Appellant, Impleaded with James Wright, Defendant.

First Department,

November 6, 1908.

Headnote

Judgment — issue of execution by representative after expiration of five years—Code Civil Procedure construed.

Sections 1375, 1376 and 1377 of the Code of Civil Procedure, governing the issue of execution before and after the expiration of five years from judgment, are to be read together as constituting a comprehensive scheme. Under those sections the rights of the original judgment creditor, his assignee and his personal representatives are the same.

Said section 1377, permitting the issue of execution without leave of court after the expiration of five years, if an execution was issued upon the judgment within five years after entry, does not merely grant that right to the original judgment creditor but to his personal representatives although not expressly so stated.

Appeal by the defendant, Charles A. Coutant, from an order of the Appellate Term- of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 5th day óf June, 1908, affirming an order of the City Court of the city of Hew York.

Walter S. MacGregor, for the appellant.

David J. Gladstone, for the respondent.

The defendant app'eals from a determination of the Supreme Court, Appellate Term, affirming an order of the City Court deny

p. 453

ing a motion to vacate an execution. The motion to vacate was made upon several grounds, only one of which is now insisted upon.

A judgment in favor of the plaintiff was entered on September 29, 1893, and he promptly issued an execution thereon which was returned unsatisfied on October 5, 1893.. No further action respecting the judgment appears to have been taken by the plaintiff, who died in February, 1906. On March 19, 1908, the plaintiff’s executors, through their attorney, issued to the sheriff of the county of New York the execution now sought to be set aside. It recites the recovery of the judgment and the issue of an execution thereon in 1893, and its return unsatisfied, and the death of the plaintiff and judgment creditor in February, 1906, and the issue of letters testamentary to his executors, and directs the sheriff to satisfy said judgment out of the property of the judgment debtor. It will be seen that nearly fifteen years elapsed between the entry of the judgment and the issue of execution thereon by the plaintiff’s executors, and the ground upon which alone the appellant relies is that section 1376 of the Code of Civil Procedure is the only section which authorizes the issue of an execution by the personal representatives of a deceaséd judgment creditor, and that by that section such personal representatives can issue an execution only within five years after the entry of the judgment.

The determination of the appeal, rests upon the construction of sections 1375, 1376 and 1377 of the Code of Civil Procedure. Section 1375 provides for the issue of an execution of course by the party recovering the judgment or his assignee at any time within five years after the entry of judgment. Prior to 1866, when section 283 of the Code of Procedure was amended,^[1] the personal representatives of a deceased judgment creditor could in no event issue an execution upon a judgment recovered by their decedent, being obliged to resort to an action upon the judgment. (Wheeler v. Dakin, 12 How. Pr. 537 .) The present section 1376 of the Code of Civil Procedure,^[2] however, provides, as was in substance pro

* See Laws of 1848, chap. 879, § 283 (238), as amd. by Laws of 1849, chap. 438, and Laws of .1866, chap. 824, § 10. Repealed by Laws of 1877, chap. 417, § 1, subd. 4, and Laws of 1880, chap. 245, § 1, subd. 4.— [Rep.

† † See Laws of 1876, chap. 448, § 1376, as amd. by Laws of 1877, chap. 416 ; Laws of 1885, chap. 515, and Laws of 1887, chap. 682.— [Rep.

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vided by the amendment in 1866 of section 283 of -the Code of ¡Procedure, that “ 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.” Section 1377 provides that an execution may. be. issued after the lapse of five.years from the entry of a final judgment, either where an order is made by the court granting' leave to issue the execution, or, without such■ an • order, when an. execution was. issued upon the judgment within five years after -the entry thereof, and. has been returned wholly or partly unsatisfied or unexecuted. If section 1376. must be construed as standing, alone, and without, reference to sections 1378 and. 1377, its- language would limit the personal, representatives of a deceased judgment creditor to the five years immediately following the entry of the judgment, and- would forbid the issue of an. execution by them, under any circumstances, after tlie expiration of said five years. We think,, however,, that, the three sections referred to should be read together as constituting a comprehensive-scheme governing the right to issue executions. So read it will be seen that so far as concerns' an execution issued within five-, years aft-ep the entry of a,.judgment, the original judgment creditor and bis- assignee, and his. personal representatives are all placed- upon an equality, each being entitled, according to the circumstances of the case, to issue, executions of course, without , the. necessity of applying for a permissive order, and' we consider that, the. limitation of five years- contained in section 1376 as the time within which the personal representatives of a deceased judgment creditor may issue execution was. inspired by no other intention than to, - place the same limitation, upon siiclx personal representatives, that' is placed, by section 1378 upon the. original judgment creditor and his assignee. Section 1377 is general, in its application. It does not say who may issue an execution after five years, and does not limit the- right to do so to the original judgment, debtor and- his assignee; All it says is that under given circumstances an execution can be issued, nóf does it. specify, when the right to issue is made dependent upon the issue

p. 455

and return of a former execution, who must have issued that former execution. It is clearly sufficient that a valid execution shall have been issued within five years after the entry of the judgment and returned unsatisfied, and such an execution will have been valid if issued by any person entitled at the time to issue it. The true construction to be given to the sections read together is that within five years after the entry of the judgment an execution may be issued of course by whoever is then the owner of the judgment and entitled to collect it, whether the original judgment creditor or his assignee, or liis personal representatives; that if such an execution has been issued within five years and returned unsatisfied a second execution may thereafter be issued, without the necessity of a permissive order by whoever may then be the owner of the judgment and entitled to collect it, whether the original judgment creditor or his assignee or his personal representatives. In our opinion this construction comports with the intention of .the Legislature in enacting the sections above referred to. It follows that the' determination of the Appellate Term must be affirmed, with costs.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Determination affirmed, with ten dollars costs and disbursements.

Cases cited

Wheeler v. Dakin 12 How. Pr. 537 N.Y. Sup. Ct. p. 453