Floyd v. Clark — 16 Daly (N.Y.) 528

Majority

p. 528

Elizabeth F. Floyd, Administratrix, etc., of David Van Horne Floyd, Deceased, Plaintiff, against Edwin Clark et al., Defendants.

[Special Term.]

(Decided February, 1880.)

Headnote

As the provision of the Code limiting the lien of a judgment on real estate to ten years (Code Civ. Pro. § 1251) makes no distinction between lands still owned by the judgment debtor and lands conveyed to others or incumbered by other liens, judgments over ten years old are not liens on surplus moneys arising on a foreclosure sale of land of the judgment debtor. The provision for levying execution on the debtor’s real estate after ten years (Code Civ. Pro. § 1252) does not extend the original lien of the judgment.

Upon distribution of surplus moneys arising on a foreclosure sale of land, a claim by an attorney to a certain sum as payable for his professional services out of a judgment which is a lien on the land, may properly be left to be enforced by action.

The costs to be allowed on the proceeding to determine the disposition of such surplus moneys are motion costs and disbursements only.

Motion to confirm report of referee as to distribution of surplus moneys arising on a sale of land upon foreclosure of a mortgage.

Judgments over ten years old are not liens on the surplus. They are not liens on the real estate of the judgment debtor. The Code (§ 1251) limits the lien on real estate to ten years, without making any distinction between lands still held by the debtor and lands conveyed to others or incumbered by other liens. Before the passage of this Code the judgment bound the real property of the debtor, where no other rights intervened, for the full twenty years, and such property might be sold upon execution at any timé during that period (2 Rev. Stat. 539 §§ 3 and 4; Nims v. Sabine, 44 How. Pr. 252 ; Beard v. Sinnott, 3 Jones & S. 51 ). The provision of the Revised Statutes cited has been repealed by chapter 417, Laws of 1877. Execution may now be levied

p. 529

on the debtor’s real estate after ten years under the provisions of section 1252 of the Code. But this special provision does not extend the original lien of the judgment, and the real estate is bound only from the time of recording and indexing the notice therein provided for. No such notice was recorded in this case, and the judgments obtained against Garrett D. Clark, on October 14th, 1861, May 4th, 1862, February 12th, 1864, and August 15th, 1865, were properly excluded by the referee.

The referee does not allow the claim of D. Levy for payment of $50 to him as attorney of Mrs. Corcoran, payable out of the amount of her judgment. I think it better to leave him to his action for whatever may be due him for services as ^attorney and counsel.

The costs to be allowed on this proceeding are motion costs and disbursements only: $20 costs each to Cooper and Roe and Thomas & Wilder.

Order accordingly.

Cases cited

Nims v. Sabine 44 How. Pr. 252 N.Y. Sup. Ct. p. 528