Aultman & Taylor Co. v. Syme — 34 N.Y.S. 379

Majority

p. 379

(87 Hun, 295.)

AULTMAN & TAYLOR CO. v. SYME.

(Supreme Court, General Term, First Department.

June 14, 1895.)

Headnote

Execution—Time oe Issuance.

The time within which an execution may be issued commences to run on the day on which the judgment is entered; and therefore, where judgment was entered November 14, 1889, and execution issued November 14, 1894, it was not issued within five years after entry of the judgment.

Appeal from special term, New York county.

Action by the Aultman & Taylor Company against Frederick J. Syme. From an order denying a motion to vacate an order for the examination of defendant in supplementary proceedings, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

E. F. Brown, for appellant.

W. H. Blymyer, for respondent.

The judgment in this action was entered on the 14th of November, 1889. The execution which formed the foundation of this order was issued on the 14th day of November, 1894, and was therefore not issued within five years after the entry of the judgment, the five years having expired upon the 13th of November, 1894. The court, in considering the question of time, takes no ■notice of the fractions of a day. The time commenced to run on the day upon which the judgment was entered, and expired upon the termination of five years thereafter, which was the 13th of November, 1894. The authority to issue an execution only existed during those five years. After the expiration of that time, execution can only be issued upon application to the court The execution not having been issued until after the expiration of that period, and no application to the court having been made, no jurisdiction was conferred.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.