Majority
p. 513Herder v. Collyer et al. (Common Pleas of New York City and County, Special Term. April, 1889.)
Headnote
Execution—Issuance—Limitation.Though an action on a justice’s judgment must be commenced within six years, such limitation does not affect the remedy by execution.
Motion for leave to issue execution.
On December 3, 1878, Peter Herder recovered a judgment against George B. Collyer and Dwight C. Crocker in a First judicial district court of New York city, and a transcript of that judgment was on the same day died in the office of the clerk of the city and county of New York. Nicholas Herder, the judgment plaintiff’s assignee, now moves for leave to issue an execution on the judgment against the property of defendants.
Jeroioman & Arrowsmith, (William Arrowsmith, of counsel,) for the motion. Wm. C. Reddy, opposed.
The court of appeals has recently decided, in Dieffenbach v. Roch, 20 N. E. Rep. 560 , that an action upon a justice’s judgment must be commenced within six years, but it was held in Waltermire v. Westover, 14 N. Y. 16 , that the limitation respecting the time within which an action might be brought did not affect the remedy by execution. The plaintiff should, therefore, have leave to issue execution against the defendant served, and against the other defendant upon publishing the proper notice once a week, for three weeks, in two newspapers, to be designated.
Cases cited
- Waltermire v. Westover 14 N. Y. 16 p. 513