Majority
p. 877(33 Misc. Rep. 579.) LAMBERT v. METROPOLITAN ST. RY. CO. (Supreme Court, Special Term, New York County. January, 1901.)
Headnote
1. Execution—Issuance by Administratrix—Authority.Where an administratrix, who only had power to prosecute an action, issued an execution on the judgment obtained therein, the execution will be vacated.
2. Same—Curing Defect.,
Where an administratrix, who only had power to prosecute the action, issued an execution on a judgment obtained therein, without obtaining authority to collect judgment, the fact that she afterwards obtained such authority did not cure the illegal issuance of the execution.
Action by Mary Lambert, as administratrix, against the Metropolitan Street-Bailway Company. Judgment for plaintiff was affirmed. 67 K. Y. Supp. 1137. Application by defendant to vacate an execution issued on the judgment.
Execution vacated.
Jacob Marks, for plaintiff.
Henry A. Bobinson, for defendant.
This is an application to vacate an execution on the ground that at the time of the issuance thereof the plaintiff was an administratrix with but limited powers, having power to “prosecute,” but not power “to collect or compromise.” After this motion was made, but before its submission, plaintiff obtained from the surrogate’s court full power of collection. By placing the execution in the hands of the sheriff, plaintiff clearly exceeded her author
p. 878
ity conferred upon her by the surrogate’s court. She thereby, in effect, constituted the sheriff her agent in the collection of her judgment. Her action in subsequently obtaining the necessary power of collection did not remedy the defect existing when the execution was issued. Even if the issuance of the execution be not void, it was certainly irregular, and should be vacated.
' Execution vacated.