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Schiller v. Weinstein

94 N.Y.S. 764 Court N.Y. App. Term Decision date 1905-06-22 English

Delivered by MacLEAN, J.

Contents

Majority

p. 764
SCHILLER et al. v. WEINSTEIN et al.
(Supreme Court, Appellate Term.
June 22, 1905.)

Headnote

Execution—Issuance after Five Tears—Discretion of Court.
Under Code Civ. Proc. § 1377, providing that, after five years from the entry of a final judgment, execution can be issued thereon, where an order is made by the court granting leave to issue it, the granting of such an order is within the discretion of the court.
[Ed. Note.—For cases in point, see vol. 21, Cent. Dig. Execution, §§ 160, 161.]
Appeal from City Court of New York, Special Term.
Action by Moses L. Schiller and others against Isaac H. Weinstein and others. From an order granting leave to issue execution, defendants appeal.
Affirmed.
See 91 N. Y. Supp. 76 .
Argued before SCOTT, P. J„ and DUGRO and MacLEAN, JJ.
Shapiro & Shapiro, for appellants.
Reeves, Todd & Swain (Bernard H. Arnold, of counsel), for respondents

The judgment entered in the court below on May 28, 1895, in favor of the plaintiffs and against the defendants, remaining uncanceled, and the discharge of the defendants in bankruptcy not extending thereto (see opinion in case between same parties at the present term, 94 N. Y. Supp. 763 ), the order granting leave to issue execution pursuant to section 1377 of the Code of Civil Procedure was within the discretion of the court, and warrants no interference here.

Order affirmed, with costs and disbursements. All concur.