In re the Estate of Morey — 10 N.Y. St. Rep. 693

Majority

p. 693

In the Estate of Harriet Morey, Deceased.

(Surrogates Court, New York County,

Filed September 27, 1887.)

Headnote

Executor—Execution against in representative capacity—Code Civ. Pro., § 1825—Appeal prom judgment does not operate as stay of PROCEEDINGS—CODE ClV. PRO., § 1351.

An appeal from, a judgment obtained against the executor in his representative capacity is no bar to a motion for leave to issue execution made under Code Civ. Pro., § 1825, no undertaking having been given on appeal. The matter is governed by the provisions of Code Civ. Pro., § 1351.

II. M. W Mtehead, for pl’ffs; John P. Peed, for ex’r.

On March 21, 1887, the petitioner herein recovered, in the supreme court, a judgment against the executor of this estate in the sum of $1,349.22. The petitioner now asks leave, under section 1825 of the Code of Civil Procedure, to issue an execution for the enforcement of such judgment, alleging in his application that the re

p. 694

spondent has funds of the estate applicable thereto in excess of all sums chargeable for expenses and in excess of ail claims of greater dignity than that of the petitioner and of all claims of the class to which that of the petitioner belongs.

The respondent does not deny this allegation as to sufficiency of the assets, b^t insists that leave to issue execution should be refused because of the fact that he has appealed from the judgment aforesaid to the general term' of the supreme court. He admits that he has given no undertaking on such appeal to effect a stay of proceedings, and that no stay of proceedings has been granted by the supreme court.

Section 1351 of the Code of Civil Procedure declares that only where it is specially prescribed by law (and there is no special presciption in cases like the case at bar), does an appeal to the general term operate of itself as a stay of the execution of the judgment appealed from, but that such stay must be effected, if at all, by filing a proper undertaking or by procuring a direction of the court into or from which the appeal is taken, or of a judge thereof.

I hold, therefore, that the mere fact of the pendency of this respondent’s appeal will not justify me in denying the petitioner’s application.

A contrary view was taken Curtis v. Stilwell ( 32 Barb., 354 ), cited by the executor’s counsel, but that decision was reversed by the court of appeals ( 25 How. Pr., 592 ).

Unless the respondent shall within ten days obtain a direction for a stay of proceedings the petitioner may issue execution upon his judgment.