Hoxie v. Kennedy — 17 N.Y. St. Rep. 863

Majority

p. 863

Henrietta E. Hoxie v. Anna E. Kennedy and Sarah L. Downer, as Executrices of Terrence J. Kennedy.

(Supreme Court, Special Term,, Cayuga County,

Filed May 11, 1888.)

Headnote

Pkactice—Code Crv. Pbo., § 1823 construed —Executors and administrators—Judgment against.

The provision of Code Civ. Pro., § 1823, that “unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof,” was added to avoid the

p. 864

possibility of the applicability of the provision as it stood in the Revised Statutes (3 Rev. Stat., 449, § 13), to an equitable judgment affecting particular real property.

Motion to amend the judgment in this action, entered in Cayuga county January 9, 1888, for $6,094.15 damages, nunc pro tune, by adding to the same as follows: “And it is hereby further adjudged and directed that the real estate hereinafter described, of which 'Terrence J. Kennedy died seized, be sold and that the proceeds arising from said sale be applied towards the payment of this judgment; the aforesaid real estate is described as follows,” giving a description of several parcels of land.

The judgment was given upon an obligation made by said Terrence in his life-time, payable to plaintiff, and the action was tried at the Cayuga circuit January, 1888, and a verdict rendered for plaintiff for $6,094.15, on which the judgment was entered with $366.24 costs.

Turk & Barnum, for motion; Drummond & Nellis, opposed.

This motion is made under section 1823, Code Civil Procedure, which provides that “real property which belonged to a decedent is not bound, or in any way affected by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such judgment, unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof.”

The above section of the Code is copied from 2 R. S., 449, § 12, except that the above underscored or italicised words are added. The object of this addition, as said by Mr. Throop in his note to this section of the Code, was to avoid the possibility of the application of the provision as it stood in the Revised Statute, to an equitable judgment affecting particular real property. No other sensible construction can be given to the Code.

The motion must be denied with ten dollars costs.