Baumler v. Ackerman — 43 N.Y. St. Rep. 87

Majority

p. 87

Theodore Baumler, App’lt, v. Frederick P. Ackerman, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Supplementary proceedings—Limitation.

The right to institute supplementary proceedings accrues at the time of tile return of the first execution and is barred by the statute at the expiration of ten years, and the time cannot be extended by the issuing of a second execution.

S. Execution—Code Civ. Pro., § 1252.

Section 1252 of the Code has relation only to judgments rendered after the adoption of that section.

Appeal by the plaintiff from an order of the county judge' of Erie county, entered on the 9th day of June, 1891, vacating and setting aside an order in proceedings supplemental to execution in said action.

Jonathan L. S later, for app’lt; J2. G. Robbins, forresp’t.

Plaintiff recovered a judgment against the defendant in the court of a justice of the peace of Erie county, on the first day of November, 1876, for $107.45. On the same day a transcript of the judgment was filed and the judgment was ■docketed in the office of the clerk of Erie county. An execution was issued upon said judgment on the said first day of November to the sheriff of Erie county, where the defendant then resided. The execution was duly returned wholly unsátisfied. A second execution was issued upon the judgment on the 7th day of April, 1891, to the sheriff of Erie county, where the defendant still resided. ' The second execution was returned wholly unsatisfied, and the plaintiff thereupon instituted proceedings supplemental to execution before the judge of said county. Upon motion of the defendant, the order appealed from was granted by said county judge on the ground that more than ten years having elapsed after the return of the- first execution, the statute of limitations had nun against plaintiff’s right thereto.

Plaintiff’s contention is that his proceedings having been instituted. within ten years after the return of the second execution, they were regular under § 2435 of the Code of Civil Procedure.

That section provides that proceedings supplemental to execution may be instituted at any time within ten years after the

p. 88

return of an execution against property unsatisfied, etc. The decision of this appeal depends upon the question' which one of the executions comes under the provisions of said § 2435. ■

An execution was returned unsatisfied in the year 1876. The-right to institute these proceedings then accrued to the plaintiff. He permitted more than ten yearn to expire before instituting them.

We think his right to institute the proceedings had expired by limitation of time. It was decided in Conyngham v. Duffy, 125 N. Y. 200 ; 34 St. Rep. 736 , that by chapter 4 of the Code of Civil Procedure, a limitation for the instituting, of such proceedings is fixed at ten years from the accruing of the right thereto. That the limitation of time was fixed by §§ 388, 414 and 415 of the Code. The plaintiff’s judgment had ceased to be a lien upon the real property of the defendant when his proceedings were-instituted. The execution was ineffectual, therefore, to reach that, class of property. It was held in 9 Paige Ch, 596 , that in order to institute a creditor’s bill, there must have been issued and returned an execution against real estate. It is suggested by the-appellant that provision is made for such proceedings after the-lapse of ten years by § 1252 of the Code of Civil Procedure. That section has relation only to judgments rendered after the-adoption of that section into the Code. That section had not. become a part of the Code at the time of the docketing of plaintiff’s judgment

We think that the order appealed from was properly granted,, and that it should be affirmed, with ten dollars costs and the disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.

Cases cited

Conyngham v. Duffy 125 N. Y. 200 N.Y. 1891-01-13 p. 88