Miller v. Kosch — 56 N.Y. St. Rep. 162

Majority

p. 162

Daniel Miller et al., App’lts, v. Nathan M. Kosch, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Execution—Dobmant.

A dormant execution in the hands of the sheriff, becomes active and valid, by a notice from the execution creditor, before a subsequent execution is received, to execute it.

2. Judgment—Confession.

Where the confession states that, in certain named years, the plaintiff advanced and paid to the defendant, at his request, a certain sum, which the defendant promised to pay and has not done so, in whole or in part, and that the sum is due and owing by the defendant, it is a sufficient statement.

Appeal from a judgment in favor of defendant

Snider & Hopper, for app’lts; Arthur'S. Tompkins, for resp't.

The sheriff of Rockland county collected, of one Kyne M. Hoffman $417 by virtue of two executions, one in favor of the plaintiff and one in favor of the defendant. The defendant’s execution was first put in the hands of the sheriff. The execution creditors each claimed the money and the sheriff was permitted to deposit the money in court in an action brought by the junior execution creditors and the defendant was made a party. The only question made by the pleadings, is whether the defendant’s, the prior execution, was dormant in the sheriff s hands, or was an execution upon a fraudulent judgment. Both judgments were by confession, and neither was impeached by the

p. 163

testimony on the trial. The question of dormancy rests upon the fact that, after the defendant’s execution was received by the sheriff, the defendant’s attorney requested the sheriff to make no levy and to take no steps to enforce the execution, until further instructions from him. The attorney directed tha sheriff to hold the first lien as against other executions, and when the plaintiff’s execution was received by him, he levied on both executions. The defendant’s attorney makes a full explanation for the request ; that efforts were being made to settle the claim; and shortly after the direction to the sheriff, and before the plaintiff’s judgment was obtained, he directed the sheriff to make a levy at once. The execution if dormant while the sheriff held it not to be executed, the notice, before the plaintiff’s execution was received to execute it, rendered it active and valid, and the levj under it was good. The execution was dormant only while he held it not to be executed. Smith v. Erwin, 77 N. Y., 466 .

In the case of Sage v. Woodin, 66 N. Y., 578 , the court found the execution to have been dormant under circumstances quite different from a request to withhold a levy pending an effort to settle.

The confession of the defendant's judgment is sufficient. It states the sum for which judgment is to be entered, It states that in 1886, 1887, 1888, 1889, 1890 and 1891, the plaintiff advanced and paid to the defendant, at his request, $1,399.17, which the defendant promised to pay and has not done so, in whole or in part, and that the sum is due and owing by the defendant in the confession to the plaintiff therein. The statement is that the lent money, without interest, amounts to $1,399.17, and that the borrower had repeatedly promised to pay the same. The confession is supported by the case of Freligh v. Brink, 22 N. Y., 418 ; and by Harrison v. Gibbons, 71 id., 58; and is not in conflict with Wood v. Mitchell, 117 N. Y., 439 .

The judgment should be affirmed, with costs.