Schwarz v. McKenzie — 58 N.Y. St. Rep. 358

Majority

p. 358

Moses Schwarz, Resp’t, v. William McKenzie, Defendant, George G. Musson, Purchaser, App’lt.

(Brooklyn City Court, General Term,

Filed March, 1894.)

Headnote

Execution—Decedent—Leave.

Leave to issue execution against the property of a decedent, sold after his death, will not be granted, where his executrix received, upon such sale, a sum largely exceeding the amount of the judgment, and no effort to collect it from her has been made.

Appeal from an order granting leave to issue execution against the property of a deceased judgment debtor.

Herman G. Loew, for resp’t; Edwin Kempton, for app’lt.

Plaintiff recovered, on April 12,1882, a judgment for $135.01 against defendant, who died May 21, 1890, seized of an undivided one-third share in No. 285 Livingston street, leaving the same by will to his sister, to whom letters testamentary were duly granted. A sale of the premises was made July 13, 1892, in pursuance of a judgment in partition, and the appellant, Musson, became the purchaser, relying upon the fact that the judgment had run more than ten years, and on the report of the referee that the judgment debtor and this owner of the interest were not the same person, which was confirmed by the judgment of partition. The executrix of William McKenzie received from the referee $1,000 for his share of the premises. The respondent (judgment creditor) contends that, not being a party to the partition action, his lien was extended over the ten years by § 1380 of the Code of Civil Procedure, and that the court had power to grant the order appealed from, giving him leave to issue execution against the share of William McKenzie in the premises, notwithstanding the sale.

The appellant (purchaser) insists that he, being a purchaser in good faith, was expressly exempted from such extension of the lien by § 1255 of the Code of Civil Procedure.

p. 359

We do not feel called upon to decide the question of the courts’ power, for, assuming it to exist, the appellant has shown no necessity for its exercise, nor equities for the same. The executrix, who is liable for the debts of William McKenzie, has received $1,000 for this share paid by the purchaser, and no effort to collect appellant’s claim from the executrix has been shown, not even a demand therefor.

We think the order ought to be reversed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements.

Clement, Ch. J., concurs.