Hyperlawhypertext legal database Bonden v. Prentiss 59 N.Y. St. Rep. 390

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Bonden v. Prentiss

59 N.Y. St. Rep. 390 Court N.Y. Super. Ct. English

Delivered by Sedgwick, C. J.

Contents

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p. 390
Ellen Bonden, App’lt, v. George Lewis Prentiss, as General Guardian, etc., Resp’t.
(New York Superior Court, General Term,
Filed April, 1894.)

Headnote

1. Execution—Void.
Ad execution issued on the day of, hut after, the debtor’s death is void. 3. Time—Computation.
The law takes notice of fractions of a day when there are conflicting rights.
Appeal by defendant from a judgment entered upon a decision of a judge at special term.
Benjamin Patterson and George Bell, for app’lt; William B. Wilder, for resp't.

The action was in the nature of a creditor’s bill, designed to reach real property that had been conveyed by the debtor to the defendant. The plaintiff, in order to succeed in the action, had to prove that an execution had been issued against the debtor’s property, and had been returned nnsatisfied. Adsit v. Butler, 87 N. Y. 585 . An execution had been issued and returned, but it was void. It had been levied on the day of the debtor’s death and about five hours after his death. Section 1180, Code Civ. Proc. forbids that being done. Wallace v. Swin ton, 64 N. Y. 188 .

The counsel for respondent invokes the principle by which in certain cases courts do not take notice of the fraction of a day. They do, however, take notice of them when there are conflicting rights, for the determination of which it is necessary for them to do so. Broome’s Legal Max. 134. First and last, the fact that the judgment debtor had died would be decisive that an execution could not issue.

For this reason the judgment should be reversed, and a new tria), ordered, with costs to,appellants to abide the event.

Freedman and McAdam, JJ., concur.

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