Aultman & Taylor Co. v. Syme — 68 N.Y. St. Rep. 311

Majority

p. 311

Aultman and Taylor Company, Resp’t, v. Frederick J. Syme, App’lt.

(Supreme Court, General Term, First Department,

Filed June 14, 1895.)

Headnote

.Execution — When issued.

The time, within which an execution may be issued, commences to run on the day upon which the judgment is entered, and expires upon the termination of five years thereafter.

Appeal from an order, denying a motion to vacate an order for the examination of defendant in supplementary proceedings.

E. F. Brown, for app’lt; W. H. Blymyer, for resp’t.

— The judgment in this action was entered on the 14th of November, 1889¡ The execution which formed the foundation of this order was issued on the 14th day of November, 1894, and was, therefore, not issued within five years after the entry of the judgment, the five years having expired upon the 13th of November, 1894. The court, in considering the questions of time, takes no notice of the fractions of a day. The time commenced to run on the day upon .which the judgment was entered, and expired upon the termination of five years thereafter, which was the 13th of November, 1894. The authority to issue an execution only existed during those five years. After the expiration of that time execution can only be issued upon application to the court. The execution not having been issued until

p. 312

after the expiration of that period, and no application to the court having been made, no jurisdiction was conferred.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.