Aultman & Taylor Co. v. Syme — 94 N.Y. Sup. Ct. 295

Majority

p. 295

The Aultman & Taylor Company, Respondent, v. Frederick J. Syme, Appellant.

Headnote

Execution, issued after fine years without leave of the court — supplementary proceedings not sustained thereby.

The judgment in an action was entered on November 14, 1889; on which an execution was issued on the 14th day of November, 1894, without leave of the court.

Held, that, as the execution was not issued within five years after the entry of the judgment, no jurisdiction was conferred thereby on the court, and that an order granted thereon, to examine the judgment debtor in proceedings supplementary to execution, should be vacated.

Appeal by the defendant, Frederick J. Syme, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1895, denying his motion to vacate and set aside the orders heretofore made in the above proceeding for the examinations of Frederick J. Syme and Mary Allen Syme, or that said examinations be suspended until the trial of the cause between the parties now pending in this court, in which the validity of the execution herein is directly raised.

E. F. Brown, for the appellant.

W. H. Blymyer, for the respondent.

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 question 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 execu

p. 296

tion can only be issued upon application to tbe court. The execution not having been issued until after the expiration of that period, and no application to the court having been made, no jurisdiction was conferred.

The order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.