« ΠροηγούμενηΣυνέχεια »
of injunction, or other order, or by the operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, the court in which such judgment was recovered may, on special motion after notice to the person owning such judgment, or to his attorney, and to the sureties to such undertaking, on such terms as such court shall see fit, by order exempt from the lien of such judgment the whole of the real property upon which said judgment is a lien, or a specific portion thereof to be described in such order, and direct an entry to be made by the clerk on the docket of such judgment that the same is “secured on appeal,” except that in case only a specific portion of such property is exempted from such lien, such order shall direct an entry to be made on such docket that the same is “secured on appeal as per order of the court, dated" specifying the date of such order ; and thereupon such judgment shall cease during the pendency of such appeal to be a lien upon the property so exempted as against purchasers and mortgagees in good faith.
§ 283. Writs of execution for the enforcement of judgments as now used are modified in conformity to this title, and the party in whose favor judgment has been heretofore, or shall hereafter be given, and in case of his death, his personal representatives, duly appointed, may, at any time within five years after the entry of judgment, proceed to enforce the same, as prescribed by this title.
$ 284. After the lapse of five years from the entry of judgment, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or non-resident, or cannot be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given, unless it be established by the oath of the party, or other satisfactory proof that the judgment or some part thereof remains unsatisfied and due. But the leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part.
When judgment shall have been rendered in a court of justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the county court of the county where the judgment was rendered, or in the city and county of New York, to the court of common pleas of that city and county.
$ 285. Where a judgment requires the payment of money or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this title. Where it requires the performance of any other act, a certified copy of the judg ment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced If he refuse he may be punished by the court as for a contempt.
§ 286. There shall be three kinds of execution; one against the property of the judgment debtor ; another against his person; and the third for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same. They shall be deemed the process of the court, but they need not be sealed nor subscribed, except as prescribed in sec
§ 287. When the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where judgment is docketed. When it requires the delivery of real or personal property it must be issued to the sheriff of the county where the property, or some part thereof is situated. Executions may be issued at the same time to different counties. Real property adjudged to be sold must be sold in the county where it lies, by the sheriff of the county, or by a referee appointed by the court for that purpose, and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interest of the parties adjudged to be sold.
An execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate property, and not otherwise.
$ 288. If the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part. But no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179.
$ 289. The execution must be directed to the sheriff, or coroner, when the sheriff is a party or interested, subscribed by the party issuing it, or his attorney, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, and shall require the officer substantially as follows:
1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and if sufficient personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter;
2. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the officer to satisfy the judgment out of such property :
3. If it be against the person of the judgment debtor, it shall require the officer to arrest such debtor, and cummit him to the jail of the county until he shall pay the judgment, or be discharged according to law,
4. If it be for the delivery of the possession of real or personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs, damages, or rents and profits, recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judge ment was recovered, to be specified therein, if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of the real property belonging to him on the day when the judgment was docketed or at any time thereafter, and shall in that respect be deemed an execution against property!
$ 290. The execution shall be returnable within sixty days after its receipt by the officer to the clerk with whom the record of judgment is filed.
$ 291. Until otherwise provided by the legislature, the existing provisions of law not in conflict with this chapter, relating to executions, and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter.
$ 292. When an execution against property of the judgment debtor, or any one of several debtors in the same judgment issued to the sheriff of the county where he resides or has a place of business, or if he do not