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Spaulding v. Lyon.

present rule, and the rule in force when the judgment was entered, required the person making the service of the summons and complaint to state the place and manner of service, and that he knew the person served to be the person mentioned and described in the summons as the defendant therein, and whether he left the same with the defendant (Code, Rule 18, present Rule 23). In this case the person who made the service does not make the affidavit, and the person who stated that the clerk who is alleged to have made the service told him thereof, does not state, and cannot state of his own knowledge, that the summons and complaint, or either of them, were left with the defendant, nor does he know of his own knowledge that any service was made. I think that there is no sufficient proof that the defendant was ever served with the summons and complaint, and, in the absence of an affidavit of the person alleged to have made such service, the affidavit of the defendant denying the same seems to be controlling. The motion to vacate the judgment must be granted with costs. Even the alleged admission by the defendant of the existence of the judgment, does not aid the plaintiff. If jurisdiction was never acquired by personal service of the summons, an admission by the defendant that there was a judgment against him, does not render a void judgment valid. Furthermore, the defendant expressly avers that he never heard of the action until he was served with the motion papers on November 9, thus contradicting the alleged admission urged by the plaintiff.

Motion granted.

Upon the motion for leave to issue execution, the following opinion was delivered:

LAWRENCE, J.-The motion for leave to issue execution herein must be denied. If the application stood alone, it might be said with much force, that this court

Wooster v. Wuterich.

had, in the case of Lee v. Watkins (3 Abb. Pr. 243) held that upon such an application the court can not go behind the judgment or inquire into its validity, nor can the judgment debtor be heard to show that no summons was ever served upon him. In that case the court held that the judgment might be declared a nullity, but that on such a motion the question could not be entertained. This motion was heard at the same time with a motion to vacate the judgment on the defendant's part, and as I have reached the conclusion that the court never obtained jurisdiction, and have vacated the judgment, this motion must be denied. Motion denied.

WOOSTER v. WUTERICH.

N. Y. Superior Ct.; Special Term, December, 1876.

LEAVE TO ISSUE EXECUTION.

The issuing of an execution, for the first time after five years from the entry of judgment, without application to the court, is not void, but only voidable in the discretion of the court.*

Motion by defendant to set aside judgment and execution.

Emma C. Wooster, the plaintiff, obtained a judg ment by default against Christian Wuterich, the defendant, on September 20, 1869, for $1,324.15. The judgment roll was duly filed in the office of the clerk of New York county on that day, but no execution

* The provisions of the new Code of Civil Procedure bearing on this question are substantially the same. §§ 1377, 722-724. See also Wade v. De Leyer, 40 Super. Ct. [J. & S.] 541.

Wooster v. Wuterich.

was issued by the attorney who obtained the judgment.

In October, 1876, the plaintiff applied to another attorney to collect the amount of the judgment, who issued an execution to the sheriff, supposing one had been before issued and returned nulla bona.

The defendant, immediately after the sheriff had made a demand upon him, moved to set aside the judgment and execution. He alleged in his affidavit in support of the motion, in substance, that he had never been served with a summons and complaint, or any other papers in the action; that he never had been informed or knew that there was a judgment against him; that no efforts had been made to collect the judgment until this execution was issued, although he had been in business in the same place in the city of New York, and perfectly responsible long before and ever since the time the judgment was alleged to have been obtained, and it could have been enforced at any time.

Lewis S. Goebel, for the motion.

Thomas B. Browning, opposed, -Cited, Bank of Genesee v. Spencer, 18 N. Y. 150; Bellinger v. Ford, 21 Barb. 311; Winebrener v. Johnson, 7 Abb. Pr. N. S. 202; Montrait v. Hutchins, 49 How. Pr. 105.

SPEIR, J.-In this case the plaintiff obtained a judgment against the defendant, but execution was not issued until after five years after the entry of the judgment. It appears that the attorney who issued the execution was under the impression that an execution had been issued and returned "no goods found." Motion is now made to set aside the judgment and execution. The motion to set aside the judgment must be denied on the merits. The issuing of the execution is not void, but only voidable in the discretion of the court. The Code (§§ 283 and 284) forbids the issuing of the execution after the lapse of five years, without an

Matter of Clark.

application to the court on notice and proof that the judgment, or a part of it, remained unsatisfied. Although it is generally the rule that where an act is done contrary to the provisions of a statute it is wholly void, unless it fall within the class of merely directory provisions; this rule of the common law as to the effect of the statutes was modified by section 174 of the Code, which declares among other things, that the court may, "whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, in like manner and on like terms permit an amendment of such proceedings, so as to make it conformable thereto." This case affords an illustration of the wisdom of this enactment, for without it the rights of the parties would be sacrificed to the requirements of form. The judgment warranted the process by execution, and it had not been paid or released. The motion must be denied.

There was no appeal.

MATTER OF CLARK.

N. Y. Supreme Ct., First Department; Chambers, December, 1876.

LEAVE TO ISSUE EXECUTION.

A surrogate's order granting leave to issue execution against executors is a sufficient adjudication of existence of assets, as against a receiver of the estate.*

Where, after an application had been made to the surrogate for leave

* As to the rule under the new Code of Civil Procedure, see §S 1380-1383.

Matter of Clark.

to issue execution against executors, and before the order had been granted, a receiver of the property of decedent was appointed in an action in the supreme court,-Held, that upon the surrogate granting leave, the supreme court would give the receiver leave to pay the amount due on the execution.

Motion for leave to issue execution against the goods, chattels, &c., of John H. McCrum, deceased.

In February, 1876, Samuel and Alexander Clark obtained a judgment against the executors of John H. McCrum. On March 15 a petition was filed and proceedings taken in the surrogate's court of New York county, for leave to issue an execution upon the judgment against the executors, under the statute, on the ground that there were assets in their hands applicable thereto. The order was granted on May 6 following, and an execution issued in pursuance of the order.

On March 28, 1876, an order was entered in the supreme court, in an action brought by one of the executors against the others, appointing Joseph J. O'Donohue receiver of the property of decedent.

George V. N. Baldwin, for plaintiff,-Moved that the receiver have leave to pay the sheriff the amount due on the execution out of moneys in his hands, or relinquish to the sheriff, and that the sheriff levy upon and sell property enough to satisfy it.

J. P. Lowery, opposed.

DAVIS, P. J.-While the surrogate's order remains in force it is a sufficient basis for issuing execution, and must be regarded as an adjudication that the assets are abundant to justify the making of the order. The execution is rendered unavailing by the appointment and possession of the receiver. The court can only carry the order of the surrogate into effect by allowing. the order now asked for. Motion granted.

VOL. II.-14

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