Catskill Bank v. Sanford

4 How. Pr. 101, 1849 N.Y. Misc. LEXIS 16

Opinion

Harris, Justice.

I was inclined to think, upon the argument, that the plaintiffs should have brought their scire facias under the power reserved in the last clause of the 428th section of the code. But it has been held by Mr. Justice Willard, upon a former motion in this cause, that the clause referred to relates only to proceedings by scire facias commenced before the amended code took effect, whether judgment had been rendered or not. I am satisfied, upon examination, that the decision was 'right. The 283d and 284th sections of the amended code are applicable, as well to judgments rendered before the code took effect, as to ■ judgments rendered in actions brought under the code. So that now, in all cases, execution may he issued immediately upon perfecting judgment and at any time within five years thereafter; and after five years no execution, in any case, can be issued without leave of the court upon motion. That this is so, will be obvious upon comparison of the sections mentioned, together with the 8th section, with the corresponding sections as they stood in the code before it was amended. The motion is, therefore, properly made; but as the defendant denies that anything is due upon the judgment, I shall direct a reference to Judge Tremain, to report the amount, if anything, remaining due; and that upon filing his report with the clerk of Greene, the plaintiffs he at-liberty to issue execution for the amount by him to be due.