Evans v. Hill

New York Supreme Court

Evans v. Hill

25 N.Y. Sup. Ct. 464

DecidedSeptember 15, 1879

StatusPublished

This text of 25 N.Y. Sup. Ct. 464 (Evans v. Hill) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. Hill, 25 N.Y. Sup. Ct. 464 (N.Y. Super. Ct. 1879).

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Opinion

Per Curiam:

Notwithstanding some prior decisions, we think that the cases of Allyn v. Thurston (53 N. Y., 622) and of Estes v. Wilcox (67 N. Y., 264) have settled the doctrine that the plaintiff, as a mere simple contract creditor, cannot maintain an action of this kind. The latter cause seems to overrule McCartney v. Bostwick (32 N. Y., 53) and also, by implication, Loomis v. Tifft (16 Barb., 541). See also Geery v. Geery, cited in Milton v. Miller (14 Sup. Ct. [N. Y.], 208).

Next as to the judgment. .The Old Code, section 282, by the amendment of 1851, declared that a judgment should be a lien for ten years from the time of docketing. Scott v. Howard (3 Barb., 319) was decided before this amendment was enacted. We must consider this section of the Old Code, thus amended, to be a substitute for section 5 (4) (2 R. S. [m. p.], 359). It is unnecessary to decide whether or not, after the lapse of ten years, and before the presumption of payment by the expiration of twenty years, a plaintiff can issue an execution and sell real estate.. (Old Code, sec. 289, sub. 1; secs. 283 and 284.) It is possible, that an execution might be levied, although the judgment were; no longer a lion. See remarks of Judge Bronson in Wood v. Colvin (5 Hill, 230). The New Code, section 1252, has provided a special mode of levying an execution upon land after the lien of the judgment has expired.

It is enough, however, for the present case that the lien acquired by docketing the judgment had expired ; and that the judgment creditor had not acquired (if he could acquire) any lien upon the [466]*466land by tbe levy of an execution thereon. He was, therefore, in no position to maintain this action.

The judgment should be affirmed, with costs.

Present- — - Learned, P. J., and Boardman, J. ; Follett, J., taking no part.

Judgment affirmed, with costs.

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Per Curiam:

Notwithstanding some prior decisions, we think that the cases of Allyn v. Thurston (53 N. Y., 622) and of Estes v. Wilcox (67 N. Y., 264) have settled the doctrine that the plaintiff, as a mere simple contract creditor, cannot maintain an action of this kind. The latter cause seems to overrule McCartney v. Bostwick (32 N. Y., 53) and also, by implication, Loomis v. Tifft (16 Barb., 541). See also Geery v. Geery, cited in Milton v. Miller (14 Sup. Ct. [N. Y.], 208).

Next as to the judgment. .The Old Code, section 282, by the amendment of 1851, declared that a judgment should be a lien for ten years from the time of docketing. Scott v. Howard (3 Barb., 319) was decided before this amendment was enacted. We must consider this section of the Old Code, thus amended, to be a substitute for section 5 (4) (2 R. S. [m. p.], 359). It is unnecessary to decide whether or not, after the lapse of ten years, and before the presumption of payment by the expiration of twenty years, a plaintiff can issue an execution and sell real estate.. (Old Code, sec. 289, sub. 1; secs. 283 and 284.) It is possible, that an execution might be levied, although the judgment were; no longer a lion. See remarks of Judge Bronson in Wood v. Colvin (5 Hill, 230). The New Code, section 1252, has provided a special mode of levying an execution upon land after the lien of the judgment has expired.

It is enough, however, for the present case that the lien acquired by docketing the judgment had expired ; and that the judgment creditor had not acquired (if he could acquire) any lien upon the [466]*466land by tbe levy of an execution thereon. He was, therefore, in no position to maintain this action.

The judgment should be affirmed, with costs.

Present- — - Learned, P. J., and Boardman, J. ; Follett, J., taking no part.

Judgment affirmed, with costs.

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25 N.Y. Sup. Ct. 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-hill-nysupct-1879.

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