Gutterman v. Auerbach

152 Misc. 640, 274 N.Y.S. 605, 1933 N.Y. Misc. LEXIS 1843

• Court: New York Supreme Court
• Decided: October 15, 1933
• Status: Published

Opinion

Miller, J.

The provisions of section 138 of the Municipal Court Code permitting a renewal of an execution “ before the expiration of the twenty days ” (italics the court’s) must be interpreted as referring to the only twenty-day period previously mentioned, viz., “ twenty days from the time of the receipt ” of the execution mentioned in subdivision 4 of section 135 of the Municipal Court Code. It follows that the execution was properly renewed in the instant case and that the sale under the execution was not invalid for the reasons set forth in the complaint. Moreover, it would seem that the date of issuance of an execution within the meaning of section 140 of the Municipal Court Code is the date of its delivery to the marshal. Thus section 135 of the Municipal Court Code provides that the execution “ must bear date of the day of its delivery.” It would also seem that the word “ delivery,” as used in section 135, means the date the execution is placed in the hands of the marshal. The construction thus placed upon the various sections of the Municipal Court Code dealing with executions renders each consistent with the other. Any other interpretation would result in irreconcilable inconsistencies between sections 135, 138 and 140 of the Municipal Court Code. Plaintiff’s motion for summary judgment is accordingly denied. Order signed.