Molnar v. Long Island Amusement Corp.

253 A.D. 895, 1 N.Y.S.2d 866, 1938 N.Y. App. Div. LEXIS 9162

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1938
• Status: Published

Opinion

Order denying motions for leave to issue execution reversed on the law, with ten dollars costs and disbursements, and motions granted. On these motions for leave to issue execution more than five years after the judgments were entered pursuant to sections 652 and 653 of the Civil Practice Act, it appears that the judgments were for sums of money only and executions had been previously withheld in the interest of the judgment debtor, which was in financial difficulties. There is no dispute that the judgments were wholly unpaid. Under the circumstances there was no discretion vested in the Special Term to deny the motion. (Belts v. Garr, 26 N. Y. 383.) There are eases which discuss the subject, some of which contain dicta indicating that discretion exists in the courts to deny the motion, but those cases generally involve a different state of facts. The executions sought were not on judgments for sums of money, or there were claims that the judgments had been paid or discharged. (See Bank of Genesee v. Spencer, 18 N. Y. 150, 154; Shuman v. Strauss, 52 id. 404; Van Rensselaer v. Wright, 56 Hun, 39; appeal dismissed, 121 N. Y. 626; People v. Carlin, 191 App. Div. 258; Matter of Schaie v. Zuchtman, 203 id. 612; Manger v. Golding, 214 id. 786; Lee v. Watkins, 3 Abb. Pr. 243; Matter of Armstrong, 35 ; Partridge v. Moynihan, 59 id. 234; Schiller v. Weinstein, 94 N. Y. Supp. 764 [not officially published].) Lazansky, P. J., Carswell, Davis, Johnston and Taylor, JJ., concur.