Todd v. . Botchford

86 N.Y. 517, 1881 N.Y. LEXIS 249

Opinion

Danforth, J.

The appellant argues that as the first execution commanded the sheriff to collect the judgment, it was his duty to compute interest upon it and enforce payment of the aggregate. If this is so, there was on his part a neglect of duty, to be corrected by motion to vacate his return, and have the entry upon the docket modified; or if necessary, by suit, for compensation. But we think the plaintiff is in error. At common law a judgment bore no interest. By the Eevised Statutes (vol. 2, p. 364, § 9), enacted in 1830, it was made lawful to direct, upon execution issued for the enforcement of a judgment rendered upon any contract, the collection of interest on the amount recovered. By Laws of 1844 (Chap. 324), it- was declared that every judgment should bear interest from the time of perfecting the same, but it was still necessary, if its collection was desired, to indorse directions upon the execution to that effect. By the terms of the law in force when, the plaintiff’s execution issued (Code of Civil Procedure, § 1368), an execution “ must specify, in the body thereof, the sum recovered or directed to be paid, and the sum actually due when it is issued,” and “ may specify a day from which interest upon the sum due is to be computed.” “ In which case,” the statute says, “ the sheriff must collect interest accordingly, until the sum is paid.” The execution issued by the plaintiff contained no such direction, and was properly satisfied when the amount of the judgment was collected according to its mandate. The plaintiff chose not to assert the right given to him, and cannot be permitted to trouble the defendant with a second execution. This was settled in the case of The People, ex rel. Ransom, v. Onondaga C. P. (3 Wend. 331), and the rule has not since been questioned.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed