
    Importers and Traders’ National Bank of New York, Resp’ts, v. Cebra Quackenbush et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 14, 1894.)
    
    Supplementary proceedings—When instituted.
    Supplementary proceedings may Be instituted within ten years after the return of the last execution issued on the judgment.
    Appeal from an order denying a motion to vacate an order for discovery.
    
      A. & W. Lansing (Abraham Lansing, of counsel), for app’lts; Dyett & Townsend (A. R. Dyett, of counsel), for resp’t.
   Putnam, J.

—The plaintiff obtained a judgment against defendants on January 22, 1879, which on that day was docketed in the county of Hew York, and on January 23, 1879, in the county of Rensselaer. An execution was issued thereon to the sheriff of the last mentioned county on January 24, 1879, and afterwards returned unsatisfied. On March 22,1894, said judgment was docketed in Albany county, and an execution was issued thereon to the sheriff of that county, and afterwards returned unsatisfied. Plaintiff obtained a second judgment against defendants in the county of Hew York on January 22, 1879, which on -the next day was docketed in Rensselaer county, and on February 20, 1879, in Albany county. On January 26, 1879, an execution -was issued on said judgment to the sheriff of Rensselaer county, and after-wards returned unsatisfied. On February 22, 1879, one was also issued to the sheriff of Albany county, and also returned unsatisfied. On March 22, 1894, another execution was issued on said judgment in the last named county, and also returned unsatisfied. Defendants, at the time of the obtaining of said judgments, were, and ever since have been, residents of Albany county. On March 27, 1894, plaintiff, upon affidavits showing the above facts, obtained from a judge of the supreme court on each of said judgments an order in supplementary proceedings requiring defendants to appear before a referee named in said orders to make discovery on oath cqncerning their property. The defendants thereupon moved to vacate such orders, and to set aside the executions issued upon the aforesaid judgments - in 1894, and the returns thereon, and for other relief. From the order denying said motion this appeal is taken, bringing up for our consideration the question of the validity of the said orders for the examination of said defendants in supplementary proceedings. The second judgment above specified having been docketed in Albany county on February 20, 1879, and an execution having been then issued and returned unsatisfied, an execution could issue thereon without an order of the court, under the provisions of § 1377 of the Code of Civil Procedure. Hence the execution issued by plaintiff on said judgment on March 22, 1894, although so issued about fifteen years after the rendition of the judgment, was regular, and authorized by the statute.

It is claimed by appellant that the order in supplementary proceedings for the examination of defendants was improperly granted, after the expiration of ten years from the "return of the first execution issued in 1879 on the judgment in question, under the provisions of § 2435 of the Code of Civil Procedure. The following is a copy of said section, viz: “ At any time within ten years after the return, wholly or partly unsatisfied, of an execution against property, issued upon a judgment, as prescribed in section two thousand four hundred and fifty-eight of this act, the judgment creditor, upon proof of the facts, by affidavit, or other competent written evidence, is entitled to an order requiring the judgment debter to attend and be examined concerning his property at a time and place specified in the order ”

Defendants urge that the right to institute supplementary proceedings accrued to plaintiff in 1879, on the return of the first execution, and, it having permitted over ten 3’ears to expire before instituting these proceedings, it was precluded from doing so under the provisions of the above quoted section. It is claimed, on the other hand, that under the provisions of said section, when an execution is regularly and properly issued on a judgment, be it the second or third execution, an order in supplementary proceedings can be granted within ten years thereafter. The statute says an order in supplementary proceedings may be granted within ten years after the return of an execution. With some hesitation we reach the conclusion that the language means within ten years after the return of any execution legally and properly issued upon a judgment. In the case under consideration the proceeding was instituted in 1894, shortly after, and within ten years of, the return of an execution unsatisfied. Section 2435, supra, does not prescribe that the proceedings shotild be taken within ten years after the return of the first execution, but from the return of an execution. This view of the statute in question was taken by the superior court of the city of New York in Levy v. Kirby, 51 N. Y. Supr. Ct. Rep. 69. See, also, 3 Rum. Pr. 411; 5 Fiero, Spec. Proc. 517, 518. In the case of Conyngham v. Duffy, 125 N. Y. 200; 34 St. Rep. 736, cited by defendants, it does not appear that a second execution had been issued, and the question here raised was not befóse the court in that case. In Baumler v. Ackerman, 63 Hun, 40; 43 St. Rep. 87, the. court was apparently influenced by the fact that the plaintiff’s judgment had ceased to be a lien upon the real property of defendant, and that the execution issued in that action was ineffectual to reach that class of property, and that, in order to institute supplementary proceedings, an execution should be issued and returned unsatisfied against real estate as in the case of a creditors’ bill; that the provisions of § 1252 of the Code of Civil Procedure did not apply in that case, as the judgment had been obtained in 1876. In this case, however, the judgment was obtained in 1879, and under the provisions of § 1252 the execution issued in 1894 could be collected out of any real or personal property of the defendants in the county of Albany. We conclude, therefore, that the supplementary proceedings may be instituted at any time within 10 year’s from the return of any execution properly issued on a judgment. Under _ the provisions of § 2436, which provides for the examination of a defendant after the issuing and before the return of an execution unsatisfied, it is quite clear that supplementary proceedings may be taken at any time while the judgment remains in force after the issuing of any execution, whether the first or second. There seems to be no satisfactory reason why the provisions of § 2435, prescribing the limitation of 10 years, should not be deemed to refer to the last execution legally issued.

The first above described judgment was not docketed in Albany county, where the judgment debtor resided, until March 22,1894, and the execution was not issued thereon until that time. Section 2435, supra, provides that the 10-year limitation applies where an execution against the property of the judgment debtor has been issued as prescribed in § 2458,—that is, in the county where the defendant resides or has a place of business. As no execution had been issued in the county of Albany, where defendant resides, until 1894, the limitation prescribed by § 2435 did not commence to run until that time, and the only question to be considered is whether the execution then issued'by plaintiff in Albany county was authorized by the statute. The judgment had been docketed in Rensselaer county in 1879, and an execution had in that year been issued and returned unsatisfied in that county. Hence in 1894, under the provisions of § 1377, supra, plaintiff could without any order of the court have issued a new execution in Rensselaer county. The defendants contend that under the provisions of said section a second execution after the expiration of five years from the rendition of the judgment could only go to the same county where the first was issued. Ho authority is cited to sustain this contention, and we think that the language of § 1377 does not admit of this construction. If an execution had been regularly issued in five years after the entry of the judgment in any county where the judgment was docketed, the statute provides that another execution may be issued thereon. There is no limitation in the said section. The right to issue an execution given by the statute is general, and should be deemed such a right as the plaintiff had to issue execution within five years from the rendition of the judgment, to any ceunty where the judgment was or may be docketed. As suggested above, in 1894, under the provisions of § 1252, supra, the execution issued- and returned unsatisfied may be deemed an exhaustion of plaintiff’s remedy as against the personal and real estate of the judgment debtor. It is clear that supplementary proceedings may be instituted after a judgment has ceased to be a lien on real estate. Under the provisions of § 2435, such proceedings may be instituted 10 years after the return of an execution unsatisfied. In a case where the first execution should be issued at the end of 5 years after the rendition of the judgment, supplementary proceedings could clearly be instituted within 10 years thereafter ; that is, within 14 or 15 years after the rendition of the judgment, and when it had ceased to be a lien upon real estate. We conclude, therefore, that the order should be affirmed, with costs and disbursements. As defendants desire to submit the question involved to the court of appeals, proceedings may be stayed until the decision of that court.

Mayham, P. J., concurs; Herrick, J., not acting.  