
    Stephen Van Rensselaer, App’lt, v. Egbert S. Wright, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed June 24, 1890.)
    
    1. Limitations—Statute does not apply to judgments awarding possession op real property.
    The fact that twenty years have elapsed since the recovery of a judgment of possession of land, during which plaintiff has never sought to enforce it by a writ of possession, does not raise the presumption that the defendant has at some time during that period paid the rent and costs and thus become entitled to keep the possession of the land.
    2. Same.
    Such a judgment is not one for the payment of a sum of money, as intended by Code Civ. Pro., § 376.
    3. Ejectment—Appeal.
    The granting of an application for leave to issue execution or a writ of possession in such case is discretionary and not appealable.
    Appeal from judgment of the supreme court, general term, third department, reversing order granting leave to issue writ of possession.
    
      Qeorge L. Stedman, for app’lt; William Youmans, for resp’t.
    
      
       See 29 N. Y. State Rep., 468.
    
   GrRAY, J.

The application for leave to issue an execution, or a writ of possession, upon the judgment in this action was denied at the general term, upon the ground, according to the opinion, that a legal presumption of its satisfaction has attached. The action was for the recovery of the possession of land, for breach of the condition as to payment of "rent contained in a manorial lease in perpetuity, and more than twenty years ago the plaintiff was awarded judgment of possession. This judgment was never sought to be enforced by a writ of possession and the theory of the general term, in holding that' the present application by plaintiff’s assignee of the judgment is barred, is that the doctrine of limitations applies, and that from non-action by the plaintiff the presumption arises that the defendant has, at some time during these twenty years, paid the rent and costs and thus became entitled to keep the possession of the, land. It was also deemed at the general term that this judgment" practically amounted to one for the payment of a sum of money. If this latter view is correct, the Code provision as to the presumption of payment might be applicable. But I am unable to agree either in this view or in that which sees in the lapse of twenty years a necessary legal bar to the enforcement of a judgment awarding the possession of land. Section 376 of the Code of Civil Procedure, by its language, is limited to final judgments, or decrees, for the payment of moneys, and it is only with respect to them that presumptions of payment may obtain and control from the lapse of twenty years. The judgment in an action for the recovery of the possession of land cannot properly or in a legal sense be said to be a judgment for or directing the payment of moneys. It is a judgment for the property itself, and if the present judgment fixed the amount of rent in arrear (a fact of which, in the absence of the judgment-roll, we are not informed), that would only be an incidental feature, bearing upon the defendant’s privilege of redemption and upon the amount of moneys' collectible through the same writ, as due the plaintiff. The effect of the judgment was to terminate the lease, ■and the virtue of the writ is in placing the holder of the judgment in possession of the property. But before and since the ■ enactment of the Code of Civil Procedure the defendant in ejectment was allowed up to a certain period of time, after dispossession through an execution of the judgment, to redeem upon payment 6f the rent in arrear and the costs adjudged. But the legal effect of the judgment being to destroy the defendant’s tenure of the property and to award the property to the plaintiff, what legal presumption can arise by the mere lapse of time thereafter and from non-action by the plaintiff, as to the condition of the judgment? It could only be satisfied, in one sense, by the restoration of the land; but its force and effect could be averted by the defendant’s paying up his arrears of rent and thus keeping the possession of the property. That result, however, is not the satisfaction of the judgment; it is the intervention of the statute in behalf of the tenant of the land and which prevents the judgment from being carried into effect. So it seems to me that we cannot hold, directly or by analogy, that a presumption of satisfaction attaches, after the expiration of twenty years, to a judgment in such an action as this. The statutory provision in creating the legal presumption of payment as to judgments for moneys, after an expiration of twenty years, was but the incorporation in our statute law by our legislature of a rule which had long existed at common law. It was first applied by Sir Matthew Hale to cases of debts due by specialty, but it became generally recognized and was followed by courts of law and equity and was applied in cases of money judgments and mortgages. I do not think that there is any authority for the extension of the application of this rule of presumption to judgments awarding the possession of property.

If the argument is that, on principle, the courts should hold them to be included within the rule which raises the bar of presumption in the cases. of money judgments, the answer seems to me to be that it is not a question of principle at all, but one of established rules. The considerations advanced in support of the argument on principle, are those which may be addressed to the court, when the exercise of its power is invoked to enforce the judgment by its writ. By § 1377 of the Code, after the lapse of five years from the entry of a final judgment, an execution can only issue in one of two cases; first, where within the five years an execution has been issued and returned wholly or partly unsatisfied ; and secondly, where an order is made giving leave. By this latter provision of the section, a discretion seems to have been vested in the court, with respect to issuing an execution upon its judgment, which is so general in its nature as, in my opinion, to cover such cases as the present one. This discretion, vested in the court by § 1377, is controlled in its exercise by the section following. Its provisions require a notice of the application to be given to the adverse party, thus affording an opportunity for a hearing upon the question of whether it is a case for the enforcement of the judgment by writ. It is also to be observed that § 1378 plainly contemplates an application for leave to issue an execution in a case other than that of a judgment for a sum of money. The conclusion seems to be clear that the granting of an application for leave to issue an execution or a writ of possession, in such a case as this, is one resting solely in the discretion of the court. If a proper case is made out the court has the power to grant it, and doubtless would do so.

While we cannot agree with the opinion of the general term ■that the application is barred by lapse of twenty years, its order is silent as to the question of power, and we must hold it to have been discretionary, and, therefore, not reviewable by us.

The appeal should be dismissed, with costs.

All concur, except Andrews and O’Brien, JJ., absent  