
    In the Matter of John A. Holmes.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 16, 1891.)
    
    1. Execution—Decedent’s estate—Fbaudulent conveyance—Code Civ. Pbo., § 1380.
    The amendment of 1890 to § 1380 of the Code does not apply in cases of alleged fraudulent conveyances by a decedent, unless such alleged conveyance has been declared fraudulent; but until it has been declared fraudulent leave of court is necessary in order that the judgment creditor may issue execution.
    2. Same—Judgment—Lien.
    Section 1380 was not intended to limit the length of the lien of a judgment provided by § 1251, but, on the contrary, to extend the same under certain circumstances beyond the period of ten years.
    3. Same—Appeal—Objection not taken below.
    While an objection that the proceeding was initiated by petition instead of by affidavit would have been fatal if taken in the court below, yet where it was not so taken, the failure to do so is a waiver of the irregularity.
    ' Appeal from order denying motion for leave to issue execution to enforce a judgment.
    
      Thomas J. Keighan, for app’lt; D. Thornton, for resp’t
   Van Brunt, P. J.

On the 26th of October, 1880, the petitioner and his brothers, William J. and Albert W. Holmes, obtained a judgment against one James Boyle, and the petitioner is the sole owner of the judgment which remains wholly unpaid and unsatisfied. The judgment debtor died in or about January, 1881, and this application is made for leave to issue execution upon said judgment. This motion was denied upon the ground that by the amendment cf § 1380 of the Code made .in 1890, it is provided that the section shall not apply to real estate which had been conveyed or might thereafter be conveyed by the deceased judgment debtor during his lifetime when such conveyance is made in fraud of his creditors or any of them( and from the order denying the motion this appeal is taken.

We think the learned judge erred in his application of the amendment referred to.

It is true that in the case at bar it is alleged that the judgment debtor had, in 1873, conveyed certain premises in fraud of his creditors, but the amendment did not apply to-such a case, unless the alleged conveyance had been declared fraudulent, and then judgment creditors might issue their execution as matters of course without application to the court. But until the fraudulent conveyance had been declared fraudulent, leave of the court was necessary in order that the judgment creditor might issue execution. And it is sought to issue the execution in the present case in order to lay the foundation, the necessary foundation, for the maintenance of a creditor’s action to set aside this alleged fraudulent conveyance if such conveyance exists. After such suit has been brought, and such conveyance has been declared fraudulent, then the amendment of § 1380 applies, and leave of the court is not necessary to issue an execution to reach the real estate as to which the fraudulent conveyance has been set aside.

It is urged that the judgment recovered against the deceased could not be a lien against this real estate because more than three years and six months have expired since the decedent’s death. We think this is an erroneous interpretation of the provisions of § 1380, and that it was in no way intended to limit the length of the lien provided by § 1251, but on the contrary to extend the same under certain circumstances beyond the period of ten years provided by the latter section.

There is another point taken, and that is that by § 1381 it is provided that the proof before the court shall be made by affidavit, whereas this proceeding is initiated by petition and there is no affidavit before the court. If this objection had been taken in the court below we think it would have been fatal to the proceeding; but as it does not appear to have been then taken, we think that the question of the irregularity of the initiation of the proceedings was waived.

Upon the whole case, therefore, we think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Brady and Daniels, JJ., concur.  