
    Hoxie v. Kennedy et al.
    
    
      (Supreme Court, Special Term, Cayuga County.
    
    May 11, 1888.)
    Judgment—Against Executors—Amendment to Bind.Testator’s Estate.
    A motion to amend, nunc pro tune, a judgment against executors, so as to make it binding on the decedent’s estate by directing the sale thereof, cannot be sustained, under Code Civil Free. N. Y. § 1833, providing that a decedent’s realty is in no way affected by a judgment against his executor, and cannot be sold on execution issued thereon, unless the judgment is by its terms made a lien on specific property, or expressly directs the sale thereof.
    On motion for amendment of judgment.
    Motion by Henrietta E. Hoxie to amend, nunc pro tune, a judgment obtained against Anna E. Kennedy and Sarah L. Downer, executrix of the estate of Terrence J. Kennedy, deceased. Plaintiff desires to amend by adding: “ And it is hereby further adjudged and directed that the real estate hereinafter described, of .which Terrence Kennedy died seized, be sold, and that the proceeds arising from said sale be applied towards the payment of this judgment. The aforesaid real estate is described as follows;” giving description of several parcels of land.
    
      Turk & Barnum, for the motion. Drummond & Nellis, contra.
    
   Angle, J.

This motion is made under section 1823, Code Civil Eroe., which provides that “real property which belonged to a decedent is not bound,, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such judgment, unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof.” ■ The above section of the Code is copied from 2 Rev. St. 449, § 12, except that the above underscored or italicized words are added. The object of this addition, as said by Mr. Throop in his note to this section of the Code, was to avoid the possibility of the application of the provision, as it stood in the Revised Statutes, to an equitable judgment affecting particular real property. Ho other sensible construction can be given to the Code. The motion must be denied, with $10 costs.  