
    
      In re Holmes.
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    1. Execution against Estate of Deceased Debtor—Fraudulent Conveyance.
    The amendment of Code Civil Proc. N. Y. § 1380, requiring leave to be obtained to issue execution against property of a deceased judgment debtor, by Laws N. Y. 1890, c. 515, which provides that the section .shall not apply to real estate conveyed by the judgment debtor during his life-time, if such conveyance was made in fraud of his creditors, only applies where such conveyance has been declared fraudulent by judgment of a court of competent jurisdiction.
    2. Same—Lien.
    The provision of Code Civil Proc. N. Y. § 1380, that the lien of a judgment for 10 years, created under section 1251, by docketing it in the county clerk’s office, if existing at the death of the judgment debtor, “continues for 3 years and 6 months thereafter, notwithstanding the previous expiration of 10 years from the filing of the judgment roll, ” does not limit the lien created by section 1251 to 3 years and 6 months after the judgment debtor’s death.
    3. Review on Appeal—Objections not Made Below.
    An objection that an application for leave', to issue execution should have been upon affidavit, as prescribed by statute, instead of by petition, is not available on appeal, if not taken in the court below.
    Appeal from special term, New York county.
    Petition by John A. Holmes for leave to issue execution on a judgment recovered against James Boyle, deceased, in his life-time. Petitioner appeals from an order denying his application. Code Civil Proc. N. Y. § 1380, provides that, “where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree [granting leave, to issue execution] can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent; and for that purpose such a lien, existing at the decedent’s death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll.” Laws N. Y. 1890, c. 515, provides; “But this section shall not .apply to real estate whiph shall have been conveyed, or hereafter may be conveyed, by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud, of his creditors, or any of them; and any judgment creditor of said deceased, against whose judgment said, conveyance shall have been, or may hereafter be, declared fraudulent by the judgment or decree of any court of competent jurisdiction, may enforce his said judgment against such real property with like effect as if the judgment debtor was living, and it shall not be necessary to obtain the leave of any court or ofacer to issue such execution, ” etc. .
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Thomas J. Keigharn, for appellant. Thornton, Earle. & Eiendl, (David Thornton, of counsel,) for respondent.
   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 tó issue execution upon said judgment. This motion was.denied, upon the ground that, by the amendment of section 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 life-time 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 apnly 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 section 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 section 1380, and that it was in no way intended to limit the length of the lien provided by section 1251, but, on the contrary, to extend the same, under certain circumstances, beyond the period of 10 years, provided by the latter section.

There is another point taken, and that is that by section .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 $10 costs and disbursements, and the motion granted. All concur.  