
    In the Matter of the Application of John A. Holmes for leave to issue execution, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    1. Judgment—Leave to issue execution after death of defendant— Code Civ. Pro., § 1380.
    Section 1380 of the Code, as amended in 1890, was evidently designed to meet and provide for all cases of judgments against deceased persons leaving real estate claimed by the creditor to be subject to sale under execution to enforce the payment of his judgment, and the fact that the real estate may have been included in a conveyance intended to defraud the creditor does not exclude the case from the application of the section.
    3. Same.
    It is only where the conveyance has been declared fraudulent by the judgment or decree of a competent court that the case has been excepted from the operation and effect of the section, so that the execution may be issued without leave.
    Appeal from a decree of the surrogate of the county of New York, -granting leave to the petitioner, John A. Holmes, to issue execution upon a judgment owned by him, which was recovered by himself and two other persons against James Boyle, who departed this life on or about the 26th day of January, 1881.
    
      David Thornton, for app’lt; Thomas J. Keighorn, for resp’t.
   Daniels, J.

Upon a petition and answer, in all material respects similar to those upon which the decree of the surrogate has been made, an application was made to the special term of this court for leave to issue an execution on the same judgment. The application was then denied, and on appeal to the general term the order was reversed and the case was held to be within the provisions of the Code of Civil Procedure prescribing the cases in which an execution might be allowed to be issued to enforce a judgment against the real estate of the deceased defendant. Matter of Holmes, 59 Hun, 369 ; 36 N. Y. State Rep., 535. And that was sufficient authority to sustain the decree made for the same object by the surrogate.

It may, however, be further added, if the conveyance made by the judgment debtor of his real estate was not accepted by the grantee, as there is reason for believing the fact to be, then the judgment did become a lien upon the land pursuant to § 1251 of of the Code, and the surrogate was for that reason empowered to make the decrea For by § 1380 of the Code the decree was provided for after the lapse of three years from the decease of the judgment debtor, as long as he is shown to have left no personal estate, and no letters of administration were at any time issued on his estate. The proceedings to obtain the decree were not commenced until after the expiration of these three years, and no letters of administration were issued on the estate of the judgment debtor, who died intestate, and left no personal estate. These were all the essential facts to subject the case to the jurisdiction of the surrogate, and there seems to have been no good reason to doubt their existence.

The section as it has been amended in 1890 was evidently designed to meet and provide for all cases of judgments against deceased persons leaving real estate claimed by the creditor to be subject to sale under execution to enforce the payment of his judgment

And the fact that the .real estate may have been included in a conveyance intended to defraud the creditor, as the fact in this instance is alleged to be, does not exclude the case from the application of this section. For it is only where the conveyance has been declared fraudulent by the judgment or decree of a competent court that the case has been excepted from the operation and effect of the section. There no application for leave to issue an execution to enforce the judgment against such fraudulent conveyance can be required, but, as the section declares, the execution may be issued without leave of any court or officer. To exclude that class of cases from the section the conveyance must not only be fraudulent but it must also have been so declared by the judgment or decree of a competent court, and no such judgment or decree has been recovered as to this conveyance. The case, therefore, is not within the exception, and as its provisions are general, subject alone to this exception, it follows that the requisite authority has been provided for the making of this decree of the surrogate. The decree should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Ingraham, J., concur.  