
    WOOSTER v. WUTERICH.
    
      N. Y. Superior Ct.; Special Term,
    December, 1876.
    Leave to issue Execution.
    The issuing of an execution, for the first time after five years from the entry of judgment, without application to the court, is not void, but only voidable in the discretion of the court.
    
    Motion by defendant to set aside judgment and execution.
    Emma C.. Wooster, the plaintiff, obtained a judgment by default against Christian Wuterich, the defendant, on September 30, 1869, for $1,334.15. The judgment roll was duly filed in the office of the clerk of New York county on that day, but no execution was issued by the attorney who obtained the judgment.
    In October, 1876, the plaintiff applied to another attorney to collect the amount of the judgment, who issued an execution to the sheriff, supposing one had been before issued and returned nulla bona.
    
    The defendant, immediately after the sheriff had made a demand upon him, moved to set aside the judgment and execution. He alleged in his affidavit in support of the motion, in substance, that he had never been served with a summons and complaint, or any other papers in the action; that he never had been informed or knew that there was a judgment against him; that no efforts had been made to collect the judgment until this execution was issued, although he had been in business in the same place in the city of New York, and perfectly responsible long before and ever since the time the judgment was alleged to have been obtained, and it could have been enforced at any time.
    
      Lewis B. Goebel, for the motion.
    
      Thomas B. Browning, opposed,
    
    Cited, Bank of Genesee v. Spencer, 18 N. Y. 150; Bellinger v. Ford, 21 Barb. 311; Winebrener v. Johnson, 7 Abb. Pr. N. S. 202; Montrait v. Hutchins, 49 How. Pr. 105.
    
      
      The provisions of the new Code of Civil Procedure bearing on this question are substantially the same. §§ 1377, 722-724. See also Wade v. De Leyer, 40 Super. Ct. [J. & S.] 541.
    
   Speir, J.

In this case the plaintiff obtained a judgment against the defendant, but execution was not issued until after five years after the entry of the judgment. It appears that the attorney who issued the execution was under the impression that an execution had been issued and returned “no goods found.” Motion is now made to set aside the judgment and execution. The motion to set aside the judgment must be denied on the merits. The issuing of the execution is not void, but only voidable in the discretion of the court. The Code (§§ 383 and 384) forbids the issuing of the execution after the lapse of five years, without an application to the court on notice and proof that the judgment, or a part of it, remained unsatisfied. Although it is generally the rule that where an act is done contrary to the provisions of a statute it is wholly void, unless it fall within the class of merely directory provisions ; this rule of the common law as to the effect of the statutes was modified by section 174 of the Code, which declares among other things, that the court may, “whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, in like manner and on like terms permit an amendment of such proceedings, so as to make it conformable thereto.” This case affords an illustration of the wisdom of this enactment, for without it the rights of the parties would be sacrificed to the requirements of form. The judgment warranted the process by execution, and it had not been paid or released. The motion must be denied.

There was no appeal.  