
    Simon Guiterman, Respondent, v. Charles A. Coutant et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Execution against property — Issuance of writ — Leave of court — On death of creditor "before issuance of writ.
    WEere an execution has been issued upon a judgment within five years after its entry, by the judgment creditor, the executors of the judgment creditor are entitled as matter of right to issue a second execution without leave of the court.
    Appeal from an order of the City Court of the city of ¡New York denying a motion to vacate and set aside an execution, issued without leave of the court, and to cancel and discharge a notice filed pursuant to section 1252 of the Code of Civil Procedure.
    Fromme Brothers, for appellants.
    David J. Gladstone, for respondent.
   Dayton, J.

The judgment was secured in September, 1893; and an execution issued thereupon in October, 1893, was returned unsatisfied. ¡No further execution was issued until ¡November 2, 1907, fourteen years after the entry of the original judgment. This execution was issued by plaintiff’s executors, plaintiff having died in February, 1906, and was set aside for failure of the notice under section 1252 to properly specify the interest of the defendant in the property sought to be levied upon. Thereafter, and on March 9, 1906, the plaintiff’s executors issued the present execution without leave. The appellants base their appeal upon the sole contention that, under section 1376 of the Code, the executors cannot now enforce their judgment by execution, because no execution was issued by them within five years from the date of the original judgment. Section 1375 of the Code authorizes the issuance of an execution as of course within five years. Section 1376 extends the right to the personal representatives of a deceased judgment creditor, for the same period. Section 1377 provides that, after the expiration of these five years, an execution can only issue by leave of court or where an execution had been issued within five years. It seems clear that section 1377 was intended to apply to the provisions of both 1375 and 1376. In other words, the manifest purpose is to require the judgment creditor (or his representatives if he shall have died) to be diligent in the issuance bf their first execution within five years after the entry of the judgment. But, if either shall have done that, then the right to issue the second execution without leave is secured. To hold otherwise would be to hold that it would be necessary for the judgment creditor or his executors to issue an execution every five years, or else to apply to the court for leave, before issuing a second execution. That would seem to be unnecessary, if the first execution were returned unsatisfied; and we do not think such an intendment can be read into the statute.

The order must be affirmed, with ten dollars costs and disbursements.

Gildersleeve and Gerard, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.  