
    KENNEDY a. MILLS.
    
      New- York Common Pleas ;
    
    
      Special Term, January, 1857.
    Execution.—Leave to Issue.
    When leave to issue execution may be granted after expiration of twenty years.
    Motion for leave to issue execution.
   Ingraham, F. J.

—The plaintiff moves for leave to issue execution upon a judgment recovered in 1836. An execution was issued on the judgment at the time of the recovery, and returned with only a partial payment. Nothing appears to have been .done towards its collection since that time.

The plaintiff’s affidavit states a balance to- be due, and the defendant denies any indebtedness. Under such circumstances a reference to inquire whether any thing is unpaid on the judgment, would be proper were it not for the difficulty arising, from the provisions of the Revised Statutes on this subject (2 Rev. Stats., 4 ed., 564). Every judgment recovered after the passage of that act, is to be presumed to be paid, and ratified after the expiration of twenty years from the date of the judgment, and such presumption can only be repelled by proof of payment or written acknowledgment within twenty years. In all other cases it shall be conclusive. In this case there is no such proof, and a reference would be useless, because without such proof the parties are concluded by the provisions of the statute.

The motion is denied without costs.  