
    Jackson v. Weeks et al.
    
    
      (Supreme Court, General Term,, Second Department,
    
    
      Filed July 23, 1886.)
    
    Judgment creditors—Mortgage—Bight op redemption.
    Where a judgment creditor issues execution on hi; judgment he cannot afterward refuse to receive the money paid to the sheriff on the execution, and elect to proceed against the equity of redemption of judgment debtor in real estate. By issuing execution the judgment creditor waived whatever rights he had to redeem the property, the money being realized by the execution.
    
      W. JS. Ouddebach, for appellant, Jackson.
    
      W. H. De Wolf, for respondent, Weeks, et al.
    
   Dykman, J.

The plaintiff was the owner and holder of a judgment, which was a hen upon certain real property covered by a mortgage, which was a lien on the same property prior to the hen of the plaintiff’s judgment. That mortgage was foreclosed by action in the supreme court, to which the plaintiff was not made a party, and the property was sold under the judgment in that action, and a deed of conveyance was executed and dehvered to the purchaser pursuant to that sale. Then the plaintiff issued an execution on her said judgment against the property of the defendants therein, and dehvered the same to the sheriff, who advertised the same property for sale under that execution. A few days previous to the day fixed for the sale under the execution, one of the defendants in the action paid the amount of the execution to the sheriff, and he thereupon' returned the same satisfied, and the clerk of the county canceled the docket of the judgment. The plaintiff has refused to accept the money so paid to the sheriff, and has brought this suit to obtain the judgment of this court, that the execution be withdrawn from the files of the clerk of the county and returned unsatisfied; that the docket of the judgment be restored, and the lien thereof reinstated, besides other relief. The defendants demurred to the complaint, and had judgment in their favor on the demurrer, from which the plaintiff has appealed. The case is plainly against the plaintiff. Whatever right -she had to redeem the premises under her judgment was waived when she issued execution thereon, and undertook to make the money in that manner. The money was realized, and the hen of the judgment destroyed, by the payment of the execution to the sheriff. Her rights were all secured by said payment, and she can pursue the property no further.

The judgment should be affirmed, with costs.

Ouli^in, J., concurs; Barnard, P. J., not sitting.  