
    Philip Manger, Appellant, v. Charles F. Golding and Another, Respondents.
    
      Execution — motion for leave to issue after lapse of five years — court refuses to exercise discretion — plaintiff remitted to action on judgment.
    
    Appeal from two orders of the Supreme Court, made at the Kings Special Term and entered in the Kings county clerk’s office on December 17, 1924, and January 16, 1925, respectively, the first denying a motion for leave to issue execution against the property of the defendant Charles F. Golding, and the second denying a motion for reargument.
    Order denying motion for leave to issue execution affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Cropsey at Special Term. Order denying motion for reargument affirmed. Kelly, P. J., Rich, Jaycox, Kelby and Kapper, JJ., concur.
    The following is the opinion of the court below:
   Cropsey, J.:

Motions for leave to issue execution after the lapse of five years are within the court’s discretion. (Van Rensselaer v. Wright, 121 N. Y. 626, 630; Shuman v. Sfirauss, 52 id. 404.) The delay raises a presumption of payment or other release or discharge of the judgment. (Betts v. Garr, 26 N. Y. 383, 384.) Here it is claimed an agreement was made which was carried out. There is no denial of this. If it be so, execution should not issue. (Partridge v. Moynihan, 59 Mise. 234.) In any event the papers present a situation which makes it improper for the court to exercise its discretion. (See People v. Carlin, 191 App. Div. 258.) The creditor is not necessarily prejudiced, for he may seek leave to bring an action upon the judgment. (Partridge v. Moynihan, 59 Misc. 234, 238.) Motion denied; ten dollars costs.  