
    FIELD a. PAULDING.
    
      New York Common Pleas;
    
      General Term, July, 1856.
    Execution.—Leave to issue.
    Judgment was entered, execution issued, real estate sold, and satisfaction of the execution acknowledged ; after which it was discovered that the execution was . void. The plaintiff then, three years after judgment, applied for leave to issue new execution, which was granted. Five years later he issued execution.
    
      Held, on motion to set aside the last execution, that it was irregular. The leave granted was not such leave as is contemplated by section 284 of the Code.
    An application for leave to issue execution for the purpose of removing the bar of section 284, should not be made until the expiration of five years from the entry of judgment.
    Appeal from an order at special term denying a motion to set aside executions in two causes.
   Ingraham, F. J.

In these actions judgments were docketed in April, 1848. Executions were issued to the sheriff of Ulster County in May, 1848, upon which certain land was sold, and the plaintiff was the purchaser; on receiving the certificate from the sheriff he endorsed on the executions an acknowledgment of payment. It was subsequently discovered that the sale was void, because the executions purported to be on judgments in the Supreme Court.

The plaintiff then applied to this court in January, 1851, for an order allowing the plaintiff to issue new executions to the sheriff for the whole amount of the judgments. This motion was granted about April, 1851. The propriety of such a course was sanctioned in Suydam v. Holden, (Court of Appeals, Oct., 1853).

In February, 1856, new executions were issued, and the defendants now moved to set aside the executions so issued, upon the ground that they were issued after the lapse of more than five years from the date of the judgment, without leave of the court therefor.

In the first instance, the executions were undoubtedly a nullity. The sale was void and the whole proceeding might have been disregarded, and executions upon the judgments issued, but that did not preclude the plaintiff from making the motion which he did, for an order of the court allowing him to issue executions anew, and thereby relieving himself from the consequences of the erroneous proceeding upon the former executions. He had the power to issue executions at any time within five years after the date of the judgment without any order of the court. Section 283 of the Code expressly provides for such a case whether the judgment had been re: covered theretofore or should be thereafter.

The question then arises whether, after the lapse of five years, the plaintiff should have applied for leave to issue execution or whether the order made in 1851 can be considered as a substitute, for such an order.

I cannot adopt the conclusion that the order of April, 1851, made for the purpose of avoiding the irregular proceedings on the first executions can have the effect of satisfying the provisions of section 284 of the Code, and thereby sanctioning the issue of the last executions, although more than five years from the date of the judgments had elapsed. That section provides that after the lapse 'of five years from the entry of the judgment an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party.

To obtain such leave it is necessary that satisfactory proof should be furnished that the whole or part of the judgment was due. The intent of this section evidently was that if no execution issued before five years had expired from the date of the judgment, proof should be furnished at that' time of the amount remaining due upon the judgment before the execution should be issued. The order of 1851 was not intended for this purpose. A perusal of the papers must satisfy any one that the object of the order was to get rid of the proceedings on the erroneous executions. The fact that two years had expired did not render the order necessary, because I have shown before that the execution might have been issued within five years without such order, and no other object could have been intended. My construction of that section is, that the application can only be made after five years have elapsed from the date of the judgment. The law supposes the judgment to be unpaid for five years. After that time it presumes payment, and requires the plaintiff to show by proof that the judgment either in whole or in part is still unpaid. The defendant, on such an application, has a right to be heard as to what is remaining unpaid upon the judgment after the lapse of five years from its date. If he is concluded by an order made before two years have elapsed, the object of the section is defeated.

I think the order at special term should be reversed, and the motion to set aside the executions granted ; but as the question is new, no costs should be allowed on this motion to either party.  