The Atlas Refining Company v. Lester B. Smith.

the time of issuing an execution, prescribed by any of such amendments, expired before this application was made. It is contended by the respondent that this section only authorizes the issue of an execution in cases where the judgment is a lien. The effect of such a construction would be to nullify all the provisions of Section 1252. Section 1380 must be interpreted, not literally, but liberally, with a view to making it harmonize with Section 1252. It is manifest that the Legislature intended to authorize the issue of an execution on a judgment after the lien thereof had expired, notwithstanding the death of the judgment debtor; but in order that such an execution might be issued prematurely or for an excessive amount, or where the judgment had been paid, or any other legal objection existed, it was provided that the consent of the court of law having charge of the judgment should be obtained; and in order that the execution might not be unnecessarily issued, where the personal assets of the decedent might be sufficient to pay the judgment, or where the interests of the decedent's estate or of other creditors might require the suspension of the right to issue the execution for a period, or that the premises be sold otherwise, the consent of the Surrogate's Court was also required (Marine Bank v. Van Brunt, supra; Wallace v. Swinton, 64 N. Y., 188).

To carry into effect the clear intent of the Legislature, which the Court has implied authority to do (Beard v. Smith, 35 Sup. Ct., 51), Section 1380 must yield to the construction that the requirement, as a prerequisite to granting the order, that the judgment shall be an existing lien, only applies when ten years have not elapsed since it was docketed, that being the only case where it could be a lien. A careful analysis of these statutory provisions shows that this construction will not do violence to the language employed in Section 1380 when properly understood. Section 1379 merely forbids the issue of the execution except as prescribed in Sections 1380 and 1381.

The Atlas Refining Company v. Lester B. Smith.

Section 1380 prescribes that the consent of the Court out of which the execution is to issue, and the consent of the Surrogate's Court also, must be obtained; and provides that such leave shall not be granted until after the lapse of a specified period of time. The method of enforcing a judgment by execution after ten years either against the real property of the judgment debtor, if living, or such property in the hands of his heirs or devisees, if he be dead, had been carefully prescribed in Section 1252. All that was needed in such case was leave to issue the execution. But it was otherwise with a judgment which was still a lien. In that case it was necessary not only to obtain leave to issue the executions, but also to prescribe how the judgment should be then enforced. This was done in the first sentence of Section 1380, which provides that: "A final judgment for a sum of money, or directing the payment of a sum of money" (which embraces all such judgments regardless of the lien thereof), "may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living." It is the second sentence of this section which provides for obtaining leave of the two courts to issue the execution. Its language--"But such an execution shall not be issued unless," &c.-relates to an execution on a "final judgment for a sum of money, or directing the payment of a sum of money" referred to in the first sentence and in Section 1379, and embraces executions issued on judgments which are not, as well as those which are, a lien. Inasmuch as Section 1379 expressly relates forward to Section 1380 for authority to issue executions in both cases, it would be proper to hold, in order to solve any doubt as to their meaning, that the words "such an execution" contained in the second sentence of the latter section relate back to Section 1379 and include both classes of executions.

In Lefevre v. Phillips (81 Hun, 232) it was only necessary to decide whether a judgment creditor's action could

People ex rel. v. The Washington Bldg. Co.

be maintained without the previous issue and return unsatisfied of an execution. Ten years had not elapsed since the recovery of the judgment in that case, and consequently the observations of the learned justice who prepared the opinion, to the effect that an execution cannot be issued under Section 1380 of the Code of Civil Procedure where the judgment has never been a lien, should be restricted to the facts then under consideration and were obiter dicta, at least if applied to the construction of that section in connection with Section 1252.

The case of Wilgus v. Bloodgood (33 How. Pr., 289), holding that an execution might issue after ten years, and Matter of Harmon (79 Hun, 226) and Baumler v. Ackerman (63 Hun, 40) and Matter of Hallock (61 St. Rep., 230), holding the contrary, are not in point, as the judg ments there under consideration were docketed prior to the enactment of the Code of Civil Procedure.

We are of opinion that the petitioner has shown a legal right to the issue of the execution so far as the court in which the judgment is docketed is concerned. It follows that the order appealed from should be reversed, with $10 costs and disbursements to the appellants, and the motions for leave to issue executions granted.

All concur.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. THE WASHINGTON BUILDING CO. ET AL., APPELLANTS, v. THOMAS L. FEITNER ET. AL., RE

SPONDENTS.

NEW YORK COURT OF APPEALS, JUNE TERM, 1900.

$2125.

Parties uniting to attack assessment-Construction of section 250, chapter 908, laws 1896.

The provision of the Tax Law (section 250, chap. 908, Laws of 1896) authorizing two or more persons assessed upon the same roll who

People ex rel. v. The Washington Bldg. Co.

are affected in the same manner by an alleged illegality, error or inequality in the assessment, to unite in a petition to have the assessment declared illegal, was intended to apply to a situation wherein the adjudication upon the complaint of one taxpayer necessarily determined the complaint of others, so practically but a single issue would be presented. The statute was not intended to permit any and all parties to unite who might in some manner, be affected by a local assessment.

(Decided June, 1900.)

Truman H. Baldwin for appellants.

John Whalen, Corporation Counsel (James M. Ward, of counsel), for respondents.

PARKER, Ch. J.-We agree with the courts below that the last sentence of Section 250 of Chapter 908 of the Laws of 1896, which provides that "two or more persons assessed upon the same roll who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition," was intended to apply to a situation wherein the adjudication upon the complaint of one taxpayer necessarily determines the complaints of others, as, where in reality but a single issue is presented, so that the law being settled as to the facts of one case it is alike applicable to all other cases, but was not intended to permit any and all parties to unite who are aggrieved because of their local assessments. The statute was not, for instance, intended to countenance such an absurdity as uniting as relators in proceedings to review assessments the Brooklyn Rapid Transit Railroad, with its several hundred miles of surface and elevated railroads in the Borough of Brooklyn, the Metropolitan Traction Company, with its various owned and leased lines in the Borough of Manhattan, and the Union Railway in the Borough of the Bronx, necessitating upon the trial an examination of facts touching the value of the properties of each company as distinguished from the others and involving, therefore, different issues.

People ex rel. v. The Washington Bldg. Co.

Our conclusion is that the courts below rightly decided the question presented and we approve of the reasoning which led to their determination.

LANDON, J. (dissenting)-We think that Section 250 of the Tax Law (Chapter 908 of the Laws of 1896) permitted the relators to unite in the petition for the writ of certiorari authorized by Section 251 of the same act. Section 250 provides that "any person assessed upon any assessment roll, claiming to be aggrieved by any assessment for property therein, may present to the Supreme Court a petition duly verified setting forth that the assessment is illegal, specifying the grounds of the alleged illegality, or if erroneous by reason of over-valuation, stating the extent of such over-valuation, or if unequal in that the assessment has been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers, specifying the instances in which such inequality exists, and the extent thereof, and stating that he is or will be injured thereby. Such petition must show that application has been made in due time to the proper officers to correct such assessment. Two or more persons assessed upon the same roll who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition."

Section 906 of the Charter of the City of New York (Chapter 378, Laws 1897) is practically identical with the foregoing section, except that the section of the charter omits the final clause of Section 250 of the Tax Law, relating to "two or more persons." The charter does not prescribe the procedure in case of certiorari, except to state in Section 906 that it shall be allowed "to review or correct on the merits any final determination of the board of taxes and assessments." The final clause of Section 250 was undoubtedly intended as an extension of its remedial features. Its plain purpose is to lessen the multiplicity of separate cases, to test so far as practicable by the same