34 N.Y.S. 379 | N.Y. Sup. Ct. | 1895
The judgment in this action was entered on the 14th of November, 1889. The execution which formed the foundation of this order was issued on the 14th day of November, 1894, and was therefore not issued within five years after the entry of the judgment, the five years having expired upon the 13th of November, 1894. The court, in considering the question of time, takes no ■notice of the fractions of a day. The time commenced to run on the day upon which the judgment was entered, and expired upon the termination of five years thereafter, which was the 13th of November, 1894. The authority to issue an execution only existed during those five years. After the expiration of that time, execution can only be issued upon application to the court The execution not having been issued until after the expiration of that period, and no application to the court having been made, no jurisdiction was conferred.
The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.