5 Redf. 27 | N.Y. Sur. Ct. | 1879
By section 37, 3 R. S., 95 (6 ed.), executors and administrators are required to proceed with diligence to pay the debts of the deceased, and are directed to pay them according to the order of classes named, the first being debts of preference under the
In Nichols v. Chapman (9 Wend., 452), it was held that a judgment might be entered on a warrant of attorney^to confess, &c., after the death of the defendant, as of the term in which he died, if the death happen during the term ; and if it happen during the'vacation, as of the term immediately preceding the death; and that, though the judgment did not bind the real estate of the deceased, it was a debt having a preference, to be paid in the usual course of administration.
By section 8, 3 R. S., 618 (same edition), it is provided that in case judgment recovered shall be filed and docketed within a year of the death of the party against whom it is obtained, the death may be suggested on the record, if it happen before judgment rendered, and if after judgment rendered it shall be certified on the back of the record by the attorney filing it, and that such judgment shall not bind the real estate which the party had at his death, but be a preferred debt to be paid in the usual course- of administration. Chief Justice Savage, in Nichols v. Chapman, at page 457, well says that “the course of administration among judgments is to pay the oldest first.”
I am therefore of the opinion that the petitioner is entitled to payment of his judgment, as a judgment docketed against the deceased under the 3d subdivision of section 37 above cited ; but I am also of the opinion that inasmuch as, in the same case, judgment for costs was recovered against the petitioner, those costs should be deducted from the amount of the judgment in his favor, and he is entitled to an order directing the administrator with the will annexed to pay the balance of his judgment, as the answer of the administrator does not show
Let an order be entered accordingly.