137 N.Y.S. 110 | N.Y. Sur. Ct. | 1912
This is an application on the part of the plaintiff in the action against the executors of a decedent, brought against them in their representative capacity. The petitioner, who secured! the judgments against said executors, served an affidavit on the attorney for the defendant and) notice of application or motion to this court for leave to issue execution on the judgment taken by the plaintiff. Said application is made under the provisions of sections 1825 and 1826 of the Code of Civil Procedure. Copy of affidavit and! notice were served upon the attorney for the executors in the action in the Supreme Court. He admitted service as attorney for the defendants upon a copy of such notice of motion and affidavit. Upon the return of said motion, said attorney notified the court that he had no authority to appear for two of the executors, objected to the jurisdiction of the court as against those two executors, and claimed that they should be properly before the court before the court could proceed, and, further, that the proceeding was not properly brought, so as to confer jurisdiction on the court, in that the proceeding was not brought by a petition duly verified and a citation or order to show cause issued thereupon by the court.
An application for an execution is an application for a matter of substantial right, and each executor is entitled to the notice required by the Code, and, as shown above, provision is made how to give such notice,' if personal service cannot be had with due diligence. This application is in the nature of a motion, and 'costs as of a motion should be allowed. I accordingly find that the application made herein should be denied, with $10 motion costs, without prejudice to the applicant to renew her application in a proper form for leave to issue execution on the- judgments set forth in the application herein.
Let order be entered accordingly.