In this action a judgment of foreclosure, directing the sale of certain mortgaged lands, was entered in favor •f the plaintiff on April 23, 1890. The period of five years allowed by statute fоr issuing process as of course on the judgment having expired, and no sale having been made, the plaintiff noticed a motion in January, 1896, for leave to carry the judgment into exеcution pursuant to section 685 of the Code of Civil Procedure. It is provided in said section, as amended in the year 1895, thаt: “In all eases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose founded upon supplemеntal pleadings,” etc. The court denied the motion.
Several interesting questions are raised in argument touching the effect, and even the validity, of said amended section of thе code; only one of them need be now examined. Plaintiff does not contend that the denial of his motion was, in view of the evidence before the court at the hearing, an abuse of power, if the court can exercise disсretion in such cases; but he claims that under the statute the court had no discretion to refuse his application. This position cannot be maintained. By statute in Hew York, “After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, .... 2. Where an order is made by the court granting leave to issue the execution” (N. Y. Codе Civ. Proc., sec. 1377); and it is there held by the court of appеals that the effect of this provision, in a case within its terms, is tо render the allowance of a writ of possession оn a judgment for the recovery of lands a matter “resting wholly in the discretion of the court.” (Van Renssalaer v. Wright,
Searls, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
Garoutte, J., Van Fleet, J., Harrison, J.
Hearing in Bank denied.