Wadley v. Davis
New York Supreme Court
Appeal from parts of an order made by the Oswego Special Term, denying a motion to vacate a judgment. A petition was presented to the surrogate of Oswego for leave to issue an execution upon a judgment after the death of the judgment debtor. Leave having been granted an appeal was taken from the decree of the surrogate to the General Term, where his decision was affirmed in October, 1884, with costs. The costs were taxed and the decision of the General Term was filed.
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Appeal from parts of an order made by the Oswego Special Term, denying a motion to vacate a judgment. A petition was presented to the surrogate of Oswego for leave to issue an execution upon a judgment after the death of the judgment debtor. Leave having been granted an appeal was taken from the decree of the surrogate to the General Term, where his decision was affirmed in October, 1884, with costs. The costs were taxed and the decision of the General Term was filed. Thereafter a judgment was entered and docketed with the clerk of Oswego county affirming the surrogate’s decree, fixing the…
1Opinion of the Court
Hardin, P. J.:
Plaintiff’s proceedings before the surrogate of Oswego for leave to issue an execution against a deceased judgment debtor were special proceedings. (Code of Civil Pro., §§ 1380, 1381; Matter of Simpson, 26 Hun, 460; Marvin v. Marvin, 78 N. Y., 541; In Matter of Public School, etc., 86 id., 396.)
It was held in Belknap v. Waters (11 N. Y., 477) that a proceeding instituted by summons and complaint is an action, “ and that every other remedy is a special proceeding.” By section 1380 of the Code application must be made to the court in which a judgment is recovered for an order, and…
2Cases cited3 opinions
- Belknap v. . WatersNew York Court of Appeals · 1854
- Marvin v. . MarvinNew York Court of Appeals · 1879
- Lawrence v. . LindseyNew York Court of Appeals · 1877