Cameron & McKay v. Young
New York Supreme Court
George Truscott recovered a judgment in this court against the defendant. In July 1851, Truscott died. By his last will, &c. he appointed executors who proved the will and took upon themselves its execution. They then sold and transferred the judgment to the present plaintiffs who sued out a writ of scire facias to obtain execution of the judgment. The defendant moves to set aside the scire facias, upon the ground that this remedy is abolished by the Code.
1Opinion of the Court
Marvin, Justice.
The counsel for the plaintiffs insists that the Code has provided no remedy in a case where the plaintiff dies after judgment and before execution, and that therefore by section 468, the practice heretofore in use, may be adopted, so as to prevent a failure of Justice. This position is undoubtedly correct, unless the right to have execution of the judgment may be prosecuted by action in the manner provided by the Code. In my opinion the right may be so prosecuted, and there is no necessity of resorting to the writ of scire facias heretofore in use. It was conceded on the…
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