Opinion
May 17, 1918.
Henry W. Jessup of counsel [ Loeb, Bernstein Ash, attorneys], for the appellant.
Charles L. Hoffman of counsel [ Henry A. Friedman with him on the brief], for the respondent Molsberger.
James Shea of counsel [ Bowman Shea, attorneys], for the respondent Elizabeth Maerlander, as executrix, etc.
On August 25, 1896, George Einstein recovered a judgment against the decedent for the sum of $8,117, which judgment was duly docketed in the office of the clerk of the county of New York.
On February 16, 1906, the judgment creditor died. On November 9, 1915, the judgment debtor died. On November twenty-second the public administrator took out letters on the estate of the judgment debtor. On January 13, 1916, Messrs. Leventritt, Cook Nathan, attorneys for the judgment creditor's estate notified the public administrator of the outstanding judgment. On August 8, 1916, the appellant took out letters of administration on the estate of the judgment creditor. On August 22, 1916, a certified copy of the judgment roll was served on the public administrator with proof of claim. On or about January 30, 1917, the attorney for the public administrator stipulated that the claim should be heard upon the accounting of the public administrator. The accounting proceeding came on before the surrogate November 2, 1917. The surrogate decided that the judgment was conclusively presumed to have been paid under section 376 of the Code of Civil Procedure. In this the learned surrogate was correct. We have recently had occasion to construe section 376 of the Code of Civil Procedure ( Brinkman v. Cram, 175 App. Div. 372), in which we held that under that section a judgment is conclusively presumed to have been paid after the expiration of twenty years, unless within that time payment has been made or the indebtedness acknowledged, or some part of the amount recovered by a judgment or decree, and we held that the exceptions to that section were limited to those above specified, and we held that the absence from the State of the defendant did not extend the period of limitation by such period of absence. The same reasoning would demonstrate that section 403, which provides that the term of eighteen months after the death within this State of a person against whom a cause of action exists is not part of the time limited for the commencement of an action, cannot be read into section 376. The counsel for the appellant treats this section as a limitation upon his right to present his claim or institute some proceeding to enforce payment, and argues that as a judgment is not such a claim as can be rejected and referred within the contemplation of the Code ( Matter of Wait, 39 Misc. Rep. 74), it was not necessary for him to institute a proceeding to compel payment or an action on the judgment. And further, that unless such action or proceeding is brought the presumption created by section 376 is not available to the administrator, for he says section 378 provides "that it must be based upon an allegation, that is to say, the rule can be invoked only on a specific averment in the case." Section 378 states "a person may avail himself of the presumption * * *." The mistake the learned counsel has fallen into is substituting the imperative "must" for the permissive "may."
At the time this matter came before the surrogate there was no debt due to the judgment creditor; his judgment was conclusively presumed to have been paid. In an action brought by a purchaser of decedent's real estate to restrain the executrix from selling the real estate to pay the debts which were barred by the Statute of Limitations at the time she commenced her advertisement of the sale of real estate to pay the debts, the Court of Appeals said: "Even though a creditor of an estate was not bound, as the law stood in 1872, to institute proceedings to compel the sale of real estate to pay debts until after an executor or administrator had rendered an account, such omission did not stop the running of the statute as against the debt. ( Raynor v. Gordon, 23 Hun, 264.) The executor or administrator could institute such proceedings for three years, and during or after that time could be compelled by the creditor so to do, provided the administrator had rendered an account. ( Ferguson v. Broome, 1 Bradf. 10.) This was a remedy open to a creditor to enforce the collection of a debt, but it did not enlarge the time for the running of the statute against it. An executor or administrator is bound to set up the bar of the statute, and he would not be allowed in his accounting any sum paid upon a debt which, at the time of its payment by him, was barred by such statute." ( Butler v. Johnson, 111 N.Y. 204, 211.) The administrator was bound to raise the objection that the judgment was presumed to be paid and had he not done so and paid the judgment, the payment could not have been allowed him on his accounting.
The Code provides in effect that an action may be brought upon a judgment after ten years have elapsed since the docketing of such judgment. The remedy for the judgment creditor in this matter was to have sued upon his judgment and then his claim would have been kept alive for twenty years from the rendition of the second judgment.
The order should be affirmed, with costs.
CLARKE, P.J., DOWLING, SMITH and SHEARN, JJ., concurred.
Decree affirmed, with costs.