Annotated code of Civil procedure of the state of New York; as in force July 1, 1884

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1884 Excerpt: ...2 R. 8., 88, Part 2, ch. 6, tit. 3, part of § 32. Upon an application to set aside an order, granting leave to issue execution, the papers are properly served upon the attorney for the judgment creditor, although the order was made two veara before, and the execution was partly satislied. Estate of McOunn, 4 Redf., 15. The publication of notice to creditors to present their claims, the petitioners failure to present his claim, and the distribution of the assets, will not prevent an accounting upon an application under this section. But where an appeal has been taken by the executor, and a stay of (a) Amended in 1882 by inserting the Italicized words and striking ont "and before the completion." in the place whore the brackets appear. Section 2 ot the amendatory:u:t provides, that the amendment to this sention shall not apply, where letters have been issued to one or more executors or administrators before this act takes effect, i. e., July 1,18S-2. ART. 1. execution granted thereupon, leave will be refused till the appeal is determined. Keyser v. Kelly, 4 Redf., 157. The surrogate cannot hear any objection to validity of the judgment on the merits. Keyser V. Kelly, 4 Re.'lf., 157; Olatius v. Fogel, 88 N. Y., 434. The executor or administrator cannot reduce the amount in his hands by a charge for fees paid his own counsel, wliere the judgment directs the plaintiff's costs to be paid out of the estate. In re Nichols, 4 Redf., 288. If the executor l ay legacies, without ascertaining the whole amount of the claims of creditors, he does so at his peril. Where, in an action to foreclose a mortgage, judgment was taken against the executor of the mortgagor for a deficiency, and upon application to issue execution, an accounting was had, from which it...