Lambert v. Metropolitan Street Railway Co. , 68 N.Y.S. 877 ( 1901 )

Blanchard, J.

This is an application to vacate an execution on the ground that at the time of the issuance thereof the plaintiff was an administratrix "with but limited powers, having po-wer to “ prosecute,” but not power “to collect or compromise.” After this motion was made, but before its submission, plaintiff obtained from the Surrogate’s Court full power of collection. By placing the execution in the hands of the sheriff, plaintiff clearly exceeded her authority, conferred upon her by .the Surrogate’s Court. She thereby, in effect, constituted the sheriff her agent in the collection of her judgment. Her action in subsequently obtaining the necessary .power of collection did not remedy the. defect existing when the execution was issued. Even if the issuance of the execution be not void, it was certainly irregular, and should he vacated.

Execution vacated.