Bonden v. Prentiss , 59 N.Y. St. Rep. 390 ( 1894 )

Sedgwick, C. J.

The action was in the nature of a creditor’s bill, designed to reach real property that had been conveyed by the debtor to the defendant. The plaintiff, in order to succeed in the action, had to prove that an execution had been issued against the debtor’s property, and had been returned nnsatisfied. Adsit v. Butler, 87 N. Y. 585. An execution had been issued and returned, but it was void. It had been levied on the day of the debtor’s death and about five hours after his death. Section 1180, Code Civ. Proc. forbids that being done. Wallace v. Swinton, 64 N. Y. 188.

The counsel for respondent invokes the principle by which in certain cases courts do not take notice of the fraction of a day. They do, however, take notice of them when there are conflicting rights, for the determination of which it is necessary for them to do so. Broome’s Legal Max. 134. First and last, the fact that the judgment debtor had died would be decisive that an execution could not issue.

For this reason the judgment should be reversed, and a new tria), ordered, with costs to,appellants to abide the event.

Freedman and McAdam, JJ., concur.