Time of stay by order, etc., not reckoned must present to that court, a written petition, duly verified, setting forth the facts, and praying for such a decree; and that the persons, specified in the first subdivision of this section, may be cited, to show cause why it should not be granted. Upon the presentation of such a petition, the surrogate must issue a citation accordingly; and, upon the return thereof, he must make such a decree in the premises, as justice requires. New. 4 Wait's Pr. 10 and 11. See Marine Bank of Chicago v. Van Brunt, 49 N. Y. (4 Sick.) 161; 61 Barb. 361. § 1382. The time during which the person, entitled to enforce a judgment, is stayed from enforcing it, by the provision of a statute, under this or by an injunction or other order, or in consequence of an appeal, is not a part of the time, limited by this title, for issuing an execution thereupon, or for making an application for leave to issue such an execution. title. Execution against judgment debtors. New. But see Underwood v. Green, 56 N. Y. (11 Sick.) 247; 4 J. & Sp. 481. § 1383. The last six sections do not affect the right of a judgsurviving ment creditor to enforce a judgment, against the property of one or more surviving judgment debtors, as if all the judgment debtors were living. In that case, an execution must be issued in the usual form; but the attorney for the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judgment debtor, and requiring the sheriff not to collect the execution, out of any property which belonged to him. Sale on execu New. § 1384. A sale of real or personal property, by virtue of an tion, etc. execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. when and how con ducted. Penalty for taking down or notice of sale. 68. 2 R. S. 383, § 36, amended so as to apply also to equity cases; 4 Wait's Pr. § 1385. A person who, before the time fixed for the sale, in a defacing notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the sheriff, or by his authority, forfeits fifty dollars to the judgment creditor, and the same sum to the judgment debtor; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture, or the execution was previously satisfied. 2 R. S. 383, § 39, amended by giving an action to the judgment debtor also. of sale, when not § 1386. An omission by the sheriff to give notice, as required Validity by law, or the taking down or defacing of a notice, when put up, wrected does not effect * the validity of a sale, made by virtue of an execu- by sheriff's tion, to a purchaser in good faith, without notice of the omission or etc. offence. 2 R. S. 383, § 40. A publication of notice, once in each week for six weeks before the sale, is a compliance with the statute. The sheriff need not wait full six weeks from the date of the first publication. Wood v. Morehouse, 53 N. Y. (6 Hand) 368; S. C. affirming, 1 Lans. 405. The neglect of a sheriff to return his execution, or its loss by carelessness, cannot invalidate the title of a purchaser at a regular sale of land under such execution. Phillips v. Schiffer, 14 Abb. N. S. 101; S. C., 7 Lans. 347; 64 Barb. 548. default, on such certain § 1387. The sheriff, to whom an execution is directed, or the Purchases under-sheriff or deputy-sheriff, holding an execution, and conducting sales, by a sale of property by virtue thereof, shall not, directly or indirectly, officers, purchase any of the property at the sale. A purchase made by him, or to his use, is void. prohibited. 2 R. S. 383, § 41; 4 Wait's Pr. 69. cution to Lorced by sheriff. § 1388. Where the sheriff, to whom an execution is delivered, When exedies, is removed from office, or becomes otherwise disqualified to act, be enbefore the execution is returned, his under-sheriff must proceed underupon the execution, as the sheriff might have done. If there is no under-sheriff, the court, from which the execution issued, may designate a person to proceed thereupon; who may complete the same, as an under-sheriff might have done. The person so designated must give such security as the court directs. He is deemed an officer; and is subject to the same obligations and liabilities, and has the same power and authority, in relation to the object of his appointment, as a sheriff, and is entitled to fees accordingly. But this section does not apply, in a case where special provision is otherwise made by law, for the enforcement of an execution, after the death, removal from office, or other disqualification, of the sheriff, or under-sheriff. 2 R. S. 388, §§ 65 and 66, omitting the last half of § 65 and the corresponding provision of 66, amended by providing for disqualification gene- * Error in engrossing for "affect." TITLE II. Execution against property. ART. 1. Property exempt from levy and sale. 2. Lien of an execution upon personal property; levy upon and sale of personal property. Rights of indemnitors of sheriff. 3. Sale, redemption, and conveyance of real property; rights and liabilities of persons interested. 4. Remedies for failure of title to real property sold, and to enforce contribution. Certain special exemptions not affected by this article. What personal property is exempt, when owned by a householder. ARTICLE FIRST. PROPERTY EXEMPT FROM LEVY AND SALE. SEC. 1389. Certain special exemptions not affected by this article. 1390. What personal property is exempt, when owned by a householder. 1391. Additional personal property exempt in certain cases. 1392. Woman entitled to same exemption as a householder. 1393. Military pay, rewards, etc., exempt from execution and other legal proceedings. 1394. Right of action for taking, etc., exempt property. 1395. Burying ground; when exempted. 1396. How exempt burying ground designated. 1397. Homestead; when exempted. 1398. How exempt homestead designated. 1399. Married woman's homestead; when exempted. 1400. When exemption to continue after owner's death. 1401. Exemption; when not affected by temporary suspension of residence. 1403. Id.; how proceeds to be marshalled when property is sold. § 1389. The enumeration, in this article, of the property which is exempt from levy and sale by virtue of an execution, does not repeal any special provision of law, relating to such an exemption, which, by its terms, is applicable only to a particular class of persons, or corporations, or to a particular locality, or otherwise to a special case. New. § 1390. The following personal property, when owned by a householder, is exempt from levy and sale by virtue of an execution; and each moveable article thereof continues to be so exempt, while the family, or any of them, are removing from one residence to another: 1. All spinning wheels, weaving looms, and stoves, put up, or kept for use, in a dwelling house; and one sewing-machine, with its appurtenances. 2. The family bible, family pictures, and school-books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured therefrom; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour, and vegetables, actually provided for family use; and necessary fuel, oil, and candles, for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its appendages; one pair of and irons; one coalscuttle; one shovel; one pair of tongs; one lamp; and one candlestick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars. 2 R. S. 380, § 22, as amended by Laws of 1860, ch. 152, with a few additions and omissions. In subd. 4 the word "meat" has been substituted in the place of "pork, beef," and the words "oil and candles" have been added. In subd. 5, the words "arms and accoutrements required by law to be kept by such person," have been omitted, and "one coal scuttle," one lamp and one candle stick" have been added. 4 Wait's Pr. 38-46. 99.66 A judgment obtained by a debtor against his creditor for an illegal seizure of exempt property, takes the place of the property, and should be protected as exempt, until a sufficient time has elapsed to afford the debtor a reasonable opportunity to again purchase like property. Tillotson v. Wolcott, 48 N. Y. (3 Sick.) 188. Sheep, which are the increase of a lamb given to a child, and kept by her grandfather, under an agreement that All the articles enumerated as ex- personal exempt § 1391. In addition to the exemptions, allowed by the last sec- Additional tion, necessary household furniture, working tools and team, profes- property sional instruments, furniture, and library, not exceeding in value in certain two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue cases. Woman entitled to same exemption of an execution, when owned by a person, being a householder, or having a family for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchase money of one or more articles, except* as prescribed in this or the last section. 4 Edm. 626 (Laws of 1842, ch. 157, § 1), as amended by 6 Edm. 830 (Laws of 1866, ch. 782), and 4 Edm. 635 (Laws of 1858, ch. 107, § 1), consolidated and re-arranged, with a few changes. The word "wholly" has been added after "judgment recovered." The words "one or more articles, exempt as prescribed in this or the last section," have been substituted for the enumeration of the articles. The word "sewing-machine has been omitted. 4 Wait's Pr. 38-46. A judgment debtor who has two teams working in his business may claim either as exempt from execution, etc., under the statute, not exceeding in value the statutory limitation. Firmin v. Malloy, 1 J. & Sp. 382. A single horse or other animal, trained and used by the judgment debtor for his work or service, is a working team within the exemption of the statute, although not associated or used with any carriage, harness or other appendage. Ib. Where the judgment debtor has other property apparently exempt, or which might be exempt under this act, he must, within a reasonable time after knowledge of the levy, make his election and give notice to the officer that he claims as exempt the property levied upon. And what is a reasonable time is a question for the jury. Brooks v. Hathaway, 8 Hun, 290, 292. A wagon is only exempt from execution as constituting part of "a team" which consists of one horse or two horses, with their harness and the vehicle to which they were customarily attached for use. Brown v. Davis, 9 Hun, 43. In an action to recover exempt property which has been taken on execution against the owner, it is sufficient for the plaintiff to show that he is a householder, and that the property consisted of his tools necessary for his use in his trade, and was not worth over $250, without showing whether he had other property or not. Reinecke v. Flecke, 3 J. & Sp. 491. A watch not shown to be necessary to the defendant's use in his vocation is liable to execution. Deposit Nat. Bank v. Wickham, 44 How. 421. A single horse and his harness are exempt from execution as "a team,” whether on the day of the levy the judgment debtor had use for such horse or not. Cogsdill v. Brown, 5 Hun, 341. § 1392. [Amended, 1877.] Where the judgment debtor is a woman, she is entitled to the same exemptions, from levy and sale as a house- by virtue of an execution, subject to the same exceptions, as prescribed in the last two sections, in the case of a householder. New. holder. Military pay, re exempt from execution and other § 1393. The pay and bounty of a non-commissioned officer, wards, etc., musician, or private, in the military or naval service of the United States; a land warrant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind, presented, as a testimonial, for services rendered in the military or naval service of the United States; and the uniform, arms, legal pro ceedings. *Error in engrossing for "exempt." |