than three years have elapsed since the said letters were duly granted].25 at day of [Or in the cases specified in third sentence of N. Y. Code Civ. Pro., § 1380, substitute the following:] III. That said Y. Z. died intestate at on the day of , 19 and that although three years have elapsed since said death, letters of administration upon his estate have not been granted by the Surrogate's Court of the county of in which the decedent resided at the time of his death [or, That said Y. Z. died , on the 19 and resided out of this State at the time of his death at - specifying place — and that although three years have elapsed since said death, neither letters testamentary nor letters of administration have been granted by the Surrogate's Court of the county of in which the property on which the said judgment is a lien situated]; and the said decedent did not leave any personal property within this State upon which to administer [state evidence or means of information. , IV. That at [or, after] the time the said judgment was duly docketed in said county [and at the time of his death] the said Y. Z. was the owner of real property situated therein, upon which the said judgment was and still is a lien [to witadd a particular description, if practicable].26 V. That [no execution on said judgment has ever been issued. and] the said judgment remains wholly unsatisfied and unpaid" [or. remains partly unsatisfied, in that the sum of and cents is still due and unpaid thereon]. † day of dollars VI. That on the 19 a decree, a certified copy of which is hereto annexed, was duly made by the Surrogate's Court of county granting the [plaintiff] leave to issue an execution upon said judgment [or if application therefor is pending or has not yet been made,28 state the fact]. the execution. Atlas Refining Co. r. Smith, 52 App. Div. 109, 64 N. Y. Supp. 1044. 27 That this is sufficient under Code Civ. Pro., § 1381, see notes 10 and 11. p. 2127 of this volume. 28 There is no requirement that the application for leave of the surrogate must precede the application to the court. Either application may precede the other. See Kerr v. Kreuder, 28 Hun, 452. Ordinarily it is better to get leave of the court whose judg ment is to be enforced, before applying to the surrogate. [If order to show cause is asked, state reason, as thus:] VII. An order to show cause is necessary, for the reason that it is essential that such order should provide for the manner of giving notice of this application for leave to issue execution to the persons whose interest in the said property will be affected by a sale by virtue of the execution, because [some of] the said persons, viz. [naming them], are not residents of this State, but reside in in the State of [or otherwise state reasons for special directions as to service]. VIII. No previous application has been made for an order to show cause herein for this purpose. [Jurat.] FORM No. 2172. [Signature.] Notice of motion for execution against property of a judgment-debtor having died after judgment.29 [Move the court,30 see Form No. 815, etc., and state order desired, thus:] granting leave to the [plaintiff] to issue an execution upon the final judgment herein [and against the hereinafter-described property of the above-named defendant, now deceased-or, against the property of above named Y. Z., deceased, which is described in the annexed affidavit, and upon which property the said judgment is now a lien,]31 with like effect as if the said judgment debtor was still living, or for such other or further relief as may be just. [The property abovementioned is described as follows — description.] [Address to and serve on all persons whose interests may be affected by a sale; as well as on the debtor's executor or adminis trator.] FORM No. 2173. Another Form, by order to show cause directing mode of service.32 [As in Form 2169 to the *, continuing:] ORDERED, that C. D., the executor [or, administrator] of Y. Z., deceased, and [naming all whose interests may be affected by sale], show cause at a Special Term of this court to be held at the county court house at in the county of o'clock in the on the day of at 29 N. Y. Code Civ. Pro.. §§ 13791381. See, also, notes to previous Form. 30 Matter of Wadley, 29 Hun, 12. 31 See note 20 to Form 2171. noon of 32 By N. Y. Code Civ. Pro., § 1381, this order must be a court order, if it contains directions as to manner of service. that day, or as soon thereafter as counsel can be heard, why an execution should not issue upon the final judgment herein [against the hereinafter-described property of Y. Z., deceased — or, against the property of the above-named Y. Z., deceased, which is described in the annexed affidavit — and upon which the said judgment is a lien,] with like effect as if said judgment-debtor was still living. Service of this order and the said affidavit of A. B., upon C. D., the executor [or, administrator] of Y. Z., deceased, and upon [naming the persons to be served], either personally or by depositing in the post office at on or before the of 19, a copy of this order and said affidavit contained in a securely-closed postpaid wrapper directed to each of the said persons [or in such other manner as the court prescribes, shall be sufficient. [For another form of direction see Form No. 2169.] [If not referred to as described in the affidavit, may add: The property above-mentioned is described as follows:-description.]33a Enter: [signature of judge by initials of name and title.] FORM No. 2174. day Order of court allowing execution against property of judgment-debtor having died since judgment.34 [Title of action.] At a Special Term35 [etc., as in Form Upon reading and filing the affidavit of A. B., verified on the day of 19 [and the order of the Surrogate's Court thereto annexed], whereby it appears that [here recite concisely the facts, as thus] the final judgment recovered by A. B. in this court on the day of 19, for [or, directing the payment of the said Y. Z. to the said A. B. of] the sum of dollars, is unsatisfied [and is a lien upon the real property below described;]36 and that the sum of dollars remains 33 Id.. $ 1381. 33a The judgment need not be a lien upon any property. See note 20 to Form 2171. 34 N. Y. Code Civ. Pro., §§ 13791381. See, also, notes to the affidavit on which this order is made. Pages 2130-2132. For petition to surrogate and decree granting leave to issue exacution. see Forms 2175, 2176, pp. 2135, 2136. 35 This must be an order of the court from which the execution is to be issued, and made upon notice served in the manner (and upon the persons) specified in id., § 1381 (subd. 1). 36 Although its language is to the contrary, section 1380 has been con strued to permit leave to issue execu tion upon a judgment which is not a lien upon any property. Atlas Refining Co. r. Smith, 52 App. Div. 109, 64 N. Y. Supp. 1044. day of 19 now due thereon with interest from the and that more than one year [or, three years] have elapsed since letters testamentary [or, of administration] were duly granted upon the estate of the said Y. Z., who died on the day of 19 ; and it also appearing that due notice of this motion [by order to show cause duly made by this court] has been given to the executor [or, administrator] of the said Y. Z., and to [naming them], being all the persons whose interest in the said property may be affected by a sale thereof by virtue of an execution herein [if surrogate's leave has already had, may add: and that the surrogate of county has granted leave for the issue of such execution as is hereafter mentioned], and after hearing A. T., Esq., attorney for A. B., in support of said motion, and Z. T., Esq., attorney for [or, no one appearing], in opposition thereto, and due deliberation being had thereon; Now, on motion of A. T., Esq., attorney for A. B.: ORDERED, that leave be and hereby is granted to the said A. B. to issue an execution upon said judgment [to be enforced against the said property on which it is a lien,] with like effect as if the said judgment-debtor was still living. [Said property is described as follows: - description.] Enter: [signature of judge by initials of name and title.] FORM No. 2175. Petition to surrogate's court for execution against property of a judgmentdebtor, having died since judgment.37 Surrogate's Court, County of In the Matter of the Petition of A. B., for leave to issue execution upon a judgment against the property of Y. Z., deceased. To the surrogate of the county of The petition of A. B. respectfully shows: I. That your petitioner [continuing as in Form No. 2171, p. 2130, from the to the t, in middle of p. 2132; concluding as follows]. 37 N. Y. Code Civ. Pro., §§ 13791381, and see notes to Form 2171, p. 2130 (above). No notice is neces sary of the presentation of the petition to the surrogate. Kerr v. Kreuder, 28 Hun, 452. day of 19, an order, a cer VI. That on the tified copy of which is hereto annexed, was duly made by the said Court38 of granting your petitioner leave to issue execution therefrom on said judgment. [Or, if application therefor is pending, or not yet made, state the fact.] WHEREFORE, your petitioner prays that a decree be made by this court allowing said judgment to be enforced by execution against the said property, on which it is a lien, with like effect as if the said Y. Z. were still living, and that [the said adminis trator with the will annexed- or, executor of said Y. Z., and] C. D. and E. F. [naming all other persons whose interests may be affected by sale39] may be cited to show cause why such decree should not be granted, and for such other or further relief as may be just. [Date.] [Signature.] [Verification as in Form No. 821, p. 1175 of this volume.] FORM No. 2176. Decree of surrogate's court allowing execution against property of judgmentdebtor having died since judgment.41 At a Surrogate's Court, held in and for |