John Underwood, Respondent, v. John Green, Appellant

John Underwood, Respondent, v. John Green, Appellant. (Argued March 23, 1874; decided March 31, 1874.) The provision of section 264 of the Code, limiting the time within which an execution may issue, as of course, to five years, applies to a case-where a right to issue has continued during that time; where a judgment is reversed by the General Term, and subsequently affirmed on< appeal to this court, the time which elapses between its reversal and its restoration is not to be reckoned as any portion of the five years. An order denying a motion to set aside an execution is not reviewable in this court. Appeal from order of the General Term of the Superior Court of the city of Uew York, affirming an order of Special Term denying a motion to set aside an execution herein. The motion was based upon the ground that more than five years had elapsed, after entry of judgment, before issuing of execution. An appeal was taken from the judgment by defendant. The General Term reversed the judgment and granted a new trial. On appeal to this court, the order of General Term was reversed, and the original judgment was affirmed. Reckoning the time between the orders ot reversal and affirmance, more than five years had elapsed before the issuing of execution; omitting this period, the five years had not expired. A. H. Reavey for the appellant. F. Loomis for the respondent. [MAJORITY — Andrews, J.] Andrews, J. The Superior Court were clearly right in holding that the time which elapsed between the reversal of the original judgment by that court, in 1864, and its restoration, by the judgment of this court, was not to be reckoned as any part of the five years from the entry of the judgment, after which an execution cannot issue without leave of the court, under section 284 of the Code. By section 283, an execution may issue at any time within five years from the entry of the judgment. If the party entitled to execution delays issuing it for that period, he cannot thereafter issue it as of course, but only on application to the court, upon notice to the defendant. If, after judgment has been rendered, the judgment debtor procures a ¡reversal of the judgment, which reversal is afterward set aside, there is, during the intermediate term, no judgment upon which execution can issue, and no laches can be imputed to the other party. Section 284 was intended to apply to the case of an omission to issue execution for five years, when the right to issue it during that time continues. Any other construction would enable the judgment debtor, by procuring a stay of proceedings, or by protracting the litigation, to limit and, perhaps, defeat the right of the plaintiff to issue execution as of course, given by section 283. But the appeal must be dismissed, on the ground that no appeal lies to this court from the order made in this case. The precise question was determined in The Bank of Genesee v. Spencer (18 N. Y., 150). The appeal should be dismissed. All concur. Appeal dismissed.