§ 5235.Levy upon real property.

This section is based upon CPA § 512. The provision with respect to a judgment on a mortgage debt is derived from CPA § 710. See notes to §§ 5230(a) and 5236(b). Under present and former law, no levy is necessary while real property is subject to a judgment lien. The levy in other cases is made by creating a temporary judgment lien. The lien provided by the last sentence of former § 512 has been covered in § 5203(a). Former § 512 was apparently operative whether or not a lien was ever in effect against the particular property. Thus, if the judgment was never docketed in the county where the real property is located, or if the judgment was entered against a deceased person or a municipal corporation, no lien would have been in effect, but § 512 apparently could have been utilized to levy upon the property after ten years had expired. Moreover, § 512 could also have been used while a lien was still in effect, although it would have been unnecessary to so use it, because a lien might have been extended beyond the ten-year normal period under former CPA §§ 515 or 656.

In the case of a municipal corporation, the statutory language of CPA § 510(1) that no lien on real estate is created by docketing would seem inconsistent with § 512, which would permit a temporary lien to be created upon the property after the expiration of ten years. The problem was not a difficult one in practice, but to the extent that municipal real estate may be sold by execution, it was apparently unnecessary for the judgment to be a lien. See notes to § 5207.

With respect to property of a judgment debtor who died before entry of judgment, but after verdict or decision, CPA § 478 expressly stated that the judgment did not become a lien upon his real property. CPA § 656 which dealt with execution against a decedent’s property, provided for the enforcement of a judgment “against any property upon which it is a lien,” and thus would apparently not apply to such a judgment. If this was true, there would be no provision of the civil practice act which specified the manner of executing upon such a judgment before the expiration of ten years, but § 512 apparently would have permitted a levy thereafter. Indeed, the language of § 512 recognized that the debtor may be dead by specifically referring to his heirs or devisees. The anomalous result with respect to liens was that no lien was created by docketing such a judgment, but that a temporary lien might have been created ten years after filing of the judgment-roll. Yet it would appear to be the intention of the last sentence of § 655, that no property might have been levied upon after the death of the judgment debtor except as authorized by the Surrogate’s Court. See notes to § 5208.

Where the death occurred after entry of judgment, it is unclear whether § 521 permitted a levy upon the decedent’s property after the expiration of ten years. In that situation, the last sentence of § 655, which prohibited issuance of an execution against the property of a debtor who had died since entry of judgment, except as provided in § 656, would seem to have precluded any use of § 512 against an heir or devisee of the judgment debtor despite the express inclusion of heirs and devisees in § 512. As previously noted, the provisions of § 656 appear to have related only to enforcement of a judgment “against any property upon which it is a lien” and the provision of § 512 contemplated that a lien, if there ever was one, would have already expired. The temporary lien of the last sentence of § 512 itself would not make § 656 operative because this only arose after an execution was issued.

This difficulty with the phrase “against any property upon which it is a lien,” which appeared in § 656, has been recognized and the section has been construed to accord with both § 512 and the last sentence of § 655 in Atlas Refining Co. v Smith, 52 App Div 109, 64 NY Supp 1044 (4th Dept’s 1900). After discussing the history of former § 512, the court stated:

“It is contended by the respondent that this section only authorizes the issue of an execution in cases where the judgment is a lien. The effect of such a construction would be to nullify all the provisions of [section 512]. Section [656] must be interpreted, not literally but liberally, with a view to making it harmonize with section [512]. It is manifest that the Legislature intended to authorize the issue of an execution on a judgment after the lien thereof had expired, notwithstanding the death of the judgment debtor; but in order that such an execution might not be issued prematurely or for an excessive amount, or where the judgment had been paid, or any other legal objection existed, it was provided that the consent of the court of law having charge of the judgment should be obtained; and in order that the execution might not be unnecessarily issued, where the personal assets of the decedent might be sufficient to pay the judgment, or where the interests of the decedent’s estate or of other creditors might require the suspension of the right to issue the execution for a period, or that the premises be sold otherwise, the consent of the Surrogate’s Court was also required. . . .

“To carry into effect the clear intent of the Legislature, which the court has implied authority to do . . . , section [656] must yield to the construction that the requirement, as a prerequisite to granting the order, that the judgment shall be an existing lien, only applies when ten years have not elapsed since it was docketed, that being the only case where it could be a lien. A careful analysis of these statutory provisions shows that this construction will not do violence to the language employed in section [656] when properly understood . . . . Its language [in subd 2, ‘Such] . . . an execution shall not be issued unless,’ etc., relates to an execution on ‘a final judgment for a sum of money; or directing the payment of a sum of money,’ referred to in the first sentence [or subd 1] and in section [655] and embraces executions issued on judgments which are not, as well as those which are, a lien. Inasmuch as section [655] expressly relates forward to section [656] for authority to issue executions in both cases, it would be proper to hold, in order to solve any doubt as to their meaning, that the words ‘such an execution,’ contained in the second sentence of the latter section, relate back to section [655] and include both classes of executions. [Id. at 116–17, 64 NY Supp at 1048–49.]”.

The requirement of permission of both the Supreme Court and the Surrogate’s Court has been since deleted and only one court’s permission need be secured.

In effect, § 512 revived the expired judgment lien, to protect the creditor until the property might have been sold. Of course, if the debtor had conveyed the property after the original lien expired (or while there was no lien because of failure to docket in the county where the property is located), the creditor might not have levied or revived the lien or sold the property. The further effect of the language of § 512, since, under the Atlas Refining Co. case, it might have been used against an heir or devisee, was to revive the lien as against the heir or devisee, unless the heir or devisee conveyed at a time when there was no lien in effect.

This section deletes the heir or devisee language of § 512. As a result, where there is no longer a lien on the property, a judgment against a decedent may be enforced by bringing a suit against the heirs or devisees under § 170 of the Decedent Estate Law or the creditor may file his claim in the Surrogate’s Court or he may seek leave of court to issue an execution under § 5208. In effect, the passage of title to the heirs or devisees is treated as a purchase except for the liability of the heirs or devisees for the debts of the decedent. For further discussion of the provisions relating to execution upon the property of a deceased judgment debtor, see notes to § 5208.

Formerly § 5234, add, L 1962, ch 30; renumbered § 5235, L 1962, ch 315, § 5; L 1963, ch 532, § 35, eff Sept 1, 1963.