Opinion of the Court, per RAPALLO, J.

self, is as unequivocal a recognition of his liability for the principal as if he had made the payment with his own hands. It is more than a mere oral acknowledgment of liability which is liable to misapprehension or misstatemeut. It is the adoption of an act done by a third party in his name, unequivocal in its character, and inconsistent with any other theory than that of an existing liability on his part.

Furthermore, the rights of both parties were affected by the payment. The unqualified recognition and approval of it, communicated to the bank by the defendant, amounted to a consent on his part that it should be deemed a payment made by him, which fixed the time from which the statute should begin to run; and on this the bank was entitled to rely.

The fact that the payment was made by a check drawn by Shearman upon his own bank account did not necessarily show that the payment was not made as a payment by the defendant. Although Shearman was liable on the same notes, yet there was nothing in that circumstance to prevent an arrangement between the parties by which he should make this payment for and on behalf of the defendant; and if he did so, it was immaterial whose money he used. If the defendant had made the payment in person, but Shearman had furnished the money, the payment would be none the less effectual as an admission of liability to bind the defendAnd if the defendant requested Shearman to make it. in defendant's name, the effect of the payment as a recognition of the defendant's liability, would not be diminished by the fact that Shearman used his own money. The subsequent ratification of a payment made in that form is as effectual a recognition of liability as if the payment had been made by previous request.

The bank could not know whose funds were used, or that the moneys, against which the check was drawn, had not been furnished by the defendant. The jury have found that Shearman made the payment as agent for and on account of the defendant; and that the defendant, with knowledge of that

Statement of case.

fact, ratified his act. The jury were charged that, to make the transaction binding upon Ballou, he must have ratified it with knowledge that Shearman had assumed to pay the interest as his agent or on his account. They must have found that the defendant examined the statement and receipt as testified to by Rogers; and that, with knowledge of their contents, he approved the transaction. The receipt acknowledged the receipt of the interest from T. B. Ballou, per hand of J. A. Shearman. The statement described the notes in suit, with others, and it would be difficult to conceive a more clear and unequivocal ratification of a payment by an agent than is established by the finding, which, under the charge, the jury must have made.

We have examined the various exceptions taken upon the trial, but find none which, in our opinion, call for a reversal of the judgment.

The judgment should be affirmed with costs.

All concur.

Judgment affirmed.

THE MARINE BANK OF CHICAGO, Appellant, v. TUNIS VAN BRUNT, Respondent.

Where application is made to a surrogate, under chapter 295, Laws of 1850, for leave to issue execution against the estate of a deceased judgment debtor, the claimants of the property sought to be applied in satisfaction of the judgment, and the personal representatives of the deceased are entitled to be heard, and should have notice. Without notice to the parties affected, the jurisdiction of the surrogate is improperly exercised. The act of 1850 is not in conflict with the provisions of section 376 of the Code in reference to enforcing judgments against the estate of a deceased judgment debtor, nor is it inconsistent with the remedy given by the Code. That act is cumulative, and makes the leave of the surrogate necessary in addition to the order and judgment of the court An execution cannot issue without the order and permission of both tribunals. The court of law adjudges the legal rights of the parties, and that the creditor is legally entitled to enforce the judgment against property in possession of the parties to the proceeding. The surrogate passes upon the

Statement of case.

rights of the creditor in view of the conflicting or equal claims of others upon the estate. Either proceeding may be first taken or they may pro ceed pari passu.

(Argued April 2, 1872; decided April 9, 1872.)

APPEAL from order of the General Term of the Supreme Court in the first judicial district, affirming an order of Spe cial Term setting aside an execution.

In March, 1867, and during the lifetime of the defendant, judgment was recovered in this action for $6,858.12. No execution was issued during defendant's lifetime. After the death of defendant, one Hammond commenced an action against plaintiff, and caused a warrant of attachment to be Issued against it as a foreign corporation. Under this attachment the judgment was levied upon and subsequently sold by the sheriff by order of the court. Mr. Hammond became the purchaser, who sold and assigned it to George Vanderlip. More than one year after the death of the judgment debtor, and within five years of the entry of judgment, Mr. Vanderlip applied to the surrogate, under chapter 295, Laws of 1850, for leave to issue execution against the estate, for the purpose of collecting his judgment, which was granted, and thereupon execution issued, and was levied upon certain leasehold premises of the deceased judgment debtor, which were advertised for sale.

Upon motion of the widow of and special administratrix of the deceased, an order was granted setting said execution aside as irregular, from which order said Vanderlip appealed, and upon its affirmance appealed to this court.

F. G. Salmon for the appellant. The execution was regularly issued. (Wilgus v. Bloodgood, 33 How., 289; Code, §§ 284, 428; Laws of 1850, chap. 295; Flannagan v. Tinnen, 53 Barb., 387.)

J. E. Burrill for the respondent. The order of the General Term is not appealable. (Bank of Genesee v. Spencer, 18 SICKELS-VOL. IV.

21

Opinion of the Court, per ALLEN, J.

N. Y., 150; De Barante v. Deyermand, 41 N. Y., 355.) The execution was irregular and unauthorized. (Dox v. Backenstose, 12 Wend., 542; 2 R. S., 88, § 32; Frink v. Morrison, 13 Abb., 80; Alden v Clark, 11 How., 213; Code, §§ 69, 428; Cameron v. Young, 6 How., 372; Thurston v. King, 1 Abb., 127; Ireland v. Litchfield, 8 Bosw., 634; 2 Burrill Prac., 164; 2 R. S., 477, [576], § 2; 2 Archbold Prac., 87; see People v. Corey, 19 Wend., 633, NELSON, J.; 1 Term Rep., 388, there cited; 6 id., 282, there cited; Dickey v. Craig, 5 Paige, 283.)

ALLEN, J. That the parties interested should have had notice of the application to the surrogate for leave to issue the execution, and an opportunity to be heard cannot well be doubted. The title to property once owned by the deceased debtor, and upon which the judgment was claimed to be a lien, had vested in other persons not parties to the record either by succession or grant, and heirs or terre tenants should not be divested of their property without a day in court. It is true, the act of 1850, chapter 295, does not in terms direct notice to be given, but enacts that the surrogate may, "upon cause shown," direct execution to issue. The form of procedure is not given, but if "cause" is "to be shown" in a matter affecting the interests of others, the facts alleged and the cause shown may be controverted by the parties to be affected. Not only are the claimants of the real property sought to be applied to the satisfaction of the judgment interested, but the personal representatives of the deceased debtor should be heard. They may show cause why there should not be execution of the judgment at once or at all having respect to the proper administration of the estate, or they may elect to pay from the personalty in exoneration of the realty. The personal representatives and the tenants of the lands sought to be charged in execution, were the real parties to the proceeding before the surrogate, and were entitled to be heard. The jurisdiction of the surrogate was improperly exercised without notice to the parties to be affected by the

Opinion of the Court, per ALLEN, J.

proceeding. Whether the want of notice renders the execution void or merely voidable, need not be decided.

Aside from this defect the execution was properly vacated and set aside for the want of authority for its issue from the court in which the judgment was entered. Prior to the adoption of the Code, if the judgment debtor died before execution sued out, an execution could only be had either against the personal representatives, or against heirs or terre tenants upon scire facias. The Code abolished the writ of scire facias, and enacted that the remedies theretofore attainable in that form might be obtained by civil action. A less expensive and more summary process was given to entitle a judgment creditor to execution upon a stale judgment, or after the death of the judgment debtor. In the one case, leave to issue execution can be had on motion after notice to the adverse party. (Code, § 284.) In the case of the death of a judgment debtor after judgment, the heirs, devisees or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting of administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively, and the personal representatives may be so summoned at any time within one year after their appointment. (Code, § 376.) The act of 1850, is not in conflict with the provisions of the Code, or inconsistent with the remedy given by it. It is cumulative, and adds another restraint to those already existing. The surrogate can regulate and adjust the equities of different claimants upon the estate, and provide for a proper preservation and distribution of the assets, while the court of law can only determine the legal rights of the individual judgment creditor.

Before the passage of the act of 1850 judgment could be enforced against the personal representatives of a deceased judgment debtor, or against property in the possession of heirs or terre tenants upon the order and judgment of the