Motions for leave to issue execution after the lapse of five years are within the court’s discretion. (Van Rensselaer v. Wright, 121 N. Y. 626, 630; Shuman v. Sfirauss, 52 id. 404.) The delay raises a presumption of payment or other release or discharge of the judgment. (Betts v. Garr, 26 N. Y. 383, 384.) Here it is claimed an agreement was made which was carried out. There is no denial of this. If it be so, execution should not issue. (Partridge v. Moynihan, 59 Mise. 234.) In any event the papers present a situation which makes it improper for the court to exercise its discretion. (See People v. Carlin, 191 App. Div. 258.) The creditor is not necessarily prejudiced, for he may seek leave to bring an action upon the judgment. (Partridge v. Moynihan, 59 Misc. 234, 238.) Motion denied; ten dollars costs.