More than five years elapsed after the entry
of judgment before the execution was issued. It was. therefore irregularly issued, without leave of the’ court (Code, § 284). But this irregularity cannot be urged on this motion, because not specified in the notice of motion (Rule 46, and cases cited in note; Wait’s Prac., vol. 4, pp. 638, 639, and cases there cited). Hor is it sufficient that, the moving affidavits specify the irregularity. The notice of motion, or order to show cause, when the case comes before the court on an order to show cause, should point it out. The execution was not void, but voidable (18 N. Y., 150). The rule (46) has, *107therefore, application, and the objection to the execution, that it was issued without leave of the court, cannot be here insisted on, because not specified in the notice of motion.
The motion rests on the averment of payment. On this question of fact there is a direct and positive conflict in the proof submitted. The defendant swears unequivocally to the fact of full and entire payment, and speaks somewhat circumstantially. As to the amount for which the execution issued, §15.90, the plaintiff is equally distinct and emphatic. He denies that such balance has been paid. The defendant is corroborated by two affiants, who say that the plaintiff stated to them that the judgment was fully paid and satisfied.
On the other hand, the plaintiff assails the defendant’s integrity, and furnishes three affiants who state that they would not believe him under oath. The question is, then: With which party is the preponderance of proof on the whole case ? On this question I am under the impression that the defendant holds the strongest position. He is corroborated by two witnesses whose integrity is unassailed. They say that the plaintiff stated to them that the judgment was fully paid and satisfied. The plaintiff’s denial has no corroboration, but stands upon his individual assertion. Besides, there is the very significant circumstance, wholly unexplained, that ten years were allowed to pass after the entry of judgment before execution was issued for' the balance alleged to be unpaid. This delay called for explanation. Hone is offered. Here was a delay of execution for a time greatly exceeding the period fixed, by the statute of limitations, as a bar to a simple contract debt. For aught that appears, the defendant had property at all times within reach and subject to execution. Hor does it appear that he produced or sought the delay, or even made any overtures having that object in view. If this alleged balance of §15.90 remained unpaid, the omission to issue execution for its collection for the period of ten years is not a little remarkable. Standing unexplained, this circumstance is quite significant.
*108Thus, on the one hand, we have: First, the statement of the defendant averring payment; second, two affiants who swear that the plaintiff admitted payment to them; and, third, the unexplained delay of ten years before issuing execution on the judgment. On the other hand, we have only the plaintiff ’s denial of the alleged payments and admissions of payment. True, he challenges the defendant’s integrity by assaulting his character for truth; but whatever effect should be given such assault, when no opportunity is afforded him for vindication, it does not reach or meet the evidence furnished by the admissions of full payment to two unimpeached witnesses, to say nothing of the strange. delay in proceeding to enforce the debt for a period of ten years.
As the case is presented on this motion, the preponderance of proof is in favor of the alleged payment. But it is not well, I think, to bar a party on affidavits, against an asserted claim, fully aware, as I am, of the great importance of a public and open examination and cross-examination of witnesses. It is but right, in my judgment, to allow the plaintiff to sue the judgment in this case for the balance claimed by him to be unpaid, if he shall so elect. Then the parties and witnesses may be confronted in open court. The amount claimed _ is small, it is true, but the case must be decided on principles the same as if the sum involved was $2,500, instead of about twenty-five dollars only. A reference in similar cases is often ordered, but in this case that would be quite expensive, compared with the small amount claimed.
If the case is to be further litigated, it should be in justice’s court in the vicinity of the residence of the witnesses, where, it seems, the defendant also resides, and where the plaintiff frequently visits, as appears from his affidavit.
The order should be that the execution issued herein be set aside, and that there be a perpetual stay on the judgment, with liberty, however, to the plaintiff to sue thereon for the balance claimed, if so advised.
So ordered.