The defendant urges that under section 376 a final judgment for a sum of money is presumed to be paid after 20 years. In this instance, if there is a judgment for costs,—that is, a judgment on which an execution to collect the costs could issue,—that section applies to that part of the judgment. The roll is not before us; it is in the printed papers. We do not understand that the order authorizes an execution to collect the costs. The defendant urges that under section 1507 the amount of rent in arrear must be “fixed” in the judgment, and that, therefore, as to that amount also, this judgment is strictly for a sum of money. We think not. The fixing of that amount in the judgment is only to enable the defendant to avail himself of sections 1508 and 1509. Section 1508 gives him the privilege, within six months after possession has been delivered, to redeem his land by payment of the amount of rent due, with interest and costs. This is a privilege to the defendant, not a judgment that he must pay such an amount. Section 1373 authorizes the writ of possession, and says that, if a sum of money is awarded, it may be collected by virtue of the same execution. That only means that the plaintiff may insert in the writ of possession a mandate to collect any money adjudged to him, not that it must be so collected, or that it can be collected without the insertion of a mandate to that effect.
The question in the present case is not precisely what it would be in a case of recovery of land against an adverse claimant. Here the recovery is solely for non-payment of rent; and, further, a right to redeem extends until six months after possession delivered to the plaintiff. Clearly, then, the defendant has had the right, during all this time since the judgment, to pay the rent which had then accrued, and thus to relieve himself from the judgment. He was not for that purpose required to pay subsequent rent. Section 1508, and note to section 1509. We have, then, a case where the plaintiff has a right by his judgment to take possession at once of land, and the defendant has a right, on the payment of a certain sum, to retain possession or to recover it within six months after it has been lost. For more than 20 years the defendant remains in possession, "and the plaintiff does not take the possession adjudged to him. What is-the presumption? Is it not that the defendant has, at some time during these 20 years, paid the sum necessary, and thus become entitled to keep the possession?
The theory on which all this doctrine of limitations rests is that persons do not sleep on their rights; that the probability is that debts have been paid, when creditors do not enforce them. This applies here. Unless the defendant had paid the rent in arrear, why did not the plaintiff issue his writ of possession? The defendant’s affidavit states that the judgment, rent, and costs are fully paid and satisfied. His statement is sustained by the presumption "of the ease. Furthermore, although this judgment is not in form for the payment of a sum of money, yet this may be considered to be its practical effect, inasmuch as that is all which the plaintiff can have if the defendant chooses to redeem. In Samson v. Rose, 65 N. Y. 411, the commission of appeals held that, upon the commencement of an action in ejectment for non-payment of rent, the estate of the tenant ceased, and all crops thereafter belonged to the lessor. But in Cagger v. Lansing, 64 N. Y. 417, the court did not decide what were the rights of the tenant after judgment; nor does section 1524 detract from the privilege of redemption above mentioned. Section 1377 limits the time within which the plaintiff has a right to issue execution. After that *887time he can issue it only in two cases, the first of which does not exist, and the second is by order of the court. Thus there is a statutory limitation of five years. These provisions are a substitute for the old scire facias, which could be brought only within 10 years after docketing a judgment, (2 Rev. St. marg. p. 577, § 3;) the right to issue execution being limited to two years, (2 Rev. St. p. 363, § 1.) This limitation of the scire facias was the same with the lien of the judgment. We can hardly think that under the Code the privilege of obtaining leave to issue execution should last for all time; and we are of opinion that, in analogy to statutes already cited, the lapse of 20 years (if not less) should bar the application. Order reversed, with $10 costs and printing disbursements, and motion denied.