Misc.] City Court of New York, April, 1908. interest of the judgment debtor, Charles A. Coutant, in the said premises is an estate in fee simple," it complies with the rule as laid down in the case cited relative to specifying the judgment debtor's interest in the real property sought to be levied upon and sold, and, therefore, the first ground for vacating and setting aside the same is not well taken. 2. The second ground is also disposed of by the case of Garczynski v. Russell, supra, because in order to sustain that ground it would be necessary to invoke the provisions of section 1369 of the Code of Civil Procedure, and this case holds that this latter section does not apply where an execution is issued under section 1252. The language of 1369 is: "It must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter." In the case under consideration special provision is otherwise provided by law, viz., section 1252 of the Code of Civil Procedure. It, therefore, follows that the second ground is not well taken. 3. The third ground is answered by the provisions of section 1377 of the Code of Civil Procedure, which provides: "After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, in one of the following cases only: "1. Where an execution was issued thereupon, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted." It appears from the papers in this case that an execution was issued thereupon within five years after the entry of judgment, and was returned by the sheriff wholly unsatisfied, and I know of no limitation placed upon section 1377, and, therefore, the third ground is not available. 4. Prior to the enactment of section 1376 of the Code of Civil Procedure, an execution could not be issued after the death of the judgment creditor; his personal representatives Supreme Court, April, 1908. [Vol. 59. had to bring an action on the judgment. Wheeler v. Dakin, 12 How. Pr. 537. This rule has been changed by sections 1376 and 1377, which must be read together in order to give them full force and effect. The case of Atlas Refining Co. v. Smith, 52 App. Div. 109, cited by counsel for defendants, is not applicable to the case under consideration. There the judgment debtor had died and the court decided it was necessary to apply for leave to issue an execution against the decedent's estate, as provided by sections 1379, 1280 and 1381 of the Code of Civil Procedure. In this case the execution is issued, not against the decedent's estate, but by a decedent's estate against a living person. I, therefore, hold that the fourth ground has not been sustained by defendants. Motion is, therefore, denied. CANUTO H. LATASA, Plaintiff, v. MARK ARON and EDWARD H. CONROY, Defendants. (Supreme Court, New York Trial Term, April, 1908.) False imprisonment - Actions - Verdict - Different amounts against different defendams Where the jury in an action for false imprisonment are warranted in finding that one of the defendants was guilty of actual malice and that the other defendant was innocent thereof, a verdict, by which compensatory damages against each defendant are fixed at $200 and punitive damages in an additional amount of $2,300 are assessed against the defendant acuated by malicious motives, is valid. MOTION to set aside the verdict in an action for false imprisonment. John Goode, for plaintiff. Hollander & Bernheimer, for defendants. Misc.] Supreme Court, April, 1908. In FORD, J. This is a case of false imprisonment. The jury were warranted in finding, and for the purpose of sustaining the verdict it must be assumed they found, that the defendant Aron was actuated by flagrant actual malice and, therefore, liable for punitive as well as compensatory damages, and that the defendant Conroy was innocent of actual malice and, therefore, liable for compensatory damages only. Against the former they found a verdict for $2,500, against the latter one for $200. The manifest interpretation of these findings by the jury is that they fixed compensatory damages at $200 and assessed punitive damages in the additional amount of $2,300 against that defendant who was actuated by malicious motives. As to whether a verdict in such form can stand as against joint tort feasors has never been squarely decided in this State. At least, neither counsel has cited a case directly in point, nor have I been able to find one. general, it may be said that the cases in which the liability as between joint tort feasors is discussed are those arising out of negligence or some state of facts wherein punitive damages do not enter as an element. The Supreme Court of Pennsylvania (McCarthy v. De Armit, 99 Penn. 63) has decided that such a verdict cannot stand, but that decision is based upon the old English case of Clark v. Newsam, 1 Ex. 131, 139, wherein the question as to the adequacy of compensatory damages alone was involved. It is true that an obscure dictum is there found which suggests the doctrine laid down in the Pennsylvania case (supra), but a careful reading of the whole of the English decision, with its accompanying arguments and notes, clearly shows how far short it falls of the broad meaning given to it by the Pennsylvania court. The Appellate Court of Illinois (Partridge v. Brady, 7 Ill. App. 639) holds that such a verdict cannot stand, but cites no authority. I do not consider those cases decisive of this motion, particularly, as I have said, since the old English case cited as authority (supra) is not at all in point. I am convinced that the jury in this case honestly endeavored to render a just verdict, and although the form in which it. was returned was unexpected by both the trial court and counsel, yet it seems to me to accord with reason and common City Court of New York, April, 1908. [Vol. 59. sense. In my opinion, aside from the purely legal aspect of the case, the evidence furnished ample warrant for the verdict rendered. Motion to set aside the verdict and for a new trial is, therefore, denied. Motion denied. CHARLES F. MATTLAGE, Plaintiff, v. MICHAEL MCGUIRE, Defendant. (City Court of New York, Trial Term, April, 1908.) A covenant of renewal in a written lease does not call for the execution of a new lease for the further term in order to bind the parties. Where a written lease for five years contains a covenant for a further lease for six years at an advanced rent, provided the tenant gives notice of his desire to have such lease, and the tenant gives the prescribed notice and remains in possession and pays the advanced rent, an extension of the original term is effectuated and constitutes the "further lease" mentioned in the covenant. MOTION to set aside a verdict and for a new trial. Olcott, Gruber, Bonynge & McManus (Theodore B. Chancellor of counsel), for plaintiff. William F. Walsh, for defendant. O'DWYER, Ch. J. The lease in question was made on January 20, 1898, for a term of five years commencing February 1, 1898, at a yearly rental of $6,000, to be paid in equal monthly payments in advance, and contained the following covenant: "And it is further covenanted and agreed by the party of the first part that party of the second part may have a further lease of the premises hereby demised for a period of six years from February 1, 1903, at a yearly Misc.] City Court of New York, April, 1908. rent or sum of six thousand and five hundred dollars ($6,500), provided said party of the second part gives to party of the first part written notice of his desire to have such lease on or before December 1, 1902." It is conceded that prior to December 1, 1902, the defendant gave notice of his desire to avail himself of the privilege contained in the clause above set forth for an extension, renewal or further lease of said premises, and that the plaintiff acknowledged the receipt of such notification. It is further conceded that after February 1, 1903 (the time when the original five years' term expired), the defendant continued in possession of the premises, paying rent to the plaintiff at the increased rate of $6,500 per year; that the rent was so paid to and including the month of November, 1906; that either the defendant, or the defendant's wife as his assignee, continued in possession of the premises until about the middle of January, 1907, when they abandoned said premises. Defendant insists that the covenant for renewal in the lease in question specifically calls for the execution of a new lease for the further period of six years, and that defendant was entitled to a formal lease in writing for such further period; that a further term for six years could be created only by a written lease. If that was the language of the covenant the defendant's position would be much stronger than it is. The language of the covenant in fact is "that party of the second part may have a further lease of the premises hereby demised for a period of six years from February 1, 1903, at a yearly rent or sum of sixty-five hundred dollars ($6,500).” The cases where, under similar covenants, the courts have decreed by way of specific performance that the party is entitled to a new lease do not necessarily hold that a new indenture of lease is necessary in order to bind the parties. The defendant having notified plaintiff that he desired a continuation. of the lease, as provided for by the covenant contained herein, and having remained in the premises after February 1, 1903, paying rent to the plaintiff at the increased rate, was bound for the full renewal period as effectually as though a new indenture of lease had been executed. Probst v. Rochester Steam Laundry Co., 171 N. Y. 584; Pflum v. |