Opinion
February, 1900.
Shafer Levin, for appellant.
I.M. Aron, for respondent.
The action is upon a judgment obtained by the above-named plaintiff against the above-named defendant in one of the former District Courts of the city of New York, on the 25th day of July, 1893, for $100.78.
The pleadings were oral. The defendant besides pleading the general issue, sets up such judgment in bar. At the trial the judgment in suit was produced and admitted in evidence, and the nonpayment thereof was established by the testimony of a witness called by the plaintiff. The defendant did not produce any proof, and upon the close of the testimony moved to dismiss the complaint on the ground "that having one judgment, the plaintiff cannot obtain another against the defendant." The justice reserved his decision, and adjourned the case until a subsequent date for the purpose of enabling counsel to submit briefs. Two days after the time fixed for such submission, judgment was rendered in favor of the defendant, with costs. We are at a loss to understand upon what authority the decision of the justice is based. None, so far as the record discloses, was cited by him in support of his conclusion, nor has the respondent enlightened us since the appeal was submitted without argument, and without a brief in his behalf. No rule of law is better settled than that a judgment for a sum certain in money is a debt of record, and as such may be made the foundation of a new action. 11 Ency. Pl. Pr. 1085. At common law a party had a right of action upon his judgment, as soon as it was recovered, which was neither barred nor suspended by the issuing of an execution. Freem. Judg., § 432. In Hale v. Angel, 20 Johns. 342, it was held, that the common-law right, of bringing an action of debt as soon as a judgment is recovered, remained unimpaired, and that the statute did not give the action of debt, but is merely explanatory of such right. Smith v. Mumford, 9 Cow. 26, in which the last-cited case was referred to and followed, is to the same effect. Under the provisions of the Code of Civil Procedure (§ 382, subd. 7), an action upon a judgment rendered in a court not of record, except where a transcript is filed pursuant to section 3017, must be commenced within six years after the rendition thereof, and an examination of the record discloses that this action was brought within the prescribed period. The court below had jurisdiction of the case at bar. Greater New York Charter, § 1364, subd. 6.
Leave to sue upon a judgment rendered by a court, not of record, is no longer necessary, as section 71 of the old Code was repealed by Laws of 1880, chapter 245. While portions of said section have been incorporated into the Code of Civil Procedure (§§ 1913, 3154, 3155), the provisions regarding such leave apply only to judgments of courts of record. After considering every ground which has suggested itself in possible support of the disposition of the case made by the justice (Marvin v. Universal Life Ins. Co., 85 N.Y. 278, 284; Ferguson v. Gill, 74 Hun, 566, 569), I conclude, for the reasons above stated, that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
BEEKMAN, P.J., and O'GORMAN, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.