Saxe v. Peck

Full title: WILLIAM A. SAXE, Respondent, v . ALFRED G. PECK, Appellant

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 29, 1910

139 App. Div. 419 (N.Y. App. Div. 1910)

124 N.Y.S. 14

Opinion

June 29, 1910.

Benjamin E. De Groot and E.L. Nugent, for the appellant.

Calvin S. McChesney, for the respondent.

SEWELL, J.:

It is a well-settled rule in this State that a party has a right to sue on any cause of action which he holds, and any statutory exception to that right must be distinctly expressed. ( Goodyear Vulcanite Co. v. Frisselle, 22 Hun, 174.)

The only statutory restrictions to an action upon a judgment for a sum of money, rendered in a court of record of this State, are contained in section 1913 of the Code of Civil Procedure. That section provides, among other things, that an action upon such a judgment cannot be maintained between the original parties to the judgment unless ten years have elapsed since the docketing of the judgment, or the court in which the action is brought has previously made an order granting leave to bring it.

This statute clearly indicates an intention not to extend the prohibition to an action upon a judgment rendered in a court of record, if ten years have elapsed since the docketing of the judgment, or to assignees of the judgment. It was said in Carpenter v. Butler (29 Hun, 252) that "The mischief intended to be obviated by this statute is prevented by this construction, and no reason exists for extending the interdiction to honest assignees. There are many reasons why such new owners of judgments should renew the same by action. The record will thus be made to stand in their own name free from the interference of the original plaintiff, and execution may be issued to enforce the judgment at the pleasure of the actual party in interest, and remain under his control. The cases Wheeler v. Dakin (12 How. Pr. 537); Smith v. Britton (45 id. 428) and Tufts v. Braisted (4 Duer, 607) furnish support for these views." That section 1913 does not apply where, as in this case, the judgment has been assigned was also held in Carpenter v. Butler (29 Hun, 251); Knapp v. Valentine (67 N.Y. St. Repr. 582) and in McGrath v. Maxwell ( 17 App. Div. 246), decided by this court.

I think, therefore, that the demurrer was not well taken and that the interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer within twenty days upon payment of costs in this court and in the court below.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to defendant to withdraw his demurrer and answer within twenty days on payment of costs in this court and in the court below.