Hyperlawhypertext legal database Saxe v. Peck 139 A.D. 419

← Cases

Saxe v. Peck

139 A.D. 419 Court Third Department, Decision date 1910-06-29 English

Delivered by Sewell, J.:

Contents

Majority

p. 419
William A. Saxe, Respondent, v. Alfred G. Peck, Appellant.
Third Department,
June 29, 1910.

Headnote

Judgment — suit by assignee within ten years.
A party has a right to sue on any cause of action which he holds, and any statutory exception to the right must be distinctly expressed.
An assignee of a judgment may sue thereon although less than ten years have elapsed since it was docketed.
Appeal by the defendant, Alfred G-. Peck, from'an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the 7th day of March, 1910, upon the decision of the court after a trial at the Bensselaer Special Term.
The action was commenced January 18, 1910, to recover upon a judgment for a sum of money. The complaint alleges that on the 10th day of July, 1895, one Ellen Gr. Saxe recovered a judgment in the Supreme Court of the State of New York against the defendant for the sum of $7,142.11, and that the judgment was on that day duly docketed in the office of the clerk of the county of Bensselaer ; that an execution on said judgment was duly issued to the sheriff of Bensselaer county, and was returned wholly unsatisfied July 31, 1896 ; that before the commencement of the present action the judgment was assigned to the plaintiff herein and that no part of the same has been paid or satisfied. The demurrer is upon the
p. 420
ground that the complaint does not state facts sufficient to'constitnte a cause of action.
Benjamin E. De Groot and E. L. Nugent, for the appellant.
Calvin S. McChesney, for the respondent.

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 he 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 19Í3 of the Code of Civil Procedure. That section provides, among other things, that .an action upon such a judgment cannot he 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, orto 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. Bakin ( 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

p. 421
the interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw his demurrer ánd 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.

Cases cited