In re Van Beuren — 33 A.D. 158

Majority

p. 158

In the Matter of the Petition of Elizabeth S. Van Beuren and Others, Respondents, for Leave to Sue Frances A. Wotherspoon and Others, Appellants.

Headnote

■Judgment-^-a money judgment only can be sued upon under Oode O. P.. §1913 — what is not a money judgment.

It is only a judgment for a sum of money that can be sued upon under the provisions of section 1913 of the Code of Civil Procedure.

The fact that it is necessary to bring :an- action, not only to establish the right of recovery, but to fix the amount thereof, shows that the judgment in question-is not embraced within the provisions of that -section of the Code.

p. 159

Appeal by Frances A. Wotherspoon and others, appearing specially in this proceeding for the purposes of the motion and of this appeal only, from an order of the Supreme Court, made at the Rew York" Special Term and entered- in the office of the clerk of. the county of Rew York on the 23d day of May, 1898, granting leave to the petitioners, Elizabeth S. Van Beuren and others, to bring an action against the said Frances A. Wotherspoon and others.

Nelson S. Spencer, for the appellants.

William Mitchell, for the respondents.

It appears from the proposed complaint that the respondents, as plaintiffs, in January, 1896, began an action against the appellants to procure certain relief arising out of a lease which the respondents’ ancestor had made tq the appellants and others. ' It was adjudged, among other things, as the result of that action, that the appellants, should pay to the respondents, for the use arid occupation of the premises in question, a certain sum, which was. fixed as. the valué of that use and occupation to the 1st day of March, 1897, the date of the entry of the judgment.' The judgment further provided that “And the defendant’s,^[1] objecting and insisting that the plaintiffs are not' entitled to the value of the use and occupation of said premises since the date of the referee’s report, it is hereby ordered, adjudged and decreed that this judgment shall not bar or be a defense to a recovery hereafter, by the -plaintiffs or those claiming under them in any other action or proceeding which they may bring against the defendants or any of them for such use and occupation.”

Pursuant to the judgment then entered the plaintiffs had the right, upon payment of a certain sum of money, to take possession of the premises, and on the 8th -of May, 1897, they took possession of those’ premises, and in the settlement of the amounts due, which was necessary to enable them to take such possession, the amount which had been fixed as'the value of the use and occupation down to the 1st day of March, 1897, was paid and satisfied. But the plaintiffs claim that the defendants having occupied the premises

* Sic.

p. 160

from the ' 1st of March, 1897, to the 8th day of May, 1897, are still indebted to them for it, and they have made this motion, for ' leave to bring an action upon the judgment fixing.the amount for the use and occupation to the 1st of March, 1897, claiming that pursuant to that judgment they are entitled to recover the value of the use and occupation at the same rate from the first of March to the eighth day of May, the time when the possession of the premises was finally delivered to them. ■ "The appellants, on the contrary, insist that whatever may be the effect of the judgment as fixing the. rights of the parties to the úse and occupation of the prem ises and its value, it is not a judgment upon which an action can be brought, and for that reason no leave to sue should have been granted. The Oode provides that an action Upon a judgment for a sum of money, rendered in a court of récord in. this State, cannot be maintained . between the original parties to the judgment unless the court in which the action is brought has previously made an order granting leave to bring it. (Code Civ., Proc. § 1913.) This is the only provision requiring leave to sue to be given before the bringing of an action upon, a judgment, and it is the only authority giving to the court the power to grant such leave. In terms, it applies only to a judgment for a sum of money. That has been construed ;o mean not only a final judgment within the technical sense of - that term, but one which has been duly docketed and upon which an execution can be issued. (Hanover Fire Ins. Co. v. Tomlinson, 3 Hun, 630 .) The judgment must be one which requires the payment of á sum of money, so that the amount to be paid and' the circumstances under ■ wMch it should be paid are fixed by the judgment and can tie ascertained by a resort to it. - (Catlin v. Doughty, 12 How. Per. 457.) This judgment is clearly not within that provision of the Code. It is not a judgment for a sum of money at all: -Whatever may be its force and effect as an adjudication upon the rights of the parties,, from which it may be inferred that the appellants are bound to pay for the use and occupation of, the premises, it contains in itself no. direction requiring such payment, nor does it- fix any sum which is to be paid. If it did do so, it would be a judgment for a supi of money, and in that case an execution might be issued upon it and The very fact- that it is necessary to no action need b.e brought. bring an action not only to establish the right, but to fix the-a mount,

p. 161

shows that the judgment is not one within the provisions of section 1913 of the Code.

The order must, therefore, be reverséd, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett, O’Brien and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.