Kopper v. Howe — 2 Hilt. 69

Majority

p. 69

John M. Kopper v. Amasa B. Howe.

Headnote

An action upon a judgment rendered in one of the District Courts, may be brought by a party to whom it has been assigned, without leave of the court first obtained. Such leave is only necessary where the action is between the original parties to the judgment.

Appeal by defendant from a judgment of the Third District Court. The action was brought by the plaintiff upon a judgment recovered by Grershom A. Seixas, against the defendant Amasa B. Howe, on the 16th day of December, 1857, in the First District Court, for the sum of $24.25, and assigned to the plaintiff. The only question was, whether he could maintain the action without showing leave of court first obtained to bring it.

Judgment was rendered for the plaintiff, and the defendant appealed.

James Parks, for the appellant.

Thomas B. Van Buren, for the respondent.

An action cannot be brought on a judgment rendered in one of the District Courts of this city, without leave of the court, (Mills v. Winslow, 2 E. D. Smith, 18, Thomas v. Sutphen, Id. 537), where the parties are the same; but where the action is not between the same parties, it may be brought without leave of the court. Tuffts v. Brainard ( 1 Abb. 84 ,) approved Wheeler v. Dakin, (12 How. Pr. R. 540), and relied on McButt v. Hersch, ( 4 Abb. 441 .) Section 41 of the Code prohibits the action on a judgment where it is between the same parties, and there is nothing in the section relating to leave to be obtained, which will justify the enlargement of the prohibition, so as to embrace actions not between the same parties. No right

p. 70

of action is taken away by section 71, ancl the assignee’s right to sue, resulting from his assignment, is not restricted by any provisions of the Code, except those providing for the time of commencing actions, §§ 74, 90.

Judgment affirmed.