Majority
p. 489SUPREME COURT. Carlon Church agt. Charles Van Buren. Oswego Special Term, November, 1877.
Headnote
Action upon a judgment—power of court to grant leave nunc pro tune.Where an action is brought upon a judgment rendered in the supreme court between the same parties, without first obtaining leave to bring the action, the court has power to grant such leave nunc pro tunc.
Motion for leave to sue upon a judgment rendered in this court between the same parties, nunc pro tunc, as of a day prior to the commencement of the action, and for an order allowing the plaintiff to amend his complaint so as to aver such leave. The affidavits of the plaintiff and his counsel showed an inadvertance, and excused the omission to get leave to sue, and that the statute'of limitations had run upon the judgment at the time of making the motion, but had not when the suit was commenced. So affidavits were read in opposition.
B. H. Tyler, for motion.
S. N. Dada, opposed.
The object of section 71 of the Code of Procedure was to prevent multiplicity of suits and accumulation of costs. The statute was aimed at the evil practice and designed to cut it off and prevent it. By bringing this action
p. 490
this court obtained jurisdiction of the parties and the subject-matter of the action. It has been held that leave to sue may be granted, nwnc pro tmnc, and the cases must be followed (Burrough agt. Smith and Hall, decided by Roosevelt, J., reported in Voorhies' Code, edition of 1855; Finch agt. Carpenter, 5 Abb., 225 ). But the defendant must be saved all costs he has incurred in defending this action, prior to granting such leave to sue nunc pro tuno, as he was. justified in making an objection that would have defeated the plaintiff’s recovery. Such an order is granted provided the plaintiff pays the defendant’s costs incurred; and on payment of such costs he may have an additional order allowing him leave to amend his complaint within twenty days from the time of the entry thereof, and the defendant may answer in twenty days after the service of the amended complaint
Note. — An appeal was taken from the order in this case to the general term in the fourth department, and the order was affirmed in June, 1878, on the opinion of Habdm, J., at special term. Section 71 of the Code of Procedure not having been repealed is still in force, and hence the importance of the foregoing decision. [Ed.