Hofferberth v. Nash

.This is an action under section 1937 of the Code of Civil Procedure to charge the property of the defendant with the sum remaining unpaid upon a judgment rendered against him and his joint debtor in a suit in which only the other joint debtor was served with the summons, no service having been made upon this defendant. The judgment in that suit was obtained on March 4th, 1884. The present action was commenced more than eighteen years later, namely, on June 26th, 1902. The defendant pleaded the six years’ and the ten years’ Statute of Limitations. Both the City Court and the Appellate Term of the Supreme Court have held that neither plea was available to him; but a contrary view has been entertained by the Appellate Division, in which four judges were of the opinion that the ten years’ Statute of Limitations was a bar, while one of them thought that the action was barred by the six years’ statute.

In order to charge the individual property of one joint debtor with a claim for which a judgment had been obtained upon service of process on the other joint debtor, but without such service upon him, the remedy afforded to the creditor by the old Code of Procedure was not a new action, but a

Under the Code of Procedure as originally enacted, the Statute of Limitations was excepted from the defenses available to the unserved joint debtor thus summoned to show cause why he should not be bound by the original judgment; but that exception was removed in 1SGG. (Laws of 18G6, chap. 824, sec. 15; Lane v. Salter, 51 N. Y. 1 .) The permission thus afforded to plead the Statute of Limitations availed nothing to the defendant, however, unless the defense existed at the time of the commencement of the action in which the original judgment was obtained, or unless twenty years had elapsed since the rendition of that judgment, when there would arise a presumption that it had been j>aid. (Maples v. Mackey, 89 N. Y. 145 .) The remedy was not an action, but a special proceeding; and there was then no'Statute of Limitations which prescribed the time within which such a proceeding must be commenced.

The character of the remedy, however, was altered by the enactment of the Code of Civil Procedure and thereafter it became a new action instead of a proceeding at the foot of the judgment in the original action. As was pointed out by Andrews, J., in Morey v. Tracey ( 92 N. Y. 581 ) the action

The limits of time within which a civil remedy must be enforced are prescribed in chapter IV" of the Code of Civil Procedure (sections 362 to 415 inclusive). Section 376 provides that a final judgment for a sum of money is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was entitled to a mandate to enforce it. There can be no presumption here that the original judgment was paid, inasmuch as only eighteen years elapsed between its rendition,and the commencement of the present action. Section 382 requires an action upon a contract obligation or liability, express or implied (except a judgment or sealed instrument), to be commenced within six years after the cause of action has accrued. That limitation is not available to the defendant here because his cause of action is not based solely.upon the copartnership liability sought to be enforced in the suit in which the original judgment was recovered. Section 388 provides that an action, the limitation of which is not specially prescribed under the title which contains that section or in the preceding title, must be commenced within ten years after the cause of action accrues. There is no other specially prescribed limitation, in either of the titles, which can possibly apply to the

I think it is and for the following reasons: The action which the Code of Civil Procedure (section 1937) has substituted for the special proceeding at the foot of the original judgment under the Code of Procedure (section 375) rests upon a double basis: (1) The existence of the claim sought to be enforced in the first action ; and (2) the recovery of a judgment thereon. Both of these elements are essential to the maintenance of this statutory action and, therefore, the plaintiff’s cause of action does not accrue until the recovery of the original judgment. It does then accrue, however, eo instanti and from that moment it is within the plaintiff’s power to institute a suit under section 1937 to charge the property of the unserved joint debtor. I can see no escape from the conclusion that the' ten years’ Statute of Limitations then begins to run against him, and if he allows that period to pass without commencing suit his right to sue is gone.

We have been referred to only one case in this court which contains any intimation at variance with this view. In Long v. Stafford ( 103 N. Y. 274 ) the action was brought under section 1937 of the Code of Civil Procedure, to charge the property of the defendant with a judgment against himself and another person sued as joint debtors but without service upon him. The original action was brought to recover rent and it was objected that the plaintiff’s demand for rent was at the time of the commencement of the second action barred by the Statute of Limitations. As to this objection, Judge Earl declared that inasmuch as the case before the court was a proceeding to charge the defendant with the original judgment, the cause of action was not barred unless the judgment was barred; and upon that point he cited Maples v. Mackey (supra). He furthermore expressed the opinion that the Statute of Limitations was unavailable because the defendant’s original liability for rent arose upon a lease under seal. It is quite evident from the reference to the Maples case,

The order should be affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.

Cdllicn, Oh. J., Haight, Vann, Webneb, Hisoook and Chase, JJ., concur.

Ordered accordingly.