Brinkman v. Cram

Headnote

Brinkman v. Cram, 175 App. Div. 372 , affirmed.

Appeal from a judgment, entered December 20, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury, and directing a

dismissal of the complaint in an action to recover on a judgment recovered by plaintiff’s assignors March 1, 1895. The summons and complaint herein were served in January, 1916. The question was whether the original judgment, after the expiration of twenty years, is conclusively presumed to have been paid and satisfied, pursuant to sections 376 and 378 of the Code of Civil Procedure, or whether the plaintiff may invoke section 401 of the Code of Civil Procedure to extend the twenty-year limitation, by proving that, at various times during the twenty-year period, the defendant was absent from the state. It was alleged in the complaint that nothing had ever been paid on the judgment, and it was neither alleged nor. proved that defendant ever made any written acknowledgment of indebtedness of any part of the amount recovered in the judgment.