Dearing v. Boss

What constitutes the entry of a judgment is prescribed by sections 1236, 1237, 1238, and 1239 of the Code of Civil Procedure. A decision and judgment were signed by the justice before whom the mechanic’s lien action was tried, but none of the Code requisites of filing and entering the judgment has been complied with. Section-1239 provides that “a proceeding to enforce of collect a final judgment cannot .be taken until the judgment-roll is filed.” The condition of the defendants’ -bond given to release the real estate of one David Quigley from the mechanic’s lien filed by plaintiff was that:

“If the said David Quigley or his legal representatives shall well and truly pay or cause to be paid any judgment that may be rendered against the said property in any proceedings to enforce the said lien, then this obligation shall be void, otherwise to remain in full force and virtue.”

There are decisions in other jurisdictions and some in this state under the old Code of Procedure, and in actions in Justices’ Courts, to the effect that the pronouncing of judgment after the trial and final submission of a case where there is nothing more to be done than to enter the judgment constitutes the “rendition of a judgment.” It may be that, inter partes, a judgment may be deemed “rendered,” even though there be an omission or neglect to formally enter the judgment, as where the right to an appeal of a party is involved. Fleet v. Youngs, 11 Wend. 522 , 527, 528; Bank, of Geneva v. Hotchkiss, 5 How. Pr. 478 . But, where the right of action against a third party, like the defendants, who were sureties, depends upon the prerequisite bf the rendition of a judgment, it seems to me it must rest upon a judgment duly entered and which is in a condition to be enforced as provided for by section 1239. The signature of the justice to the decision and the judgment merely constituted authority for the entry of the judgment (Knapp v. Roche, 82 N. Y. 369 ) and until an actual entry of the judgment an action upon the bond given by the defendants is premature. Since the trial of this action it appears that plaintiff has procured an order nunc pro tunc directing the filing of the judgment in the office of the clerk of the county of New York as of the 13th day of June, 1901, and that the judgment was duly filed on May 16, 1907, pursuant to said order. It seems to me, however, that the rights of tiie parties ipust be determined as of the date when the ac

Complaint dismissed, with costs.