Power Publishing Co. v. Hall — 69 N.Y.S. 533

Majority

p. 533

POWER PUBLISHING CO. v. HALL et al.

(Supreme Court, Special Term, New York County.

March 26, 1901.)

Headnote

Process—Joint Debtors—Service of Complaint and Summons after Judgment-Effect.

Code, § 1932, provides that an action may he maintained by the judgment creditor against one or more of the defendants who are not summoned in the original action to procure a judgment charging his or their property with the sum remaining unpaid on the original judgment. Held that, where the record did not show that one of three defendants was served with process, the service of a copy of the complaint and summons on such defendant after the entry of judgment against his co-defendants did not entitle plaintiff to an order subjecting such defendant’s property to the judgment, since an action on the judgment was necessary to charge such property.

Action by the Power Publishing Company against Charles F. Hall and others. Judgment for plaintiff. Motion by plaintiff for an order that the property of a judgment debtor who was not served with process be made subject to the judgment.

Order refused.

William H. Northrup, Jr., for plaintiff.

The plaintiff recovered a judgment January 30,1901, against three defendants jointly on service of process against two of them, and the judgment and docket thereof properly' show that one of the defendants was not summoned. On March 2, 1901, .after the entry of judgment, a copy of the summons and complaint was served on the defendant who had not been served with process. On the theory that the said defendant is now in default, the plaintiff applies for an order directing the clerk to strike from the record the words “not summoned,” opposite the name of said defendant, to the end that all his property may be bound by the judgment. There is no warrant for such practice. Under the former Code (section 375), when judgment was recovered against one or more of several persons jointly indebted upon, a contract, those who were not originally summoned to answer the complaint might be summoned to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned. This was changed by section 1932 of the present Code, which provides that an action may be maintained by the judgment creditor against one or more of the defendants who were not summoned in the original action, to procure a judgment charging

p. 534

Ms or their property with the sum remaining unpaid on the original judgment. See 3 Rum. Prac. 368; 2 Abb. New Prac. p. 833, form 1592. The court must, therefore, decline to make the order applied for.