Brush v. Hoar — 15 N.Y. St. Rep. 859

Majority

p. 859

Samuel C. Brush, Resp’t, v. Charlotte Hoar, as Adm’r’x, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Limitation of actions—Action on judgment of court of record must BE BROUGHT WITHIN TWENTY YEARS.

The limitation for actions upon judgments in courts of record is the same under the present Code as before its adoption, twenty years.

2. Defense—Waiver of—Leave to sue—Defense that reave was not OBTAINED IS WATTED IF NOT RAISED BY DEMURRER OR ANSWER.

In an action upon a judgment of a court of record, the defendant can

p. 860

not upon the trial raise the objection that leave to sue should have been obtained under Code Oiv. Pro., § 1913. That defense is waived if not raised by demurrer or answer.

Appeal from a judgment rendered at a circuit in Kings county.

It. W. Keene, for resp’t; S. II. Stuart, for app’lt.

—Sections 376, 377 and 378 of the Code of Civil Procedure, furnish the rule as to limitation of actions upon judgments. The following sections give the rule as to various other causes of action, and section 388 refers to actions not before provided for in this or the last title.

It follows that the limitation for actions upon judgments in courts of record is now, as it was before the present Code, twenty years.

Whether an execution will issue upon the judgments without application for leave is a question not now before the court. Nor can defendant now raise the question as to whether leave to sue should have been obtained under section 1913. That defense was not raised by demurrer, nor answer, and was, therefore, waived. It may well be that such leave was had and not pleaded.

Judgment affirmed with costs.

Barnard, P. J., concurs. Dykman, J., dissenting.