Dundee National Bank v. Wood — 30 N.Y. St. Rep. 607

Majority

p. 607

The Dundee National Bank, Pl’ff, v. Anthony T. Wood and Ralph T. Wood, Def’ts.

(Supreme Court, General Term, Fifth Department,

Filed April 11, 1890.)

Headnote

Execution—Cannot be issued on satisfied judgment in behalf of SURETY COMPELLED TO PAY.

A judgment was collected out of the property of one of the debtors who was surety for the debt, and was thereupon satisfied of record. Thereafter the assignee of such debtor procured an order for the assignment of the judgment to her and caused execution to he issued thereon. Held, that such execution was properly vacated; that the decision directing the-assignment was in no sense an adjudication that the assignee might issue execution to collect a satisfied judgment.

Appeal from an order vacating and setting aside executions.

J. A. Vanckrlip, for app’lt; William T. Morris, for resp’ts.

In May, 1884, the plaintiff recovered a judgment against the defendants for $2,542.44. The judgment roll was filed in Yates county and judgment docketed in Livingston county. Execution was issued to the sheriff of the county of Livingston to collect the judgment. In July, 1888, he collected the judgment in full, returned the execution, and the judgment was satisfied of record.

Anthony T. Wood was surety for the debt included in"' the judgment; the defendant, Ralph T. Wood, was the principal. The debt was collected out of the property of the surety.

Eliza E. Wood became the assignee of the surety; she made a motion to compel Shepherd, the assignee of the judgment, to assign the judgment to her. This was granted at special term, Justice 'Rumsey presiding. In pursuance of the order based

p. 608

upon tha decision, Shepherd assigned to her the judgment. She afterwards caused execution to be issued upon the judgment to the sheriffs of Yates and Livingston counties.

A motion was made at special term before Justice Davy to set aside these executions upon the ground that the judgment upon which they were issued was paid and satisfied of record. The * motion was granted, and an appeal was taken to this court.

A judgment is not valid so as to authorize proceedings thereon until the record is made, signed and filed. Section 1839, Code of Civil Procedure, and § 1250.

Section 1264 provides that where execution is "returned wholly or partly satisfied, the clerk shall make an entry of satisfaction in whole or part “ Thereupon the judgment is deemed satisfied to the extent of the amount returned as collected, unless the Teturn is vacated by the court.” Sections 1266 and 1267.

There can be no execution without a judgment; if for any neason it has been improperly satisfied, the remedy is to vacate the satisfaction and restore the judgment, after which the lien can be enforced. Freeman on Judgments, 480; Same on Executions, § 19; Foot v. Dillaye, 65 Barb., 521 ; 2 Rumsey’s Practice, 791; Crotty v. McKenzie, 42 Super., 192.

The surety or his assignee are not without remedy, as equity will afford relief.

The decision directing an assignment to Eliza E. Wood is in no sense an adjudication that she may issue execution to collect a .satisfied judgment.

The order must be affirmed.

Dwight, P. J., and Macomber, J., concur.