Murray v. Cameron — 38 N.Y. St. Rep. 792

Majority

p. 792

Charles S. Murray, App’lt, v. William T. Cameron, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

Stay—Costs—Assignee oe Judgment.

The assignee of a judgment takes its subject to all the disabilities which affected the assignor. Accordingly Held, that where a judgment was recovered against the defendant, proceedings supplementary taken thereon, and motion costs thereon awarded against the judgment creditor which were never paid, and subsequently a second assignee of the judgment brought an action thereon, he could" not maintain his action because of the failure of his assignors to pay said costs.

Appeal by the plaintiff from an order made at the Erie circuit, February, 1891, striking the cause from the calendar of that court.

M. A. Gearon, for app’lt; A. Cameron, for resp’t.

This action was commenced in October, 1890, on a judgment recovered by one McWhinney against the defendant, in the county of New York, in July, 1880, by default. The-judgment was first assigned to the attorney for the plaintiff in that, action, who is also the attorney for the plaintiff in this action, and afterwards by him to the plaintiff.

In January, 1890, proceedings supplementary to execution on the judgment, were instituted by the executrix of the original judgment creditor, which proceedings were, on motion of the defendant, set aside by order of the special term in New York, with ten dollars costs to the defendant, which were never paid.

Subsequent to the assignment of the judgment to the attorney Gearon, he issued an execution to Queens county, where the judgment had been docketed, and that execution was, on appeal to-

p. 793

the general term in the first department, set aside with ten dollars costs and the disbursements of the appeal, on the ground that all proceedings on the judgment were stayed by failure of the former owner of the judgment to pay the costs awarded to the defendant in the proceedings supplementary to execution. The costs and disbursements awarded against the first assignee of the judgment by the order of the general term were never paid.

Thereafter the second assignment was made to the plaintiff herein, and he commenced this action by the same attorney on the judgment.

We think the stay operated to prevent the prosecution of the action by the second assignee of the judgment, as it did to prevent the prosecution of the proceedings by execution taken by the first assignee. Both were proceedings to enforce the same judgment, though not proceedings in the same action. But the statute which gives the stay does not confine it to proceedings in the same action. Code Civ. Pro., § 779. The language of the provision is: “ Where costs of a motion, or any other sum of money directed by an order to be paid, are not paid, * * * all proceedings on the part of the party required to pay the same are stayed without further order of the court until the payment thereof.” And we follow the decision of the court in the first department in holding that the assignee of the judgment took it subject to all the disabilities which affected his assignor. MacWhinnie v. Cameron, 32 N. Y. State Rep., 985, and the cases cited.

To hold that the stay did not apply to an action on the judgment would be to permit an easy evasion of the statute and a defeat of the remedy given thereby.

The order appealed from should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Macomber, J., concurs.