Hecht v. Mothner — 54 N.Y. St. Rep. 121

Majority

p. 121

William Hecht, Resp’t, v. Minnie Mothner, App’lt.

(New York Common Pleas, General Term,

Filed August 9, 1893.)

Headnote

I. Former adjudication—Proof as to issues.

Matter dehors the record is not competent to show that the record is a judgment for or against a particular person. The fact must be ascertainable from the record itself.

2. District courts—Entry of judgment.

On the rendition of a verdict in district court the justice undertook to set aside the verdict and refused to enter judgment; but three'days later, on learning that he had no power to set aside the verdict, he entered judgment on the verdict. Held, no error; that the provision of the Consolidation act requiring judgment to be entered immediately on rendition of the verdict is directory only.

3. Parties—Assignee of claim.

The transfer of the legal title to a claim gives the assignee the right to maintain an action thereon, although the assignor expects to share in the' recovery.

Appeal from a j udgment of the district court in the city of Hew York for the fourth judicial district, which was entered on a verdict in plaintiff’s favor.

p. 122

Action to recover the agreed value of work, labor and services performed by plaintiff’s assignor at defendant’s request.

A. H. Sarasohn, for resp’t; A. H. Berrick, for app’lt.

Plaintiff sued as assignee of one Wolf Greenberg to recover the sum of eighty dollars and thirty cents, the agreed value of certain work, labor and services performed by the latter upon a number of coats at defendant’s request, and sufficient evidence was adduced on the trial to support the cause of action. Among the defenses was that by former adjudication between Greenberg, plaintiff’s assignor, and defendant, in an action for the claim and delivery of the same coats, it was determined that Greenberg was entitled to no more than $45.50 for such services, which sum, it was claimed, had been tendered him before the commencement of this action.

It was also contended for defendant that in the replevin action she recovered judgment against Greenberg for $22.50 costs and that amount she sought to have allowed her out of any recovery by the plaintiff in this action. Iri support of the defense •of former adjudication, and of the counterclaim, defendant introduced in evidence what purported to be a judgment roll of the ninth district court in the city of Mew York in an action wherein Minnie Mothner, the defendant herein, was plaintiff, and said Wolf Greenberg and one Abraham Petzkey were named as defendants. That record, however, did not in terms purport to be more than a “judgment for the plaintiff ” named therein “for return of the coats and $22.50 costs.” It did not state, specifically, that it is a judgment against the persons named as defendants, or either of them, nor did it appear therefrom that Greenberg either appeared or was served with the summons in the action. It is impossible, therefore, to ascertain from an inspection of the record that judgment was awarded against Greenberg, plaintiff’s assignor, or that Greenberg was concluded by it. Defendant’s attorney, who was also plaintiff’s attorney in the replevin action, testified as a witness for the defendant herein that Greenberg had appeared by attorney and as a witness in the replevin action, and had contested the right of the plaintiff therein to recover; he also testified to the substance of the issues litigated in the replevin action. Assuming now that the facts are as testified to by defendant’s attorney, they show at most that the justice at the time of the trial of the replevin action could have rendered an effectual judgment against Greenberg; not, however, that he did render judgment against him. Hence, the record remained ineffectual for the purposes for which it was offered. Matter dehors the record is not competent to show that the record is a judgment for or against a particular person. Black on Judgments, Vol. 1, §116, etc.; Collins v. Ilyslop, 11 Ala., 508 ; Finnagan v. Manchester, 12 Iowa, 521 ; McCartey v. Kittrell, 55 Miss., 253 ; Smith v. Chenault, 48 Tex., 455 ; Hays v. Yarborough, 21 id., 487 ; Little v. Birdwell, 27 id., 688; Wilson v. Nance, 11 Humph. (Tenn.), 189. The fact must be ascertainable from the record itself.

p. 123

This action was tried May 12, 1893, and on the same day the jury returned a verdict for plaintiff, and the justice, mistaking his authority, undertook to set the verdict aside and refused to enter judgment for the plaintiff thereon. That he had no authority to set the verdict aside was lately determined in Schwartz v. Wechler, 49 St. Rep., 147 , and upon discovery of the error the justice three days later entered judgment for plaintiff on the verdict. Nor do we perceive that the justice was wrong in so doing. With the rendition of the verdict the justice’s judicial discretion, so far as the particular case was concerned, ceased and was at an end. The entry of judgment on the verdict did not rest in his discretion. It was wholly a ministerial act, to the performance of which plaintiff had an absolute right enforceable by mandamus against the justice. Section 1380 of the Consolidation Act (chap. 410, Laws 1882), provides, concerning district courts in the city of New York, that judgment must be entered on the verdict immediately after its rendition. This provison is, however, directory only, Sutherland on Statutory Construction, § 446, &c.; and the justice’s refusal or delay to enter judgment in plaintiff’s favor on the verdict could not have the effect of depriving plaintiff of the benefit of the verdict nor of his right to the entry of such judgment.

The transfer of the legal title to Greenberg’s claim against defendant was sufficient to enable the plaintiff to maintain the action and to recover thereon, though the assignor expected to share in the recovery. Sheridan v. Mayor, 68 N. Y., 30 .

The judgment should be affirmed, with costs.

Giegerioh, J., concurs.