Tuttle v. Robinson — 71 N.Y. St. Rep. 183

Majority

p. 183

Lewis Tuttle, Resp’t, v. Richard W. Robinson et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

1. Pleading—Judgment.

Where a complaint sets up a judgment rendered in a district court oí the city of New York, and neither alleges that the judgment was “ duly-given,” as required by section 533 of the Code, nor complies with the rule of the common law, it is fatally defective.

% Creditor's action—Complaint.

In an action brought by a judgment creditor to set aside a conveyance of real estate, a complaint, which does not show a judgment recovered in the county where the real estate is situated, nor docketed in that county, nor an execution issued by the clerk of such county, nor the residence of the judgment debtor in said county, is insufficient.

Appeal from an interlocutory judgment, entered on an order overruling a demurrer to the complaint.

Timothy F. Griffing, for app’lts;

George F. Stackpole, for resp’t.

This action was brought by the plaintiff, a judgment creditor of the defendant Eichard W. Eobinson, to obtain a judgment setting aside a conveyance of real estate from said Eobinson to the defendant Marguerite De-P. Eayuor. The first two allegations of the complaint are as follows :

“ That on or about March 3, 1894, in a justice’s court, in which Eichard W. Eobinson was defendant, the plaintiff recovered judgment against said Eichard W. Eobinson for the sum of fifty-one ■dollars and ninety-five cents.

“ That on the fifth day of March, 1894, .a transcript of said judgment was filed in Suffolk county clerk’s office, and an execution thereon was on the same day issued to the sheriff of Suffolk county, New York, and the same was thereafter returned by said sheriff wholly uusatisfied.”

The objections taken to these allegations are, we think, well founded. The common-law rule was that in pleading judgments of inferior courts of special and limited jurisdiction a general averment of jurisdiction was not sufficient. The facts upon which jurisdiction depended were required to be stated, and it was necessary to show that the court acquired jurisdiction of the person as well as that it had jurisdiction of the subject-matter. Dakin v. Hudson, 6 Cow. 221 : Bowman v. Russ, id. 234 ; Thomas v. Robinson, 3 Wend. 267 ; Cleveland v. Rogers, 6 id. 438 : Turner v. Roby, 3 N. Y. 193 . The Code modified this rule, and it is now provided (Code Civ. Proe. § 532) that in pleading a judgment or other determination of a court of special jurisdiction it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been “ duly given or made.” The plaintiff has not set out the facts showing that the judgment against Eobinson was recovered before a justice having jurisdiction to render the same, nor has he followed the rulé of the Code, The statement that the judgment was “ duly given ” is one of substance, and the omission to allege it is fatal to the complaint. Hunt v. Dutcher, 13 How. Prac. 538; Wheeler v. Dakin,

p. 184

12 id. 537; Gutting v. Massa, 15 St. Rep. 316 . In other respects, the complaint is defective. It does not appear that the judgment was recovered in this state, nor in .Suffolk county, nor that it was. ever docketed in that county, nor that the execution was issued by the clerk. Neither does it appear whether the judgment" debtor was a resident of this state, and, if he was, that he resided in Suffolk county. In view of the plain provisions of section 1872 of the Code, the omission to allege the facts in this regard is fatal to the pleading.

The judgment must be reversed, with one bill of costs of appeal, and the demurrer sustained, with one bill of costs of trial, with leave to plaintiff to amend his complaint within twenty days on payment of costs. All concur.

Cases cited

Dakin v. Hudson 6 Cow. 221 N.Y. Sup. Ct. p. 183
Thomas v. Robinson 3 Wend. 267 N.Y. Sup. Ct. p. 183
Turner v. Roby 3 N. Y. 193 N.Y. p. 183