Goodyear Dental Vulcanite Co. v. Frisselle — 29 N.Y. Sup. Ct. 174

Majority

p. 174

THE GOODYEAR DENTAL VULCANITE COMPANY and JOSIAH BACON, Appellants, v. MARCELLUS M. FRISSELLE and HYMAN ROSA, Respondents.

Headnote

Judgment of the United States Circuit Court — an action will lie thereon, though it has been docleeted, without first obtaining the home of the court — Code, § 71.

A judgment of the United States Circuit Court, though docketed in a county clerk’s office, still remains a judgment of that court, and an action can be brought thereon without first obtaining leave from the court" so to do, as is required by section 71 of the Code when an action is to be brought upon a judgment recovered in a court of this State.

Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.

This action was brought, without leave of the court, upon a judgment recovered by these plaintiffs against these defendants, on February 18, 1876, in the United States Circuit Court for the Southern District of New York, a transcript of which judgment was, on March 20, 1876, docketed in the office of the clerk of the county of Ulster, in pursuance of section 39 of chapter 470 of 1847.

p. 175

The question, involved was whether or not such an action could be maintained, without first obtaining the leave of the court so to-do.

W. II. L. Lee, for the appellants.

J. E. Van Etten, for the respondents.

Although the judgment had been docketed in a county clerk’s office, yet it still remained a judgment of the United States Circuit Court. It did not become a judgment of a court of this State, And therefore leave to sue them was not necessary under section II of the old Code.

The case of Tompkins v. Purcell ( 12 Hun, 662 ), in the First Department, decides an analogous point; that is, that proceedings supplementary cannot be taken in the Supreme Court on a judgment of the United States Court, although it has been docketed in the office of a county clerk.

As a general rule, a party has a right to sue on any cause of action which he holds. Any statutory exception to that right must be distinctly expressed.

The language of the section above cited does not distinctly, or by implication, include judgments recovered in courts other than those of this State. Nor do we think that the policy of the statute applies to any others. It is sufficient to notice in this connection that the decision above cited is a good reason why the plaintiff should desire to have a judgment in a court of this State.

The judgment must be reversed, and a new trial granted, costs to abide the event.

Present — Learned, P. J., and Bockes, J.

Judgment reversed, new trial ordered, costs to abide event.