Tufts v. Braisted — 11 N.Y. Super. Ct. 607

Majority

p. 607

Tufts v. Braisted.

Headnote

Section 71 of the Code, does not prohibit the borní jide assignee of a judgment from commencing an action upon it, without first obtaining leave of the court.

It is so obviously for the interest of an assignee, in many cases -which can he suggested, to sue upon an assigned judgment and obtain a recovery in his ovn name, that the natural meaning of the -words, “ between the same parties,” found in § 71, should not be enlarged by judicial construction, so as to deprive on as-signee of that right.

(Before all the Judges.)

Nov., 1854.

This action came before tbe court, on an appeal by tbe plaintiff, from an order dismissing bis summons and complaint. Tbe plaintiff, as assignee, brought an action upon a judgment recovered in this court, April 5, 1852, by A. D. Sage, against Braisted & Averill, tbe defendants. Tbe defendants moved to dismiss tbe summons and complaint, upon tbe ground that tbe court bad not granted leave to tbe plaintiff to bring tbe action, as required by section 71 óf tbe Code. Tbe motion was granted, and tbe plaintiff appealed to tbe general term.

Breckenridge for plaintiff.

S. W. Genet for defendants.

Prior to tbe Code, a plaintiff, in a judgment, could bring an action upon it, as a matter of course, and of strict right. An assignee of a judgment could do tbe same, only be was obliged to sue in tbe name of tbe assignor. Tbe only way in which a judgment debtor could arrest such a pro- ' ceeding, was by paying tbe judgment. ,

Tbe Code not only allows but requires, tbe assignee of any demand to prosecute any action that may be brought upon it, in bis own name, (§ 111.)

Omitting what is said of judgments -in justices’ courts, § 71 declares that “ no action shall be brought upon a judgment rendered in any court of this state, between tbe same parties, without leave of tbe court, on good cause shown, on notice to

p. 608

tRe adverse party.” Whether the order appealed from is erroneous, depends upon the construction that should be put on the words “ between the same parties.”

We think the natural meaning of the words is, that no party in whose favor a judgment is rendered, shall bring an action upon it against those against whom it is rendered, without leave-of the court. The Code did not intend to prohibit the bringing of an action on a judgment by any and every person, without the express permission of the court. If it had, it would have omitted the words “ between the same parties.” This is not nominally, nor in substance, an action between the same parties. The plaintiff was not interested in, nor privy to, the recovery of the judgment. He has become the owner of it, by purchase and assignment.

We suppose the objeet of the statute was to prohibit suing ■ upon a judgment, when there could be no motive for it except to accumulate costs. But the reason of the statute, if that was the sole reason for it, would seem to apply with as much force to the assignee as to the assignor of a judgment.

We are not aware, however, of any complaints, that suits have been brought, with such motives, at the instance of the assignees of judgments. The advantages to an assignee, in recovering a judgment in his own name, are obvious. Such a recovery furnishes record evidence, that no equities existed between the assignor and the judgment-debtor, at the time of the assignment, which entitle the latter to exemption from paying the debt. It puts it out' of the power of the assignor to discharge the judgment, or affect the rights or remedies, -of his assignee. The latter is not subjected to the necessity of relying on the uncertainty of human memory, to prove notice to the judgment1 debtors of the fact of the assignment, nor of the time when such notice was given. We do not feel at liberty to extend, by construction under such circumstances, the common and natural meaning of the words, “between the same parties.” As the Code only prohibits an action between such parties, we do not feel authorized to hold that parties, not prohibited by that section from bringing an action, shall mo.t bring one. Under this view of that- section of the Code, the order appealed from must be reversed, but without costs.