Bennet v. Moody — 2 N.Y. Super. Ct. 471

Majority

p. 471

James Bennet versus Adinijah Moody.

Headnote

An action of debt, in this court, will lie upon a judgment obtained in the Marine Court. And where the declaration alleged, that the plaintiff, “ levied his certain plaint” in the Marine Court, against the defendant, for a cause of action arising within its jurisdiction, and such proceedings were had, that a judgment was obtained, &c., a demurrer to it, for want of jurisdiction, as manifested by the pleading, was held to be not well taken.

Although the first process in the Marine Court is by summons or warrant, it does not follow, from this, that such process may not be founded upon a plaint previously filed. But if otherwise, then the words, “levied his certain plaint,” are to be taken as tantamount to “ commenced his suit,” or “impleaded the defendant ;” either of which would be sufficient, prime fade, to show, that the court had jurisdiction over the defendant’s person.

This was an action of debt, upon a judgment obtained by the plaintiff against the defendant in the Marine Court. The declaration alleged, that the plaintiff, on the 20th day of May, in the

p. 472

year 1829, in the Marine Court, in the city of New-York, “ levie d his certain plaint” against the defendant, “ in a plea of trespass on the case, for a cause of action, arising within the jurisdiction of said court,-and such proceedings were had,” that afterwards the plaintiff, by the judgment and consideration of said court, recovered against the defendant the sum of money demanded, “whereof the defendant is convicted, as by the record,” thereof fully appears.

The defendant demurred to the declaration, and Mr. E. Barnes, in his behalf, contended,

I. That the plaintiff, having as full and ample means-of obtaining a satisfaction of the judgment, in the Marine Court, by execution, at the time Of the commencement of the suit, as he had at the time the judgment was obtained there, could not, for the mere purpose of accumulating costs, bring a new action thereon. [Hale v. Angel, 20 J. R. 342. 2 Bac. Abridg. p. 14. A. Roll's Abridg. 600, 601.]

II. That the declaration failed to show, that the Marine Court had jurisdiction, so as to enable it to give d valid judgment in the premises. [2 R. L. 381. 8 Cowen's R. 314. 6 Ib. 234. 3 Dall. 382 . 4 Ib. 8. 5 Cranch, 173 . 5 Jac. Law. Dic. 158.]

Mr. D. Graham, contra, contended,

that the declaration contained a legal cause of action which was well pleaded. [2 R. L. 381, sec. 106. Ib. 370. sec. 88. 112. 1 Saund. 92. n. 2 Chitty P. 181, notis.]

The defendant contends, that no action of debt will lie on a judgment obtained in the Marine Court. It is clearly otherwise. The case of Hale v. Angel, [20 J. R. 342,] shows that such an action may be maintained, even on a judgment in a Justice’s Court.

It is said, however, that the declaration in this case, does not show, that the Marine Court had jurisdiction, so as. to make its judgment effectual. The count states, that the plaintiff “ levied his certain plaint in said court, against the defendant, for a cause of action arising within the jurisdiction of said court, and such pro

p. 473

ceedings were thereupon had, that judgment was obtained, &c. This would clearly be sufficient, as to those counts where the action is, technically speaking, commenced by plaint. [1 Saund. 92. n. 2.] But as to the Marine Court, it is said, that no such proceeding as that by plaint is known, but that the first process is, in all cases, to be by summons or warrant. Although the statute directs, that the first process shall be a summons or warrant, it does not necessarily exclude the idea, that such first process may be founded on a plaint. The Marine Court is a court of record, and its organization will admit, for aught I can see, like other courts of record, of the practice of filing a plaint, as the foundation of the first process against the defendant.

Were this otherwise, I should be inclined to hold, that the words, “ levied his certain plaint,” are to be taken, not in their technical sense, but as equivalent to the allegation, that the plaintiff in that court had commenced his suit against the defendant, or had impleaded the defendant, either of which would be sufficient, prima facie, to show that the court, rendering the judgment, had jurisdiction of the defendant’s person. The legal intendment in such a case would be, that the suit had been legally commenced. On the . whole, I think, there is no foundation for the objection.

Judgment for the plaintiffs on the demurrer.

[D. Graham, Jun., Att'y for the plff. E. Barnes, Att'y for the deft.]

Cases cited

Bingham v. Cabot 3 Dall. 382 SCOTUS p. 472