Faulkner v. Suydam — 30 N.Y. Super. Ct. 614

Majority

p. 614

George Faulkner, plaintiff, vs. Ferdinand Suydam et al., defendants.

Headnote

1. There is no reason for applying to the coart for orders directing judgments to be discharged of record, under the act of May 14, 1845, amending the act of April 18, 1838, “ for the relief of partners and joint debtors.”

2. The proper 'course is for the parties to present to the dark the memorandum mentioned in the act of 1845, with such proof of the assignment as can be obtained, and to request him to satisfy the judgment as to the compromising debtor-. If the clerk refuse so to satisfy the judgment, application may then be made to the court for an order directing him to do so; on which application the court will direct to whom, and in what manner, notice of the application shall be given.

(Before Jones, J., at Special Term,

December, 1867.)

By the act of the legislature of May 14, 1845, (Laws of 1845, chap. 348,) the 2d section of the act entitled “An act for the relief of partners and joint debtors,” passed April 18, 1838, was amended so as to read as follows:

“ § 2. Every such debtor or debtors, making such composition or compromise, shall take from the creditor or creditors with whom he may make the same, a note or-memorandum in writing, exonerating him or them from all and every individual liability incurred by reason of such connection with such partnership firm; which note or memorandum may be given in evidence by such debtor

p. 615

or debtors under the general issue, in bar of such credit- or’s right of recovery against him or them; and if such liability shall be by judgment in any court of record in this state, then on' a production to and filing with the clerk of such court, the said note or memorandum in writing, duly acknowledged, by the party or parties making the same, in the same manner as satisfaction of judgment is now required by law to be acknowledged, such clerk shall discharge said judgment of record, so far as the said compromising debtor or debtors shall be concerned.”

This is an application to the court for an order directing a judgment to be "discharged under the above mentioned .section.

There is no reason why the court should be called on to make orders of this description.' The course of the parties is to present to the clerk the memorandum mentioned in chapter 348 of the laws'of 1845, with such proof of the assignment as can be obtained, and to request him to satisfy the judgment as to the compromising debtor. If the clerk refuse so to satisfy the judgment, application may be made to the court for an order directing him so to do; on which application the court will direct to whom, and in what manner, notice of the application shall be given.

Motion denied.