Flagg v. Cooper — 54 N.Y. Super. Ct. 50

Majority

p. 50

WILLIAM L. FLAGG, Respondent, v. HENRY P. COOPER, Appellant.

Headnote

Judgment standing as security final judgment within § 1240 Code—Execution to issue only as regulated by order permitting it to stand—Execution issued in conformity with terms of order is regular.

A judgment having been entered by default, the default was, on defendant’s motion, opened and the defendant allowed to come in and defend, on the condition, among others, “ that the judgment stand as security, but no execution to issue thereon, until the determination of the action.”

Meld, that the judgment entered by default was a final judgment under § 1240 of the Code of Civil Procedure, upon which an execution could regularly issue, the order opening the default merely regulating its actual issue.

The defendant availed himself of the privilege given by the order opening default and interposed an answer, the issues arising on which were tried, and the trial resulted in a decision against him, and a judgment was entered thereon against him for a greater amount than that of the judgment by default.

Meld, that the second judgment did not have the effect of vacating the first one; and that the period during which by said order no execution was to issue on the first judgment having expired, execution could regularly be issued thereon without further order of the court.

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Before Sedgwick, Ch. J., and Ingraham, J.

Decided November 8, 1886.

Appeal from order denying defendant’s motion to set aside an execution.

On June 29, 1883, judgment was entered against defendant by default for $3,412.78, which was docketed July 3, 1883. On defendant’s motion the default was opened and he was allowed to come in and serve his answer and defend, on the condition among others, that the judgment stand as security, but no execution to issue thereon until after the determination of this action. Defendant came in and served an answer. The issues raised by the answer were referred to a referee to hear and determine, who reported in favor of plaintiff. Judgment was entered on the referee’s report on May 26, 1886, in favor of plaintiff against defendant, for $4,458.29. Execution against defendant’s property was issued on this judgment of May 26, 1886, to the sheriff of the county of New York, who on June 1, 1886, returned the same unsatisfied. On June 8, 1886, an execution against the property of the defendant was issued on the judgment of June 29, 1883, to the said sheriff. Under this last execution the sheriff advertised for sale all the right, title and interest which the defendant had on July 3, 1883, or at any time thereafter had had, or then had of, in and to a certain lease of certain premises in the city of New York made to him, dated April 26, 1879, for a term of ten years from May 1, 1879. The defendant had (it was claimed) on October 20, 1883, sold and assigned his interest and title in and to said lease.

Defendant moved to set aside and vacate the judgment of June 29, 1883, and the notice of sale.

The motion was denied, and from the order entered on such denial an appeal was taken.

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Thomas H. Robinson, attorney, and Frank F. Van Derveer, of counsel for appellant, on the point decided, argued:

I. No execution can issue on the judgment of July 23, 1883, which was opened July 24, 1883. Execution can only issue upon the subsequent final judgment of May 26, 1886. After such judgment had been opened, it was available only as a lien on defendant’s real estate. No execution can issue on a former judgment which has been opened to the defendant, and which is therefore no longer a final judgment. Executions can only issue on final judgments (§§ 1200, 1240, 1241, Code Civ. Proc. and notes thereto in Bliss, Throops and Parson’s Pockt. [1885] Code). The judgment must be one which, as it stands, is the final determination of the rights of the parties in the action (Code of Pro., § 245); and it is only actual final judgments that may be enforced by execution (Ib. § 286 ; 4 Wait’s Pr. 2). The words of section 1240, Code of Civil Procedure, are : “ In either of the following cases a final judgment may be enforced by execution.” A judgment which is so opened and permitted to stand as a security merely, is in no sense a judgment; it is a mere security or lien on real estate, nor can any final process or execution issue thereon (Mott v. Union Bank, 8 Bosw. 591 ; S. C. affirmed, 38 N. Y. 18 ; Holmes v. Busch, 35 Hun, 5 3 ; 3 Wait’s Pr. 669).

> II. As under sections 1240j 1241, any other process or “ direction” for the enforcement of a judgment for the payment of money, except an execution, is illegal (People v. Riley, 25 Hun, 587 ), so any execution upon an opened or suspended judgment, which has been resolved into a mere collateral security, or upon any other than an absolutely final judgment, for at least the time being, is equally illegal.

IH. There cannot be two parallel final judgments, and for different amounts, on which to issue two parallel executions in one and the same action. That were to allow the plaintiff to duplicate his judgments, execu

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tions, process and other proceedings in the cause. There was no application to, nor authority from, the court to enable the plaintiff to do what he attempted to do in this case. The procedure is wholly his own. Nor was it possible for the court, even, to authorize the second execution, as such, because the judgment on which it purported to have been issued was no longer a final judgment, on which alone can executions issue. The Code has made no provision whereby the court or the attorney can issue execution on what was once a final judgment, but is such no longer. Nothing in any of the cases warrants, in one and the same action, double judgments or double executions thereon, or countenances the anomalous procedure of the plaintiff herein. To obtain the benefit of collateral security there are other and more obvious means. No one would presume to issue execution on a mortgage, Us pendens or other lien on real estate, leases or real interests.

Points were also submitted as to whether the judgment of June 29, 1883, was a lien on the lease or on any interest of the defendant therein.

W. L. Flagg,

respondent in propria persona, on the point decided, argued :—Judgment for plaintiff allowed to stand as security to present defence on the merits, although followed bfy judgment for plaintiff on the merits, remains of record unimpaired, until the judgment entered upon the verdict is in some legal form removed from the record (Hall v. Templeton, 4 Week. Dig. 120 ; Negley v. Counting R. Co., 2 How. Pr., N. S., 237, and cases cited). The court has power, if it sees that plaintiff’s security demands it, to require the judgment and execution to go as security (Wilson v. White, 7 Cow. 477 ). Where a judgment has been sued upon and a second judgment obtained, execution may issue upon both judgments (Freeman on Execution, § 19, pp. 22 and 23, and cases cited). The court’s order that the

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judgment oí June 29, 1883, should stand as security carries with it the right to enforce it.

Points were also submitted as to the judgment of June 29, 1883, being a lien on the lease and on defendant’s interest therein.

The judgment entered by default and docketed July 3, 1883, was a final judgment within the provisions of section 1240 of the Code, and an execution on such judgment was regular.

The defendant applied to the court for leave to defend the action and that application was granted, but the judgment as entered was not vacated, and as a condition for the favor granted, it was provided “ that the judgment stand as security, but no execution to issue thereon until after the determination of the action.”

The defendant having accepted the favor granted, was bound by the conditions imposed, and on the determination against him of the defense interposed under the provisions of the order, the conditions upon which the leave was granted became binding on him.

The subsequent judgment entered did not have the effect of vacating the original judgment. That stood under the terms of the order, and the period during which no execution was to issue having expired, we can seé no reason why the judgment originally entered should not be enforced in the way provided by law.

It is not necessary to determine whether the judgment is a lien upon the property advertised for sale. If the judgment is not a lien upon such property, no interest therein will pass under the sale, and the judgment and execution being regular, the plaintiff had the right to enforce the judgment against all the property upon which it is a lien.

The defendant having accepted the leave to defend granted by the order, it is too late for him to insist that the terms upon which such leave was granted were irregular

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We think the order appealed from should be affirmed, with $10 costs and disbursements.

Cases cited

Mott v. Union Bank 8 Bosw. 591 N.Y. Super. Ct. 1861-11-30 p. 52
Mott v. Union Bank 38 N. Y. 18 N.Y. p. 52
Wilson v. White 7 Cow. 477 N.Y. Sup. Ct. p. 53