86 N.Y.S. 66 | N.Y. App. Div. | 1904
As appears by the clerk’s minutes, this action was tried by the court and a jury, and a verdict rendered by direction of the court in favor of the plaintiff. Thereupon the judgment roll was made
A motion was made to strike out these recitals in the postea of the judgment roll, which motion was granted, and from the order thereupon entered this appeal is taken.
It is claimed upon the part of the appellant that the propriety of inserting such a provision in the judgment seems to be thoroughly established by the Court of Appeals, citing the case of Moffatt v. Fulton (132 N. Y. 507). An examination of the record of this case shows that the question litigated there came up in an entirely different form from that presented to this court upon this appeal. There was no question of regularity whatever brought up upon the appeal in that case. The question litigated there was whether, under the allegations of the complaint, it appeared that the defendant had received the money in a fiduciary capacity and an execution against the person could issue. It was held by the General Term that the complaint did not authorize an execution against the person, and that, therefore, the provisions of the postea of the judgment roll allowing such execution were improper. The Court of Appeals decided that the complaint did set out a cause of action which, upon a recovery, allowed the issuing of an execution against the person.
There was no question- before the court as to the regularity of the insertion in the postea of any such provision. Questions of regularity can never be raised upon an appeal. The only way in which that question could be raised would be by a motion to strike from the postea of the judgment roll the words adjudging execution against the person* as was done in the case at bar. It is to be deter
In the Municipal Court, where the pleadings may be oral, the law requires when an execution, can be issued against the person that the judgment of the justice must so state, and then the clerk must enter such fact in the docket. (See Laws of 1902, chap; 580, §§ 145, 251.) In the Code of Civil Procedure there is no such provision relating to courts of record, showing that the allegations of the complaint must determine whether execution against the person can issue, and there is no provision authorizing any action of the clerk npon the subject. In the lower court mentioned, where the pleadings may be oral, of course the record contains nothing to
We think, therefore, that the order was correct and should be affirmed, with ten dollars costs and disbursements.
O’Brien, Ingraham, McLaughlin and Laughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.