87 N.Y.S. 1045 | N.Y. App. Div. | 1904
The action was to recover for the conversion of certain property belonging to the plaintiff. The defendants to justify the taking of the property introduced in evidence an execution issued upon a judgment recovered by the defendant Mary Markowitz in the Municipal Court of the city of New York, which execution was delivered to the defendant Snbin, who was a city marshal, and executed by him. At
The summonsjn the action in, which ,the judgment was entered, and under; whigh the, defendants justified,, was issued out .of the Municipal Court of the city of New York inthe fourth district, borough of Manhattan. That summons was entitled: ..
“ Mary Markowitz, Plaintiff; against Etta Lipsky and John Goldberg, Defendants.
Free Summons. First names being fictitious unknown, to plaintiff.”
The certificate of the service of this summons, which was made by the defendant Snbin, the city marshal, which is indorsed on. the back of it, is that on the 3d day of November, 1900, he served the within summons in the c.itv of New York “ on John Goldberg, one of the within named defendant,
Section 1297 of the Consolidation Act (Laws of 1882, chap. 410.) provides that “ the summons must be addressed to the defendant by name, or, if his name be unknown, by a fictitious name, and must summon him to appear before the justice.” The marshal returned that he served the summons upon John Goldberg, the first name being a fictitious name, but that he knew him to be the defendant who was described in the summons. Assuming that this summons was regularly served on the defendant . as the person intended to be sued, the judgment to be entered upon such a summons must be such a judgment as will sufficiently describe the party against whom the judgment is entered. I can find no provision of the Code of Civil Procedure or of the Consolidation Act applicable to Dis
Although there is no provision that I can find, either in the Code of Civil Procedure or the Consolidation Act, for the form of a judgment in these courts, yet necessarily the court, when directing judgment, must in some way specify the party against whom the judgment is directed ; an d^ until that is done it would seem to follow that there can be‘no valid judgment. There was, thus, so far as
None of the cases cited by counsel for the defendants sustains this judgment. In all the cases in which an informal record was presented there was evidence that the justice actually rendered judgment in favor of the party who was seeking to enforce it, and it seems to have been held that a defective record could be cured by the oral testimony of the justice. But as there is no evidence here that the justice ever did direct judgment In favor of anybody, or against anybody, there is no basis for an execution. The case of Stephens v. Santee (49 N. Y. 39) is not at all In point, for there it was proved that there was a verdict of the jury in favor of the plaintiff; that the justice immediately entei’ed the. same in his docket, and forthwith taxed the plaintiff’s costs and entered the costs in his docket; added the same to the verdict and entered the- amount of both in his docket, but failed to enter therein the words “ judgment for the plaintiff; ” and it was held that, as the verdict of the jury settled the amount of the recovery and the. party in whose favor that recovery was had, the failure to enter in the docket the words “ judgment for the plaintiff ” was not fatal; that the law made a judgment for this amount the only One that could be rendered by the justice; but in that case the court say : “ When the case is tried by the justice without a jury, he is judicially to determine the amount of the recovery, and he must do this and make an entry thereof, as required by law, within the time fixed by statute for that purpose. After the expiration of this time his judicial functions in respect to the matter cease, and he can do nothing further in- the premises.” This docket itself did not upon its face show that any judgment had been rendered in favor of the plaintiff against the defendant, and there was no evidence to show that as a fact the justice did determine the question in favor of the plaintiff and direct judgment against a person whose name was unknown to the plaintiff.
The next question presented is, whether or not this execution protects the marshal in his levy tóider it. There is no provision that I can find that authorized a judgment to be entered against any person but the real debtor, and although a summons can be issued
It follows, therefore, that this execution did not justify the defendants’ levying on the plaintiff’s property, and it was error to dismiss the complaint. The jury having found the value of the plaintiff’s property levied on, the plaintiff was entitled to a verdict for that amount.
The judgment should, therefore, be reversed and a judgment directed for the plaintiff for $150, with costs in this court and in the court below.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment reversed and judgment directed for plaintiff for $150, with costs in this court and in the court below.
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