30 Misc. 624 | N.Y. App. Term. | 1900
The action is upon a judgment obtained by the above-named plaintiff against the above-named defendant in one of the former District Courts of the city of Hew York, on the 25th day of July, 1893, for $100.78.
The pleadings were oral. The defendant besides pleading the general issue, sets up such judgment in bar. At the trial the judgment in suit was produced and admitted in evidence, and the nonpayment thereof was established by the testimony of a witness called by the plaintiff. The defendant did not produce any proof, and upon the close of the testimony moved to dismiss the complaint on the ground “ that- having one judgment, the plaintiff cannot obtain another against the defendant.” The justice reserved his decision, and adjourned the case until a subsequent date for thel purpose of enabling counsel' to submit briefs. Two days after the time fixed for such submission, judgment was rendered in favor of
Leave to sue upon a judgment rendered by a court, not of •record, is no longer necessary, as section' 71 of the old Code was repealed by Laws of 1880, chapter 245. While portions of said ¡section have been incorporated into the Code of Civil Procedure (§§ 1913,- 3154, 3155), the provisions regarding such leave apply ■only to judgments of courts of record. After considering every .ground which has suggested itself in possible support of the disposition of the case made by the justice (Marvin v. Universal Life Ins. Co., 85 N. Y. 278, 284; Ferguson v. Gill, 74 Hun, 566, 569), .1 conclude, for the reasons above stated, that the judgment should be reversed, and a new trial ordered, with costs to the appellant to ..abide the event.
Beekman, P. J., and O’Gorman, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.