1 Barb. 390 | N.Y. Sup. Ct. | 1847
The right to sue upon a judgment, before issuing execution, has, undoubtedly, been recognized by this court. And, as the law formerly stood, there were cases in which a suit in this court, upon a judgment of a court of limited jurisdiction, was necessary for the purpose of obtaining a more extended lien. There may also be cases in which a suit upon a prior judgment in this court would be proper, in order to protect the rights of the plaintiff. But no such reason exists in the cases before us. On the contrary, the plaintiff’s attorney admits in his affidavit, that the successive suits were brought for the purpose of coercing payment of the plaintiff’s debt, by accumulating costs.
Without denying the right of the plaintiff, as a general rule, to bring a suit upon a prior judgment, still, this court has such a control over its own process, that it ought not to permit it to be perverted, or used for any improper purpose. It, certainly, never could, with any regard to its own dignity, allow its proceedings to be prostituted to the mere purpose of increasing the costs of the attorney. It is true that, in these cases, the attorney disclaims any intention of accumulating costs for his own personal advantage; but he avows that his object is to use the costs by way of penalty, in order to compel the defendant to pay his debt. Even in this point of view, I consider the plaintiff’s proceedings unwarranted. This court refuses to enforce a penalty; although it is agreed upon by the parties: and, even in the case where a sum is fixed upon as liquidated damages, if it appears, in fact, to be a penalty, the court will not enforce its payment. If it will not enforce a penalty which has been agreed upon by the parties, it, certainly, ought not to sanction one of so odious a character as that which the plaintiff has endeavored to enforce in the suits in question.
An order must be entered for a perpetual stay of proceedings in all the suits in this court, except the first, and that the plaintiff pay to the defendant $10 costs of this motion.