Lippman v. Petersberger

18 How. Pr. 270 | New York Court of Common Pleas | 1859

Daly, F. J.

This motion is prematurely made. The defendant was arrested and is still in custody upon mesne process. After his arrest he made an offer, under section 385 of the Code, to allow the plaintiff to take judgment for a certain amount, which offer the plaintiff, on the 9th day of February last, accepted, but neglected to enter up the judgment until more than three months had elapsed; that is, he entered it up on the 30th of May, and on the day after issued execution against the prop- ■ erty of the defendant, which has not yet been returned.

The defendant moves, under section 736 of title 17, chapter 8, part 3, of the Revised Statutes, for a supersedeas, and that he be discharged from custody upon' the ground that more than three months after the last day of the term next following that at which judgment was obtained has elapsed, and that the plaintiff has not charged him in execution.

Three months has not elapsed since the actual entry of the judgment; bnt the defendant claims that judgment was obtained within the meaning of the statute, when the plaintiff accepted the defendant’s written offer, and that the defendant is not to suffer by the plaintiff’s neglect to enter it up, but that he should have been charged in execution within three months after the term following that when the offer was accepted.

At the hearing of the motion, I was strongly impressed with the suggestion that the defendant should not suffer by the plaintiff’s neglect; but to support the defendant’s view, it would be necessary to hold in respect to the commencement of the time, within which the defendant must be charged in execution, that it does not date from the entry or docketing of the judgment, but that the words, at the time judgment shall be rendered or obtained, means the time when the plaintiff is at liberty to enter such judgment. Proceedings of this kind are now unusual, and it would be necessary to look at the practice which prevailed before the Revised Statutes, for this provision is in this respect the same as that which was incorporated in the former act for the relief of debtors with respect to the imprisonment of their persons (1 Revised Laws of 1813, 353, § 12), the practice under which appears to have been well settled. In 2 Rwnla/p's Practice, 827, it is said, that the recovering party must produce a certified copy of the docket of the judgment; and again, that if the plaintiff, being entitled to judgment, should neglect or refuse to- perfect it, must take measures to have judgment perfected against himself, and if not charged in execution within three months from the time of entering the judgment, he becomes supersedable; and in Kettletas a. North (Coleman's Cases, 54), it was held, upon an application to compel the prevailing party to enter up judgment, that he should procure the roll to be signed and filed in four days, or that the other party should be at liberty to do it. The words, both in the provision in the Revised Statutes, and in the act of 1813, are, that the defendant shall be charged in execution within the given time after the judgment is obtained ; and the practice under one is equally applicable under the other. In a case like the present, the plaintiff, by section 385 of the Code, files the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk thereupon enters judgment accordingly. It is from the judgment so entered, that the time within which the defendant must be charged in execution is to be computed. If the plaintiff neglects to enter it, the defendant, as in Kettletas a. North, must apply for an order compelling him to do so.

The.judgment was entered by the clerk on the 30th of May, and the time not having yet expired within which the plaintiff must charge defendant in execution, the motion for a supersedeas must be denied.