MacDougall v. Hoes

58 N.Y.S. 209 | N.Y. Sup. Ct. | 1899

McAdam, J.

The plaintiff evidently brought his action under section 1913 of the Code, authorizing actions upon certain judgments, but the provisions of that section refer to final judgments upon which an execution may be issued. Hanover F. Ins. Co. v. Tomlinson, 3 Hun, 630; approved Matter of Van Beuren, 33 App. Div. l60. The judgment sued upon is in no sense final. The order permitting the defendant to come in and defend, though it permitted the judgment to stand as security, deprived it of all validity for any other purpose. It was left standing as a mere security for whatever amount the plaintiff might subsequently establish by further proceedings in that action. Uo execution could be issued on it after the making of that order, and none can be issued on it now. Had the plaintiff prosecuted the action and recovered less than the amount named in the security judgment, it would have been void as to the excess, and if the defendant therein had been wholly successful it would have fallen absolutely. Such is the legal result. See Negley v. Counting Room Co., 2 How. Pr. (N. S.) 237; Mott v. Union Bank, 38 N. Y. 18; Holmes, Booth & Hayden v. Rogers, 18 N. Y. St. Repr. 652; 2 N. Y. Supp. 501; Hall v. Templeton, 4 Week. Dig. 120; Miller v. Eagle Life, etc., Co., 3 E. D. Smith, 184; Pierce v. Thomas, 4 id. 354. It follows that the complaint must be dismissed on the merits, with costs. ■ Sixty days to make a case and sixty days’ stay of execution -after service of notice of entry of judgment.

Ordered accordingly.