60 A.D. 416 | N.Y. App. Div. | 1901
This action was begun on the 6th day of June, .1900, by the service of the summons, and was followed by the complaint, which was served on the twenty-fifth day of July. Defendants answered on the 7th day of August, 1900. The action was brought to recover upon six judgments for deficiency, aggregating $17,872.17, entered in favor of Jabez Hazzard as trustee,, plaintiff’s predecessor, against David Clarke, defendants’ testator. The judgments of foreclosure and sale bear date July 5, 1879, the judgments for deficiency were docketed on June 8, 1880, and the present action was brought, as stated above, on June 6, 1900, or two days before the expiration of the twenty years which, under the provisions of section 376 of the Code of Civil Procedure, raises the presumption of payment, which presumption is conclusive, except under conditions concededly non-existing in the case now before us. The answer sets up, in effect, three defenses, the Statute of Limitations from the six months’ period to that of twenty years, payment, and an alleged agreement between mortgagor and mortgagee that no deficiency .judgment was to be entered. This latter defense does not appear to have been seriously insisted upon, and at the close of the evidence the learned
If we consider section 376 of the Code of Civil Procedure in connection with other sections, we shall discover that it ivas the intent of the Legislature to provide not only a statute of limitations, but one which should determine other matters as well. It is provided by the section mentioned that “ a final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a surrogate’s court of the State, or heretofore or hereafter rendered in a court of record within the United States or elsewhere, or hereafter docketed pursuant to the provisions of section thirty hundred and seventeen of this act, is presumed to be paid and satisfied, after the expiration of, twenty years from the time when the party recovering it was first, entitled to a mandate to enforce it.” A mandate in practice is a judicial command or precept issued by a court or magistrate directing the proper officer to enforce a judgment, sentence, or decree (2 Bouv. Law Dict. [2d ed.] 117), and an execution is- defined by Wait as a “judicial writ founded on a judgment obtained in a civil action and issued in behalf of the party recovering the judgment for the purpose of carrying it into effect.” (4 Wait Pr. 1.) The same authority (p. 2) says that it ■“ is only actual final judgments that may be enforced by execution. A mere order for judgment, although judgment may afterward be perfected thereon,-will not authorize the issuing of an execution.” With reference to a deficiency judgment, it is evident that the entry of a judgment of foreclosure and sale would not authorize the mandate referred to in section 376, because, under the provisions of section 1368 of the Code of Civil Procedure, it is necessary that the execution should “ specify in the body thereof the sum recovered, or directed to be paid, and the sum actually due when it is issued.” These facts could not be ascertained
It seems to be equally clear, as already pointed out, that the statute begins to run only from the perfection of the deficiency • judgment. • Upon this point the discussion of the case of Barnard v. Onderdonk (98 N. Y. 158, 167) is instructive and in harmony with the observations made above. (See Concordia Savings & Aid Assn. v. Read, 124 N. Y. 189, 194.)
It does not seem to be necessary to discuss the suggestion that the six months’ Statute of Limitations has any relation to this con
We are of opinion that the decree of the surrogate was conclusive upon the question of the amount due on the judgments (Code Civ. Pi'oc. § 2743), and the fact that the decree has since been .reversed cannot be taken notice of on this appeal. In fact, this question was disposed of on the trial, and it could not be of use in support of the disposition which the court has made of the question upon another point. But, if it may be considered here, the reversal is based upon the proposition that the plaintiff failed to show to the surrogate that there were, in fact, any judgments in existence. The language of the court is: “ The question is whether, at the time the decree was entered, there was proof before the surrogate which would warrant the finding of the existence of those judgments. That question, we think, must be answered in the negative.” (Matter of Clarke, 57 App. Div. 430, 432.) If we assume ■ the judgments to be in existence, and the case at bar appears to have proceeded upon that theory, it will not be difficult to establish this fact upon the further hearing which is directed before the surrogate, and the matter will be left where it was at the time of the trial. But this is purely incidental; the decree of the surrogate could give no new life to the judgments. It went no further than to determine that no payments had been made up to the time of the decree; but the real issue, in so far as this appeal is concerned, is whether the defendants’ answer can be amended so as to ■speak as of the date of the answer instead of as of the date of the commencement of the action; and upon this point we are of opinion, as already stated, that it cannot.
All concurred.
Order setting aside verdict directed by the court reversed and judgment directed for the plaintiff, with costs.