
    Charles Hofferberth, Respondent, v. George Nash, Appellant.
    First Department,
    January 25, 1907.
    . Judgment— action to charge joint debtor not served — defense of Statute, of Limitations—pleading — amendment at trial.
    In an action under section'1937 of the Code of Civil Procedure to charge a joint debtor not personally served in a prior action, a motion to amend the complaint at trial to show that the defendant was not served in the prior action should be granted when it is manifest that the plaintifi attempted to state a cause of action under the section. But a failure of the court to grant such proper amendment does not entitle the defendant to a reversal of judgment for the plaintiff.
    Under the former Code of Procedure the'proceeding to charge a joint debtor not served was a proceeding in the prior action; but under the provisions of the Code of Civil Procedure it is not a proceeding in the former action, but is a new action. Hence prior decisions that the defendant not served could not plead the Statute of Limitations unless it had run before the original action are not applicable!.
    The present-action is not an action upon the former judgment for the purpose of extending the lien thereof; hence, leave to bring the action is not necessary.
    As the present action is a new statutory action, the defendant is entitled to plead the Statute of Limitations as a defense, the period of limitation being ten years, as provided in section 388 of the Code of Civil Procedure. The ten years begin to run from the date the former judgment was recovered.
    (Per Ingraham, J.): The Statute of Limitations in such action to charge a joint' debtor not served in the former action begins to run when the former cause of action accrued; and where the original claim was for goods sold, the statutory action is barred by the elapse of six years.
    Appeal by the defendant, George Hash, from an' order of the Appellate Term of the Supreme Court, entered in the office of' the clerk of the county of Hew York on the 24th day of April, 19Q6, affirming a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said court, on the 5th day of January, 1906, upon the verdict of a jury rendered by direction of the court; also from an order of the said City Court entered on the 15th day of January, 1906, denying the defendant’s, motion for the direction of a verdict in his favor, and also (as stated in the notice of appeal) from a judgment entered in the office of the clerk of said City Court on the 10th day of May, 1906, upon said order of affirmance.
    
      
      JElias JB. Qoodma/n,, for the appellant.
    
      James A. Allen, for the respondent.
   Laughlin, J.:

The defendant and one George Collins were engaged in business, as copartners under the style of “ Collins & Nash.” On the 4th day of March, 1884, in an action in the City Court of New York, brought by this plaintiff against both Collins and Nash, upon a copartnership liability, but in which the defendant Collins alone was served and the defendant Nash did not appear, the plaintiff recovered a judgment and on the same day a transcript of the judgment was tiled- and docketed in the office of the clerk of the county of New York. This action was commenced on the 26th day of June, 1902, to charge the defendant pursuant to the provisions of section 1937 of the Code of Civil Procedure, with the amount unpaid on the judgment. The defendant herein pleads, among other things, the Statute of Limitations of ten years and of six years since the recovery of the former judgment, payment and failure to procure an order of the court granting leave to bring the action. The partnership obligation upon which the original recovery was had was an account for lumber sold and delivered to Collins & Nash as copartners. Counsel for the plaintiff, in opening the case, stated that the action was brought on the old judgment, the defendant Nash not having been served, and - he introduced thé judgment roll and a transcript of the judgment which showed, that the defendant Nash had not been served. According to the record the defendant at the close of plaintiff’s case moved to dismiss the complaint upon the ground that the complaint did not show that the defendant Nash was served or that Collins was the only party served. It is evident that the word “ not” is omitted from the record because the ground of objection, if any, was that the complaint failed to show that Nash was not served and the amendment thereupon asked for shows that such was the objection interposed. Counsel for the plaintiff objected upon the ground that it was too late to move to dismiss upon the pleadings, and the court suggested that the - motion was to dismiss . for lack of proof, whereupon counsel for plaintiff moved to amend the complaint to conform to the proof showing that the defendant Nash was not served. This motion was denied. It is now urged that the complaint, owing to' this omission, was insufficient to bring the. action within sections 1937 and 1938 of the Code of Civil Pro- ’ cedure. It was manifest that the pleader attempted to state a cause of action authorized by those sections, and the omission to allege that the summons was not served on the defendant was not, after the proof was made without objection, fatal to a recovery. The court should have allowed the complaint to be amended in that respect, but its failure to do so does not entitle the defendant to a reversal.

The serious question presented by the appeal is whether the ten-year Statute of Limitations is a bar to the action. The Statute of Limitations had not been pleaded as a defense to the original cause of action. It is not claimed and could not be successfully maintained that the Statute of Limitations has run against the original copartnership liability, for it appears that the summons'was served upon the other copartner within -six years after the .cause of action arose, and by the .express terms of section 1939 that is the test of the liability upon the original cause of action of the defendant not served. Section 1939 of the Code of Civil Procedure restricts the defendant in such an action to defences or counterclaims, which he might have madefin the original action, if the summons therein had been served upon him, when it was first served upon, a defendant jointly indebted with him; objections -to the judgment; and defences or counterclaims, which have arisen since it was rendered.”

Sections 1937, 1938 and 1939 of the Code of Civil Procedure are a substitute for section '375 and sections 377 to 381, inclusive, of the former Code of Procedure, which prescribed a proceeding by which the joint debtor not served might be summoned to show cause why he should not be bound by the judgment in the same manner as if he had been originally summoned. The proceedings under the Code of Procedure were held to be proceedings in the action at the foot of the judgment and were deemed a continuance of the action against the joint debtor not served, and upon that theory it was held that no Statute of Limitations constituted a bar to the proceeding to charge the joint debtor not'served, unless it had run at the time the action was originally commenced; but it was intimated that the proceeding probably could not be maintained after the lapse of a period of time, subseqnent to the recovery of the judgment against the joint debtor served, sufficient to give rise to the presumption under the statute that the judgment liad been paid. (Maples v. Mackey, 89 N. Y. 146; Gibson v. Van Derzee, 47 How. Pr. 231; Broadway Bank v. Luff, 51 id. 479.) Notwithstanding these provisions of the Code of Procedure, it was held that the plaintiff, who had brought an action against two or more joint debtors, not serving all of them and taken judgment-against all; but in form only, as prescribed by the statute, against those,not served, was'still at liberty to bring another action upon the original cause of action against all of the joint debtors upon the theory that the provisions of the Code of Procedure to which reference has been made gave a cumulative but not an exclusive remedy. (Prince v. Cujas, 7 Robt. 76; Lane v. Salter, 51 N. Y. 1; Dean v. Eldridge, 29 How. Pr. 218.) By such an action it would seem that the plaintiff would he jn-oceeding substantially de novo in disregard of the judgment, and that the defendants, other than those served in the former action at least, would be free to interpose the Statute of Limitations regardless of the fact that the original action was timely brought; hut that question does not arise for decision in the case at bar, and it is unnecessary to.decide whether, in view of the provisions of the Code of Civil Procedure, which have substituted em action for what was formerly a proceeding in the former action, the rule which formerly prevailed, permitting a new action against all of the joint debtors, still obtains. It is manifest that this is not such an action. It is against the defendant not served only, and is based and can be sustained, if at all, only upon the .provisions of sections 1937, 1938 and 1939 of the Code.of Civil Procedure. If this were tobe deemed an action upon a judgment within the provisions of sections 376 and 378 of the Code of Civil Procedure, the object of which would be to restore the lien of the judgment which continued only for ten years, and to extend the life of the judgment, the ten-year Statute of Limitations pleaded would not be a bar, and the only statutory period that would be a bar to the action, as the judgment is or by filing the transcript has become a judgment of a court of record, would be. the lapse of twenty years. (See Code Civ. Proc. § 2, subd. 9; Id. §§ 376, 378; Brush v. Hoar, 15 N. Y. St. Repr. 859 ; Gray v. Seeber, 53 Hun, 611; 25 N. Y. St. Repr. 641; McMahon v. Arnold, 107 App. Div. 132; Seaman v. Clarke, 60 id. 416; affd., 170 N. Y. 594.) I am of opinion, however, that it is not an action on the judgment within the meaning of those provisions of the Code of Civil Procedure, and'that they relate only to actions to revive the lien of the judgment and extend its life as against parties already boimd thereby. Bor is it, I think, an action on a judgment within the provisions of section 1913 of the Code of Civil .Procedure requiring leave of the court before the action may be brought. It is not strictly speaking an action on the original liability. If it were the defendant might demur on the ground of the non-joinder of his former partner and, but for the statute, he might allege that his liability was discharged by the election of the plaintiff to take judgment against his partner. The plaintiff is not required to plead the facts- as he was required to set them forth in the original action. He is merely required to allege that the judgment was recovered on a joint liability, and proof of that fact charges'the defendant not served with the amount unpaid on the original judgment, including the costs and disbursements embraced therein: Section 1940 of the Code of Civil Pro-' eedure declares that for the purpose of obtaining a provisional remedy, it shall be regarded'as an action founded upon the contract, upon which the. original judgment was recovered, and section 1941, after providing that if the plaintiff recovers the judgment must determine the amount unpaid on the original judgment, declares that costs must be awarded as if the action was brought upon the . original contract and the amount remaining unpaid on the judgnient had been recovered therein. These provisions shed no light on .the question as to the nature of the action for the purpose of determining the applicability of the Statute of Limitations.. It is not a cause of action that. existed at common law. It appears to be a cause of action under the statute. If the plaintiff fails to show' the recovery of the judgment and that it was recovered on a cause of action for which'the defendant not served was jointly liable with the defendant served, he fails and his complaint must be dismissed. What the defendant may show as a defense does not affect the' nature of the action. The defendant, not haying been served and not being personally bound by the former judgment, except to the extent of his interest .in'the copartnership assets, because he has not had his day in court, may of course show that the Statute of Limitations had run at the time the former action was commenced, or that he was not jointly liable with the person served, and either of these facts would constitute a defense; but nevertheless, I think it is in a sense a special statutory action for it could not have been maintained at common law. I am of 'opinion that the change of remedy from a proceeding in the action at the foot of the judgment under the Code of Procedure to a \ new action under the Code of Civil Procedure, works a change in the rule that the Statute of Limitations is not a defense. This action could have been maintained the moment the original judgment was recovered, and it could not have been maintained before. This cause of action, therefore, whether statutory or partly statutory, and partly on the original cause of action or judgment, was not complete, and did not accrue until the recovery of the former judgment. The docketing of the judgment only affects its becoming a lien upon property and is not a condition precedent to bringing an action of this character. ( Whitney v. Townsend, 67 N. Y. 40.) This is not an action to enforce the judgment, but to establish the personal liability therefor of the joint debtors made, defendants but not served, and, therefore, the action maybe brought before execution, and even though proceedings on the former judgment are stayed, pending appeal, because the former judgment could only be enforced against the joint property or. the individual property of the debtor served. It is immaterial, therefore, to the present inquiry that the clerk in docketing the original judgment, omitted to insert a statement that this defendant was not personally served.

If any Statute of Limitations other than the twenty-year period which would give rise to the presumption of payment of the judgment, is a bar to this, action, therefore, it commenced to run from the date of the recovery of the judgment, which was more than ten years prior to the commencement of this action. I am of opinion that the only provision of the Statute of Limitations applicable to this action is. section 388 of the Code of Civil Procedure, which limits the commencement of actions not otherwise limited in titles 1 and 2 of chapter 4 of the Code of Civil Procedure to ten years “ after the cause of, action accrues:” I think that this cause oí action accrued the moment the former judgment was recovered. If so, it was barred by the lapse of-' ten years, and the plea of the ten-year Statute of Limitations was a good defense. The-plea of the Statute of Limitations is permitted under the clause of the statute which provides that the^defendant' may plead a defense or counterclaim which has arisen since the judgment was rendered. The case of Long v. Stafford (103 N. Y. 274) is not in conflict with these views, and on the contrary contains: an intimation, I •think, in accordance with them. There the Statute of Limitations was pleaded as a defense to the original cause of action, and not to the judgment with which it was sought to charge the defendant. The court held that the only bar, if any, would be one -to the proceeding to charge the joint debtor not served with the judgment.

■ We have examined the decision of the Appellate Term in Kramer v. Schatzkin (27 Misc. Rep. 206), made by a divided- court.. There the Statute of Limitations had been pleaded as a defense, not to the judgment, bu,t to the original causé of action. That case was,, therefore, correctly decided upon the ground that the Statute of Limitations-was hot a bar ; but with the views expressed in the prevailing Opinion that there' is no distinction with respect to the application of the Statute of Limitations between the proceeding at the foot of the judgment under the provisions of the Code of Procedure, and the action Under the Code of Civil Procedure, I am unable to agree,

- It follows that the determination of the Appellate Term- and- the judgment and order of the City Court should be reversed, and a new trial granted, with costs to appellant to abide the event.-

■ Patterson, P. J., and Clarke, J., concurred.

Ingraham, J. (concurring):

I concur with Mr. Justice- Laughlin in the reversal of this judgment. ' I am inclined to think, however, that the Statute, of Limitations commenced to run when the cause of action accrued and that the six years’ Statute of Limitations applied.

The commencement of the action against the defendant’s co-obligor could not in any way affect this judgment against the defendant; he stood in exactly the same relation to the' plaintiff as before the commencement of that action and the cause of action against him was, I think, barred in this case six years after it accrued.

By section 1933 of the Code of Civil Procedure the judgment in the former action was evidence against the defendant upon whom the summons was served or who appeared in the action only; except that as against the defendant not served such a judgment was evidence to the extent of the plaintiff’s demand after the liability of the defendant not served had been established by other evidence. From this it seems clearly to follow that the right to recover is based upon the original cause of action and not in any way upon the judgment against the joint debtor who was served. Now, if it appeared when the new action authorized by section 1937 of the Code of Civil Procedure was commenced that the defendant was not liable upon the original cause of action either because there was no joint liability or because the claim was barred by the Statute of Limitations or for any reason, it seems to me that no cause of action was proved and the action could not be maintained. The fact that the Statute of Limitations was a bar where the statute had run after the entry of judgment in the first action is a defense which arose after the first judgment was rendered, because it was - only when the statute had rim that it became available as a defense and this defendant would then interpose such defense under section 1939 of the Code of Civil Procedure. As this action was commenced many years after the Statute of Limitations had run against the plaintiff’s claim, I think the six years’ Statute of Limitations was a good defense, and for that reason the judgment should be reversed.

Determination, judgment and order reversed and new trial ordered, costs to appellant to abide event. Order filed.  