
    Lawson A. Long, Adm'r, etc., Resp’t, v. Richard H. Stafford, App’lt.
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    1. Joint liabilities—Death oe joint debtor.
    Where two parties become lessees of property the death of one do ev not discharge the separate liability of his estate or the joint liability of both.
    2. Practice—Judgment—Entry op—Nunc pro tune—Code Civil Pro.,
    §§ 763-1210.
    Where an action was brought against parties jointly liable upon a lease, one of whom was not served with the summons and verdict rendered for the pla'ntiff, and the entry of judgment stayed. Feld, that the court, had power to enter judgment nunc pro tune, as of the date of the verdict, upon notice to the attorneys of the parties, where the provisions of Code Civil Procedure, § 1210 as to entry of memorandum of the parties’ death are complied with.
    3. Same—Statute oe limitations—Code Civil Pro., §§ 1932-1937.
    Where pursuant to the Code of Civil Procedure, § 1932, a plaintiff has obtained judgment against joint debtors, one of whom was not served with the summons, an action brought pursuant to Code of Civil Procedure, § 1937, against such defendant is not barred as long as the original judgment remains in force.
    4. Same—Power obi court to modify order oe trial judge staying
    ENTRY OE JUDGMENT—CODE ClVIL PRO., § 1000.
    The court may under tins section, at any special term held by any judge, modify an order of a trial judge, staying judgment on a verdict pending a hearing on exceptions in the first instance at general term, so as to allow entry of judgment.
    Appeal from judgment of superior court of Buffalo, general term.
    
      Norris Morey, for app’lt; O. O. Cottle, for resp’t.
   Earl, J.

On the twenty-fourth day of October, 1870, Lydia P Long, the intestate, executed to the defendant and John H. Scheffer a lease of a store in the city of Buffalo. The lease was under seal, and executed by the lessor and lessees, and was for six months, to commence on the first day of November, 1870, at a rental of $25 per month, wi.h a provision for a continuance for two years longer, as follows: 4< And it is further that of the second shall have the privilege of continuing this lease for two years from May 1, 1871, to May 1, 1873, at the annual rental of six hundred dollars, to be made in monthly payments, in advance, on the first day of each and every month during said lease, by first giving written notice to party of the first part on the first or during the month of February, 1871, of such intention.” The lessees entered into possession of the store, and paid the stipulated rent at the rate of $25 per month until May 1,1871, and after that date they continued to occupy the store until September 1, 1871, paying the stipulated rent at the increased rate of $50 per month. The store was then vacated, and no rent was thereafter paid. .

In 1874 the intestate commenced an action in the superior court of Buffalo against the lessees and Frank E. Scheffer to recover the rent from September 1, 1871, to May 1, 1872, and damages for the breach of certain covenants contained in the lease. The summons was served upon the two Scheffers, but not upon Stafford. The Scheffers appeared and answered, and upon the trial of that action the court dismissed the complaint as to Frank E. Scheffer, and the jury-rendered a verdict in favor of the plaintiff against the other two defendants for $497.11. The entry of the judgment was stayed, and the court ordered the exceptions taken by the defendant to be heard at the general term. They were not brought to a hearing, and John H. Scheffer died in 1881. Upon a motion made at a special term of the court on behalf of Mrs. ■ Long, notice of which was given to the attorney for the defendant Scheffer, the court made an order, May 23, 1882, vacating the stay of proceedings so far as to permit her to enter judgment nunc pro tune as of the day upon which the verdict was rendered, to wit, June 25, 1875, and judgment was thereupon entered for damages and costs for the sum of $621.08, containing a provision that the plaintiff have execution against the joint property of the defendant Scheffer and Stafford, and the individual property of Scheffer. Thereafter, on the twenty-fifth day of May, 1882, Mrs. Long commenced this action to charge the judgment upon the property of the defendant Stafford. He put in an answer, and upon the trial of the issues thus joined, the court ordered a verdict in favor of the plaintiff for $976.03. She having died, her administrator was substituted as plaintiff.

The Lode, § 1933, provides that such a judgment as Mrs. Long obtained against Scheffer and Stafford as joint debtors is evidence only of the extent of the plaintiff’s demand after the liability of the defendant not served has been established by other evidence; and section 1937 authorizes an action by the plaintiff in such a judgment against the defendant not summoned, to procure a judgment charging his property with the sum remaining unpaid upon the original judgment. The defendant’s answer in such an action is, by section 1939, “restricted to defenses or counter-claims which he might have made in 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 defenses or counter-claims which have arisen since it was rendered.”

The defendant makes several objections to the judgment rendered against him in this action, which we will notice separately.

First. It is claimed, that by the death of Scheffer, the joint liability of Scheffer and Stafford, and the separate liability of the estate of Scheffer, for the payment of the rent were discharged; and the cases of Getty v. Binsse (49 N. Y., 385), and Risley v. Brown (67 N. Y., 160), are cited to uphold this claim. But those authorities, and the principle decided by them, have no application to this case, as Scheffer was not a mere surety, but was a principal debtor. The argument of defendant’s counsel, built upon this claim, therefore fails.

Second. It is objected that the court had no authority to make the order nunc pro tune, for the reason that notice upon the persons who had been the attorneys for Scheffer was insufficient, and also for the reasons stated in the opinion in Tuomy v. Dunn, 77 N. Y., 515.

The Code (section 763) provides that if a party dies after verdict and before final judgment, the court must enter final judgment in the name of the original parties; and section 1210 provides that when judgment is entered in such a case, a memorandum of the party’s death must be entered with the judgment in the judgment-book, indorsed on the judgment-roll, and noted on the margin of the docket of the judgment; and that such a judgment does not become a hen upon the real property or chattels real of the decedent, but establishes a debt to be paid in the course of administration. The latter section was complied with in this case, and the two sections were authority for the judgment entered as against the deceased defendant. The fact that the judgment was entered nunc pro tune, as of the date of the verdict rather than as of the date of entry, harmed no one connected with his estate, as it could in any event be paid only in the course of administration. The date of which the judgment was entered was a wholly immaterial circumstance, as the effect of the judgment as against the estate of the deceased was in no way influenced thereby and in no way depended thereon. In the case of Tuomy v. Dunn, there was no with section 1210, and the effort was to enter a judgment which would be a lien as of the date of the verdict, and would thus have a preference in administration upon the estate of the decedent.

The entry of the judgment was a mere formal matter which the court could have ordered, without notice to any one without rendering it liable to assault as entirely void. Even if the service of notice in this case upon the attorneys was improper, it was at most an irregularity and not a fatal defect.

So far as the joint property of the two defendants was concerned, the practice was not regulated by the two sections of the Code quoted. The stay of proceedings was the act of the court, and as to such property, it had the common law authority to enter judgment, nunc pro tune as of the ■date of the verdict. The right of courts of record to exercise such authority has been always asserted and cannot now be well disputed.

Third. But it is further claimed that under section 1000 of the Code, no judge but the one who made the order staying proceedings and ordering the exceptions to be heard in the first instance at general term could make the order, •and that the revocation in this case was not made by the order of such a judge. Here the order was not entirely revoked; it was simply modified so as to allow the entry of judgment. This the court could do at any special term held by any judge. The section should be construed, not as a limitation upon the power of the court, but as a hmitation upon the power of a judge out of court. But it is not necessary to notice more particularly the objections made to the order and judgment. They were not void if irregular, and they could not be attacked collaterally even by the representatives of Sheffer. Much less could Stafford assail them collaterally. There was no irregularity in refer•ence to them which affected any of his substantial rights. Section 1989 reserves to a defendant situated like Stafford the right to make “objections to the judgment.” But what objectipns ? It may not be easy to answer this question. They must at least be legal, valid objections, such as a party to the judgment might make, and not such as have always been excluded. They must be such objections as go to the validity and binding efficacy of the judgment.

Fourth. The judgment in the original action was evidence against Stafford of the extent of plaintiff’s demand, and all plaintiff was bound to do was by other evidence to establish the joint liability of the defendant with Scheffer for that demand. This plaintiff did. The lessees entered upon the prolonged term of two years, provided for in the' lease, with the consent of the lessor, and paid the rent up to September 1, 1871, at the increased rent. Without alluding to the evidence of an express waiver of the written notice to take the further term, such notice must be held to have been waived by the act of the parties to the lease. Their acts in the continued occupancy of the store, and the payment and receipt of the increased rent, can have no other meaning or significance except that of an election to take the store for the new term. Whether the requirement of written notice was for the benefit of the lessees only, or for the benefit of both lessor and lessees, they were competent to waive it by paroi, and a waiver is to be implied from their conduct.

There is no proof that Mrs. Long ever agreed to accept the surrender of the store, and thus to terminate the lease prior to May 1, 1872. On the contrary, she refused to accept the key when tendered to her. The fact that she took it from the place where the lessees left it against her will, and entered the store, has no significance. The defendant, therefore, continued liable for the rent to May 1, 1872.

Fifth. It is also objected that plaintiff’s demand for rent was at the time of the commencement of this action barred by the statute of limitations. But this was a proceeding to charge the defendant with the original judgment, and, unless that was barred, tho cause of action was not barred: Maples v. Mackey, 89 N. Y., 146. Besides the defendant’s original liability was upon the lease, and as that was under seal, there is no ground for holding that the statute of limitations barred plaintiff’s claim.

We have now noticed the principal objections made by the defendant against the judgment, and a consideration of the whole case has led us to the conclusion that the verdict was properly ordered for the plaintiff, and that the judgment should be affirmed with costs.

All concur, except Miller, J., absent.  