
    In the Estate of Lemuel B. Clark, deceased.
    
      (Surrogate’s Court of New York County,
    
    
      Filed March 24, 1887.)
    
    Judgment entered after death of judgment debtor—Priority of payment—Code Ciy. Pro., §§ 763 and 1310.
    The petitioners in the lifetime of the decedent brought an action against him. He interposed a demurrer, which was overruled, and an interlocutory judgment was entered against him. Said judgment granted him. leave to withdraw his demurrer and to answer within twenty days, on payment of costs. It directed that in case he failed to comply with its. provisions, final judgment should he entered against him in favor of the plaintiffs for a specified sum. Before the expiration of the twenty days Mr. Clark died. Final judgment was nevertheless entered against him on the twenty-first day, pursuant to the provisions of Code Civil Procedure, §§ 763 and 1210. Held, that this judgment, if duly docketed as the statute directed, had precisely the same force and effect as to priority of payment that it could claim if this decedent had died on the day after its entry.
    
      Cornell, Secor & Page, for Horace Secor, Jr., and others, petitioners; George W. Cotterill, for Mary J. Clark, executrix, etc., of Lemuel B. Clark.
   Rollins, S.

These petitioners in the lifetime of the decedent brought an action against him. He interposed a demurrer. His demurrer was overruled and an interlocutory judgment was entered against him on May 29, 1886. That judgment granted him leave to withdraw his demurrer and to answer within twenty days on payment of costs. It directed that in case he should fail to comply with its provisions final judgment should be entered against him in favor of the plaintiffs to recover the sum of $1,500, with interest and costs..

Before the expiration of the twenty days and on the ninth day of June, 1886, Mr. Clark died. Final judgment was nevertheless entered against him on June 19, 1886, pursuant to the provisions of sections 763 and 1021 of the Code of Civil Procedure.

The judgment creditors seek by this present proceeding to obtain a decree directing the respondent, who is the executrix of the judgment debtor’s estate to pay the amount of their judgment.

The respondent’s answer shows that unless the claim of these petitioners is entitled to preference over specialty and simple contract debts, no direction for its satisfaction can now be made without imperiling the rights of other creditors entitled to equality of payment.

The order of priority which the representative of an estate must observe in the payment of debts is prescribed by section 27, title 3, chap. 6, part 2, Rev. Stat. (3 Banks, 7th ed., 2298). It is as follows:

“First. Debts entitled to a preference under the Laws of of the United States.
“Second. Taxes assessed upon the estate of the deceased previous to his death.
“Third. Judgments docketed and degrees enrolled aqainst the deceased according to the priority thereof respectively.”

It is judgments “against the deceased,” it will be observed, and not judgments “against the executor or administrator of the deceased” that are thus preferred above recognizances, bonds, notes, etc., which make up class four.

It is indeed expressly declared in the next succeeding section (section 28) that the obtaining a judgment against a decedent’s executor or administrator upon a debt to the decedent shall “not entitle such debt to any preference over others of the same class.”

But it is provided by section 763 (supra), that, “if either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties.”

Of such a character was the final judgment, whose payment is now sought, following as it did an interlocutory judgment within the meaning of section 1021 (supra), which declares that the decision of the court upon the trial of a demurrer, must direct the final interlocutory judgment to be entered thereupon. Where it directs interlocutory judgment, with leave to the party in fault to plead anew or amend, it may also direct that final judgment be entered if the party in fault fails to comply with any of the directions given or terms imposed.”

Section 1210 provides that “where a judgment for a sum of money, or directing the payment of money, is entered against a party after his death, a memorandum of the party’s death must be entered with the judgment in the judgment book,” etc. “Such a judgment,” the section proceeds to say, “does not become a hen upon the real property or chattels real of the decedent, but it establishes a debt to be paid in the course of administration.

Section 763 (supra), is founded upon section 4, title 1, chap. 7, part 3, Rev. Stat. (3 Banks, 5th ed., 669), which declares that “after a verdict shall be rendered in any action, and after a plea of confession in a suit brought, if either party die before judgment be actually entered thereon, the court may, within two terms after such verdict or plea, enter final judgment in the names of the original parties.”

Section 1210 (supra), is a substantial re-enactment of section 7, title 4, chap. 6, part 3, Rev. Stat. (3 Banks, 6th ed., 638). The concluding paragraph of the latter section is almost literally the same as the concluding paragraph of section 1210.

In Nichols v. Chapman (9 Wend., 452, 456), it was held that a judgment entered after the death of the party against whom it had been obtained, was entitled to priority of payment over simple contract debts, being a judgment by relation against the deceased in his lifetime. See also, Salter v. Neaville (1 Brad., 488); Bernes v. Weisser (2 id., 212);. Mills v. Jones (2 Rich. S. C. Law, 393).

I am referred, by the respondent’s counsel, to Matter of Clark (15 Abb. Prac., 227), which contains an intimation, of Clerke, J., at variance with the doctrine of the foregoing cases, but the intimation is obiter and is made without argument or citation of authority.

In Burnet v. Holden (1 Lev., 277), judgment upon a verdict in assumpsit had been obtained after the defendant’s, death and before the day in banc. The plaintiff brought. scire facias against the defendant’s executor. The executor pleaded a debt due to himself, and insisted that, by right of his executorship, he could lawfully apply the assets-of his estate to the satisfaction of his own claim, in preference to the claim of the plaintiff, which had not been pressed to-final judgment in the defendant’s lifetime. Judgment was-given for the plaintiff.

The doctrine of the case just cited was upheld in Colebeck v. Peck (2 Ld. Raym., 1280), and in Saunders v. McGowran (12 M. & W., 221).

In Ainslie v. Radcliff (7 Paige, 439), Chancellor Walworth declared that the direction usually contained in decres for the distribution of a decedent’t personal assets, among his creditors, i. e., “to pay the debts in due course-of administration,” was a direction, not to disregard legal priorities, but rather to respect them and to satisfy the debts accordingly.

I have no hesitation in holding that the judgment here in question, if it had been duly docketed as the statutes, directs, has precisely the same force and effect that it could claim if this decedent had died on the day after its entry.  