
    Thomas McGrath, Respondent, v. William G. Maxwell, Appellant.
    
      An assignee of a judgment may sue upon it without leave of court—pendency of a former equitable action to vacate the judgment.
    
    Where the indorser of a promissory note, upon his payment of a judgment • recovered upon the note against the maker and himself, takes' an assignment ' of the'judgment, he may bring an action upon it against the maker without leave of the court. .
    The provisions of section 1913 of the Code-of Civil Procedure, forbidding a party to a judgment to sue thereon, without leave of the court, apply only as. “between the original parties to the judgment,” and do not affect a party who sues upon it as an assignee.
    Such an action is not barred by the pendency of a prior equitable action brought by the maker against the indorser of the note in which the maker, in substance, alleges that the indorser was primarily liable upon the note, and demands that the .judgment assigned to him should be satisfied of record and the indorser be enjoined from enforcing it.
    Appeal by the defendant, William G. Maxwell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county-of Montgomery on the. 24th day of Sep? tember, 1896, upon the. verdict of a jury for $2,006.25 directed by the court.
    
      
      Chanter, Maxwell c& Philip, for the appellant.
    
      Edward P. White, for the respondent.
   Merwin, J.:

On the 12th day of June, 1888, the First Rational Bank of ■ Amsterdam recovered in the Supreme Court a judgment against William G. Maxwell and Thomas McGrath for $1,340.18, upon two notes made by Maxwell to the order of and indorsed by McGrath and transferred to the bank. On the 24th day of April, 1895, McGrath paid to the bank the full amount of the judgment and the bank executed and delivered to him an assignment thereof.

■ In the complaint in the present action the execution and delivery of the notes, the recovery of the judgment, its payment by and assignment to the plaintiff, and its non-payment -by the defendant áre alleged. The verdict is for the amount with interest. •

It is argued by the appellant that the plaintiff cannot maintain the action because he did not obtain from the court an order granting him leave to bring it. (Code Civ. Proc. § 1913.) The action here, however, is not “ between the original parties to the judgment.” That means, as said by Oakley, Ch. J., in Tufts v. Braisted (4 Druer, 608), “that no party in whose favor a judgment is rendered shall bring an action upon it against those against whom it is rendered without leave of the court.” The section does not apply where the judgment has been assigned. (Carpenter v. Butler, 29 Hun, 251; Knapp v. Valentine, 67 N. Y. St. Repr. 582, and cases cited.) The plaintiff upon the facts stated had a right to take the assignment and enforce the judgment against the present defendant. (Bostwick v. Scott, 40 Hun, 212.) It was not necessary for the plaintiff to obtain leave to sue.

It is further argued by the appellant that a prior action brought by the defendant against the plaintiff and still pending, is a bar to the present one. In that action this defendant in his complaint, in substance, set up that he and not this plaintiff was the surety, and, therefore, he claimed that the judgment referred to should be satisfied as to him and that this plaintiff should be enjoined from enforcing it. This plaintiff answered, setting up, in substance, the facts as he in this action claims them, in other respects denied the complaint and demanded as affirmative relief that he recover the ' amount of the judgment. A demurrer to the counterclaim was put in, upon the ground that it was not one of the causes of action mentioned in section 501 -of the Code of Civil Procedure, and, also, that the counterclaim did not state facts sufficient to constitute a cause of action. Thereupon an amended answer was served, setting up the same facts as a defense, not as a counterclaim,., and demanding no affirmative relief. The amended answer seems'to have been served April 1, 18.96, and the present action was commenced April 11, 1896. '

It may admit of some doubt whether, in the equity action brought by this defendant, the counterclaim was permissible. (Lipman v. J. A. I. Works, 128 N. Y. 58, 63; Walker v. A. C. Ins. Co., 143 id. 169; Bellinger v. Craigue, 31 Barb. 534; City, of Schenectady v. Furman, 15 N. Y. Supp. 724.) Assuming that it was, the defendant therein was not bound to set it up. (Brown v. Gallaudet, 80 N. Y. 413; Inslee v. Hampton, 8 Hun, 230; Carlin v. Richardson, 17 N. Y. St. Repr. 399.). He had the right to serve an amended answer, and upon the issue as finally made, induced it may be by the action of the plaintiff therein' in demurring to the supposed counterclaim, the defendant therein could not obtain the relief that he. obtains in the present action, and, therefore, the pendency of the former action would not be a bar. The actions are not for the same cause within subdivision 4 of section 488 of the Code. Their scope is different. One is to set. aside a judgment, the other is to enforce it. One involves .the validity of the judgment, the other not only the validity, but its actual execution. This plaintiff had the right to enforce the judgment by suing it over. This defendant did not, by preliminary injunction, order in his equity suit, or by order in the original action, procure a stay. The bringing of the action was not, in itself, a stay. This plaintiff, in the absence of a stay, was at liberty to enforce his judgment by such remedies as were available, and was not bound to await the determination of the equity suit.'

Xo sufficient reason is apparent for reversing the judgment appealed from, and it should be affirmed.

All concurred.

Judgment-affirmed, with costs.  