
    HANSEE v. FIERO.
    
      N. Y. Supreme Court, Third Department, General Term;
    
    
      May, 1890.
    1. Merger by judgment!] A judgment is not merged by the recovery of a second judgment for the same cause.—So held,, where the first judgment was allowed to stand as security ; and the second was in the same court.
    
      2 Judgment; retaining as security.] An order opening a defendant’s default, but permitting the judgment to stand as security, does not extend the lien of such judgment beyond the ten years prescribed by Code Civ. Pro. § 1251, and after such period of ten years has elapsed, the court, although it will permit an execution to issue upon the original judgment, will not so permit it nunc pro tunc, thus possibly exposing subsequent purchasers to the risk of litigation.
    
    3. The same.] The fact that the judgment ultimately recovered was upon an amended complaint, does not amount to a concession by the plaintiff that the first judgment was unauthorized, so as to deprive him of its benefit as security, nor is the amendment a waiver of such security.
    Appeal by defendant from an order of the special term granting plaintiff leave to issue an execution nune pro tune as of September 13, 1884.
    The action was brought by John Hansee against Rachael C. Fiero, impleaded with others, to recover upon a promissory note indorsed by said defendant.
    The facts are fully stated in the opinions.
    
      John E. Van Etten, for appellant.
    
      W. J. Groo (John G. Gray, attorney), for respondent.
    
      
       See note at the end of this case.
    
   Learned, P. J.

The plaintiff recovered a judgment against all of the defendants August 11, 1875. On a subsequent motion for leave to issue execution, an order was made August 10, 1885, granting such leave unless said defendant Fiero should serve an answer in ten days, in which case the judgment was to stand as security. This order gave leave to issue such execution in case no answer was served, “as of the date of September 13, 1884,” which was the day for which the motion had been noticed. The defendant Fiero thereupon answered.

Therefore the leave to issue execution was practically refused; because it was not granted, if the defendant Fiero should answer.

The cause went to trial in June, 1888, and on the trial •the plaintiff amended his complaint by adding certain allegations showing that the defendant Fiero, a married woman, had in writing charged her separate property.

The plaintiff recovered and entered judgment September 26, 1888. On this judgment execution was issued and returned unsatisfied.

The plaintiff then moved, June 8,1889, for leave to issue execution on the judgment of August 11,1875, which motion was opposed. The court granted leave to issue execution nunc pro tuno as of September 13, 1884. From this order the defendant Fiero appeals.

The customary order that on opening a default the judgment shall stand as security, simply retains the judgment as a lien upon any land of the defendant. If it extends the time of the lien under section 1255, Code Civil Procedure, it does not extend it against purchasers, creditors and mortgagees in good faith. And in this case it could be (in any event) an extension only from August 10, 1885, to September 25, 1888, a period of three years and one month and a half. As the lien of the judgment August 11, 1875, had nearly expired when the order was made, the lien of that judgment, even if extended by the order, expired during September, 1888. It had ceased to" be a lien long before the order of June 8,1889. Although, therefore, the order made August 10, 1885, directed that the judgment should stand as security, it could not have the effect to extend the lien beyond the ten years provided for by the Code, section 1251, or the additional time under section 1255, above cited. And the provision in that order that execution might issue as of September 13, 1884, was, as we have seen, entirely nugatory, since the defendant answered, as she was allowed to do, and therefore no privilege of issuing any execution was granted by the order of August 10,1885. All that plaintiff obtained was that the original judgment should stand as security.

Supposing then the original' judgment does stand as security. The plaintiff may then ask leave to issue execution, section 1377, and this may properly be granted. But there is no propriety in issuing the execution nuno pro tuno. If the plaintiff desires to levy on land which the debtor has when the execution is issued, the mode is prescribed in section 1252. If he desires to revive the lien as against purchasers, etc., that he has no right to do. To insert a clause of nuno pro truno is only to expose persons not before the court to the risk of litigation. The plaintiff’s lien on his original judgment has expired long ago; and very possibly rights of purchasers or creditors have arisen. We ought to do nothing which will indicate danger to them where no danger really exists.

And as has been shown above, there is no more reason for a nuno pro tumo clause, taking the execution back to August 10, 1885, than for one taking it back to August 11, 1875. For the order of August 10, 1885, in regard to the execution, had no effect in case the defendant answered, as she did in fact.

Very possibly this nuno pro trumó clause will not in fact harm bona fide purchasers and creditors. But it may alarm them, and perhaps induce them to buy their peace, when there is no valid claim against them. It ought not to be allowed to serve any such purpose. The execution without that clause will give the plaintiff all he is entitled to.

Landokt, J., concurred.

Mayham, J.

On August 11,1875, the plaintiff recovered a judgment in the supreme court by default against Bachel O. Fiero, Bingatn F. Decker and Adaline Decker, on a note purporting to have been made by said Decker and indorsed by the defendant Fiero.

At the time of making an indorsement of the note, and entry of the judgment thereon, the defendant Bachel 0, Fiero was a married woman, which fact was not alleged in; the complaint.

No execution was issued on the judgment within five years after the entry thereof.

A motion for leave to issue execution was noticed for a special term to be held September 13, 1884, which motion was adjourned from time to time until August 10, 1885, when an order was made granting leave to issue execution on the judgment as of the date of September 13, 1884, unless the defendant Fiero should within ten days from the service of the order serve a verified answer.

On August 15, 1885, this defendant served an answer as required by the order; after which no proceedings were taken in the action until the trial thereof June 21, 1888, when the defendant Fiero moved to dismiss the complaint as to her, on the ground that it did not state a cause of action against her as a married woman, whereupon the court gave the plaintiff his election to submit to a dismissal of the complaint or amend the same so as to state a cause of action.. The plaintiff elected to amend and the trial proceeded resulting in a verdict and judgment for plaintiff for the amount of the note, interest and costs, which judgment was entered September 25, 1888. On this judgment an execution was issued against all the defendants and returned wholly unsatisfied.

On June 8, 1889, thereafter, plaintiff made another motion for leave to issue execution on the j udgment of August 11, 1875, upon the above facts, which was opposed by the defendant Fiero, on which an order was made granting leave to issue an execution mono pro tumo as of the date of September 13, 1881. From this order the defendant Fiero appeals to this court.

The appellant insists that the election of the plaintiff to amend his complaint on the trial was in legal effect a concession that the original judgment was unauthorized and invalid as against the defendant Fiero. That the making of such election was a concession on his part in open court that the original complaint did not state a cause of action against the defendant Fiero, and that the judgment was, therefore, as to her unauthorized, and that both parties, having acted upon that concession, followed by the recovery of a new and different judgment and an attempted enforcement of the same by the plaintiff by execution, are concluded.

We cannot agree with the appellant in his contention that the first judgment, for want of the allegation in the complaint that she expressly charged her separate estate, was unauthorized and invalid.

It was never necessary, in order to recover against a married woman, to allege in the complaint the facts which, if controverted, would have to be proved to charge her.

It is enough to complain generally upon the contract or obligation. She may be sued and declared against as a feme sole and her coverture is a matter of defense only. In Smith v. Dunning, which was an action upon a note of a married woman, the defense of coverture was set up. In discussing that question the court says: “ She was bound by the note and could be sued upon it as if she were unmarried.”

It was wholly unnecessary to allude in the complaint in any way to her coverture or her separate estate. Her coverture was matter of defense to be set up if available (Smith v. Dunning, 61 N. Y. 251; to the same effect is Hier v. Staples, 51 Id. 136; also, Frecking v. Rolland, 53 Id. 422).

The first judgment, therefore, not having been paid or reversed, must for the purposes of this motion be regarded as valid, unless the same was by the acts of the defendant in the prosecution of the action and the recovery of the second judgment expressly waived or merged in the second recovery

. The defendant insists that such was the effect of the election of the plaintiff to amend his complaint, and that he cannot now for that reason enforce the old judgment by -execution, and several cases are cited to show that a party by his own act may waive a right, and after his adversary has acted upon such waiver he cannot disregard the same, and assume and enforce for his own benefit the right which he has thus waived.

But none of the cases cited hold that a judgment can be thus waived or that the recovery of a second judgment for the same cause of action is a merger or extinguishment of the first.

In Lansing v. Caswell, 4 Paige, 519, it was held that when a party had appealed from the' decision of the commissioners of highways in laying out a highway, if he afterward participated in the assessment of damages, he thereby waived his appeal.

In Brady v. Donnelly, 1 N. Y. 126, the defendant demurred to a bill in equity and the demurrer was overruled by the vice-chancellor, whereupon the defendant appealed to the court of appeals, but pending such appeal answered the bill upon its merits; it was held that by answering he had waived his appeal. In Bennett v. Van Syckel, 18 N. Y. 481, the party by a judgment was decreed to receive certain advancements and be indemnified against certain -covenants, and was then to assign certain leases ; held that he could not after adopting the beneficial part, repudiate that which was of benefit to the other party, but that he had waived his right to object to the performance of the part which operated to his prejudice.

In Smith v. Rathbun, 75 N. Y. 122, the plaintiff applied to the referee for leave to amend his complaint, which was granted upon condition that the defendant might demur to the amended complaint; after amending his complaint the plaintiff objected that defendant had no right to demur to an amendment made on the trial; held that having availed himself of the conditional order he was bound by the condition, and had waived his right to object.

But it will be seen that in none of these cases has a valid judgment been extinguished by waiver, nor have we been able to find a case which goes to that length.

Xor do we see how on this motion the judgment of August 11, 1875, can be held invalid, or extinguished.

Ordinarily a judgment of a court of record can only be extinguished by payment, release, satisfaction of record, or lapse of twenty years. Hone of these facts exist as to this judgment, and the court cannot on this appeal hold that it has been extinguished, superseded by the latter judgment, or merged in it.

It is true that at the time of the making of the order by Judge Westbrook, to which effect is given by the order from which this appeal is taken, more than ten years had lapsed after the entry of the judgment, and the same had, at the time the order was made, ceased to be a lien on the real estate, and an order for the issuing of an execution could not revive the lien.

In cases where defaults are opened, it is a common practice to allow the judgment already entered to stand as-security; and the learned judge who granted the order appealed from, held that effect should be given to the order of Judge Westbrook.

It is insisted by the defendant that the order made by the special term after the lapse of ten years, although by its. terms nunc pro tunc as of a date prior to that time, is unjust, as its object was to revive a lien already extinct.

It is by no means certain that order could have any such effect, or that the court could by its order actually made after a judgment had ceased to be a lien revive the same ; that, in effect, would be reviving and creating a lien barred, by a statute.

There does not seem to be any limit of time during the life of a judgment within which an execution may issue under subdivision 2 of section 1377 of the Code; and without determining what property of the judgment debtor under it could be taken upon execution, we think the order granting leave to issue execution should be so far modified as to allow an execution to issue on the original judgment as of this date, but not nuno pro tunc.

Order amended by striking out the nunc pro tunc clause, without costs to either party.

Note on the Effect of Allowing Judgments, Executions and Levies to stand as Security.

When the court open a regular default or inquest, they have power to impose such conditions as they deem equitable, (cases 1-4) and the party let in, by accepting the favor, becomes bound by the condition imposed. (1 Abb. New Pr. & F. 258.)

The usual conditions include allowing the judgment, and the execution if issued, and the levy if made, to stand as security for any judgment that may be ultimately recovered.

A judgment is a lien on real estate ; an execution duly delivered to the sheriff is a lien on leviable property, except as against a Iona fide purchaser ; and a levy may be a lien as against all persons.

It is the object of such a condition to reserve to the plaintiff whatever advantage toward realizing his claim he has acquired, subject only to the right of the defendant to have the existence of the claim established upon a hearing or trial before the seizure and sale are proceeded with.

Whatever inconsistent language may be found in the opinions reported, the actual rulings of the courts are singularly harmonious, and protect with fidelity the right and the suspended remedy of the plaintiff, while they secure to defendant the opportunity of being heard, and of appeal if unsuccessful.

It appears that the court will do nothing to impair the status quo, until a final decision. Hence they will not amend nor supersede the judgment, for to do so might impair the lien, (case 5) nor should they mark it “secured on appeal.” (Case 11.)

Nor will they regard it as a judgment for the purpose of precluding arrest, while not a judgment for the purpose of an adjudication precluding trial. (Case 6.)

On the other hand, while they now allow a second judgment to be entered upon a final recovery, for otherwise defendant’s right of appeal would be impaired, (cases 6-10) and may treat the original judgment as falling with an absolute reversal of the subsequent judgment, (case 11) they probably would treat it as still standing where reversal of the subsequent judgment was merely incidental to granting a new trial.

The later cases recognize the principle (elsewhere established by the highest authority) that the power to render judgment includes implied power to award execution, and to direct and control the execution. It needs no statute to authorize the court to award execution on its own judgment; and in fact an award of execution is a regular part of every judgment wherever there is no statute authority for issuing execution without such award in the judgment.

Hence the security which the court has saved to plaintiff is wholly within its power to enforce without any new action (case in the text); and there seems to be no doubt that if the lien consists in a levy or outstanding execution, the party may proceed and collect so much (within the limits of the execution itself) as may be necessary to satisfy the claim established by the final recovery.

It is quite consistent with these rulings that the plaintiff should not be allowed, before final recovery, to gain any new right as by supplementary proceedings, or by a creditor’s suit on the judgment, or a claim to.surplus moneys ; but this question would turn on the enquiry whether there was an exigency which required asserting the judgment in such a proceeding as essential to make good the condition that it should stand as security. The acceptance of the condition is,an assent on the defenclant’s part that binds him to acquiesce in the continuance of the lien on equitable principles. (Case 11.)

The court doubtless may frame its order in the first instance so as to make the creditor’s rights in this respect more clear.

Notes of Gases.

1. Where a judgment taken on default is regular, an order letting the defendant in ought to be qualified by letting the judgment stand as security. Nitchie v. Smith, 2 Johns. Cas. 286.

2. Wilson v. White, 7 Cow. 477 (Dictum, that wherever a party applies for leave to move [against a regular recovery] the court have power, as one of the terms, if they see plaintiff’s safety demands it, to require a condition that judgment or execution go as security.)

3. So in Blodget v. Conklin, 9 How. Pr. 442, 445, a judgment execution and levy were allowed to stand as security.

4. And the court may require the defendant, as a condition of opening the default, to disclose facts, as for instance, on letting in executrix who ought not to be made liable beyond assets in her hands át a given time, to disclose the state of the assets at the time and since. Nitchie v. Smith, 2 Johns. Cas. 286.

5. Dows v. Boughton, 3 Hill, 452. Here, after judgments perfected on verdicts, and executions issued, defendants had leave to defend on terms, and the judgments and executions were ordered to stand as security. On the subsequent trial, plaintiffs recovered, and taxed their costs and moved for an order that defendants pay or be attached. To this it was objected that imprisonment for debt was abolished, and that the remedy was to amend the judgment by including the costs or enter a second judgment by suggestion in the record, and issue execution thereon for the costs. By the court, Bronson, J., “ We cannot amend the record by increasing the amount of the recovery, without endangering the lien which the plaintiffs have obtained by docketing the judgment; and by amending the writ of fieri facias now in the sheriff’s hands, we might, perhaps, affect the levy upon personal property. As to rendering a second judgment in the same suit, either by way of suggestion or otherwise, I am not aware of any precedent for such a practice, except in the actions of account and partition, and I think it cannot be done. The defendants were let in to defend as a matter of favor after a judgment had been regularly entered against them, and if they will not now pay the additional costs to which the plaintiffs have been put, they can have no just ground for complaint if the payment of those costs is enforced in the only way which will not work any further prejudice to the plaintiffs than they have already suffered by the delay of their proceedings.”

6. Mott v. Union Bank, 38 N. Y. 18; s. c., 4 Abb. Pr. N. S. 270; aff’g 8 Bosw. 591. The point here decided was that the provision of the Code allowing arrest as a provisional remedy only “ before final judgment,” did not preclude arrest while a judgment was thus standing as security, and before final recovery on the trial allowed to defendant. The court held that final “ judgment ” in the provision as to arrest means “ the final determination of the rights of the parties in the action.”

In support of this conclusion they take occasion to say that after a default opened, the judgment though allowed to stand as security is deprived of its ordinary character as res judicata. And the court below (8 Bosw. 595), point out that unless a second judgment can be entered, the provisions of the Code of Procedure as to appeal afford no adequate means of reviewing the second verdict.

7. This latter view is followed by the ruling of McAdam, J., in Hall v. Templeton (Marine Ct.), 4 N. Y. Weekly Dig. 120, to the effect that if plaintiff recovers on the trial, he must make up a new judgment roll as if none had been filed; and he added that the judgment which stood as security “ is to be enforced after such recovery, pro tanto, and the money realized upon it is to be credited upon what mav bo termed the final judgment.”

8. In Miller v. Eagle Life, etc. Ins. Co., 3 E. D. Smith, 184, Ingraham, J., incidentally remarked, (in deciding as to a second judgment on affirmance on appeal) “ Our practice always has been, where a judgment has been opened and a new trial ordered, but the judgment allowed to stand as security, to require a new judgment to be entered for the amount recovered on the second trial without reference to the previous judgment.”

9. In Heinemann v. Waterbury, 5 Bosw. 686, judgment execution and levy had been allowed to stand as security; and plaintiff recovered on the trial, but did not enter a new judgment, and resisted defendant’s motion to compel him to cause a judgment roll to be filed, by urging that a new judgment might waive or annul the first. The court held that it was the duty of the clerk to make up the judgment roll, and the motion must be denied.

Hoffman, J., said by way of dicta : “ The lien, by docket or levy of the judgment by default directed to stand as security, cannot be impaired by the plaintiff himself entering up the final judgment. The court has the power to render the docket or levy available, by directing the execution heretofore issued to be carried into effect.”

10. The ruling in Hall v. Templeton (case 7 above) was reiterated by the same judge in Negley v. Counting Room Co., 2 How. Pr. N. S. 237, where defendant moved to vacate as irregular a second judgment entered against him after the trial, and the court denied the motion.

McAdam, J., said: “ If the plaintiff fails in his action the security is returned by canceling the collateral judgment, which loses its vitality and effect when the action fails. But if the plaintiff finally succeeds in the action the orderly practice is to issue an execution upon the final judgment, which is the real judgment in the case, and if that proves unproductive, then to pursue whatever lien the collateral judgment gives; or if a levy has already been made on the collateral judgment, or a proceeding has been founded thereon, and either has been preserved by the order opening the default, it will not be impaired, but may be enforced if the plaintiff finally recovers in the action. But the court, in controlling the execution of its own process, may no doubt, on application, direct the manner of its enforcement, so that the rights of all parties may be preserved and enforced without injury or oppression to either. It is clear, therefore, that the security judgment is to remain of record unimpaired until the judgment entered upon the verdict has been paid, reversed, or in some legal form removed from the judgment docket.”

11. In Holmes v. Bush, 35 Hun, 637, after a judgment was ordered to stand as security, defendant died and his executrix was substituted as defendant, and failed on the trial, and a new judgment for the recovery and costs was entered against her.—Held, that marking both judgments “ secured on appeal ” (under Code Civ. Pro. § 1823) did not relieve the land from the lien resulting from the decedents accepting leave to defend on condition that the judgment stand as security, and that “ the lien in equity continues until the debt is discharged.”

The court declined to express an opinion as to whether the court -could direct execution, or a new suit in equity would be necessary.

12. In Pierce v. Thomas, 4 E. D. Smith, 354, the facts are not stated but it may be inferred that a judgment was allowed to stand as security ; that plaintiff thereafter recovered and entered a new judgment, and that defendant then appealed and stated in the notice of appeal that he desired to review both judgments. All that the court say on the question is this:

“ In relation to the claim made in the notice of appeal to reverse two judgments, it is probably sufficient to say, that as the first stands •only as security for the second, it must fall with it.”

13. Holmes, Booth and Hayden v. Rogers, 18 State Rep. 652; s. c., 2 N. Y. Supp. 501. Motion to compel return of execution by sheriff. The original judgment was, after execution issued, opened and allowed to stand as security. Plaintiff again recovered judgment and the motion was to compel a return of the execution issued thereon.—Held, affirming an order granting the motion, that where judgment is suffered to stand as security, it exists merely as security and does not determine any right of the parties in the action ; that the same future proceedings may be taken in the action as if the first judgment had never been entered.  