
    John Hansee, Resp’t, v. Rachel C. Fiero, Impl’d, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    Execution—Leave to issue.
    On August 11, 1875, plaintiff recovered a judgment by default against all the defendants. On motion for leave to issue execution an order was made August 11, 1885, granting leave as of September 13, 1884, the day for which the motion had been noticed, unless the impleaded defendant answered. This she did. The cause was tried in June, 1888, and plaintiff amended his complaint by alleging that the impleaded defendant was a married woman and had in writing charged her separate estate with the debt in suit. Plaintiff recovered judgment and the same was entered in September, 1888. On this judgment execution was returned unsatisfied. In June, 1889, plaintiff moved for leave to issue execution on the judgment of August 11, 1875, and at special term leave was granted to issue execution thereon at of September 13, 1884. Held, error. In any view, the ten years lien of the judgment upon land had expired before June, 1889, and other rights may have intervened, and further, the court has no power to revive a lien when once extinguished. Leave granted to plaintiff to issue execution upon the judgment of August 11, 1875, but as of the present time.
    Appeal from, order granting leave to issue execution as of September 13, 1884, on a judgment recovered in 1875.
    
      John JS. Van Mten, for app’lt; William J. Groo, for resp’t.
   Learned, P. J.

The plaintiff recovered a judgment against all the defendants August 11, 1875. On a subsequent mofion 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 tune 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 § 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, § 1251, or the additional time under § 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, § 1377, and this may properly be granted. But there is no propriety in issuing the execution nunc pro tune. If the plaintiff desires to levy on land which the debtor has when the execution is issued, the mode is prescribed in § 1252. If he desires to revive the lien as against purchasers, etc., that he has no right to do. To insert a clause of nunc pro tune 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 nunc pro tune clause, taking the execution back to August 10, 1885, than for one taking it back to August 11, 3 875. 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 nunc pro tune 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.

Order amended by striking out the nunc pro tune clause.

No costs to either party.

Lakdoit, J. concurs.

Mayham, J.

On the 11th day of August, 1875, the' plaintiff recovered a judgment in the supreme court by default against Rachel O. Fiero, Bingam F. Decker and Adaline Decker, on a note purporting to have been made by said Decker and endorsed by the defendant Fiero.

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

No execution was issued on the judgment within five (5) 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 (10) days from the service of the order serve a verified answer.

On the 15th day of August, 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 mar ried 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 the 8th day of June, 1889, thereafter, plaintiff made another motion for leave to issue execution on the judgment 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 nunc pro tune as of the date of September 13, 1884. 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 et al. v. Dunning, 61 N. Y., 251; to the same effect is Hier v. Staples, 51 N. Y., 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 m ay 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 Earty had appealed from the decision of the commissioners of ighways 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.

Nor 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 (20) years. None 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 (10) years had lapsed after the entry of the judgment, and the same had at the time the order was made ceased to be 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 tune 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 § 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 nunc pro tune.  