
    Martin J. Waters, Plaintiff, v. Ralph L. Spencer, Defendant.
    (Supreme Court, New York Trial Term,
    June, 1904.)
    Action on a foreign judgment brought by an assignee — Objection that the plaintiff has not legal capacity to sue when waived — Assignee’s right to sue in his own name — Presumption as to foreign law — The lexi fori governs the remedy and procedure — Validity of a foreign judgment, lacking the judge’s signature — Effect of an exemplified copy.
    The objection that a plaintiff has not legal capacity to sue can be raised only by answer or demurrer upon such ground and if not so raised is waived.
    
      Where the validity of an assignment of an Illinois judgment is not questioned, in an action brought thereon in the State of New York by the assignee thereof, he is the real party in interest and expressly authorized by Code Civ. Pro., § 1909, to bring the action in his own name.
    The presumption, in the absence of proof to the contrary, that the law of a foreign State is like our own does not extend to positive statutory law.
    The leai fori governs in all matters relative to the remedy and the course of procedure.
    A duly exemplified copy of a judgment, rendered in an Illinois court of general jurisdiction, although not signed at its end by the judge who presided at the trial, is,, where no fraud or mistake is shown, entitled under the Constitution of the United States, art. IV, § 1, to the same credit here to which it would be entitled in Illinois, and where its courts have decided that the judge’s signature is not necessary in that State to a judgment’s validity, the ' exemplified copy is competent evidence, for the assignee, of the existence of the judgment.
    Motions to dismiss the complaint and for a new trial.
    Stephen Callaghan, for plaintiff.
    William K. Hall, for defendant.
   Clarke, J.

The defendant moves to dismiss the complaint on the ground that plaintiff has neither stated nor proved a cause of action. The first question raised is whether or not an assignee of a judgment recovered in Illinois can maintain an action in his own name thereon in this State. The legal capacity to bring an action and the existence of a cause of action are distinct. A motion to dismiss is equivalent to a summary demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action. Albany Belting & Supply Co. v. Grell, 67 App. Div. 81, 85. The objection that the plaintiff has nor legal capacity to sue can be raised only by answer or demurrer upon such ground, and if not so raised, it is waived. Code Civ. Pro., §§ 498, 499; Nanz v. Oakley, 122 N. Y. 631; Ward v. Petrie, 157 id. 301; Spooner v. D., L. & W. R. R. Co., 115 id. 22. It is, however, clear that plaintiff has a good cause of action and legal capacity to sue. Ho evidence of the statutory law of Illinois was introduced. In such case the common law, as interpreted by our courts, will be presumed to be in force in the sister State. The validity of the assignment of this judgment is not questioned. At common law the assignment passed the equitable title, vesting in the assignee the exclusive right to control the judgment, to sue thereon in the name of the assignor and to receive the proceeds when collected. The presence of the assignor on the record, as holding the legal title, is merely a formal requirement. Black Judg. (2d ed.) 940; Freem. Judg. (4th ed.), § 421. The assignee is the real party in interest, and in this State, by the provisions of section 1909 of the Code of Civil Procedure, he is expressly authorized to bring action in his own name. It is urged by the defendant that the assignee is not vested with the right to sue in his own name by this statute, because it cannot be presumed that such right is conferred by like statute in Illinois. The presumption, in the absence of proof to the contrary, that the law of a foreign State is like our own does not extend to positive statutory law. First Nat. Bank v. National B’way Bank, 156 N. Y. 472; Wooden v. W. N. Y. & P. R. R. Co., 126 id. 10; Leonard v. Columbia St. Nav. Co., 84 id. 48; McDonald v. Mallory, 77 id. 546; Whitford v. Panama R. R. Co., 23 id. 465, 468. But the law of Illinois, whatever it be, is not controlling on the question of the plaintiff’s right to bring the action in his own name. The lex fori governs in all matters relating to the remedy and the course of procedure.” 22 Am. & Eng. Encyc. of Law (2d ed.), 1383. Thus it governs as to the parties to the suit. Stoneman v. Erie R. Co., 52 N. Y. 429; Merchants’ Loan & Trust Co. v. Clair, 36 Hun, 362; Johnson v. Huber, 134 Ill. 511. In Pritchard v. Norton, 106 U. S. 124, Mr. Justice Mathews, in discussing the scope of the application of the lex fori, says (at p. 130) : “ Whether an assignee of a chose in action shall sue in his own name or that of his assignor is a technical question of mere process, and is determinable by the law of the forum.” Lodge v. Phelps, 1 Johns. Cas. 139; Scoville v. Canfield, 14 Johns. 338; Andrews v. Herriot, 4 Cow. 508, 510; Vischer v. Vischer, 12 Barb. 640, 645; Barth v. Iroquois Furnace Co., 63 Ill. App. 323; Leach v. Greene, 116 Mass. 534. In the case before, me the action is -properly brought in the name of the assignee, as the law of this forum prescribes.

The further question is whether the exemplified copy of the Illinois proceeding is competent evidence of a judgment, it appearing that there is no signature of the judge at the end of the judgment. The Constitution of the United States provides that full faith and credit shall be given in each State to the judicial proceedings of every other State, and empowers Congress to prescribe the method of proving such proceedings and their effect. U. S. Const., art. IV, § 1. The United States Revised Statutes (title 13, chap. 17, § 905) prescribe the method of authentication. When the judgment of a court of general jurisdiction is properly authenticated as prescribed, it will not be questioned unless fraud be shown or there be a jurisdictional defect. Smith v. Central Trust Co., 154 N. Y. 333. The question of jurisdiction is not before this court. Want of jurisdiction is an affirmative defense and must be pleaded. Rice v. Coutant, 38 App. Div. 543. Mr. Justice Woodward, in that case (at p. 548), says: “The general denial is a denial only of the fact of the existence of the judgment, and the plaintiff, in producing a duly attested copy of the judgment, has met all the requirements of the ease, and is entitled to judgment under the pleadings.” The copy of the proceedings offered in evidence was duly attested. It is, however, contended that no judgment in fact is proven thereby, that the record is imperfect and may have been on file awaiting the judge’s signature to complete it as a judgment. In Morris v. Patchin, 24 N. Y. 394, cited by the defendant, and in which such suggestion is made, the perfection of the record of judgment in proceedings transferred from one court to another was, by an Ohio statute, given in evidence, expressly made dependent upon the signature of the judge of the court to which such case was transferred. There is no such express requisite in this case. The court must give the record the same value as it would be given in Illinois. The United' States Revised Statutes, after prescribing the method of authentication of judicial proceedings, provides: “And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have hy law or usage in the courts of the State from which they are taken.” The credit given to such judgment in the courts of the State of Illinois has been determined. In Habberton v. Habberton, 58 Ill. App. 99, 103, Presiding Justice Scofield says: It is suggested that the decree was not signed by the judge. But the decree is of record and has not been impeached in any proper manner for fraud or mistake, and the signature of the judge is not necessary to its validity (Dunning v. Dunning, 37 Ill. 306; Agnew v. Lichten, 19 Bradw. 79).” Such determination is in accord with the decisions in this State. Clapp v. Hawley, 97 N. Y. 610; Good v. Daland, 119 id. 153, 156.

The third point urged by the defendant, that payment of the judgment should be conditioned upon the transfer of certain collateral, alleged in the counterclaim to be held by the plaintiff, has already been decided adversely to defendant by the Appellate Division of this court on his motion for a commission to examine certain witnesses without the State. The principles emphasized by the defendant governing the rights of sureties are inapplicable. They would only be applicable upon the assumption that the defendant was an accommodation maker or surety, and, therefore, entitled to collateral held by the plaintiff. The Illinois judgment has settled that claim against the defendant by rendering judgment against him as a principal. The question of fact or law determined by the Illinois judgment cannot be re-examined by other courts. Dunstan v. Higgins, 138 ET. T. 70. There is nothing in the counterclaim pleaded to establish that the plaintiff holds securities as collateral to which the defendant is entitled upon payment of the obligation which he incurred as principal. Motions to dismiss and for a new trial denied. -Judgment may be entered upon the verdict in favor of the plaintiff. Defendant may have thirty days’ stay, and thirty days to make a case.

Motion denied.  