
    George Ireland, Jr., Executor, &c., Plaintiff and Respondent, v. Elisha C. Litchfield, Defendant and Appellant.
    1. Upon, the death of a plaintiff, after final judgment in his favor, his personal representatives may bring an action upon the judgment, to obtain the same relief as was formerly obtained in such cases by a writ of scire facias.
    
    2. The personal representatives cannot issue execution by leave of Court; nor can they revive the judgment by a motion under section 121 of the Code. Per Bosworth, Ch. J.
    3. In such an action, by the personal representatives, to revive the judgment and obtain execution thereof, it is in the discretion of the Court to allow costs or not.
    (Before Bosworth, Ch. J., and Woodruff, J.)
    Heard, November 14;
    decided, November 30, 1861.
    Appeal from a judgment entered on the decision of a Judge, on a trial at Special Term.
    George Ireland, Jr., as executor of the will of Edward Cook, deceased, brought this action in the nature of a writ of scire facias, against Elisha 0. Litchfield, a judgment debtor of Oook, to have the judgment revived, and for leave to issue execution thereon.
    - The complaint alleged that Cook, in his lifetime, and about two years before the present action was brought, recovered a money judgment against the defendant, and that after execution issued and returned unsatisfied, Cook died, leaving a will and appointing plaintiff his executor, who had duly qualified.
    The specific relief prayed was, “that this action be continued in his name, and that he may have leave to issue a new execution upon such judgment, and continue this action with the like effect as if the said Edward Oook were still living, &c.”
    The action was tried at a Special Term before Mr. Justice Woodeuff, on the 14th day of June, 1861.
    After the plaintiff had given his evidence and rested his case, the defendant made a motion that the complaint be dismissed on the ground that such an action would not lie, but the Court overruled it, and gave judgment for the plaintiff, with costs.
    The defendant excepted to the conclusions of law contained in the decision of the Court, on the grounds that:
    
      First. The plaintiff is not entitled by law to any revivor of the judgment by means of this action; and the action by law did not abate by the death of Edward Cook; and no judgment can be given in this action, in any event, beyond simple leave to issue process of execution.
    
      Second. The present action is not authorized by law, and is unnecessary for any purpose.
    
      Third. The plaintiff is not entitled to costs for bringing this action.
    Judgment having been perfected against the defendant, he took the present appeal to the Court at General Term.
    
      Charles Tracy, for defendant, (appellant.)
    I. An action in nature of scire facias cannot be sustained, unless there is necessity for that form. (Code, § 428.)
    
      II. There is none, under the Code, when a judgment recently recovered, comes to the hand of an executor.
    1. The original action in which the judgment was recovered did not abate by the death of the plaintiff of record. (Code, § 121.)
    2. The executor could be substituted as plaintiff, upon motion. (Code, § 121.)
    3. Execution could be had at any time within five years. (Code, § 283.)
    III. All the relief granted, beyond the mere license to issue execution, was erroneous.
    
      Ed. Randolph Robinson and William Curtis Noyes, for plaintiff, (respondent.)
    I. Scire facias was the remedy before the Code of Procedure. (R. S., part III, tit. II, ch. IX, art. 1, § 2, 2d ed., p. 475 ; Alden v. Clark, 11 How. Pr. R., 212 ; Murphy v. Cochran, 1 Hill, 339 ; Cameron v. Young, 6 How. Pr. R., 372.)
    II. Since 1849 this action has been superseded by a civil action under the Code, seeking the same relief.) (Amended Code, § 428, 7th ed., p. 569 ; Catskill v. Sandford, 4 How. Pr. R., 100 ; Cameron v. Young, 6 How. Pr. R., 372 ; Thurston v. King, 1 Abbott Pr. R., 126 ; Jay v. Martine, 2 Duer, 654 ; Wheeler v. Dakin, 12 How. Pr. R., 537.)
    III. Leave of Court to bring such action is unnecessary. (Wheeler v. Dakin, 12 How. Pr. R., 537.)
    IV. The relief given in this case is the usual relief given to the plaintiff on succeeding in such an action, and was properly given. (Jay v. Martine, 2 Duer, 654 ; Thurston v. King, 1 Abbott Pr. R., 126.)
    V. Costs follow such a judgment. (Darrow v. Lickel, Sp. T., Buffalo Superior Court, cited Clinton’s Dig. III., p. 2948 ; Wheeler v. Dakin, supra.)
    
    VI. The allowance of costs to the plaintiff was a matter of discretion with the Court, and is not appealable. (Amended Code, § 306 ; Travis v. Waters, 12 John., 500 ; Eastburn v. Kirk, 2 John. Ch. R., 317 ; Niles v. Griswold, 
      3 Code R., 164 ; Perry v. Moore, 2 E. D. Smith, 32 ; Joyce v. The Mayor, 20 How. Pr. R., 439.)
   By the Court—Bosworth, Ch. J.

By the laws in force when the Code took effect, if a plaintiff died after final judgment in his favor, but before execution issued, no execution could be issued on the judgment until it had been revived by scire facias, at the suit of his personal representatives. (2 Saund. R., p. 6, note 1, and Id., p. 72, m, 72, n, and 72, o ; Gra. Pr., 308 ; Troup v. Wood, 4 John. Ch. R., 247, 249 ; Baldwin v. Hale, 17 John. 272 ; Murphy v. Cochran, 1 Hill, 339 ; and 2 R. S., 576, §§ 2 and 3 ; Id., 386, § 2.)

Section 428 of the Code abolishes “ the writ of scire facias,” the writ of quo ivarranto, &c.; but it declares that “the remedies heretofore obtainable in those forms, may be obtained by civil action under the. provisions of this chapter.”

As this section, in express terms, authorizes an action to be brought, there does not seem any basis to uphold an argument that one cannot be brought.

Section 283 [238] does not affect the question. It authorizes an execution to be issued as a matter of course, at any time within five years after the entry of judgment. By 2 Rev. Stat., 363, § 1, one might be issued as a matter of course, within two years after filing the record of judgment. But in either case, and in one as well as in the other, if the plaintiff die before execution issued, it is essential that the judgment should be revived in the name of the personal representatives of the deceased party.

Section 284 [239] which provides that “after the lapse of five years from the entry of judgment, an execution can be issued only by leave of the Court, upon motion,” is only applicable where the parties to the judgment are living. Under any other construction, sections 284 and 428 would conflict with each other. This construction is further favored by the provisions of section 284, which require that it be established “by the oath of the party” or other satisfactory proof, that some part of the judgment is unpaid, and that the motion be made “upon personal notice to the adverse party,” unless he be absent, &c. The execution to be issued as a matter of course, under section 283, or pursuant to leave granted under section 284, must be in such form as section 289 prescribes. Section 289 requires, that it be in the name of the party plaintiff of record, (if the judgment be in his favor,) and against the persons against whom the recovery was had.

Such an execution is not adapted to the cases provided for by 2 R. S., pp. 577, 578, §§ 5 to 11 inclusive.

Section 471 [390] declares that the second part of the Code “ shall not affect * * any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided,” &c. And § 428, while it abolishes the writ of scire facias, and other writs named in it, enacts that the remedies heretofore obtainable in those forms, “ may be obtained by civil actions under the provisions of this chapter.” The fact that the subsequent sections of that chapter do not contain any provision in respect to an action to revive n, judgment, does not restrict the remedy by action under it, to those cases alone, which are specified in the special provisions found in that chapter. The cases thus specified are to be prosecuted under or subject to those provisions, as well as subject to the general provisions of the Code in relation to actions generally. The phrase, “under the provisions of this chapter,” is not a limitation of the natural and ordinary meaning of the words immediately preceding it, but is merely designed to declare that the remedies theretofore obtainable by scire facias, although they may be obtained thereafter by civil action, shall be subject to the special provisions of that chapter, in respect to the cases to which such provisions relate.

In the opinion of the Legislature, nothing more was requisite, on abolishing the writ'of scire facias, to revive a judgment, and authorizing the remedy previously had under it to be obtained by action, than to retain by enactment the existing statutory provisions relating to the subject matter, not inconsistent with the Code, and in substance applicable to the actions provided for by it. It can hardly be supposed that it was designed the Code should repeal 2 R. S., 577, § 3, or the substance of sections 6, 7. and 9 of the same title. To allow the remedy to be had by action which, before the Code, could be obtained by scire facias alone, is merely giving to the language of section 428 a construction in accordance with its natural and obvious import.

To hold that section 428 gives no such remedy, and that section 121 prescribes the course to be pursued, requires an unnatural construction to be given to the latter section. The latter section applies to the cases of death, marriage or other disability occurring between .suit brought and judgment recovered. It is an unnatural use of language, to speak of a cause of action which has been prosecuted to judgment, as surviving or continuing after the death of a party to the judgment.

That section provides for the several cases covered by 2 R. S., title 1, ch. 7, part 3, entitled “ Of the abatement of suits by death, marriage or otherwise, and of their revival," and by 2 R. S., pp. 184, 185, §§ 113, 126 inclusive, and meets some cases which the new system of practice made it expedient to provide for, and which were not reached by the Revised Statutes; as allowing persons succeeding by actual transfer of the cause of action, to be substituted as parties, as well at law as in equity.

In Jay v. Martine, (2 Duer, 654,) it was held that an execution upon a judgment could not be issued upon the application of the executors of a deceased plaintiff, upon motion. Although this is the decision of a single Judge, it was made upon consultation with other Judges of the Court, and received their approbation. (2 Duer, 607, note a.) The decision was approved by Mr. Justice Emott, in Wheeler v. Dakin, (12 How. Pr. R., 537.)

Judge Mitchell, in Thurston v. King, (1 Abb., 126,) held the remedy by action clear, and denied a motion, made by the executor of a deceased plaintiff, for leave to issue execution.

The Code has not unqualifiedly prohibited au action upon a judgment by one of the parties to it against the other; and as this Court has construed section 71, a hona fide assignee of a judgment may bring an action upon it without obtaining leave of the Court. (Tufts v. Braisted, 4 Duer, 607 ; and see Wheeler v. Dakin, 12 How., 540.)

We think the relief sought in this case, and which, prior to the Code, was attainable only by scire facias, may now he had by action, and that section 428 of the Code expressly so provides.

But it is insisted that the Court had no power to award costs. We think it a sufficient answer that (assuming the case not one provided for by section 304 [259] of the Code) section 306 [261] confides it to the discretion of the Court, whether to allow costs or not. With the exercise of that discretion, even if we have the power, we see no occasion to interfere.

The judgment must be affirmed.' Ordered accordingly.  