Fish v. Hahn

Leventritt, J. The plaintiff after recovering a judgment against the defendant assigned it to one Louise W. Fish. An appeal from the judgment resulted in an affirmance and a further judgment for costs. Thereafter executions on both judgments were issued to the sheriff in the name of the plain [450] tiff. Subsequently to a levy made upon the defendant’s real property and prior to the day set for the sale thereunder, the defendant moved to vacate the executions and set aside the levies, upon the ground that the plaintiff by virtue of his assignment had divested himself of all interest in the judgments and was not entitled to issue executions thereon.' In opposition to the motion the plaintiff submitted his affidavit and that of the assignee showing in effect that he had authorized his assignee to enforce the collection of the judgment and to that end to issue execution in his name. The motion was granted as to the assigned judgment and from the order entered the plaintiff appeals. The respondent argues that, since the execution was issued by the assignee of the judgment, it should have been indorsed with the name and residence of the assignee, pursuant to the provisions of section 137 6 of the Code, and she cites in support of her contention Duryee v. Botsford, 24 Hun, 317, which was also referred to by the court below as authority for the conclusion reached’ in setting aside the execution. We think, however, that the execution was regular and that the defendant’s motion should have been denied. Section 756 of the Code, treating of the rights of an assignee, provides: “ In case of a transfer of interest, or devolution of liability, the action may be continued, by or against the original party; unless the court directs the person, to .whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires.” There is no qualification of the assignee’s rights in this section; and, for aught that is provided to the contrary, the Code gives him the absolute right, not only of continuing the action to judgment, but of pursuing the judgment to its enforcement and collection in the name of the original plaintiff, his assignor. Chapter 13 of the Code, governing the issuance and enforcement of executions, prescribes their general requisites in section 1366 as follows: “An execution must intelligently describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court [451] in which, the judgment was rendered; and, if it was rendered ■ in the supreme court, the county in which the judgment-roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. Except as otherwise prescribed in the next' section, it must be made returnable to the clerk, with whom the judgment-roll is filed.” And section 1368 requires that: “An execution, issued upon a judgment for a sum of money, or directing the payment of a sum of money, must specify, in the body thereof, the sum recovered, or directed to be paid, and the sum actually due when it is issued. It may specify a day, from which interest upon the sum due is to be computed; in which ease, the sheriff must collect interest accordingly, until the sum is paid. If all the parties against whom the judgment is rendered, are not judgment debtors, the -execution must show who is the judgment debtor.” Section 1315 provides: “Except as otherwise' specially prescribed by law, the party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after the entry of the judgment.” ■ Ho requirement is apparent which would differentiate the form of the execution issued by an assignee of a judgment from that issued by an original plaintiff judgment creditor. The failure of the Code to provide any such additional requirement suggests an intention to authorize the assignee to issue execution in the prescribed form, and as of course, either in his own name or in that of the plaintiff, his assignor. Coming now to section 1316, we find the following provisions : “ Where the party recovering a final judgment has died, execution may be issued at any time, within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same. And where a party or one or more of several parties against whom a judgment for the recovery of possession of real property has been obtained has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giv [452] ing twenty clays’ notice to the occupants of the lands so recovered and to the grantees or devisees of said deceased, or, if he died intestate, to the heirs at law of said deceased; said notices to he served in the same manner as a summons is directed to be served in an action in the supreme court.” Thus it is only after the death of -the original judgment creditor within the period of limitation that the execution when issued by the assignor must contain the indorsement called for by this section. It is contended that this requirement is general and applies to sectiou 1375 as well as to section 1376.' Such a contention is unfounded as the sections treat of entirely different and distinct conditions, section 1375 relating to the issuance of executions during the life of the judgment creditor of record and permitting the issuance of an execution, of course, with no prescription as to form, and section 1376 relating only to issuance of executions after death by personal representatives or assignee when the execution must be indorsed with the name and residence of the person issuing the same. Section 1376 was passed for a specific purpose. Before the Code an execution could not be issued after the death of the judgment creditor, unless he had died during the last term of court (Thurston v. King, 1 Abb. Pr. 126) ; and it was necessary for a scire facias to'issue to revive the judgment and authorize execution on it. Under the old Code (§ 428) the writ of scire facias was abolished, but it was provided that the remedy theretofore obtainable therefrom “ may be obtained by civil actions.” In other words, the remedy given by scire facias to revive the judgment, and authorize execution was superseded by the provisions of section ■428 which gave an action therefor. Cameron v. Young,6 How. 372; Alden v. Clarke, 11 id. 209; Ireland v. Litchfield, 22 id. 178; Wheeler v. Dakin, 12 id. 537. The intention of the codifiers, when preparing the new Code, in inserting section 1376, was to avoid even the necessity of an action in the nature of scire facias and enable the personal representatives or assignee of a deceased judgment creditor summarily to is-, sue execution within the period prescribed; and the indorsement called for in that event was necessarily intended as ■ [453] notice to the judgment debtor of the authority of the person seeking to enforce the judgment after his creditor’s death. It will thus be seen that no relation exists or can be established between section 1376, or any part thereof, and the preceding-sections bearing upon the subject of executions. Therefore, the case of Duryee v. Botsford, supra, cited by the court, is inapplicable since it is based on a construction of section ”1376. While an amendment of the Code 1o cover the situation here disclosed might be advisable, we find no prohibition, either in statute or authority, which prevents an assignee from issuing an execution in the form required by sections 1366, 1368, and in the name of the judgment creditor, his assignor. Heither in text books nor in judicial dicta do we find any attempt made to declare a definite principle, but it is significant to note that in both the practice is recognized without criticism. Freem Executions, 62 § 21; Wilgus v. Bloodgood, 33 How. 289. The respondent argues that, if our conclusion be correct, the judgment debtor is not properly protected and is subjected to the liability of being required to make double payment. While it is doubtless true that after notice the judgment debtor would not be justified in paying a stranger to the. claim, it is equally true that before notice such payment would be effective to absolve him from further liability. However, that question is not involved on this appeal, since the respondent was apprised on his motion by opposing affidavits that the form of execution adopted was sanctioned by the assignee as well as by the assignor so that, if he paid the execution issued, he would be protected from further liability. It follows that the order appealed from must be reversed, with ten dollars costs, and the motion to vacate denied, with ten dollars costs. Gildeesleeve and Eblangeb, JJ., concur. Order reversed, with ten dollars costs, and motion denied, with ten dollars costs,