Broadway Bank v. Luff

51 How. Pr. 479

• Court: New York Supreme Court
• Decided: October 15, 1875
• Status: Published

Opinion

Van Vorst, J.

The defendants are jointly indebted upon contract. The defendant now summoned, under section 375 of the Code, to show cause why he should not be bound by the judgment entered in the action in the same manner as if he had been originally summoned, answers that the cause of action stated in the complaint, on which judgment was obtained, did not accrue within six years before the issuing and service of the summons to the defendant to show cause.

Section 379 provides what the defendant summoned may set up by way of answer. He may deny the judgment, or set up any defense thereto which may have arisen subsequently thereto. In addition, he may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, and such defense had been then interposed to such action.

The defendant does not deny the judgment.

The answer, that the cause of action stated in the complaint, on which judgment was obtained, did not accrue within six years before the issuing and service of the summons to show cause, is not a defense to the judgment. It is addressed to the cause of action upon which the judgment is founded. If the judgment had been paid, that would be a defense arising subsequently to its recovery.

If, when the action was originally commenced, six years had elapsed since the cause of action had accrued, that would be a defense which might have been originally intended. It is conceded, however, that the action was originally brought within the six years. Besides, the action was commenced as to this defendant when the summons and complaint were originally served on his co-defendant, who is a joint contractor with him (Code, sec. 99).

There should be judgment for the plaintiff on the demurrer.