Dearing v. Boss

New York Supreme Court

Dearing v. Boss

55 Misc. 58, 106 N.Y.S. 219

DecidedJune 15, 1907

StatusPublished

This text of 55 Misc. 58 (Dearing v. Boss) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dearing v. Boss, 55 Misc. 58, 106 N.Y.S. 219 (N.Y. Super. Ct. 1907).

Pincite

Opinion

Greenbaum, J.

What constitutes the entry of a judgment is prescribed by sections 1236, 1237, 1238 and 1239 of the Code of Civil Procedure. A decision and judgment were signed by the justice before whom the mechanic’s lien action was tried, but none of the Code requisites of filing and entering the judgment has been complied with. Section 1239 provides that “ a proceeding to enforce or collect a final judgment cannot be taken until the judgment-roll is filed.” The condition of the defendants’ bond given to release the real estate of one David Quigley from the mechanic’s lien filed by plaintiff was that “ if the said David Quigley or his legal representatives shall well and truly pay or cause to be paid any judgment that may be rendered against the said property in any proceedings to enforce the said lien, then this obligation shall be void, otherwise to remain in full force and virtue.” There are decisions in other jurisdictions and some in this State under the old Code of Procedure and in actions in Justices’ Courts to the effect that the pronouncing of judgment after the trial and final submission of a case, where there is nothing more to be done than to enter the judgment, constitutes the “ rendition of a judgment.” It may be that inter paries, a judgment may be deemed “ rendered,” even though there be an omission or neglect to formally enter the judgment, as where the right to an appeal of a party is involved. Fleet v. Youngs, 11 Wend. 522, 527, 528; Bank of Geneva v. Hotchkiss 5 How. Pr. 218. But where the right of action against a third party, like the defendants, who were sureties, depends upon the prerequisite of the rendition of a judgment, it seems to me it must rest upon a judgment duly entered and which is in a condition to be enforced as provided for by section 1239. The signature of the justice to the decision and the judgment merely constituted authority for the entry of the judgment (Knapp v. Roche, 82 N. Y. 369) and, until an actual entry of the judgment, an action upon the bond given by the defendants is premature. Since the trial of this action it appears that plaintiff has procured an order nunc pro tunc directing the filing of the judgment in the office of the clerk of the county of New York as of the 13th day of June, 1901, [60]*60and that the judgment was duly filed on May 16, 1907, pursuant to said order. It seeme to me, however, that the rights of the parties must be determined as of the date when the action was commenced, and for the reasons above stated I am of opinion that the complaint must he dismissed.

Complaint dismissed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Greenbaum, J.

What constitutes the entry of a judgment is prescribed by sections 1236, 1237, 1238 and 1239 of the Code of Civil Procedure. A decision and judgment were signed by the justice before whom the mechanic’s lien action was tried, but none of the Code requisites of filing and entering the judgment has been complied with. Section 1239 provides that “ a proceeding to enforce or collect a final judgment cannot be taken until the judgment-roll is filed.” The condition of the defendants’ bond given to release the real estate of one David Quigley from the mechanic’s lien filed by plaintiff was that “ if the said David Quigley or his legal representatives shall well and truly pay or cause to be paid any judgment that may be rendered against the said property in any proceedings to enforce the said lien, then this obligation shall be void, otherwise to remain in full force and virtue.” There are decisions in other jurisdictions and some in this State under the old Code of Procedure and in actions in Justices’ Courts to the effect that the pronouncing of judgment after the trial and final submission of a case, where there is nothing more to be done than to enter the judgment, constitutes the “ rendition of a judgment.” It may be that inter paries, a judgment may be deemed “ rendered,” even though there be an omission or neglect to formally enter the judgment, as where the right to an appeal of a party is involved. Fleet v. Youngs, 11 Wend. 522, 527, 528; Bank of Geneva v. Hotchkiss 5 How. Pr. 218. But where the right of action against a third party, like the defendants, who were sureties, depends upon the prerequisite of the rendition of a judgment, it seems to me it must rest upon a judgment duly entered and which is in a condition to be enforced as provided for by section 1239. The signature of the justice to the decision and the judgment merely constituted authority for the entry of the judgment (Knapp v. Roche, 82 N. Y. 369) and, until an actual entry of the judgment, an action upon the bond given by the defendants is premature. Since the trial of this action it appears that plaintiff has procured an order nunc pro tunc directing the filing of the judgment in the office of the clerk of the county of New York as of the 13th day of June, 1901, [60]*60and that the judgment was duly filed on May 16, 1907, pursuant to said order. It seeme to me, however, that the rights of the parties must be determined as of the date when the action was commenced, and for the reasons above stated I am of opinion that the complaint must he dismissed.

Complaint dismissed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

55 Misc. 58, 106 N.Y.S. 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dearing-v-boss-nysupct-1907.

Opinion

Related

Cite This Page — Counsel Stack