Prentiss v. Machado

2 Rob. 660

• Court: The Superior Court of New York City
• Decided: April 15, 1864
• Status: Published

Opinion

Robertson, Ch. J.

The relief sought in this action was to set aside an assignment made by the defendant Machado to his co-defendant as fraudulent as against the plaintiff, who was a judgment creditor of the former.. The issues made by the answers thereon were tried before a judge without a jury, upon whose decision a judgment was entered, declaring such assignment void, and ordering the assignee (not to pay the plaintiff, but) to deliver over to a receiver, who had been appointed in the cause, enough of the assigned assets to pay the plaintiff’s claim, and in case of a refusal, directing a referee to take an account of the moneys in the assignee’s hands. That account has been taken, and a report made and confirmed, showing more than enough in the assignee’s hands to pay the plaintiff’s claims. A motion is now made for an order, or addition to the judgment, requiring such assignee to pay such amount to the plaintiff, in order to enable the latter to sue upon it in some other t state.

It is not material now to inquire whether the receiver could not sue in another state on the order contained in the judgment ; the only question is, whether this court has now authority or jurisdiction to make such an order, or to add to the judgment already given.

Although the Code has been in operation fifteen years, the legal profession persist not only in overlooking the entire blending of legal and equitable actions thereby, but also the change of nomenclature of proceedings. Although there is but one kind of action allowed to obtain a remedy, (Code, § 69,) in which the proceedings take their names rather from Chancery than the common law, (§ 141, 149,) and there are no pleas allowed but only defenses and counter-claims; (§ 150;) notwithstanding there is but one mode of examining issues formed by such pleading, (§ 248,) which is a trial, (§ 252,) and the only final determination of any of the rights of a party in an action is a judgment, (§ 245,) it is still supposed a case maybe heard or tried by the court by piecemeal after giving judgment upon one branch of it, by what is called reserving further directions. The court retains,- undoubtedly, control over an action after judgment, in order to take measures to carry it into effect, (Code, § 272,) but the judgment must dispose of the rights of the parties. The reference in this action contained in the judgment was not made by the court as necessary to enable it to give such judgment. (Id.) It was not a reference of the whole issue, (Code, § 272,) or any specific fact involved therein, (Id. 254,) which must precede the trial by the court of the issues, is only to assist it in such trial, (Id. §§ 272,260,) and is to be treated as a special verdict in rendering judgment. (Id.) Clearly the reference in this case was not a substitution of the referee for the court in a matter involved in the issues and to be taken as a basis of the judgment.

The reference, however, to take the amount was proper, and may be sustained under section 272 of the Code, as necessary to carry the judgment into effect. The plaintiff elected to take or the court determined to give him a judgment, simply requiring the defendant Hudson to deliver over to a receiver the assets in his hands, instead of' one requiring him to pay the plaintiff’s claim to himself. The former is more stringent, because it may be enforced by process of contempt; the latter could only be enforced by execution. Nor did the fact, that the court was ignorant of the amount held by the defendant Hudson, interfere with its adjudging that he should 'pay what he should be found to have in his hands after the confirmation of a report of a referee. Such a judgment, although contingent and conditional, and not final, so as to allow an appeal, (Lawrence v. Farmers’ Loan and Trust Co., 15 How. Pr. 57 ; Swarthout v. Curtis, 4 N. Y. Rep. 415,) becomes a complete judgment when the report is confirmed, (id.)

There is, of course, no such thing known now. as the interlocutory judgment of a court of common law, or interlocutory decree of a court of chancery ; nor is there any such a thing as a judgment order. Since, technically, an order is something not included in a judgment, (Code, § 400,) an order of reference, if made to accompany a judgment, ought properly to be called only a direction. (Id. § 271.)

If the trial has not been completed, and judgment given, the issues still remain to be tried at special term on proper notice. On such trial, possibly, the referee’s report might be used as evidence of the amount in the defendant’s hands, but the whole issues must be re-opened thereby on the merits. Possibly if the judgment given was not according to the intention of the court in giving it, it "may be reformed or vacated, but I have before me no notice of such a motion.

The judgment being that the defendant Hudson pay the receiver, which was not necessary, as he had never received any thing, and it might as well have been to pay to the plaintiff, the only further order I have authority to make, if not already contained in the judgment, is that such defendant pay to the receiver enough of the amount found due to pay the plaintiff’s claim, because it becomes an order to carry out the judgment, whereas an order .that -the defendant- pay thé plaintiff such sum can be nothing but a judgment under the Code.