Ticknor v. Kennedy

3 Abb. Pr. 387

• Court: New York Supreme Court
• Decided: July 15, 1867
• Status: Published

Opinion

Brady, J.

Section 68 of the Code provides that a judgment for twenty-five dollars or over, a transcript whereof is docketed in the office of the clerk of the county “ shall have the same effect as a lien and be enforced in the same manner, and be deemed a judgment ” of this court.

“To enforce” is “to put in execution,” “to cause to take effectand to require the defendant not served to show cause why he should not be bound by the judgment recovered against his co-debtor is to put it in execution, to cause it to take effect.

I am aware that section 375, under which the defendant not served may be proceeded against, does not apply to justices’ courts or to the Marine Court (§ 8), but that does not affect the question. It determines simply that the justices’ courts, &o., have not the power to carry out the provisions of that section. Where a judgment shall be recovered against one or more of several persons jointly liable, those not originally served may be summoned (§ 375) to show cause why they should not be bound by the judgment, but by the filing of the transcript a judgment is recovered in this court, and such being the fact, the statute applies equally to that as to a judgment recovered in an action originally commenced here.

It is enforced when it is sought to collect the amount for which it was rendered, or to compel the application of a debtor’s individual property to its payment. The judgment is effective against the joint property of the debtors, and if those not originally served are also bound by it under section 375, it is only to the extent of authorizing the seizure of property individually held. The sphere of the judgment is enlarged, not changed.

I think the plaintiff herein entitled to proceed under the provisions of the section mentioned, and the motion to dismiss must be denied, but without costs, the question being new.

Motion denied.