Gutta-Percha & Rubber Manuf'g Co. v. City of Houston

Decision Date24 January 1888
Citation15 N.E. 402,108 N.Y. 276
CourtNew York Court of Appeals Court of Appeals
PartiesGUTTA-PERCHA & RUBBER MANUF'G CO. v. CITY OF HOUSTON.

OPINION TEXT STARTS HERE

Appeal from general term, supreme court, First department.

Action on foreign judgment by the Gutta Percha & Rubber Manufacturing Company against the mayor, aldermen, and inhabitants of the city of Houston, in the state of Texas. Plaintiff appeals from the judgment of the general term, vacating an attachment.

Pelton & Poucher, for appellant.

Michael H. Cardozo, for respondent.

EARL, J.

The plaintiff commenced this action against the defendant, in the supreme court of this state, to recover the amount of a judgment rendered in its favor against the defendant in Texas, by a court in that state having jurisdiction of the action. For the purpose of obtaining an attachment against the defendant, an affidavit was made on behalf of the plaintiff, in which it was stated, among other things, that the judgment was duly recovered in the Texas court; but there was no allegation in the complaint, nor statement in the affidavit, showing what the judgment was recovered for. The attachment having been granted, a motion was made to vacate it on the ground that it did not appear for what the judgment was rendered, and hence that it may have been rendered in an action ex delicto, not embraced within section 635 of the Code, which specifies the only cases in which attachments can be granted against the property of defendants. The motion to vacate was denied by the judge who granted the attachment, and then the defendant appealed from his order to the general term, and there the order was reversed, and the attachment vacated, upon the ground that ‘the plaintiff's papers did not show that the action was brought to recover a sum of money only as damages for the breach of a contract, express or implied, other than a contract to marry.’

A judgment is not for all purposes and under all circumstances to be treated as a contract, and yet it has frequently been so treated. There is always, on the part of the judgment debtor, an obligation or promise implied by law to pay the judgment. In Taylor v. Root, 43* N. Y. 335, an action upon contract, it was held that a judgment in an action of slander could be set up as a counter-claim for the reason that it was a cause of action arising on contract, and existing at the commencement of the action. In Nazro v. Oil Co., 36 Hun, 296, upon an appeal from an order of the special term denying a motion to vacate an attachment issued in an action brought upon a judgment recovered in the state of Pennsylvania, DAVIES, P. J., said: We think a judgment is a contract, ‘express or implied,’ within the meaning of section 635 of the Code of Civil Procedure.' In Donnelly v. Corbett, 7 N. Y. 500, an attachment was based upon a judgment recovered against the defendant in a suit in the state of South Carolina. Two kinds of contracts are contemplated by section 635; express contracts, which are such as are voluntarily made by the parties thereto, and implied contracts, which, though not expressly made by the parties, are made by the law where it, enforcing a sound morality and a wise public policy, acting upon principles of equity and justice, imposes upon a party an obligation to pay a debt or discharge a duty. After the recovery of this judgment, whether it was recovered for a tort or upon contract, the recovery became a debt which the defendant was under obligation...

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23 cases
  • Cavers v. Sioux Oil & Refining Co.
    • United States
    • Supreme Court of Texas
    • June 10, 1931
    ...and Kloke Investment Company therein. Vieno v. Gibson, 85 Tex. 432, 21 S. W. 1028, 1029; Gutta-Percha & Rubber Mfg. Co. v. Mayor, etc., of Houston, 108 N. Y. 278, 15 N. E. 402, 2 Am. St. Rep. 412; Watson v. Chicago, R. I. & P. R. Co., 169 App. Div. 663, 155 N. Y. S. 808; United States v. Pr......
  • Parker v. Hoefer
    • United States
    • New York Court of Appeals
    • April 12, 1957
    ...in the judgment. The judgment became a debt which the defendant was under obligation to pay (Gutta Percha & Rubber Manufacturing Co. v. Mayor of City of Houston, 108 N.Y. 276, 15 N.E. 402). The present suit, then, is upon an entirely different cause of action from that merged in the judgmen......
  • Livingston v. Livingston
    • United States
    • New York Court of Appeals
    • February 10, 1903
    ...... his second wife and four children to support in the city of New York.         The general power of the ...Gutta Percha & R. Mfg. Co. v. Mayor, etc., of Houston, 108 N. Y. 276, 15 ......
  • Williamsburgh Sav. Bank v. Bernstein
    • United States
    • New York Court of Appeals
    • January 18, 1938
    ...on the part of the bank arose whereby the law implied a promise on the part of the bank to pay. Gutta-Percha & Rubber Mfg. Co. v. Mayor, etc., 108 N.Y. 276, 278,15 N.E. 402,2 Am.St.Rep. 412;Anglo-American Provision Co. v. Davis Provision Co., 169 N.Y. 506, 509,62 N.E. 587,88 Am.St.Rep. 608.......
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