Peace v. Wilson

• Decision Date: 20 November 1906
• Citation: 186 N.Y. 403,79 N.E. 329
• Parties: PEACE v. WILSON et al.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 403

79 N.E. 329

PEACE

v.WILSON et al.

Court of Appeals of New York.

Nov. 20, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Hugh K. Peace against James G. Wilson and others. From a judgment of the Appellate Division (96 N. Y. Supp. 1139), affirming a judgment for plaintiff, defendants appeal. Affirmed.

Charles Edward Souther, for appellants.

William M. Bennett and Victor K. McElheny, Jr., for respondent.

EDWARD T. BARTLETT, J.

This is an action upon a judgment recovered in the Marine Court of the City of New York on November 3, 1881, by the present plaintiff, Hugh K. Peace, and William K. Peace as partners. The judgment was docketed in the office of the clerk of the city and county of New York the same day it was recovered. William K. Peace died February 26, 1898. The plaintiff, Hugh K. Peace, is the owner of the judgment sued upon as surviving partner, as residuary legatee under the will of William K. Peace, and as assignee of the executors under said will.

The present action was begun September 20, 1901; less than 20 years having elapsed since the recovery of the original judgment. The appellants make two principal points on this appeal: (1) That the action is between the original parties to the judgment sued upon; (2) that the plaintiff has not brought himself within the provisions of section 1913 of the Code of Civil Procedure regulating actions upon judgments.

We assume, for the purposes of this case, without deciding the question, that this action is between the original parties, and governed by section 1913 of the Code. Prior to the year 1896 this section provided that no action could be maintained upon a judgment for a sum of money between the same parties unless either (1) it was rendered against the defendant by default for want of an appearance or pleading and the summons was served upon him otherwise than personally, or (2) the court in which the action is brought had previously made an order granting leave to bring it. Laws 1896, p. 647, c. 568, amended section 1913 by inserting the additional provision that ‘ten years have elapsed since the docketing of such judgment.’ As this section now reads, either one of three conditions must exist in order to bring an action upon a judgment between the same parties, viz.: (1) Ten years have elapsed since docketing judgment; (2) judgment by default, as already pointed out; (3) order of court in which action is brought granting leave. The plaintiff in this action relies upon the fact that 10 years have elapsed since the docketing of the judgment sued upon. The defendants insist that the amendment of 1896 had no retroactive effect, and therefore did not apply to the judgment sued upon, recovered in November, 1881.

It is the settled law that statutes relating to procedure are retroactive and prospective in their application without affirmative provisions to that effect. Matter of Palmer, 40 N. Y. 561, involved the enactment that ‘no appeal to the Court of Appeals shall be had or heard hereafter from any order or judgment in any proceeding under chapter 338, p. 574, of the Laws of 1858.’ It was held to be retroactive in its effect, and applied to appeals then pending in the Court of Appeals from the orders mentioned in such amendment. In Southwick v. Southwick, 49 N. Y. 510, 517, Folger, J., said: ‘It cannot be successfully contended, as a general rule, that an act which applies only to the forms of procedure, and modes for attaining or defending rights, cannot be availed of in an action pending when it took effect. Neass v. Mercer, 15 Barb. 318;People v. Mitchell, 45 Barb. 208.’ In Lazarus v....