H.R.&C. Co. v. Smith

• Decision Date: 30 March 1926
• Citation: 242 N.Y. 267,151 N.E. 448
• Parties: H. R. & C. CO., Inc., et al. v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

242 N.Y. 267

151 N.E. 448

H. R. & C. CO., Inc., et al.

v.SMITH et al.

Court of Appeals of New York.

March 30, 1926.

Action by the H. R. & C. Company, Inc., and others against Eleanor M. Smith and others, as administrators of George D. Smith and another. From a judgment of the Appellate Division (208 N. Y. S. 396, 212 App. Div. 173), reversing a judgment of the Special Term (201 N. Y. S. 155, 121 Misc. Rep. 230), granting a permanent injunction restraining defendants from taking any proceedings under a judgment and execution affecting plaintiffs' property described in the complaint, plaintiffs appeal.

Affirmed.

Appeal from a judgment, entered March 23, 1925, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and directing a dismissal of the complaint upon the merits.

Appeal from Supreme Court, Appellate Division, Second department.

Henry M. Bellinger, of New York City, for appellants.

Alfred Hayes and Robert F. Greacen, both of New York City, for respondents.

ANDREWS, J.

The original name of a Mrs. Hedges was ‘Mary Elizabeth.’ It is found, and, while the evidence is slight, it is sufficient to support the finding, that she did and was known to do business as ‘Elizabeth’ and as ‘Bess Hedges,’ and desired and elected to drop the name of ‘Mary’ and to retain and use the name of ‘Elizabeth’ only. This she might do, and ‘Elizabeth Hedges' became her name. Smith v. U. S. Casualty Co., 90 N. E. 947, 197 N. Y. 420,26 L. R. A. (N. S.) 1167,18 Ann. Cas. 701. A creditor now represented by the respondents obtained a judgment against ‘Bess Hedges.’ It was so docketed in Kings county. The question before us is whether this judgment became a lien upon the real estate of Mrs. Hedges in Brooklyn. If it did, the result reached in the court below should be affirmed.

The appellants have acquired title to the property through the foreclosure of a mortgage given by Mrs. Hedges, before this judgment was obtained, but the judgment creditor was not made a party to the proceeding. What they or the mortgagee knew or should have known as to the change of name of Mrs. Hedges or as to the fact that a judgment existed against her is immaterial. If the judgment was properly docketed, it became a lien on the property in question. If not, there was no lien, for, except as provided by statute, a mere judgment is never a lien against the real estate of the judgment debtor. We confine ourselves, therefore, to this precise question.

In New York the history of judgment liens is a long one. To go back but to 1852, section 282 of the Code of Procedure provided that such a judgment when docketed became a lien on the real estate in the county ‘of every person asainst whom any such judgment shall be rendered.’ In 1881, section 1251 of the Code of Civil Procedure made a docketed judgment a lien against the real property in the county which the judgment debtor has. In 1902 (Laws 1902, c. 318) we find the same clause, but with a limitation:

‘Except that any judgment rendered having the name or any part of the name of the judgment debtor designated as fictitious, shall not bind or be a charge upon the real property * * * of any person.’

The judgment,however, might be amended by the insertion of the true name and thereafter become a lien. Code Civil Procedure, § 1251. Again in 1905 (Laws 1905, c. 432) came another change, making the statute read as it now stands and stood at the time of these transactions. A docketed judgment is a lien upon the real property of the debtor, provided, however, it shall not bind or become a charge upon such real property ‘unless and until he be designated by his name in a docket of such judgment.’ A provision for amendment of the judgment was also included.

Obviously one purpose at least of these limitations was to insure certainty in determining whether or not real property was incumbered by any lien by way of judgment. The docket was under the initial of the surname of the debtor (Code Civil Procedure, § 1246), in columns (Code Civil Procedure, § 1245), and in alphabetical order. Even so the statute may not accomplish its purpose completely. What we must decide is whether ‘Bess Hedges' is the name of the former owner of the property in question.

Many diminutives or contractions of proper names are in ordinary use. Some are as well recognized as standing for and representing the longer form as would the arrangement of lines and symbols which we interpret as ‘Mary’ represent that name. They and the full name are synonymous. By every one and everywhere they are so understood. They equally identify the person referred to. Of others, the same thing may not be said. There is no such general agreement as to their meaning. Perhaps they are more truly nicknames, used by friends and relatives, not by the public. Such, for instance are ‘Cliff’ for ‘Radcliffe,’ ‘Ganz’ for ‘Gansevoort,’ ‘Will’ for ‘Wilbur’ or ‘Wilfred,’ ‘Minnie’ for ‘Wilhelmina,’ ‘Sibel’ for ‘Isabella.’

[2] To the former class belongs ‘Bess' for ‘Elizabeth.’ For centuries the two forms have been considered equivalents. Nor is ‘Bess' itself an individual recognized name. If ever a child is so christened, it is through ignorance, carelessness, eccentricity, or because of some sentimental association. If as is the case, by immemorial usage ‘Bess' is recognized as identical with ‘Elizabeth’ then ‘Bess Hedges' is equally with ‘Elizabeth Hedges' the name of the judgment debtor. And, if it is her name, a judgment docketed against ‘Bess Hedges' becomes a lien upon the property of ‘Elizabeth.’

‘If two names are in original derivation the same, and are taken promiscuously to be the same in common use, though they differ in sound yet there is no variance.’ Bacon's Abridgement, Title Misnomer & Addition.

In Thomas v. Desney, 10 N. W. 315, 57 Iowa, 58, the court, after substantially quoting the above, adds:

“When two names are derived from the same source, or when one is an abbreviation or...