OPINION
ROSSITER
P. J.
This is
an action on a foreign judgment.
The
plaintiff filed her statement of claim with an
exemplification of the record of a judgment obtained in the
State of New York for $ 22,483.53. The defendant filed an
affidavit of defense raising questions of law and questions
of fact. The plaintiff moved to strike off the affidavit of
defense.
The
defendant, in his " affidavit of defense, new matter,
and counterclaim", sums up his objections as to matters
of law as follows:
"
Twentieth: -- For further answer to paragraphs 15 and 19, and
for answer to the whole of the plaintiff's claim in this
case, this defendant avers that plaintiff is not entitled to
maintain her action for the reason that the judgment upon
which suit is brought in this case is not a final judgment;
that, within the proper time and in accordance with the
statutes and practice of the State of New York, an appeal
from the judgment sued on and the refusal of the trial
justice to grant a new trial, and to dismiss the proceedings
on a demurrer to the evidence, motions for which were duly
made, has not yet been disposed of and is now pending, but
will be disposed of at the first opportunity for hearing of
the said appeal; and that until the said appeal has been
heard and disposed of by the appellate court the plaintiff
does not have such a judgment as will enable her to maintain
an action thereon in the Court of Common Pleas of Erie
County, Pa.
"
Twenty-first: -- For further answer to the whole of
plaintiff's claim, this defendant denies the right of the
plaintiff to maintain her action for the reason that she has
not procured leave of any court to bring this suit on her
judgment, and that such leave is a condition precedent to her
right to maintain this action; that section 1913 of the New
York Code of Civil Procedure provides as follows:
"
'Except in a case where it is otherwise specially
prescribed in this act, an action upon a judgment for a sum
of money, rendered in a court of record of the State, cannot
be maintained, between the original parties to judgment,
unless, either
"
'1. Ten years have elapsed since the docketing of such
judgment; or,
"
'2. 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
"
'3. The court in which the action is brought has
previously made an order, granting leave to bring it. Notice
of the application for such an order must be given to the
adverse party, or the person proposed to be made the adverse
party, personally, unless it satisfactorily appears to the
court, that personal notice cannot be given, with due
diligence; in which case, notice may be given in such manner
as the court directs.'"
As to
matters of fact, termed " new matter" in the
affidavit, the defendant avers that the plaintiff is a
nonresident of Erie County but is a resident of Chautauqua
County, N.Y.; that therefore she can be required to give
security for costs; and defendant also sets up a counterclaim
in the sum of $ 4,726.63, or $ 869.17 due for medical and
professional services and $ 2,908 on account of a bond and
mortgage, with interest amounting to $ 949.46.
Divested
of verbiage, the defendant's contention as to matters of
law is that the judgment sued upon here was not a final
judgment in its home State and that in any event section 1913
of the New York Code of Civil Procedure prohibits the
bringing of an action in another court upon a judgment unless
the court in which the action was originally brought had
previously made an order granting leave so to do. In our
opinion, neither of these contentions can be sustained here.
In
Union Trust Co. v. Rochester & P. R. Co., 29 Fed. 609,
it was held:
"
The New York statutory provisions, forbidding suit to be
brought upon a judgment rendered in a court of record of that
state without a previous order of the court in which the
original action was brought, granting leave to bring the new
suit, must be held as intended only to regulate the course of
procedure in the New York state courts. Such was the
conclusion of Judges Dillon and Love in respect to a similar
statute of the state of Iowa: Phelps v. O'Brien Co.,
2 Dill. 518; 11 Myers, Fed. Dec. § 593....
"
An action of debt will lie on a judgment of another state,
notwithstanding the pendency of an appeal or writ of error:
Merchants' Ins. Co. v. De Wolf, 33 Pa.St. 45;
Bank v. Wheeler, 28 Conn. 433."
In
Wood Company v. Berry Company, 4 Dist R. 141, it was
held:
"
The question has been discussed and has been decided both in
this country and in England. It has been distinctly decided
that the pending of an appeal or writ of error, though a
supersedeas, is no defense to an action upon the
record, either by way of bar or abatement. The
supersedeas is only to the execution, and not to the
judgment."
In
Rhamstine...
