Long v. Stafford

• Decision Date: 05 October 1886
• Parties: LONG, Adm'r, etc., v. STAFFORD.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 274

8 N.E. 522

LONG, Adm'r, etc.,

v.STAFFORD.

Court of Appeals of New York.

October 5, 1886.

Appeal by defendant from judgment order by the general term of the superior court of Buffalo, upon a verdict in favor of the plaintiff directed by the court.

Action under section 1937 of the Code of Civil Procedure of New York, by judgment creditor against a defendant not served, to procure a judgment charging his property with the amount remaining unpaid upon the original judgment.

Norris Morey, for appellant, Richard H. Stafford.

O. O. Cottle, for respondent, Lawson A. Long, Adm'r, etc.

EARL, J.

On the twenty-fourth day of October, 1870, Lydia P. Long, the intestate, executed to the defendant and John H. Scheffer a lease of a store in the city of Buffalo. The lease was under seal, and executed by the lessor and lessees, and was for six months, to commence on the first day of November, 1870, at a rental of $25 per month, with a provision for a continuance for two years longer, as follows: ‘And it is further agreed that party of the second part shall have the privilege of continuing this lease for two years from May 1, 1871, to May 1, 1873, at the annual rental of six hundred dollars, to be made in monthly payments, in advance, on the first day of each and every month during said lease, by first giving written notice to party of the first part on the first or during the month of February, 1871, of such intention.’ The lessees entered into possession of the store, and paid the stipulated rent at the rate of $25 per month until May 1, 1871, and after that date they continued to occupy the store until September 1, 1871, paying the stipulated rent at the increased rate of $50 per month. The store was then vacated, and no rent was thereafter paid.

In 1874 the intestate commenced an action in the superior court of Buffalo against the lessees and Frank E. Scheffer to recover the rent from September 1, 1871, to May 1, 1872, and damages for the breach of certain covenants contained in the lease. The summons was served upon the two Scheffers, but not upon Stafford. The Scheffers appeared and answered, and upon the trial of that action the court dismissed the complaint as to Frank E. Scheffer, and the jury rendered a verdict in favor of the plaintiff against the other two defendants for $497.11. The entry of the judgment was stayed, and the court ordered the exceptions taken by the defendant to be heard at the general term. They were not brought to a hearing, and John H. Scheffer died in 1881. Upon a motion made at a special term of the court on behalf of Mrs. Long, notice of which was given to the attorney for the defendant Scheffer, the court made an order, May 23, 1882, vacating the stay of proceedings so far as to permit her to enter judgment nunc pro tunc as of the day upon which the verdict was rendered, to-wit, June 25, 1875, and judgment was thereupon entered for damages and costs for the sum of $621.08, containing a provision that the plaintiff have execution against the joint property of the defendant Scheffer and Stafford, and the individual property of Scheffer. Thereafter, on the twenty-fifth day of May, 1882, Mrs. Long commenced this action to charge the judgment upon the property of the defendant Stafford. He put in an answer, and upon the trial of the issues thus joined the court ordered a verdict in favor of the plaintiff for $976.03. She having died, her administrator was substituted as plaintiff.

The Code, § 1933, provides that such a judgment as Mrs. Long obtained against Scheffer and Stafford as joint debtors is evidence only of the extent of the plaintiff's demand after the liability of the defendant not served has been established by other evidence; and section 1937 authorizes an action by the plaintiff in such a judgment against the defendant not summoned to procure a judgment charging his property with the sum remaining unpaid upon the original judgment. The defendant's answer in such an action is, by section 1939, ‘restricted to defenses or counter-claims which he might have made in the original action if the summons therein had been served upon him when it was first served upon a defendant jointly indebted with him,-objections to the judgment, and defenses or counter-claims which have arisen since it was rendered.’

The defendant makes several objections to the judgment rendered against him in this action, which we will notice separately.

1. It is claimed that, by the death of Scheffer, the joint liability of Scheffer and Stafford, and the separate liability of the estate of Scheffer, for the payment of the rent, were discharged; and the cases of Getty v. Binsse, 49 N. Y. 385, and Risley v. Brown, 67 N. Y. 160, are cited to uphold this claim. But those authorities, and the principle decided by them, have no application to this case, as Scheffer was not a mere surety, but was a principal debtor. The argument of defendant's counsel, built upon this claim, therefore fails.

2. It is objected that the court had no authority to make the order nunc pro tunc, for the reason that notice upon the persons who had been the attorneys for Scheffer was insufficient, and also for the reasons stated in the opinion in Tuomy v. Dunn, 77 N. Y. 515.

The Code, § 763, provides that if a party dies after verdict, and before final judgment, the court must enter final judgment in the name of the original parties; and section 1210 provides that when judgment is entered in such a case a memorandum of the party's death must be entered, with the judgment, in the judgment book, indorsed on the judgment roll, and noted on the margin of the docket of the...