CHAPTER XI. JUDGMENTS. TITLE I. JUDGMENT IN AN ACTION. TITLE II.-JUDGMENTS TAKEN WITHOUT PROCESS. TITLE III.—VACATING OR SETTING ASIDE A JUDGMENT, FOR IRREGULARITY OR ERROR IN FACT. TITLE I. Judgment in an action. ARTICLE 1. General provisions. 2. Mode of taking, entering, and enforcing a judgment. 3. Docketing a judgment; effect thereof, as a lien upon real property; ARTICLE FIRST. GENERAL PROVISIONS. SEC. 1200. Definition of judgment. 1202. When judgment may be entered. 1203. Judgment to be entered at a term held by one judge. 1204. Judgment may be for or against any of the parties. 1205. When a several judgment may be taken. 1206. Judgment for or against a married woman. 1207. When judgment for plaintiff not to exceed judgment demanded. 1208. Rate of damages. 1209. Effect of judgment dismissing the complaint. 1210. Judgment against a dead person. 1211. Judgment to bear interest. of judg § 1200. [Amended, 1877.] A judgment is either interlocutory Definition or the final determination of the rights of the parties in the action. ment. A judgment entered upon a special When judgment may be entered. Judgment to be en tered at a term held by one judge. Judgment may be for or against plaintiff to amend his complaint or A judgment in an action to fore- [§ 1201 expunged by the amendatory act of 1877. It contained a definition of an interlocutory judgment as follows: "A judgment is interlocutory where it is a determination of the action, or of an issue presented by the pleadings; but either leaves to be determined by mortgaged premises for the satisfaction of the debt, and that the defendant pay any deficiency appearing after such sale, is final. Morris v. Morange, 38 N. Y. (11 Tiff.) 172; 6 Trans. App. 1; 4 Abb. N. S. 447, 451. the final judgment the extent of the recovery, or other relief, to which the successful party is entitled, or reserves a question which must be determined before final judgment can be awarded."] § 1202. Judgment may be entered in term or vacation. § 1203. Judgment must be entered, in the first instance, pursuant to the direction of the court, at a term held by one judge; except where special provision is otherwise made by law. Substituted for Code Pro., § 278; Wait's Code, 520; 3 Wait's Pr. 582-584. § 1204. Judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may deterany of the mine the ultimate rights of the parties on the same side, as between themselves; and it may grant, to a defendant, any affirmative relief, to which he is entitled. parties. First sentence of Code Pro., § 274; Wait's Code, 509-516; 3 Wait's Pr. 597-599, 609, 610. The general term, in a proper case, is authorized, and it is its duty, to affirm a judgment as to a part of the defendants and reverse it as to the others. Hubbell v. Meigs, 50 N. Y. (5 Sick.) 489; 4 Lans. 214. The objection that the maker and the guarantor of a promissory note are improperly joined as defendants in an action on the note is waived by omitting to raise it in the answer or by demurrer, and a several judgment may be rendered against either of them. Hier v. Staples, 51 N.Y. (6 Sick.) 136,140. In an action upon a joint, and not a joint and several liability, a several judgment is not proper. Perry v. Chester, 53 N. Y. (8 Sick.) 240, 242; reversing 4 J. & Sp. 228. Section 274 of the Code of Procedure, which directs affirmative relief, in a proper case, to the defendant, does not oblige the defendant to set up by answer any equitable defence, counterclaim or right to affirmative relief which he may have, under the penalty of losing it, where it is in the discretion of the court to grant or deny him the privilege of thus setting up such equitable defence, counterclaim or right to affirmative relief. Giles v. Austin, 62 N. Y. (17 Sick.) 492. Under the provision of § 274 of the Code of Procedure, that a judgment in an action "may determine the ultimate rights of the parties on each side as between themselves, defendants can have relief against each other only in a case in which they have appeared and answered, in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be based upon the facts involved in and brought out by the litigation and investigation of that claim. Kay v. Whittaker, 44 N. Y. (5 Hand) 565, 576. In an action continued against the survivor of two defendants, on a joint contract, it is sufficient to prove the survivor's liability on the joint contract. Dennis v. Charlick, 6 Hun, 21, 23. The court is not authorized to give costs to a part of the defendants in an action against the remaining defend ants, unless it becomes necessary, in the adjustment of their rights, in the subject-matter of the action. The People v. Albany and Susquehanna R. R. Co., 5 Lans. 25, 33; 57 N. Y. (12 Sick.) 161. The "ultimate rights" intended by 274 of the Code Pro., are the rights of the parties in the subject-matter of the litigation, as distinguished from the costs, which are incidents merely. Ib. In an action not upon a joint liability, where one defendant demurs and the others answer, if the demurrer be In an action by two plaintiffs where several may be § 1205. Where the action is against two or more defendants, When a and a several judgment is proper, the court may, in its discretion, judgment render judgment, or require the plaintiff to take judgment, against taken. one or more of the defendants; and direct that the action be severed, and proceed against the therein. Second sentence of § 274 of the Code of Procedure amended by adding the clause "or require the plaintiff to take judgment." Wait's Code, 509516; 3 Wait's Pr. 603-608. Where the court renders judgment against one or more of several defendants, others, as the only defendants leaving the action to proceed against for or § 1206. Judgment for or against a married woman, may be ren- Judgment dered and enforced, in a court of record, or not of record, as if she against a was single. Substituted for the last two sections of Code Pro., § 274; Wait's Code, 516; 4 Wait's Pr. 4. The same remedy by judgment is provided against married women as against other per sons save that the judgment can only married woman. judgment tiff not to § 1207. Where there is no answer, the judgment shall not be When more favorable to the plaintiff, than that demanded in the com- for plainplaint. Where there is an answer, the court may permit the plain- exceed tiff to take any judgment, consistent with the case made by the com- deplaint, and embraced within the issue. Code Pro., § 275, amended by substituting word "judgment" for "relief." Wait's Code, 516-519; 2 Wait's Pr. 518; 3 Wait's Pr. 606, 607. A judgment taken by default, if it give greater relief than that demanded in the complaint, should be set aside. Andrews v. Monilaws, 8 Hun, 65, 68. The relief granted to a plaintiff where there is an answer must be consistent with the case made by the complaint. Bradley v. Aldrich, 40 N. Y. (1 Hand) 504, 510; Hier v. Staples, 51 N. Y. (6 Sick.) 136, 140; Boyd v. But the relief demanded in the com- judgment manded. Rate of damages. Effect of judgment dismissing the damages, and no answer be put in, the The term "answer,' ,, as used in sec tion 275 of the Code of Procedure, does not include demurrer. Kelly v. Downing, 42 N. Y. (3 Hand) 77. See Pumpelly v. Village of Owego, 45 How. 236, 260. § 1208. Where either party is entitled to recover damages, he may recover any rate of damages, which he might have heretofore recovered, for the same cause of action. Code Pro., § 276, amended by substituting "either party," in place of the "plaintiff;" Wait's Code, 5, 9. § 1209. [Amended, 1877.] A final judgment, dismissing the complaint, either before or after a trial, rendered in an action herecomplaint. after commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgmentroll, that it is rendered upon the merits. Judgment Judgment to bear interest. New. § 1210. Where a judgment for a sum of money, or directing the payment of money, is entered against a party, after his death, in a case where it may be so taken, by special provision of law, 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 judgment. Such a judgment does not become a lien upon the real property, or chattels real, of the decedent; but it establishes a debt, to be paid in the course of administration. § 1211. A judgment for a sum of money, rendered in a court of record, or not of record, or a judgment rendered in a court of record, directing the payment of money, bears interest from the time when it is entered. But where a judgment directs that money paid out shall be refunded or repaid, the direction includes interest from the time when the money was paid, unless the contrary is expressed. The first sentence is taken from the Laws of 1844, ch. 324, § 1 (4 Edm. St. 628), and extended to judgments in a court of record, directing the payment of money, in pursuance of the distinction mentioned in the note to section 1241, post. The second sentence is the provision appended to section 3 of the same act by Laws of 1869, ch. 807, § 1 (7 Edm. St. 477). ARTICLE SECOND. MODE OF TAKING, ENTERING, AND ENFORCING A JUDGMENT. SEC. 1212. Judgment by default, in certain actions on contract; how taken. 1213. Amount of judgment in such cases; how determined. 1214. Application to court for judgment by default; when necessary. 1215. Proceedings on such an application. 1216. Application for judgment, in case of service by publication, etc. 1217. Attachment and undertaking for restitution, required in certain actions. 1219. When a defendant in default is entitled to notice. 1220. When action may be severed, if issues of law and issues of fact pre sented. 1221. Judgment how taken, after trial of issues of law and issues of fact, in 1222. Id.; after trial of issue of law only. 1223. Proceedings upon application under the last two sections. 1224. Id.; upon interlocutory judgment, etc., affirmed at general term. 1228. Id.; upon trial by court or referee of the whole issue of fact. 1229. In matrimonial causes, judgment can be rendered only by the court. 1230. Final judgment upon decision or report awarding interlocutory judg ment, etc. 1231. Id.; how final judgment entered and settled in certain cases. 1232. Interlocutory reference or inquisition; how reviewed. 1233. Motion for judgment upon a special verdict, etc. 1234. Id.; upon verdict subject to opinion of court. 1235. Interest on verdict, etc., to be included in recovery. 1236. Clerk to keep judgment-book; judgment to be entered therein. 1237. Judgment-roll to be filed; of what it consists. 1238. Id.; by whom prepared. 1239. Time of filing judgment-roll to be noted. 1240. When a judgment may be enforced by execution. 1241. When a judgment may be enforced by punishment for disobeying it. 1242. Real property; how sold. Effect of conveyance. 1243. Security upon sale by referee. 1244. Conveyance to state name of party. by default, actions on how § 1212. [Amended, 1877.] In an action specified in section Judgment four hundred and twenty of this act, where the summons was per- in certain sonally served upon the defendant, and a copy of the complaint, or contract; a notice stating the sum of money for which judgment will be taken, taken. was served with the summons, the plaintiff may take judgment by default, as follows: 1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons, and of the complaint or notice; and also proof, by affidavit, that the defendant has not |