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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;
suspending and discharging the lien; satisfaction and assignment
of a judgment.

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

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rights of the parties in the action. ment.
248, 251; Hoffman v. Barry, 2 Hun, 53;
4 N. Y. Sup. Ct. 158; Bucking v. Hau-
selt, 9 id. 635. No judgment can be
entered against a party until all the
issues raised by the pleadings are dis-
posed of. Bucking v. Hauselt, supra.

A judgment entered upon a special
term order, giving judgment to a de-
fendant on demurrer, with leave to the

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
reply, on payment of costs, is not a
final judgment. Barker v. Cocks, 50
N. Y. (5 Sick.) 689.

A judgment in an action to fore-
close the equity of redemption in

[§ 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.
Laws of 1840, ch. 386, § 23 (4 Edm. 691); 3 Wait's Pr. 582.

§ 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
sustained, judgment may be immedi-
ately entered thereon for costs without
waiting for the determination of the
case as to the other defendants. Cam-
blos v. Butterfield, 15 Abb. N. S. 197.

In an action by two plaintiffs where
the sole cause of action is an individ-
ual claim by one of them for relief,
the court may award judgment in
favor of the one and against the other,
but it is not bound to do so. Calkins
v. Smith, 48 N. Y. (3 Sick.) 614.

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
the other defendants, the parties to
the action remain unchanged. Genet
v. Lawyer, 61 Barb. 212, 225. For
other cases consult note to the preced-
ing section.

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
be levied and collected of her separate
estate. Andrews v. Monilaws, 8 Hun,
65, 68.

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.
Dowie, 65 Barb. 241; Stahl v. Stahl, 2
Lans. 66; Getty v. Spaulding, 1 Hun,
115; 3 N. Y. Sup. Ct. (T. & C.) 174;
60 N. Y. (15 Sick.) 636; Graham v.
Read, 57 N. Y. (12 Sick.) 681; Hale
v. Omaha Nat. Bank, 49 N. Y. (4 Sick.)
627; revessing 4 J. & Sp. 40.

But the relief demanded in the com-
plaint by no means characterizes the
action or limits the plaintiff, in respect
to the remedy which he may have, and
if plaintiff demand a certain sum as

judgment

manded.

Rate of damages.

Effect of judgment dismissing the

damages, and no answer be put in, the
court may award him the same amount
by way of equitable relief, if it be con-
sistent with the allegations of the
complaint. Id. 631.

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
against
a dead
person.

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.

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§ 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.
1218. When judgment cannot be taken against infant.

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
the same action.

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.
1225. Judgment, after trial by jury of specific questions of fact.
1226. Id.; after reference to determine specific questions of fact.
1227. Id.; upon motion for new trial, heard 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

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