Millbury v. Heitzberg , 28 N.Y. Civ. Proc. R. 179 ( 1898 )

GIEGERICH, J.

The judgment rendered in the state of New Jersey is not, in my opinion, a bar to the maintenance of the action in its present form. The authority relied upon by the defendant (Pitt v. Freed [Sup.] 21 N. Y. Supp. 300) has been overruled by a subsequent decision in the same case (28 N. Y. Supp. 863). In the course of that decision, the court, through Dykman, J., said:

“The effect of the judgment in a court of a sister state is now defined by section 552 of the Code of Civil Procedure, which is new; and it was intended to settle the question, which was somewhat uncertain. That section provides that the recovery of a judgment in a court not of the state, for the same cause of action, or where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby, does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. The effect and' operation of this section were defined by the court of appeals in the case of Baxter v. Drake, 85 N. Y. 502, where it was said of this section: ‘The provision cited clearly declares that, where a judgment has been recovered in the court of another state for the same cause of action, the right of a party to am order of arrest is not affected. This interpretation gives the right to prosecute upon the demand the same as if no judgment had been obtained; and whether the suit was upon the judgment, or upon the original cause of action separately, is not, I think, material, and cannot affect the right conferred, as “the same cause of action” evidently means the cause of action on which the judgment was entered.’ To the same effect is Leach v. Linde, 73 Hun, 246, 25 N. Y. Supp. 1042.”

The defendant further claims that the receipt by the plaintiff of the check for $95 operated to change the character of the action, but, as it was returned dishonored, the plaintiff was restored to the rights and remedies which he originally possessed against the defendant. Thorman v. Polya, 1 Misc. Rep. 176, 20 N. Y. Supp. 689; Roberts v. Fisher, 43 N. Y. 159; Stedman v. Gooch, 1 Esp. 3.

The motion to vacate the order of arrest is therefore denied, with $10 costs to the plaintiff to abide the event.