CHAPTER XI.

OF LEAVE TO BRING OR TO DEFEND ACTIONS.

ARTICLE I.

GENERAL RULES.

Section 1. Leave to sue in general. As a general rule, actions may be commenced without leave of court. On the other hand, there are some classes of actions in which the courts should be applied to for leave to sue. The necessity for such application always arises from some special character of the parties, either as plaintiff or defendant, hence it is always proper, before commencing an action, to ascertain whether or not it is one of those requiring an application for leave to sue. This will depend upon the fact whether or not any of the parties to the action are under the control or protection of the court. If they are not, then leave to sue is unnecessary; if they are, then it is necessary. Nevertheless, the permission of a court to sue is not, in any case, an element of the cause of action. See Chautauque Bank v. Risley, 19 N. Y. (5 Smith) 369 (376); Lane v. Salter, 4 Rob. 239.

Nor is it necessary, where such permission is granted, to bring the action in the same court in which the judgment was rendered (National Banking Association v. Usher, 1 Sweeny, 403), although it seems the application for leave to sue must be made to the court which has control of the judgment and execution. Graham v. Scripture, 26 How. 501; Lyon v. Manley, 18 id. 267; S. C., 32 Barb. 51: 10 Abb. 337.

ARTICLE II.

ACTIONS UPON JUDGMENTS.

Section 1. When leave to sue not necessary.

a. In general. Leave to sue is unnecessary where the proceeding is one other than an action upon a judgment, rendered by a court of this State, or where it is not between the

Judgment against joint debtors, etc.

original parties to the judgment. See Code, § 71; Kopper v. Howe, 2 Hilt. 69; Tuffts v. Braisted, 1 Abb. 83; S. C., 4 Duer, 607; McButt v. Hirsch, 4 Abb. 441; Wheeler v. Dakin, 12 How. 537.

b. Judgment against joint debtors, etc. A special proceeding, under the provisions of the Code, to render a judgment against joint debtors binding upon the defendants not served, may be pursued without leave of court. Code, §§ 375 to 381; Lane v. Salter, 4 Rob. 239; or, if preferred, a new action may be commenced for a like purpose. Dean v. Eldridge, 29 How. 218; Prince v. Cujas, 7 Rob. 77, contra. See Lane v. Salter, 4 id. 239, 247.

c. Creditor's bill. An action in the nature of a creditor's suit is not within the meaning of the prohibition contained in the 71st section of the Code, and an application for leave to commence the action is unnecessary. Dunham v. Nicholson, 2 Sandf. 636; Quick v. Keeler, id. 231; Catlin v. Doughty, 12 How. 457 (460).

d. Assignee of a judgment. As has been previously stated, the section of the Code prohibiting the commencement of an action upon a judgment rendered in any court of this State, without leave of court being first obtained, applies only to such actions upon judgment as are brought by the party in whose favor such judgment was rendered, and as to those against whom it was rendered. It does not prohibit a bona fide assignee of a judgment from bringing an action upon it without first obtaining leave of the court. Tuffts v. Braisted, 1 Abb. 83; S. C., 4 Duer, 607; McButt v. Hirsch, 4 Abb. 441; Wheeler v. Dakin, 12 How. 537; Kopper v. Howe, 2 Hilt. 69.

e. Executor or administrator of a deceased judgment creditor The actions referred to in section 71 of the Code as actions on judgments, and in respect to which leave of court must be obtained before suit, are actions to recover of the defendant the amount due on the judgment as any other money demand would be recovered, using the judgment only as evidence of the amount of the debt; or, in other words, such actions as would have been actions of debt on judgment, under the former practice. The prohibition of the section does not apply to an action by the executor or administrator of a deceased judgment creditor, when brought for the purpose of obtaining execution on the judgment. Wheeler v. Dakin, 12 How. 540; Ireland v. Litch

When leave to sue is necessary.

field, 22 id. 178; S. C., 8 Bosw. 634; Jay v. Martine, 2 Duer, 654. See sub. c, ante, 192.

f. Counterclaim. Nor is the setting up of a judgment previously recovered by the defendant against the plaintiff, as a counterclaim, a violation of the statute. Wells v. Henshaw, 3 Bosw. 625. And so of the setting up a justice's judgment by an assignee thereof. Clark v. Story, 29 Barb. 295.

Section 2. When leave to sue is necessary.

a. General rule. No action can be brought upon a judgment rendered in any court in this State (except a court of a justice of the peace), between the same parties, without leave of the court, for good cause shown, on notice to the adverse party. Code, § 71. See Catlin v. Doughty, 12 How. 457, 460.

This rule is applicable to judgments obtained before, as well as to those rendered since, the enactment of the Code. Finch v. Carpenter, 5 Abb. 225. And it is, as will be seen by a reference to the section, the mere imposing of a condition precedent to the bringing of an action upon a judgment of a court of record. Graham v. Scripture, 26 How. 501.

b. Marine and district courts of the city of New York. The exception contained in section 71 of the Code, exempting actions upon judgments rendered in courts of justices of the peace from the general rule there given, does not extend to actions upon judgments rendered in inferior courts in cities. It is necessary, notwithstanding this exception, to obtain leave to sue before commencing an action on a judgment rendered in the marine court, or the district courts of the city of New York. Thompson v. Sutphen, 2 E. D. Smith, 527; Mills v. Winslow, id. 18; S. C., 3 Code R. 44; Kopper v. Howe, 2 Hilt. 69. See Boston Silk and Woolen Mills v. Eull, 1 Sweeny, 359; S. C., 37 How. 299; 6 Abb. N. S. 319.

c. Insolvent's discharge. Where the question to be determined is, whether a judgment is or is not extinguished by a subsequent discharge of the judgment debtor, as an insolvent, leave of court to sue upon the judgment must be obtained before action. Smith v. Paul, 20 How. 97.

Section 3. Proceedings if action improperly brought.

a. By motion. An omission to obtain leave of court to commence an action is merely an irregularity, which may be waived by the opposite party if he do not object in proper time and Lane v. Salter, 4 Rob. 239. The defendant should

manner.

Justices' judgments.

move to set aside the summons and complaint, upon affidavits showing that leave to sue has not been obtained. Finch v. Carpenter, 5 Abb. 225. See Prince v. Cujas, 7 Rob. 76. Upon such motion the court will not grant the plaintiff leave to sue nunc pro tunc, but will leave him to make a substantive motion on his own part, so as to give the defendant an opportunity to answer the affidavits made for that purpose. Ib.

b. District court of New York city. Where an action is brought in this court on a judgment of the same court, without leave, it is held that the court is without jurisdiction, and that a judgment rendered for the plaintiff will be reversed on appeal. Thompson v. Sutphen, 2 E. D. Smith, 527; Mills v. Winslow, id. 18; S. C., 3 Code R. 44.

Section 4. Justices' judgments.

a. General rule. No action on a judgment rendered by a justice of the peace can be brought in the same county within five years after its rendition, except in case of the justice's death, resignation, incapacity or removal from the county, or, except in cases where process was not personally served on the defendant, or on all the defendants, or some of the parties are dead, or the docket or record of such judgment is lost or destroyed. Code, $71; 1 Wait's Law & Prac. 597 to 602.

This rule operates as a limited prohibition against bringing an action on a justice's judgment, and only extends to a period of five years after the rendition of such judgment. Humphrey v. Persons, 23 Barb. 316.

b. Counterclaim. But this prohibition does not prevent the setting up of such a judgment as a defense or counterclaim within five years after its rendition. Clark v. Story, 29 Barb. 295. See Wells v. Henshaw, 3 Bosw. 625; contra, Smith v. Jones, 2 Code R. 78.

c. Transcript docketed with county clerk. From the time a justice's judgment is docketed with the county clerk, it becomes a judgment of the county court, and an action cannot be brought upon it without leave of that court. Lyon v. Manly, 32 Barb. 51; 10 Abb. 337; 18 How. 267. id. 501.

See

Graham v. Scripture, 26

Actions upon sheriffs' bonds.

ARTICLE III.

ACTIONS UPON OFFICIAL BONDS.

Section 1. Actions upon sheriffs' bonds.

a. General rule. "Whenever a sheriff shall have become liable for the escape of any prisoner committed to his custody, or whenever he shall have been guilty of any default or misconduct in his office, the party injured thereby may apply to the supreme court for leave to prosecute the official bond of said sheriff." 2 R. S. 476 (498), § 1.

Where a judgment has been obtained against a sheriff for an escape, leave to prosecute his official bond for such cause will be granted in case a stay of proceedings has not been ordered upon such judgment. Chamberlain's Case, 42 Barb. 281; 28 How. 1; 18 Abb. 103. Where a sheriff, under and by virtue of a process against the property of the defendant, seizes the goods of another person, he is guilty of official misconduct, and he and his sureties become liable upon his official bond. People ex rel. Kellogg v. Schuyler, 4 N. Y. (4 Comst.) 173. But before this liability can be enforced by action, leave of court must be obtained as provided in the statute before cited.

b. Application for leave. The application for leave to sue in such cases must be accompanied by proof of the default or delinquency complained of, and that no satisfaction for the same has been received; and by a certified copy of such official bond. 2 R. S. 476, § 2 (498); Matter of Chamberlain, 28 How. 1; S. C., 18 Abb. 103; 42 Barb. 281.

Where the default complained of consists in the non-payment of money, it must be shown that it has been demanded of the sheriff. Rhinelander v. Mather, 5 Wend. 102.

It is unnecessary to show a previous judgment against the sheriff personally. Chester's Case, 5 Hill, 555.

c. Order granting leave. "Upon such application and proof, the court shall order that such bond be prosecuted; and the applicant shall thereupon be authorized to prosecute the same, in the said supreme court only,, in the name of the people of this State, stating in the process, pleadings, proceedings and record in such action that the same is brought on the relation of such applicant." 2 R. S. 476, § 3 (498).