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§ 277. Judgment in action for recovery of personal property.

In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession or the value thereof, in case a delivery can not be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.

a. Judgment.-A defendant who succeeds in an action to recover the possession of personal property, when the property has been delivered to the plaintiff, must, under this section, take judgment in the alternative, for a return of the property, or for the value thereof as assessed, in case a return cannot be had; this section having deprived the defendants in such actions, of the election given them by the revised statutes, to take judgment either for a return or for the value of the property at their option (Dwight v. Enos, 9 N. Y. 470). Where the judgment was not in the alternative, held that a new trial was not necessary; but the judgment might be modified so as to conform to the code by changing it into a judgment in the alternative, for the recovery of the possession of the property, or of its value in case a delivery cannot be had, assuming the amount recovered as damages to be the true value of the property to the plaintiffs (Fitzhugh v. Wiman, 9 N. Y. 559; Seaman v. Luce, 23 Barb. 240; and see Wood v. Orser, 25 N. Y. 348; Glann v. Younglove, 27 Barb. 480). A judgment not in the alternative is valid until reversed or amended (Gallarati v. Orser, 4 Bosw. 94).

b. Where the relief demanded by the complaint was a judgment for the return of personal property or its value, and no answer was put in, it was held that the plaintiff might elect which judgment he would take, but that he could not take judgment in the alternative (Commercial B'k v. White, 3 How. 292. See Aldrich v. Thiel, 3 Code Rep. 91).

c. Damages.—In an action to recover possession of personal property, or the value thereof, &c., and for damages, plaintiff may recover damages for the depreciation of the goods during the detention, although the complaint contains no allegation of special damage (Young v. Willett, 8 Bosw. 486).

d. In such an action, the jury, on finding for the plaintiff, should assess the value of the property as well as the damages (Gallarati v. Orser, 27 N. Y. 326), although the plaintiff has obtained a delivery of the property pending the action (Tracy v. N. Y. and Harlem R. R. 9 Bosw. 396). The value at the time of the trial is the real subject of the inquiry and the proper subject of proof. Such value is the substitute for the property if not delivered (Brewster v. Silliman, 38 N. Y. 423). Damages for the loss of use or depreciation are compensated by the damages for the detention (id.)

See note to § 261.

$278. (Am'd 1849, 1851, 1852.) Judgment, how directed.

Judgment upon an issue of law, or of fact, or upon confession, or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of § 246, and by § 384, and except where it may be given at the general term as provided

in § 265), shall in the first instance be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as herein provided.

a. A judgment upon a written offer, pursuant to § 385, is not within this section, and may be entered without the previous permission of a judge (Hill v. Northrop, 9 How. 525).

b. Where there is an issue of law and an issue of fact, no judgment can be entered until both issues are disposed of (Masters v. Barnard, 6 How. 133; Belknap v. McIntyre, 2 Abb. 366). Where an answer sets up more than one defense, and one of them is held bad on demurrer, an absolute judgment for the plaintiff on the demurrer is improper (Belknap v. McIntyre, 2 Abb. 366).

c. Where the decision at the circuit is correct, but the judgment is erroneously entered, the remedy of the party is not by appeal from the judgment, but by motion at special term to correct the error (Campbell v. Adams. 38 Barb. 132).

d. The court have not the power to order judgment nunc pro tunc, as of a date prior to the actual judgment, to affect the parties' rights to costs (Moore v. Westervelt, 14 How. 279). As to allowing judgment to be entered nunc pro tunc after the death of a party (Crawford v. Wilson, 4 Barb. 505).

e. After a verdict upon issues settled, it is immaterial whether the subsequent proceedings to obtain judgment is at the circuit or special term (Dort v. McAdam, 27 Barb. 187).

f. Where an order granting a favor to a plaintiff, imposed on him the payment of costs, and provided that if the costs were not paid within twenty days after adjustment, the defendant might enter a judgment of nonsuit, held that, on proof to the clerk of the nonpayment of these costs, he might enter a judgment of nonsuit without any further order of the court (Hanna v. Dexter, 15 Abb. 136).

g. In an action on an official bond, the judgment should not be for the penalty, but only for the amount of damages and costs (O'Connor v. Suh, 9 Bosw. 318; Howard v. Farley, 18 Abb. 260; but see West. B'k v. Sherwood, 29 Barb. 383).

h. A judgment in an action by an executor as such, dismissing the complaint with costs, without any direction that the plaintiff should pay the costs personally, can be collected only of the assets in plaintiff's hands as executor (Dodge v. Crandall, 30 N. Y. 294; and see B'k of Cooperstown v. Corlies, 1 Abb. N. S. 412; Mills v. Thursby, 12 How. 390; see post § 317, note).

i. Where defendant has appeared, plaintiff cannot settle ex parte the form of the judgment, if it grant special relief (3 Sand. 724).

See note to § 347.

$279. Clerk to keep a judgment-book.

The clerk shall keep, among the records of the court, a book for the entry of judgments, to be called the "judgment-book."

§ 280. Judgment to be entered in judgment-book.

The judgment shall be entered in the judgment-book, and shall specify clearly the relief granted, or other determination of the action.

a. The clerk is bound to enter judgment on being paid the fee prescribed therefor, and cannot justify a refusal on the ground that fees for other services in the cause remain unpaid (Purdy v. Peters, 15 Abb. 160).

b. In Schenectady Plank Road Co. v. Thatcher (6 How. 226), it was held that the decision of the court in writing, when filed, is not the entry of judgment, but that in such a case, as in all others, the clerk must enter the judgment in the judgment-book. And see Lentilhon v. Mayor &c. of New York, 3

Sand. 721.

c. If, after the judgment is entered, a case is made, it may by order be annexed to the judgment-roll (Lynde v. Cowenhoven, 4 How. 327; Renouil v. Harris, 2 Sand. 641; and Church v. Rhodes, 6 How. 285; Anderson v. Dickie, 26 How. 201; 1 Rob. 700).

d. In common law actions, no judgment is pronounced, except by the record made up in the clerk's office. The final decree of a court of equity takes effect when it is declared by the court, and the record when made up, is only evidence of the decree (Butler v. Lee, 33 How. 251). A delay of the clerk in entering the judgment in the judgment-book, does not affect its validity (Butler v. Lee, 3 Keyes, 76; Lynch v. Rome Gas Light Co. 42 Barb. 591). e. The courts will enforce agreements to stay entry of judgment (Jay v. De Groot, 28 How. 107).

f. Filing a request to the clerk to docket a judgment, the clerk's giving a transcript, and the filing a transcript, held a compliance with this section (Appleby v. Barry, 2 Rob. 689). Forcing a party to enter judgment, see in note to § 331 post, and see Rules 9, 72.

§ 281. (Am'd 1849, 1851, 1852.) Judgment-roll.

Unless the party or his attorney shall furnish a judgment-roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment-roll:

1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment.

2. In all other cases, the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment.

g. Judgment-roll.—It is the clerk's, and not the attorney's duty, to make up the judgment-roll (Renouil v. Harris, 2 Sand. 641; Earle v. Barnard, 22 How. 437). It is optional with the prevailing party to furnish & judgment-roll or not, and he cannot be compelled to furnish a judgment-roll (Heinemann v. Waterbury, 5 Bosw. 686). And see § 422.

h. The bill of costs, notice of adjustment, and affidavit of disbursements, should not be annexed to the judgment-roll; and if they are, the court will order them to be taken off (Schenectady Plank Road Co. v. Thatcher, 6 How. 226). The affidavit and order of arrest are no part of the record, and should not be engrafted upon it or entered in it (Corwin v. Freeland, 6 N. Y. 565). The affidavit on which a requisition to the sheriff to take personal property is founded (§ 207), forms no part of the judgment-roll (Kerrigan v. Ray, 10 How. 215). The provisions of the code regulating the mode of entering the judg

ment and the filing the judgment-roll, are not to be considered imperative, but merely directory (Stimson v. Huggins, 9 How. 86; 16 Barb. 658).

a. A judgment-roll upon "a judgment by default," besides the summons and complaint, must contain evidence that the summons was served and that no answer has been received, thus showing that the court had jurisdiction over the defendant, and that he had waived his right to defend. If the defendant has appeared and an issue has been joined, it must appear from the roll how that issue has been disposed of, so as to authorize the court to proceed to judg ment. When an issue of fact has been tried by a jury, a copy of the verdict entered in the manner prescribed by § 264, must be inserted in the roll. If the issue has been tried before a referee, his report must appear in the judg ment-roll. If the trial of the issue be before the court, without a jury, when the record is made up, the decision becomes a necessary part of it. If there are any other papers which materially affect the judgment, these also should appear in the roll. The opinion, if any, should not be inserted in the judgment-roll (Thomas v. Tanner, 14 How. 427).

b. The proof of service of the summons and complaint is no part of the record on demurrer (Smith v. Holmes, 19 N. Y. 271); but proof of service of the summons where the defendant does not appear, forms part of the judgment-roll (Macomber v. Mayor of N. Y. 17 Abb. 36; Thomas v. Tanner, 14 How. 427).

c. The omission in a judgment record of a pleading stated to have been withdrawn before judgment, and to have been lost or mislaid, does not affect the validity of the record or judgment (Hatcher v. Rocheleau, 18 N. Y. 87). A demurrer which a party has abandoned, like a pleading which has been amended, is no longer a part of the record (Brown v. Saratoga R. R. Co. id. 495).

d. Omitting to annex the summons and complaint to the judgment-roll, is an irregularity only; it does not prevent there being a judgment in the action (Martin v. Kanouse, 2 Abb. 393; and see Calkins v. Parker, 21 Barb. 276; Cook v. Dickinson, 1 Duer, 679; Conolly v. Conolly, 16 How. 224; but see Townshend v. Wesson, 4 Duer, 342; Decker v. Judson, 16 N. Y. 450). The original summons is not a necessary part of the judgment-roll. (Hoffnung v. Grove, 18 Abb. 14); nor is the bill of particulars (Kreiss v. Seligman, 8 Barb. 440). Where there have been two trials, the judgment record upon the second trial should not embrace the case made upon the first trial (Wilcox v. Hawley, 31 N. Y. 648).

e. Signing by the clerk is not indispensably necessary to the validity of a judgment (Artisan's Bank v. Treadwell, 34 Barb. 553; Townshend v. Wesson, 4 Duer, 342; Macomber v. Mayor of N. Y. 17 Abb. 45).

f. That damages were assessed against the defendant in the court below, without any affidavit proving his default in not answering, is a matter of practice not reviewable in the court of appeals, upon an appeal from the judgment (Catlin v. Billings, 16 N. Y. 622).

g. A variance between the form of judgment, as entered on the clerk's minutes and as entered in the judgment-roll, is an irregularity which must be taken advantage of within one year (Martin v. Løtt, 4 Abb. 365).

§ 282. (Am'd 1867, 1869.) Judgment, when and how to be docketed. Lien-Secured on appeal.

Upon filing a judgment-roll upon a judgment directing in whole or in part the payment of money, it may be docketed with the clerk of the county where the judgment-roll was filed, and in any other county upon the filing with the clerk thereof a transcript of the original "docket," and shall be a lien on the real property

in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where the judgment-roll was filed. But the time during which the party recovering or owning such judgment shall be or shall have been restrained from proceeding thereon, by any order of injunction, or other order, or by the operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith.

But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, the court in which such judgment was recovered, may, on special motion after notice to the person owning. such judgment, or to his attorney, and to the sureties to such undertaking, on such terms as such court shall see fit, by order exempt from the lien of such judgment the whole of the real property upon which said judgment is a lien, or a specific portion thereof to be described in such order, and direct an entry to be made by the clerk on the docket of such judgment that the same is "secured on appeal," except that in case only a specified portion of such property is exempted from such lien, such order shall direct an entry to be made on such docket that the same is "secured on appeal as per order of the court, dated-," specifying the date of such order; and thereupon such judgment shall cease during the pendency of such appeal to be a lien upon the property so exempted as against purchasers and mortgagees in good faith.

a. Lien. This provision as to lien applies to judgments in the United States courts (Crandell v. Cropsey, 10 N. Y. Leg. Obs. 1).

b. A judgment-roll delivered to the clerk to be filed before the hour prescribed by law for opening his office (2 R. S. 285, § 54, laws 1860, ch. 276), will be considered as filed at the hour for opening his office. No preference can be gained by taking a judgment-roll to the clerk's office before that hour (10 Wend. 573; and see France v. Hamilton, 26 How. 180).

c. The perfecting an appeal, and giving security to stay proceedings on the judgment, does not prevent the respondent from filing transcripts of the judgment appealed from (Bulkley v. Keteltas, 1 Code Rep. N. S. 119).

d. A judgment does not lose its lien upon real estate, by the suffering an execution issued thereon to lie dormant in the sheriff's hands (Muir v. Leitch, 7 Barb. 341). No indulgence or negligence of the sheriff in selling, without any act of the plaintiff, will render an execution dormant as to subsequent

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