Lynch v. Welch , 1 Seld. Notes 15 ( 1852 )

A judgment was entered in favor of Lynch against Welch for $2,500, upon a cognovit containing the following clause: “The execution upon the judgment hereupon entered to be levied and satisfied at any time, upon and out of the property and effects of the defendant, in the store No. 57 Broadway, and out of no other property whatever.” Execution was issued and levied upon the property in the store mentioned, and the same was sold for $1,363. This action was brought to recover the balance of the judgment. The condition contained in the cognovit, with the seizure and sale of the goods in accordance with it, were set up as a defence, on the ground that, by the terms of the cognovit, the goods referred to, when taken on the execution, were to be a satisfaction of the judgment, and that the defendant was not liable for any deficiency.

Held, that the plaintiff was entitled to recover the balance of the judgment.

That the limitation in the cognovit, as to execution, did not enter into the judgment, which was an unconditional recovery of $2,500.

And if it were to be regarded as qualifying the judgment, it only restricted execution upon that judgment to the property mentioned, and did not prevent a new suit for the deficiency, after sale of that property.

That the whole amount was both admitted and adjudged to be due, and the seizure of that property upon execution was only a satisfaction to the extent of its value, as shown by the sale.

(See S. C., 7 Barb. 380.)