Rodbourn v. Utica, Ithaca & Elmira Railway Co. ( 1882 )

By the Court :

When the judgment in the original action had been opened and the defendant had been allowed to appear and defend, there was no longer a final judgment. Although the court allowed the judgment and the execution issued to stand as security, yet they were only security for such amount as on the trial of the case might be adjudged to be owing to the plaintiff. It was no longer adjudicated that anything was owing to him from the defendant. Hence there Avas, as said above, no final judgment. This is decided in Mott v. Union Eank (38 N. Y., 18).

If a judgment thus opened and allowed to stand as security is not a final judgment which prevents the plaintiff from having the provisional remedy of arrest, then plainly it is not a final judgment upon which the plaintiff may have the supplementary remedy of sequestration.

That remedy must be based on a final judgment, and on the issue and return unsatisfied of an execution. (Code Civ. Pro., § 1784.) It is practically a judgment creditor’s action. (Code Civ. Pro., § 3343, subds. 13,14.) There must be, then, the judicial determination that a debt exists, and the inability to collect that debt by execution. Here there is no longer such determination ; and therefore there can be no debt judicially determined which the plaintiff cannot collect by execution. It cannot be intended that one should maintain proceedings for sequestration against a corporation, when he has only security for an alleged debt, which he may or may not hereafter establish.

The defendant moved at Special Term to set aside the judgment and execution, for leave to defend, and to vacate the appointment of the temporary receivers. The court granted a part of the motion, but refused to vacate the appointment of receivers. There is no reason why the acceptance of so much as was granted should prevent the defendant from appealing from that which was denied. This is not the case of a favor granted upon condition. On the contrary, it is a case where the granting of the right to defend — for it might be more accurately called a right than a favor, under the circumstances — required, on sound principles, that the rest of the motion, viz., the vacating of the appointment of receivers, should also have been granted.

The part of the order appealed from should be reversed, with ten dollars costs and printing disbursements: and the motion to vacate the appointment of receivers granted, with ten dollars costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

So ordered.