Fero v. Van Evra , 9 How. Pr. 148 ( 1854 )

C. L. Allen, Justice.

The notice of motion is for a rule or order to compel the defendant, James R. Van Evra, to cancel or satisfy the mortgage referred to in the bill of complaint in this action, of record. The plaintiff, if he has entered up his judgment correctly, pursuant to the stipulation served by the defendant’s attorney, has such an order in his judgment roll, and all he has to do is to proceed under § 285 to enforce his judgment. That section provides, that if the judgment requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law to obey the same, and his obedience thereto enforced. If he refuse, he may be punished by the court as for a contempt.

The plaintiff should furnish to, and serve on the defendant, Van Evra, a copy of the judgment, not merely the transcript containing the amount .of the costs, but a copy of that part of the judgment requiring him to make or acknowledge satisfaction of the mortgage, and require satisfaction to be acknowledged according to the order. If that is refused, he is then prepared to proceed against him as for a contempt. Here he has only served the attorney with a copy of the transcript of the judgment, with a notice to them, that satisfaction is required. It is true, he has called upon the defendant personally and demanded satisfaction, but this is not sufficient within § 285. A copy of the judgment must be served.

The motion must be denied, with $7 costs.