Hammond v. Hoffman ( 1876 )

The Surrogate.

It is conceded that upon the death of one of several joint debtors the creditor cannot resort to his estate, till he has exhausted his remedy against the survivors or made it appear that they are insolvent; (Hosack v. Rogers, 25 Wend., 313, 319-20; Voorhis v. Child, 17 N. Y., 354.) But it is claimed that as the original liability on which the judgment was recovered, was several as well as joint, the judgment itself maybe treated as joint and several, or that it is competent to go back of the judgment to the original liability for the purpose of this remedy.

This principle may be invoked in the case of a judgment upon contract, for the purpose of protecting the equitable rights connected with the original relations of the parties. (Clark v. Rowling, 3 N. Y., 216.) But my attention has not been called6 to any case in which it has been applied to a judgment for a tort, especially when the cause of action was one which died with the person. In such a case, there is no debt till the judgment is rendered, and in such judgment the cause of action is completely merged.

But if it were otherwise, I am unable to see that the judgment creditor in this case occupies a position which entitles him to the aid of the principle referred to. It is a matter of no interest to him, that one judgment debtor rather than another, should be compelled to pay the judgment. His remedy for its collection is simply against the survivors.

The fact that no contribution can be inforced between the judgment debtors, does not concern him. The death of one of them is no obstacle to enforcing payment or satisfaction against the survivors by execution. (Day v. Rice 19 Wend., 644; 2 Tidd Practice, 162). This judgment creditor is under no present necessity at least to resort to this court for and against the estate of the deceased joint judgment debtor.

This application is evidently made in the interest, if not at the instance, of the surviving judgment debtors, and as an indirect means of compelling a contribution by Hoffman estate, to the payment of the judgment For this purpose the petitioner has no standing. He can maintain no action on the judgment except against the survivors. He cannot have an action, in the nature of, or as a substitute, for a sciri facias against the heirs of Hoffman, to hear execution of the judgment, without showing that there is no property of the other judgment debtors out of which satisfaction can be had. (Woodcock v. Bennett, 1 Cow. 739: 2 Tidd Practice, 1033.

It is the duty of the Surrogate to protect the equitable rights of parties within the scope of his jurisdiction where they are involved in the proceeding before him. (Goodyear v. Watson, 14 Barb., 481.) But in this case there does not appear to be any thing calling for the interposition of his powers in this respect. The application must be denied.

Ordered accordingly.