Church v. Van Buren
New York Supreme Court
Motion for leave to sue upon a judgment rendered in this court between the same parties, nunc pro tunc, as of a day prior to the commencement of the action, and for an order allowing the plaintiff to amend his complaint so as to aver such leave.
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Motion for leave to sue upon a judgment rendered in this court between the same parties, nunc pro tunc, as of a day prior to the commencement of the action, and for an order allowing the plaintiff to amend his complaint so as to aver such leave. The affidavits of the plaintiff and his counsel showed an inadvertance, and excused the omission to get leave to sue, and that the statute'of limitations had run upon the judgment at the time of making the motion, but had not when the suit was commenced. So affidavits were read in opposition.
1Opinion of the CourtHardin, J.
The object of section 71 of the Code of Procedure was to prevent multiplicity of suits and accumulation of costs. The statute was aimed at the evil practice and designed to cut it off and prevent it. By bringing this action *490this court obtained jurisdiction of the parties and the subject-matter of the action. It has been held that leave to sue may be granted, nwnc pro tmnc, and the cases must be followed (Burrough agt. Smith and Hall, decided by Roosevelt, J., reported in Voorhies' Code, edition of 1855; Finch agt. Carpenter, 5 Abb., 225). But the defendant must be saved all costs he has…
2Cited by7 opinions
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- Hauselt v. FineNew York Supreme Court · 1886
- Rathje v. KaufmannSouth Dakota Supreme Court · 1948
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