Smith v. Britton
New York Supreme Court
Demueeeb to the complaint. The plaintiff, as administrator, brought an action upon a judgment recovered in favor of the intestate during his lifetime against the defendant. The complaint did not show that the plaintiff had obtained leave of the court to commence an action thereon. The defendant demurred to the complaint on the ground it did not state facts sufficient to constitute a cause of action.
1Opinion of the CourtVast Brunt, J.
If this action falls within the prohibition of section 71 of the Code it seems to me that it is necessary to allege in the complaint that leave to sue has been obtained, and that without such allegation the complaint is bad upon demurrer (Graham agt. Scripture, 26 How., 507; Hastings agt. Fanuer, 4 Coms., 293).
The next question is, does this case fall within the pro*429visions of section 71? That section provides that “ no action shall be brought upon a judgment between the same parties without leave of the court,” &c.
It has been held that a suit may be brought by an assignee of a judgment…
2Cited by3 opinions
- Freeman v. DutcherNew York Supreme Court · 1885
- Hauselt v. FineNew York Supreme Court · 1886
- Koenig v. WagenerAppellate Division of the Supreme Court of the State of New York · 1908