#### Alexander William MacDougall, Plaintiff, *v.*William M. Hoes, Public Administrator of the County of New York, as Administrator of the Goods, etc., of Leonard W. Jerome, Deceased.

(Supreme Court, New York Trial Term,

May, 1899.

Judgment — When standing “ as security,” is not actionable under Code Civil Procedure, § 1913.

Where the defendant has been permitted to open a judgment recovered against him by default and defend, the judgment to stand “ as security ”, and the action has been thereafter referred, no action upon such judgment can be maintained, under section ■ 1913 of the Code of Civil Procedure, after the death of the defendant against his administrator, as the judgment is not final nor enforceable by execution, and the cause of action is still open to defenses.

Suit upon a judgment recovered by the plaintiff against Leonard W. Jerome, June .13, 1882, in an action on contract, in the Hew York Court of Common Pleas, for $11,802.43. On July 12, 1882, • the judgment which had been obtained by reason of the defendant’s default, was so far opened as to permit him to come in and defend. the action, upon paying motion costs and stipulating to refer the action, conditions which were fully complied with. The order ■directs that the judgment stand “ as security.” An order of reference was thereupon made to-hear and determine, but no proceedings were taken before the referee. Jerome died March 4, 1891. Letters of administration -were thereafter issued to the public administrator, the present defendant. A claim on the judgment having been presented to the administrator and rejected, the present suit was commenced on the judgment, which the plaintiff claims to be in force because the defendant did not avail himself of the right of defense before his death.

Evarts, Choate & Beaman, for plaintiff.

Poster & Thomson, for defendant.

McAdam, J.

The plaintiff evidently brought his action under section 1913 of the Code, authorizing actions upon certain judgments, but the provisions of that section refer to final judgments *591upon which an execution may be issued. Hanover F. Ins. Co. v. Tomlinson, 3 Hun, 630; approved Matter of Van Beuren, 33 App. Div. l60. The judgment sued upon is in no sense final. The order permitting the defendant to come in and defend, though it permitted the judgment to stand as security, deprived it of all validity for any other purpose. It was left standing as a mere security for whatever amount the plaintiff might subsequently establish by further proceedings in that action. Uo execution could be issued on it after the making of that order, and none can be issued on it now. Had the plaintiff prosecuted the action and recovered less than the amount named in the security judgment, it would have been void as to the excess, and if the defendant therein had been wholly successful it would have fallen absolutely. Such is the legal result. See Negley v. Counting Room Co., 2 How. Pr. (N. S.) 237; Mott v. Union Bank, 38 N. Y. 18; Holmes, Booth & Hayden v. Rogers, 18 N. Y. St. Repr. 652; 2 N. Y. Supp. 501; Hall v. Templeton, 4 Week. Dig. 120; Miller v. Eagle Life, etc., Co., 3 E. D. Smith, 184; Pierce v. Thomas, 4 id. 354. It follows that the complaint must be dismissed on the merits, with costs. ■ Sixty days to make a case and sixty days’ stay of execution -after service of notice of entry of judgment.

Ordered accordingly.