#### Hausee *v.*Fiero.

*(Supreme Court, General Term, Third Department.*

May 26, 1890.)

1. Husband and Wife—Action against Wife.

Coverture is a matter of defense only, and a default judgment against a married woman as Indorser of a note is valid though the complaint does not aver that sha charged her separate estate.

2. Judgment—Waiver.

On a motion for leave to issue execution upon a default judgment against a married woman, she, by leave of court, filed an answer, pleading coverture, whereupon plaintiff was required either to submit to a dismissal or amend his complaint. He elected to amend, and afterwards prosecuted the case to judgment. *Meld,*that this did not constitute a waiver of the original judgment, and it still remained in force.

8. Execution—Issuance—Huno pro Tunc.

After the return unsatisfied of an execution upon the new judgment, an order was made allowing plaintiff to issue exeeutiomiponthe original judgment as of the date of his first motion therefor. *Meld*that, under Code Civil Proo. § 1877, subd. 2, which provides that after five years execution may issue by leave of the court, it was proper to allow such execution, but improper to grant it *nunc pro timo,*and a new execution may be issued as of the present date.

Appeal from special term, Albany county.

Action by John Hausee against Rachel O. Fiero, Defendant appeals from an order granting leave to issue an execution against her.

Argued before Learned, P, J., and Landon and Mayham, JJ.

*John E. Van Etten,*for appellant. *William J. Groo,*for respondent.

Mayham, J.

On the 11th day of August, 1875, the plaintiff recovered a judgment in the supreme court, by default, against Rachel C. Fiero, Bingam F. Decker, and Adaline Decker, on a note purporting to have been made by said Decker, and indorsed by the defendant Fiero. At the time of making and indorsement of the note, and entry of the judgment thereon, the defendant Rachel C. Fiero was a married woman, which fact was'not alleged in the complaint. Ro execution was issued on the judgment within five years after the entry thereof. A motion for leave to issue execution was noticed for a special term to be held September 13,1884, which motion was adjourned from time to time until August 10, 1885, When an order was made granting leave to issue execution on the judgment, as of the date of September 13, 1884, unless the defendant Fiero should within 10 days from the service of the order serve a verified answer. On the 15th day of August, 1885, this defendant served an answer as required by the order, after which no proceedings *495were taken in the action until the trial thereof, June 21, 1888, when the defendant Fiero moved to dismiss the complaint as to her on the ground that it did not state a cause of action against her as a married woman, whereupon the court gave the plaintiff his election to submit to a dismissal of the complaint, or amend the same so as to state a cause of action. The plaintiff elected to amend, and the trial proceeded, resulting in a verdict and judgment for plaintiff for the amount of the note, interest, and costs, which judgment was entered September 25, 1888. On this judgment an execution was issued against all the defendants, and returned wholly unsatisfied. On the 8th day of June, 1889, thereafter, plaintiff made another motion for leave to issue execution on the judgment of August 11, 1875, upon the above facts, which was opposed by the defendant Fiero, on which an order was made granting leave to issue an execution *nunc pro tune*as of the date of September 13, 1884. From this order the defendant Fiero appeals to this court.

The appellant insists that the election of the plaintiff to amend his complaint on the trial was, in legal effect, a concession that the original judgment was unauthorized and invalid as against the defendant Fiero; that the making of such election was a concession on his part, in open court, that the original complaint did not state a cause of action against the defendant Fiero, and that the j udgment was therefore, as to her, unauthorized; and that both parties, having acted upon that concession, followed by the recovery of a new and different judgment, and an attempted enforcement of the same by the plaintiff by execution, are concluded. We cannot agree with the appellant in his contention that the first judgment, for want of the allegation, in the complaint that she expressly charged her separate estate, was unauthorized and invalid. It was never necessary, in order to recover against a married woman, to allege in the complaint the facts which, if controverted, would have to be proved to charge her. It is enough to complain generally upon the contract or obligation. She may be sued and declared against as a *feme sole,*and her coverture is a matter of defense only. In *Smith*v. *Dunning,*which was an action upon a note of a married woman, the defense of coverture was set up. In discussing that question the court says: “She was bound by the note, and could be sued upon it as if she were unmarried. It was wholly unnecessary to allude in the complaint, in any way, to her coverture or her separate estate. Her coverture was matter of defense, to be set up if available.” *Smith*v. *Dunning,*61 N. Y. 251. To the same effect is *Hier*v. *Staples,*51 N. Y. 136; also, *Frecking*v. *Rolland,*53 N. Y. 422.

The first judgment, therefore, not having been paid or reversed, must, for the purposes of this motion, be regarded as valid, unless the same was, by the acts of the defendant in the prosecution of the action and the recovery of the second judgment, expressly waived, or merged in the second recovery. The defendant insists that such was the effect of the election of the plaintiff to amend his answer, and that he cannot now, for that reason, enforce the old judgment by execution? and several cases are cited to show that a party by his own act may waive a right,' and, after his adversary has acted upon such waiver, he cannot disregard the same, and assume and enforce for his own benefit the right which he has thus waived. But none of the cases cited hold that a judgment can be thus waived, or that the recovery of a second judgment for the same cause of action is a merger or extinguishment of the first. In *Lansing*v. *Caswell,*4 Paige, 519, it was held that, when a party had appealed from the decision of the commissioners of highways in laying out a highway, if he afterwards participated in the assessment of damages he thereby waived his appeal. In *Brady*v. *Donnelly,*1 N. Y. 126, the defendant demurred to a bill in equity, and the demurrer was overruled by the vice-chancellor, whereupon the defendant appealed to the court of appeals, b.ut pending such appeal answered the bill upon its merits. It was held that by answering he had waived his appeal. In *Bennett*v. *Van Syckel,*18 N. Y. *496481, the party, by a judgment, was decreed to receive certain advancement, and be indemnified against certain covenants, and was then to assign certain leases. Held, that he could not, after adopting the beneficial part, repudiate that which was of benefit to the other party, but that he had waived his right to object to the performance of the part which operated to his prejudice. In *Smith*v. *Rathburn,*75 N. Y. 122, the plaintiff applied to the referee for leave to amend his complaint, which was granted upon condition that the defendant might demur to the amended complaint. After amending his complaint the plaintiff objected that defendant had no right to demur to an amendment made on the trial. Held that, having availed himself of the conditional order, he was bound by the condition, and had waived his right to object. But it will be seen that in none of these cases has a valid judgment been extinguished by waiver; nor have we been able to find a case which goes to that length. Ñor do we see how on this motion the judgment of August 11,1875, can be held invalid or extinguished. Ordinarily a judgment of a court of record can only be extinguished by payment, release, satisfaction of record, or lapse of 20 years. Hone of these facts exist as to this judgment, and the court cannot on this appeal hold that it has been extinguished, superseded by the latter judgment, or merged in it. It is true that at the time of the making of the order by Judge Westbrook, to which effect is given by the order from which this appeal is taken; more than 10 years had elapsed after the entry of the judgment, and the same had, at the time the order was made, ceased to be a lien on the real estate, and an order for the issuing of an execution could not revoke the lien. In cases where defaults are opened, it is a common practice to allow the judgment already entered to stand as security, and the learned judge who granted the order appealed from held that effect should be given to the order of Judge Westbrook.

It is insisted by the defendant that the order made by the special term after the lapse of 10 years, although by its terms *nunc pro tune*as of a date prior to that time, is unjust, as its object was to revive a lien already extinct. It is by no means certain that order could have any such effect, or that the court could, by its order actually made after a judgment had ceased to be a lien, revive the same. That, in effect, would be reviving and creating a lien barred by a statute. There does not seem to be any limit of time during the life of a judgment within which an execution may issue, under subdivision 2 of section 1377 of the Code; and, without determining what property of the judgment debtor under it could be taken upon execution, we think the order granting leave to issue execution should be so far modified as to allow an execution to issue on the original judgment as of this date, but not *nunc pro tune.*

Learned, P. J.

The plaintiff recovered a judgment against all the defendants, August 11, 1875. On a subsequent motion for leave to issue execution, an order was made, August 10, 1885, granting such leave, unless said defendant Fiero should serve an answer in 10 days, in which case the judgment was to stand as security. This order gave leave to issue such execution, in case no answer was served, “as of the date of September 13, 1884,” which was the day for which the motion had been noticed. The defendant Fiero thereupon answered. Therefore the leave to issue execution was practically refused, because it was not granted if the defendant Fiero should answer. The cause went to trial in June, 1888; and on the trial the plaintiff amended his complaint by adding certain allegations showing that the defendant Fiero, a married woman, had in writing charged her separate property. The plaintiff recovered, and entered judgment September 25, 1888. On this judgment execution was issued, and returned unsatisfied. The plaintiff then moved, June 8, 1889, for leave to issue execution on the judgment of August 11, 1875, which motion was opposed. The court granted leave to issue exe*497cution *nunc pro tune*as of September 13,1884. From this order the defendant Fiero appeals.

The customary order, that on opening a default the judgment shall stand as security, simply retains the judgment as a lien upon any land of the defendant. If it extends the time of the lien, under section 1255, Code Civil Froc., it does not extend it against purchasers, creditors, and mortgagees in good faith; and in this case it could be, in any event, an extension only from August 10,1885, to September 25,1888, a period of threeyears and one month and a half. As the lien of the judgment of August 11, 1875, had nearly expired when the order was made, the lien of that judgment, even if extended by the order, expired during September, 1888. It had ceased to be alien long before the order of June 8, 1889. Although, therefore, the order made August 10,1885, directed that the judgment should stand as security, it could not have the effect to extend the lien beyond the 10 years provided for by the Code, § 1251, or the additional time under section 1255, above cited; and the provision in that order that execution might issue as of September 13, 1884, was, as we have seen, entirely nugatory. Since the defendant answered, as she was allowed to do, and therefore no privilege of issuing any execution was granted by the order of August 10, 1885, all that plaintiff obtained was that the original judgment should stand as security. Supposing, then, the original judgment does stand as security, the plaintiff may then ask leave to issue execution under section 1377; and this may properly be granted. But there is no propriety in issuing the execution *nunc pro tuna.*If the plaintiff desires to levy on land which the debtor has when the execution is issued, the mode is prescribed in section 1252. If he desires to revive the lien as against purchasers, etc., that he has no right to do. To insert a clause of *nunc pro tune*is only to expose persons not before the court to the risk of litigation. The plaintiff’s lien on his original judgment has expired long ago, and very possibly rights of purchasers or creditors have arisen. We ought to do nothing which will indicate danger to them where no danger really exists; and, as has been shown above, there is no more reason for a *nunc pro tune*clause taking the execution back to August 10, 1885, than for one taking it back to August 11,1875; for the order of August 10,1885, in regard to the execution, had no effect in case the defendant answered, as she did in fact. Very possibly this *nunc pro tune*clause will not in fact harm *bona fide*purchasers and creditors. But it may alarm them, and perhaps induce them to buy their peace, when there is no valid claim against them. It ought not to be allowed to serve any such purpose. The execution, without that clause, will give the plaintiff all he is entitled to. Order amended by striking out the *nunc pro tuna*clause. ÍTo costs to either party. All concur.