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Ross v McConnell Coal Co.

Conflict of Laws Foreign Judgment-Assumpsit-Affidavit of Defense

New York Code-Execution.

Where an action was brought in Pennsylvania on a judgment recovered in New York State, an affidavit of defense, in which it was averred that it did not appear that an order granting leave to bring this action had been made by the Court in New York in accordance with Section 1913 of the Code of Civil Procedure of that State requiring such an order, was held insufficient to prevent judgment. The provision in the New York Code had no application outside that State and was not binding on Pennsylvania courts, as it was purely a matter of remedy or procedure.

Where an action in assumpsit was based on a judgment recovered in New York, an insufficient affidavit of defense would not prevent entry of judgment for plaintiff, but where it appeared that an appeal on the judgment was still pending in New York, an order was made delaying issue of process until the appeal proceedings in New York had been concluded.

In re Rule for Judgment for Want of a Sufficient Affidavit of Defense. No. 199 September Term, 1919. C. P. Clearfield County.

Miller & Hartswick, for plaintiff.
Pents & Pents, for defendant.

Bell, P. J., December 29, 1919.—This action was brought upon a judgment recovered in the Supreme Court, in the County of Erie, in the State of New York, and an exemplified record of the said judgment is attached and made part of the plaintiff's Statement, which record is apparently on · its face full and complete, and is duly certified in the manner required. The affidavit of defense avers: First, that the plaintiff is a non-resident of the State and has no right to bring the suit without giving security for costs; second, that the exemplified record is not complete; third, that there does not appear to have been an order granting leave to bring this suit.

The first point was not strongly pressed by the defendant and it practically conceded that this is not the manner in which this question could be presented. Rule of Court 46 provides the procedure, and it is not competent to be incorporated in an affidavit of defense.

The second paragraph of the affidavit denies that the exemplification is a complete record, in that it fails to set forth that an appeal was taken by the McConnell Coal Company on May 25th, 1919. Apart from the fact that this is not the proper manner to raise diminution of the record, nothing is averred in the affidavit which would enable the fact alleged to be a defense in this action. The exemplified record presented is apparently on its face complete, and if it be intended to set up as a defense the state of the record in New York it must be averred that an appeal was perfected and that such steps were taken as to make it a supersedeas. This is not seriously controverted by the counsel for the defendant and it is recognized that the mere fact that an appeal was taken and no more would not be a defense in the action, though it may constitute excellent ground for a restraint of process upon any judgment which may be obtained.

The third reason is: “The plaintiff fails to show an order granting leave to bring suit on said judgment obtained in the State of New York, as required by the laws of the State of New York." It may be seriously questioned whether or not the plaintiff is bound to show on the face of the record such leave of Court, even though the same be necessary to a recovery, and whether or not to be effective the defendant must not have averred that there was not such leave actually granted, but for the purpose of this motion it will be considered upon the basis, which we understand from counsel ou both sides to be the fact, that such leave was not actually obtained. This is founded upon Section 1913 of the Code of Civil Procedure of New York,

Ross v McConnell Coal Co.

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which is in part as follows: "Except in a case where it is otherwise prescribed in this Act, an action upon a judgment for a sum of money rendered in a court of record of the State cannot be maintained between the original parties to the judgment unless either * * third, the Court in which the action is brought has previously made an order granting leave to bring it." Concededly the facts here do not bring the case within any of the three reasons which, under the Code, permit the bringing of an action upon a judgment, and the defendant insists that this is jurisdictional and prevents this Court from proceeding with this case. In support of this contention he cites Hinman v Hare, 1st Weekly Notes of Cases, page 251, in which this question was raised in Court of Common Pleas No. 3 of Philadelphia, upon a motion for judgment for want of a sufficient affidavit of defense, and decided June 9, 1883, as follows: “The Court, Rule discharged.” And also cites Skelding v Harris, in the Court of Common Pleas No. 4 of Philadelphia, 17 Weekly Notes of Cases, page 238, in which the same law was set up as a matter of defense and, upon a rule for judgment being taken, was decided on February 6, 1886, as follows: "The Court, Rule discharged.” Neither of which decisions illuminate the subject to any degree.

The two principal cases in New York upon the question, Farish v Austin, 25 Hun, 430, and Cook v Thurston, 42 New York Supplement, 1084, both apply to domestic judgments and are positive in the ruling that an action cannot be maintained upon a domestic judgment without leave of Court first being obtained.

The New York Courts have recognized a positive distinction between foreign and domestic judgments, and in Goodyear D. V. Co. v Frisselle, 22 Huntingdon, 174, held that where a judgment was recovered in the State of New York in the Circuit Court of the United States, an action can be maintained in the State Courts without first obtaining leave to sue on the judgment, as the Code requiring leave of Court did not apply; and in Morton v Palmer, 60 Huntingdon, 583, held that Section 1913 did not apply to a judgment rendered in the Federal Court sitting in New York, but ar action may be maintained thereon as if it were a foreign judgment.

Wisconsin has a statute substantially like that of New York and a judgment being obtained in that State an action was brought thereon in Washington without leave of Court, and the Supreme Court of Washington, in Weber v Yantsey, 34 Pacific Reporter, 473, held that the Wisconsin statute did not apply and did not bar the right to maintain the action in the State of Washington. The defendant contends there, as here, that the limitation imposed by the statute upon the force of the judgment obtained in that State and upon the remedies flowing from that judgment must be recognized by the Courts of any State in which an action is based upon it as qualifying the right of action on the judgment equally in those Courts as in the Courts where action was originally brought. The Supreme Court of Washington said: "There is no law in this State requiring leave of Court to sue on a judgment whether recovered here or elsewhere. We have no knowledge that the provision of the Federal Statute above referred to has ever been construed as going to the extent contended for by appellant. The statute in question was not one which limited the force of the judgment and did not enter into it, but was one which related to the remedy thereon only and as such would have no force here."

The New York statute received consideration in the Circuit Court for the Western District of Pennsylvania, in Union Trust Co. v R. & P. Railroad Co., 29 Federal Reporter, 609, in which Judge Acheson said: "The New York statutory provisions forbidding suit to be brought upon a judg

Ross v McConnell Coal Co.

ment rendered in a court of record of that State without a previous order of the Court in which the original action was brought, granting leave to bring the new suit, must be held as intended only to regulate the course of procedure in the New York State Courts. Such was the conclusion of Judges Dillon and Love in respect to a similar statute of the State of lowa. Phelps v O'Brien, 2 Dillon, 518.

If this were an entirely original proposition, we would be of the opinion that it was not the purpose of the New York statute to attempt to control or limit the authority of other States, nor do we see anything in the statute which undertakes to restrict its availability as a judgment. It is only when the matter of remedy is dealt with that the statute comes into effect and it controls the maintenance of more than one action in the State of New York on the same original cause of action, except by leave duly granted by the Court in which judgment is first obtained. Examination of the authorities upon both sides confirms rather than changes this view and we are unable to agree with the position apparently taken in Hinman v Hare.

Now, this 29th day of December, A. D. 1919, judgment is entered in favor of the plaintiff and against the defendant for want of sufficient affidavit of defense; judgment to be liquidated by the Prothonotary. It is further ordered that process shall not issue upon said judgment without leave of Court, to the end that the right of the parties arising from the appeal alleged to have been taken shall be preserved. Exception notes and bill sealed to the defendant.

(Reported by Louis E. Boyer, Esq., DuBois, Pa.)

Weinberger v Sunseri et al.
Equity---Specific Performance -Real Estate - Evidence-

or Write English.

-Unable to Read

The specific performance of a contract for the sale of real estate was de. creed where defendants set up a verbal agreement whereby they were to have 30 days in which to withdraw their agreement, although there were more witnesses testifying in favor of the defendants on that question than there were in favor of the plaintiff, and that defendants could not read or write English, Lut they had an interpreter of their own choosing and a daughter who could read and write English present at the time of the execution of this agreement.

In Equity. No. 10 October Term, 1919. C. P. Allegheny County.
Wright, Chalfant & McCandless, for plaintiff.
Alfred Cahen, for defendant.

EVANS, J., October 28, 1919.—The plaintiff in his bill alleges that on May 5, 1919, the defendants entered into what was an agreement with him by which it was agreed that the defendants would sell and that he would purchase the land described in the third paragraph of the bill for the consideration of Fourteen Thousand Seven Hundred Dollars; that by the terms of that agreement the deed was to be delivered and possession given on or before the 30th of June, 1919; that on the 30th of June, 1919, the plaintiff tendered the purchase money and demanded his deed, which demand was

Weinberger v Sunseri et al.

refused: and prays that the deiendants “be required to specifically perform said contract and that the said defendants, by good and sufficient deed of general warranty, convey, said premises and every part thereof by fee simple title, iree of all encumbrances to your orator, the plaintiff."

FINDINGS OF FACT. (1) The two defendants, Josephine Sunseri and Joseph Sunseri, were on and prior to the 5th day of May, 1919, the owners of the land described in the third paragraph of the plaintiff's bill.

(2) On that day they entered into an agreement with the plaintiff, Joseph Weinberger, by the terms of which the defendants agreed to convey, and the plaintiff agreed to purchase, the piece of land above referred to for the consideration of Fourteen Thousand Seven Hundred Dollars. and a deed of general warranty, free from all incumbrances, to be delivered on or before the 30th of June, 1919.

(3) On the 30th of June, 1919, the plaintiff tendered to the defendants the consideration price named in the agreement and demanded the deed, which deed was refused.

(4) There was no verbal agreement or understanding between the plaintiff and the defendants at the time of the execution of the agreement referred to in Finding No. 2, that the defendants should have thirty days in which to withdraw their agreement or consent to the sale of the property in question.

CONCLUSIONS OF LAW. (1) The receipt for the hand money, which contains the article of agreement for the sale of the land in question, dated May 5, 1919, is a valid and binding agreement in accordance with the written terms thereof, and conclusive on the defendants.

(2) The plaintiff, having tendered the purchase money, is entitled to specific performance by the defendants of the article of agreement of May 5, 1919.

DISCUSSION There is a single question of fact in dispute in this case. That the defendants had offered their property for sale for some time at Fifteen Thousand Dollars; that on the 4th of May the plaintiff had entered into negotiations with them for the purchase of the property and finally offered them Fourteen Thousand Seven Hundred Dollars for the property; and that the plaintiff paid to Mrs. Sunseri, one of the defendants, Two Hundred Dollars, hand money, on account of the purchase price, is not in dispute. But the defendant's allege that when the article of agreement was about to be signed the defendants refused to sign it, unless a clause was inserted in the agreement giving to the defendants thirty days in which to withdraw their agreement to sell.

I have found that fact against the defendants, although there were more witnesses testifying in favor of the defendants on that question than there were in favor of the plaintiff.

In the first place, we have the written instrument, signed by the defendants, in which there is no such provision. It is true that the defendants can not read or write English, but they had an interpreter there who could read and write English; the daughter of the defendants was there, and she also could read and write English.

There are certain things which throw doubt upon the recollection of the defendants. In the eleventh paragraph of the answer, sworn to by Josephine Sunseri, who acted throughout these transactions for herself and for her husband, it is alleged that Michael Blasco, the interpreter present

Weinberger v Sunseri et al.

at the time of the execution of the agreement, had been produced by the plaintiff and was the agent of the plaintiff, although on the trial of the case she and her husband admitted that he was brought there by the husband to act as interpreter for them.

Again, in the twelfth paragraph of the answer, it is alleged that at the meeting on the 5th of May, at which the article of agreement was executed, the plaintiff produced a typewritten agreement and told the defendants to sign said agreement; whereas it is alleged by the plaintiff on the trial of the case that after coming to a verbal agreement on May 4th for the sale of the property the plaintiff suggested that they go to a certain real estate agent, named Bainbridge, to have the necessary agreement prepared, and that Josephine Sunseri objected to Mr. Bainbridge, as she did not know him, and suggested A. J. Hunter in preference, he at that time being her agent for the collection of her rents, and that the plaintiff, Mrs. Sunseri, and her went to Mr. Hunter's office and gave him instructions for the preparation of the agreement.

Mrs. Sunseri admits that Mr. Hunter was her agent in the collection of rents and had been for some time, but denies that she went to his office on May 4th or had anything to do with giving instructions for the preparation of the agreement. She is contradicted in this by the plaintiff, by Mr. Hunter, and by her own son, whom she called as a witness and who testified that he went with his mother and the plaintiff to the office of Mr. Hunter on May 4th and that they instructed Mr. Hunter to draw up the article of agreement.

This is an attempt to vary the terms of a written instrument, and the proof necessary to sustain the contention of the defendants must be clear, precise, and indubitable. It is true that defendants could not read or write English, but it is also true that they had an interpreter of their own chosing and a daughter who could read and write English present at the time of the execution of this agreement.

In my judgment, the evidence of the defendants is not clear, precise, and indubitable. In fact, just exactly what Mrs. Sunseri claims that she asked to have put in this agreement is not clear, and the testimony of the various witnesses called to substantiate her contention does not directly agree as to what was said; whereas the testimony of the plaintiff, and the testimony of Mr. Hunter, who prepared the agreement, and who certainly if he had any bias in this case would be biased in favor of his own clients, is that no such suggestion had been made, that the plaintiff, Mrs. Sunseri, and her son went to Mr. Hunter's office on the 4th of May and explained to him that she had sold her property to the plaintiff, gave him the terms, and asked him to prepare an agreement, and that he told them he would do so and asked them to come back the next day and execute it, which they did.

After a careful consideration of the testimony in this case, I am clearly of the opinion that the facts are with the plaintiff.

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