Only the receiver can enforce the judgment. A receiver may obtain from the court a general authorization to compromise disputed claims. Matter of Croton Insurance Co. 3 Barb. Ch. R. 642; and there cannot be a compromise without his consent. Attorney Genev. Life and Fire Insurance Cos. 4 Paige, 226. He may, by direction of the court, continue a suit commenced by the company in its own name, and before his appointment. Talmage v. Pell, 9 Paige, 410. He can recover property which the company, before its insolvency, had transferred on a contract it had no power to make. Talmage v. Pell, 3 Seld. 328. See Gillet v. Moody, 3 N. Y. (3 Comst.), 479; Rev'g S. C. 5 Barb. 185. e. Receiver of corporations; rights, powers and duties.-See Laws of 1870, ch. 151, § 3. The receiver of an insolvent corporation is the representative of both cred-ral itors and stockholders, and may assert their rights when affected by the fraudulent acts of the institution. He is, in fact, a trustee for both. Gillett v. Moody, 3 N.Y. (3 Comst.), 479; Talmage v. Pell, 7 N. Y. (3 Seld.), 328; Brouwer v. Hill, 1 Sandf. 629. See Libby v. Rosekrans, 55 Barb. 202; Sands v. Birch, 29 How. 305; S. C. 19 Abb. 255; Conro v. Gray, 4 How. 166; Livingston v. Bank of New York, 26 Barb. 304; S. C. 5 Abb. 338. He is bound by the authorized acts of the company, and is vested with all the rights of action which the company had when he was appointed, and can sue for a tort committed before his appointment. Gillett v. Fairchild, 4 Denio, 80; Brouwer v. Hill, 1 Sandf. 629. See Leavitt v. Palmer, 3 N. Y. (3 Comst.), 19; Hyde v. Lynde, 4 N. Y. (4 Comst.), 392; Hoyt v. Thompson, 3 Sandf. 416; S. C. Rev'd, 5 Ñ. Y. (1 Seld.), 320; Willink v. Morris Canal Banking Co. 3 H. W. Green's Ch. R. 377, 400. He is bound to call on the solvent stockholders to pay up the balance due from them on their stock, where he has reason to believe it will be wanted for the payment of the corporation creditors' demands. Pentz v. Hawley, 1 Barb. Ch. R. 122. See Nathan v. Whitlock, 9 Paige, 152. He must allow every claim against the corporation, which he is satisfied is just. Attorney-General v. Life and Fire Insurance Cos. 4 Paige, 224. He may cancel existing policies, but not re-assure. Matter of Croton Insurance Co. 3 Barb. Ch. R. 642. He may apply for a warrant to bring any person before him for examination, who is indebted to, or has property belonging to the corporation. Noble v. Halliday, 1 N. Y. (1 Comst.), 330. In an action against a foreign corporation which had never filed in the office of the secretary of State, any designation of a person upon whom papers were to be served (but the papers in this action were served on the attorney of such corporation who had appeared), and there being sufficient evidence of the insolvency of the corporation or its refusal to pay its debts, held, that a receiver appointed under such a state of facts was vested with authority. De Bemer v. Drew, 39 How. 466; S. C. 57 Barb. 438. To sue for and recover any sum remaining due upon any share of the capital stock, is merely cumulative, and the rule is the same, whether the stock be held by the original stockholder, or by an assignee. Mann v. Currie, 2 Barb. 294; Osgood v. Laytin, 48 Barb. 463; S. C. Aff'd, 37 How. 63; 3 Keyes, 521; 5 Abb. N. S. 1; 3 Trans. App. 124. Deposit or premium notes of a mutual insurance company constitute capital stock, and the receiver should collect them. Van Buren v. Chenango County Mutual Insurance Co. 12 Barb. 671. See Laws of 1858, ch. 314, and Laws of 1867, ch. 781. A receiver of a moneyed corporation appointed under § 41, 2 R. S. 464, unless his powers are restricted by the order appointing him, is absolutely vested with all the property of the corporation, and may dispose thereof and distribute the proceeds among the stockholders. Verplank v. Mercantile Insurance Co. of New York, 2 Paige, 438. But a receiver appointed on the application of a judgment creditor under § 36, 2 R. S. 463, entitled "Of proceedings against corporations in equity," has no other powers than receivers in ordinary creditors' suits, and is under the authority of the court. id. Mann v. Pentz, 3 N. Y. (3 Comst.), 423; Matter of Globe Insurance Co. 6 Paige, 102. See Dambman v. Empire Mill, 12 Barb. 341; Matter of Van Allen, 37 Barb. 225; Bangs v. Duckinfield, 18 N. Y. (4 Smith), 592. In making such appointment, the supreme court acts as one of general jurisdiction, and not as exercising a statutory power. Ib. Security should be required of a receiver appointed under the Laws of 1853, ch. 466, § 24, to close the business of a fire insurance company. Case of Mechanics' Fire Insurance Co. 5 Abb. 444. The receiver of an insolvent mutual insurance company is entitled to commission on the whole amount of the premium notes. Van Buren v. Chenango County Mutual Insurance Co. 12 Barb. 671. Receivers of an insolvent corporation in another State, appointed under the laws of such State, may dispose of such corporation's property within this State, and of debts due such corporation from residents of this State. Hoyt v. Thompson, 5 N. Y. (1 Seld.), 320; Rev'g S. C. 3 Sandf. 416. Laws of 1852, ch. 71, relating to receivers, is not unconstitutional in its operation on corporations not before dissolved. Bangs v. Duckinfield, 18 N. Y. (4 Smith), 592. "An act to facilitate the collection of debts against corporations." Laws of 1852, ch. 71; amended 1860, ch. 403. Matter of Campbell, 13 How. 481. As to a receiver in an action by a creditor at large, against a manufacturing corporation, see Galway v. United States Steam Sugar Refining Co. 21 How. 313; S. C. 13 Abb. 211, sub nom. Galwey v. United States Steam Sugar Refining Co.; S. C. Aff'd, 36 Barb. 256. As to a receiver appointed in proceedings supplementary to execution and in an action in the nature of a creditor's bill, see Lent v. McQueen, 15 How. 313; Seymour v. Wilson, id. 355; S. C. 14 N. Y. (4 Kern.), 567. Upon proper application, notice to the parties and proof, the court will award money in the hands of a receiver to the party entitled. Duffy v. Casey, 7 Rob. 79. f. An order to pay the amount admitted to be due.-See Duffy v. Casey, supra. The order will be made, where it appears from the pleadings that the plaintiff deposited money with the defendant, to pay for him to a third party (the defendant being surety for the payment thereof to such third party), which money is in the defendant's possession. Burhans v. Casey, 4 Sandf. 706. So, where part of plaintiff's claim is admitted to be just, although defendant has made an offer in writing to allow judgment for the sum admitted. Meyers v. Trimble, 1 Abb. 220; S. C. Aff'd, 3 E. D. Smith, 607. So where the fund admitted to be due has been brought into court. Merritt v. Thompson, 10 How. 428 S. C. 1 Abb. 223; 3 E. D. Smith, 599. So, also, where a surviving partner admits that he has partnership funds, which, upon his statement, appear to belong to the administrators of his deceased partner, although there are outstanding contested claims against the firm, on the plaintiff giving security to contribute to the payment of such debts. Roberts v. Law, 4 Sandf. 642. The fact that, before answering, defendant offered to allow judgment for the amount admitted to be due, is no reason against making the order. Quintard v. Secor, 3 E. D. Smith, 614; S. C. 1 Abb. 393; Merritt v. Thompson, 3 E. D. Smith, 599; S. C. 1 Abb. 223; 10 How. 428; S. C. Rev'd, 25 How. 592 (n.); Myers v. Trimble, 1 Abb. 220; S. C. 3 E. D. Smith, C07, sub nom. Myers v. Trimble. But, see Smith v. Olssen, 4 Sandf. 711; St. John v. Thorne, 2 Abb. 166; Slawson v. Conkey, 10 How. 57. Where the complaint contains several causes of actions, one of which is admitted, the order will be made. Quintard v. Secor, 3 E. D. Smith, 614; S. C. 1 Abb. 393; Russell v. Meacham, 16 How. 193; Tracy v. Humphrey, 5 How. 155; S. C. 3 Code R. 190. So where defendant makes an offer pursuant to § 385 (not accepted). Dusenberry v. Woodward, 1 Abb. 443. On motion to strike out part of an answer, and for judgment on account of the frivolousness of the remainder, the order may be made. Fosdick v. Groff, 22 How. 158. So where a part of an entire demand, arising on a promissory note, is admitted by the answer, the order will be made and may be enforced as a judgment. Guiet v. Murphy, 18 How. 411. See Baker v. Nussbaum, 1 Hilt. 549; contra, Russell v. Meacham, 16 How. 193. leave to collect the costs of the action in addig. Costs. Where plaintiff applied for tion to the amount admitted to be due, held, such costs are allowable only on recovery of final judgment, and that defendant was not chargeable with costs of the motion. Russell v. Meacham, 16 How. 193. h. Order refused.-An order will not be made unless the answer admits a specific sum to be due. Dolan v. Petty, 4 Sandf. 673. Nor will it be made where defendants, by answer, admit that they have the fund sought by plaintiff, but allege their ignorance as to whether it belongs to him or to a third party, and ask leave to pay it into court. Bender v. Sherwood, 15 How. 258. i. Enforcement of order.-Where the order is personally served, and obedience to it refused, it may be enforced by attachment and punishment as for a contempt, unless some excuse is shown. Meyers v. Trimble, 1 Abb. 399; S. C. Aff'd, 3 E. D. Smith, 607, sub nom. Myers v. Trimble. Inability to pay, unless defendant has volun tarily disabled himself, is an excuse. id Quintard v. Secor, 3 E. D. Smith, 614; S. C 1 Abb. 393. In an action for money only, on contract, it may be enforced by an execution. Russell v. Meacham, 16 How. 193. But i seems that it will not be enforced by attachment in any case, where, on final judgment, there could be no execution against the person., Lane v. Losee, 11 How. 360; S. C. 2 Abb. 129; Duncan v. Ainslie, 26 Barb. 199; Merritt v. Thompson, 3 E. D. Smith, 600; S. C. 1 Abb. 223; 10 How. 428. j. Appeals from orders.-An order for the payment of the amount admitted to be due by defendant's answer, is appealable. Mer ritt v. Thompson, 1 Abb. 223; S. C. 3 E. D. Smith, 600; 10 How. 428. The order appointing a receiver is not appealable. Siney v. New York Consolidated Stage Co. 28 How. 481; S. C. 18 Abb. 435. Nor is the order substituting one receiver in place of another. Ib. SECTION 245. Judgment; what. 246. Judgment on failure of defendant to answer. 247. Judgment on frivolous demurrer, answer or reply. § 245. [201.] Judgment; what. A judgment is the final determination of the rights of the parties in the action. a. Judgment.-The word judgment, as used in §§ 11, 245, 268, and 348, means precisely the same thing in all the different sechons. Lawrence et al. v. The Farmers' Loan and Trust Co. 15 How. 57, 62; S. C. 6 Duer. 689; Hollister Bank of Buffalo v. Vail, 15 N. Y (1 Smith), 594. b. Interlocutory judgment. — The only judgment authorized or permitted by the Cod, is a final determination of the rights of the parties to the action. There can now be no such thing as an interlocutory judgment, in any case. Belmont v. Ponvert, 3 Rob. 696, 698 (n.) c. Contingent judgment.-In an action by judgment creditors to set aside as fraudulent, a transfer of goods and debts, made by the judgment debtor, the character of the debts, the quantity and kind of goods, as well as the amount of the proceeds, should either be proved on the trial, or detern.ined by referee. The court will, in the meantime, render a contingent judgment dependent upon the amount found to be due. Kaupe v. Bridge, 2 Rob. 459. d. Order not necessary. It is not necessary to enter an order of default where the defer lants fail to answer. Watson v. Brigham, 3 How. 290; S. C. 1 Code R. 67. e. Oder may be construed to be a judgment.-An order or decree of the court, entered after trial on a reference, that the plaintif have judgment for a certain sum against the defendant, reserving no further question between the plaintiff and defendant, is to be deemed a final judgment, and not merely an order. Gray v. Cook, 24 How. 432. f. Other State.-A judgment rendered in a court of the United States, or in that of another State, has no other effect in this State than it has in the State where it was rendered. Suydam v. Barber, 18 N. Y. (4 Smith), 468; Rev'g S. C. 6 Duer, 34; Reed v. Girty, 6 Bosw. 567. g. Defendant's death.-Real estate is not bound by a judgment filed and docketed after the decease of the defendant, but it is considered as a debt, to be paid in the usual course of administration. Clark's Case, 15 Abb. 227. A judgment entered against a defendant who dies before the expiration of his time to answer, will be set aside on motion. This was the case even after the expiration of a year from the date of entry. The court has no power to enter judgment against such defendant. Borsdorff v. Dayton, 17 Abb. 36 (n.) h. Regarded as a contract.—A judgment may be regarded the same as a contract within the rules as to joining several causes of action. Barnes v. Smith, 16 Abb. 420; S. C. 1 Rob. 699; Mahaney v. Penman, 4 Duer, 603; S. C. 1 Abb. 34. i. Interest may be computed on every judgment from the time of perfecting it. Johnson v. Tuttle, 17 Abb. 315; Laws of New York, 1844, ch. 324, § 1; Sayre v. Austin, 3 Wend. 496. j. Discontinuance.-A discontinuance is, under this section, a "final determination" of the rights of the parties. Crockett v. Smith, 14 Abb. 62. k. Mortgage-foreclosure.-A judgment rendered in an action to foreclose a mortgage directing sale of the premises, etc. in the usual form, is a final judgment. Morris v. Morange, 38 N. Y. (11 Tiff.), 172; S. C. 4 Abb. N. S. 451; 6 Trans App. 1. 7. Determination on motion.-A determination on a motion under § 247, was held to be a judgment in Roberts v. Morrison, 7 How. 396; S. C. 11 N. Y. Leg. Obs. 61. See in this connection notes to subd. 4, § 307, post. | m. Order of county courts.- An order of the county court dismissing an appeal from a justice's judgment, is a judgment within this section (245) of the Code. Pear son v. Lovejoy, 35 How. 193; S. C. 53 Barb. 407. § 246. [202.] (Am'd 1849, 1851, 1858.) Judgment on failure of defendant to answer. Judgment may be had, if the defendant fail to answer the complaint, as follows: 1. In any action arising on contract for the recovery of money only, the plaintiff may file with the clerk proof of personal service of the sum mons and complaint on one or more of the defendants, or of the summons, according to the provisions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action he shall be entitled to five days' notice of the time and place of such assessment. Where the defendant by his answer in any such action shall not deny the plainiiff's claim, but shall set up a counterclaim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim, over the said counterclaim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counterclaim, which statement shall be annexed to and be a part of the judgment roll; 2. In other actions the plaintiff may, upon the like proof, apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or, if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appear ance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint; 3. In actions where the service of the summons was by publication, the plaintiff may, in like manner, apply for judgment, and the court must there upon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court, touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. I. APPLICATION FOR JUDGMENT, WHERE MADE. a. Mortgaged premises.-A judgment of foreclosure and sale is not inoperative because it was applied for and obtained in a different county from that in which the mortgaged premises are situated. La Farge v. Van Wagenen, 14 How. 54. b. Adjoining county.-See Rule 33, post. c. County designated as place of trial. Where there has been a failure to answer, the application for judgment must be made in the county designated as the place of II. WHEN NOTICE a. Where defendant has appeared in the action.-The plaintiff must give the defendant notice of the execution of a writ of inquiry to assess the damages, on taking judgment upon his failure to answer, in any case in which the defendant has appeared in the action. Kelsey v. Covert, 6 Abb. 336 (n.); S. C. 15 How. 92. b. Demurrer an appearance.-The defendant is entitled to notice of the assessment of damages or of the amount due the plaintiff, in the same manner as if he had given a simple notice of appearance, where he demurs to the complaint, notwithstanding such demurrer is set aside, or held to be frivolous. King v. Stafford, 5 How. 30; Saltus v. Kip, 2 Abb. 382; S. C. 5 Puer, 646; 12 How. 342; Aymer v. Chace, 12 Barb. 301; S. C. 1 Code R. N. S. 141, sub nom. Aymar v. Chase. c. Judgment after answer has been stricken out-In the case of an answer stricken out as sham and irrelevant, the proper practice is to proceed as if default had been made. If the summons demand relief, the defendant is entitled to the usual notice of application for judgment after answer has been stricken out. De Forest v. Baker, 1 Abb. N. S. 35; S. C. 1 Rob. 700. d. Clerk to ascertain amount of recovery. The clerk is to ascertain by the examination of the plaintiff under oath, or | trial. Anonymous, 1 Code R. 82; Warner v. Kenny, 3 How. 323; S. C. 1 Code R. 76. d. Special term.-In actions within the second subdivision of this section, the motion must be made at special, and not at general term. Ryan v. McCannell, 1 Sandf. 709; S. C. 1 Code R. 93; Aymar v. Chace, 12 Barb. 301. e. Chambers.-Rule 5 of 1850, of the superior court, allowed the motion to be made at chambers as well as at the special term. Porter v. Lent, 4 Duer, 671; S. C. 2 Abb. 116. But see the new rules of that court. MUST BE GIVEN. by other proof, the amount the plaintiff is en titled to recover in all actions on contract to recover money only (except actions on an instrument for the payment of money only), where the complaint is not verified. Five days' notice of such assessment is indispensable, if the defendant has given notice of appearance. Cook v. Pomeroy, 10 How. 103. e. Power of the clerk.-In an action to recover a money demand for a sum certain, judgment may be perfected without application to the court; but such application must be made in any other case. Flynn v. Hudson River Railroad Co. 6 How. 308; S. C. 10 N. Y. Leg. Obs. 158; Trapp v. New York and Erie Railroad Co. 6 How. 237. f. Summons not personally served. The clerk cannot enter judgment except upon special order of the court, in a case where summons has not been personally served. Hallett v. Righters, 13 How. 43. Rule 25 of 1858; new Rule 34. g. Notice of assessment.-In a case where the complaint has been duly verified, and seeks the recovery of money only, a party who has not answered, but has appeared, is not entitled to a notice of assessment, but judgment may be entered as of course. Dix v. Palmer, 5 How. 233; S. C. 3 Code R. 214; Southworth v. Curtis, 6 How. 271; S. C. 1 Code R. N. S. 412. As to what is a sufficient notice, see Kelsey v. Covert, 15 How. 92; S. |