CHAPTER XI. JUDGMENTS. TITLE I. JUDGMENT IN AN ACTION. TITLE II-JUDGMENTS TAKEN WITHOUT PROCESS. TITLE III.—VACATING OR SETTING ASIDE A JUDGMENT, FOR IRREGULARITY OR ERROR IN FACT. ARTICLE 1. General provisions. TITLE I. Judgment in an action. 2 Mode of taking, entering, and enforcing a judgment. 3. Docketing a judgment; effect thereof, as a lien upon real property; suspending and discharging the lien; satisfaction and assignment of a judgment. ARTICLE FIRST. GENERAL PROVISIONS. SECTION 1200. Definition of final judgment. ༼༼༢- ༼? *1201. Definition of interlocutory judgment. 1202. When judgment may be entered. 1203. Judgment to be entered at a term held by one judge. 1204. Judgment may be for or against any of the party. 1205. When a several judgment may be taken. 1206. Judgment for or against a married woman. 1207. When judgment for plaintiff not to exceed judgment demanded. 1209. Effect of judgment dismissing the complaint. 1210. Judgment against a dead person. 1211. Judgment to bear interest. § 1200. Definition of final judgment. [AMENDED BY CH. 416 OF 1877.] A judgment is either interlocutory, or the final determination of the rights of the parties in the action. § 1201. [Stricken out by Ch. 416 of 1877.] § 1202. When judgment may be entered. Judgment may be entered in term or vacation. § 1203. Judgment to be entered at a term held by one judge. Judgment must be entered, in the first instance, pursuant to the direction of the court, at a term held by one judge; except where special provision is otherwise made by law. Stricken out by Ch. 416 of 1877. § 1204. Judgment may be for or against any of the parties. Judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side, as between themselves; and it may grant, to a defendant, any affirmative relief, to which he is entitled. § 1205. When a several judgment may be taken. Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment, against one or more of the defendants; and direct that the action be severed, and proceed against the others, as the only defendants therein. § 1206. Judgment for or against a married woman. Judgment for or against a married woman, may be rendered and enforced, in a court of record, or not of record, as if she was single. § 1207. When judgment for plaintiff not to exceed judgment demanded. Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. Where there is an answer, the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint, and embraced within the issue. § 1208. Rate of damages. Where either party is entitled to recover damages, he may recover any rate of damages, which he might have heretofore recovered, for the same cause of action. § 1209. Effect of judgment dismissing the complaint. [AMENDED BY CH. 416 OF 1877.] A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not provent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits. § 1210. Judgment against a dead person. Where a judgment for a sum of money, or directing the payment of money, is entered against a party, after his death, in a case where it may be so taken, by special proVision of law, a memorandum of the party's death must be entered, with the judgment, in the judgment-book, indorsed on the judgment-roll, and noted on the margin of the docket of the judgment. Such a judgment does not become a lien upon the real property, or chattels real, of the decedent; but it establishes a debt, to be paid in the course of administration. § 1211. Judgment to bear i terest. A judgment for a sum of money, rendered in a court of record, or not of record, or a judgment rendered in a court of record, directing the payment of money, bears interest from the time when it is entered. But where a judgment directs that money paid out shall be refunded or repaid, the direction includes interest from the time when the money was paid, unless the contrary is expressed. ARTICLE SECOND. MODE OF TAKING, ENTERING, AND ENFORCING A JUDGMENT. SECTION 1212. Judgment by default, in certain actions on contract; how taken. 1213. Amount of judgment in such cases; how determined. 1214. Application to court for judgment by default; when necessary. 1215. Proceedings on such an application. 1216. Application for judgment, in case of service by publication. 1217. Attachment and undertaking for restitution, required in certain actions. SECTION 1218. When judgment cannot be taken against infant. 1 1219. When a defendant in default is entitled to notice. 1222. Id.; after trial of issue of law only. 1223. Proceedings upon application under the last two sections. 1224. Id.; upon interlocutory judgment, affirmed on appeal to the general term. 1225. Judgment, after trial by jury of specific questions of fact. 1226. Id.; after reference to determine specific questions of fact 1227. Id.; upon motion for new trial, heard at general term. 1228. Id.; upon trial by court or referee of the whole issue of fact. 1229. In matrimonial causes, judgment can be rendered only by the court. 1230. Final judgment upon decision or report awarding interlocutory judgment, etc. 1231. Id.; how final judgment entered and settled in certain cases. 1232. Interlocutory reference or inquisition; how reviewed. 1233. Motion for judgment upon a special verdict, etc. 1234. Id.; upon verdict subject to opinion of court. 1235. Interest on verdict, etc., to be included in recovery. 1236. Clerk to keep judgment-book; judgment to be entered therein. 1237. Judgment-roll to be filed; of what it consists. 1238. Id.; by whom prepared. 1239. Time of filing judgment-roll to be noted. 1240. When a judgment may be enforced by execution. 1241. When a judgment may be enforced by punishment for disobeying it. 1243. Security upon sale by referee. 1244. Conveyance to state name of party. § 1212. Judgment by default in certain actions on contract; how taken. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] In an action specified in section four hundred and twenty of this act, where the summons was personally served upon the defendant, and a copy of the complaint, or a notice stating the sum of money for which judgment will be taken, was served with the summons; or where the defendant has appeared, but has made default in pleading, the plaintiff may take judgment by default, as follows: 1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice, and also proof, by affidavit, that the defendant has not appeared; whereupon the clerk must enter final judgment in his favor. 2. If the defendant has seasonably appeared, but has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance, or of the appearance only, and also proof, by affidavit, of the default; whereupon the clerk must enter final judgment in his favor. If the defendant has made default in appearing or pleading, and the case is not one where the clerk can enter final judgment, as prescribed in either of the foregoing subdivisions of this section, the plaintiff must apply to the court for judgment, as prescribed in section twelve hundred and fourteen of this act. § 1213. Amount of judgment in such cases; how determined. Where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof must be determined as follows: 1. If the complaint is verified, the judgment must be entered for the sum, for which the complaint demands judgment; or, at the plaintiffs option, for a smaller sum; and if a computation of interest is necessary, it may be made by the clerk. 2. If the complaint is not verified, the clerk must assess the amount due to the plaintiff, by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action, stated in the complaint; and by ascertaining, by the examination of the plaintiff, upon oath, or by other competent proof, the amount due to him for any other cause of action, stated in the complaint. If an instrument specified in this subdivision, has been lost, so that it cannot be produced to the clerk, he must take proof its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment, and the oral proof, if any, taken thereupon. § 1214. Application to court for judgment by default; when necessary. [AMENDED BY CH. 416 OF 1877.] Where the summons was personally served upon the defendant, within the State, and he has made default in appearing, or where the defendant has appeared, but has made default in pleading; and the case is not one where the clerk can enter final judgment, as prescribed in the last two sections, the plaintiff must apply to the court for judgment. Upon the application he must file, if the default was in appearing, proof of service of the summons; or, if the default was in pleading, proof of appearance, and also if a copy of the complaint was demanded proof of service thereof, upon the defendant's attorney; and in either case, proof by affidavit, of the default which entitles him to judgment. § 1215. Proceedings on such an application. [AMENDED BY CH. 416 OF 1877.] The court must thereupon render the judgment, to which the plaintiff is entitled. It may, without a jury or with a jury, if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment, or to carry it into effect; or it may, in its discretion, direct a reference, or a writ of inquiry, for either purpose; except that where the action is brought to recover damages for a personal injury, or an injury to property, the damages must be ascertained by means of a writ of inquiry. Where a reference or a writ of inquiry is directed the court may direct, that the report or inquisition be returned to the court for its further action; or it may, in its discretion, except where special provision is otherwise made by law, omit that direction; in which case, final judgment may be entered by the clerk, in accordance with the report of the referee, or for the damages ascertained by the inquisition, without any further application. § 1216. Application for judgment, in case of service by publication, etc. Where the summons was served upon the defendant without the state, or otherwise than personally if the defendant does not demand a copy of the complaint or plead, as the case requires, within twenty days after the service is complete, the plaintiff may apply to the court for the judgment demanded in the complaint. Upon such an application he must file proof that the service is complete, and proof, by affidavit, of the defendant's default. The court nust require proof of the cause of action, set forth in the complaint to be made, either before the court or before a referee appointed for that purpose except that where the action is brought to recover damages for a personal injury, or an injury to property, the damages must be ascertained by means of a writ of inquiry, as prescribed in the last section. If the defendant is a non-resident, or a foreign corporation, the court must require the plaintiff, or his agent or attorney, to be examined on oath respecting any payments to the plaintiff, or to any one for his use, on account of his demand, and must render the judgment to which the plaintiff is entitled. But before rendering judgment the court may, in any case, in its discretion, require the plaintiff to file an undertaking to abide the order of the court touching the restitution of any estate or effects which may be directed by the judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of the judgment, in case the defendant or his representative applies and is admitted to defend the action, and succeeds in his defense. [AM'D BY CH. 582 OF 1895. In effect Sept. 1, 1895.] § 1217. Attachment and undertaking for restitution, required in certain actions. [AMENDED BY CH. 416 OF 1877.] A judgment shall not be rendered for a sum of money only, upon an application made pursuant to the last section, except in an action specified in section 635 of this act. Where the defendant is a non-resident, or a foreign corporation, and has not appeared, the plaintiff, upon the application for judgment in such an action, must produce and file the following papers: 1. Proof, by affidavit, that a warrant of attachment, granted in the action has been levied upon property of the defendant. 2. A description of the property, so attached, verified by affidavit; with a statement of the value thereof, according to the inventory. 3. The undertaking mentioned in section 1216, if one has been required. § 1218. When judgment cannot be taken against infant. [AMENDED BY CH. 542 OF 1879.] A judgment by default shall not be taken against an infant defendant, until twenty days have expired since the appointment of a guardian ad litem for him. § 1219. When a defendant is entitled to notice. [AMENDED BY CH. 542 OF 1879.] A defendant, against whom judgment is taken, pursuant to the foregoing sections of this article, is entitled to notice as follows: 1. If he has appeared generally, but has made default in pleading, he is entitled to at least five days' notice of the time and place of an assessment by the clerk, and to at least eight days' notice of the time and place of an application to the court for judgment. 2. In a case where an application for judgment must be made to the court, the defendant may serve upon the plaintiff's attorney, at any time before the application for judgment, a written demand of notice of the execution of any reference, or writ of inquiry, which may be granted upon the application. Such a demand is not an appearance in the action. It must be subscribed by the defendant, in person, or by an attorney or agent, who must add to his signature his office address, with the particulars, prescribed in section four hundred and seventeen of this act, concerning the office address of the plaintiff's attorney. Thereupon at least five days' notice of the time and place of the execution of the reference, or writ of inquiry, must be given to the defendant, by service thereof upon the person, whose name is subscribed to the demand, in the manner prescribed in this act, for service of a paper upon an attorney in an action. § 1220. When action may be severed, if issues of law and issues of fact presented. Where an issue of law and an issue of fact arise, with respect to different causes of action, set forth in the complaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejudice to either party in maintaining the action, or a defence or counter-claim, with respect to the other causes of action, or in the recovery of final judgment upon the whole issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the case requires. $1221. Judgment how taken, after trial of issues of law and issues of fact, in the same action. [AMENDED BY CH. 416 OF 1877.] Where one or more issues of law, and one or more issues of fact, arise in the same action, and all the issues have been tried, final judgment upon the whole issue must be taken as follows: |