and 132 New York State Reporter There remains one further consideration. As stated in O'Donoghue v. Boies: "There is but one solitary exception to this rule, and that is in a case where jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favor of the party who avers jurisdiction. There the question of jurisdiction is judicially decided, and the judgment record is conclusive on that question until set aside or reversed by a direct proceeding. Ferguson v. Crawford, 70 N. Y. 265, 26 Am. Rep. 589." The record in the annulment suit shows that witnesses were called for the plaintiff and examined upon the question of the service of the summons. I do not think that fact brings the case within the exception. It was a trial on default. There was no appearance, no answer, no witnesses for the defense, and no cross-examination. I do not think the fact was "litigated" within the meaning of the rule. If so, it would have been a "litigated fact" upon the affidavit of service alone, and hence the question could never arise in a collateral proceeding. It follows that the order appealed from should be affirmed, with costs. All concur. (112 App. Div. 302) BROWN et al. v. FAILE et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) MORTGAGES-DEFICIENCY JUDGMENT-DOCKETING OF JUDGMENT-TIME. Though a deficiency judgment in mortgage foreclosure was not docketed for 10 years after the filing of the judgment roll, the lapse of time was no ground for a cancellation of the docket. [Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, § 1006.] Appeal from Special Term, Westchester County. Action by Annie Wilmerding Brown and another against George E. Faile and others. From an order denying a motion for an order to cancel the docket of a deficiency judgment, defendant George E. Faile appeals. Affirmed. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, and RICH, JJ. John J. Crawford, for appellant. Stephen O. Lockwood, for respondents. HIRSCHBERG, P. J. This action was brought in the year 1892 to foreclose a mortgage upon real estate in the county of Westchester. It resulted in a judgment of foreclosure and sale duly entered on the 7th day of January, 1893, which provided in the usual form, among other things, that the appellant should pay any deficiency which might result from the sale, and that the plaintiffs should have execution therefor. The sale occurred on the 27th day of May, 1893, and resulted in a deficiency of $4,770.82. The referee's report of sale, showing the deficiency, was made on the 26th day of June, 1893, but the report was not filed until the 8th day of July, 1905, on which day the judgment was docketed. It appears that the delay was caused by the fact that immediately or shortly after the judgment of foreclosure and sale was obtained the plaintiffs were engaged in litigation with their attorney, which resulted in his removal, and the substitution of other attorneys in his place, and that the former attorney had not paid the referee's fees or taken up his report, and the substituted attorneys were unable to get the report from the referee until the month of March, 1897, when it was delivered to them, and by them through inadvertence placed with the papers in the case in their office, where it remained until it was finally filed. In Moore v. Shaw, 15 Hun, 428, it was held that, where a judgment in an action to foreclose a mortgage provides for the payment of a deficiency by the defendant, it is unnecessary to confirm the referee's report before issuing an execution, or to enter any further judgment upon the filing of the report. In that case a motion to set the deficiency judgment aside as irregular was denied. An appeal to the Court of Appeals was dismissed (Moore et al. v. Shaw, 77 N. Y. 512), the court declining to consider the question whether the practice was regular, but stating (page 513) that: "It is sufficient that the alleged error, at most, is a mere irregularity, based upon a rule of practice, and not upon any positive statute, and that the defendant has not been in any way prejudiced." In Evans v. Cleveland, 72 N. Y. 486, the court, intimating that the same rule applies in legal and equitable cases, held that in a legal action commenced before it was barred by any statute of limitations no lapse of time will defeat an application for its continuance in the name of a representative of a deceased party, and no statute of limitation will bar a recovery. The appellant claims that the object of docketing the judgment is twofold: First, that an execution may issue; and, second, that the judgment may become a lien. He admits that the plaintiffs were not entitled to issue an execution as of right, but claims that the judgment now docketed could not become a lien, for more than 10 years have elapsed since the filing of the judgment roll. Assuming that he is right in his contention, I cannot see that he has any grievance under the circumstances, as the only result of the delay would be to deprive the plaintiffs of a lien for the deficiency which they might have acquired by a timely docketing. There is concededly no statutory limitation for the docketing of a deficiency judgment. There is no authority for the judicial creation of such limitation. The appellant has not been prejudiced in any manner by the delay of the plaintiffs in the enforcement of their claim against him. The order should be affirmed. Order affirmed, with $10 costs and disbursements. All concur. (112 App. Div. 299) BRINK v. STRATTON et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) BILLS AND NOTES-PAYMENT-SUBSTITUTION OF NOTES. Where the payee of a note signed by three persons agreed to accept in payment a note signed by only one of the signers of the original note, this agreement was based upon a suflicient consideration. [Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 1252.] and 132 New York State Reporter Appeal from Orange County Court. Action by Leander Brink against William D. Stratton and others. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, RICH, and MILLER, JJ. John F. Bradner, for appellant. Thomas Watts (Abram F. Servin, on the brief), for respondents. JENKS, J. This action is upon the following note: "$850.00 Middletown, N. Y., July 1st, 1893. "On demand, we or either of us promise to pay to the order of Leander Brink eight hundred and fifty dollars at his office, value received, with interest from date. "W. D. Stratton, Of the three makers sued, Stratton and Brown answered. The learned county judge restricted them to their defense of payment. This was based upon the contention that the plaintiff expressly agreed to accept in payment of the note in suit the following note, made by Corey & Co., who were of the makers of the first note: "$850.00 Middletown, N. Y., Aug. 4th, 1893. "Three (3) months after date we promise to pay to the order of John E. Corwin eight hundred and fifty dollars, payable at the banking house of John E. Corwin, Middletown, N. Y., for value received, with interest. Indorsed] Leander Brink." "Corey & Co. The plaintiff indorsed and discounted the second note, but it was not paid by Corey & Co. The question of the express agreement between the plaintiff and Corey & Co. was submitted to the jury under instructions that, if they found it was made, and the note given and accepted thereunder, there was no liability of the defendants Stratton and Brown upon the note in suit. The jury gave its verdict for the defendants. We think that the evidence is sufficient to sustain the verdict. The learned counsel for the appellant now first raises the question that, even if this agreement were made, the verdict cannot stand in law. Notwithstanding that the question is first raised here, I shall consider it. The argument of the learned counsel for the appellant is that the agreement was nudum pactum, inasmuch as one of several debtors simply gave his note for the note which he executed with others. This contention is accompanied with the citation of cases. Many of them are enumerated and discussed in the note to the text of Parsons on Bills and Notes (vol. 2) p. 159. The plaintiff before or on the day of the giving of the second note could have enforced the first note. Acceptance by express agreement of the second note in payment of the first note suspended the plaintiff's power to enforce the debt for three months from the date of the second note. I think that this is sufficient to support the express agreement. See Plearis v. Van Heirop, 3 Burr. 1663, 1672, 1673, approved in Seaman v. Seaman, 12 Wend. 381, which is cited in turn in 2 Kent's Com. (14th Ed.) 465; Whelan v. Swain, 132 Cal. 390, 64 Pac. 560. The plaintiff in payment of the first note, which was then due as a demand note, took the second note, whereby he forebore to enforce the debt for three months from its date. This was a different instrument from that which he held. See Thompson v. Percival, 5 B. & A. 933. Moreover, in Sheehy v. Mandeville, 6 Cranch (U. S.) 264, 3 L. Ed. 215, Marshall, C. J., says: "That a note without a special contract would not, of itself, discharge the original cause of action, is not denied. But it is insisted that if, by express agreement, the note is received as payment, it satisfies the original contract, and the party receiving it must take his remedy on it. This principle appears to be well settled. The note of one of the parties or of a third person may, by agreement, be received in payment. The doctrine of nudum pactum does not apply to such a case, for a man may, if such be his will, discharge his debtor without any consideration." See, too, in comment, Arnold v. Camp, 12 Johns. 410, 7 Am. Dec. 328, and Waydell v. Luer, 3 Denio, 419. We cannot inquire into the quantum of the consideration. Oakley v. Boorman, 21 Wend. 588; Ludington v. Bell, 77 N. Y. 141, 33 Am. Rep. 601. In Bates v. Rosekrans, 37 N. Y. 410, the court say: "That the giving of a new note by one of two joint and several makers, intended as a provision for the payment of a former note, not agreed to be taken in payment, and not in fact paid, constitutes no defense to an action upon the original note, is well settled. The principle is quite familiar, and of frequent occurrence. Highland Bank v. Dubois, 5 Denio, 558; Cole v. Sackett, 1 Hill, 516; Smith v. Rogers, 17 Johns. 340." This is recognition of the principle invoked by the defendants. concur. (112 App. Div. 283) PHILLIPS v. LINDLEY. All (Supreme Court, Appellate Division, Second Department. April 20, 1906.) 1. GUARANTY-DISCHARGE OF GUARANTOR-DILIGENCE OF CREDITOR. Where plaintiff purchased a note from defendant, who executed a writing to the effect that, in consideration of the purchase, he agreed to collect the note without expense to plaintiff, the guaranty was one of collection, not payment, and it was incumbent on plaintiff to show due diligence against the principal before he could hold defendant. [Ed. Note. For cases in point, see vol. 25, Cent. Dig. Guaranty, §§ 37, 78.] 2. SAME-INSOLVENCY OF PRINCIPAL. The insolvency of the principal was no excuse for plaintiff's failure to endeavor to recover from him. [Ed. Note. For cases in point, see vol. 25, Cent. Dig. Guaranty, § 80.] 3. SAME-BREACH OF CONDITIONS. Defendant, a dealer in commercial paper, agreed to collect a note without expense to plaintiff, who purchased it, and in an action on the agreement defendant contended that plaintiff had failed to show a breach of the contract, in that he had not sent the note to defendant, demanded defendant's services, and been refused. It appeared that plaintiff had several interviews with defendant after the note became due, and that defendant told plaintiff that the note would be looked after, and that during legal proceedings by plaintiff to recover on the note from the maker defendant said that plaintiff should resort to the maker first, and that defendant "would take care of him." Held, that there was a waiver by defendant of any formal demand. and 132 New York State Reporter 4. SAME-EXTENSION OF TIME FOR PAYMENT. Where defendant, a dealer in commercial paper, in consideration of the purchase of a note by plaintiff, agreed to collect the same, and thereafter he wrote plaintiff that the maker could use the money for a longer time, and that the maker would pay interest, and asking to be advised as to plaintiff's inclination, defendant was liable on his guaranty notwithstanding an extension of time granted by plaintiff. 5. EVIDENCE-JUDICIAL NOTICE. On appeal the court will take judicial notice that a certain place is a city and the county seat of a certain county in another state. [Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 31-33.] 6. GUARANTY-Discharge OF GUARANTOR-DILIGENCE. Plaintiff purchased a cognovit note executed by a corporation and its directors, payable at the office of the corporation in a certain county, and defendant guarantied the collection. When the note fell due, plaintiff entered judgment in the county where the note was payable, and caused executions to be issued there and in other counties against all the defendants, which executions were returned unsatisfied. Defendant claimed that the corporation received a sum of money from fire insurance, and that plaintiff should have realized from it, but it did not appear that defendant ever informed plaintiff as to how plaintiff could realize, and it appeared that at the time the judgment was recovered the corporation and all the directors were insolvent. Held, that defendant was not relieved from liability on the ground of lack of diligence on the part of plaintiff. 7. SAME-PAYMENT-EVIDEence. Defendant guarantied the collection of a cognovit note executed by a corporation and its directors, which was purchased by plaintiff. Plaintiff caused judgment to be entered on the note, and thereafter, in an action by plaintiff on the guaranty, it appeared that the owner of another judg ment sued in a federal court to set aside certain deeds, executed by one of the directors, making plaintiff in the action on the guaranty a defendant, and that he filed a cross-bill, uniting in the prayer of the complaint, that in the action in the federal court the same attorney appeared for plaintiff in that action and for plaintiff in the action on the guaranty, and that the whole amount recovered was directed to be paid to the attorneys for the various parties as their attorneys' fees and costs, as a result of which plaintiff in the action on the guaranty received no part of his note. The attorney in question was paid $1,500 out of a total recovery of $6,000. Plaintiff in the action on the guaranty in the federal court sued on a judgment of $2,500, but the judgments of the various creditors represented amounted to nearly $50,000, and they were all anterior to plaintiff. Held, that a contention on the part of the guarantor that he should have been credited with $1,500 as against his liability was without merit. & EVIDENCE-JUDICIAL ADMISSIONS-DEPOSITIONS. Where on an issue as to limitations the question was as to the resi dence of defendant at certain times, his statements in depositions taken in judicial proceedings were admissible as admissions. [Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 730736.] 9. LIMITATION OF ACTIONS-BURDEN OF PROOF. Code Civ. Proc. § 401, relative to limitations, provides that when a cause of action accrues against a person without the state the action may be commenced within the time limited therefor after his return into the state. Held that, where there is evidence that when the cause of action accrued defendant was without the state, the burden of showing the time of his residence in the state is on him. [Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 713, 714.] |