Kopper v. Howe

An action cannot be brought on a judgment rendered in one of the District Courts of this city, without leave of the court, (Mills v. Winslow, 2 E. D. Smith, 18, Thomas v. Sutphen, Id. 537), where the parties are the same; but where the action is not between the same parties, it may be brought without leave of the court. Tuffts v. Brainard (1 Abb. 84,) approved Wheeler v. Dakin, (12 How. Pr. R. 540), and relied on McButt v. Hersch, (4 Abb. 441.) Section 41 of the Code prohibits the action on a judgment where it is between the same parties, and there is nothing in the section relating to leave to be obtained, which will justify the enlargement of the prohibition, so as to embrace actions not between the same parties. No right *70of action is taken away by section 71, ancl the assignee’s right to sue, resulting from his assignment, is not restricted by any provisions of the Code, except those providing for the time of commencing actions, §§ 74, 90.

Judgment affirmed.