Unless it is to be determined that • section 1939, Code of Civil Procedure, denies to a defendant impleaded as a joint debtor, but not summoned in the original action, the benefit of the Statute of Limitations, it seems to me a good defense that this action was not begun within six years after the rendering of the final judgment in the original action, rendered as it was in a court not of record. Code Civ. Pro., § 382, subd.' 7. As was remarked by Earl, J., writing the opinion of the Court of Appeals in Long v. Stafford, 103 N. Y. 274, it may not be easy to answer the question, what “ objections to the judgment ” are reserved to the defendant in section 1939? Taking from him the answer, “ They must at least be legal, valid objections, such as a party to the judgment might make, * * * such objections as go to- the * * * binding efficacy of the judgment.” But it is not to be gainsaid that the “ objection to the judgment ” set up as stated above by this defendant would be a legal, valid objection for Solomon Schatzkin, who was the sole party defendant to the original judgment summoned in that action, had the plaintiff waited until after the lapse of six years from the rendering of that original judgment before beginning the new action ^against him. Moreover, an answer to the question here raised has been indicated in a case arising under section 375 ^f the preceding Code, and of which the section here applicable is in amplification, wherein it was said: “He was under this section at liberty to show that the judgment had been paid or otherwise discharged; and if twenty (here six) years had elapsed, probably the presumption of payment would have applied.” Rapallo, J., in Maples v. Mackey, 89 N. Y. 146.
Judgment reversed and new trial ordered, with costs to appellant to abide event.