Agar v. Curtiss

40 N.Y.S. 815 | N.Y. App. Div. | 1896

Hardin, P. J.:

It was the duty of the justice of the peace to furnish a transcript of the judgment. (§ 3017, Code Civ. Proc.)

It was the duty of the county clerk of Wyoming county to file the same and docket the judgment “as of the time of the receipt of the transcript in the book kept by him for that purpose.” He performed that duty in pursuance of section 3017 of the Code of Civil Procedure as it existed January 3, 1888. That section then provided, viz.: “ Thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly.”

In 1891 section 3017 of the Code of Civil Procedure was amended so that the county clerk was authorized to file the transcript and docket the judgment “if within six years after the rendering thereof.” It is to be observed that that limitation was not in the. section at the time the transcript was filed and the judgment docketed, to wit, January 3, 1888. It is further provided in section 3017 of the Code that, after filing and docketing, viz.: “ Thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly. * * * ”

Notwithstanding the provision we have just quoted, it was held in Dieffenbach v. Rock (112 N. Y. 621; S. C., 21 N. Y. St. Repr. 570; S. C., 16 Civ. Proc. Rep. 172) that an action may not be' brought upon such a judgment after six years from the time of its rendition. It has been held in several cases that, under the law as it was prior to the amendment of 1894, an application for leave to issue execution might be granted. (See §§ 1251, 2435, Code Civ. Proc.; In re Hallock's Est., 29 N. Y. Supp. 555 ; Waltermire v. Westover, 14 N. Y. 16; Johnson, as Receiver, v. R. R. Co., 54 id. 416; Kincaid v. Richardson, 25 Hun, 237; Herder v. Collyer, 6 N. Y. Supp. 513; Green v. Hauser, 9 id. 660 ; Bolt v. Hauser, 10 id. 397; S. C. affd., 57 Hun, 567; Brown v. Hyman, 27 N. Y. Supp. 436; Townsend v. Tolhurst, 57 Hun, 40 ; I. & T. Nat. Bank v. Quackenbush, 1 N. Y. Annotated Cases, 20.)

Dmidson v. Horn (47 Hun, 51) differs from the case in hand, as the transcript was filed and the judgment docketed in the County Court more than six years after the rendition of the judgment; and in the course of the opinion it was said: “ The right of the judgment debtor to avail himself of the Statute of Limitations as a bar became perfect before the transcript was filed with the clerk. And that right was a vested one which could not be defeated even by subsequent legislation. * * * And it is difficult to see how the defendant could be divested of such right by the act of filing the transcript and docketing the judgment at the instance of the judgment creditor, inasmuch as the statute does not declare that it may be done after the time such right has accrued to the judgment debtor.”

Following the cases cited they lead to an affirmance of the order.

All concurred.

■Order affirmed, with ten dollars costs and disbursements.