Bolt v. Hauser

11 N.Y.S. 366 | N.Y. Sup. Ct. | 1890

Macomber, J.

The judgment upon which the proceedings for the appointment of a receiver were founded was recovered in a court of a justice of the peace on the 31st day of March, 1880, a transcript of which judgment was filed in the Erie county clerk’s office on the same day. An execution was duly issued upon the judgment by the county clerk, and was returned unsatisfied, April 6, 1887, whereupon proceedings supplementary thereto were instituted, which resulted, on the 19th day of September, 1887, upon due notice to the defendant, and on the appearance of himself and his attorney at the hearing of such motion, and without objection on their part, in the appointment of Mr. Green as the receiver of the defendant’s property. The motion now made is to set aside the appointment of such receiver, and the same is placed upon the ground that, inasmuch as six years had elapsed between the rendition of the judgment and the motion for the appointment of the receiver, the judgment had become inoperative and ineffectual to support any subsequent legal proceedings thereon. By the Revised Statutes (2 Rev. St. p. 247, §§ 127,128,) a transcript of a judgment of a justice of the peace for $25 and upwards, exclusive of costs, could be filed, and the judgment docketed in the clerk’s office of the county. It was provided that the judgment, after being so filed and docketed, “shall be alien on the real estate of the defendant, within the county, in the same manner and with like effect as if such judgment had been rendered in the court of common pleas, and may in the same manner be discharged and canceled.” It was further provided that all actions on judgments rendered in any court, not being a court of record, should be commenced within six years next after the cause of action accrued. Id. p. 295, § 18. The Code of Procedure, however, wrought a material change in these provisions of the Revised Statutes. By section 63 thereof, where a judgment was recovered in a justice’s court for any amount, a transcript thereof could be filed, and the same could be docketed in the county clerk’s office, and from that time the judgment was a judgment of the county court; but such judgment for a sum less than $25, exclusive of costs, was not a lien on or enforceable against real property. Section 90 of that Code permitted an action upon a judgment or decree of any court of the United States, or any state or territory within the United States, to be begun within 20 years after its rendition. Section 3017 of the Code of Civil Procedure has.substantially the same provision as existed under the Revised Statutes in this regard. It provides that a transcript of any judgment rendered in a justice’s court for any amount may be filed in the county clerk’s office, and that “thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly, except that an execution can be issued thereupon only by the county clerk, as prescribed in section 3043 of this act, and that the judgment is not a lien upon, and cannot be enforced against, real property, unless it is for $25 or more, exclusive of costs.” By subdivision 7, § 382, Code Civil Proc., an action upon a judgment or decree rendered in a court not of record must be brought within six years from its rendition. In the case of Dieffenbach v. Roch, 112 N. Y. 621, 20 N. E. Rep. 560, it was held that, upon the docketing of the justice’s judgment in the county clerk’s office, the same became a statutory judgment of the county court, yet it was not a judgment rendered in that ■court, and that an action upon such judgment to compel a set-off of the same against a judgment of a court of record could not be maintained, unless the same be brought within six years from the time the same was rendered in the court of the justice of the peace. But we do not understand that case to hold that no proceedings can be had for enforcement of the debt represented by a judgment recovered before a justice, where the same were not begun within six years from the time of the recovery of the judgment. There is nothing in that decision which detracts from the authority of the case of Waltermire v. Westover, 14 N. Y. 16, where it is held that the filing of a transcript and docketing of a judgment rendered by a justice of the peace pursuant to the Revised Statutes rendered it a lien on the real estate co-extensive in time with judgments recovered in the court of common pleas, and that, though an action on such judgment was barred after six years, such statute of limitations did not extinguish or destroy the lien of such judgment when the same liad been duly docketed in the county clerk’s office. That decision was given under the provisions of the Revised Statutes, which, as has been pointed out above, are substantially the same as the present Code of Civil Procedure, and that authority is consequently our guide in rendering the result on this appeal. Furthermore, we held in the case of Townsend v. Tolhurst, decided April 11, 1890, and reported in 10 N. Y. Supp. 378, that a judgment creditor, upon application duly made to the county court, might obtain leave to issue execution on a justice’s judgment so filed and docketed, though more than six years “had elapsed after the filing of the same in the county clerk’s office. Kincaid v. Richardson, 25 Hun, 237; Rose v. Henry, 37 Hun, 397. See, also, Herder v. Collyer, 6 N. Y. Supp. 513. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.