96 N.Y.S. 331 | N.Y. App. Div. | 1905
The plaintiff, as assignee of Louis Siff, Max Siff and' Moses L. Siff, composing the firm of Louis Siff & Brothers, brought an action in the Municipal Court for the seventh district, borough of Manhattan, against the defendant to recover the sum of $72 for its alleged failure as a common carrier to transport and deliver within a reasonable, time certain merchandise. Such proceedings were had that the defendant obtained judgment for costs against the plaintiff taxed at $111.30. The judgment was-docketed in the office of the clerk of the Municipal Court and the time for plaintiff to appeal has expired. A transcript of said judgment, was filed and said judgment was docketed in the FTew York county clerk’s office; thereafter an execution was issued .and execution returned unsatisfied. This proceeding was instituted against the assignors of said claim to charge them with the costs under section 3247 of the Code of Civil Procedure, which provides-: “ Where an action is brought in the name of another by a transferee of the cause of action, or by any other person, who is beneficially interested therein; * * * the transferee or other person so interested is liable for costs in the like cases and to tile same extent as if he was the plaintiff ; and where costs are awarded against the plaintiff the court may by order direct the person so liable to pay them.” The proceeding resulted in the order appealed from, which inter alia provides: “ That said Louis Siff, Max Siff and Moses L. Siff, composing the firm of Louis Siff & Brothers, as the persons who brought the aforesaid action entitled Philip Friedman, plaintiff, against Metropolitan Steamship Company, defendant, and as the persons who were bene-. ficially interested in the recovery therein, be and they each are hereby directed to pay * * * the costs recovered * * * against * * * the plaintiff in the aforesaid action, amounting to the sum of $111.30. *.* *”
• Upon the merits, namely, that the appellants were the persons who were beneficially interested in said suit, the evidence fully sustains the action of the learned court in making the order at bar. It
By section 261 of the Municipal Court Act (Laws of 1902, chap. 580), upon the docketing of the judgment of the Municipal Court upon the transcript in the county clerk’s office, “ thenceforth the judgment is deemed a judgment of the Supreme Court and maybe enforced accordingly.” • The proceeding is a special proceeding founded upon the statute, summary in its nature and properly commenced by. notice or order -to show cause. (Marvin v. Marvin, 78 N. Y. 541.) It has for its basis the judgment awarding costs against the plaintiff. It, therefore, is a proceeding to enforce the judgment; and as the judgment is now a statutory judgment of the Supreme Court,, this court, and not the Municipal Court, has jurisdiction of this special proceeding. As a statutory remedy to ■ collect the amount found due by the judgment by seeking-to have substituted •for the nominal party the real parties in interest, it is analogous to the other special proceedings after judgment of which upon docketed Municipal Court judgments this court has been held to have jurisdiction. ■ • '
There • is, however, one objection urged which is of weights In pleading or proving a judgment of a. court of limited or special jurisdiction, the facts necessary to confer jurisdiction to render the judgment must be fully set forth, or every fact necessary to confer jurisdiction to render judgment in ’the action must be recited. Section 532 of. the Code of Civil Procedure allows an alternative: “ In pleading a judgment or Other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring ■ jurisdiction; but the judgment or determination maybe stated to have been duly given or made.” The moving papers do not set forth the necessary jurisdictional facts, nor do they comply with the Code provision cited. In Werbelovsky v. Michael (106 App. Div. 138) the learned Appellate Division in. the second department set ■ aside an injunction in. a judgment creditor’s action ilpon a Municipal Court • judgment upon this precise point,, stating: “ The mere fact that a judgment was rendered in the Municipal Court in his favor and against said defendant does not establish his right to maintain the action.and there is no presumption that the court had jurisdiction.” (Citing Frees v, Blyth, 99 App. Div. 541'.)
O’Brien, P. J., Patterson, Ingraham and. Houghton, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, with leave to renew.