106 N.Y.S. 273 | N.Y. App. Div. | 1907
The facts which are deemed important in the' consideration of this appeal are not in dispute. The plaintiff recovered a judgment against the defendant in the Municipal Court of the city of New York, in the borough of Bichmond, on the 14th day. of April, 1905, for seventy-six dollars and forty-three cents’, a transcript of which judgment was filed and the judgment' docketed in the office of the clerk of the county of Bichmond on the 29th day of April, 1905. On May 31, 1905,' execution was duly issued upon the judgment to the sheriff of the county of Bichmond, who, finding no personal or real property, returned it wholly unsatisfied in July of that year.' Supplementary proceedings were then instituted against the defendant; fifty dollars was paid on account of the-judgment, and thereafter, on the 12th day of July, 1906, a second execution was issued on the judgment and delivered to the sheriff of the county of Bichmond. On that day the sheriff gave notice of' the-sale of real property ownéd by the defendant, in which he stated that “I will sell at public auction, at the Village Hall, Stapleton, in the borough of Bichmond, New York City, on the 29th day of August, 1906, at ■12 o’clock noon of that day, all the right, title and interest of Edna Bell which she had on the 14th day of April, 1905, or at any time thereafter, of, in and to ” the real property owned by the defendant and described in tffp notice of sale. The sheriff started the'publication of the notice, posted it and mailed a copy to the defendant. Between the 14th day of April, 1905, the time when the judgment was rendered, and the 29th day of April,'1905, the time when the transcript was filed and the judgment docketed in the office of the
The order' should be reversed and the motion granted. The 1 Municipal Court of the city of New York is a court not of record (Code Civ. Proc. §§ 2, 3; Laws of 1897, chap. 378, §§ 1350, 1351; Laws of 1901, chap. 466, §§ 1350, 1351), and a judgment rendered by that court does not become a lien, upon the real property of the judgment debtor until the judgment is docketed in the .office of the clerk of the county wherein is situate such real property or chattels real. (Mun. Court Act [Laws of 1902, chap. 580], § 263.)
■The judgment in this casé, rendered on the 14th day of April, 1905, did not become a lien upon the ■ property described in the notice of sale, until it was docketed in the office of the clerk of the county of Richmond on the 29th day of April, 1905, and so far as appears from the undisputed facts in the record before us, by reason of the mortgage to Homes, the judgment debtor’s interest in the property on the twenty-ninth day of April was less than on the fourteenth day of April. The second execution.issued upon this judgment complied with the provisions of section 1369 of the Code of Civil Procedure and commanded the sheriff to satisfy the- judgment out of the- real property belonging to the judgment debtor at the time when the judgment was docketed in the office of the clerk of the county of Richmond or at any time thereafter. Disregarding this mandate, the sheriff gave notice that he would sell such
The -order should, therefore, be:'reversed,- "witli ten dollars- costs and disbursements, and the motion granted, with ten dollars costs.
Jerks, Gaynor, Rich and Miller, JJ., concurred..
-Order reversed, with ten - dollars costs and disbursements, and motion granted, with ten dollars costs,