Majority
p. 226BARTELS v. CUNNINGHAM. N. Y. Common Pleas; Special Term, June, 1880.
Headnote
Execution.An execution issued to the sheriff on a judgment recovered against a city marshal, in a district court, and a transcript of which has been filed with the county clerk, must be returned to the clerk of the * court of common pleas and not to the county clerk.[1]
William Bartels recovered a judgment in the first judicial district court against Thomas Cunningham, a marshal of the city of New York, for the sum of $119.90, for an unlawful levy. Transcripts of the judgment were filed with the clerk of the court of common pleas and also with the county clerk. Execution was issued on said judgment out of the court of common pleas to the sheriff of the city and county of New York, and made returnable to the clerk of the court of common pleas. The sheriff returned the execution to the clerk of the city and county of New York, and refused to return same to the court of common pleas, claiming that section 1,367 of the Code of Civil Procedure repealed the act of 1862, and that all executions issued to the sheriff on district court judgments were returnable to the county clerk under the New Code. The plaintiff thereupon applied to the court on motion to compel the sheriff to return the execution to the clerk of the court of common pleas.
George U. Kracht, for the motion.
Malcolm Graham, for sheriff, opposed.
The bonds of city marshals are filed with the court of common pleas. Where a judg
p. 227
menfc is recovered against a marshal and his sureties, it is the duty of the clerk to indorse on the marshal’s bond a memorandum of the amount, and to credit each surety with the amount paid on account of such judgment. Where the amount of judgments recovered against a marshal and his sureties is equal to the amount of his bond, it is the duty of the clerk of the court of common pleas to notify the mayor of the fact, that the marshal may be removed, or at least suspended, if he does not then, on being requested, file a new bond. These duties are devolved upon the clerk of the court, and it is necessary for their performance that he should have possession of the documents which show whether or not a marshal should be required to furnish a new bond. These considerations led to the enactment of the act known as chapter 484, Laws of 1862, which provides a system complete in itself, adapted especially to the city of New York, and intended for the security of suitors in district courts of the city. The act of 1862 is a local act, passed for a particular purpose, and, therefore, was not repealed by the general language of section 1,367 of the Code of Civil Procedure, which contains no evidence of an in-, tent to abrogate it. The rule applicable to the construction of statutes under consideration is Stated by the court of appeals in the Matter of the .Commissioners of Central Park (50 N. T. 497), and in People v. Quigg ( 59 N. Y. 83 ).
It is this:—“A special and local statute, providing for a particular class of cases, is not partially repealed or amended in some of its provisions by a statute general in its terms, provisions and applications, unless the intention of the legislature to repeal or alter the particular law is manifested, although the terms* of the general act would, taken strictly, and but for the special law, include the case provided for by it.”
p. 228
The execution should be returned to the clerk of the court of common pleas.
Cases cited
- People v. Quigg 59 N. Y. 83 p. 227