Hyperlawhypertext legal database Becker v. Porter 17 A.D. 183

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Becker v. Porter

17 A.D. 183 Court N.Y. App. Div. English

Delivered by Herriok, J.:

Contents

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p. 183
Charles H. Becker, Respondent, v. John W. Porter, Appellant.

Headnote

An execution may be issued upon a justices judgment after a ■lapse of time which prohibits a suit thereon.
The provisions of the Statute of Limitations prohibiting the commencement of an action upon a judgment of a justice of the peace after the expiration of six years, as they existed prior to the amendments to sections 382 and 3017 of the Code of Civil Procedure, by chapter 307 of the Laws of 1894, do not impair the obligation of the judgment, and are only effectual to cut off the remedy of suing upon it; they do not interfere with any other remedy given by statute to enforce the obligation thereof, such as the right to apply to the County Court for leave to issue an execution thereon.
Appeal by the defendant, John W. Porter, from an order of the County Court of Fulton county, entered in the office of the clerk
p. 184
off the/county of Fulton on the 24th day of December; 1896, granting..leaye to the plaintiff to issue an execution, . ...
7 '-0,n the 25th day. of November, 1887,. a judgment was rendered in the: Justices’. Court of the town Of Johnstown,.Fulton county j FL Y.,'. in favor 'of the plaintiff and .against the defendant, for the sum: of §148.60, and a'transcript thereof was duly filed and said judgment" docketed in the - clerk’s office on the 25th' day-, of October, 1893.'.' On the 7th day of December, 1896,.-upon- application by the plaintiff, the County Court, made' an -order granting leave to the plaintiff tó issue an . execution upon . said judgment, - from which order this appeal is taken., ■ . ■ •
Horton D. Wright, for the appellant.
G. M. Pcvrke, for the! respondent.

- Under - section 1377- of the Code of Civil Procedure, the .court may grant, leave, -to issue, an. execution upon a judgment after the expiration of five years from its rendition.

This appeal must be determined under the provisions of the-Code as they existed prior to the amendments to - sections '382 and' 3017 by chapter. 307 of the Laws of 1894. Under the law as.it. then was^. no action could - be brought upon a judgment of a Justice’s Court after the expiration of six years from its rendition by, the- -justice. (Dieffenbach v. Roch, 112 N. Y. 6 .21.)

' The appellant contends that the Statute of Limitations having run against said judgment so as to prevent the commencement of an action thereupon, that the judgment has become dead, and ineffective, and that there is no* authority to issue an execution thereon.

It has heretofore been -held that the Statute -of Limitations acts-simply upon the remedy, but does not impair the obligation. (Waltermire v. Westover, 14 N. Y. 16 ; Johnson v. A. & S. R. R. Co., 54 id. 416-424.)

It follows from that that the Statute of Limitations prohibiting the commencement of an action upon such a judgment after the expiration of six' years does not impair the obligation of the judgment, and is only, effectual to' cut off that remedy, and, does not interfere with any other remedy to enforce the obligation thereof.

p. 185
Accordingly, it has been repeatedly, held that courts may by an order permit an execution to be issued upon the judgments of courts, not of record, after the expiration of six years from their rendition. (Townsend v. Tolhurst, 57 Hun, 40 ; Bolt v. Hauser, 57 id. 567; Anderson v. Porter, 58 N. Y. St. Repr. 572 ; Agar v. Curtiss, 8 App. Div. 337 , and cases cited.)

.' This practice has been too long settled by the courts to warrant our interfering with it now, and the order appealed from must be affirmed, with ten dollars costs and disbursements.

' All concurred.

Order affirmed, with ten dollars costs and disbursements.

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