Milan v. Kerlansky

“Where a judgment, rendered by a justice of the peace, has been docketed with a county clerk, upon the filing either of a transcript from the justice’s docket * * * the execution, to be issued thereupon by the county clerk, must be in the same form, and executed in' the same manner, as an execution issued upon a judgment of the County Court * * * and except, also, that, where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor’s real property, are not applicable thereto.”

My attention has been called to Mede v. Meyer, 55 Misc. Rep. 621 , 105 N. Y. Supp. 957 , where a judgment was recovered in the Municipal Court of the city of New York for $23.57 damages, and costs $2, prospective fees $3.01, total $28.58, and transcript docketed in the county clerk’s office of New York county, execution returned unsatisfied, and proceedings supplemental to execution issued thereunder; and the court held in a motion to vacate said order that the judgment was a lien upon real estate, and that therefore the court had jurisdiction to grant the order. The court in deciding the motion referred to section 261 of the Municipal Court Act (Laws 1902, c. 580), which provides that after the transcript of such a judgment is filed in the office of the clerk of the county it “is deemed a judgment of the Supreme Court and may be enforced accordingly.” I do not regard that case as an authority for the proposition sought to be maintained by the judgment creditor herein.

In Mason v. Hackett, 35 Hun, 238 , the judgment was recovered in the Municipal Court of the city of Rochester in favor of the plaintiff and against the defendant for $20 damages, and $7.85 costs, in all $27.-85. Under section 246 of chapter 14 of the Laws of 1880, transcripts of all judgments rendered in that court may be filed in the Monroe county clerk’s office, and if the recovery therein is for less than $25, exclusive of costs, the judgment is nota lien upon real estate, and the court held that all the provisions of section 3043 of the Code were made applicable to the said Municipal Court.

Section 3043, to which attention has been called, expressly provides that an execution issued on a justice’s judgment is not a lien upon real estate. The right of a judgment debtor to maintain supplementary proceedings under the Code (sections 2432, 2435, 2436) is based upon an execution “against property” returned unsatisfied. “There is no execution against property, within the meaning of these sections unless the judgment in question, upon the filing of a transcript * * * in the county clerk’s office, became a lien upon the real estate of the judgment debtor.” Mede v. Meyer, 55 Misc. Rep. 621 , 105 N. Y. Supp. 957 ; Importers & Traders’ Nat. Bank v. Quackenbush, 143 N. Y. 567 ,

The judgment herein, not being a lien upon the real property of the judgment debtor under section 3043 of the Code and cases cited, there was no jurisdiction for the court to grant the order herein, and the same should be vacated.

Motion granted.