Camp v. Hollanan — 4 N.Y. St. Rep. 625

Majority

p. 625

Hugh Camp, as temp’y adm’r, etc., App’lt, v. Jeremiah A. Hollanan, Resp’t.

(Supreme Court, General Term, First Department,

Filed December 30, 1886.)

Headnote

1. Judgment—Courts of record—Actions upon judgments recovered in marine court, New York—Laws 1872, Ohap. 629—Code Civ. Pro., § 382.

A judgment was recovered in the marine court cf New York city on December 6, 1868; this court, except in a limited sense, was not at that time a court of record, hut by Laws 1872, chapter 629, was made a court of record for all intents and purposes, and its jurisdiction enlarged. At the time the judgment was recovered an act on might he commenced thereon at any time within twenty years. Code of Civil Procedure, section 383, adopted in 1876, provides that an action must be commenced

p. 626

within six years upon a judgment or decree rendered in a court not a court of record, held, that the marine court having been at that time declared to be a court of record for all intents and purposes, Code of Civil Procedure, section 382, subdivision 7, must be considered with reference to all of the Code provisions upon that subject, and an action might he commenced thereon at any time within twenty years.

2. Same—Laws 1872, chap. 629—Code Civ. Pro., § 382.

Held, that the question was not affected by the omission in the Laws of 1872 of language showing an intention to give it a retroactive effect or of express words constituting the marine court a court of record as to judgments then existing, inasmuch as when the Code of Civil Procedure was passed the court was not only a court of record, hut recognized as one therein.

3. Same—Statute of limitations—Power of legislature to alter.

Held, that the legislature had the right to change or continue the statute of 1 mtation. Such procedure affects the remedy, hut does not impair the obligation of a contract.

Appeal from an order denying a motion for a temporary injunction.

N. J. Waterbury, for app’lt; Henry F. Lippold, forresp’t.

The object of this action was to prevent the enforcement of a judgment existing, unsatisfied against the defendant upon the ground that it had lost all vitality under the Statute of Limitations. It was recovered in the marine court of this city which, at the time (December 6, 1868), was not a court of record, except in a limited sense, and for certain purposes, but in 1872, by chapter 629, of the Laws of that year, it was made a court of record, to and for all intents and purposes, and its jurisdiction enlarged. .

It is conceded that when the judgment was perfected, under the Code then prevailing, the period limited for the commencement of'an action upon it was twenty years (Code of Procedure, § 90;, Conger v. Vandewater, 1 Abb. N. S., 126; Delevan v. Florence, 9 Abb., 277 ); but it is supposed by the appellant that the Code of Civil Procedure adopted in 1876, by section 382, supplanted section 90, of the old Code, and shortened the period of twenty to six years.

The marine court, as we have seen, had at that time been declared to be a court of record, to and for all intents and purposes, and section 382, subdivision 7, must therefore, be considered with reference to any and all provisions in the Code, bearing on that subject. The provisions of section 382, so far as it applies to this case, is that an action must be commenced within six years “upon a judgment or decree rendered in a court not a court of record.” But this must be taken in conjunction with section two of the same Code, as suggested, and in which the marine court is enumerated as one of the courts of record, of the state. And thus, the period of limitation within which the judgments of that court lived, for the purposes of an action, was con

p. 627

tinued and preserved by express terms, the same as before its passage.

There can be no doubt of the right of the legislature thus to declare the law (Acker v. Acker, 81 N. Y., 143 ). This question it should be observed, is not affected in any way, therefore, by the omission in the statute of 1872, supra, of language showing an intention to give it a retroactive effect, or of express words constituting the marine court a court of record, as to judgments then existing, inasmuch as the Code of 1876 was passed when the court was not only a. court of record, but recognized as such therein, and the legislature had the right to change or continue the Statute of Limitations, relating to it, if necessary or expedient. Such a procedure affects the remedy, but does not impair the obligation of contracts (Acker v. Acker, supra).

This question has been passed upon by the general term of the marine court, and a similar conclusion expressed by MoAdam, J. We are not advised of the views entertained by the learned justice presiding in the court below, but we assume that he arrived at the same result from the same mode of reasoning.

We think the ordér appealed from should be affirmed with $10 costs and disbursements.

Daniels, J., concurs._