Ryan v. Parr — 40 N.Y. St. Rep. 946

Majority

p. 946

James Ryan, Resp’t, v. Jacob Parr, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

1. Justice’s court—Execution—Code Crv.' Pro., § 1319.

Section 1319 of the Code does not apply to appeals from" a justice’s court to the county court.

3. Execution—Discharge oe judgment debtor.

A judgment of justice’s court in an action for tort was affirmed on appeal to the county court, and judgment rendered thereon docketed as a county court judgment. Execution was issued hy the plaintiff's attorney and the defendant imprisoned thereunder. Meld, that the judgment was a county court judgment, the execution was properly issued, and the defendant was not entitled to his discharge hy delivering to the sheriff an affidavit under § 3034 of the Code.

Appeal from an order of the county court of Monroe denying a, motion made by the defendant for his discharge from imprisonment within the jail liberties of the county of Monroe, upon an -execution issued against the person in the above entitled action.

The action was commenced in justice’s court to recover damages for a tort; was tried and judgment rendered for the plaintiff for the sum of fourteen dollars damages, besides costs. The defendant appealed from said judgment to the county court of Monroe county upon questions of law. The appeal was argued and n, decision handed down affirming the judgment appealed from, with costs. Upon this decision judgment was entered entitled in the county court, reciting the judgment of the justice's court, its affirmance by the county court, and adjudging that the plaintiff recover of the defendant the sum of fourteen dollars damages found by the justice’s court together with the further sum of twenty-seven dollars and thirty-five cents, the costs of the appeal, making in all the sum of forty-one dollars and thirty-five •cents.

This judgment was docketed as a judgment rendered in the county court and an.execution was thereupon issued upon the judgment against'the property of the defendant to the sheriff of Monroe county and returned nulla hona.

p. 947

Thereupon an execution against the person was issued to the sheriff of said county, and under it the defendant was arrested and confined in the jail of said county.

Both of the executions recited a judgment of the county court, rendered in that court, and were in the regular form of execution issued upon a judgment rendered in a court of record. ISTeither of them was issued by the clerk, but both by the attorney for the plaintiff.

The defendant gave bail to the limits and at the expiration of thirty days made and filed with the sheriff an affidavit stating that he was a married man and had a family within the state for which he provided, and that he had remained in custody under the body execution for thirty days and thereupon demanded his discharge. The sheriff refused to discharge him, and he then made a motion for his discharge, claiming that the execution upon which he was held was issued upon a judgment recovered before a justice of the peace, and that he was entitled to his discharge under § 3033 of the Code of Civil Procedure

The claim of the plaintiff was that the judgment was not a judgment recovered before a justice of the peace, but a judgment rendered in a court of record, docketed as a judgment of such a court, and, therefore, the defendant could obtain his discharge only in the manner provided for by § 111 of the Code

The motion for discharge was denied and the appeal is from that order.

H. B. Hallock, for resp’t; O. H. Stevens, for app’lt.

The order appealed from should be affirmed. The judgment which the execution was issued to collect was the judgment of the county court of Monroe county. The Code makes no distinction in respect to the judgment between an appeal for a new trial and an appeal on questions of law. In either case it is a judgment of the county court. Sections 3063 and 3071 of the Code of Civil Procedure

Section 1319 of the Code does not apply to appeals from a justice’s court to the county court

Chapter 12, of which that section is a part, relates only to appeals to superior city courts, the supreme court and the court of appeals.

It is so stated in the title of the chapter. The signature of the county clerk to the executions was unnecessary and maybe treated as surplusage

They were signed by the attorney as they should be

The execution was not issued by a county clerk on a transcript of a judgment recovered before a justice of the peace, as provided by § 3033 of the Code, and hence the appellant was not entitled to his discharge by delivering to the sheriff an affidavit under § 3034.

The'order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal against the appellant.

Dwight, P. J., Macomber and Lewis, JJ., concur.