Harris v. Clark — 47 N.Y. St. Rep. 780

Majority

p. 780

Hebron Harris, App’lt, v. Alfred F. Clark, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed September 30, 1892.)

Headnote

•Justices’ court—Action upon judgment—Code Civ. Pro., § 1913.

An action upon a judgment rendered by a justices’ court is within the jurisdiction of a justices’ court although a transcript of such judgment Ras been filed in the office of the county clerk, and the restriction in § 1913 of the Code has no application thereto.

Appeal from a judgment of the county court of Onondaga ■county, reversing the judgment of the justice’s court rendered on the 5th day of August, 1891, for damages $27.20, costs 0, total $27.20. Upon the return of the summons “ Plaintiff complained on a judgment rendered by and before S. F. Belknap, J. P., * * * on the 23d day of June, 1891, for $27.02 damages and costs in favor of plaintiff herein and against defendant herein, and asked judgment for $27.02 and interest from June 23,1891.” To that complaint the defendant filed an answer in the following language:

“ Defendant for his answer herein alleges, general denial, counterclaim and payment of $4 on the judgment set out as the cause of action in the complaint. Further, that a transcript of said judgment was filed in the county clerk’s office of Onondaga county, on or about the 13th day of July, 1891; that said judgment then became a judgment of the county court, and for that reason plaintiff cannot maintain an action upon the judgment set out in the complaint.” Plaintiff offered in evidence the docket showing the recovery of the judgment on the 23d day of June, 1891. It is stated in the appeal book as follows: “ Conceded

that a transcript of said judgment was filed in Onondaga county' clerk’s office July 13, 1891, at 10-10 A. M.” No other evidence was given upon the trial. The justice, immediately, on 'the 5th ■day of August, 1891, rendered a judgment for $27.20 damages, giving no costs to the plaintiff.

Thomas Hogan, for app’lt; Gill & Stillwell, for resp’

—Section 2862 of the Code of Civil Procedure confers upon justices of the peace jurisdiction of civil actions enumerated, and subdivision six thereof is as follows: “6. An action upon a judgment rendered in a court of a justice of the peace, or in a district court of' the city of New York, or in a justices’ court of a city, being a court not of record.” Presumptively the plaintiff’s action “ upon a judgment rendered in a court of a justice of the peace, * * * being a court not of record,” was within the jurisdiction of the justice. Plaintiff was entitled to bring an action upon such a judgment within six years from the time it was rendered. Code of Civil Procedure, § 382, sub. 7. The language of subdivision 7 is as follows: “An action upon a judgment or decree rendered in a court not of record.”

In § 3017 it is provided that a justice of the peace who renders a judgment “ must, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor,

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deliver to him. a transcript of the judgment. The county clerk of the county in which the judgment was rendered must, upon the presentation of the transcript, and payment of the fees therefor, endorse thereupon the date of its receipt, file it in his office, and docket the judgment as of the time of the receipt of the transcript, in the book kept by him for that purpose. * * * Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly.”

In Dieffenbach v. Roch, 112 N. Y., 621 ; 21 St. Rep., 570 , construction was given to §§ 3017, 382 and 1913 of the Code; and it was held “ Although under the Code of Civil Procedure (§ 3017), upon the docketing of a justice’s judgment in the county clerk's office, it becomes a statutory judgment of the county court, it is not a judgment 1 rendered ’ in that court, but remains ‘a judgment rendered in a court not of record,’ within the meaning of the provision of said Code (§ 382), declaring that an action upon such a judgment must be commenced within six years after a ‘final judgment was rendered.’ ”

In the course of the opinion,' it was said, “After a justice’s judgment has been docketed in the county clerk’s office, it becomes a mere statutory judgment of the county court. It is not, in fact, a judgment of that court. There has been no judicial action there, and no judgment has been, in fact, entered or rendered. It is simply to be deemed a judgment of that court. Such a judgment has not been twice rendered, once in a justice’s court and once in the county court; and as it may be docketed in all the counties of the state, it certainly cannot be deemed to have been rendered in every county where it has been docketed.”

The prohibition in § 1913 of the Code of Civil Procedure against “ an action upon a judgment for a sum of money rendered in a court of record of the state,” does not, in terms, relate to a judgment rendered in a justice’s court. It is insisted in behalf of the respondent that because a transcript was filed in the clerk’s office that the action was upon a judgment “ rendered in a court of record of the state,” to wit: the county court of Onondaga county. We think the reasoning and logic used in Dieffenbach v. Roch, supra, are adverse to the contention of the respondent.

The cases to which he refers us, of Lyon v. Manly, 10 Abb., 337 , and Baldwin v. Roberts, 30 Hun, 163 , were decided prior to the Dieffenbach case.

Section 3017 differs from § 71 of the Code of 1849 referred to in Lyon v. Manly, 32 Barb., 53 ; S. C., 10 Abb., 337 .

In the act of 1849 it is provided in the section that upon filing and docketing, it “ shall be a judgment of the county court.”

In § 3017, the provision is, after providing for the docketing of the judgment, as follows: “Thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly.” Baldwin v. Roberts, 30 Hun, 163 , seems to have followed Lyon v. Manly, supra.

In Church v. Van Buren, 55 How., 489 , it was said that the object of the restriction in § 71, and the same may be said of the restriction in § 1913, “ was to prevent multiplicity of suits and

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accumulation of costs. The statute was aimed at the evil practice and designed to cut it off and prevent it.”

It seems the same object is attained by the restriction in § 3154 of the Code of Civil Procedure in respect to actions upon a justice’s judgment, as that section provides that if such an action shall be brought “ within five years after the rendition thereof against-a defendant, upon whom the summons was personally-served, no costs can be recovered, except, etc.”

Our conclusion is that as the plaintiff’s judgment upon which he recovered was not “ rendered in a court of record of the state,” the restriction in § 1913 of the Code does not apply. Following the views expressed, the judgment of the county court reversing the justice’s judgment rflust be reversed and the judgment of the justice’s court affirmed, with costs.

Judgment of the county court reversing a justice’s judgment reversed, and the judgment of the justice affirmed, with costs.

Martin and Merwin, JJ., concur.