Vedder v. Larsing — 8 N.Y. St. Rep. 725

p. 725

Eller M. Vedder, Resp’t, v. Oliver R. Larsing, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 24, 1887.)

Headnote

1. Practice—Judgment—Who may issue execution on transcript op JUDGMENT PROM JUSTICE’S COURT—CODE ClVIL PROCEDURE, §8 347, 3033 and 3048.

The transcript of a judgment obtained in a justice’s court in Fulton county was filed in Fulton county, and a transcript of the Fulton county judgment was filed in Saratoga county clerk’s office. Meld, that the clerk of Fulton could issue execution under Code Civ, Pro.., § 347, and the clerk of Saratoga county could issue one returnable to his office under §§ 3033 and 3043. Ldarned, P J„, dissenting,

3. Same — Order por leave to issue execution — Codc Cira, Pro. cedure, § 3017.

Application for leave to issue execution after ten years could only be made in the Fulton county court under Code Civ. Pro , § 3017.

Appeal from an order of the Fulton county judge, denying a motion made to vacate an order made by him, requiring the defendant to answer upon examination before a referee concerning his property.

Plaintiff obtained judgment against the defendant before a justice of the peace of Fulton county, January 29, 1876, for $200. A transcript was filed and the judgment docketed in the Fulton county clerk’s office, January 29, 1876. A transcript of the Fulton county judgment was filed, and the judgment docketed in the Saratoga county clerk’s office, February 1, 1876. The affidavit upon which the order for examination was granted recites that an execution against the property of the judgment debtor was duly issued August 2, 1886, out of the Fulton county court and delivered to the sheriff of Saratoga county, the county in which the judgment debtor resided; that the judgment debtor has property which he unjustly refuses to apply upon the judgment.

It did not appear upon the motion that any order had been granted allowing execution to issue in 1886, but a certified copy of such an order was presented upon the argument in this court.

Emmett Blair, for app’lt; John M. Gardner, for resp’t.

The justices judgment became a judgment of the Fulton county court. Code Civ. Pro., § 3017. When the transcript was filed, the judgment docketed in Saratoga county, it had the like effect with respect to the enforcement thereof as if it had been rendered by a justice of the peace of the latter county, except that application for leave to issue an execution would need to be made in the Fulton county court. Section 3022. The county clerk issues the execution. Section 3017. The execution was properly issuable by the Saratoga county clerk. Sections 3022, 3043. And returnable to his office. Section 1367. But the Fulton county clerk might also issue it. Section 347. This order was made under section 2436. The Fulton county judge could make it. Section 772. The objection that there was no order for leave to issue the execution in 1886 is now obviated by the presentation of the order granting leave. As it appeared from the affidavit that more than five years had elapsed before the issuing of the execution, the affidavit was no doubt defective in not showing leave granted. Hutson v. Weld, 38 Hun, 142 .

The order should be affirmed, but without costs.

Mayham, J., concurs.

(dissenting) It seems to me that sections 3022, 3043 show that the execution should have been issued by the clerk of Saratoga county to the sheriff of that county, and not by the clerk of Fulton county.

I do not think the general language of - section 347 should be construed to affect these sections, subsequently passed and having a special reference to the matter in question.

The Code of Pro., § 64, subd. 13, was to the same effect.

And it is improbable that it was intended that an execution in such a case as this, might be issued by either of two county clerks.

Further, what official knowledge would the clerk of Fulton county have of the fact that the transcript had been filed and the judgment docketed in Saratoga county, and of the time of such docketing and filing? If a county clerk is to issue an execution (as he must in the case of a justice’s judgment) he must have official knowledge of the facts which are to be stated in "the execution. And that the clerk of Fulton county could not have had, when he issued an execution to the county of Saratoga, based upon the docketing of the judgment in Saratoga county.

There is nothing in section 1365 which helps the plaintiff.

I do not think there is any other defect in the proceedings. But this appears to me fatal.

The order should be reversed, and the order to examine defendant set aside, but without costs,.'