
    Elizabeth B. Grannis, Appellant, v. James L. Ewell, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Judgments — rendition — provision as tó enforcement — docketing.
    A judgment rendered in the Municipal Court of the city of New York for a sum of money and docketed in the county clerk’s office the next day for the filing of a transcript is good for twenty years from the time when the party recovering it was first entitled to a mandate to enforce it.
    Appeal by plaintiff from a judgment of the Oity Court of the city of Hew York rendered after a trial without a jury, dismissing the complaint on the merits.
    
      David J. Gladstone, for appellant.
    Alfred W. Haywood, Jr., for respondent.
   Gerard, J.

This action was brought on a judgment rendered in favor of the plaintiff and against the defendant in the Municipal Court of the city of Hew York on the 29th day of April, 1898, and a transcript of which judgment was filed in the office of the county clerk on the next day.

Hearly fourteen years elapsed before the commencement of the present action, which was instituted on January 25, 1905, and at the close of the plaintiff’s case the learned court below dismissed the complaint on defendant’s motion on the ground that the action was barred by the Statute of Limitations and the only question here is whether in this case, the six-year or the twenty-year limitation applies, 'that is, whether an action on this judgment of the Municipal Court, a transcript of which is filed in the county clerk’s office, is governed by the rule of limitations in section 382, subdivision 7, of the Code of Civil Procedure, or by section 262 of the Municipal Court Act; the contention of the defendant being that section 262 of the Municipal Court Act is not a rule of limitation, but a mere presumption of payment and that, there being no period of limitation provided for in the Municipal Court Act, section 382 of the Code controls. The portion of section 382 of the Code which is relevant to this action, reads as follows:

Within six years :***** 7. An action upon a judgment or decree, rendered in a court not of record, except where a transcript shall be filed, pursuant to section 3017 of this act, and, also, except a de.cree heretofore rendered in a surrogate’s court of the State. The cause of action, in such a case, is deemed to have accrued when final judgment was rendered.”

The Municipal Court of the city of Hew York is not a court of record (Greater N. Y. Charter, § 1351) and section 3017 of the Code referred to in section 7, above set forth, refers to courts of justices of peace only. It is claimed by the' appellant that section 262 of the Municipal Court Act was intended as a statute of limitation. By section 20 of the Municipal Court Act the provisions of the 'Code are made applicable to the Municipal Court only in cases where the' Code provisions can be made applicable and when not in conflict with the provisions of the Municipal Court Act, and in ease of conflict the Municipal Court Act, and not the Code, shall govern. Therefore, if section 262 of the Municipal Court Act is a statute of limitation, it supersedes any of the 'Code provisions relative to limitations which might otherwise be applicable to the Municipal Court. Section 262 of the Municipal Court Act is-as follows: “A final judgment for a sum of money, or directing the payment of a sum of money, heretofore or hereafter rendered, and docketed in the office of a county clerk, as prescribed in this article, is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, except as against a person, who, within twenty years from that time, makes a payment or acknowledges an indebtedness of some part of the amount recovered by the judgment or decree, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged thereby.”

This section 262 of the Municipal Court Act is copied literally from section 376 of the Code, and, although section 262 of the Municipal Court Act has not been passed on, the similar Code section 376 has been construed by the courts,- and it has been held that section 376 of the Code is a statute of limitation and not a statute referring to a mere presumption of payment only. Gray v. Seeber, 53 Hun, 611; Seaman v. Clarke, 60 App. Div. 416; affd., without opinion, 170 N. Y. 594; Brush v. Hoar, 14 Civ. Pro. 297; Morey v. Farmers Loan & Trust Co., 14 N. Y. 302.

Defendant argues that, because section 376 of the Code of Civil Procedure is found in a chapter headed: Limitation of the time of enforcing a civil remedy,”'while section 262 •of the Municipal Court Act is found in a chapter headed: “ Execution,” the two sections, although reading alike, should receive a different construction. It is true that in Gray v. Seeber, supra,, the court in holding section 376 a Statute of Limitation referred to its position in this chapter of limitations, but it must also be noted that there is no chapter of the Municipal Court Act specially devoted to limitations. '

It is argued by respondent with no little force that statutes of limitation do not destroy the cause of action, but merely bar the remedy and that the owner of a judgment may not be entitled to sue on it but may still issue execution on it (Townsend v. Tolhurst, 57 Hun, 40; Rose v. Henry, 37 id. 397) and respondent’s contention here is that an action on a Municipal Court judgment is barred after six years, but execution may issue on it for twenty years.

We think, however, that as section 376 of the Code has been several times held to be a statute of limitation section 262 of the Municipal Court Act, which is similar to it, should be similarly construed.

The judgment is therefore reversed and and a new trial ordered, with costs to appellant to abide the event, with leave to respondent to appeal to the Appellate Division, first department, upon filing the usual stipulation for judgment absolute.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide evént, with léave to respondent to appeal to Appellate Division, first department.  