
    Katie Bleja, Appellant, v. Martin Mager, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    May, 1913.)
    County clerk — docketing of interlocutory judgments for costs. •
    A county clerk is not required to docket an interlocutory judgment for costs.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Queens, first district.
    Edward Calm, for appellant.
    William F. Hendrickson, for respondent.
   Crane, J.

Is the county clerk required to docket an interlocutory judgment for costs ? This is the question presented in this case. The defendant’s demurrer to the complaint was sustained with costs and interlocutory judgment was entered fixing these at the sum of forty-five dollars, but the county clerk refused to docket the judgment. This action has been brought by the plaintiff against the county clerk to recover the penalty provided in section 1248 of the Code of Civil Procedure. This section reads as follows:

“ 1248. A clérk who omits, as soon as practicable, to docket a judgment required to be docketed, or to' furnish a transcript of a judgment, so docketed in his office, as prescribed in the last two sections, forfeits to the person aggrieved, two hundred and fifty dollars, in addition to the damages sustained by reason of the omission.”

The county clerk contends that this being an interlocutory judgment he was not required to docket it and that execution could have been issued to collect the amount under section 779 of the Code of Civil Procedure without the docketing of the judgment.

The provisions of the Code of Civil Procedure relating to the various subjects are as follows:

Section 497 provides that upon the decision of a demurrer the court may, in its discretion, allow the party in default to plead anew, or amend upon such terms as are just. Section 3232 provides that where an issue of law and an issue of fact are joined between the same parties to the same action,- and the issue of fact remains undisposed of when an interlocutory judgment is rendered upon the issue of law, the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely, or to abide the event of the .trial of the issue of fact. Section 3233 provides for the collection of costs when allowed and reads as follows: “ Section 779 of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion.” Section 779 authorizes an execution against the personal property of the party required to pay costs of a motion which shall be in the same form as an execution upon a judgment, omitting the recitals and directions relating to real property.

Every interlocutory judgment and final judgment shall be signed by the clerk and filed in his office which shall constitute an entry of the judgment. The clerk, in addition to the docket books required to be kept by law, shall keep a book styled the judgment book ” in which he shall record all judgments entered in his office. § 1236.

Each county clerk must keep one or more books in which he must docket each judgment required to be docketed. § 1245. And he is required to docket the judgment when he files a judgment roll. § .1246. The judgment roll, however, is to be filed with the entry of final judgment. Section 1237 reads: The clerk, upon entering final judgment, must immediately file the judgment roll, which must consist of * * * the final judgment, and the interlocutory judgment, if any.” When final judgment, therefore, is entered the judgment roll must be immediately filed and the judgment docketed by the county clerk in the docket book. Such a judgment when docketed binds and is a charge upon, for ten years after filing the judgment roll, the real property and chattels real in that county, which the judgment debtor has at the time of docket. § 1261.

That this provision could not apply to an interlocutory judgment awarding costs is quite evident from the fact that such costs are to be collected solely out of the personal property and are not a hen upon the real estate. The only occasion to docket a judgment is to create a hen upon lands. Whitney v. Townsend, 67 N. Y. 40; Sheridan v. Linden, 81 id. 182. Although section 1365 says that an execution against property can be issued only in a county in the clerk’s office of which the judgment is docketed, section 1369 provides that the sheriff shall satisfy such a judgment out of the personal property, and, if this be insufficient, then out of the real property, except where special provision is otherwise made by law. It would seem, therefore, that the county clerk is only directed to docket a final judgment, and further that it is only necessary to docket a judgment when it is to be a lien upon real estate. Motion costs and costs on inter-■ locutory judgment such as here in question cannot be liens upon real estate as they are to be collected by execution against personal property solely.

If the county clerk had docketed this interlocutory judgment as requested, the amount would have been a lien upon real property under section 1251 above referred to.

The clerk, therefore, was" not required to docket this judgment, and is not liable for the $250 penalty prescribed by section 1248 of the Code of Civil Procedure.

Our attention has been called to the case of Bernheimer v. Hartmayer, 34 Misc. Rep. 346, in which the county clerk was directed to docket interlocutory costs, but the question there presented was whether such costs could be collected before final judgment, and it does not appear that any question arose as to the procedure for immediate collection, or the necessity for docketing such a judgment.

It furthermore appears that before bringing this action the plaintiff was paid the full amount of the costs awarded by the interlocutory judgment, and that he is not, therefore, in our opinion, a “ person aggrieved ” within the meaning of that section.

Judgment for the defendant is affirmed with costs.

Kapper and Kelby, J.J., concur.

Judgment affirmed, with costs.  