
    Ithaca Agricultural Works, App’lt, v. Judah Eggelston, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January 19, 1889.)
    
    1 Contract—When executory.
    On an application made for leave to issue execution on a judgment after the time-had expired, one E opposed the application on the ground that he was the owner of the judgment, hy virtue of agreement between himself and the plaintiff. This agreement was never performed hy either party. Held, that the agreement never having been consummated, was executory,, and did not in any way transfer the judgment or vest any title in E; his. remedy was either to compel performance of the agreement, or sue for nonperformance .
    2. Jurisdiction—Of court—Supreme court—Code Civ. Pro., §§ 1320, 1357.
    The proceeding being a special proceeding within section 1357 of the Code Civil Procedure, this court under section 1320, Code Civil Procedure, can grant the relief which the county court could not.
    
      Appeal from an order of the Chenango county court denying a motion by the plaintiff for leave to issue an execution upon a judgment after five years had elapsed from the time the same was docketed.
    
      M. N. Tompkins, for app’lt; Fancher & Sewell, for resp’t.
   Kennedy, J.

The court of appeals held in this case, when the same was before it, that the matter was in the nature of a special proceeding, and that an appeal could therefore be brought to the general term to. review the -order made by the county court.' The case is, therefore, properly here to be determined upon the merits.

The defendant in the judgment, Judah Eggelston, did not appear upon the motion, and no opposition was intei’posed by him to the granting of the relief sought. One Alden B. Eggelston appears and opposes upon the ground that he is the owner of the judgment, having before that time purchased it of the plaintiff. Upon the original application an order was made by the county court referring the matter to a referee to take evidence upon the question of the ownership, and report the same with his opinion. ‘The hearing was had, the referee made his report, including his findings both of fact and law. A motion was made to ■confirm the same, and it came on for hearing upon exceptions filed by the plaintiff. It was confirmed by the county court, and the order now appealed from denying leave to issue execution entered. This order rests upon the ground that Alden B. Eggelston, the contestant," was the owner of the judgment, deriving title from the plaintiff.

By the second finding the referee reports that about July 2, 1883, the plaintiff made an agreement in writing with said Alden B. Eggelston, whereby it agreed to sell to him the said judgment of $310.69, and to make out and leave with one Bently, a justice of the peace, an assignment of the same; and said Eggelston agreed to pay fifty dollars therefor; the assignment to be made out and the money paid within three weeks from the time of making said agreement. The evidence given by the respondent, if ¡believed, justified this finding.

This agreement was never performed by either party. It is executory in its character, and is simply an agreement to sell. Its effect is not to transfer the judgment, or to vest any title in Alden Eggelston to it. His remedy is either by a propel’ action to compel the performance of the agreement -or to sue and recover damage for its non-performance. Anderson v. Read, 106, N. Y., 333; 11 N. Y. State Rep., 123; opinion of Boardman, J., at general term, case 77; Peckham, J., court of appeals, case 94.

The title to the judgment remains in the agricultural works. It being the owner has the right to enforce its collection. It being conceded that no part of the judgment has. been paid, that the time for the issue of execution thereon without leave of the court had expired when the motion was made, it should have been granted.

The court of appeals having held this to he a special proceeding within section 1357 of the Code of Civil Procedure, this court may, under section 1320, grant the relief which the county court should have granted.

The order of reference granted December 10, 1883, is-affirmed, but the order of confirmation granted October 13, 1884, is reversed, and leave is granted to the Ithaca Agricultural Works to issue an execution against Judah Eggelston, with ten dollars costs and disbursements in the county court, and with the costs of this appeal against Alden B, Eggelston.

All concur.  