
    Harris v. Clark.
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1892.)
    Action on Judgment—Court not oe Record.
    Code Civil Proo. § 3863, subd. 6, provides that the court of a justice of the peace is not a court of record. Section 3017 provides that a judgment rendered by a justice of the peace, on being docketed in the county clerk’s office, “is deemed a judgment of the county court, * * * and must be enforced accordingly. ” Held, that a judgment for damages obtained by plaintiff in a justice’s court, and docketed under section 3017, remained in fact the judgment of a court “not of record, ” and an action thereon was not inhibited by section 1913, providing that an action . on a judgment for money rendered by a court of record cannot be maintained by the original parties.
    Appeal from Onondaga county court.
    Action by Hebron Harris against Alfred F. Clark On a judgment. The case was tried before a justice of the peace, and judgment rendered for plaintiff for $27.20 and no costs. From a decision of the county court reversing such judgment, plaintiff appeals. Reversed.
    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 asks 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 $4.00 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.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Thomas Hogan, for appellant. Gill & Stillwell, for respondent.
   Hardin, P. J.

Section 2862 of the Code of Civil Procedure confers upon justices of the peace jurisdiction of civil actions enumerated, and subdivision 6 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 justice’s 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 Civil Proc. § 382, subd. 7. The language of subdivision 7 is as follows: “An action upon a judgment or decree rendered in a court not of record.” In section 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, deliver to him a transcript of the judgment. The county clerk of tile county in which the judgment was rendered must, upon the presentation of the transcript, and payment of the fees therefor, indorse 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, 20 N. E. Rep. 560, construction was given "to section 3017, section 382, and section 1913 of the Code; and it was held, “although, under the Code of Civil Procedure, (section 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 «rendered’ in that court, but remains ‘ a judgment rendered in a court not of record,’ within the meaning of the provision of said Code (section 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 prohibí-, ■tian in section 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 the action was upon a judgment “rendered in a court of record of the state, ” to wit, the county courtf of Onondaga county. We think the rea•soning 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. Pr. 337, and Baldwin v. Roberts, 30 Hun, 163, were decided prior to the Dieffenbach Case. Section 3017 differs from section 71 of the Code of 1849, referred to in Lyon v. Manly, 32 Barb. 53, 10 Abb. Pr. 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 section 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. Pr. 489, it was said that the object of the restriction in section 71 (and the same may be said of the restriction in section 1913) “was to prevent multiplicity of suits and 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 section 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 section 1913 of the Code does not apply. Following the views expressed, the judgment of the county court reversing the justice’s judgment must 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. All concur.  