
    Ludwig Puls et al., Plaintiffs, v. The New York, Lackawanna & Western Railroad Company, Defendant.
    (Supreme Court, Erie Special Term,
    May, 1907.)
    Judgment — Opening or vacating on motion — Grounds — Delay. Evidence — Presumptions — Presumptions of law and fact — Presumption of payment from lapse of time.
    Payment — Payment as an issue — Presumptions and burden of proof — Lapse of time — Conclusiveness of presumption from lapse of time.
    Limitation of actions: Statutes of Limitation — Operation in general: .Period of limitation — In general — Effect of limitation — On right to enter judgment.
    The conclusive presumption arising under the twenty years’ Statute of Limitations relates only to the remedy by action.
    The presumption that the plaintiff’s claim has been paid, which arises after the lapse of twenty years from the time a decision in his favor was rendered, is rebuttable; and a judgment thereafter entered upon such decision will not be vacated, where it appears that the amount awarded has not been paid.
    Motion to vacate judgment against defendant entered on decision of Judge Smith of the Superior Court of Buffalo, handed down December 31, 1886.
    
      Chauncey J. Hamlin, for motion.
    F. F. Williams, opposed.
   Pound, J.

The above action was begun in the Superior Court of Buffalo, October 25, 1883, and tried in January, 1885, by the court without a jury. The learned judge presiding at the trial handed down his decision December 31, 1886, in which he found that the plaintiff was entitled to recover of the defendant the sum of $30 damages. On February 15, 1907, more than twenty years after the decision had been handed down, plaintiff’s attorney filed same , and entered judgment thereon in Erie county clerk’s office for $30 damages, $36 interest and $124.64 costs, making in all the sum of $190.64.

Defendant moves to set aside and vacate this judgment for the reason that it was not entered until over twenty years from the date of the rendering of the decision.

The only question before the court is whether plaintiff was entitled to enter judgment. The presumption, if any, that the amount awarded to plaintiff by the decision herein has been paid is rebuttable (Matter of Looram, 73 Hun, 177), and is rebutted by defendant’s moving papers wherein it is set forth that nothing has been paid on said demand.

The conclusive presumption arising under the twenty years’ Statute of Limitations (Code Civ. Pro., § 376) relates only to the remedy by action. Kincaid v. Richardson, 25 Hun, 237.

Motion denied, with ten dollars costs.  