
    
      In re Depuy’s Estate.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    Limitation of Actions—Proceedings before Surrogate.
    Proceedings before a surrogate to obtain the payment of a judgment from a decedent’s estate constitute “an action, ” within the meaning of the statute prescribing a limitation to an action on a judgment.
    Appeal from surrogate’s court, Ulster county.
    Argued before Learned, P. J., and Fish and Putnam, JJ.
    
      John D. Eckert, for appellant. F. L. Westbrook, for respondent.
   Putnam, J.

Alexander J. Forbes, on May 24, 1889, presented a petition to the surrogate of Ulster county, alleging that he was a creditor of Lewis Depuy, deceased, upon a judgment for $64.20, obtained before a justice of the peace on August 13, 1875, and duly docketed in the clerk’s office of Ulster county on August 19, 1875; that deceased made a payment of $10 on the said judgment in 1884; that Sabina E. Depuy was appointed administratrix of deceased on October 10,1887, said Lewis Depuy having died shortly prior to said period. He asked that said administratrix be decreed to pay said claim. The usual citation was thereupon issued, returnable on June 3, 1889, at which time said petitioner and administratrix appeared by their respective attorneys, and the administratrix claimed that the petitioner’s judgment and the proceedings were barred by the statute of limitations; citing Dieffenbach v. Roch, 112 N. Y. 622, 20 N. E. Rep. 560. The administratrix also filed a written answer, denying the payment of $10 alleged in the petition, and alleging petitioner’s claim was barred by the statute of limitations. Ho evidence was offered before the surrogate. The parties seemed to have rested on the pleadings. Petitioner claimed that only an action on his claim was barred by the statute of limitations, and not this proceeding before the surrogate. The surrogate, however, dismissed the proceeding on the ground that the petitioner’s claim was “outlawed.” The late case of Dieffenbach v. Roch, 112 N. Y. 621, 20 N. E. Rep. 560, determines that a judgment rendered by a justice of the peace, although docketed in the county clerk’s office, remains a judgment of a court “not of record,” within the meaning of subdivision 7, § 382, Code of Civil Procedure, and that an action thereon after six years is barred. Such a judgment, within the meaning of said section of the Code, though docketed, is “rendered” before a justice. Ho evidence being offered or given before the surrogate that the alleged payment of $10 was made upon the judgment, and such payment being denied in the answer, the allegation in the petition in that regard stands unproved. The answer interposed by the administratrix was in the form of an affidavit, and, had it been objected to on the trial, probably would have been held formally objectionable under section 2718 of the Code. But it was received, so far as the case shows, without objection as an answer, and sufficiently puts in issue the allegation of payment, and sets up the defense of the statute of limitations. Hence, the allegation of payment of $10 in 1884 being unproved, the case before the surrogate was simply an attempt to enforce the payment of a judgment, in 1889, obtained before a justice of the peace in 1875. Petitioner claims that the statute of limitations operates only on the remedy, and not on the debt, and is confined only to the remedy by action, and does not operate to annihilate any other remedy. In other words, if petitioner had taken the remedy by action to recover his claim, the statute would have been a bar, but, taking the proceeding before the surrogate, the statute is no defense. We cannot agree with this view of the case. It has been repeatedly held, in analogy to the statute of limitations, suits by creditors, legatees, or distributees, before the surrogate, to obtain payment of their debts or legacies or distributive shares, should be instituted within the time in which suits of the same character are required to be commenced in the courts of common law or equity. McCartee v. Camel, 1 Barb. Ch. 456; Smith v. Remington, 42 Barb. 76; Cole v. Terpenning, 25 Hun, 482, and cases cited. Many other cases might be cited. As stated in the case of Cole v. Terpenning, supra, these repeated decisions have settled the questions involved in this case. It follows, there being no proof of the alleged payment of $10, that the surrogate properly held that the petitioner’s claim, on the judgment rendered by the justice 14 years before, was barred by the statute of limitations, and properly dismissed the proceedings. This view of the case renders it unnecessary to consider the other questions raised. The order of the surrogate should be affirmed, with costs.

All concur.  