
    The Ithaca Agricultural Works, App’lt, v. Judah Eggleston, Alden B. Eggleston, Contestant Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    Appeal from order of county court—What a special proceeding within Code Civ. Pro., § 1357-
    A transcript of a judgment obtained in the court of a justice of the peace was filed in the clerk’s office of the appropriate county. I ive years having elapsed after the filing of the transcript and no execution having issued, the plaintiff applied to the county court for leave to issue execution. On said motion a contest as to the ownership of the judgment arose between the party named as plaintiff therein and a third person not a party to the original action. This question was referred to a referee whose report was confirmed by the county court. Held, that for all purposes of an appeal from the order made by the county court it was a special proceeding and an appeal therefrom lies to the supreme court under Code Civ. Pro., § 1357. (Kincaid v. JRichardson, 25 Hun, 237, and Andrews v. Hong, 79 N. Y., 573, distinguished.)
    Appeal from an order of the supreme court, general term, fourthdepartment, dismissing an appeal from an order of the county court affirming the report of a referee. The facts appear sufficiently in the opinion.
    
      E. Countryman, for app’lt; Fancher & Sewall, for resp’ts.
    
      
       Reversing 42 Hun, 653, mem.
      
    
   Peckham, J.

On the 17th of January, 1878, the plaintiff

obtained a judgment against the defendant, Judah Eggleston, by confession, in the court of a justice of the peace in Chenango county, for the sum of $310.09. A transcript of this judgment was filed in the clerk’s office of that county on the 18th day of January, 1878. In September, 1883, the plaintiff’s attorney noticed the motion for leave to issue •execution, and in the affidavit upon which the motion was "to be made, the foregoing facts were stated. It was also therein stated that the plaintiff was then the owner of such judgment, and that the same was then wholly unpaid; that five years had elapsed since the docketing of such judgmenfc and the filing of the transcript thereof, and that no execution had ever been issued on such judgment. The motion was noticed for a term of the Chenango county court, and the papers were duly served on the defendant, Judah Eggleston. Upon the hearing of the motion, the ■defendant did not appear, but one Alden B. Eggleston (called the contestant) appeared by his counsel, and made an affidavit that he was the .owner of the judgment by assignment from the plaintiff, through its general agent. The motion was ordered to stand over, and permission was given to the plaintiff and contestant to furnish further ■evidence concerning the alleged assignment. Pursuant to such order, the plaintiff and the contestant, Alden B. Eggleston, appeared before the county court on the adjourned day, and each read further affidavits upon the question. The original defendant still failed to appear, and the whole contest was carried on as against the plaintiff by the contestant, who insisted that he was the owner of the judgment. The county court, feeling unable to decide that question upon the conflicting affidavits, ordered a reference to take the evidence of the parties arid their witnesses upon the several issues among them upon the issue of ownership and of fraudulent representations made by the contestant to the plaintiff’s general agent to induce the assignment.

The referee heard the testimony and made a report, in which he found that plaintiff made an agreement in writing to sell the judgment to the contestant upon certain terms, and that there was no fraud.

It does not appear that the agreement was ever carried out, but, on the contrary, it would seem never to have been. On this report of the referee a motion was made to confirm it, and on hearing counsel for the contestant and for the plaintiff, the defendant still not making any appearance, the county court confirmed the report of the referee and denied the motion of the plaintiff to set it aside and for leave to issue execution, and granted ten dollars costs to the contestant, besides disbursements to be taxed against the plaintiff.

Prom that order of the county court the plaintiff appealed to the general term of the supreme court, and that court, after argument, dismissed the appeal as not appealable, and from that order* the plaintiff has appealed here.

It is said that the order of the '~ounty court was not appealable under sections 1340 and 1342 of the Code, because it was not an order made in an action brought in or taken by appeal to the county court.

It is true the original action was brought in a justice’s «court and judgment was entered therein by confession, but a transcrip was filed in the county court, and thenceforth the judgment by the terms of the statute is deemed a judgment ot the county court, and must be enforced accordingly. Code, § 3017. Whether such a case is not within the plain meaning of the statute regulating appeals to the general term from a county court, is a question not free from doubt. If not thus included there might be numerous cases where no appeal would lie from an order of the county court and which were yet entirely within the principal upon which appeals are given to the supreme court in analogous cases. If necessary to the decision of this appeal, we should hesitate before deciding that no appeal lies to the supreme court from an order made by the county court in an action in which a transcript was filed from a justice’s court.

In this case, however, we think an appeal from the order lies to the supreme court under section 1357 of the Code. We think this was substantially a special proceeding within the meaning of that section.

The contest by the orders of the court, acquiesced in by both sides, became one between the plaintiff on the one side and Alden B. Eggleston on the other. The original proceeding was instituted pursuant to a special statutory provision and was continued against one who was not a party to the action, but was served with notice, and the contest was carried on under the order of the court. For all purposes of an apppeal from the order made by the county court it was a special proceeding.

The facts distinguish this case from Kincaid v. Richardson (25 Hun, 237), and Andrews v. Long (79 N. Y., 573).

In the former case the proceeding was between the original parties to the action, and hence we are not called upon to assert or deny the correctness of that decision.

In the latter case, and under section 1342 of the Code, as it then stood, it was held by this court, that no appeal would lie to the general term from an order of the county court made in an action which was not brought in that court, but was taken there by appeal from a justice’s court. Whether there can be any solid distinction between such a case and the case of the filing of a transcript as above-stated, we need not now decide.

Nor do we now mean to decide that an ordinary application to the court in which the judgment was obtained for leave to issue execution, where the parties are all living, is a special proceeding instead of a summary application in an action after judgment. Our decision is confined strictly to the facts of this case.

Holding that the order of the county court is appealable, it follows that the order of the general term dismissing the appeal should be reversed, with costs, and the appeal should be heard upon its merits by that court.

All concur, except Rapallo, J., absent.  