
    Frank C. Bolt, Resp’t, v. John Hauser, App’lt.
    
      (Supreme Court, General Term, Fifth. Department,
    
    
      Filed October 23, 1890.)
    
    Supplementary proceedings—Justice’s judgment—Limitation.
    The six years statute of limitations does not apply to supplementary proceedings to enforce a justice’s judgment which has been docketed in the county clerk’s office and which is, therefore, made by statute a judgment of the county court.
    Appeal by defendant from an order of the county court of Erie county, denying defendant’s motion to vacate an order extending a receivership in supplementary proceedings on another judgment against the same defendant to the judgment in this action.
    
      George T. Quimby, for app’lt; William G. Fitch, for resp’t.
   Dwight, P. J.

The motion to vacate the order in question was based upon the objection that the proceeding in which it was made was barred by the statute of limitations; that proceeding having been instituted on a judgment rendered in a court not of record, more than six years after the rendition of such judgment; and the appellant relies, in support of his objection, upon subd. 7 of § 382 and the last clause of § 414 of the Code of Civil Procedure.

The former of these provisions of the statute applies the six years’ limitation to “ an action upon a judgment or decree rendered in a court not of record,” and the latter declares that “the word action, contained in this chapter, shall be construed, when it is necessary so to do, as including a special proceeding or any proceeding therein or in an action.”

But the same statute, by subdivision 1 of § 414, expressly excepts from the provisions of the chapter in which it is contained the case of an action or proceeding for which a different limitation is specially provided by law, and § 2435 specially prescribes the limitation of ten years after the return of an execution for proceedings supplementary thereto.

The proceeding in this case was strictly within the provisions of the section last cited, as limited by reference therein to § 2458. It was instituted upon a judgment rendered upon personal service of a summons on the judgment debtor for a sum not less than twenty-five dollars, and on the return of an execution issued out of a court of record. The judgment, though rendered by a justice of the peace, was, by reason of the filing of a transcript in the office of the county clerk, to be deemed a judgment of the county court, and was to be enforced accordingly, § 3017, and the execution was issued out of that court by the county clerk.

There is nothing in the case of Dieffenbach v. Roch, 112 N. Y., 621; 21 N. Y. State Rep., 570, to support the appellant’s contention in this case. It was there held only that the judgment of a justice of the peace, of which a transcript was filed in the office of the county clerk, although it became thereby a statutory judgment of the county court, was not a judgment rendered in a court of record, and, therefore, that an action on such a judgment could not be maintained after the expiration of six years from the rqp.dition of the judgment. That decision was based upon the letter of the statute, § 382, subd. 7, supra, and does not conflict with the decisions to the effect that a judgment such as that in this case is a judgment of the county court for all the purposes of its enforcement. Such it has been held to be in the two cases in this department of Agar v. Tibbets, 46 Hun, 52; 11 N. Y. State Rep., 109, and Townsend v, Tolhurst, decided at the last term of this court. 32 N. Y. State Rep., 21. In the case last mentioned we sustained an order of the county court granting leave to issue an execution on such a judgment after the expiration of six years from the date of its rendition.

Another answer to the defendant’s objection to the order in question ought probably to be conclusive, viz.: that it was waived by not being taken in time. In analogy with the requirement of the Code, § 413, and of the common law, to the effect that the objection of the statute of limitations must be taken at the first appearance of the defendant, viz.: by answer, it would seem, that the same objection to a special proceeding should be taken on the return of the original order, or at least during the pendency of the proceedings, and that it cannot be reserved for a motion to vacate the final order in which the proceeding results. But we prefer to rest our affirmance of the order in this case upon the merits of the question, and to hold that the six years statute of limitations does not apply to a proceeding for the enforcement of a judgment which, for the purposes of its enforcement, is made by statute a judgment of the county court.

The order appealed from should be affirmed.

Macomber, J.

The judgment, upon which the proceedings for the appointment of a receiver were founded, was recovered in a court of a justice of the peace on the 31st day of March, 1880, a transcript of which judgment was filed in the Brie' county clerk’s office on the same day. An execution was duly issued upon the judgment by the county clerk, and was returned unsatisfied April 6, 1887, whereupon proceedings supplementary thereto were instituted, which resulted, on the 19th day of September, 1887, upon due notice to the defendant and on the appearance of himself and his attorney at the hearing of such motion and without objection on their part, in the appointment of Mr. Green as the receiver of the defendant’s property.

The motion now made is to set aside the appointment of such receiver, and the same is placed upon the ground that, inasmuch as six years had elapsed between the rendition of the judgment and the motion for the appointment of the receiver, the judgment had become inoperative and ineffectual to support any subsequent legal proceedings thereon.

By the Revised Statutes, 2 R. S., 247, §§ 127 and 128, a transcript of a judgment of a justice of the peace for twenty-five dollars, and upwards, exclusive of costs, could be filed and the judgment docketed in the clerk’s office of the county. It was provided that the judgment, after being so filed and docketed, “ shall be a lien on the real estate of the defendant within the county in the same mariner and with like effect as if such judgment had been rendered in the court of common pleas, and may in the same manner be discharged and cancelled.” It was further provided that all actions on judgments rendered in any court, not being a court of record, should be commenced within six years next after the cause of action accrued. Id., 295, § 18. The Code of Procedure, however, wrought a material change in these provisions of the Revised Statutes. By § 63 thereof, where a judgment was recovered in a justice’s court for any amount, a transcript thereof could be filed and the same could "be docketed in the county clerk’s office, and from that time the judgment was a judgment of the county court, but such judgment for a sum less than twenty-five dollars, exclusive of costs, was not a lien on or enforceable against real property. Section 90 of that Code permitted an .action upon a judgment or decree of any court of the United States, or any state or territory within the United. States, to be begun within twenty years after its rendition.

Section 3017 of the Code of Civil Procedure has substantially the same provision as existed under the Revised Statutes in this regard. It provides that a transcript of any judgment rendered in a justice’s court fqr any amount may be filed in the county clerk’s office, and that “ thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in § 3043 of this act, and that the judgment is not a lien upon and cannot be enforced against real property, unless it is for twenty-five dollars or more, exclusive of costs.” By subd. 7 of § 382 of the Code of Civil Procedure an action upon a judgment or decree rendered in a court not of record must be brought within six years from its rendition.

In the case of Dieffenbach v. Roch, 112 N. Y., 621; 21 N. Y. State Rep., 570, it was held that upon the docketing of the justice’s judgment in the county clerk’s office the same became a statutory judgment of the county court, yet it was not a judgment “rendered ” in that court, and that an action upon such judgment to compel a set-off of the same against a judgment of a court of record could not be maintained unless the same be brought within six years from the time the same was rendered in the court of the justice of the peace. But we do not understand that case to hold, that no proceedings can be had for the enforcement of the debt represented by a judgment recovered before a justice, where the same were not begun within six years from the time of the recovery of the judgment. There is nothing in that decision which detracts from the authority of the case of Waltermire v. Westover, 14 N. Y., 16, where it was held, that the filing of a transcript and docketing of a judgment rendered by a justice of the peace pursuant to the Revised Statute rendered it a lien on the real estate co-extensive in time with judgments recovered in the court of common pleas; and that though an action on such judgment was barred after six years, such statute of limitations did not extinguish or destroy the lien of such judgment when the same had been duly docketed in the county clerk’s office. That decision was given under the provisions of the Revised Statutes, which, as has been pointed out above, are substantially the same as the present Code of Civil Procedure, and that authority is consequently our guide in rendering the result on this appeal.

Furthermore, we held in the case of Townsend v. Tolhurst, decided April 11, 1890, and reported 32 N. Y. State Rep., 21, that a judgment creditor, upon application duly made to the county court, might obtain leave to issue execution on the justice’s judgment so filed and docketed, though more than six years had elapsed after the filing of the same in the county clerk’s office. Kincaid v. Richardson, 25 Hun, 237 ; Rose v. Henry, 37 id., 397. See also Herder v. Collyer, 6 N. Y. Supp., 513.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Corlett, J., concurs.  