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a. Execution. The execution is in all cases to be returnable in sixty days (Bander v. Burley, 15 Barb. 604); but it is no sufficient objection to an execution that it calls for its return within sixty days” (Price v. Shipps, 16 Barb. 585); it should be against personal property only (Fisher v. Safford, 1 E. D. Smith, 612). No time for the ruturn need be inserted, and if inserted, may be treated as surplusage. The issuing and renewal of an execution probably ought to be considered the same thing; and regularly neither can be done after five years from the entry of the judgment (Worse v. Gould, 11 N. Y. 285; Bates v. James, 3 Duer, 45). After a transcript of a judgment has been filed in the office of the county clerk, the rules which govern the issuing execution upon it (except as specially provided) are those which apply to the common pleas (Ginochio v. Figari, 2 Abb. 185). An attorney-at-law may issue an execution in such a case (Simpkins v. Page, 1 Code R. 107; Brush v. Lee, 1 Trans. App. 66 ; 34 How. 283).
b. Renewal of execution.—An execution may be renewed (Laws of 1857, ch. 512), without a return of no goods endorsed thereon (Wickham v. Viller, 12 Johns. 320); and this without any written return, and after the return day, and repeatedly (Visger v. Ward, 1 Wend. 551; The People v. Hopfon, 1 Denio, 574).
e. Satisfaction. A mere levy is not a satisfaction of a judgment (see Chapman v. Fuller, 7 Barb. 70). Payment of a judgment, the judgment creditor not forbidding, may be made to the justice (Dexter v. Breat, 16 Barb. 337).
d. Compelling execution.-A mandamus lies to compel the issuing an execution (The People v. Clerk of Marine Court, 3 Abb. 309).
€. Amending return.-A constable having returned an execution satisfied by sale, cannot afterwards annul that return by a supplementary indorsement on the execution (Ross v. Hicks, 11 Barb. 481).
f. Contempts.-A justice of the peace may punish a defaulting witness or juror, after the suit in which the default occurred is terminated (Robbins v. Gorham, 25 N. Y. 588; 26 Barb, 586).
9. The application for an attachment against a witness for non-attendance may be based on an oral oath without writing (Baker v. Williams, 12 Barb. 527).
Of Justices and other Inferior Courts in Cities.
II, Justices' courts in New York city.
CHAPTER II. Justices' Court in New York City. $ 66. (Am'd 1870.) Landlord proceedings. Stenographer. Trial fee.
The district courts of the city of New York shall have such jurisdiction as is provided by special statutes; and proceedings
under article two, of title ten, of chapter eight, of part three, of the Revised Statutes, may be had before any justice of such courts, without regard to the district in which the premises are situated; and the affidavits used in such proceedings may be taken before any officer authorized by law to take affidavits; and the justices of the district courts of the city of New York are hereby respectively authorized to appoint a stenographer in their several courts, whose duty it shall be to take full stenographic notes of all proceedings in trials had therein; he shall hold his office during the pleasure of the justice of the court, and shall receive a salary of two thousand dollars
per annum out of the city treasury. The clerks of the said district courts shall collect, in all cases in which a trial is had, the sum of one dollar, in addition to the other fees authorized by law, and shall pay the same into the city treasury in like manner with other fees collected by them.
The Justices' Courts of Cities. 67. Jurisdiction. The justices' courts of cities shall have jurisdiction in the following cases, and no other :
1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.
2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars.
General Provisions. § 68. (Am'd 1849, 1851.) Sections 55 and 6+ applied.
The provisions of sections 55 to 64, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judg. ments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that after the discontinuance of the actions in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof; and ex
cept, also, that in the city and county of New York, a judgment for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien and be enforced in the same manner as, and be deemed, a judgment of the court of common pleas for the city and county of New York.
a. Justice to give transcript.—The justice is bound to give a transcript on demand to any party interested in the judgment, and on being paid for such transcript (Laws 1841, p. 114). If he refuses, a mandamus will lie to compel the delivery of the transcript (8 Cow. 133). The filing a transcript deprives the justice of any further control over the judgment (Re Sholts, 2 Cow. 506). The transcript may be made after the expiration of the justice's term of office (Maynard v. Thompson, 8 Wend. 393); and it need not show jurisdiction on its face (Jackson v. Rowland, 6 Wend. 666; Jackson v. Jones, 9 Cow. 182; 10 Cow. 233). It may by order be filed nunc pro tunc (Roth v. Schloss, 6 Barb. 380). It need not show the proceeding to give jurisdiction, in order to authorize it to be filed and docketed (Dickinson v. Smith, 25 Barb. 102).
b. Lien of Judgment.—The lien of a justice's judgment, of which a transcript was filed, and docketed with the county clerk, pursuant to 2 R. S. 247, § 128, continued a lien against the defendant for twenty years (Waltermire v. Westocer, 14 N. Y. 16). As to judgments recovered since the code took effect (see Nichols v. Attwood, 16 How. 475; Young v. Reimer, 4 Barb. 442; Geller v. Hoyt, 7 How. 265). Lien not affected by certain errors in transcript (Sears v. Burnham, 17 N. Y. 445).
c. After filing transcripts of judgment of a justice's court, the county court has such a control over the judgments as to enable it to order set-off between them (Hayden v. McDermott, 9 Abb. 14; and see Lyon v. Manly, 18 How. 267; 10 Abb. 337; 32 Barb 51), but cannot vacate the judgment on motion (Martin v. Mayor of N. Y. 20 How. 86).
d. Filing transcripts for less than $25: see Candee v. Gundelsheimer, 17 How. 434; 8 Abb. 435 disapproved, Vultee v. Whitehead, 2 Hilton, 596 ; Butts v. Dickinson, 12 Abb. 60; Anon. 32 Barb, 201.
OF CIVIL ACTIONS.
TITLE I. THEIR FORM.
II. TIME OF COMMENCING THEM.
Form of Civil Actions.
SECTION 69. Distinction between actions and suits abolished.
70. Parties how designated.
$ 69. (Amd 1849).
Distinction between actions and suits abolished.
The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.
See note in the 8th edition of this work.
$ 70. (Amd 1849.) Parties how designated.
In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.
$71. Actions on judgments.
No action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the counts, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.
a. Action on judgment.-An action cannot be brought upon a judgment of a district court, or the marine court of the city of New York, between the same parties, without leave of the court (Thompson v. Stutpher, 2 E. D. Smith, 527; Mills v. Winslow, id. 18). But an executor or administrator of a deceased judgment creditor (Wheeler v. Dakin, 12 How. 537), or a bona fide assignee of a judgment may sue upon the judgment without leave (Tuffts v. Braisted, 1 Abb. 84; 4 Duer, 607; Kopper v. Houe, 2 Hilton, 69); and an action in the nature of a creditor's bill may be brought without the leave of the court first obtained (Catlin v. Doughty, 12 How. 457 ; Quick v. Keeler, 2 Sand. 231 ; Dunham v. Nicholson, 2 Sand. 636). Where a justice's judgment is docketed in the county court, no action can be brought thereon without leave of the county court (Lyon v. Manley, 32 Barb. 51; 10 Abb. 337; 18 How. 267) A proceeding under section 375 is not an action on the judg. ment (Dean v. Eldridge, 29 How. 218 ; Prince v. Cujas, 7 Rob. 76 ; Lane v. Silter, 4 Rob. 239). A defendant may, without leave of the court, by answer, and as a set-off or counter-claim, rely on a judgment in his favor against the plaintiff ( Wells v. Henshar, 3 Bosw. 625), especially if he be an assignee of the judgment (Clark v. Story, 29 Barb. 295).
b. In an action in a justice's court on a judgment, the complaint showed that the judgment had been docketed with the county clerk. The answer was that the action could not be maintained, because no action could be maintained on a judgment of the county court; held a sufficient statement of the objection that leave of the court was necessary (Lyon v. Manley, 10 Abb. 337; 32 Barb. 51 ; 18 How. 267).
c. No action can be maintained on a judgment for want of an answer obtained on a service of the summons by publication (Force v. Gover, 23 How. 294; Kane v. Cook, 8 Cal. 449; and see Fiske v. Anderson, 33 Barb. 71;
d. This section applies to judgments rendered before the code took effect (Finch v. Carpenter, 5 Abb. 225).
6. Bringing an action on a judgment without leave is an irregularity, which may be waived by the defendant not objecting in time or otherwise (Lane v. Sulter, 4 Rob. 239). The proper remedy, where an action is brought upon a judgment without leave, in a case where leave is necessary, is by motion to set aside the summons and complaint (id. Finch v. Carpenter, 5 Abb. 225). On such a motion, leave to sue should not be granted nunc pro tunc, but the plaintiff should be left to a motion (id.)
1. Joint stock companies. As to actions on judgments against joint stock companies or associations, see laws 1853, p. 283.
The members of a joint stock company cannot be sued as such, until after suit against the company as prescribed by statute, and a judgment and an execution returned unsatisfied (Robins v. Wells, 26 Barb. 15; Vanderbilt v. Garrison. 3 Abb. 361).
12 Abb. 8).