In the Matter of the Petition of PETER MURPHY, Appellant, for an Order Directing the CLERK OF THE COUNTY OF NEW YORK, Respondent, to File Transcript.
APPEAL by the petitioner, Peter Murphy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of March, 1912, denying a motion to compel the county clerk
to file a transcript of a judgment recovered in the Municipal Court.
Louis Sturcke, for the appellant.
Terence Farley and Leon G. Godley, for the respondent.
INGRAHAM, P. J.:
The petitioner noticed a motion at a Special Term of the Supreme Court for an order directing the county clerk to file in his office pursuant to section 261 of the Municipal Court Act a transcript of a judgment set out in a petition then presented to the court. The transcript of judgment was one issued on the 1st of November, 1902, and in favor of Peter Murphy against Axel Winters for $327, which judgment was filed on October 28, 1902. The court denied the motion without an opinion and from the order entered thereon petitioner appealed. It is quite clear that as a motion the Special Term of the Supreme Court had no jurisdiction to award to the petitioner the relief he sought. The county clerk in filing a transcript from an inferior court acts as a county officer under the Constitution. He does not act as the clerk of the Supreme Court and the Supreme Court has no other jurisdiction over him than it has over other State and county officers to require them by a proper State writ to perform their duties. The corporation counsel in his argument before us treats this as an application for a mandamus, but as no mandamus was asked for in either the petition or the moving papers, I do not think we should reverse the Special Term in refusing to grant such a motion. Even if the contention of the petitioner was correct and he was entitled to have the transcript filed, the judgment debtor was not informed of the application, and if the application had been for a mandamus I think the judgment debtor would be entitled to notice of the application, as by filing the transcript there was a judgment lien created which affected his property. This application was made almost ten years after the judgment had been rendered, and he was at least entitled to show before a lien against his property was created that the judgment had been paid or otherwise discharged. As the question of whether the petitioner was entitled to have this transcript filed more than six years after the date of the rendition
of the judgment is presented to the courts for the first time, and as the corporation counsel seems to treat the case as if it were an application for a mandamus, it is proper that we should express our opinion upon that question.
As before stated this judgment was recovered on October 28, 1902. No transcript was filed and it is alleged in the petition that no part of the judgment has been paid and no execution has ever been issued upon it. On the 1st of February, 1912, more than nine years after the judgment was entered, this transcript was presented to the county clerk, and it was demanded that the county clerk file the transcript pursuant to section 261 of the Municipal Court Act. That section provides: 'The county clerk of the county in which the judgment was rendered, must, upon the presentation of the transcript and payment of the fees therefor, indorse thereupon the date of its receipt, file it in his office, and docket the judgment, as of the time of the receipt of the transcript, in a book kept by him for that purpose, as prescribed by law.' (Laws of 1902, chap. 580, § 261, as amd. by Laws of 1908, chap. 495.) In this section no time is specified within which the county clerk is required to docket the judgment, but section 20 of the act provides that 'the provisions of the Code of Civil Procedure * * * as they may be from time to time, shall apply to the Municipal Court as far as the same can be made applicable, and are not in conflict with the provisions of this act.' Under this section the provisions of the Code of Civil Procedure apply to Municipal Court judgments and transcripts issued thereon. ( Johnson v. Manning, No. 1, 75 A.D. 285; Raphael v. Mencke, 28 id. 91.) It is conceded that the petitioner had lost the right to enforce this judgment of the Municipal Court at the time he applied to file this transcript. By section 260 of the Municipal Court Act (as amd. by Laws of 1908, chap. 495) it is provided that 'an execution may be issued on a judgment of the Municipal Court at the option of the judgment creditor, either by the county clerk directed to the sheriff as prescribed by law, after the filing of a transcript of judgment, as provided in the next section, or by the clerk of the Municipal Court in the district in which the judgment was entered, within six years thereafter, directed to a marshal.' As more than six years had
expired after the rendition of the judgment no execution could be issued upon it by the clerk of the Municipal Court, and as no transcript had been filed no execution could be issued by the county clerk. No action could be brought on this judgment, as under subdivision 7 of section 382 of the Code of Civil Procedure no action can be brought upon a judgment of a court not of record after six years from the time the judgment was rendered except where a transcript shall be filed. The judgment was, therefore, as it stood, unenforcible. If the transcript had been promptly docketed, or if the judgment itself had been the judgment of the Supreme Court, its lien as upon the judgment debtor's property would have expired and no execution could have been issued upon the judgment except with leave of the court. As before stated, section 261 of the Municipal Court Act makes no provision as to the time within which this transcript must be filed. There is no provision in the Code to which our attention has been called which in express terms provides as to the time in which the judgment of a court not of record is presumed to have been paid, except in a case where a transcript has been filed in which it is presumed to have been paid twenty years after the rendition of the judgment (Mun. Court Act, § 262), and that assimilates the provision in relation to a judgment of the Supreme Court to a judgment of the Municipal Court which is provided for by section 376 of the Code of Civil Procedure. The provision as to the time within which a transcript from a Justice's Court may be filed is regulated by section 3017 of the Code of Civil Procedure, and the time is limited to six years after the rendering of the judgment. But for the provision in section 261 of the Municipal Court Act, it is apparent that this provision of section 3017 would control, and that as the petitioner had allowed six years to elapse after the rendition of the judgment he would not be entitled to file a transcript. The question is whether the provisions of section 3017 of the Code of Civil Procedure are inconsistent with section 261 of the Municipal Court Act, which makes no provision as to time, and only provides for a filing of the transcript.
I cannot see that both of these sections cannot be applied. Undoubtedly if section 261 of ...