Baldinger v. Turkowsky

36 Misc. 822

Opinion

Scott, J.

It is well settled that it is not necessary to obtain leave to sue upon a judgment rendered in a district court, even although a transcript has been filed in the office of the county clerk. Harris v. Steiner, 30 Misc. Rep. 624. Municipal courts in this city have jurisdiction of actions founded upon judgments “ rendered ” in a district court of the city of New York. Code Civ. Pro., §§ 2862, 3215. Although after the transcript of such a judgment has been docketed in the county clerk’s office it is deemed to be a judgment of the Supreme Court, it still remains a judgment which has been “ rendered ” in the District Court. Dieffenbach v. Roch, 112 N. Y. 621. Consequently it is a judgment upon which an action can be brought in the Municipal Court. The defendant’s motion to dismiss was not on the general ground that the plaintiffs had not proved a case, nor upon the ground that it did not appear that the defendant here was the same person against whom the judgment was obtained. Doubtless if he had moved on either of these grounds the defect would have been supplied. Not having specified this supposed defect in the proof as a reason for dismissing the complaint he must be deemed to have waived it.

o

McAdam, P. J., and MacLean, J., concur.

Judgment reversed, and new trial granted, with costs to appellants to abide event.