Baldinger v. Turkowsky

Appellate Terms of the Supreme Court of New York

Baldinger v. Turkowsky

74 N.Y.S. 897

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1901

StatusPublished

This text of 74 N.Y.S. 897 (Baldinger v. Turkowsky) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baldinger v. Turkowsky, 74 N.Y.S. 897 (N.Y. Ct. App. 1901).

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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, 62 N. Y. Supp. 752. 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. Proc. §§ 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, 20 N. E. 560, 2 L. R. A. 829. 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 [898]*898supposed defect in the proof as a reason for dismissing the complaint, he must be deemed to have waived it.

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

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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, 62 N. Y. Supp. 752. 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. Proc. §§ 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, 20 N. E. 560, 2 L. R. A. 829. 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 [898]*898supposed defect in the proof as a reason for dismissing the complaint, he must be deemed to have waived it.

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

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Bluebook (online)

74 N.Y.S. 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldinger-v-turkowsky-nyappterm-1901.

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