Danzilo v. Danzilo

163 A.D. 617, 148 N.Y.S. 996, 1914 N.Y. App. Div. LEXIS 7020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 31, 1914
• Status: Published

Opinion

Thomas, J.:

The plaintiff recovered against defenclant a judgment in the Municipal Court in the borough of Brooklyn in May, 1914, and a transcript thereof was filed with the county clerk of the county of Kings on May eleventh, and at a date not given the defendant appealed to the Appellate Term. The Supreme Court has suspended the lien pending the appeal. The question is whether the power to suspend the lien is in that court, and if not, whether it is in the Municipal Court, which, notwithstanding the transcript filed, retains the power under section 261 of the Municipal Court Act to vacate, set aside or modify the judgment. That section, however, provides that after transcript filed “the judgment is deemed a judgment of the Supreme Court and may be enforced accordingly.” The appellant urges against the power of the Supreme Court to act: (1) That the lien cannot be suspended until the appeal is perfected (Code Civ. Proc. § 1256), and that only a notice of appeal with a bond had been served; (2) that only “ the court in which the judgment was recovered ” may suspend the lien (Code Giv. Proc. § 1256), and that the judgment is not recovered in the Supreme Court by virtue of transcript filed (Dieffenbach v. Roch, 112 N. Y. 621, construing Code Civ. Proc. § 3017); that the order suspending the lien “must direct the clerk, in whose office the judgment-roll is filed ” to make an entry on the docket of the judgment, and that the judgment roll is filed in the Municipal and not in the Supreme Court. The judgment became a lien on real estate only after transcript filed with the county clerk (Municipal Court Act, § 263), which cannot be done pending return of execution from the Municipal Court, and after transcript filed execution can issue only from the county clerk. (Municipal Court Act, § 260.) The judgment after transcript filed is that of the Supreme Court and not that of the Municipal Court; the judgment in the Municipal Court is not a lien on land, and the lien arises only upon filing the transcript. Can the Municipal Court, then, suspend the lien, which does not exist by virtue of its creation, and is foreign to its control? On the other hand, the statute enables only the court that rendered the judgment to suspend the lien and the clerk in the office where the judgment roll is filed to note the suspension. Section 261 (Municipal Court Act) clearly distinguishes the court in which the judgment was rendered, and section 1256 enables that court only to suspend the lien. To sustain the order, that section must be refashioned and words eliminated that are there and words interpolated that are not there, and I am not disposed to take such liberty with it. The language would enable the Municipal Court to suspend the lien, although the lien arises in another court. Section 3347 (Code Civ. Proc.), subdivision 8, does not exclude from Municipal Courts the application of section 1256 (Code Civ. Proc.) and sections 1257-1259 (Code Civ. Proc.) indicate that it has the power. Section 1259 requires the clerk in whose office the judgment of affirmance is entered, in this case the Municipal Court, to docket anew the judgment of affirmance and write upon the new docket “Lien restored by redocket,” and that a transcript of the new docket he furnished to the county clerk, “in whose office an entry of the suspension of the lien has been made, as prescribed in the last two sections; and thereupon the judgment must be docketed by him anew.” Looking back to section 1257, it is found that “if the order [of suspension] was made by a court, other than the Supreme Court or a County Court; the order operates as a suspension, from the time, when the proper entry is made in the docket-book, kept by the clerk of that county, as prescribed in the next section.” The next section (1258) provides that the clerk with whom the order is entered must furnish “one or more transcripts * * * of the docket of the judgment, including the entry made upon the docket, ” and that a county clerk where the judgment is docketed must file the transcript and enter upon the docket of the judgment where it appears on his docket book “ ‘Lien suspended’ * * * according to the entry upon the original docket, and also, ‘See transcript filed.’” I understand by this that if a court other than the Supreme or County Court make the order, a transcript with a note of the suspension may be filed with a county clerk, who shall note the suspension wherever there is an entry of a docket of the judgment on his docket book, and that by section 1259 the clerk where the judgment of affirmance is entered shall docket the judgment anew with the words “Lien restored by redocket,” and that a transcript of the new docket furnished to a county clerk shall be redocketed accordingly. This procedure seems to enable the Municipal Court to suspend the lien, and restore it on affirmance and to issue transcripts to a county clerk accordingly. In any case, the Supreme Court is not enabled to suspend the lien, and the order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Burr, Carr, Rich and Stapleton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.