Prime v. Anderson

36 N.Y. Sup. Ct. 644

• Court: New York Supreme Court
• Decided: May 15, 1883
• Status: Published

Opinion

Dykman, J.:

This is an appeal from an order of the County Court of Westchester county, affirming an order of the City Court of Yonkers denying a motion by defendant to vacate an order made by the city judge for the examination of the defendant in proceedings supplementary to execution.

The judgment was recovered in the City Court of Yonkers, and an execution was issued thereon from that court to the sheriff of Westchester county, who returned the same unsatisfied in part. Thereupon the city judge4 made the order complained of. No transcript of the judgment was filed in the office of the county clerk, and no docket of the judgment was there made, and that omission is relied on to avoid the order.

The general provision of the Code is that an execution against property can be issued only to a county in the clerk’s office of which the judgment is docketed. (Code Civil Pro., § 1365.) But there is a special provision in the act for the organization of the City Court of Yonkers, by which every process and mandate, except the original summons, may be directed either to the sheriff of the county of Westchester or- the marshal of the court. (Laws of 1878, chap. 186, tit. 1, § 21.) Section 51 of the same title provides that whenever an execution against property of a judgment-debtor, upon a judgment rendered in the city court, shall be returned unsatisfied in whole or in part by the sheriff of Westchester county or by the marshal of the city court, and the debtor reside in the county of Westchester, the same proceedings may be had before the city judge as could be taken before the county judge of Westchester county upon a judgment recovered in the County Court of Westchester county. In that court, certainly, supplementary proceedings may.be instituted without the filing of a transcript, and these two sections taken together confer power on the City Court to issue an execution to the sheriff of Westchester county and' receive his returns as the foundation for, supplementary proceedings, without filing a transcript of the judgmeht in the office of the county clerk. The statute is special and intended to ‘ remove the City Court of Yonkers from the operation of the general statute requiring judgments to be so docketed. ' *

The City Court of Yonkers is made so independent that an execution out of it may issue directly to the sheriff, and no good purpose could be subserved by requiring a transcript of the judgment to be filed with the county clerk.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred. Present —Barnard, P. J., Dtkman and Pratt, JJ.

Order refusing to vacate order in supplementary proceedings affirmed, with costs and disbursements,