Rose v. Henry

44 N.Y. Sup. Ct. 397

• Court: New York Supreme Court
• Decided: September 15, 1885
• Status: Published

Opinion

DvKman, J.:

The plaintiff obtained a judgment in a court of a justice of the peace against the defendant in October, 1877. A transcript of the judgment was issued by the justice and the judgment was docketed in the office of the county clerk of Dutchess county, in March, 1885, more than six years after the rendition of the judgment. Thereupon the plaintiff made a motion in the County Court of Dutchess county for permission to issue execution on the judgment, which was denied and the plaintiff appealed from the order.

A judgment of a court of a justice of the peace is barred by the statute of limitations after the lapse of six years from the time of its rendition. (Code Civil Pro., § 382, sub. 7.) But the statute operates only on the remedy by action. (Coleman v. Burr, 25 Hun, 239.) The judgment was neither extinguished nor dead. Even a civil action could have been maintained upon it if the statute of limitations had not been interposed as a defense. It follows, therefore, that the judgment in question was not annihilated by time when the transcript thm-eof was filed and the judgment was docketed in the office of the county clerk, and the statute providing for the filing of the transcript and docketing of the judgment prescribes no time within which the same must be done. But the provision ii peremptory that the justicé must deliver the transcript, and the county clerk must file the same and docket the judgmentas of the time of the receipt of the transcript.” * * * Thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly. (Code of Civil Pro., § 3017.) So that, unprejudiced by the lapse of time, the party obtaining a judgment in a court of a justice of the peace may procure the same to be docketed as of the time of the receipt of the transcript by the county clerk, and from thenceforth the judgment is deemed a judgment of the County Court. No intention to limit the time is expressed or implied.

Statutes of limitation do not impair the obligation of contracts nor discharge legal rights. They are simply provided to operate on the remedy from principles of public policy, when their aid is invoked, and they are to receive strict construction being in derogation of common-law rights. Such being the rule the six years’ statute of limitations can have no application here, because it is in terms confined to the particular remedy by action.. The remedy by execution is not subverted, but fully provided without restriction or limitation, and there is no statutory provision to interfere with its pursuit.

The order appealed from should be reversed, with costs and disbursements, and the motion should be granted without costs.

BarnaRD, P. J., concurred.

Order refusing leave to issue execution reversed, with costs and disbursements.