Ryan v. Parr

16 N.Y.S. 829, 40 N.Y. St. Rep. 946, 61 Hun 624, 1891 N.Y. Misc. LEXIS 2271

Opinion

Per Curiam.

The order appealed from should be affirmed. The judgment which the execution was issued to collect was the judgment of the county court of Monroe etiunty. The Code makes no distinction in respect to the judgment between an appeal for a new trial and an appeal on questions of law. In either case it is a judgment of the county court. Sections 3063¹ and 3071² of the Code of Civil Procedure. Section 1319 ³ of the Code does not apply to appeals from a justice’s court to the county court. Chapter 12, of which that section is a part, relates only to appeals to superior city courts, the supreme court, and the court of appeals. It is so stated in the title of the chapter. The signature of the county clerk to the executions was unnecessary, and may be treated as surplusage. They were signed by the attorney, as they should be. The execution was not issued by a county clerk on a transcript of a judgment recovered before a justice of the peace, as provided by section 3033 ⁴ of the Code, and hence the appellant was not entitled to his discharge by delivering to the sheriff an affidavit under section 8034.⁵ The order appealed from should be affirmed, with $10 costs and the disbursements of the appeal against the appellant.

1

Code Civil Proc. § 3063, provides that on appeal from a justice’s court, in a case where appellant is not entitled to, or has not demanded, a new trial in the appellate court, the appeal must be heard upon the original papers, or a certified copy thereof; and the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits,'and it may affirm or reverse the judgment of the justice in whole or in part, or as to any or all of the parties, and for errors of law or of fact.

2

Section 3071 provides that, where a new trial is to be had in the appellate court, the action is deemed an action at issue in the appellate court; and all the proceedings therein, including the entry, enforcement, and review of the judgment, are the same as if the action had been commenced in the appellate court.

3

Section 1319 (of chapter 13, which by its title relates only to appeals to superior city courts, the supreme court, and the court of appeals) provides that where a judgment, from which an appeal has been taken from one court to another, is wholly or partly affirmed, or is modified upon the appeal, it must be enforced by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken.

4

Section 3033 declares that “if a person committed to jail by virtue of an execution issued by a justice of the peace, * * *. or by virtue of an execution issued by .a county clerk on a transcript of a judgment recovered before a justice of the peace, * * * has a family within the state for which he provides, he must be discharged after remaining in custody, either with or without being admitted to jail liberties, thirty days. ”

5

Section 3034 requires the prisoner, in order to procure his discharge under section 3033, to deliver to the sheriff an affidavit setting forth the facts entitling, him thereto