General
MARTIN a. THE MAYOR, &c., OF NEW YORK
12 Abb. Pr. 243·New York Court of Common Pleas·1861·NY
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Opinion
MARTIN a. THE MAYOR, &c., OF NEW YORK.
New York Common Plea;
General Term, March, 1861.
Justice’s Judgment docketed in County Clerk’s Office.— Marine Court.—Comptroller’s Application to open Judgment.
The New York Marine Court cannot open judgments rendered by them, unless the same were obtained by default.
The act of 1859, giving the comptroller power to take all necessary means to open collusive and fraudulent judgments against the city, does not give to the Marine Court such power.
Though a transcript of such judgment has been filed in the county clerk’s office, the Common Pleas have no power to open the judgment.
The provision of § 68 of the Code, as amended in 1851,—that judgments of such a court, when docketed in the county clerk’s office, shall be deemed judgments of the Common Pleas,—means that they are to be so considered, simply for the purpose of enforcement.
When a transcript of a judgment recovered in the Marine or in a Justice’s Court has been filed in the county clerk’s office, the court where the judgment was recovered can no longer issue execution, but the judgment must be enforced by an execution in the Court of Common Pleas alone.
On an application by the comptroller to the Common Pleas to open a judgment against the city, recovered in the Marine Court, the proper course is to enjoin the plaintiff from proceeding, without prejudice to his right to sue on the judgment in a court of record.
Appeal from an order in proceedings by the comptroller of the city of New York, to open judgments against the city.
The facts are fully stated in our report of the decision on the motion (11 Ante, 295), where the above points were held.
The plaintiffs appealed from the order to the general term.
Geo. P. Thompson, for the appellants.
Elbridge T. Gerry and Wm. Curtis Noyes, for the respondent.
[MAJORITY — By the Court.]
By the Court.
—We agree that the orders appealed from in these cases should be affirmed, for the reasons stated by Judge Daly at special term. (11 Abbotts’ Pr., 299.)
Orders appealed from affirmed, with $10 costs.