HERDER v. COLLYER

HERDER v. COLLYER. N. Y. Common Pleas, Special Term ; April, 1889. Execution upon justice's judgment.] An execution upon a justice’s : judgment may be issued upon leave being granted, after the expiration of six years, where a transcript of the judgment has been filed in the county clerk’s office. Motion for leave to issue execution. Peter Herder sued George R. Collyer and Dwight C. Crocker in a first judicial district court of New York city, and recovered a judgment against the defendants in that action on December 3, 1878, and on the same day filed a transcript of the judgment in the office of the clerk of the city and county of New York. Thereafter Peter Herder made an assignment for the benefit of creditors, and his assignee assigned the judgment to Nicholas Herder, who now moved for leave to issue an execution upon the judgment against the property of the defendants. W. Arrowsmith {Jeroloman da Arrowsmith, attorneys), for the motion, contended that the statute of limitations related only to the remedy and the statute (Code Civ. Pro. § 382) related only to the remedy by action; that the remedy by execution was not affected by the statute, and cited Waltermire v. Westover, 14 N. Y. 16; Johnson v. Albany & Susquehanna R. R. Co., 54 Id. 416 ; Kincaid v. Richardson, 25 Hun, 237. Wm. C. Reddy, for the defendant Crocker, opposed. [MAJORITY — Bookstaver, J.] Bookstaver, J. The court of appeals has recently decided in Dieffenbach v. Roche (Daily Register, March 18), that an action upon a justice’s judgment must be commenced within six years, but it was held in Waltermire v. Westover (14 N. Y. 16), that the limitation respecting the time within which an action might be brought did not effect the remedy by execution. The plaintiff should, therefore, have leave to issue execution against the defendant served and against the other defendant upon publishing the proper notice once a week for three weeks in two newspapers to be designated.