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a. The clerk is bound to enter judgment on being paid the fee prescribed therefor, and cannot justify a refusal on the ground that fees for other services in the cause remain unpaid (Purdy v. Peters, 15 Abb. 160).

b. In Schenectady Plank Road Co. v. Thatcher (6 How. 226), it was held that the decision of the court in writing, when filed, is not the entry of judgment, but that in such a case, as in all others, the clerk must enter the judgment in the judgment-book. And see Lentilhon v. Mayor &c. of New York, 3 Sand. 721.

c. If, after the judgment is entered, a case is made, it may by order be annexed to the judgment-roll (Lynde v. Cowenhoven, 4 How. 327; Renouil v. Harris, 2 Sand. 641; and Church v. Rhodes, 6 How. 285; Anderson v. Dickie, 26 How. 201; 1 Rob. 700).

d. In common law actions, no judgment is pronounced, except by the record made up in the clerk's office. The final decree of a court of equity takes effect when it is declared by the court, and the record when made up, is only evidence of the decree (Butler v. Lee, 33 How. 251). A delay of the clerk in entering the judgment in the judgment-book, does not affect its validity (Butler v. Lee, 3 Keyes, 76; Lynch v. Rome Gas Light Co. 42 Barb. 591).

e. The courts will enforce agreements to stay entry of judgment (Jay v. De Groot, 28 How. 107).

f. Filing a request to the clerk to docket a judgment, the clerk's giving a transcript, and the filing a transcript, held a compliance with this section (Appleby v. Barry, 2 Rob. 689). Forcing a party to enter judgment, see in note to § 331 post, and see Rules 9, 72.

$281. (Am'd 1849, 1851, 1852.) Judgment-roll.

Unless the party or his attorney shall furnish a judgment-roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment-roll:

1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment.

2. In all other cases, the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment.

g. Judgment-roll.—It is the clerk's, and not the attorney's duty, to make up the judgment-roll (Renouil v. Harris, 2 Sand. 641; Earle v. Barnard, 22 How. 437). It is optional with the prevailing party to furnish & judgment-roll or not, and he cannot be compelled to furnish a judgment-roll (Heinemann v. Waterbury, 5 Bosw. 686). And see § 422.

h. The bill of costs, notice of adjustment, and affidavit of disbursements, should not be annexed to the judgment-roll; and if they are, the court will order them to be taken off (Schenectady Plank Road Co. v. Thatcher, 6 How. 226). The affidavit and order of arrest are no part of the record, and should not be engrafted upon it or entered in it (Corwin v. Freeland, 6 N. Y. 565). The affidavit on which a requisition to the sheriff to take personal property is founded (§ 207), forms no part of the judgment-roll (Kerrigan v. Ray, 10 How. 215). The provisions of the code regulating the mode of entering the judg

ment and the filing the judgment-roll, are not to be considered imperative, but merely directory (Stimson v. Huggins, 9 How. 86; 16 Barb. 658).

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a. A judgment-roll upon a judgment by default,” besides the summons and complaint, must contain evidence that the summons was served and that no answer has been received, thus showing that the court had jurisdiction over the defendant, and that he had waived his right to defend. If the defendant has appeared and an issue has been joined, it must appear from the roll how that issue has been disposed of, so as to authorize the court to proceed to judgment. When an issue of fact has been tried by a jury, a copy of the verdict entered in the manner prescribed by § 264, must be inserted in the roll. If the issue has been tried before a referee, his report must appear in the judgment-roll. If the trial of the issue be before the court, without a jury, when the record is made up, the decision becomes a necessary part of it. If there are any other papers which materially affect the judgment, these also should appear in the roll. The opinion, if any, should not be inserted in the judg ment-roll (Thomas v. Tanner, 14 How. 427).

b. The proof of service of the summons and complaint is no part of the record on demurrer (Smith v. Holmes, 19 N. Y. 271); but proof of service of the summons where the defendant does not appear, forms part of the judgment-roll (Macomber v. Mayor of N. Y. 17 Abb. 36; Thomas v. Tanner, 14 How. 427).

c. The omission in a judgment record of a pleading stated to have been withdrawn before judgment, and to have been lost or mislaid, does not affect the validity of the record or judgment (Hatcher v. Rocheleau, 18 N. Y. 87). A demurrer which a party has abandoned, like a pleading which has been amended, is no longer a part of the record (Brown v. Saratoga R. R. Co. id. 495).

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d. Omitting to annex the summons and complaint to the judgment-roll, is an irregularity only; it does not prevent there being a judgment in the action (Martin v. Kanouse, 2 Abb. 393; and see Calkins v. Parker, 21 Barb. 276; Cook v. Dickinson, 1 Duer, 679; Conolly v. Conolly, 16 How. 224; but see Townshend v. Wesson, 4 Duer, 342; Decker v. Judson, 16 N. Y. 450). original summons is not a necessary part of the judgment-roll. (Hoffnung v. Grove, 18 Abb. 14); nor is the bill of particulars (Kreiss v. Seligman, 8 Barb. 440). Where there have been two trials, the judgment record upon the second trial should not embrace the case made upon the first trial (Wilcox v. Hawley, 31 N. Y. 648).

e. Signing by the clerk is not indispensably necessary to the validity of a judgment (Artisan's Bank v. Treadwell, 34 Barb. 553; Townshend v. Wesson, 4 Duer, 342; Macomber v. Mayor of N. Y. 17 Abb. 45).

f. That damages were assessed against the defendant in the court below, without any affidavit proving his default in not answering, is a matter of practice not reviewable in the court of appeals, upon an appeal from the judgment (Catlin v. Billings, 16 N. Y. 622).

g. A variance between the form of judgment, as entered on the clerk's minutes and as entered in the judgment-roll, is an irregularity which must be taken advantage of within one year (Martin v. Lott, 4 Abb. 365).

§ 282. (Am'd 1867, 1869.) Judgment, when and how to be docketed. Lien-Secured on appeal.

Upon filing a judgment-roll upon a judgment directing in whole or in part the payment of money, it may be docketed with the clerk of the county where the judgment-roll was filed, and in any other county upon the filing with the clerk thereof a transcript of the original "docket," and shall be a lien on the real property

in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where the judgment-roll was filed. But the time during which the party recovering or owning such judgment shall be or shall have been restrained from proceeding thereon, by any order of injunction, or other order, or by the operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith.

But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, the court in which such judgment was recovered, may, on special motion after notice to the person owning such judgment, or to his attorney, and to the sureties to such undertaking, on such terms as such court shall see fit, by order exempt from the lien of such judgment the whole of the real property upon which said judgment is a lien, or a specific portion thereof to be described in such order, and direct an entry to be made by the clerk on the docket of such judgment that the same is "secured on appeal,” except that in case only a specified portion of such property is exempted from such lien, such order shall direct an entry to be made on such docket that the same is "secured on appeal as per order of the court, dated-," specifying the date of such order; and thereupon such judgment shall cease during the pendency of such appeal to be a lien upon the property so exempted as against purchasers and mortgagees in good faith.

a. Lien.—This provision as to lien applies to judgments in the United States courts (Crandell v. Cropsey, 10 N. Y. Leg. Obs. 1).

b. A judgment-roll delivered to the clerk to be filed before the hour prescribed by law for opening his office (2 R. S. 285, § 54, laws 1860, ch. 276), will be considered as filed at the hour for opening his office. No preference can be gained by taking a judgment-roll to the clerk's office before that hour (10 Wend. 573; and see France v. Hamilton, 26 How. 180).

c. The perfecting an appeal, and giving security to stay proceedings on the judgment, does not prevent the respondent from filing transcripts of the judgment appealed from (Bulkley v. Keteltas, 1 Code Rep. N. S. 119).

d. A judgment does not lose its lien upon real estate, by the suffering an execution issued thereon to lie dormant in the sheriff's hands (Muir v. Leitch, 7 Barb. 341). No indulgence or negligence of the sheriff in selling, without any act of the plaintiff, will render an execution dormant as to subsequent

purchasers (Talbert v. Melton, 9 Sme. & M. 9). Where the lien of a judgment has ceased by lapse of time, perhaps the court will interfere in a summary way, and order a perpetual stay of execution (Wilson v. Smith, 2 Code Rep. 18).

a. The liens of judgment creditors, if the land be sold on a prior judgment, are transferred to the surplus, which must be applied to them in their order of priority (Averill v. Loucks, 6 Barb. 470).

b. A judgment filed and docketed after the decease of the defendant, does not bind real estate (Clarke's case, 15 Abb. 227).

c. A mortgage for subsequent advances, takes priority of a judgment obtained intermediate the mortgage and making the advances (Robinson v. Williams, 22 N. Y. 380).

d. Priority of judgments in distribution of estates in surrogates' courts, depends upon the date of their recovery, not the date of docketing (Harned's case, 4 Abb. 270). A judgment for costs recovered against husband and wife during coverture, did not bind the wife's separate estate (Tisdale v. Jones, 38 Barb. 523).

e. Where a judgment is vacated and afterwards the order vacating it is reversed, the lien of the judgment is revived, except as to intervening bona fide purchasers or incumbrancers (King v. Harris, 34 N. Y. 330).

f. The tender of the amount due upon a judgment not accepted, does not operate to extinguish the lien (The People v. Beebe, 1 Barb. 379; see however, Kortright v. Cady, 21 N. Y. 343).

g. When the amount due on a judgment is paid by one not bound by it, the judgment is extinguished or not, according to the intent of the payer. (Harbeck v. Vanderbilt, 20 N. Y. 395; and see Alden v. Clark, 11 How. 209).

h. On a judgment against principal and surety, the surety may pay the amount of the judgment and take an assignment of it and prosecute the judgment against the principal (Alden v. Clark, 11 How. 209). A judgment cannot be kept alive after it is satisfied (Conor v. Hernstein, 6 Rob. 552).

i. A judgment against several defendants for separate sums, but providing that in case of the insolvency of any such defendants the others shall be liable in a fixed proportion, but not to exceed a certain sum, is to be docketed as a judgment for the amount of the ultimate contingent liability (Rankin v. Sacchi, 16 Abb. 368).

j. A judgment docketed correctly as to the christian and surname of the defendant, but incorrectly as to the initial of the middle name, the docket was afterwards corrected,-held that the judgment took priority as a lien from the date of the original docketing, as against subsequent judgments obtained before the correction (Geller v. Hoyt, 7 How. 265; and see Aylesworth v. Brown, 10 Barb. 167).

k. The date and order of a judgment lien is in all cases a question of time, depending on the day and hour when the judgment was docketed (Blydenburgh v. Northrop, 13 How. 289).

7. The lien of a judgment does not in equity attach upon the mere legal title to lands, existing in the defendant when the equitable title is in another. Lounsbury v. Purdy, 11 Barb. 490; 16 Barb. 376; 18 N. Y. 515; Averill v. Loucks, 6 Barb. 20; see Parshall v. Shirts, 54 Barb. 99). Judgments do not become liens on leasehold premises unless or until the judgment debtor, the lessee, is in posession (Crane v. O'Connor, 4 Edw. Ch. R. 409). As to liens against lands contracted to be sold (Smith v. Gage, 41 Barb. 60).

m. As to docketing and filing transcripts of judgments against stockholders in banking corporations see laws 1863, ch. 372, § 6.

n. Secured on appeal.-[This provision does not apply to judgments docketed prior to July 10, 1851.] The sureties upon an appeal are not entitled to notice of an application on the part of the applicant for an order directing an entry secured on appeal on the docket (Livingston v. Roberts, 3 Abb. 231; 5 Duer, 680). The order does not discharge them (Burrall v. Vanderbilt, 6 Abb. 70). The granting or refusing such an order rests in the

discretion of the court (Fitch v. Livingston, 4 Sand. 712; Orchard v. Binninger, 4 Abb. N. S. 368; Livingston v. Roberts, 3 Abb. 231). And it may direct the entry on such terms as it may deem fit (Bergen v. Stewart, 28 How. 6). The leave to make this entry cannot be granted until security be given sufficient to stay execution (Hoppock v. Cottrell, 13 How. 461). The order will not be granted where the respondent has done any act whereby the sureties on the appeal are discharged of their liability. As where the respondent has since perfecting the appeal released from the operation of the judgment part of the appellant's real estate (Wells v. Kelsey, 25 How. 384; 16 Abb. 221, note).

a. No appeal lies from an order denying an application for leave to make the entry (Fitch v. Livingston, 4 Sand. 712). It may be referred to a referee to report on the sufficiency of the sureties (Munn v. Barnum, 2 Abb. 411).

b. Setting aside judgment for irregularity.-What degree of laches in moving to set aside a judgment for irregularity will authorize the court to set aside the motion (Martin v. Lott, 4 Abb. 365).

c. Semble, a motion to set aside a judgment must be made in the district in which the action was triable (Gould v. Torrance, 19 How. 560).

d. Motion to set aside a judgment for irregularity must be made within one year (see ante, p. 273, b, 430, g; and Park v. Church, 5 How. 381; Cook v. Dickerson, 1 Duer, 687). This does not apply to a motion to set aside a void judgment (Hallett v. Righters, 13 How. 43).

e. Only a party to the record, or one having an interest to protect, can move to set aside a judgment (Re Beers, 5 Rob. 643).

TITLE IX.

Of the execution of the judgment in civil actions.

CHAPTER I. THE EXECUTION.

II. PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION.

CHAPTER I.

The Execution.

SECTION 283. Execution within five years, of course.

284. Execution can only be issued by leave of court after five years. Leave, how obtained.

285. Judgment, how enforced.

286. The different kinds of execution.

287. To what counties execution may be issued. Execution against a married woman.

288. Execution against the person, in what cases.

289. Form of the execution.

290. Execution to be returnable in sixty days.

291. Existing laws relating to execution continued.

$283. (Am'd 1866.)

(Am'd 1866.) Execution within five years, of course. Writs of execution for the enforcement of judgment as now used, are modified in conformity to this title, and the party in

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