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commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect, and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that, after the discontinuance of the actions in the inferior court upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof, and except also that in the city and county of New York, a judgment for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county shall have the same effect as a lien, and be enforced in the same manner as and be deemed a judgment of the court of common pleas for the city and county of New York.

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849 and 1851, which last amendment reads as above.

2. Q. How did this section read in 1848 and 1849 ?

4. As follows:

§ 61. [1848.] The provisions of sections 48 to 57, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except, that after the discontinuance of the action in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court, having jurisdiction thereof; and except, also, that in the city and county of New York, a judgment, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner, as a judgment of the court of common pleas for the city and county of New York.

$68. [1849.] The provisions of sections fifty-five and sixtyfour, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect

and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that, after the discontinuance of the action in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court, having jurisdiction thereof; and except, also, that in the city and county of New York, a judgment, for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as a judgment of the court of common pleas for the city and county of New York.

Questions.

3. Q. How can a justice be required to give a transcript of a judgment?

4. Q. What is the extent of the lien of a justice's judgment, where a transcript has been filed?

5. Q. Has a justice authority to give a transcript after he has gone out of office?

6. Q. Has a justice any further jurisdiction, after the filing of a transcript?

7. Q. Can a transcript of a justice's judgment be filed nunc pro tunc ?

8. Q. Is a transcript prima facie evidence of the justice's jurisdiction to render the judg ment?

9. Q. After the filing of a transcript of a justice's judgment, have the courts where it is filed, authority to allow it to be set-off?

10. Q. Have the courts in which transcripts are filed, the same power over such judgments as over judgments rendered in their own courts?

11. Q. Have the courts where the transcript is filed power to set aside an execution improperly issued against the person?

12. Q. Where a transcript is filed, has the court power to set aside supplementary proceedings against the defendant on the judgment?

13. Q. After the filing of a transcript, has the court where it is filed, power to authorize the issuing of an execution against the person?

3. Q. How can a justice be required to give a transcript of a judgment?

A. The answer to this question will be found under section 63, Q. 7.

4. Q. What is the extent of the lien of a justice's judgment, where a transcript has been filed?

A. The answer to this question will be found under section 63, Q. 8.

5. Q. Has a justice authority to give a transcript after he has gone out of office?

A. The answer to this question will be found under section 63, Q. 10.

6. Q. Has a justice any further jurisdiction, after the filing of a transcript?

A. The answer to this question will be found under section 63, Q. 11.

7. Q. Can a transcript of a justice's judgment be filed nunc pro tunc?
A. The answer to this question will be found under sections 63, Q. 12.

8. Q. Is a transcript prima facie evidence of the justice's jurisdiction to render the judg

ment!

A. The answer to this question will be found under section 63, Q. 3.

9. Q. After the filing of a transcript of a justices judgment, have the courts where it is filed, authority to allow it to be set-off?

A. In Hayden agt. McDermott, 9 Abb., 14, N. Y. C. P., Special Term, June, 1859, DALY, F. J., it was decided, that after filing transcript of judgments of the marine court and the district courts of the city of New York, in the office of the clerk of the court of common pleas, the latter court have control over such judgments, such as to enable them to order set-off between them. It seems, that an attorney's lien for costs does not extend to preclude a set-off between cross judgments.

10. Q. Have the courts in which transcripts are filed, the same power over such judgments as over judgments rendered in their own courts?

A. In Martin agt. The Mayor, &c., of New York, 11 Abb., 299, N. Y. C. P., General Term, October, 1860, DALY, J., said: "The Code (668), declares that when the transcript (of a judgment of the marine court) is docketed, it shall have the same effect as a lie, and be enforced in the same manner as, and be deemed a judgment of the court of common pleas. We have never understood the words "and be deemed," introduced by the amendment of 1851, as giving us the same power that we have over one of our own judgments, of opening it, allowing a party to come in and defend, or setting it aside for good cause. When we open one of our own judgments, the cause continues in this court, and we have control of it, until it is again finally disposed of. Upon setting aside a judgment, the parties are placed in the position in which they were before the judgment was recovered; but if a judgment transferred to this court by the filing of a transcript is set aside, there is nothing more remaining in this court. The judgment of the court below still stands; and the legislature have not indicated how, or in what way, the cause could be heard again. By the act of 1853, specific authority is given to the marine court to open judgments obtained by default, showing very clearly that the legislature intended, whenthe discretionary power of opening a judgment was to be exercised, that it should be exercised in the court where the previous proceedings have been had. We understand the amendment of 1851, therefore, as meaning nothing more than that the judgment is to be deemed a judgment of this court, simply for the purpose of being enforced against both real as well as personal property; the words "shall be deemed," may have been thought necessary to prevent any question arising as to the validity of titles to real estate derived from sales made under such judgments. We undoubtedly have control over it, as we necessarily possess the power of staying proceedings upon the execution, and there is sufficient in the affidavit of the comptroller to invoke the exercise of our discretionary power. (Affirmed at general term, 12 Abb., 243.)

11. Q. Have the courts where the transcript is filed, power to set aside an execution improperly issued against the person?

A. In Livsey agt. Landers, 12 How., 25, N. Y. C. P., Special Term, January, 1856, BRADY, J., said: "The action was commenced in the justice's court for the third district of the city of New York, to recover for services rendered and materials found, and a transcript of the judgment rendered therein, filed, as provided by section 68; but although by that section the judgment of that court, by filing a transcript, thereof, is to be deemed a judgment of the court of common pleas, and enforced in the same manner, the action so commenced was not one in which the defendant might have been arrested. That court had no jurisdiction to arrest the defendant. (The People ex, rel Corlies agt. Smith, 9 How., 464.) For this reason the order allowing the execution to issue must be vacated, and the execution issued thereon, set aside with costs.

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12. Q. Where a transcript is filed, has the court power to set aside supplementary proceedings against the defendant on the judgment?

A. In Kennedy agt. Weed and Wife, 10 Abb., 62, N. Y. C. P., at Chambers, March, 1859, HILTON, J., said: "It is only when a transcript of a justice's judgment is filed, that it becomes a judgment of this court (Code, § 68). And after the return of an execution issued upon it unsatisfied, a judge of this court may require the defendant to appear and be examined upon supplementary proceedings (§ 292.) On the return of the order granted in this case, requiring the defendants to show cause why they should not be punished as for a contempt in disobeying the order directing them to appear and be examined concerning their property, it is made to appear on their behalf, that there is no such judgment docketed against them in this court, as that described in the affidavit on which these proceedings were instituted; the affidavit showing a judgment in favor of the plaintiff against "Ira Weed and Mary Weed," while the transcript docketed is of a judgment against Ira Weed and Mrs. Weed. This seems to me to be a fatal objection, affecting the jurisdiction of the judge granting the order and one which cannot be obviated by amendment.

13. Q. After the filing of transcript, has the court where it is filed, power to authorize the issuing of an execution against the person?

A. In Hall agt. McMahon, 10 Abb., 320, N. Y. C. P., General Term, May, 1860, HIL

TON, J., said: "In Ginochio agt. Figari (4 E. D. Smith, 227), it was held, that after a transcript of a judgment of the marine court has been filed in the county clerk's office, by the provisions of the Code (§ 68), it is to be deemed a judgment of this court, has the same effect as a lien, and is to be enforced in the same manner (Wallemyre agt. Westover, 4 Ker., 16.) And as a judgment of this nature, when obtained in this court, would be enforced by execution against the person of the defendant, it follows that a plaintiff is entitled to the same remedy in all respects, upon filing a transcript of a marine court judgment, where the nature of the action falls within the provisions of section 179. As it appears in the present case, that an execution against the property of the defendant has already been issued, and returned unsatisfied, the plaintiff is, in my opinion, entitled to issue an execution agianst the defendant's person, under the provisions of section

128.

In Keeley agt. Clark, 18 Abb., 154, Special Term, August, 1864, BALCOM, J., it was decided, that the remedies by execution for enforcing a judgment recovered in the supreme court upon an appeal from a justice's court, are the same as if the action had been brought in the supreme court.

What is the result of the decisions under this section?

1. (9 Q.) After the filing of transcripts of judgments of the marine and district courts of the city of New York, in the court of common pleas, the latter court has control over such judgments, such as to enable them to order set-off between them, and to decide the attorney's lien on such set-off.

2. (10 Q.) The provision of this section, that judgments of the marine or district courts, 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 by execution against real and personal property. The court where the judgment was recovered can no longer issue execution thereon. But the common pleas, after the filing of the transcript, have no power to open the judgment, on an allegation of the comptroller under the act of 1859, that it was obtained by collusion or fraud.

3. (11 Q.) Where an execution has been issued by the court of common pleas, upon a judgment originally rendered in a district court, after the filing of a transcript, against the property of the defendant, and on an allegation that the debt for which the judgment was obtained was fraudulently contracted, an execution against the person of the defendant cannot issue, unless it appears that the action was one in which the defendant might have been arrested.

4. (12 Q.) Where a judgment of a district court becomes a judgment of the court of common pleas, by the filing of a transcript, a judge of the common pleas may require the defendant to appear and be examined upon supplementary proceedings. But such proceedings cannot be maintained upon an affidavit which does not truly describe the judgment, as where the plaintiff recovered judgment in the district court against Ira Weed and Mary Weed, but docketed a transcript of it against Ira Weed and Mrs. Weed. Such an objection goes to the jurisdiction of the judge granting the order, and cannot be cured by amendment, nor waived by the party.

5. (13 Q.) Where a judgment, recovered in a district court, has been docketed in the county clerk's office, the plaintiff may have execution against the person of the debtor the same as if the judgment had been recovered in the common pleas, where the nature of the action falls within the provision of section 179 of the Code. The remedies by execution for enforcing a judgment rendered in the supreme court, on appeal from a justice's court are the same as if the action had been brought in the supreme court

PART II.

OF CIVIL ACTIONS.

TITLE I. OF THEIR FORM.

II.

OF THE TIME OF COMMENCING THEM.
III. OF THE PARTIES.

IV.

OF THE PLACE OF TRIAL.

V. OF THE MANNER OF COMMENCING THEM.

VI. OF THE PLEADINGS.

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SECTION 69. Distinction between actions at law and suits in equity, and
forms of such actions and suits abolished.

70.

Parties to an action, how designated.

71. Actions on judgments, when and how to be brought.
72. Feigned issues abolished, and order for trial substituted.

§ 69. Distinction between actions at law and suits in equity, and forms of such actions and suits abolished.*

The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this state hereafter, but one form of action, for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. *(Same as § 62 in 1848.)

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