#### John Herrman *et al.,*Appellants, *against*Theodore Stalp, Respondent.

(Decided June 3d, 1889.)

Under the provision of the Code of Civil Procedure that unless, within five years after entry of a judgment, an execution was issued thereon and returned unsatisfied, excution can be issued, after the five years, only on leave granted by the court (§ 1377), the issuing from a district court in the City of New York of execution on a judgment of such court, and its return unsatisfied, do not render it unnecessary to obtain leave for the issue from this court of execution on the judgment, after if has become a judgment of this court by docketing in the county clerk’s office (§ 3220), and after more than five years has elapsed.

But execution cannot be issued on such a judgment after an action on the judgment is barred by the statutory limitation of six years (Code Civ. Pro. § 382 subd. 7).

Appeal from an order of this court denying a motion for leave to issue execution.

The facts are stated in the opinion.

*James*Kearney, for appellants.

*William G. McCrea,*for respondent.

Bookstaver, J.

On the 21st of July, 1873, the appellants recovered a judgment against the respondant in a district court for $112.65. On the same day they issued an execution on that judgment out of the district court to one of the city marshals, which was duly returned to that court wholly unsatisfied on the 15th of August, 1873. On the 20th of the same month a transcript of the judgment was duly filed and the judgment duly docketed in the county clerk’s office, whereupon, under section 3220 of the Code of Civil Procedure, *291“ it is deemed to be a judgment of this court.” No execution was issued on the judgment after it was so docketed.

On these facts, and others not necessary now to state, the .appellants, in December, 1888, asked leave of this court to issue execution, which was denied, on the ground that leave was not necessary, as an execution had been issued within five years after the entry of the judgment.

In this conclusion we cannot concur. While section 1377 of the Code of Civil Procedure seems on its face to provide for the issuing of all executions, whether based on judgments rendered in courts of record or courts not of record, yet section 3347, subdivision 10, says chapter XIII of the Code, of which section 1377 is a part, applies only to executions issued out of courts of record after the first day of September, 1877. Executions issued before that time must therefore be governed by the old-Code, but section 1377 is a reenactment of a part of section 284 of the former Code, and both Codes contain other and entirely separate provisions governing the issuing of executions out of justices’ courts. They are substantially the same in both, and will be found in section 64 of the old Code and in section 3024 of the present Code. These provisions were made applicable to district court executions by section 68 of the old Code, and by section 1403 of the Consolidation Act of 1882. As section 1377 is expressly said to refer to executions issued out of courts of record only, and as both Codes make separate provisions for executions issued out of courts not of record, we think section 284 of the old Code, as well as section 1377 of the present, was intended to regulate the issuing of executions in courts of record only, and that an execution issued out of a district court to a marshal before transcript filed, would not, under either Code, authorize the issuing of an execution out of this court after transcript filed, if more than five years had elapsed, without leave of the court.

But there is another and we think conclusive "reason why the leave asked for should not have been granted.

It was long a moot question whether, when a transcript of a judgment rendered in a court not of record was filed and the *292judgment docketed in the county clerk’s office, it became a. judgment of the county court, or, if in this county, of this court and the remedy by execution ran for twenty years; or whether it was to be deemed a judgment of the county court or of this court, for the purposes of enforcement merely, still bearing the , impress and characteristics of its origin, and the remedy by execution ran for six years only.

As far as it is now necessary for us to consider the question, it first arose in *Waltermeyer*v. *Westover*(14 N. Y. 16), and in that ease, Sheldon, J., delivering the opinion of the court, distinctly held that statutes of limitation did not discharge the debt, but acted exclusively upon the remedy; that the statute limiting the commencement of actions on judgments rendered in justices’ courts to six years was directed to the remedy by action only, and did not operate to extinguish the remedy by execution. When this decision was rendered, however, 2 Rev. Stat. p. 248, section 128, was still in force, and that section provided that a justice’s judgment docketed by a county clerk “shall be a lien on the real estate of the defendant within the county in the same manner and with the like effect as if such judgment had been in the Court of Common Pleas.” This since has been repealed, and sections 3017 and 3220 of the Code of Civil Procedure substituted therefor.

The question came up again, since the adoption of the present Code, in the Supreme Court, Fourth Department, in *Kincaid*v. *Richardson*(25 Hun 237), and the General Term reaffirmed the doctrine announced in *Waltermeyer*v. *Westover*(supra), and held that the remedy by execution was not affected by the statute of limitations relating to actions. Several judges of this court at Special Term have applied the law in the same way, two of which decisions have found their way into print: *Otten*v. *Boeling*(4 Mo. Law Bull. 63), and *Herder*v. *Collyer*(Daily Reg. Apr. 3d, 1889).

In *Baldwin*v. *Roberts*(30 Hun 163), the Supreme Court, Third Department, held that the filing of the transcript of a justice’s judgment in the county clerk’s office made it a judgment of the county court; and the same was held in *Lyon*
      *293v. *Manly*(10 Abb. Pr. 237). The logical conclusion from the last two cases cited is that the remedy by execution ran as long under such circumstances as if the judgment had been originally obtained in the county court. The change of the law above referred to, after the decision in *Waltermeyer*v. *Westover,*seems to have been overlooked in all of these cases.

But the question came up again, in a somewhat different form, in *Dieffenbach,*v. *Roch,*in the Supreme Court, Second Department, in which action the plaintiff held a judgment against the defendant recovered in a justice’s court in May, 1875, a transcript of which was filed in the King’s County clerk’s office in June, 1875. The defendant held a judgment against the plaintiff, recovered in the Supreme Court, for a larger amount. Within ten years from the recovery of his judgment by the plaintiff, and on February 28th, 1885, he commenced the action under consideration, to have his judgment set off against the defendants, and to compel the latter to receive from him the balance due on his judgment and thereupon to satisfy the same. The Supreme Court at Special Term granted the relief asked for, and this judgment was affirmed on appeal by the General Term. From this judgment an appeal was taken to the Court of Appeals, where both judgments were reversed. The court, in a well considered and cogent opinion (112 N. Y. 621), holds that, .after a justice’s judgment has been docketed in the county clerk’s office, it becomes a mere statutory judgment of the county court, and that it is not in fact a judgment of that court; that it could not be an offset against a valid existing judgment; and that no action could be maintained on it after six years from its rendition.

It is true that this case does not in terms decide that the remedy by execution is also barred, but we think this necessarily follows from the conclusion there reached. No one will contend that, had no transcript been filed, an execution could have been issued on the justice’s judgment, even though wholly unsatisfied, after it ceased to have vitality by lapse of time. If the filing of a transcript does not make it a judgment of the county, court, then such a judgment can *294have no vitality anywhere after six years. It would be anomalous to allow a judgment to be enforced'by execution after the party had lost all right to maintain an action on it for any purpose, and after he had lost the right to even offset it against another judgment held by his antagonist against him. Such a judgment is practically dead, and we do not think a live execution can issue on a dead judgment.

Again, if the remedy by execution is not barred with the judgment, then there is no limitation of time, provided bylaw within which it may be exercised. We therefore think it is barred after six years.

The order appealed from must be affirmed, with costs.

Allen, J., concurred.

Order affirmed, with costs.