#### Townsend *v.*Tolhurst.

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

Execution—Time oe Issuance—Limitation.

Where a transcript of a justice’s judgment is filed in the county clerk’s office six months after its rendition, Code Civil Proc. ÍT. T. § 382, subd. *7,*barring an *action*on a justice’s judgment after six years from its rendition, does not afieet section 1377, which permits an execution to issue on a judgment after the lapse of five years from its docketing, on an order of the court. Distinguishing *Dcwidson*v. *Dorn,*47 Hun, 51.

Appeal from Niagara county court.

Action by Theodore Townsend against Thomas Tolhurst. *From*an order granted November 23, 1889, permitting plaintiff to cause an execution to be issued, defendant appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

*Charles Hickey,*for appellant. *Henry M. Davis,*for respondent.

Macomber, J.

The affidavit upon which the order of the county judge was granted shows, without contradiction, that a money judgment was recovered by the plaintiff against the defendant in the court of the justice of the peace on the 23d day of May, 1878, and that on the 23d day of November of that year a transcript thereof was filed with the county clerk of Niagara county, and its judgment duly'docketed; that no execution had been issued upon such judgment, and that no part of the judgment had been paid; and that more than five years had elapsed since the docketing of such judgment. These allegations clearly bring the moving party within the provisions of section 1377 of the Code of Civil Procedure, which permits an execution to be issued upon application to the court and upon due notice, provided that the judgment so docketed in the county clerk’s office had, at the time of the granting of the motion, a valid existence. It is contended by counsel for the appellant that the order was erroneous, inasmuch as an action upon a justice’s judgment is barred after the lapse of six years from the time of its rendition, under subdivision 7, § 382, Code Civil Proc. This proposition, however, was distinctly repudiated in the case of *Waltermire*v. *Westover,*14 N. Y. 16, where it was held that the statute of limitations, as it existed under the Revised Statutes, (2 Rev. St. p. 295, § 18,) which is now embodied in the subdivision of section 382, already noted, did not extinguish or destroy the lien created by the judgment as docketed in the county clerk’s office. The obligation of the defendant to pay a debt was not obliterated by a lapse of time; for the statute acts only on the remedy, and not upon the obligation to pay. *Johnson*v. *Railroad Co.,*54 N. Y. 424. There is nothing in the case of *Davidson*v. *Horn,*47 Hun, 51, which controverts the foregoing proposition; for in the last-named case the statute of limitations had run against the justice’s judgment before the transcript thereof had been filed in the county clerk’s office, while in the case before us six months only had elapsed between the render*379ing of the judgment by the justice of the peace and the record of the same in the county clerk’s office. Much reliance has been placed in this appeal upon the case of *Dieffenbach v. Roch,*112 N. Y. 621, 20 N. E. Rep. 560; but that decision is simply to the effect that a judgment of a justice of the peace docketed in the county clerk’s office is not a judgment “rendered” in the county court, but remains “a judgment * * * rendered in a court not of record, ” within the meaning of the provision of subdivision 7, § 382, Code Civil Proc., declaring that an action upon such a judgment must be commenced within six years after the final judgment was rendered. That case did not undertake to and did not in fact impair in the slightest degree the decision of the same court in *Waltermire*v. *Westover,*already referred to. Under these provisions of the Code and these authorities the order of the county court was properly made.

This conclusion renders it unnecessary to consider the question whether or not the order so made is appealable to this court. It was held in *Kincaid*v. Richardson, 25 Hun, 237, that no appeal lies to the general term from an order of the county court granting leave to issue an execution upon a judgment recovered in a justice’s court, where a transcript thereof was filed and judgment thereon docketed in the clerk’s office of the county. The conclusion of this court in that ease finds corroboration in the decision of *Dieffenbach*v. *Roch, supra.*Section 1342 of the Code of Civil Procedure seems to limit the review by this court of orders of the county court, affecting a substantial right, to those cases where the action is brought in or is taken by appeal to that court. This case does not come within that class. But we prefer to rest our decision on the proposition first discussed above. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.