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TITLE 6. Docketing judgment

§ 3022. The clerk, with whom a transcript given by a justice is in another filed, as prescribed in either of the foregoing sections of this title


Justice may give transcript, after ex

piration of his term.

must furnish to any person applying therefor, and paying the fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk, to whom such a transcript is presented, must, upon payment of the fees therefor, immediately file it, and docket the judgment in the appropriate docket-book kept in his office, in like manner as the judgment was docketed by the first county clerk. The judgment, when docketed as prescribed in this section, has the like effect, with respect to the enforcement thereof, or any proceedings thereunder, or by virtue thereof, in the county where it was so docketed, as if it was rendered by a justice of the peace of that county, and docketed upon filing his transcript; except that where an application for leave to issue an execution is necessary, it must be made to the county court of the county where the judgment was rendered.

[Co. Proc., remainder of § 63, and last clause of § 284, amended by substituting the first clause of the last sentence for "with the like effect, in every respect, as in the county where the judgment was rendered, except," etc. This expression was very obscure, and opened the door to a conflict of jurisdiction, in certain cases, between the county courts of the two counties. Probably the legislature meant, that any question, respecting the docket, or the effect thereof, or the execution, or any proceedings thereunder, which might be determined by motion, should be determined in the county court of the county, wherein it arose; and accordingly this section is so framed, as to carry out that idea. This clause also renders it unnecessary to re-enact 2 R. S., 246, Part 3, ch. 2, tit. 4, §§ 116, 117 (3 R. S., 5th ed., 444; 2 Edm., 263).]

§ 3023. A justice of the peace, whose term of office has expired, may make a transcript of a judgment rendered by him, as prescribed in either of the foregoing sections of this title.

[New; in accordance with Maynard v. Thompson, 8 Wend., 393).]




SEC. 3024. When justice may issue execution.
3025. General requisites of execution.
3026. Execution upon judgment for money.
3027. Renewal of execution.

3028. Property exempt from execution.

3029. Indorsement of levy; notice of sale.

3030. Mode of levy and sale.

3031. Return of execution.

3032. Execution against the person; imprisonment of judgment debtor. 3033. When judgment debtor to be discharged.

3034. Affidavit; discharge.

3035. Penalty for not discharging.

3036. Affidavit a defence to action for escape.

3037. Discharge not to effect judgment.

3038. Execution upon judgment in action for a chattel.
3039. Action against constable for not returning execution.
3040. Constable not to act under execution after return day.
3041. Action against constable for money collected.
3042. Duty of constable whose term of office has expired.
3043. Execution upon judgment docketed with county clerk.



§ 3024. At any time within five years after entry of a judg- When ment, the justice of the peace, who rendered it, being in office, may execution. issue an execution thereupon, unless it has been docketed in the county clerk's office.

[Co. Proc., § 64, subd. 12, first clause, and part of subd. 13, amended by inserting the words, "being in office." See § 3017, ante, regulating an execution upon a judgment docketed in the county clerk's office. As to the power of a justice whose term of office has expired, to issue or renew an execution, see § 3027, post, and note.]



§ 3025. An execution, issued by a justice, must be directed gen- General erally to any constable of the same county. It must intelligibly of execudescribe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the name of the justice by whom, the judgment was rendered; and it must be made returnable to the justice, within sixty days after its date.

[2 R. S., 249, Part 3, ch. 2, tit. 4, § 131, first clause (3 R. S., 5th ed., 446; 2 Edm, 266), and Co. Proc., § 64, subd. 12, last clause; amended by the insertion of the first part of the second sentence, which corresponds to the requisites of executions issued from courts of record. For other requisites of mandates, see § 3135, post.]

TITLE 7. Execution upon judgment for



of execu tion.

§ 3026. An execution, issued upon a judgment for a sum of money, must specify, in the body thereof, the sum recovered, and the sum actually due upon the judgment at the date of the execution; and, except in a case where special provision is otherwise made by law, it must, substantially, require the constable to satisfy the judgment, together with his fees, out of the personal property of the judgment debtor within the county, not exempt from levy and sale by virtue of an execution; and to bring the money before the justice, by the return day of the execution, to be rendered, by the justice, to the party who recovered the judgment. If the judgment was recovered against a male person, in either of the actions specified in subdivis ion first or second of section 2895 of this act; or if an order of arrest was granted, and was executed, in a case specified in subdivision third of that section, the execution must also command the constable, if sufficient personal property cannot be found to satisfy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain until he pays the judgment, or is discharged according to law. If the judgment was rendered in an action to recover a penalty or forfeiture given by a statute of the State, the justice must indorse upon the execution a reference to the statute, as prescribed in section 1897 of this act, with respect to a copy of the summons.(*)

[Section 131 of the R. S., last clause, amended verbally, and as required by the changes made by the non-imprisonment act of 1831, and so as to adapt this section to § 2895, ante. The last sentence takes in a part of § 143 of the R. S., the remainder of which will be found in § 3032, post.]

§ 3027. After the return, wholly or partly unsatisfied, of an execution, issued by a justice of the peace, he may, from time to time, within five years after the judgment was rendered, issue a new execution, or renew the former execution. An execution is renewed by a written indorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. If part of the execution has been satisfied, the indorsement must state the sum remaining due. Each indorsement renews the execution for sixty days from the date thereof. A justice whose term of office has expired may

thus issue or renew an execution.


[Id., §§ 145 and 147; and 2 R. S., 271, Part 3, ch. 2, tit. 4, § 258 (3 R. S., 5th ed., 459; 2 Edm., 279), as modified by L. 1840, ch. 347; L. 1846, ch. 276; L. 1857, ch. 512 (3 R. S., 5th ed., 446, 448; 4 Edm., 548); L. 1879, ch. 305, and Co. Proc., § 64, subd. 12; consolidated. See per DENIO, J., in Morse v. Goold, 11 N. Y., 281. The act of 1846 was further amended by L. 1879, ch. 305, which was not repealed by the general repealing act of 1880. See L. 1880, ch. 245, § 1, subd. 23 ̊; and 3, subd. 9. By the latter provision, it would seem that the act of 1879, is not expressly repealed: but it is nevertheless repealed by implication, as §§ 3020 and 3027 of this Code establish a different rule. The only important question which might arise under the act of 1879, is whether a justice, who has gone out of office, can issue an execution, where a previous execution has not been issued and returned. For the reason stated, this question must be answered in the negative.](")



from exe


§ 3028. The same personal property is exempt from levy and Property sale, by virtue of an execution issued by a justice of the peace, which is exempt from levy and sale, by virtue of an execution issued out of the supreme court, and in the like cases, and under the same circumstances, as prescribed in sections 1389, 1390, 1391, 1392, 1393, and 1394 of this act, and the other special provisions of law, relating to such an exemption.(")

[Substituted for id., § 169, as amended by subsequent acts.]

ment of

notice of


§ 3029. A constable, who takes personal property into his cus- Indorsetody, by virtue of an execution, must indorse upon the execution the levy time of levying upon it. He must immediately post conspicuously, in at least three public places of the city or town, in which the property was taken, written or printed notices, signed by him, describing the property, and specifying the place, within the same city or town, where, and the time, not less than six days after the posting, when, it will be exposed for sale.

[Id., § 148, amended by substituting "six" for "five," so that the notice of sale will be the same, as upon an execution issued out of a court of record. See Havens v. Harrison, 5 Hun, 178.]

levy and

§ 3030. The provisions of sections 1384, 1385, 1386, 1387, 1405, Mode of 1409, 1410, 1411, 1412, and 1428 of this act, substituting the con- sale. stable for the sheriff, apply to and govern the levy upon and sale of personal property, by virtue of an execution issued by a justice of the peace; except where a different rule is prescribed in this act. (c) [The sections referred to are those, which regulate the levy upon. and sale of personal property, under an execution issued out of a court

(a) The general repealing act of 1880 is at the end of Part III.

(b) The sections referred to are on pp. 260-263.




of record. Section 1387 renders it unnecessary to retain § 150 of the R. S.; and § 1428 supersedes the first clause of § 149 of the R. S.]

Return of § 3031. The constable must return the execution to the justice, and pay to him the amount of the judgment, with interest, or so much thereof as he has collected; returning the surplus, if any, to the person from whose property it was collected.

Execution against the person; imprisonment of


[Section 149 of the R. S., last clause, amended by substituting the words, "amount of the judgment with interest, or so much thereof as he has collected," for "debt or damages, and costs levied," and the last six words for "against whom the execution issued." The first sentence of § 149, and the whole of § 150, are covered by the general provisions of § 3030, ante.]

§ 3032. For want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judg judgment ment debtor, and convey him to the jail of the county. The keeper of the jail must thereupon keep the judgment debtor in custody, in all respects as if the execution was issued out of the supreme court, until the judgment and the fees of the constable are paid; or until the judgment debtor is thence discharged, in due course of law; except that if the execution has an indorsement, showing that the judgment was rendered in an action for a penalty or forfeiture, given by a statute of the State, the sheriff shall not admit the judgment debtor to the liberties of the jail.



be dis


[Id., § 151, amended by adding the last sentence, which covers so much of id., § 143, as is not included in § 3026, ante. The provisions of § 143 of the R. S. have been extended by subsequent statutes to other kinds of penalties; and it seems proper that they should embrace all actions for penalties, as the judgment is always strictly punitive.]

§ 3033. If the person so committed to jail has a family within debtor to the State, for which he provides, he must be discharged, after remaining in custody either with or without being admitted to the jail liberties thirty days; otherwise, he must be discharged after so remaining sixty days.

[Id., § 152, amended by omitting the words, "and be not a freeholder," after "provides;" by inserting the clause as to jail liberties; and by substituting "otherwise" for "and if he have no family, and be not a freeholder." Now that a justice's judgment exceeding $25 can be made a lien upon real property, and collected therefrom, there is no longer any reason for the retention of the exception of a freeholder,

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