Becker v. Porter

Herriok, J.: - Under - section 1377- of the Code of Civil Procedure, the .court may grant, leave, -to issue, an. execution upon a judgment after the expiration of five years from its rendition. This appeal must be determined under the provisions of the-Code as they existed prior to the amendments to - sections '382 and' 3017 by chapter. 307 of the Laws of 1894. Under the law as.it. then was^. no action could - be brought upon a judgment of a Justice’s Court after the expiration of six years from its rendition by, the- -justice. (Dieffenbach v. Roch, 112 N. Y. 6.21.) ' The appellant contends that the Statute of Limitations having run against said judgment so as to prevent the commencement of an action thereupon, that the judgment has become dead, and ineffective, and that there is no* authority to issue an execution thereon. It has heretofore been -held that the Statute -of Limitations acts-simply upon the remedy, but does not impair the obligation. (Waltermire v. Westover, 14 N. Y. 16; Johnson v. A. & S. R. R. Co., 54 id. 416-424.) It follows from that that the Statute of Limitations prohibiting the commencement of an action upon such a judgment after the expiration of six' years does not impair the obligation of the judgment, and is only, effectual to' cut off that remedy, and, does not interfere with any other remedy to enforce the obligation thereof. [185] Accordingly, it has been repeatedly, held that courts may by an order permit an execution to be issued upon the judgments of courts, not of record, after the expiration of six years from their rendition. (Townsend v. Tolhurst, 57 Hun, 40; Bolt v. Hauser, 57 id. 567; Anderson v. Porter, 58 N. Y. St. Repr. 572; Agar v. Curtiss, 8 App. Div. 337, and cases cited.) .' This practice has been too long settled by the courts to warrant our interfering with it now, and the order appealed from must be affirmed, with ten dollars costs and disbursements. ' All concurred. Order affirmed, with ten dollars costs and disbursements.