CONGER against VANDEWATER.
Supreme Court, First District ;
General Term, May, 1865.
Statute of Limitations.—Judgments of Justices, and District Courts.
Under the Code, the period limited for the commencement of actions upon a judgment or decree in any court, is twenty years, and this includes judgments in the Marine and Justices’ Courts.
Appeal from ¿judgment recovered at the circuit.
This action was brought by Clinton W. Conger, against Clarke V an dewater and William Valentine. The complaint alleged that the 10th day of April, 1856, William E. Wheaton recovered a judgment in the Marine Court of the city of New York, against Clark Vandewater and William Valentine, for the sum of four hundred and forty-one dollars, and that on the same day a transcript thereof was duly filed and docketed in the office of the clerk of the city and county of New York; that the judgment had been duly assigned to the plaintiff, Clinton W. Conger, and that there remained due to the plaintiff thereon, the sum of two hundred and fifty-six dollars, and *127forty-three cents, with interest thereon from October 10, 1856, for which judgment was demanded.
The defendant’s answer contained a general denial, and also set up “ that the canse of action set forth in the complaint, did not accrue within six years next before the commencement of this action, and that the same was barred by the Statute of Limitations.”
The cause was tried before the Hon. William H. Leonard, Justice, without a jury, at a Circuit Court, held at the City Hall, in the city of New York, on the 2d day of July, 1863.
The Court found and decided as matters of fact:
First.—That the judgment was recovered in the Marine Court, and a transcript duly filed, and the judgment duly docketed, in the office of the clerk of the city and county of New York, as alleged in the complaint.
Second.—That the action was not brought within six years after the cause of action accrued.
The Court found and decided as matters of law—
That the action was barred by the Statute of Limitations, in that the cause of action was not commenced within six years after the cause of action accrued, and therefore, that the complaint be dismissed with costs; to which fiftding of law and decision the plaintiff’s counsel duly excepted.
It was proved that William E. Wheaton assigned said judgment to the plaintiff, and that the action was commenced on the 22d day of April, 1863.
F. N. Taft, for plaintiff appellant.
I. The judgment upon which this suit is brought is to be regarded and treated as a judgment of the Court of Common Pleas for the city and county of New York, upon whose judgments an action is unquestionably not barred in less than twenty years (Code, §§ 68, 93, 90 ; Lyon v. Manly, 18 How. Pr., 267; Waltermire v. Westover, 14 N. Y. [4 Kern.], 16).
II. But if this judgment were to be regarded as a judgment of the Marine Court, still the law is plain, that an action upon it could be brought at any time within twenty years after the cause of action accrued (Code, §§ 73, 90 & 9).
By § 73 the statutes existing at the time of enacting the Code, applicable to cases like the present, are expressly repealed, and the provisions of the Code substituted in their *128stead (See Nicholls v. Atwood, 16 How. Pr., 475 ; Delavan v. Florence, 9 Abb. Mr., 277; Mills v. Winslow, 2 E. D. Smith, 18).
Abrm. R. Lawrence, for the respondent,
argued, with other matters, that “ the action on the judgment in question was barred by the Statute of Limitations (2 R. S., 295, § 18, 2d ed.; Lester v. Redmond, 6 Hill, 590).
(After disposing of two points of minor interest.) III. The only question worthy of any consideration in this case, is, whether the action on the judgment in question is barred by the Statute of Limitations.
Eegarding’ this as a judgment of the Marine Court, and in conformity with the decision in Lester v. Redmond (6 Hill, 590), admitting that, in reference to the provisions of the Eevised Statutes, relative to the limitations of actions, the Marine Court is not to be deemed a court of record, it appears to me, that, by the provisions of the Code, the period prescribed for the commencement of actions is twenty years upon a judgment, or decree in any court. The provisions of title II., chap. 4, part IIJ., of the Eevised Statutes, relate to actions in all courts, — courts of record and courts not of record, — and, by the 18th section of that title, the time limited for the commencement of actions upon judgments of any court, not being a court of record, is six years. Mew legislation, however, is entirely substituted by the Code of Procedure for the provisions of the Eevised Statutes. This legislation is contained in title II. of the Code, consisting of four chapters, and thirty-eight sections. The very first section of this title (§ 73) repeals all the provisions of the Eevised Statutes, and substitutes the provisions of the title in their stead. In the class of actions, the commencement of which is limited to six years, those upon judgments rendered in any court, are omitted (§ 91), while in the class of actions, the commencement of which is limited to twenty years, judgments of any court of the United States or of any State or Territory are included (§ 90). In the Eevised Statutes the distinction between courts of record, and courts not of record is carefully observed; as in the 1st and 2nd subdivisions of section 18 of title II., relating to the limitation of six years, and in section 46.relating to the limitation of twenty *129years; while the Code of Procedure makes no such distinction, and, with an evident intent, entirely ignores it.
This action is, therefore, not barred, and the judgment should be reversed, and a new trial ordered, costs to abide event.