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County Court, Queens County, June, 1900.

[Vol. 32.

Queens county made an order for the examination of the judg ment debtor. On the return day of that order the judgment debtor appeared and moved to vacate the order, upon the grounds (1) that the county clerk of Queens county issued the execution out of the Supreme Court, whereas it should have been issued out of the County Court of Queens county; (2) that the affidavit upon which the order was granted does not show whether the transcript filed in Queens county was a transcript of the judgment docketed in the New York county clerk's office or a transcript of the judg ment rendered by the Municipal Court.

James J. Conway, for judgment debtor.

Wilbur & Hart, for judgment creditors.

MOORE, J. When the Constitution of 1894 became operative, a judgment docketed by the county clerk of New York county, on a transcript of a judgment rendered by a District Court in the city and county of New York, was deemed a judgment of the Court of Common Pleas for the city and county of New York, and an execution thereon issued out of that court. Consol. Act, chap. 410, Laws of 1882, § 1392; Code Civ. Pro., §§ 3017, 3220.

In the other counties of the State, a judgment docketed by the county clerk of a county, on a transcript of a judgment rendered by a court held by a justice of the peace, was deemed a judgment of the County Court of the county in which the justice resided, and an execution thereon issued out of that court. Code Civ. Pro., § 3017.

The State Constitution of 1894 abolished, from and after the 31st day of December, 1894, the Court of Common Pleas for the city and county of New York, and transferred all actions and proceedings then pending therein to the Supreme Court for hear ing and determination. It vested the jurisdiction then exercised by that court in the Supreme Court.

The reorganization of the courts of record of the State necessitated many amendments to the codes, and the Code of Civil Procedure was generally amended in 1895 to meet the requirements of the Constitution. Among other amendments made was that of section 3220 of the Code of Civil Procedure, so as to provide that a judgment docketed by the clerk of the county of New

Misc.]

County Court, Queens County, June, 1900.

York, on a transcript of a judgment of a District Court of the city and county of New York, should thereafter be deemed a judgment of the Supreme Court, and so that an execution thereon should issue out of the Supreme Court. Chap. 946, Laws of 1895; Code Civ. Pro., § 3220.

Prior to the 1st day of January, 1898, a judgment docketed by the clerk of the county of New York, on a transcript of a judgment rendered by a District Court in the city and county of New York, was deemed a judgment of the Supreme Court, and a judgment docketed by the county clerk of the county of Queens, on a transcript of a judgment rendered by a justice of the peace in his county, was deemed a judgment of the County Court of that county. Code Civ. Pro., 1897, §§ 3017, 3220.

The Greater New York Charter (chap. 378, Laws of 1897) became operative on the 1st day of January, 1898. Section 1369 of that act provides that, "In so far as the same are consistent with this act, all provisions of law relating to procedure and organization judgments, transcripts, docketing, execu

tions

* * *

* * and all matters incidental to the same, the powers and duties of the justices and clerks and other employees in district courts in the city of New York, which shall be in force on the thirty-first day of December, eight hundred and ninetyseven, shall apply to and control and govern the same in said municipal court, and the branches thereof in each district ".

Article 2, of title 4, of chapter 20, of the Code of Civil Procedure is entitled: "Provisions exclusively applicable to the district courts of the city of New York", and was in force on the 31st day of December, 1897. This title contains provisions of law relating to judgments of District Courts in the city of New York, transcripts of such judgments, docketing of judgments thereon and the issuing of executions on such judgments. These provisions related exclusively to judgments rendered in the District Courts of the city of New York. Section 3220 is found in this article, and, by its terms, draws sections 3017 to 3022, both inclusive, under this title, making these sections as modified by the provisions of such article also applicable to District Courts of the city of New York. So that by force of section 1369 of the Greater New York Charter, sections 3017 and 3022 of the Code of Civil Procedure, as modified by section 3220 of said Code, apply to and control and govern the issuing of transcripts upon judgments ren

County Court, Queens County, June, 1900.

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dered by the Municipal Court of the city of New York, as constituted by the Greater New York Charter, the filing of such transcripts, the docketing of judgments thereon, and the issuing of executions on the judgments so docketed. It is clear that a judgment docketed by the clerk of any county within the city of New York, on a transcript of a judgment rendered by the Municipal Court, in any district in his county, is deemed a judgment of the Supreme Court, and the execution thereon issues out of the Supreme Court by the county clerk.

My attention has not been directed to nor do I know of any law authorizing the clerk of any county within the city of New York to file and docket a judgment on a transcript of a judgment rendered by the Municipal Court of the city of New York in any district not embraced within his county. If it becomes desirable to docket a judgment of such Municipal Court in a county other than that in which the judicial district in which said judgment was rendered is located, a transcript of the Municipal Court judgment must be filed and a judgment docketed thereon in the county embracing the district in which the judgment was rendered. A transcript of the judgment so docketed by such clerk, deemed a judgment of the Supreme Court, may then be taken and filed and a judgment thereon docketed in another county. The judgment thus docketed will still be deemed a judgment of the Supreme Court. This latter judgment has the like effect, with respect to the enforcement thereof, or any proceedings thereunder, or by virtue thereof, in the county where it is so docketed, as if it were rendered by the Municipal Court within that county, and docketed upon filing its transcript. Code Civ. Pro., §§ 3022, 3220.

The affidavit on which this order was granted avers that a certified transcript was filed and the judgment duly docketed thereon by the clerk of Queens county. The judgment could not be duly docketed by the clerk of Queens county on a transcript other than of the judgment docketed in the New York county clerk's office. The objections of the creditor are overruled and the examination will proceed.

Ordered accordingly.

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Supreme Court, June, 1900.

JAMES H. PIGOT, Plaintiff, v. EDWARD J. MCKEEVER et al., Defendants.

(Supreme Court, Kings Special Term, June, 1900.)

Pleading - Denial, in hæc verba, bad and frivolous.

A denial of a counterclaim, in haec verba, is bad as a negative, pregnant with the substantial truth of the matter purported to be denied, and will, therefore, be stricken out as frivolous.

The proper method of denial considered.

MOTION for judgment on a reply to a counterclaim as frivolous. The reply to the counterclaim is in the very words of the counterclaim, that the plaintiff "denies the allegations therein contained in the following terms: That on or about the first day of April, 1899, it was necessary for the defendants to put men to work under the contract set forth under plaintiff's first cause of action; that the plaintiff violated and made a breach of the terms of said agreement set forth in his first cause of action, and on or about the 10th day of April, 1899, completely abandoned the work under said agreement; that defendants requested the plaintiff to complete his work under said contract, set forth in his first cause of action, but that plaintiff refused and failed to do so; that it was necessary for the defendants themselves to complete the work and they did so, and that the reasonable value for the completion of such work amounted to Two hundred, thirty-nine and 32/100 ($239.32) Dollars, and that the defendants actually expended this amount for the completion of the work"."

Neu & Gilchrist for plaintiff.

Henry P. Keith for defendants.

GAYNOR, J.: This is a frivolous pleading. Though purporting to be a negative of the allegations of the counterclaim, it is a negative pregnant with their substantial truth. A denial in haec verba of the matter to be denied, with its allegations of "on or about", and its conjunctives, disjunctives, adjectives, and so on, is consistent with the substantial truth of the matter purporting to be denied. It is no denial (Kelly v. Sammis, 25 Misc. Rep. 6; Stuber v. McEntee, 142 N. Y. 206). And yet this way of denial in haec

Supreme Court, June, 1900.

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verba has grown to be quite common. It seems to have been started by a misunderstanding of the meaning of the learned judge writing in Baylis v. Stimson (110 N. Y. 621). But there was no intention there of introducing such a vicious practice. The learned judge was there animadverting against denials by folios, i. e. from such a line in such a folio to another line in another folio, which made it difficult on the original pleadings to find out what was denied, and impossible on the printed record on appeal for the reason that the original folioing was not there preserved. The denial here should have been simply of "each and every allegation in the counterclaim contained ". And that is the form for a denial of the allegations of a complaint, with the addition “ cepting", &c., or, varying to suit the case, if the allegations excepted be more numerous than those denied, by denying each and every allegation in certain numbered subdivisions of the complaint contained, saying nothing of things not denied. This is the proper and scientific way of pleading, and enables a trial judge to ascertain at a glance what is in issue (Flack v. O'Brien, 19 Misc. Rep. 399; Mitnacht v. Hawthorne, 31 Misc. Rep. 378, and cases there cited).

The motion is granted with $10 costs.

ex

HOWARD J. M. CARDEZA et al., Plaintiffs, v. ELLEN C. OSBORN, Impleaded, etc., Defendant.

(Supreme Court, Kings Special Term, June, 1900.)

Pleading An entire defence cannot be stricken out as irrelevant Code C. P., § 545.

An entire defence cannot be stricken out as irrelevant under section 545 of the Code of Civil Procedure, even though it be insufficient; the purpose of that section being merely to permit irrelevant matter to be stricken out of an otherwise good defence or cause of action.

MOTION by the plaintiffs to strikę out matter pleaded as a defence as irrelevant.

Edward A. Alexander, for plaintiffs.

William P. Pickett for defendant.

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