§ 263. When judgment by confession void. A judgment confessed, otherwise than as prescribed in the last section, is void as against every person, except a purchaser in good faith of property, real or personal, thereunder, and the defendant making the confession. EDITORIAL NOTES— Source: CCP § 3012, without change. From JUDGMENT VOID EXCEPT AGAINST DE- Amdavit insufficient: omission to state that § 264. Judgment upon counterclaim. Where a counterclaim is established which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either: 1. Set off so much of the counterclaim as is sufficient to satisfy the plaintiff's demand, and render judgment for the defendant for his costs; in which case the defendant may maintain an action for the residue; or, 2. Render a judgment of discontinuance with costs; in which case the defendant may thereafter maintain an action for the whole. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover from another person so much thereof as the judgment does not cancel. EDITORIAL NOTES Source: CCP § 2949, without change. From 2 RS 234, pt 3, ch 2, tit 4, §§ 52, 53, 58, subd 3. Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. COUNTERCLAIM MAY BE SET UPAny amount: tho in excess of justice's jurisdiction (Heigel 50 Hun 588, 3 NYS 497). JUDGMENT MAY BE RENDERED FOR Excess: over amount set off against plain- § 265. Affirmative relief. In a case not specified in the last section, where a counterclaim is established which entitles the defendant to an affirmative judgment demanded in the answer, judgment must be rendered for the defendant accordingly. EDITORIAL NOTES Source: CCP § 504, without change. From Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. ANNOTATIONS APPLICABLE— Clevenger's Supreme Court Practice: § 477. § 266. Judgment, where counterclaim only is interposed for less than plaintiff's claim. In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant by his answer does not deny the plaintiff's claim but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff on filing with the court an admission of the counterclaim may take judgment for the excess as upon a default for want of an answer. EDITORIAL NOTES Source: CCP § 512, without change, except Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. ANNOTATIONS APPLICABLE— Clevenger's Rules of Civil Practice: 202. § 267. Judgment when accounts exceed four hundred dollars. Where upon the trial of an action the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs. EDITORIAL NOTES Source: CCP § 2950, without change. From 2 RS 234, pt 3, ch 2. tit 4. § 54. JUDGMENT OF DISCONTINUANCE PROP- Evidence not taken: as to amounts. tho JUDGMENT OF DISCONTINUANCE PROP-INAPPLICABLE— Judgment demanded: by plaintiff $188.04, by District court: action in (Walker 3 Mis 329, 23 NYS 334). SECTION CITED Not applied: (Youker 62 AD 584, 71 NYS 178). § 268. Judgment of nonsuit. Judgment of nonsuit, with costs, must be rendered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases: 1. If he discontinues or withdraws the action; 2. If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned; On payment of costs: witnesses sworn but cause not committed to jury (Connolly 88 Mis 118, 151 NYS 653). Tender of costs: unnecessary where plaintiff offers to pay them (Connolly 88 Mis 118, 151 NYS 653). PLAINTIFF ENTITLED TO JUDGMENT OF NONSUIT— On payment of costs: witnesses sworn but cause not committed to jury (Connolly 88 Mis 118, 151 NYS 653). Tender of costs: unnecessary where plaintiff offers to pay them (Connolly 88 Mis 118, 151 NYS 653). PLAINTIFF FAILED TO APPEAR; NONSUIT REQUIRED— Adjournment of cause improper: but not void (Handshaw 9 AD 175, 41 NYS 61); jurisction lost (Todd 60 Hun 385, 15 NYS 470); person appearing for defendant not consenting (Howell 9 AD 18, 41 NYS 105); subsequent proceedings void (Handshaw 89 Hun 179, 34 NYS 1034). Conversation between parties and justice: before day of trial at which defendant in replevin expressed willingness that plaintiff have goods and said he would pay costs, neither party appeared for trial, judgment for plaintiff entered as on confession cannot be attacked by defendant after acquiescing therein for a year (*Traffarn 3 NYS 867). Neither party appeared: (Handshaw 9 AD 175, 41 NYS 61); on day to which trial adjourned (Leonard 82 Mis 358, 144 NYS 447). No complaint: put in, therefore no refusal by defendant to plead (Todd 60 Hun 385, 15 NYS 470). Travel impossible: by reason of severe snowstorm, explanation by telegram (Howell 9 AD 18, 41 NYS 105). Verified complaint served with summons: defendant appeared but failed to answer (*Lent 45 Mis 139, 91 NYS 975); verified answer filed (See Lent 45 Mis 139, 91 NYS 975). PLAINTIFF DISCONTINUED; NONSUIT REQUIRED— Rule stated: (Cohen 43 Mis 79, 8 NYS 514. NONSUIT TERMINATES ACTION— New date for trial: cannot be fixed by county court, which reversed judgment of justice and ordered new trial, parties having failed to appear on date to which trial adjourned (Leonard 82 Mis 358, 144 NYS 447). Position of parties: same as before action commenced (Leonard 82 Mis 358, 144 NYS 447). § 269. Judgment upon verdict. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party, the justice must render judg ment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law. EDITORIAL NOTES Source: CCP § 3014, without change. From 2 RS 245, pt 3. ch 2, tit 4. §§ 120, 121. Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. JUDGMENT RENDERED IN CONFORMITY TO VERDICT Replevin: return reciting "verdict for plaintiffs for possession of property" and "judgment entered of twelve dollars costs against defendants" (*Griswold 60 Hun 558, 15 NYS 314). § 270. When judgment to be rendered. The justice must forthwith render judgment and enter it in his docket book in either of the following cases: 1. Where the plaintiff is nonsuited, or discontinues or withdraws the action; 2. Where judgment is confessed; 3. Where a verdict is rendered; 4. Where the defendant is in custody at the close of the trial; 5. Where the plaintiff is entitled to the judgment by default as provided in section two hundred and fifty-nine; 6. Where the defendant stipulates a judgment as provided in section two hundred and sixty. In every other case the justice must render judgment and enter it in his docket book within four days after the cause has been finally submitted to him. EDITORIAL NOTESSource: CCP § 3015, rewritten; without intended change of substance, except that subdivision 5 and 6 are new. From 2 RS 245, pt 3, ch 2, tit 4, § 124. Text in italics is new matter, inserted by L 1920, ch 937; "two hundred and fiftynine" read "315" and "two hundred and sixty" read "316". Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. PLAINTIFF NONSUITED; RENDITION OF JUDGMENT TIMELY— Final submission: of case, judgment of nonsuit cannot be rendered after (*Smith 90 Hun 542, 36 NYS 24). Immediately: (Erdman 70 AD 315, 75 NYS 241). Justice's return controls: formal statement in printed case on appeal as to time of rendition (Erdman 70 AD 315, 75 NYS 241). PLAINTIFF NONSUITED; ENTRY OF JUDGMENT TIMELY— Final submission: of case, judgment of nosuit cannot be entered after (*Smith 90 Hun 542, 36 NYS 24). Immediately: (Erdman 70 AD 315, 75 NYS 241). Justice's return controls: formal statement in printed case on appeal as to time of entry (Erdman 70 AD 315, 75 NYS 241). PLAINTIFF DISCONTINUED; RENDITION OF JUDGMENT TIMELY Forthwith: must be (Kuklo 2 NYS 358). PLAINTIFF DISCONTINUED; ENTRY OF JUDGMENT TIMELY— Forthwith: must be (Kuklo 2 NYS 358). PLAINTIFF WITHDREW; RENDITION OF JUDGMENT TIMELY Forthwith: must be (Kuklo 2 NYS 358). Ten days after: withdrawal, jurisdiction lost (*Kuklo 2 NYS 358). PLAINTIFF WITHDREW; JUDGMENT TIMELY— ENTRY OF Forthwith: must be (Kuklo 2 NYS 358). Ten days after: withdrawal, jurisdiction lost (*Kuklo 2 NYS 358). JUDGMENT CONFESSED; JUSTICE MUST RENDER JUDGMENT Conversation between parties and justice: regarded by justice as equivalent of confession and judgment rendered accordingly, defendant cannot attack judgment after a year's acquiescence therein (Traffarn 3 NYS 867). JUDGMENT CONFESSED; RENDITION OF JUDGMENT TIMELY— Immediately: (Thompson 29 AD 83, 51 NYS 384). JUDGMENT CONFESSED; ENTRY ОР JUDGMENT TIMELY— Two days after: confession, not entered in docket until, entered in justice's minutes immediately on confession (Thompson 29 AD 83. 51 NYS 384). VERDICT RENDERED; JUSTICE MUST RENDER JUDGMENT— Duty imposed: (Allen 32 Hun 363). Judicial power: of justice ended when verdict received and entered, only remaining judicial duty is to determine amount costs and add to verdict (Stephens 49 NY 35). of Four days after: verdict returned (*Putnam 46 Hun 492). Next day: verdict rendered, about 7 P. M. (Tousley 14 Mis 125, 35 NYS 855), after 10 P. M., judgment rendered following morning (Sweet 2 AD 1, 37 NYS 442). on Sunday, judgment rendered following Monday (Allen 44 NY 433). Reasonable time: allowed in view of surrounding conditions (Sweet 2 AD 1, 37 NYS 442). VERDICT RENDERED; ENTRY OF JUDGMENT TIMELY— Any time: for purpose of sustaining proceedings (Stephens 49 NY 35). Forthwith: should be (Allen 44 NY 433; Putnam 46 Hun 492; Allen 32 Hun 363). ENTRY OF JUDGMENT ON VERDICT TIMELY Four days after: verdict rendered (Putnam 46 Hun 492). Next day: verdict rendered, "about midnight," and recorded in minutes, entry of judgment deferred "until daylight" and judgment entered the first thing next morning (Goodrich 1 T&C 191), about 7 P. M. (Tousley 14 Mis 125, 35 NYS 855), after 10 P. M., judgment entered following morning (Sweet 2 AD 1, 37 NYS 442), on Sunday, judgment entered following Monday (Allen 44 NY 433). Reasonable time: allowed in view of surrounding conditions (Sweet 2 AD 1, 37 NYS 442). Sunday: entry void, validity of judgment entered on following day not affected (*Allen 44 NY 433). VERDICT PROPER RENDERED; JUDGMENT Amount: verdict and costs (Stephens 49 NY 35). "5th damages, $30.00, $4.60": return stating that $4.60 entered for costs (Goodrich 1 T&C 191). CASE NOT PROVIDED FOR; JUSTICE MUST RENDER JUDGMENT— Nature of act: judicial (Evarts 102 NY 296; Fish 44 NY 376). CASE NOT PROVIDED FOR; JUSTICE MUST ENTER JUDGMENT Nature of act: ministerial (Evarts 102 NY 296; Fish 44 NY 376). No judgment rendered: or decision made by justice duty to enter never attached (Evarts 102 NY 296). Omission: clear neglect of duty, but does not invalidate judgment (Fish 44 NY 376). CASE NOT PROVIDED FOR; RENDITION OF JUDGMENT TIMELY Brief handed in: day after, decision reserved to enable parties to file briefs (Babbin 14 AD 458, 43 NYS 849). Eight months after: submission, judgment void (*Gillingham 40 Hun 594). Five days after submission: judgment for costs, added to judgment for damages rendered timely, void so far as costs concerned (Rich 92 Hun 78, 37 NYS 602). Four days after submission: (Walrod 2 NY 134); judgment for damages, tho costs computed and added at later day (Rich 92 Hun 78, 37 NYS 602); more than, no jurisdiction (*Stephens 49 NY 35); must be within (Fish 44 NY 376; Gillingham 40 Hun 594). Seven days after submission: judgment void (Catlin 1 AD 157, 137 NYS 979). Stipulation: by attorneys for both parties, time may be extended by (Beardsley 88 Hun 560, 34 NYS 846, rev 11 Mis 117, 32 NYS 926). CASE NOT PROVIDED FOR; ENTRY OF JUDGMENT TIMELY— Four days after submission: more than, entry valid (Fish 44 NY 376); must be within (Stephens 49 NY 35). Seven days after submission: judgment regular and valid (Walrod 2 NY 134). CASE NOT PROVIDED FOR; FINALLY Briefs handed in: (Babbin 14 AD 458, 43 CASE NOT PROVIDED FOR; JUDGMENT | Damages: judgment "for $40.66 damages, valid as to amount of damages awarded. tho costs computed and amount thereof added to judgment after time expired, void as to costs (Rich 92 Hun 78, 27 NYS 602). JUDGMENT RENDERED— Entry in docket: constitutes rendition (Reid 87 Hun 40, 33 NYS 954 dis op). § 271. Remitting part of verdict. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party for a sum of money, the prevailing party may remit any portion thereof and take judgment for the residue. EDITORIAL NOTES Source: CCP § 3016, without change. From 2 RS 245, pt 3, ch 2, tit 4, § 125. Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. EFFECT OF SECTION STATED Permission granted: to successful party to remit portion of verdict and take judgment for residue (Allen 32 Hun 363, 6 CivP 60). RIGHT TO REMIT ABSOLUTE— Application to court: unnecessary (Gumb 58 Supr 559, 9 NYS 316). REMISSION TIMELY— After entry: of judgment, justice without jurisdiction to change record (*Allen 32 Hun 363, 6 CivP 60). Before entry: of judgment, must be (Allen 32 Hun 363, 6 CivP 60). § 272. Filing transcript of judgment. A justice of the peace who renders a judg ment must on the application of the judgment creditor and the payment of the fee therefor deliver to him a transcript of the judgment. If the judgment is for a chattel which has been delivered to the unsuccessful party, or for the value thereof in case a return thereof cannot be had, and such value exceeds twenty-five dollars, the transcript must state the particulars of the judgment, and whether the summons was personally served. A transcript may be filed in the office of the clerk of the county in which the judgment was rendered at any time within six years after its rendition. The county clerk on the presentation of the transcript and payment of the fees therefor must indorse thereon the date of its receipt, file it in his office and docket the judgment as of that date, in a book kept by him for that purpose, in the same manner as a judgment in an action brought in the county court, and enter therein the particulars of the judgment as stated in the transcript. From the time of filing such transcript the judgment is deemed the judgment of the county court of that county, and must be enforced accordingly, except that an execution can be issued thereon only by the county clerk as prescribed in section two hundred and seventy-nine and also except that the judgment is not a lien on real property unless it is for twenty-five dollars or more, exclusive of costs. EDITORIAL NOTES Source: CCP §§ 3017 and 3019 combined and Text in italics is new matter, inserted by Star (*) means read Not into HEADLINE in capitals. For explanation see JCA § 1. PURPOSE OF STATUTE STATED Lien on real estate: make judgment, when RULE FOR CONSTRUCTION OF SECTION Previous legislation: on same subject, in Rendered judgment: (Fish 44 NY 376); tho term expired (Furanz 163 NYS 700). WHO MAY APPLY FOR TRANSCRIPTJudgment creditor: (Fish 44 NY 376; Cunningham 4 CivP 220). APPLICATION TIMELY FOR TRANSCRIPT Any time: prior rule (Rose 37 Hun 397). Six years after rendition: of judgment, more TRANSCRIPT SUFFICIENT- PLACE OF FILING TRANSCRIPT PROPER FILING TRANSCRIPT TIMELY- FILING BY COUNTY CLERK TIMELY— FILING SUFFICIENT Receipt of transcript: must be as of time of (Rose 37 Hun 397). JUDGMENTS ETED WHICH MAY BE DOCK Amount: any (Dieffenbach 112 NY 621; Bolt 57 Hun 567, 11 NYS 366, aff 10 NYS 397); more than $25 exclusive of costs, must be, prior rule (Dieffenbach 112 NYS 621). Confession: entered on (Ithaca Agricultural Wks 107 NY 272). Not entered: in justice's docket (Fish 44 NY 376). Rendition: of judgment, condition to be performed before furnishing transcript (Fish 44 NY 376). DOCKETING OF JUDGMENT REQUIRED— Judgment debtor: filed transcript (*Cunningham 4 CivP 220). Peremptory: requirement is (Rose 37 Hun 397). DOCKETING OF JUDGMENT TIMELY— CIENT OF JUDGMENT SUFFI Receipt of transcript: must be as of time of (Rose 37 Hun 397). not Two defendants: justice's judgment against, docketed against one only, irregularity at most, action on docketed judgment defeated (Spencer 9 CivP 93). JUDGMENT DEEMED JUDGMENT COUNTY COURT OF COUNTY WHERE DOCKETED OF be Action on judgment: county court has jurisdiction of (Fink 33 Mis 687, 68 NYS 1112); leave of court to maintain must be obtained (Baldwin 30 Hun 163); may maintained between original parties, CPA § 484 inapplicable (Harris 65 Hun 361, 20 NYS 232); must be brought in county court or supreme court, cannot be brought in justice's court (Baldwin 30 Hun 163). All purposes: becomes judgment of county court for (Spencer 2 HowNS 117). By virtue of statute: (Dieffenbach 112 NY 621; Ithaca Agricultural Wks 107 NY 272; Rowe 30 AD 173, 51 NYS 889; Agar 8 AD 337, 40 NYS 815; Davidson 47 Hun 51; Bergman 45 Hun 133, 19 AbNC 62, 12 CivP 256; Vedder 44 Hun 590; McIntyre 43 Hun 124; Kincaid 25 Hun 237; Furenz 163 NYS 700; Korpolinski 84 Mis 96, 146 NYS 859; Anderson 7 Mis 218, 27 NYS 646; Billington 4 NYS 504), Cancellation: of transcript within power of County court (Money weight Scale Co 92 Mis 730, 157 NYS 463). Character of judgment: remains judgment of court not of record (Harris 65 Hun 361, 20 NYS 232). Control: of county court, judgment subject to (Money.weight Scale Co 92 Mis 730, 157 NYS 463). Existence of judgment: docketing is evidence of (Belgard 44 Hun 557). Judgment debtor: filed transcript (*Cunningham 4 CivP 220). Jurisdiction of justice: to render judgment prima facie shown by proof of filing of transcript (Sill Stove Wks 62 AD 566, 71 NYS 181). Lien continues: for same period as lien of county court judgment (Anderson 7 Mis 218, 27 NYS 646; Brown 27 NYS 436; Phelps 6 Mis 397, 26 NYS 774). Limitation of action on judgment: same as on county court judgment (Spencer 2 How NS 117); 6 years from rendition, prior rule (Dieffenbach 112 NY 621; Guttroff 39 Mis 483, 80 NYS 219; Green 9 NYS 660), judgment docketed prior to 1894, action commenced after 1894 (McMahon 107 AD 132, 94 NYS 775), where statute had run prior to 1894, amendment of that year did not remove bar (Warner 39 AD 91, 56 NYS 585); 20 years from rendition (Brownell 220 NY 483, 116 NE 366; McHahon 107 AD 132, 94 NYS 775; Warner 39 AD 91, 56 NYS 585; Raphael 28 AD 91, 50 NYS 920; Spencer 9 CivP 93), judgment docketed after 1894 amendment (Guttroff 39 Mis 483, 80 NYS 219); by filing transcript and docketing (Spencer 2 HowNS 117). Presumption of payment arises: 20 years after docketing (Belfor 143 AD 147, 127 NYS 623). Queens county: rule applicable in prior to 1898 (Stumpp 32 Mis 41, 66 NYS 172). Vacation of judgment: entered by justice, not within power of county court, the judgment entered on transcript vacated (Daniels 36 AD 540, 55 NYS 692); entered on transcript, power of county court extends to (Daniels 36 AD 540, 55 NYS 692); not within power of county court (See Johnson 75 AD 285, 78 NYS 96; See Korpolinski 84 Mis 96, 146 NYS 859); within power of county court (Moneyweight Scale Co 92 Mis 730, 157 NYS 463). Vacation of transcript: power of county court extends to (Daniels 36 AD 540, 55 NYS 692; Moneyweight Scale Co 92 Mis 730, 157 NYS 463). JUDGMENT ENFORCED LIKE JUDGMENT OF COUNTY COURT— By virtue of statute: (Dieffenbach 112 NY 621; Ithaca Agricultural Wks, 107 NY 272; Bergman 45 Hun 133, 19 AыNC 62, 12 CivP 256; Korpolinski 84 Mis 96, 146 NYS 859; Anderson 7 Mis 218, 27 NYS 646; Green 9 NYS 660). Death of judgment debtor: execution may be issued after expiration of one year (Phelps 6 Mis 397, 26 NYS 774). Leave to issue execution: denial of motion for appealable to supreme court (See Ithaca Agricultural Wks 107 NY 272); grant of, order making not appealable to general term of supreme court (Kincaid 25 Hun 237); may be granted tho action. on judgment barred by six year statute (Raphael 28 AD 91, 50 NYS 920; Becker 17 AD 183, 45 NYS 296; Agar 8 AD 337, 40 NYS 815; Kincaid 25 Hun 237; Anderson 7 Mis 218, 27 NYS 646; Brown 27 NYS 436); must be denied where action on judgment barred by six year statute (Herman 15 Daly 290, 6 NYS 514); should be granted tho action on judgment barred by six year statute of limitations before docketing (Rose 37 Hun 397). Order of county court: in action in which transcript filed from justice's court appealable to supreme court (See Ithaca Agricultural Wks 107 NY 272). Rules applicable: to enforcement of county court judgment apply to such judgment (Bergman 45 Hun 133, 19 AbNC 62, 12 CivP 256). Setting aside execution: and directing return of moneys collected pursuant thereto, within power of county court (Moneyweight Scale Co 92 Mis 730, 157 NYS 463); power of county court extends to (Rowe 30 AD 173, 51 NYS 889). Stay of execution: within power of county court (Rowe 30 AD 173, 51 NYS 889). Supplementary proceedings: cannot be maintained where action on judgment was barred by limitations before docketing (Davidson 47 Hun 51); may be entertained by surrogate of Steuben county (McIntyre 43 Hun 124); may be instituted more than six years after rendition of judgment (Bolt 57 Hun 567, 11 NYS 366, aff 10 NYS 397); order of county court in, requiring defendant to pay money appealable to general term of supreme court (Billington 4 NYS 504). WHO MAY ISSUE EXECUTIONAttorney: for judgment creditor (*Harding 140 AD 92, 124 NYS 897). County clerk: (Furanz 163 NYS 700; Anderson 7 Mis 218, 27 NYS 646); of county in which judgment first docketed, to sheriff |