Gewertz v. Berry , 140 Misc. 743 ( 1930 )

Fawcett, J.

Motion to mandamus the comptroller of the city of New York to pay petitioner’s judgments. This mandamus is sought to compel the payment of two judgments lately rendered against the city which were not paid, because in 1906 there was obtained by the city of New York a judgment against the movant which, with accrued interest, is in excess of his judgments. Reference is made to section 44 of the Civil Practice Act, establishing a conclusive presumption of payment of judgments after twenty years. Whether this is a statute of limitations, as urged by the petitioner, or a statutory rule of presumptive evidence, is not decisive of the question, though the latter view appears the correct view and is advanced with force in the opinion (per Page, J.) in Brinkman v. Cram (175 App. Div. 372). What is decisive is that the terms of the section do not apply to the city in its capacity of a subordinate governmental agency of the State entitled to the historical immunity of the sovereign from statutes which do not speak of it by express words. (MacMullen v. City of Middletown, 187 N. Y. 37; People v. Gilbert, 18 Johns. 227; People v. Herkimer, 4 Cow. 345.)

Motion denied.