The Special Term erred in holding, as a conclusion of law, that the execution should have been issued by the clerk, and not the party or his attorney. Section 68 of *Page 51 the Code, among other things, provides that sections 55 to 64, both inclusive, shall apply to the justices' courts of cities, with the following among other exceptions: "And except also that in the city and county of New York a judgment of twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as, and be deemed a judgment of the Court of Common Pleas for the city and county of New York." This, it would seem, could leave no doubt but that such judgments were to be enforced in the same manner as judgments rendered by the Court of Common Pleas of the city. The Code provides that these latter judgments shall be enforced by executions issued by the party or his attorney. It will be seen that it is by the 13th clause of section 64 that provision is made for the issuing of executions upon judgments of justices of the peace, when transcripts have been filed with county clerks by such clerks. The exception in section 68 referred to above does not make this clause applicable to the city and county of New York, but expressly provides another mode for the enforcement of the judgment. The execution was rightly issued by the attorney. There is nothing in the objection that the execution was issued by Niles, who was not an attorney, in the name of Clark. There is no rule of law or of public policy precluding an attorney from entering into an agreement with one not an attorney to enter his office and act as his clerk, compensating him therefor by giving him an interest in the business. In such a case the attorney is responsible to the courts and to all interested to the same extent he would be if all the business was done by him personally. The exception to the proof offered upon trial as to the amount of the property of the testator was not well taken, for the reason that such proof could have no possible bearing upon the case one way or the other. The party had just as clear a right to issue the execution to Kings county and collect it there, if the testator had millions of property in New York, as he would have had if he had none there. His right so to do was perfect in either event. (Code, § 287.) *Page 52 It is clear that the rights of the defendant could not in any way be affected by such evidence, and when this is the case an exception to the evidence is unavailing. It is clear that but for the finding of the fact by the court at Special Term, that the defendants fraudulently concealed the issuing of the execution to Kings county, the sale and conveyance of the property by the sheriff, the judgment should be reversed and a new trial ordered. If that fact was correctly found, it authorizes the judgment rendered. No exception that there was no evidence of such fraud was taken by the defendants. Had such exception been taken, the question whether there was or was not any such evidence could have been reviewed in this court.
It is error of law for a court to find a fact of which there is no proof whatever. But to make such error available in this court, the proper exception presenting it must be taken in the court below. As this court, upon appeal, except in special cases regulated by statute, reviews only questions of law passed upon by the court below. I make these observations lest an affirmance should be regarded as an approval of the finding of fact by the Special Term, in this case. I have perused the case and am wholly unable to see how such a finding can be sustained. Neither Edmonds, his attorney, or Lee, were under any obligation to inform the testator or his attorney of the issuing of the execution, or of the levy and sale of the property. It was the business of the testator and his attorneys, either to stay the execution upon the appeal, or protect his property, wherever found, from its operation. The judgment creditor had the right to collect his judgment in the mode pointed out by law, and if the testator had real estate in Kings, or any other county, it was no fraud upon him to collect the debt out of such property, although he had ample personal property in the city of New York, and of which such judgment might have been collected. So long as the creditor, his attorneys and agents, do no affirmative acts tending to mislead the debtor and prevent him from protecting his property from sale or redeeming real estate if sold, there is no ground for imputing fraud and charging the *Page 53 consequences thereof upon the creditor or purchasers at sales. But as above stated, the finding of fact cannot be reviewed in this court. There is no exception that there was no evidence thus presenting it as a question of law, and it is not claimed, nor can it be, that it may be reviewed in this court as a question of fact upon the weight of evidence. The General Term might, and perhaps would have reversed this finding of fact, had it not adopted the erroneous conclusion that the execution was void, not having been issued by the clerk; but this court has no means of knowing this. It is concluded by the record as it is. The appellants should have procured from the General Term, a reversal of the finding of fact, if that was its conclusion, before appealing to this court, and then it would have appeared that the judgment was based solely upon the ground that the execution was void, and then the reversal of the judgment here would have followed. But as the record now stands, the judgment must be affirmed.
A majority of the court concur in the opinion that the statute does not require the execution to be issued by the county clerk.
Judgment affirmed. *Page 54