It was sought by the writ to compel the cleric of the Municipal ■Court of the city of New York, firs; judicial district, to issue an exe*415cution and deliver a transcript of judgment. The ground upon which the demurrer was sustained is, that the writ does not state facts sufficient to entitle the relator to the relief asked, or to any relief by way of mandamus. Although it is suggested on this appeal, as it was in the court below, that the judgment referred to in the writ has been vacated by order of the court, it is pointed out by the appellant that whether or not this be so, the judgment was in full force at the time the writ was granted. This shows the liability to error -which is always likely to result from a consideration of facts outside of the record. Here we have the writ and the demurrer thereto, and its sufficiency .must be determined by resort alone to the language of the writ.
It is therein stated that “ on the 12th day of January, 1898, in an action brought in the district court in the city of Hew York, for the first judicial district, in which George Batchelor was plaintiff and Antonio Easines was defendant, a judgment was recovered by said plaintiff against said defendant in said action for the sum of one hundred and seventy-seven and 16/TOO dollars (§177.16), which judgment was duly entered and docketed in the clerk’s office of said court and has not been satisfied or released by the said plaintiff or his attorneys, and that no appeal has been taken from said judgment or notice of appeal been given as required by law.” Then follows a statement of a demand by the relator for a transcript and the issuance of an execution by the clerk, and the latter’s refusal.
Under the Code (§ 2082), an alternative writ is now to be construed in the same manner as a complaint in an action, and the ground of demurrer should be apparent upon the face of the writ. The ground of demurrer assigned is that it is not stated that the judgment continues in existence or is in full force and effect, and in that connection the argument is that the allegation that the judgment “has not been satisfied or released by the said plaintiff or his attorneys, and that no appeal has been taken from said judgment,” falls far short of such a statement, because while it may be literally true, it might be equally true that the judgment had been vacated by order of the court. This contention was upheld by the learned judge at Special Term, who in his opinion says: “ By thus carefully rebutting these particular facts he invites the inference that another fact may exist which would affect it and which he has therefore *416foreborne to mention, and which would destroy his right to relief. Judged by his own form of pleading, therefore, his writ is defective, and it does not seem necessary to force his adversary to set up as a defense the omitted fact, when, upon his own theory of pleading, he was hound to negative such fact with the other enumerated by him.”
The appellant insists that all these statements were unnecessary, and were properly matters of defense; and that, having alleged the recovery of judgment, there was a presumption that it continued to exist. As pointed out below, while this is the rule ordinarily applicable to pleadings, cases are to be found on both sides of the question (People v. Fadner, 10 Abb. N. C. 462; Wilkinson v. Dobbie, 12 Blatchf. 298, 301); but the appellant “ has not been content to rely upon the legal presumption of the continuance of liis judgment, but has deemed it incumbent upon him to negative facts which might affect his record.”
Without, however, assenting to this view, we think there is another ground which is fatal to the writ. By section 532 of the Code it is provided : “ In pleading a judgment or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction ; but the judgment or determination may be stated to have been duly given or made.” This is a substantial re-enactment of section 161 of the old Code, which was construed in the case of Hunt v. Dutcher (13 How. Pr. 539), wherein it was said : “ A justice’s court is a court of special and limited jurisdiction. In pleading the judgment of such a court, it is necessary at common law to show that the court had jurisdiction of the subject-matter and of the person of the defendant. * * * It may not be necessary, and probably is not, to use in the pleading the precise language of the statute, but words to the same effect and substance must be used. * * * To say that a judgment is entered is merely to allege the single fact of the entry of the judgment, without including an averment that it was properly or lawfully done. All this is embraced in the language of the Code that the judgment was duly given or made? The word entered or perfected may be equivalent to the word made or given: but the word duly is most essential. It can hardly be dispensed with and satisfy the terms of the statute. I can imagine no single word that will supply its place.” And in Brownell v. *417Town of Greenwich (114 N. Y. 527) it is said: “ Duly, in legal parlance, means according to law. * * It does not relate to form merely, but includes form and substance both.”
The statement here is that the judgment was recovered. But there is nothing to show the nature of the action, or that the court had jurisdiction of the subject-matter or of the person of the defendant ; and although there is the statement that the judgment was duly entered and docketed, this may be all true, and yet the judgment may never have been duly recovered. For it must be remembered that a judgment illegally obtained may thereafter be “duly entered or docketed.”
If the judgment had been sufficiently pleaded, we should have been inclined to think that, as a matter of strict pleading, it was not necessary for the relator to negative every defense that the defendant might set up. But we think that the failure properly to allege the judgment by showing the jurisdictional facts, or that it was “ duly given or made,” -was equally, as a matter- of strict pleading, a fatal omission from the writ.
Upon this ground, therefore, the judgment appealed from should be affirmed, with costs.
Yan Brunt, P. J., Rumsey and Patterson, JJ., concurred; Barrett, J., dissented.