Although the appellant does not in form ask for a mandamus, we assume, as does the corporation counsel in his brief, that this is intended to be an application for that remedy which would be the only appropriate one, if the appellant is entitled to any order at all. The question involved is a very narrow one, which does not seem to have been passed upon heretofore.
On October 28, 1902, the petitioner obtained a judgment in the Municipal Court against one Axel Winters and on November 1, 1902, a transcript of said judgment was issued by the clerk of said Municipal Court. More than nine years later, on February 1,1912, that transcript was presented to the clerk of the county of New York and a demand made that he file it in his office, the proper fee being tendered to him. He refused to file it, and the purpose of this proceeding is to compel him to do so.
The question at issue rests upon an apparent conflict between section 3011 of the Code of Civil Procedure and section 261 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1908, chap. 495). The former section, upon which the county clerk relies, reads as follows: “§ 3011. Transcript of judgment; docketing the same. A justice of the peace who renders a judgment, except in an action to recover a chattel, must, upon the application of the party in whose favor the judgment was rendered, and the payment of the fee therefor, deliver to him a transcript of the judgment. The county clerk of the county in which the judgment was rendered must, upon the presentation of the transcript and payment of the fee therefor, if within six years after the rendering thereof, indorse thereupon the date of its receipt, file it in his office, and docket the judgment as of the time of the receipt of the transcript in the book kept by.him for that purpose, as prescribed in article third, title first of chapter eleven of this act. Thenceforth the judgment is deemed a judgment of the County Court of that county, and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section thirty hundred and forty-three of this act, and that the judgment is not a lien upon, and can not be enforced against, real property, unless it is for twenty-five dollars or more, exclusive of costs.”
*466Section 261 of the Municipal Court Act, as amended, is practically identical with the above-quoted section except that the words, “ if within six years after the rendering thereof,” and which in the Code section limit the time for filing the transcript of the judgment of a justice of the peace, are omitted. These words were added to section 3017 of the Code of Civil Procedure by chapter 307 of the Laws of 1894, and, before they were so added, it .was held that there was no limitation of time within which such a transcript might be filed. (Rose v. Henry, 37 Hun, 397.) If, therefore, section 261 of the Municipal Court Act, which does not contain the words of limitation, is to control, there is no limitation of time within the lifetime of the judgment within which a transcript of a judgment in the Municipal Court may be filed in the office of the county clerk. Section 20 of the Municipal Court Act provides as follows: ‘ ‘ The provisions of the Code of Civil Procedure and rules and regulations of the Supreme Court as they may be from time to time, shall apply to the Municipal Court as far as the same can be made applicable, and are not in conflict with the provisions of this act; in case of such conflict this act shall govern.” We cannot escape the conclusion that section 3017 of the Code of Civil Procedure and section 261 of the Municipal Court Act are in conflict; they certainly are upon this important question as to the time within which a transcript of judgment may be filed in the office of the county clerk. In all other respects the' sections are practically identical, and both cover completely the same subject, so that neither is obliged to borrow from the other in order to gain complete efficacy. They are in conflict, however, in the point involved in this, proceeding, and, being so in conflict, the Municipal Court Act must prevail. With the consequence of filing the transcript, or with the question whether or not the petitioner will derive any benefit therefrom, we are not concerned. It is sufficient that ■under the statute he is entitled to file it.
■ The order appealed from should be reversed, and petitioner’s motion for a peremptory mandamus (for such we deem his application to be) granted, with ten dollars costs and disbursements.
Dowling, J., concurred.
Order affirmed, with ten dollars costs and disbursements.