Cashman v. Johnson — 4 Abb. Pr. 256

Majority

p. 256

CASHMAN a. JOHNSON.

Supreme Court, First District;

Special Term, March, 1857.

Headnote

City Judge of Brooklyn.—Supplementary Proceedings.

Notwithstanding the abolition by the Constitution of 1846 of the office of Supreme Court commissioner, it is still competent to the Legislature to confer the powers formerly exercised by those officers.

The Legislature have not power to authorize a judge of one court to exercise complete jurisdiction in a cause pending in another court, except it is expressly permitted by the Constitution.

The power to entertain proceedings supplementary to an execution cannot be transferred to any person not a judge of the court in which the judgment was rendered, excepting in the case of the county judges as authorized by section 14 of article 6 of the Constitution.

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The act of 1849, conferring on the judge of the City Court of Brooklyn “ the powers of a justice of the Supreme Court at chambers,” does not, by its proper construction, embrace the powers exercised by a justice of the Supreme Court in proceedings supplementary to execution.

Motion to vacate proceedings supplementary to execution commenced before the city judge of Brooklyn, upon a judgment of the Supreme Court.

In December, 1855, the plaintiffs in this action obtained judgment against the defendant for the sum of $600. The action was commenced in the county of Hew York; the judgment was docketed, and the judgment-roll filed, in the office of the clerk of the city and county of Hew York. In January, 1856, the plaintiffs docketed the judgment in the office of the clerk of Kings county, and issued an execution to the sheriff of Kings county, that being the county where the defendant resided. The execution was returned by the sheriff wholly unsatisfied. After the return of the execution the plaintiffs applied to the city judge of the city of Brooklyn, and obtained from him an order for the examination of defendant upon proceedings supplementary to the execution, which was returnable before the city judge, at his chambers in Brooklyn, on March 4, 1856. On the return-day of the order the defendant, attended by his counsel, S. P. Huff, appeared before the said judge and moved to dismiss the order upon the following grounds :—

1. That judgment, upon which the order was issued, was rendered in the Supreme Court, and that the judge of the City Court of Brooklyn had no jurisdiction in supplemental proceedings upon a judgment rendered by the Supreme Court.

2. The judge who issued the order was not a judge of the court in which the judgment was rendered, nor a county judge, and that, therefore, he had no jurisdiction in this case.

3. That it did not appear by the affidavit, upon which the order was issued, in what county the judgment-roll was filed, or that an execution had been issued to the sheriff of the county in which the judgment was rendered and roll filed.

The city judge overruled the motion, and ordered the defendant to be examined, to which ruling defendant excepted.

The defendant was then examined concerning his property. After the examination the plaintiffs applied to the judge for the

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appointment of a receiver. The defendant’s counsel objected to the appointment of a receiver, upon the grounds above stated, but the objection was overruled by the judge, and a receiver was appointed.

On December 9, 1856, the defendant received from the Citizens’ Eire Insurance Company, of the city of New York, the sum of $700, being the amount of a policy of insurance effected on a house belonging to the defendant’s wife, which was destroyed by fire on November 25, 1856.

On December 11,1856, the receiver demanded of the defendant the $700 received from the Insurance Company, which the defendant refused to pay to the receiver. On such refusal, the receiver obtained an order from Judge Culver, requiring the defendant to show cause why he should not pay the money he had so received to the receiver, or why an attachment should not issue against him as for a contempt. On the day to show cause the defendant appeared, and made the objections first above stated, and also that the money did not belong to him. Affidavits were read on both sides. The judge made an order for the defendant to pay the $700 to the receiver within four days, or that an attachment issue against him.

In January, 1857, the defendant, upon an affidavit setting forth the foregoing facts, obtained an order from a justice of the Supreme Court in the city and county of New York, requiring the plaintiff to show cause why the supplementary proceedings should not be set aside; and the cause now came up upon this order.

Luther R. Marsh, for the motion.

J. D. Crane, opposed.

—After the recovery of judgment against the defendant in this action, proceedings supplementary to the execution, pursuant to chapter 2, title 9, and part 2 of the Code, were instituted before the city judge of Brooklyn, who cited the defendant to appear before him for examination. After the examination, the city judge appointed a receiver, and subsequently, for an alleged contempt, granted an order, requiring the defendant to show cause why an attachment should not issue against him.

This is an application to vacate those orders, on the ground

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that the judge had not jurisdiction to entertain proceedings supplementary to an execution issued on a judgment recovered in this court.

It is claimed that this power was conferred by section 26 of the act of 1849, organizing the City Court of Brooklyn. (laws of 1849, 174.) The language of the section is : “ He (the said city judge) may exercise, within the county of Kings, all the powers of a justice of the Supreme Court at chambers, and perform all such duties, and do all such acts, as might have been done or performed by the laws in force on May 12, 1847, by the judges of the Court of Common Pleas, or by any one or more of them at chambers, or otherwise when not holding court, or by any such judge being of the degree of counsellor of the Supreme Court, and acting as a Supreme Court commissioner.”

The Legislature, no doubt, by this enactment, intended to confer upon the city judge at least the powers formerly possessed by Supreme Court commissioners. But, it is contended, that, under' our present Constitution, the Legislature are disqualified from conferring’ such powers.

The office of Supreme Court commissioner was abolished, together with that of chancellor, and with the then existing Supreme Court, &c., from and after the first Monday of July, 1847. (Art. 14, Const, of 1846, § 8.)

The office then existing, of Supreme Court commissioner, was plainly abolished by this section; and the term of every person holding that office expired at the time mentioned in it; but does it per se interdict the Legislature from conferring similar powers under the new judiciary system, established by that Constitution? It is quite evident that it prohibits them, although not in direct words, from re-establishing the office of chancellor, or vice-chancellor, or any office, whatever may be its name, possessing the same character of jurisdiction, for their establishment would be evidently inconsistent with the system provided in article 6. But, does the prohibition extend to certain subordinate judicial powers which the Legislature had, previously to the present Constitution, bestowed upon persons who were not judges of the court in which the proceedings were pending ?

The office of Supreme Court commissioner was in existence

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when the Constitution of 1821 was adopted, and that Constitution contains nothing limiting the power of the Legislature in that respect. It not only does not contain any express prohibition to that effect, but, indirectly, at least, it recognizes the •office. The Constitution of 1846 is much more minute in its provisions relative to the organization of courts, and to judicial authority; but, I am inclined to think, if it was intended, in the face of long-established usage and manifest convenience, that the powers of a judge at chambers should be confined to the judges of the court in which the action was instituted, an express provision to that effect would have been inserted in the Constitution. The bare abolition of the office of Supreme Court commissioner, as it formerly existed, is not, of itself, sufficient to restrain the Legislature. Legislative power, in each State, is unlimited, except where it is expressly restricted by the State or the national Constitution, or where it would be obviously incongruous with the general scheme or special provisions of either. I can see no greater incongruity in the right to confer the authority ordinarily exercised by a judge at chambers upon any other officer, notwithstanding that the office of Supreme Court commissioner is abolished, than in the right to refer a matter to any competent person, notwithstanding that the office of master in chancery is abolished. On the contrary, section 5 of article 6 may perhaps • be considered as evidence of an -intention to leave the power as it theretofore existed. The section provides that “ the Legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity, as they have heretofore possessed.” This, indeed, would not be sufficient to enlarge the powers of a legislative body, created with a specific capacity, and limited, like that of the General Government, within a prescribed sphere, either expressly delineated or necessarily inferred, but I hold it to be a satisfactory indication, that it was not intended to curtail the general authority of the Legislature in relation to judicial proceedings, or to prohibit it from making regulations, which, for a long series of years, it had been accustomed to make.

I am, therefore, of opinion, in the absence of any express provision to the contrary, that the Legislature retains the right of conferring the powers formerly exercised by Supreme Court commissioners, notwithstanding the abolition of the office' by

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that name, existing at the! time of the adoption of the Constitution of 1846.

But I consider, nevertheless, that the light does not extend to proceedings supplementary to an execution, issued on a judgment recovered in the Supreme Court. It is quite certain that the Legislature has not the right to'authorize the city judge of Brooklyn to exercise complete jurisdiction in a cause pending in the Supreme Court, or a judge, of any one court to exercise complete jurisdiction in a cause pending in another court, except where expressly directed by the Constitution; because, although there is no positive prohibition on the subject, it would be repugnant to the whole scope and scheme of the article 6 of that instrument. Such a power would be of the essence of the judicial functions, and can be conferred only upon the judges of the court in which the action is pending.

The ordinary chamber business formerly delegated to persons not judges of the court, consisted of proceedings collateral and incidental, and of a minor and practical description, not involving the merits, and never imparting the power to punish for a contempt. It was, in a great measure, ministerial, and, at best, quasi judicial."

Proceedings supplementary to execution are, in no sense, identical with ordinary chamber business ; they are of a special and higher nature; they are regarded as a substitute for an action in chancery, and the jurisdiction over them brings with it a power to punish—a power with which a Supreme Court commissioner, as such, was never invested. These, therefore, are of the essence of the judicial functions, and cannot be transferred to persons not judges of the court in which the proceedings are pending; and it would not have been competent for the Legislature to have conferred this jurisdiction on the judges of county courts', had it not been expressly authorized by section 14 of article 6 of the Constitution.

Further, I am of opinion, that even if the Legislature possessed this right, that they have not, by the act, conferred on the city judge of Brooklyn jurisdiction over supplementary proceedings in actions not pending in his own court. The words “ powers of a justice of the Supreme Court at chambers,” comprise merely the ordinary chamber business, and do not embrace supplementary or special proceedings of any description;

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they are not specific and positive enough to confer on him general and continuing control over the subject; and, if it is a sound maxim “ that an inferior court shall not be presumed to have jurisdiction, where it does not expressly appear to have one,” this is especially applicable to a mere commissioner in no respect, as such, constituting a court, who claims to exercise the important and extraordinary authority over the liberty and property of citizens, which the jurisdiction over proceedings supplementary to execution confers.

The proceedings, before the city judge must, therefore, be vacated.