Campbell v. Eben — 17 N.Y. St. Rep. 848

Majority

p. 848

A. Campbell, Pl’ff, v. F. I. Eben, Deft.

(City Court of New York, Special Term,

Filed July 17, 1888.)

Headnote

Supplementary proceedings—Code oe Procedure, § 392—Code Civil Procedure, § 8352.

On a motion to vacate an order of July 2, 1888, to examine a judgment debtor, in proceedings supplementary to an execution issued in February,

p. 849

1874, Held, that a “ right to ” the remedy given by section 292 of the old Code of Procedure had, by the return of the execution unsatisfied in 1874 “ accrued ” at once, valid for twenty years after entry of judgment. The judgment creditor had, therefore, under Code Civil Procedure, § 3352, in 1888, the right to institute these supplementary proceedings upon proof, showing alone the “prerequisites" of the preceding Code on this subject.

Motion to vacate order of July 2, 1888, to examine judgment debtor in proceedings supplementary to an execution issued in February, 1874.

A. L. Sanger, for motion; R. H. Channing, for judgment-creditor, opposed.

“Creditors’ bills ” could be brought at any time after return of execution unsatisfied. McElwain v. Willis, 9 Wend., 560 .

“Supplementary proceedings,” under the old Code of Procedure, § 292, could be also instituted at any time after such return unsatisfied. Owen v. Dupignac, 9 Abb., 180 .

Necessarily, therefore, both modes of aiding judgment-creditors were only barred from being commenced, by the Statute of Limitations, at the end of the twenty years’ life of a judgment—then presumed to be paid, unless sued upon meanwhile. Driggs v. Williams, 15 Abb., 477 .

Under the new Civil Procedure Code, section 2435, the judgment debtor’s examination can be ordered only in case ten years after return of an unsatified execution remain unexpired. In the present instance, more than fourteen years have so elapsed. But by section 3352, Code Civ. Pro., it is provided that nothing, contained in that act (excepting chap. 4, which has no application to supplementary proceedings) should impair any “right ’’lawfully accrued previously, unless expressly so declared therein, which is not the case as to supplementary proceedings, and that the prior statutes upon the subject shall be deemed to remain in force, so far as necessary for enforcing or protecting such a right, notwithstanding the repeal thereof. A “right to ” the remedy given by section 292 of the Old Code of Procedure had, by the return of the execution unsatisfied in 1874, “accrued ” at once, valid, as above shown, for twenty years after entry of the judgment. The judgment-creditor had, therefore, in 1888 (within those 20 years) the right to institute these supplementary proceedings, upon proof showing alone the “prerequisites” of the preceding Code on this subject. Bean v. Tonnelle, 24 Hun, 353 .

The right to bring this remedy was expressly “saved ” by said section 3352 That was the very purpose of such a saving clause declaring a non-repeal for certain purposes; for otherwise, the “repeal” would have eliminated all right to the remedy—which is well settled law.

The right referred to means any right given by the

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“remedial” statute-provisions displaced by, and removed, from the statute-book to make room for, the Code of Civil Procedure. It can have no other signification—since other lawful rights did not “depend on” the said repealed provisions for vitality, and would exist without and apart from such a saving clause.

But the mode of “procedure” after the proceeding is duly instituted must be according to the forms of the new Code. That is the plain intent, considering the whole enactment. It was not intended that the methods of “ conducting” remedies of both the Code of Procedure and Code of Civil Procedure should co-exist after September 1, 1880, the, date of the final taking effect of the new Code. The latter was to govern the conduct of the proceedings. Wheaton v. Newcombe (11 Civ. Pro. R., 91), is simply a case of “ unearned” costs, and not in point (see Munsons. Curtis, & State Rep., 189, where held, p. 190, also a statutory right of review on appeal is a right “accrued,” and hence saved by said section 3352).

Motion denied, but without costs.