Peck v. Baldwin — 34 N.Y. St. Rep. 511

Majority

p. 511

William H. Peck, Resp’t, v. Alva M. Baldwin, Appl’t.

(Supreme Court, General Term, Fourth Department,

Filed December 6, 1890.)

Headnote

Supplementary proceedings—Code Civil Procedure, § 2434.

The provision of § 2434 of the Code which requires an order granted by a justice of the supreme court in a district other than that of the debtor’s residence to be returnable to a justice, etc., in the district embracing the county to which the execution was issued, applies to proceedings where the execution issued out of the supreme court and is not confined to cases where the execution issued out of another court.

(Hardin, P. J., dissents.)

Appeal from an order, made at the Schuyler special term, denying the defendant’s motion to set aside an order in supplementary proceedings and an order appointing a receiver in such proceedings.

The judgment against the defendant upon which these proceedings were based was in the supreme court and entered in the office of the clerk of Tompkins county. The defendant was a resident of that county. Execution was issued upon such judgment to the sheriff' of that county and no other. Upon the return of the execution unsatisfied, the respondent applied to Hon. George H. Kennedy, a justice of the supreme court residing in the fifth judicial district, for an order in supplementary proceedings to examine the defendant as such judgment debtor. The order was granted, but contained no provision making it returnable before a justice of the supreme court residing in the sixth judicial district, or the county judge or special county judge or special surrogate of Tompkins county, or of any adjoining' county. The county of Tompkins is embraced within the sixth judicial district.

A referee was appointed by such order to examine the appellant. Upon the hearing before the referee, the appellant objected to the proceedings on the ground that they did not require the subsequent proceedings to be had before a justice of the supreme court in the district in which the appellant resided.

Subsequently an application was made before Judge Kennedy for the appointment of a receiver, upon which application the appellant appeared and objected to the granting of such order, upon the ground that the order for an examination of the defendant was irregular, in that it was granted by a justice of the

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supreme court of the fifth judicial district while the defendant resided in the sixth, and the order required the subsequent proceedings to be had before a justice of the fifth judicial district, when it should have required them to have been had before a justice of the sixth judicial district, where the defendant resided.These objections were overruled, and Mr. Justice Kennedy made an order appointing a receiver of the defendant’s property.

From that order an appeal was taken to the general term, where the appeal was dismissed, on the ground that an appeal could not be taken to the general term from such an order, that the appellant’s remedy was by motion at special term to vacate the same. Subsequently the appellant made a motion at the Schuyler special term to vacate the orders referred to, which motion was denied, and from the order denying that motion this appeal was taken.

M. N. Tompkins, for app’lt; Ceylon H. Lewis, for resp’t.

Section 2434 of the Code of Civil Procedure, so far as it is applicable to the question involved on this appeal, in effect provides that either of the special proceedings mentioned in § 2432 may be instituted before a judge of the court out of which the execution issued, which includes a justice of the supreme court where the execution was issued out of that court. Baldwin v. Perry, 25 Hun, 72 . It then provides that where the execution is issued out of a court other than the supieme court,, and the judges thereof are absent or disqualified, such special proceedings may be instituted before a justice of the supreme, court. Then follows'this provision: “In that case, if he does not reside within the judicial district embracing the county to which the execution was issued, the order made * * * by him must be returnable to a justice of the supreme court residingfin that district, or the county judge, or the special county judge, or special surrogate of that or an adjoining county, as directed in the order.”

The question presented is, whether the provisions contained in the last sentence of that section are applicable to a proceeding instituted before a justice of the supreme court where the execution has been issued' out of that court, or whether it is confined in its operation to proceedings instituted before such a justice where an execution has been issued out of another court. An exact and literal reading of the section might perhaps seem to indicate that this provision was limited in its application to the latter case, but was such the intent of the legislature ?

It is one of the rules of construction applicable to statutes that the intent of the legislature is to be sought for, and when discovered is to prevail over the literal meaning of-the words of any part of a law. This intent is to be found not only by considering the words of any part, but by ascertaining the general purposes of the whole. The exact and literal wording of an act may sometimes be rejected if, upon a survey of the whole act and the purpose to be accomplished, or the wrong to be remedied, it is plain that such exact and literal rendering of the words would not carry out the legislative intent. People ex rel. Jackson v. Potter, 47 N.

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Y., 375 ; Bell v. Mayor, etc., 105 id., 144; 6 N. Y. State Rep., 847; Delafield v. Brady, 108 N. Y., 529 ; 13 N. Y. State Rep., 667; People ex rel. Killeen v. Angle, 109 N. Y., 568 ; 16 N. Y. State Rep., 647.

In seeking the intent of the legislature in passing this statute we are led to inquire what object or purpose was to be accomplished, or what wrong was to be remedied by its enactment. A history of the legislation upon this subject discloses that anterior to the amendment of § 292 of the Code of Procedure, which was passed in 1867, there was no express provision requiring an order in supplementary proceedings made by a justice of the supreme court to direct the subsequent proceedings to be had before a justice of the district where the judgment debtor resided or had a place of business. At that time, however, as now, the examination of the debtor was required to be had in the county where he resided. That was so before the Code of Procedure, Bank of Monroe v. Keeler, 9 Paige, 249, and also under the Code of Procedure, except during the years 1849 and 1850. But in 1867 the Code was amended by requiring the proceedings subsequent to the order for the examination of a judgment debtor to be had in the judicial district where he resided.

The manifest purpose of this amendment was to prevent the judgment creditor from compelling the debtor to attend the sub- . sequent proceedings in a portion of the state remote from his residence, or not appear. This was both reasonable and just. It certainly is unjust, and in many cases would be oppressive, to compel a judgment debtor to attend such proceedings .at a place distant from his residence or place of business, while enjoined from using any money or property he may have to pay his expenses or to pay an attorney for his services in appearing for him. The object and purpose of this amendment was to provide a remedy against such a course of procedure.

The law as thus amended remained in force until after the Code of Civil Procedure went into operation. Section 2434 of the Code of Civil Procedure was intended as a re-enactment of that portion of § 292 of the Code of Procedure which designated the judge before whom these proceedings might be instituted and continued, and which provided that where an order was made by a justice of the supreme court, all subsequent proceedings should be had before some justice in the judicial district where the judgment debtor resided. See Senate committee’s note to § 2434, and Mr. Throop’s note to same section. In the latter it is stated that this section is taken from § 292, and amended as required by §§ 2432 and 2433 of the Code of Civil Procedure, and also as required by § 7 of chapter 545, Laws 1874, relating to the marine court' of the city of In ew York. It is then added: “ The words ‘where the judgment debtor resides ’ have been omitted in the third sentence and the claus.e has been inserted in the fourth sentence, applying the corresponding provision to a case where the justice of the supreme court resides in a district other than that to which the execution was issued, because in certain cases the execution

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may issue to the county where the judgment debtor has an office,, and if he is a non-resident the words expunged are meaningless.” It is quite apparent that the commissioners who drafted the Code of Civil Procedure did not intend to change the provision of § 292 of the Code of Procedure in relation to proceedings instituted before a justice of the supreme court, except to expunge the1 words “where the judgment debtor resides,” and insert in lieu thereof the words, “ embracing the county to which the execution was issued.” This was the only change mentioned, and I think the only change intended.

I cannot think that it was the intent either of the commissioners or of the legislature to repeal this salutary provision entirely or in part. All admit that it was not intended that it should be wholly repealed. Why then should it have been re-enacted in part only ? Can any good reason be assigned or suggested why the legislature should have purposely repealed this provision so far as applicable to an action in the supreme court, and re-enacted it as to an action in any other court? I can imagine none. Surely not because it would be less inconvenient or burdensome to the debtor in one case than the other, as it is manifest that such would not be the case. If no sufficient reason can be found for such a distinction, then it is at least fair to presume that the legislature did not intend to create it, unless the language employed is so1 clear and unambiguous as to show conclusively that such was the intent.

I do not think the language employed requires any such construction. It seems to me that the words “ in that case ” may well be construed as referring to a proceeding instituted before a, justice of the supreme court unlimited to a case where an execution was issued out of a court other than that. If it was limited to a case in a court other than the supreme court, then the provision that it might be returnable before the couty judge or special county judge, or special surrogate of that county, would seem to be inconsistent with the condition which must exist to authorize the justice to make the order. It is only when each of the judges-before whom the proceeding might be instituted is absent or disqualified, that a justice of the supreme court can make the order,, and if that is the only case where he must make the subsequent, proceedings returnable before another judge, it would be idle, if not absurd, to provide that he might make the proceeding returnable. before a class of officers who were unable to act.

It seems to me that the obvious purpose of both the commissioners and the legislature was to re-enact the provisions of § 292 of the Code of Procedure in relation to an order made by a justice of the supreme court, and to provide that in all cases where-the order is made by such a justice the subsequent proceedings-must be had in the judicial district embracing the county to which the execution was issued, or in that county or an adjoining one, if before the other officers mentioned. I am also of the opinion that that section may be construed so as to carry out that purpose and intention without doing violence to the language employed.

Thus far I have discussed this question without reference to

Dissent

p. 515

the authorities bearing upon it. In Browning v. Hayes, 41 Hun, 382 ; 1 N. Y. State Rep., 502, this question was before the general term of the second department, and that court held that where an order was made by a justice of the supreme court to examine a judgment debtor residing in another judicial district, the order must be made returnable before a j ustice of that district, although the execution was issued out of the supreme court. In deciding that case it was held that the words “ in that case,” in § 2434, did not alone refer to orders made for inferior judges, but were intended to embrace all orders made before a justice of the supreme court. This case was cited with approval in Merrill v. Allin, 46 Hun, 626 ; 13 N. Y. State Rep., 20, and the same doctrine is laid down in 3 Rumsey’s Pr., 435, and Piero on Special Proceedings, 514. Here, then, we have a decision of the general term of one of the departments of the state upon the question involved in this case. That case has been so far approved by the general term of another department as to be cited by it. This construction of that section has also been accepted by the authors of the recent text books on the subject, and the rule as stated has been laid down as the true rule governing the practice in such a case. It seems to me that the uniformity in the decisions of the several departments which should prevail, and the impropriety of unsettling the practice upon this question, requires us to follow the principle of the decision in the Browning case.

It is true that Judge Yann at special term held otherwise, Blanchard v. Reilly, 11 Civ. Pro., 279; but that was evidently before the case of Browning v. Hayes was reported. Moreqver, it seems to me that the construction placed upon this statute by the special term in that case, as wel 1 as in the case at bar, was too exact and literal, and did not express the full intent and purpose of this statute.

I am of the opinion that the special term erred in denying the defendant’s motion to set aside the orders granted by Judge.Kennedy, and that for such error the order should be reversed, with ten dollars costs, and that the appellant’s motion should be granted, without costs.

Merwin, J., concurs.

(dissenting.)—Pardee v. Tilton, 20 Hun, 76 ; S. C. affirmed, 83 N. Y., 623 , expressly held that under § 292 of the Code of Procedure it was irregular for a justice of _ this court to issue an order for the examination of a judgment debtor in a county outside of the district wherein the judge resided, in which there was no provision “requiring the evidence and proceedings had before the referee ” to be returned to the justice making the order. In delivering the opinion in that case quotation was made from § 292 of the Code of Procedure as follows: “All subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides, to be specified in the order.” Following that quotation the opinion continues: “ The direction should therefore have been that the referee report the testimony and proceedings to the justice designated in the order before whom

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the subsequent proceedings were had and not to the justice who-made the order.” Pardee v. Tilton was decided at a general term, in the first department in January, 1880.

In Shults v. Andrews, 54 How., 376 , decided at a special term held by me, the provision of § 292 already quoted came under consideration, and it was there said in the opinion: “ This clause contains a limitation in respect to the jurisdiction of justices who grant such orders. * * * But debtors are not required to appear in subsequent proceedings before a justice residing out of the judicial district in which the debtor resides. The right to order him to appear in subsequent proceedings out of the district is taken away. The provision also requires the order to specify ‘ some justice in the judicial district where the judgment debtor resides.’ Such specification is imposed by the statute.” The provision in § 292 of the Code of Procedure to which we have-already 'referred is omitted from § 2434 of the Code of Civil Procedure, and the latter section provides that “ Either special proceeding may be instituted before a judge of the court out of which *. * * the execution was issued.” This language is broad and confers in terms upon the judges of the court out of which the execution issued, power and jurisdiction over special proceedings-instituted before them in cases where the execution was issued out of the court in which they are judges.

Following "this general language is a provision for a class of cases “.where the execution was issued out of a court other than the supreme courtand after enumerating the class and providing for certain facts being shown by an affidavit, it is provided that if the facts enumerated in thé section are thus shown, “the special proceedings may be instituted before a justice of the supreme-court.” Then follows the words “ In that case, if -he does not reside within the 'judicial district, embracing the county to which the execution was issued, the order made or warrants issued by him must be returnable to a justice of the supreme court, residing in that district, or the county judge, or the special county judge of that or an adjoining county, as directed in the order or warrant.” We think the woi'ds “In that case” refer only to the words found in the second provision of the statute conferring power upon justices of the supreme court in the exceptional cases enumerated, to wit: where the execution was issued out of a. court other than the supreme court, and it is made to appear by affidavit “ That each of the judges before whom the special proceeding might be instituted, as prescribed in this section, is absent, from the county, or, for any reason, unable or disqualified to act.”' Such is the interpretation placed upon the section by Yann, J., in Blanchard v. Reilly, 11 Civil Pro., 278, and the views expressed in that opinion meet with our approval.

In delivering the opinion in Browning v. Hayes, 11 Civ. Pro., 223 ; S. C., 41 Hun, 382 ; 1 N. Y. State Rep., 502, Barnard, P. J., observed: “Section 2434 of the Code of Civ. Procedure is not very plain. It can "be gathered thérefrom, by a very strict reading, that it is only in cases where a supreme court justice makes the order in .place of other inferior judges that a provision must be inserted male

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ing the order returnable before a supreme court justice or other local magistrate of the judicial district where the order is to be executed." We prefer this portion of the opinion as a correct interpretation of the section to the general expressions used by him in the latter part of his opinion in which he reaches a contrary interpretation of the section under consideration. In a note to that case it appears that Mr. Justice Bartlett entertained and expressed substantially the same views as are found in the opinion of Vann, J., in Blanchard v. Reilly, supra; and that result seems to be approved by Kennedy, J., and Smith, J., the first of whom made the order in question, and the second approved of the same as appears by his memorandum delivered at the Schuyler special term found in the appeal book before us.

Merrill v. Allin, 46 Hun, 623 , 13 N. Y. State Rep., 20, does not aid the contention of the appellant; in that case the judgment was recovered in the court of common pleas in the city and county of Hew York, and an execution was issued thereon to the sheriff of that county, that being the county where the judgment debtor resided; and subsequently a transcript of the judgment was filed in Ontario county, and an execution was issued to that county ; and it was alleged that certain parties held property of the judgment debtor, and upon an affidavit to that effect application was made to the county judge of Ontario county; and it was finally held in that case that the county judge had not jurisdiction to entertain the proceedings. We are of the opinion that the order appealed from should be affirmed. Order affirmed, with ten dollars costs and disursements.

Order reversed, with ten dollars costs, and appellant’s potion granted, with costs.