Aldinger v. Pugh — 44 N.Y. St. Rep. 566

Majority

p. 566

Rozellen Aldinger, Resp’t, v. Emery S. Pugh, App’lt.^[1]

(Court of Appeals, Second Division,

Filed April 19, 1892.)

Headnote

Injunction—May be granted by special surrogate.

The special surrogate of Oneida county has power under chap.306, Laws 1849, as amended, to grant an injunction ex parte in the supreme court. By these statutes the special surrogate had ail the powers of a county judge out of court, and they were not repealed by the Code of Civil Procedure.

■ Appeal from an order of the general term of the supreme court for the fourth judicial department, which affirmed an order of the special term adjudging the defendant in contempt for violating an injunction order, granted December 7, 1888, by the special surrogate of Oneida county, in an action pending in the supreme court.

Edward Lewis, for app’lt; James Coupe, for resp’t.

Chapter 306 of the Laws of 1849, as amended by chapter 108 of the Laws of 1851, provides that the special surrogates of Oneida and of certain other counties “ shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court.” It is agreed that prior to the adoption of the Code of Civil Procedure these special surrogates had power to grant such an injunction as was granted in this case, and § 606 of that Code expressly confers

p. 567

jurisdiction on county judges to grant such injunctions. But the appellant contends that the statutory provision above quoted was repealed by the Code of Civil Procedure. This question is not an open one, it having, in principle, been settled by this court adversely to the appellant’s contention. Ross v. Wigg, 36 Hun, 107 ; affd, 101 N. Y., 640 . That case arose out of the following-facts : March 24, 1884, a judgment was recovered against Wigg in the supreme court, which was entered and docketed in the office of the clerk of Oswego counry. April 29, 1884, the recorder of the city of Oswego granted an order in proceedings supplementary to execution issued on the judgment.

The judgment debtor-was examined, and June 4, 1884, the recorder appointed a receiver of the property of the judgment debtor. A motion was made to set aside the orders on the ground that the recorder had no jurisdiction of such proceedings. By § 4 of chapter 96 of the Laws of ,1857, the recorder of the city of Oswego was authorized “ To exercise any power or authority in any proceedings supplementary to execution in the county of Oswego which the county judge or a justice of the supreme court can exercise therein, whether such supplementary proceedings be in an action in said recorder’s court or in any other court.” Section 2434 of the Code of Civil Procedure, as it stood in 1884, provided that supplementary proceedings might “ be instituted before a judge of the court out of which, or the county judge, the special county judge or the special surrogate, of the county to which the execution was issued.” The recorder of the city of Oswego was not mentioned in the section. It was argued in that case, as in this, that the Code of Civil Procedure was intended to be a codification of the laws prescribing the practice in the actions and proceedings embraced therein, and by implication the power conferred upon the recorder by chapter 96 of the Laws of 1857 was repealed. It was held otherwise in the case cited. The opinion delivered in the case at bar by the learned general term, and reported in 57 Hun, 181 ; 32 St. Rep., 513 , satisfactorily discusses and disposes of the jurisdictional question, and we are quite content to affirm, and we do affirm, the order upon that opinion.

The order is affirmed, with costs.

All concur.