Dunham v. Nicholson — 4 N.Y. Super. Ct. 636

Majority

p. 636

Dunham v. Nicholson.

Headnote

An action in the nature of the former creditor's suit, may be maintained, where an execution was issued and returned unsatisfied before July 1, 1848, when the code of procedure took effect.

Such a suit is not an action on the judgment, within the meaning of the prohibition in the code.

A frivolous answer in such a suit, stricken out on motion, and an order for judgment made, with a direction for the examination of the defendant touching his property.

February 24, 1849.

Appeal by the defendant, from an order made by one of the justices at chambers,' striking out the answer of the defendant as frivolous, directing that the plaintiff have judgment, and that the defendant appear before one of the justices of the court, and submit to an examination on oath touching his property and the judgment to be given, with léave to the plaintiff to examine witnesses thereupon. The complaint was in substance the same as the former creditor's bill in the court of chancery, on a judgment and the return of an execution unsatisfied.

The execution was issued May 13th, 1848, after the enactment of the code of procedure. The points made appear in the decision.

J. T. Brady, for the appellant.

J. S. Sandford and M. Porter, for the respondent.

It is insisted that under the code of procedure, a complaint in the nature of a creditor’s bill, will not lie. We find however, that the supplemental act, (Laws of 1848, ch. 380, § 2,) does not apply the provisions of the code for proceedings after execution, to. existing suits, except where the execution was issued after the code took effect. The language is, “ executions hereafter issuedwhich means, not after April 12, 1848, the date of the passage of the act; but after

p. 637

July 1, 1848, when the act went into operation and from which date it speaks.

It is quite clear therefore, that there could be no proceeding had under the code, for the examination of the defendant, founded upon the return of this execution. As to the argument founded on the abolition of bills of discovery, (Code of 1848, 5 343;) that provision does not apply to the examination of a debtor touching his property, but to the ordinary discovery sought by bills and made by answer. This proceeding is in aid of an execution on a judgment already obtained. The creditor’s suit in respect to existing cases, is not in terms abolished, and there is no other remedy open to the plaintiff. All existing remedies not inconsistent with the code, were retained.

' Again, it is said this is an action on a judgment, which is prohibited by section 64 of the code of 1848. We think it is not such an action, within the meaning of that section. Though it assumes the form of an action, it is really a proceeding to carry out an existing judgment, and to aid the process issued upon it. We have no doubt the suit was properly brought.

The answer put in was clearly insufficient as an answer under the old system, and it was properly stricken out. As to the examination directed, there is no reason for applying a different rule from that formerly prevailing. There might be a personal examination of the defendant under the code, if the answer had stood, and no more is directed by the order.

Order affirmed-