Aldinger v. . Pugh

Follett, Ch. J. 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 all 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 *407 Civil Procedure these special surrogates had power to grant such an injunction as was granted in this case, and section 60(1 of that Code expressly confers 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 But the appellant contends that the statutory provision above quoted was repealed by the Code of Civil Procedure.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 county. 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 section 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, or the special county judge, or the special surrogate of the county to which 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embraced therein, and by implication, the power conferred upon the recorder by chapter 96 of the Laws or 1857 was repealed. It was held otherwise in the case cited. The opinion delivered in the case at bar by the *408 learned General Term, and reported in 57 Hun, 181, 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 should be affirmed, with costs. All concur. Order affirmed.