Martin, J. 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 section 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 supreme 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 residing in 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 sucli 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 v. Potter, 47 N. Y. 375; Bell v. Mayor, 105 N. Y. 144,11 N. E. Rep. 495; Delafield v Brady, 108 N. Y. 529, 15 N. E. Rep. 428; People v. Angle, 109 N. Y. 568, 17 N. E. Rep. 413. 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 section 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 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 794 prevent the judgment creditor from compelling the debtor to-attend the subsequent 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 section 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 section 2434, and Mr. Throop’s note to same section.
In the latter it is stated that this section is taken from section 292, and amended as required by sections 2432 and 2433 of the Code of Civil Procedure, and also as required by section 7, c. 545, Laws 1874, relating to the marine court of the city of Hew York.' It is then added: “The words ‘ where the judgment debtor resides’. have been omitted in the third sentence, and the clause has been inserted in the fourtli 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 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 th Code.of Civil Procedure did not intend to change the provision of section 292 of the Code of Procedure in relation to proceedings'instituted before a justice of the supreme court, except to expunge.the words “where the judgment debtor resides” and insert, in lieu thereof, the vrords “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 thát the legislature did not intend to create it, unless the language employed is so clear and unambiguous as to show conclusively tiiat 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 county judge, or special county judge, or special surrogate of that cqunty, 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 pro 795 ceeding 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 section 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 the authorities bearing upon it.
In Browning v. Hayes, 41 Hun, 382, 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 justice 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 section 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, and the same doctrine is laid down in 3 Rum. Pr. 435, and Fiero, Spec. Proc. 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 Vann at special term held otherwise, (Blanchard v. Reilly, 11 Civil Proc. R. 279,) but that was evidently before the case of Browning v. Hayes was reported.
Moreover, it seems to me that the construction placed upon this statute by the special term in that case, as well 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 $10 costs, and that the appellant’s motion should be granted with $10 costs, Merwin, J., concurs.
Loading…