Underhill v. Nichols

The Sueeogate.—Subdivision 11 of section 334 of the Code provides, among other. things, that. so much ’ of chapter 18 as regulates the proceedings to-be taken in a special proceeding, and the effect thereof, applies only to a special proceeding commenced on or after September 1, 1880, &c. Section 2555, above referred 319 to, is contained in chapter 18, and regulates the proceedings to be taken to enforce a decree of a Surrogate’s court, directing the payment of money or requiring the performance of any other act. All proceedings regulated by the Code are to be taken either in an action or in a special proceeding. (Code, §§ 3333, 3334.) If in a Surrogate’s court, they are to be taken in a special proceeding. (Code, §§3333, 3334, 2516, 2550.) Hence, section 2555 regulates the proceedings to be taken in a special proceeding. The special proceeding to which that section applies in this case is the final accounting in which the decree was rendered. It regulates the proceedings to be taken in that special proceeding to enforce that decree. (President, &c., of the Bank of Genesee v. Spencer, 15 How., 415 ; Pitt v. Davison, Ct. of Appeals, 34 How., 355; Seeley v. Black, 35 Sow., 371.) That special proceeding was not only commenced, but it was ended before September 1, 1880. Consequently, section 2555 does not apply to it. (Code, § 3347, subd. 11.) This view is confirmed by the provisions of the section of the Code last quoted, which expressly subjects judgments rendered prior to September, 1, 1880, to the operation of sections 1670 to 1685, both inclusive. Under the rule “ expressio unius est exclusio alterius ” this must be considered equivalent to a declaration that the other sections do not apply to such judgments. Ordered accordingly.