Dickerson vs. Cook, 16 Barb. 509

By the Courts Roosevelt, J. On the 16th of April, 1853, Mr. Justice Mitchell made the usual order, in this case, directing the defendant as a judgment debtor to attend and be examined as to his property. The defendant thereupon, on the 19th of August following, applied to Mr. Justice Morris at special term, on affidavits and notice, to set aside the order of April previous. After full hearing the application to set aside was denied with costs.

From that order the defendant appeals to the general term, insisting that, under the circumstances, he is not bound to submit to an examination into his pecuniary affairs at the instance of the plaintiff Dickerson. He contends that the code, § 292, which authorizes this kind of examination, did not take effect till the 1st of May, 1849, after the execution against him had been issued, which was on the 30th of April, 1849, and cannot therefore, without violating a great principle of law, be retroactively applied to his case.

If the defendant is sustained in this view, as the old practice by bill of discovery is abolished, (§ 389,) the plaintiff must be without remedy—a result which certainly could not have been contemplated by the legislature. Now what is the language of the code ? “ After the issuing of an execution against property, &c. the court or a judge thereof may by an order require the judgment debtor to appear,” &c.

It does not say “whenever an execution shall be issued,” but in effect, “ whenever an execution shall have been issued.” The issuing of an execution is a condition precedent, but not its issuing before or after the code, or before or after any particular date whatever ; provided it be issued before the examination, or rather before the order for the examination. Upon any other construction the creditor, I have said, would be without remedy. This is not exactly,so: he might return the old execution and issue a new one.

But is the code, in a case of ambiguity, admitting the present to be such a case, to be construed with such idle strictness ? The code itself, (§ 467,) says it shall not, and declares expressly that the ancient niceties formerly applied to the

interpretation of certain statutes, have “ no application, to the act.” Thus discountenancing in the most pointed manner all unsubstantial technicalities which serve only to entangle justice in the nets of form. [New-York General Term, December 5, 1853. Edmonds, Mitchell, Edwards and Roosevelt, Justices.] In addition to these reasons we might cite the language of the amending act of 1851, which declares that “ the provisions,” (that is, all the provisions,) of the code apply, among other cases to “ future proceedings” to enforce judgments, in actions theretofore commenced. The application to Mr.

Justice Mitchell was “ a proceeding to enforce a judgment;” it was a proceeding had after the amending act took effect, and, therefore, a “ future proceeding.” It was consequently within the very letter, as it clearly was within the obvious reason and spirit, of the act. To give to the code this construction, it is said, would be to make it a retrospective law. Every retrospective law is not necessarily objectionable. The criticism, in that respect, applies only to the creation of new penalties or forfeitures, and not to merely remedial acts. The legislature, say the court in Stocking v.

Hunt, (3 Denio, 274,) mayohange the remedy upon, but not the terms or obligations of, a contract. They may even abolish distress for rent on antecedent leases. (Guild v. Rogers, 8 Barb. 502.) Order appealed from affirmed with costs.