By the court—Hoffman, Justice.
The first question raised, is as to the effect of the insertion of the clause in the order of Justice Davies, of the 17th of September, 1856, requiring the defendant to appear before him, or one of the other justices of the said supreme court.
The defendant (the present plaintiff) appeared before Justice Davies, on the return day, and an order of reference was made by the judge. No objection was then made to this alleged irregularity.
Assuming that it was an irregularity, and the insertion of the clause was not warranted by the 292d section of the Code, it appears to us clear, that as the appearance was before the judge who issued the order, and who then, without objection, acted upon it, there was such an error only, as could not affect the substantial right of the party; that the clause was mere [23]*23surplusage; and that the plaintiff cannot raise the objection now. Particularly that it cannot be set up by plea or demurrer in another action. (Kelly agt. McCormick, 2 E. D. Smith’s R. 503; and Parke agt. Health, 15 Wend. 301.)
The next question is, whether another judge of the court could continue the proceedings commenced before Justice Davies ? This proposition is also denied by the plaintiff, and forms one of his grounds of demurrer to the answer.
The application to Judge Clerke, was a motion, which is defined to be an application for an order in an action.
By §401 of the Code, this may be made to a judge or justice out of court.
By the 27th section of the Code, every proceeding commenced before one of the judges in the first judicial district, may be continued before another, with the same effect as if commenced before him. The previous clause of the section speaks of business done by a judge out of court.
The supplementary proceeding under § 292 et seq., is a proceeding in an action to enforce a judgment. It forms part of title 9, entitled, “ Of the execution of judgments in civil actions.” It is not a special proceeding, within § 3 of the Code, although once treated as such by Justice Welles. (4 Howard’s Pr. R. p. 142.) The authors of the Code speak in their report (p. 2) of the parts of the entire Code relating to criminal actions, and to special proceedings, (including arbitrations, habeas corpus, the discharge of insolvent debtors, the enforcement of mechanics’ liens, &c.,) as to form the subjects of future reports by them.
The proceedings under a railroad act, and under a plank road act, in the cases in 1 Kernan R. 274 and 3 Code Reports, 148,. were special proceedings, within the sense of section 3, not a proceeding in a civil action within section 2.
The true sense and sound interpretation of the 27th section appears to me to be this; a proceeding commenced in the first judicial district by any judge competent to institute it therein, may be continued in such district before any other judge com[24]*24petent to have commenced it. The few authorities I have met with are the following:
Kelly agt. McCormick, (2 E. D. Smith R. 503,) the action was upon a bond given by a judgment debtor with sureties, to the sheriff upon an attachment. Supplementary proceedings had been taken after execution, and upon his disobedience, an order to show cause why an attachment should not issue was granted. An alias was issued, allowed by Mr. Justice Woodruff, with a direction to hold to bail in $300. The direction to the sheriff in the writ was to attach the debtor, and bring him on a day named, at 10 A. M., before one of the judges of our court of common pleas for the city and county of New-York, at their chambers in the city hall, New-York, then and there to answer, &c.
The court held that the attachment was not void, even if it were improperly made returnable “before one of the judges of the court.” It was voidable only. If it was process of the court, it was simply voidable and no bar to the action, and if it was not, then it was properly made returnable before one of the judges of the court, at chambers, as in this court any proceeding commenced before one judge, may be continued before another. (Laws of 1840, p. 222.)
I do not understand the decision in Shepherd agt. Dean, also in the common pleas, (13 Howard, 173), to be adverse to this. On the contrary, the act of 1840 is referred to, as if it would" have governed the result had the case been similar to that, of Kelly agt. McCormick.
The 302d section of the Code, which is referred to, declares that disobedience of the order of the judge may be punished by the judge as for a contempt. We are authorized to read this section as if the clause before noticed of the 27th section were added to it: as if it read by the judge, or by one of the judges in the first judicial district, continuing the proceeding.
In our opinion, the objection raised by the demurrer, that Judge Clerks had continued the proceeding commenced before Judge Davies, and made the commitment under it,- is wholly untenable.
[25]*253d. It is next urged, that the orders, or some of them,-made upon the supplementary proceedings, were made at special term, as orders of a court, not of a mere judge vested with special powers.
This question must depend as to the fact, upon the statement of the answer. That is, that the order of the 20th of September, and that of the 11th of October, (both of Justice Davies,) and that of the 10th of December, made by Justice Clerke, were made by the said justices “ while sitting at special term, and also at chambers.” The case of The Knickerbocker Bank (19 Barbour R. 602) furnishes an answer to this objection. Let it be assumed that the title of the order was at special term, and that it was made while the judge was actually engaged in a trial, in an interval of it. The case is amply sufficient to show that such a technicality, so destitute of ad justice or substance, cannot prevail.
4th. It is next insisted that the order of Justice Clerke of the 16th of December, 1856, was void, because it directed the sheriff “ to bring the party before one of the justices of the court, at a special term of the court to be held, at &c., on &c.”
The place, the day and the hour are sufficiently designated.
In the case of Henry D. Smethurst, in this court, (2 Sandf. R. 724,) upon habeas corpus, Justice Harris had made an order in a supplementary proceeding. The party appeared, and the examination was partly had. Upon his refusal to proceed, an attachment was issued by which the sheriff was to have the party, before the judge, at his office in the city of Albany, on a certain day. The objection was made that the attachment was void on this ground. It should have been at special term. (2 R. S. 534.)
Justice Mason held, after referring to section 302 of the Code and the Revised Statutes, that the latter vested the power of punishing only in courts of record, and attachments necessarily were returnable before the court. -A judge under the Code had the power and could not exercise it, unless the party was brought before him. Ho power was given to the court [26]*26to punish for the contempt of the order of the judge.
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By the court—Hoffman, Justice.
The first question raised, is as to the effect of the insertion of the clause in the order of Justice Davies, of the 17th of September, 1856, requiring the defendant to appear before him, or one of the other justices of the said supreme court.
The defendant (the present plaintiff) appeared before Justice Davies, on the return day, and an order of reference was made by the judge. No objection was then made to this alleged irregularity.
Assuming that it was an irregularity, and the insertion of the clause was not warranted by the 292d section of the Code, it appears to us clear, that as the appearance was before the judge who issued the order, and who then, without objection, acted upon it, there was such an error only, as could not affect the substantial right of the party; that the clause was mere [23]*23surplusage; and that the plaintiff cannot raise the objection now. Particularly that it cannot be set up by plea or demurrer in another action. (Kelly agt. McCormick, 2 E. D. Smith’s R. 503; and Parke agt. Health, 15 Wend. 301.)
The next question is, whether another judge of the court could continue the proceedings commenced before Justice Davies ? This proposition is also denied by the plaintiff, and forms one of his grounds of demurrer to the answer.
The application to Judge Clerke, was a motion, which is defined to be an application for an order in an action.
By §401 of the Code, this may be made to a judge or justice out of court.
By the 27th section of the Code, every proceeding commenced before one of the judges in the first judicial district, may be continued before another, with the same effect as if commenced before him. The previous clause of the section speaks of business done by a judge out of court.
The supplementary proceeding under § 292 et seq., is a proceeding in an action to enforce a judgment. It forms part of title 9, entitled, “ Of the execution of judgments in civil actions.” It is not a special proceeding, within § 3 of the Code, although once treated as such by Justice Welles. (4 Howard’s Pr. R. p. 142.) The authors of the Code speak in their report (p. 2) of the parts of the entire Code relating to criminal actions, and to special proceedings, (including arbitrations, habeas corpus, the discharge of insolvent debtors, the enforcement of mechanics’ liens, &c.,) as to form the subjects of future reports by them.
The proceedings under a railroad act, and under a plank road act, in the cases in 1 Kernan R. 274 and 3 Code Reports, 148,. were special proceedings, within the sense of section 3, not a proceeding in a civil action within section 2.
The true sense and sound interpretation of the 27th section appears to me to be this; a proceeding commenced in the first judicial district by any judge competent to institute it therein, may be continued in such district before any other judge com[24]*24petent to have commenced it. The few authorities I have met with are the following:
Kelly agt. McCormick, (2 E. D. Smith R. 503,) the action was upon a bond given by a judgment debtor with sureties, to the sheriff upon an attachment. Supplementary proceedings had been taken after execution, and upon his disobedience, an order to show cause why an attachment should not issue was granted. An alias was issued, allowed by Mr. Justice Woodruff, with a direction to hold to bail in $300. The direction to the sheriff in the writ was to attach the debtor, and bring him on a day named, at 10 A. M., before one of the judges of our court of common pleas for the city and county of New-York, at their chambers in the city hall, New-York, then and there to answer, &c.
The court held that the attachment was not void, even if it were improperly made returnable “before one of the judges of the court.” It was voidable only. If it was process of the court, it was simply voidable and no bar to the action, and if it was not, then it was properly made returnable before one of the judges of the court, at chambers, as in this court any proceeding commenced before one judge, may be continued before another. (Laws of 1840, p. 222.)
I do not understand the decision in Shepherd agt. Dean, also in the common pleas, (13 Howard, 173), to be adverse to this. On the contrary, the act of 1840 is referred to, as if it would" have governed the result had the case been similar to that, of Kelly agt. McCormick.
The 302d section of the Code, which is referred to, declares that disobedience of the order of the judge may be punished by the judge as for a contempt. We are authorized to read this section as if the clause before noticed of the 27th section were added to it: as if it read by the judge, or by one of the judges in the first judicial district, continuing the proceeding.
In our opinion, the objection raised by the demurrer, that Judge Clerks had continued the proceeding commenced before Judge Davies, and made the commitment under it,- is wholly untenable.
[25]*253d. It is next urged, that the orders, or some of them,-made upon the supplementary proceedings, were made at special term, as orders of a court, not of a mere judge vested with special powers.
This question must depend as to the fact, upon the statement of the answer. That is, that the order of the 20th of September, and that of the 11th of October, (both of Justice Davies,) and that of the 10th of December, made by Justice Clerke, were made by the said justices “ while sitting at special term, and also at chambers.” The case of The Knickerbocker Bank (19 Barbour R. 602) furnishes an answer to this objection. Let it be assumed that the title of the order was at special term, and that it was made while the judge was actually engaged in a trial, in an interval of it. The case is amply sufficient to show that such a technicality, so destitute of ad justice or substance, cannot prevail.
4th. It is next insisted that the order of Justice Clerke of the 16th of December, 1856, was void, because it directed the sheriff “ to bring the party before one of the justices of the court, at a special term of the court to be held, at &c., on &c.”
The place, the day and the hour are sufficiently designated.
In the case of Henry D. Smethurst, in this court, (2 Sandf. R. 724,) upon habeas corpus, Justice Harris had made an order in a supplementary proceeding. The party appeared, and the examination was partly had. Upon his refusal to proceed, an attachment was issued by which the sheriff was to have the party, before the judge, at his office in the city of Albany, on a certain day. The objection was made that the attachment was void on this ground. It should have been at special term. (2 R. S. 534.)
Justice Mason held, after referring to section 302 of the Code and the Revised Statutes, that the latter vested the power of punishing only in courts of record, and attachments necessarily were returnable before the court. -A judge under the Code had the power and could not exercise it, unless the party was brought before him. Ho power was given to the court [26]*26to punish for the contempt of the order of the judge. The objection was overruled.
There is no reason to conclude from this case, that had Judge Harris’s attachment been returnable before himself at special term in the capítol or city hall at Albany, on the day fixed, it would have been held void.
The point was that the party was to be brought, not before a court but before a judge. In what place, or position of duty that judge was then found, if time and place where he was to be found are specified, does not seem material.
This idea followed out and applied to the present case, (as it is stated in the answer,) appears to us to govern it. The order of Justice Clerke, of the 16th of December, for the attachment, was by him as a justice, not as the court. The writ of attachment was signed by the said Justice Clerke, and attested by the seal of the court. When such a writ is process by the court, it is witnessed in the name of the chief or presiding justice, and attested by the clerk. The subsequent commitment was by the said Justice Clerke, sitting as aforesaid, that is, “ at special term and not at chambers.” In short, no act or order was formally made, or "directed or intended to be made, or by necessary construction made, or to be made by the court.
The fair legal construction, as well as the plain good sense of the whole of these proceedings, is this. The orders and process were made and allowed by a judge acting under a statutory power delegated to him, and in the first circuit to any judge who could act in his place for the continuing the proceeding. There is plainly nothing done by a court, which was referred to a court to be done, or which could only be done by a court.
The officer had jurisdiction in every instance, of every order and every process, through these proceedings. His exercise of the power when even sitting in "court, could not rob his act of its legal character. He had the capacity to do the act, at any place which he had distinctly prescribed. It would be trifling to say, that his fixing it to be done, when he or another judge [27]*27who could perform it, was sitting at a special term, should render it utterly void.
Therefore, when the judge directing the process to issue, has jurisdiction, when any judge of the same court who is found at the place designated, on the day specified, has jurisdiction, when place and time are distinctly pointed out, the mere fact that the party is to be brought before the judge when holding a court at special term, does not render the proceeding or process void. The order of special term overruling the demurrer to the answer, must be affirmed, with costs.