Keihen v. Shipherd

4 N.Y.S. 339, 24 N.Y. St. Rep. 739, 16 N.Y. Civ. Proc. R. 183, 1889 N.Y. Misc. LEXIS 312

• Court: City of New York Municipal Court
• Decided: March 11, 1889
• Status: Published

Opinion

McAdam, C. J.

The absence of the referee did not terminate the proceeding, (Allen v. Starring, 26 How. Pr. 57; Brockway v. Brien, 37 How. Pr. 270; Stanley v. Lovett, 14 Hun, 412; Schanck v. Conover, 56 How. Pr. 437,) 'which may be resuscitated by an order made by the justice in continuation of the proceeding, (Schanck v. Conover, supra.) That this is the correct view of the practice is evidenced by the phraseology of section 2454 of the Code, which provides how such a proceeding shall be discontinued or dismissed. It does not provide that the absence of the justice or referee shall effect either of these results. The court in Schanck v. Conover, supra, holds that, in such a case, tile judgment creditor may either continue the old proceeding, or treat that as abandoned, and institute a new one. Chief Justice Daly was of a different opinion, for in Brockway v. Brien, 37 How. Pr. 270, he held that the first proceeding must be finished, or some order made terminating it, before a new one can be instituted. This is certainly the better practice, for it harmonizes with section 2454, supra, and with the rule that where a statute prescribes the mode of doing an act, or accomplishing a result, it shall only be effected in the manner directed. The evident object of this section (2454) was to settle the practice, which had been placed in doubt by prior conflicting decisions. I therefore direct that in continuation of the order of June 12, 1888, the defendant appear at the chambers of this court for examination on March 18, 1889, at 10 a. m., and that the order of reference heretofore made be henceforth vacated. Ho costs.