Atocha a. Garcia. and are unnecessary in the complaint. The true construction, therefore, of the amendment of the Code referred to, is, that in all those actions, where the nature of the cause of action is such that the defendant may be arrested, it must be stated in the complaint, otherwise an execution cannot go against the person, unless an order of arrest has been served. But when the action is one in which the defendant cannot be arrested, without some extrinsic fact, forming no part of the cause of action, but merely incidental to it, the fact must be stated in an affidavit, and an order of arrest must be obtained and served, and the averment of such fact in the complaint will not alone authorize an execution against the person. Hence the averment in the complaint is immaterial. The grounds of arrest, in such cases, must appear by affidavit, and can only be met by affidavit. The issue to be tried in the action is the debt, not the fraudulent contraction of it. The judgment recovered is for the debt, not for the fraud. If the defendant fails to get the order of arrest vacated, he is liable to an execution against his person; and if no order has been obtained and served, he cannot be arrested, although the complaint alleges the fraud. In this view, if it be correct, no question of fraud can be tried in this action, and the only judgment the plaintiff can obtain is for the demand stated in his complaint. But even if this view were incorrect, the case would still be referable. The necessary examination of a long account would make it so; that is, the substantive cause of action. The fraud is incidental, and only important to the plaintiff, as furnishing the ground for obtaining the provisional remedy provided by law in such cases. That remedy has already been obtained, and the grounds for it cannot enter into the trial of the action. The action must therefore be referred to a referee, to hear and determine. Holstein a. Rice. HOLSTEIN a. RICE. Supreme Court, Third District; General Term, May, 1862. CONTEMPT IN SUPPLEMENTARY PROCEEDINGS.-ABATEMENT BY CHANGE OF OFFICER. An order dismissing proceedings to enforce a civil remedy by attachment for contempt,-e. g., to compel the appearance of the defendant for examination, supplementary to judgment under § 292 of the Code of Procedure,—is appealable, as affecting a substantial right. The attachment is a proceeding to enforce the plaintiff's right and to collect his judgment.* Supplementary proceedings under the provisions of the Code of Procedure, taken before a county judge, and proceedings therein to punish for a contempt by a fine for the benefit of the party, do not abate upon the expiration of his term of office, but may be continued before his successor. 1. If such proceedings are considered as a part of the orderly progression of the action itself, as they may properly be regarded, the death or expiration of the officer before whom they are conducted, *It is held, however, that the orders allowed to be made in supplementary proceedings-directing the application of property and money to the payment of a judgment, and to punish for contempt (Code, §§ 297, 302)—are entirely discretionary; and an order denying an application for them is not appealable. (N. Y. Com. Pl., 1858, Joyce a. Holbrook, 7 Abbotts' Pr., 338.) In MALLORY a. GULICK (Supreme Court, First District; General Term, February, 1863), it was Held, that from a determination in supplementary proceedings, an appeal lies only to the general term of the district in which the judgment-roll was filed. Appeal from an order appointing a receiver in supplementary proceedings. The action was brought by William M. Mallory against James H. Gulick. The place of trial was Steuben county. Judgment was recovered by the plaintiff; and the judgment-roll filed in Steuben county. Defendant was examined in supplementary proceedings, under an order of Mr. Justice Barnard, of the First District; and such proceedings were had, that such justice at New York city appointed a receiver of a debt due the defendant from a person residing in the city of New York. The order appointing the receiver was filed in Steuben county. Defendant appealed to the general term of the First District. At the hearing of the appeal, Britton & Ely, for the plaintiff, raised the preliminary objection that the appeal should be heard in the Seventh District. Bogardus & Brown, for the defendant. THE COURT (INGRAHAM, P.J., SUTHERLAND and CLERKE, JJ.) dismissed the appeal, on the ground that the appeal could only be taken to the general term of the Seventh District; but without costs, the point being new. Holstein a. Rice. ought not to affect the proceedings. 2. If, however, they are regarded as special proceedings, a liberal construction of the provision of 2 Rev. Stat., 284, § 51,-that such proceedings may be continued, in case of the death, &c., of an officer, by his successor in office, or by certain other officers, &c.,-would apply it to such a case; for the expiration of the term of office may be deemed a removal from office, or as a disability, within the meaning of that section. That provision of the Revised Statutes is intended of all those proceedings which cannot, with propriety, be classed under ordinary proceedings in an action. It is not confined to what are defined by the Code as special proceedings.* Whether the court have power to punish a contempt of the order of a judge, made out of court,-Query? Appeal from an order of a county judge, in proceedings supplementary to execution. The plaintiff, having a judgment on which an execution against the defendant had been returned unsatisfied, applied, in 1859, to Judge Robinson, then county judge of Albany county, for an order, under section 292 of the Code, to examine the defendant in regard to his property. The order was granted, duly served, the defendant appeared, and the examination was in part had, and adjourned to a subsequent day. On such day the defendant did not appear, and an order was issued, and duly served, to show cause why an attachment should not be issued against him. No cause being shown, an attachment against the defendant was issued by Judge Robinson, but failed of service on account of inability to find the defendant. Meanwhile, on the last of December, 1859, Judge Robinson's term of office expired, and he made an order transferring the *In the case of GRAY a. COOK (New York Superior Court; Special Term, 1863), it was Held, by BOSWORTH, Ch. J., that a proceeding to enforce a judgment, by attachment as for contempt, is a special proceeding and not a civil action; and if the defendant be found to be not guilty of the misconduct charged, his costs are such as the Revised Statutes prescribe (citing 2 Rev. Stat., 619, §§ 39, 42; Code, §§ 1-3, 303, 471; 1 Cow., 214; 3 Paige, 85, 347 ); for the Code affects costs in civil actions only, and declares that the Code shall not affect any proceedings provided for by the 13th title of chap. 8 of part 3 of the Revised Statutes. (Code. § 471.) As to the meaning of the word "special," as used in the Revised Statutes, see, also, Kundolf a. Thalheimer (12 N. Y., 593, reversing S. C., 17 Barb., 506); Doubleday a. Heath (16 N. Y., 80); Griswold a. Sheldon (4 lb., 581); Frees a. Ford, (6 lb., 176); Arnold a. Rees (18 lb., 57; S. C., 7 Abbotts' Pr., 328; 17 How. Pr.. 35); Beecher a. Allen (5 Barb., 169); Seymour a. Mercer (13 How. Pr., 564). Holstein a. Rice. unfinished business to his successor, Judge Wolford, whose term of office commenced on the 1st of January, 1860. In 1862, Judge Wolford, on the application of the plaintiff, issued a new attachment, on the old proceeding, against the defendant, in which the latter was arrested and brought before him. Interrogatories were filed, and time given to the defendant to answer. On the day appointed for answering he appeared, and moved to dismiss the proceedings, upon the ground that the proceedings before Judge Robinson terminated with his term of office, and were not and could not be legally continued before his successor; that proceedings for contempt in disobeying of an order in supplementary proceedings, could be heard and the disobedience punished only by the judge issuing the original order, and were, in their nature, personal to that officer. The county judge dismissed the proceedings and discharged the defendant from arrest, holding that he had no lawful jurisdiction over him. From the order thus discharging the defendant, the plaintiff now appealed to the general term. Lyman Tremain, for the plaintiff. Anson Bingham, for the defendant. BY THE COURT.-HOGEBOOM, J. (after stating the facts).—I think the order is appealable, because it defeats the plaintiff of a substantial right. The object of the proceedings before Judges Robinson and Wolford was not simply to punish the defendant for a contempt of the judge's order, but to enforce the plaintiff's rights and collect his judgment. The attachment was issued at the instance of the plaintiff, and was a necessary proceeding to enable him to pursue the investigation before the judge. A contumacious refusal on the part of the defendant to answer before the judge, might be punished by the imposition of a fine, fully vindicating the dignity of the tribunal for the contempt of its order of process, and fully idemnifying the prosecuting party for any pecuniary loss he had sustained thereby. (2 Rev. Stat., 536; People a. Compton, 1 Duer, 515; Livingston a. Swift, MS. opinion, third district.) It is not ne Holstein a. Rice. cessary now to determine whether the fine could equal the plaintiff's judgment, though I do not see why it could not, if satisfactory evidence was presented to the judge that the plaintiff had sustained that amount of loss by the contumacy of the defendant. The considerations already referred to, show that the proceedings for the attachment of the defendant had a double object, to wit: 1. For the punishment of the defendant; and 2. For the indemnity of the plaintiff and the payment of his judg ment. They should not, therefore, except for imperative and insuperable objections, be permitted to fall through or fail of their object, by the accidental circumstance of the expiration of the term of office of the incumbent thereof. The ends of justice require that the continuity of the proceedings should be preserved, if possible. Now, the proceedings under section 292 and subsequent sections of the Code are either in continuation of the ordinary proceedings in the suit, and to be regarded as a part thereof, as has been held in some cases (Dresser a. Van Pelt, 15 How. Pr., 23; Bank of Genesee a. Spencer, Ib., 412); or else they are special proceedings, out of the ordinary course, but having the same general object in view,-to wit, the collection of the judgment, as is held in several other cases. (Davis a. Turner, 4 How. Pr., 190. See Exp. Ransom, 3 Code R., 148; N. Y. Central R. R. Co. a. Marvin, 11 N. Y., 276.)* If they come under the first head, then it would seem as if they were properly continued before the successor in office of the officer before whom the application was originally made. And as the suit itself, in the Supreme Court, during its progress, would not abate at the death or expiration of the term of office of the justice before whom it was pending, or if he were the sole judge of the court, like the chancellor, by the death or expiration of his term of office; so the proceedings under section 292, which are in the nature of a creditor's bill, to enforce judgment (Sale a. Lawson, 4 Sandf., 718), ought not to be permitted to abate by the unavoidable occurrence of an event like the expiration of the term of office of the judge before whom the proceedings were first instituted,-an event not possible to be * Consult, also, on this point, Fellerman's Case (2 Ante, 155); Orr's Case (Ib., 457); Griffin a. Domingues (2 Duer, 656). |