Opinion
October, 1897.
John R. Fanning, for plaintiff.
Nathaniel Foote, for defendant.
By section 3279 of the Code of Civil Procedure, the sections of title 3 of chapter 21, relating to security for costs, are made applicable to special proceedings, and by section 2433 a supplementary proceeding is made a special proceeding. But while the order requiring the plaintiff here to file security for costs is within the letter of the statute, in this, that a proceeding to compel the examination of a judgment debtor is deemed a special proceeding, I am of the opinion that it is not within the spirit of the statute authorizing security for costs and not strictly within the letter.
It is provided by section 3279, that "the foregoing sections of this title (security for costs) apply to a special proceeding instituted in a court of record."
Sections 3333 and 3334, which give the definition of an action and a special proceeding, provide: (3333) that the word action, when applied to a judicial proceeding, signifies an ordinary prosecution, in a court of justice, by a party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; (3334) that every other prosecution of a party, for either of the purposes specified in the last section, is a special proceeding.
Mr. Throop says in his note to section 2433 that the section is new and intended to settle various doubtful questions; the commissioners being bound to solve the doubt thought it best to provide expressly that they should be deemed distinct special proceedings; that although the Court of Appeals in the meantime had solved the doubt the other way, it seemed to the commissioners that their original disposition of the matter established the most convenient rule, and he says, that the determination of the point was chiefly important as affecting questions relating to either (1) jurisdiction; (2) the Statute of Limitations; (3) the power of interference on the part of another judge, and (4) the mode of review.
It appears from this that the object of making supplementary proceedings special proceedings was for the purpose of a more complete and perfect system of compelling a discovery by the judgment debtor and the application of his property for the payment of the judgment, and, although made a special proceeding, they are still regarded as special proceedings in the action auxilliary to the purpose of enforcing the collection of the judgment. Smith v. Tozer, 42 Hun, 25. And while they are prosecuted for the purpose of the enforcement of a right and in a sense instituted in court, because it is a proceeding in the action, they are not a proceeding in court to determine a right, but a proceeding instituted before a judge out of court for an order to examine the judgment debtor, as to the granting of which he cannot be heard. They are not, therefore, a proceeding in court prosecuted by a party for the ascertainment of a right as provided by section 3334, but a proceeding given to a party by statute as a matter of absolute right and not within the meaning of section 3279.
My conclusion is that section 3279 is not applicable to supplementary proceedings.
It may be further observed that there is no occasion for a statute requiring the plaintiff or a defendant who has recovered judgment instituting these proceedings to give security for costs, the judgment debtor has ample security in the judgment upon which he is indebted, costs which may be awarded to him can always be set off against the judgment to the extent of his recovery of costs, and it is the practice to direct that such costs be deducted from the judgment.
Motion granted, and as the question is new, without costs.
Motion granted, without costs.