Merritt v. Slocum , 3 How. Pr. 309 ( 1848 )

Harris, Justice.

The Plaintiffs having omitted to reply to the answer within twenty days, the action was at issue upon the complaint and answer. The allegations in the complaint being uncontroverted by the answer, and the new matter of the answer being uncontroverted by a reply, an issue of law was formed under the second subdivision of the 204th section of the code. Such issue, though an issue of law, might properly be referred under the 225th section. But it appears from the affidavit upon which this motion is founded, that the Plaintiffs’ attorney omitted to reply to the answer “ through mistake and inadvertence,” and he sVears that the Plaintiffs’ rights and interests require that a reply should be made to the Defendants’ answer. Indeed, it appears from the proposed reply itself, which is annexed to the papers upon which the Plaintiffs move, and which is duly verified, that such a reply to the answer is necessary in order to put at issue the real question between the parties. Under these circumstances, the spirit of the provisions of the code in relation to pleadings, require that the plaintiffs, upon some terms, should be permitted so to frame the issue as to present for trial the real merits of the controversy between the parties. If the Defendants’ attorney had been regular in his proceedings, he would have been entitled to the costs of resisting the motion, and perhaps of attending before the referee to try the case—-but the county judge had no power to make the order allowing the Defendants to make a supplemental answer. The 364th section of the code does not, as has been supposed, enlarge the powers of the county judge. The sole object of that section is to prevent that officer from being divested, by implication, of the power he had previously exercised. It is, therefore, provided that, except where the power of the county judge to make orders in an action in the Supreme Court is taken away or restricted by the code, he shall continue to exerelse- the same powers with which he was vested at the time the code was enacted. The term “ existing practice” in the section referred to, and throughout the code, evidently relates to the former practice of the court as distinguished from that adopted by the code. This section merely retains what powers the county judge had before, “ except as otherwise provided” in the code itself. In other parts of the code it is provided that a county judge may make an order for the arrest of a Defendant—that he may make an order for an injunction in certain cases —that after the return of an execution unsatisfied, the proceedings authorized by the code as supplementary to the execution may be had before him. He has also power to enlarge the time within which any proceeding may be had in an action. These and perhaps other similar powers are expressly conferred upon the county judge by the code. These are the powers referred to in the 364th section as “ conferredupon the county judge by that act." The 360th section, which provides that " motions may be made to a judge or justice out of court," only applies to a judge or justice of the court in which the action is pending. That this is so, is evident from the fact that wherever, in the code, it is intended to confer upon the county judge any power in an action in the Supreme Court, such power is conferred upon the officer as “ Oounty Judge," and not merely as a judge or justice. The latter terms are indiscriminately applied throughout the code to the justices of the Supreme Court. My conclusion therefore is, that a-county judge has no power under the code to hear a motion, as such, in an action pending in the Supreme Court, and that the order made by the county judge of Rensselaer, under the 152d section of the code, allowing the Defendants to make a supplemental answer, is void for want of jurisdiction. The proper disposition of this motion, therefore, is to allow the Plaintiffs to reply to the Defendants’ answer and to allow the Defendants the costs of resisting the motion unless they shall, within five days after service of a copy of the order, elect to make a supplemental answer. In that case they are to do so without costs to either party, and the Plaintiffs may reply to the original and supplemental answers together. The pleadings hereby authorized are to be had as of a day anterior to the order of reference so that when the pleadings are perfected the trial may proceed before the referee.

Note.—Mr. Justice Parker is understood to concur in this opinion.