Proceedings supplementary to execution are to be regarded as proceedings in the action in which the judgment, upon which the proceedings are founded, was recovered. An order appointing a receiver upon such proceedings is an order in an action. The three hundred and forty-ninth section of the Code accordingly provides that an appeal may be taken from an order made at a special term, or by a single judge of the same court, or a county or special county judge, in any stage of the action, including proceedings supplementary to execution. The order appointing the plaintiff receiver, if made by a judge of the Supreme Court or a county judge, would undoubtedly have been appealable.
Had the legislature seen fit to authorize the recorder or mayor of Troy, or the sheriff or a justice of the peace, to entertain a complaint against a judgment debtor, after the return of an execution unsatisfied, and to institute summary proceedings against him, I should not feel inclined to deny the validity of such a law. Like summary proceedings to recover the possession of demised premises, or the proceedings under the act to abolish imprisonment for debt, it might be regarded as a special statutory proceeding, entirely within the control of the legislature.
But the case now under consideration presents an entirely different question. The recorder of Troy, assuming to be authorized by an act of the legislature, has made an order in an action pending in the Supreme Court. It is claimed that the legislature has made him, pro hac vice, a judge of the Supreme Court, and clothed him with authority to act as such judge in all proceedings out of court. Indeed, the act itself declares that it was the purpose of the legislature *Page 337 to invest this officer with all the powers which had pertained to the office of Supreme Court commissioner. This, as I understand the constitution, cannot now be done.
The office of Chancellor, Vice-Chancellor, Circuit Judge, Master in Chancery, Examiner in Chancery and Supreme Court Commissioner was abolished from and after the first Monday of July, 1847. The duties which had been discharged by the incumbents of those offices were devolved upon other officers, for whose election provision was made. It was obviously intended by the framers of the constitution, not only that these offices, as they then existed, should be abolished, but that they should not be re-created. No one would pretend that it is in the power of the legislature now to restore the Court of Chancery as it once existed, or to create the office of Chancellor; and yet this office is not more completely annulled than the office of Supreme Court commissioner. A reference to the proceedings of the convention will show that every proposition involving a continuance of that office, in any form, was rejected. A section was proposed by a distinguished member of the convention distinctly authorizing the legislature to provide for the election of commissioners in each county, to perform, among other things, the duties of a justice of the Supreme Court, but it did not prevail. (Debates of Conv., Argus Ed., 633.)
The multitude of offices which had been brought into existence by the legislature in all the departments of the state government, was an evil prominently before the minds of the convention. To abolish these offices and prevent their creation in future, was among the reforms which the members of that body seem to have kept steadily in view. In respect to the judicial department, with the exception of the local courts, which, with their officers, were by the twelfth section of the last article of the constitution retained during the pleasure of the legislature, the entire judicial force of the state is prescribed and limited by the sixth article. *Page 338
Nor is the act in question any the less objectionable because it confers authority to make an order, in an action pending in the Supreme Court, upon an existing officer of another court. The judges of each of the courts organized under the provisions of the constitution, are confined in the exercise of their powers to their respective courts. The judges of the Court of Appeals can not sit in the Supreme Court, nor can a judge of the Supreme Court hold a county court; nor could the power to do so be conferred upon them by the legislature. It is specially provided in the constitution that county judges may perform such duties as may be required by law. This provision has been uniformly understood as conferring upon the legislature the power to authorize this particular class of officers to perform the duties of a judge of the Supreme Court at chambers. I am willing to assume that it was so intended. But there is nothing in the constitution from which, by any possible implication, any similar power can be inferred, in respect to any other judicial functionary. The legislature may alter, regulate and declare the jurisdiction of the court; but having done this, the prescribed jurisdiction can only be exercised by the officers provided by the constitution. (Griffin v. Griffith, 6 How. Pr. R., 428;Cushman v. Johnson, 13 How., 495.)
It was claimed by the plaintiff's counsel, upon the argument, that the question involved in this case had been adjudicated inRenard v. Hargous (3 Kern., 259). But I do not so understand the effect of that decision. In that case, an attachment against non-resident debtors had been issued by one of the judges of the Superior Court of New-York. That the legislature might confer upon those judges as well as anybody else, the power to grant such an attachment, was not and could not well be doubted. The only question in controversy was, whether such power had in fact been conferred. I see no reason to doubt the soundness of the decision, but I cannot see that the question decided is even kindred to that now under consideration. In that *Page 339 case, the court was called upon to determine whether the legislature had exercised an acknowledged power. In this case, the question is whether the legislature possessed the power it has assumed to exercise. To confer upon a judge jurisdiction in a special statutory proceeding, like that of an attachment against non-resident debtors, and to authorize him to adjudicate upon questions arising in an action pending in a court of which he is not a judge, are totally different things. There is no analogy between them.
We have already seen that the order in question was an order in the action. It was an order made upon summary application, after judgment. It affected substantial rights. If made by a judge of the court in which the action was pending, or by a county judge, it would have been appealable. For the purpose of such an appeal, provision is made in the three hundred and fiftieth section of the Code, for having the order entered with the clerk as an order of the court. But in respect to the same order made by the recorder of Troy, under the act of 1849, it is, to say the least, extremely doubtful whether any appeal at all would lie. Certainly, no provision is made for such an appeal. It would, indeed, be an anomalous thing.
I am of opinion that, while it may be competent for the legislature to confer upon the recorder of Troy, or any other judicial officer, authority to perform acts which formerly pertained to the office of Supreme Court commissioner, it is not competent to authorize that officer, or any other except a county judge, to perform any judicial functions in an action pending in the Supreme Court. To this extent, therefore, the legislature has transcended its power. To this extent the act is unconstitutional.
The judgment of the Supreme Court, should be affirmed.
JOHNSON, Ch. J., concurred in this opinion, and SELDEN, J., in its result. PRATT and STRONG, Js., were for reversal, the former upon the grounds stated by COMSTOCK, J., as well as those of DENIO, J.
Judgment reversed. *Page 340