Pardee v. Tilton

The order of Hr. justice Hoxon was irregular in requiring the evidence and proceedings had before the referee to be returned to him. He had the power to make the order for the examination of the defendant, and, doubtless, under section 300 of the Code, he had authority to appoint a referee. But section 292 requires that all subsequent proceedings shall be had before some justice in the judicial department where the judgment debtor resides, to be specified in the order. But the principal question on the appeal is whether, under the circumstances, the administrator of deceased plaintiff could institute these proceedings upon the execution issued and returned during the lifetime of the plaintiff. Section 283 of the former Code clearly gave him this right. But this section was repealed by chapter 417 of the Laws of 1877. But it is claimed that, since the plaintiff was, at the time of his death, entitled to invoke this remedy, the right then existing passed to his legal representative, and is preserved by the saving and qualifying provisions of the general repealing act of 1877 (Laws of 1877, chap. 417, sec. 3). We are of the opinion that the qualifying provisions above cited did have the effect to preserve that right, and, notwithstanding the repeal of section 283, the right which *478had accrued under it was preserved, and could still be enforced by the representative of the plaintiff, and that the order made by Mr. justice Boxon was, therefore, legal and regular, except in the direction given to the referee, which, it is apparent, was a mere oversight.

The order should, therefore, be affirmed.