Dunham v. Reilly.

was to take effect on May 1, 1877. The temporary act of 1876 (chap. 449), was passed to explain, define and regulate the application of the Code, and contained this provision: "Chapter thirteenth applies only to an execution issued on or after May 1, 1877, out of a court of record, other than an execution issued out of such a court and directed pursuant to law to a marshal or constable, and to sales and other proceedings by virtue of an execution directed to a sheriff and delivered to him after that date."

Both the Code and the temporary act were suspended in their operation until September 1, 1877, but on that day went into effect. At that date the situation was this: The fifty-third section of the marine court act of 1875, regulating the issue of its executions, had been repealed; chapter 13 of the new Code had been made applicable to all executions issued out of any court of record other than those issued to a constable or marshal, and so governed all executions issued out of a court of record to a sheriff on and after September 1, 1877; and the executions issued in 1879 to the present defendant were, therefore, controlled by the provisions of the Code. Its last nine chapters were passed in 1880, and section 3347 in subdivision 10 contains a repetition in precise words of the provision we have cited from the temporary act, and the general term concede that in the year 1880, there was a repeal of the act of 1875, and which brought marine court executions issued to the sheriff within the control of the Code. The mistake was in the supposition that such change never tock place until 1880, whereas, as we have seen, section 53 of the act of 1875 was expressly repealed in 1877, and section 3347 of the Code was only a repetition of the previous identical enactment in the temporary act of the same year. The error is quite excusable in view of the confused tangle of legislation on the subject, and more especially because, by the repealing act of 1880, chapter 479 of the Laws of 1875, with the exception of a single section, is repealed generally, without allusion to the circumstance

Dunham v. Reilly.

that most of its sections had been destroyed by express enactment three years earlier. It follows necessarily that the right to issue the executions for a false return of which the sheriff is sued must be tested by the provisions of the Code. Those provisions are quite explicit and peremptory.

By section 1365 it is enacted that executions against property "can be issued only to a county in the clerk's office of which the judgment is docketed." The power to issue the process is given where in some county there is the prescribed docket, and only in that event. The language seems to involve both an authority and a prohibition; an authority where the judgment is docketed in in any county, to issue the execution to that county, and a prohibition, couched in the word "only," against any such issue to a county in whose clerk's office there is no such docket. The further provisions which regulate the form and dictate the contents of the execution are framed in harmony with this prohibition and on the assumption that it would be obeyed. Section 1367 directs that "where an execution is issued out of a court other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk with whom the transcript is filed and the time of filing, and it must be made returnable to that clerk;" and section 1369 enacts that "an execution against property must, if the judgment-roll is is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that county."

The execution issued to the sheriff in this case violated all these essential provisions, and fell within the definition of void process given in Fischer v. Langbein (103) N. Y. 84), which was "such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such

Dunham v. Reilly.

process.' The court had no power to award the execution which was issued; it acquired no jurisdiction to issue it in the particular case; and the process did not comply in form with the material requisites prescribed for it. We think it was absolutely void, and that we should so declare it in obedience to the direct and peremptory mandate of the Code.

The contrary opinion is sought to be supported by the authority of two cases (Stoutenburgh v. Vandenburgh, 7 How. Pr. 229, and Blivin v. Bleakley, 23 How. Pr. 124), The first was a special term decision, and held, with manifest doubt and hesitation, that the execution, without a docketed judgment in the county office, might be deemed regular for the purposes of a levy on personal property, at least from the time of the actual docket. The other case goes further. In that the execution was issued on October 4, and the judgment docketed on the 5th. The process was held to have been merely premature, and voidable rather than void; and good, therefore, from its date, unless set aside by the court. Without either approval or disapproval of that case, the one at bar is easily distinguished. Here the judgment never was docketed during the life of the process and not until long after its vitality was spent. When the docket was made there was no execution in existence that could be made good by any mode of amendment, and an effort to amend would be to create a cause of action where none before existed.

But there is a further fact to be considered. The cases cited were under the provisions of the old Code, section 287 of which provided that "when the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where the judgment is docketed." This language, which was permissive, and possibly might be deemed only directory, has been changed to the peremptory and mandatory words "can be issued only." We must recognize and give effect to the manifest purpose of the altered language.

Dunham v. Reilly.

A somewhat similar change took place respecting executions against the person. Section 283 of the old Code provided "an execution against the person .

. may be issued after the return of an execution against his property unsatisfied." Under this provision a body execution issued before the return of a property execution was ruled to be merely voidable. But the Code of Civil Procedure [§ 1489] used different language, and enacted that "an execution against his person cannot be issued, until an execution against his property has been returned," and under this provision it was held that the execution was void unless preceded by the requisite execution against property (Bergmann v. Noble, 12 N. Y. Civ. Pro. 256). I observe that the respondent does not question the soundness of this decision, but puts it upon the peremptory language of the statute as charged in its final form. But I do not think there is any material diference between the language that an execution "cannot issue" except, and that it "can issue only" when the prohibition founded upon the absence of the required condition precedent is equally strong in each case.

Deeming the execution to have been void and a nullity, it follows that no action can be maintained for its false return. The doctrine brought to our attention, that the officer who receives the process, and, treating it as valid, proceeds to execute it, cannot allege its defective character, has its proper application to cases where the defect is capable of amendment or may be waived, and the process is merely irregular, and cannot apply where it is wholly void. Here there was no process: the paper so issued and entitled was a nullity, and cannot serve as the basis of an action. For these reasons, we agree with the special term. As the defect is vital and fatal to any recovery, no permission to amend is asked or of any utility.

The judgment of the general term should be reversed and that of the special term affirmed, with costs.

All concured.

Van Benthuysen v. Van Benthuysen.

VAN BENTHUYSEN v. VAN BENTHUYSEN.

SUPREME COURT, THIRD DEPARTMENT, ALBANY COUNTY, SPECIAL TERM, AUGUST, 1888.

$$ 501, 1770.

Pleading when counter-claim for absolute divorce may be set up in an action for separation—when answer states sufficient facts.

In an action brought by a wife against her husband for a separation on the ground of cruel and inhuman treatment, the defendant may in connection with a denial of the allegations of the complaint, plead in his answer, as a counter-ciaim, a cause of action existing in his favor against the plaintiff for absolute divorce upon the ground for adultery, and may demand judgment thereon for an absolute divorce.

It seems, that this was not so prior to the amendment of section 1770 of the Code of Civil Procedure, by chapter 703 of the Laws of 1881; but the effect of that amendment was to authorize the interposition of such a counter-claim.

Where, in an action brought by a wife against her husband for separation, the answer sets up as a defense and counter-claim adultery of the plaintiff, such defense and counter-claim is not subject to demurrer as insufficient, and as not stating sufficient facts, because it is not alleged that the adultery was without the connivance, privity, or procurement of the defendant; that allegation is not a fact necessary to constitute a cause of action, and while technical good pleading may require it, if omitted, it may be supplied by proof on the trial.

Instance of a case in which, in an action for separation, a demurrer

to a counter-claim on which absolute divorce was asked was overruled, with leave to the plaintiff to reply on payment of costs of demurrer, in default of which final judgment was directed in favor of the defendant.

(Decided August, 1888.)