
    In the matter of the petition of John V. Grove, for an accounting by Hiram Osborn, assignee &c.
    On the 4th of August, 1862, G. instituted a proceeding, in due form, under chapter 348 of the laws of 1860, against 0., who had been appointed assignee of the firm of H. T. & Sons, and the same was pending on the 11th of April, 1867, when 0. died, and the proceeding abated. T. was, by the Supreme Court, duly appointed trustee in the place of 0., to execute the trust, and K. 0. was, by the surrogate, duly appointed administratrix of O.’s estate. Meld that such trustee and administratrix were the proper parties to a proceeding instituted by G., by petition, under chapter 838 of the laws of 1872, so far as that act provides for the revival of proceedings against the personal representatives of any deceased assignee.
    
      Held, also, that the proceeding instituted by G. was pending and undetermined, within the plain meaning and intent of the statute, when the act of 1872 was passed; and 0., the assignee, having previously died, the act of 1872 applied, in express terms, to the proceeding. Mullin, P. J. dissented.
    
      Held, further, that the act of 1872 was clearly designed to operate retrospectively—to apply to proceedings previously instituted.
    That the legislature had the power to revive proceedings so abated by the death of the assignee. And the act. of 1872 was not unconstitutional, inasmuch as it merely affected the remedy for the prosecution of pre-existing rights, by providing for the revival of a suit or proceeding properly instituted against a person since deceased, by bringing in his representatives and substituting them in the place of the decedent.
    APPEAL from an order of the county judge of Seneca county, directing that Keziah Osborn, administratrix of Hiram Osborn, deceased, and Horace 0. Tracy, successor to said Hiram Osborn, as trustee for the creditors of .Harris Thomas & Sons, be brought in and substituted in the above entitled proceeding, in place of the said Hiram Osborn, deceased, under and in pursuance of the provisions of chapter 838 of the laws of 1872.
    On the 1st day of August, 1861, the firm of Harris, Thomas & Sons made a general assignment for the benefit of their creditors, with preferences, to Hiram Osborn, which assignment was recorded in Seneca county on the 2d day of August, 1861. Hiram Osborn accepted the trust, as such assignee, and entered upon the discharge of his duties at once. John Y. Grove was a preferred creditor under said assignment, of the first class. On the 4th day of August, 1862, the said John Y. Grove commenced proceedings before the county judge of Seneca county to compel the assignee to account under the provisions of chapter 348 of the laws of 1860. On the 31st day of December, 1863, the county judge made and filed his decision and decree on such accounting and the said John Y. Grove appealed therefrom to the General Term of this court. The General Term decided the appeal, in September, 1866, and by their decision reversed said decree, in part, and ordered a further accounting before the county judge of Seneca county, in regard to the personal property. No further accounting was ever, in fact, had before the county judge, and on the 11th day of April, 1867, the said Hiram Osborn died. On the 27th day of May, 1867, Keziah Osborn, his widow, was appointed sole administratrix of his estate. Sometime in September, 1867, Horace C. Tracy was appointed trustee in place of said Hiram Osborn. The order appointing said Tracy as such trustee purports to revive the proceedings in the names of said Keziah Osborn and said Horace C. Tracy, but the order appealed from is not founded upon that order.
    On the 29th day of June, 1872, the said John V. Grove applied, by petition, to the county judge of Seneca county for an order directing said Osborn and Tracy to show cause why they should not be substituted and said accounting proceed in their names, which order was granted, on that day, and on the return day thereof the parties appeared, said Tracy in person and Mrs. Osborn by her counsel, and objected to the county judge proceeding any further in the matter, on the ground that he had no jurisdiction; which objection was overruled by the judge, and the matter was heard. On the hearing said Tracy filed his own affidavit, in which he positively swore that he had never received any of the assigned property or effects; and the counsel for said Grove then admitted that Mrs. Osborn would, if present, make a similar affidavit, based upon her knowledge, information and belief.
    The county judge, upon the hearing, made an order directing the accounting to proceed in the names of the administratrix and trustee. From this last mentioned order said Osborn and Tracy appealed to this court.
    
      
      Benton & Ten Eyck, for the appellants.
    I. The order appealed from is void, for the «reason that the county judge had no jurisdiction to make it. The only jurisdiction which the county judge had in the matter was that conferred on him by the act of 1860, chapter 348, as amended by the acts of 1867, chapter 860; 1870, chapter 92 ; and Í872, chapter 838.
    ¡Neither the act of 1860, nor the amendments of 1867 and 1870, confer any authority upon the county judge to call the representatives of a deceased assignee, or his trustee, to an account, or to continue in their name an accounting which was commenced in the lifetime of the assignee; nor do they purport to do any such thing. They simply confer authority on the county judge to call the assignee himself to an account. When the assignee dies, the accounting is at an end. The remedy given by these statutes is a new one, and the letter of the statute must be strictly followed. (Farnsworth v. Oliphant, 19 Barb. 30. Dakin v. Demming, 6 Paige, 95.) It is, however, claimed that the amendment of 1872 cures this defect, and confers the requisite authority on the county judge to make the order in question. This we deny. The language of the act of 1872, so far as is material to this question, is as follows: “In case any assignee has died during any proceeding now pending or undetermined under the act hereby amended, or shall hereafter die during the pendency of any proceeding under this act, his personal representatives or successor in office, or both, may be brought in and substituted in said proceeding, on such notice of not less than eight days as the county judge before whom said proceeding is pending may order, in all cases and with like force and effect as if said accounting had been an action in any court having jurisdiction thereof, and any decree afterwards made in said proceeding shall bind the said parties thus substituted, and the property of the deceased assignee as in such action.”
    
      It will be seen from the provisions of this act that in terms it purports to confer power on the county judge in two cases only, namely ; when there is a proceeding which is now (1872) pending, or is now undetermined. On the 22d day of May, 1872, this act was passed, and the accounting of Osborn had been determined and its pendency ended April 11, 1867, by his-death. The act, therefore, does not cover this case. The legislature only intended to provide for cases that were then pending. Non constat but what if their attention had been called to the fact that there were no such cases then pending and could not be, by the terms the act passed in 1860, they would not have passed this of law. They did not intend to revive dead causes of action.
    II. The act of 1872, amendatory of the act of 1860, is unconstitutional and void, because not within the real intent and scope of legislative power.
    If the present case is held to come within its provisions, then it is retrospective in- its operation, and as such comes within the condemnation of a large class of laws which have been declared void for that reason. (Dash v. Van Kleeck, 7 John. 499.) It deprives a party of a vested right which every man has to have a cause of action made out against him by due process of law, before he can be called upon to pay the damages, or be deprived of any of his rights or privileges.
    It overturns the fundamental principles of the common law which have been common rights, and reverses the common and ordinary rules of evidence. It not only gives a new remedy to the creditor, but it at the same time destroys a substantial right of the representative of the assignee, by compelling him to account for property which he has never received, as he claims, and does this, too, without compelling the creditor to make out even a prima facie case against him.
    
      This is beyond the scope of the legislative power. (The People v. The Supervisors of Westchester, 4 Barb. 70.)
    
    What would be thought of a law that should declare that in any action now pending in which the plaintiff claimed that he and the defendant were copartners, and asked for an accounting, and the defendant denied the copartnership, the defendant should forthwith render an account before the fact of the copartnership was legally proved; or that should declare that in an action brought to recover the possession of land, the plaintiff should recover unless the defendant showed affirmatively that he was the owner of the land, without requiring the plaintiff to establish his claim first ? Yet this is precisely what this statute attempts to do; for it requires these appellants to account for property which they deny having ever had or seen, without requiring the creditor to prove that any of the trust property ever reached their hands or came into their possession in any way. This statute is clearly void.
    
      Angus McDonald, for John V. Grove, petitioner and respondent.
    I. It cannot be doubted that this proceeding is one of those mentioned in the act, (Laws of 1872, ch. 838,) where the county judge is authorized to substitute the personal representatives and successor. The act provides: “In case any assignee has died during any proceeding now pending or undetermined under the act hereby amended, &c., his personal representatives or successor in office, or both, may be brought in and substituted in said proceeding.”
    The amendatory act was passed May 22, 1872. This proceeding was under the act amended. The assignee had died during its pendency. As these facts authorized the county judge to substitute, if there was any discretion, (which we do not admit,) it was for him to exercise, and is not reviewable on appeal. 1. It was admitted that the trustee, Horace L. Tracy, had never received any part of the assigned estate, and that the administratrix did not find or knowingly receive any part of the identical property (or avails thereof kept separate) that was assigned in 1861, by Harris Thomas & Sons, to their assignee, Hiram Osborn, deceased, her intestate; and it was therefore urged upon the county judge that he should not grant the order substituting them. In answer to such objection, if. now made on •appeal, we say: (a.) If these considerations were not entirely immaterial, they were addressed to the discretion of the county judge, and are, at all events, entirely immaterial here. (5.) They were entirely immaterial facts, before the county judge. The act provides that “they shall be substituted with like force and effect as if said accounting had been an action in any court having jurisdiction thereof, and any decree afterwards made in said proceeding shall bind the said parties thus substituted and the property of the deceased assignee, as in such action.” If the trustee has not received any property, he is not joined to get any decree for money against him, but is joined because he is the person who, in law, is bound to look after the trust. Ho decree can go against him, except for misconduct. As to the administratrix, as long as she has assets she is liable for all debts of her intestate, whether as assignee or personally. That he did not keep the avails of the assigned estate separate, so that she, as his administratrix, should knowingly receive it as such avails, does not lessen either his or her liability as administratrix, but may increase it by the amount of interest therein since he mingled the avails with his own estate. In this case there is no controversy but that the intestate left an ample estate,
    
      II. That this provision of law, as applied to this case, is eminently just, is too plain for argument.
    This proceeding was commenced more than 10 years ago. It has been prosecuted with all diligence possible. On account of circumstances, for which 'the petitioner was, at least, in no way responsible, there were eight years during which the only officer who could hear it, was disqualified. If the position taken by the representatives of the assignee is good law, then this proceeding is at an end, and they can in no way be called upon to account for this estate; the statute of limitations ' having become operative. This amendatory act simply prevents the operation of this statute, by continuing the proceeding.
    III. As this statute only affects the remedy, and not the right of the parties, it is constitutional and valid. It simply gives this special proceeding the same force and effect as though it were an action in this court, between the same parties. It does not in any way affect the legal rights of the parties. (Potter’s Dwarris, p. 9, §§ 471-473.)
    IY. This order is not appealable. The provision of the statute is, “that all orders, &c., in these proceedings shall be appealed from, the same as like orders of a county court in an original action brought therein.” If a like order were entered in an action for accounting in the county court, it would not be separately appeal-able to this court. It would only be reviewable on the review of the final judgment therein.
   E. Darwin Smith, J.

The provisions of the act passed May 22, 1872, entitled “ An act to amend an act to secure to creditors a just division of the estates of debtors who convey to assignees for the benefit of creditors,” passed April 13, 1860, so far as it provides for the revival of the proceedings against the personal representatives of any deceased assignee, clearly apply to the proceedings instituted upon the petition of John Y. Grove against the deceased assignee, Hiram Osborn, referred to in the papers and proceedings in these matters. The last paragraph of said act is as follows: “In case any assignee has died during any proceeding now pending or undetermined under the act hereby amended, or shall hereafter die during the pendency of any proceeding under this act, his personal representatives or successors in office, or both, may be brought in and substituted in said proceedings, on such notice of not less than eight days, as the county judge before whom said proceeding is pending may order, in all cases and with like force and effect as if said accounting had been in an action in any court having jurisdiction thereof,” &c.

The petitioner Grove had instituted a proceeding in due form, under the act amended, as above stated, against Hiram Osborn who had been appointed assignee of a firm by the name of Harris Thomas & Sons. This proceeding was commenced or instituted by said Grove on the 4th of August, 1862, and the same was prosecuted and litigated before the county judge of Seneca county, and before the Supreme Court, and was pending on the 11th of April, 1867, when the said Osborn died. The proceeding therefore abated, and was not further prosecuted, as it could not be, for want of a party defendant, until the institution before the county judge of the proceedings for the revival or continuance of the same by substitution of the appellants on this appeal in the place of said Osborn.

After the decease of Osborn, it appears that Tracy, one of the appellants, was, by this court, duly appointed trustee in the place of said Osborn, to execute the trust of said assignee, and the other appellant, Keziah Osborn, the wife of said assignee, was, by the surrogate of the proper county, duly appointed administratrix of his estate. These were the proper parties under the act aforesaid, as it provides that the personal representatives of the deceased assignee, or his successors in office, or both, might be substituted in his place in said proceedings. The counsel for the appellants contends that the act of 1872, aforesaid, does not apply to this proceeding, because it had abated on the death of Osborn, and was not pending at the time of the passage of said act. But the act in terms applies to proceedings instituted under the original act of 1860, where the assignee had previously died, that is, had died before the passage of said act, as well as to the cases where the assignee should thereafter die. The statute is as follows: “In case any assignee has died' during any proceeding now pending undetermined under the act hereby amended,” the proceeding instituted by the petitioner was pending and undetermined, within the plain meaning and intent of the statute when the act of 1872 passed, and said assignee had previously died. So the act applies,'In express terms, to this proceeding. The act was clearly designed to operate retrospectively—to apply to proceedings previously instituted. The question remains, whether the legislature had power to revive proceedings so abated by the death of the defendant. The argument is that the act in this particular is unconstitutional. This argument cannot be maintained. The act of 1872 merely affects the remedy for the prosecution of preexisting rights by providing for the revival of a suit or ■ proceeding properly instituted against a person since deceased, by bringing in his representatives and substituting them in the place of the deceased party. They are to be brought into court and allowed to defend, and nothing is or can be done against them, or the estate of the deceased party, till they are duly brought in and made parties to such proceedings. This the legislature might, I think, clearly do. I see no error in th pro-

[Fourth Department, General Term, at Syracuse,

January 7, 1873.

Mullin, Talcott and E. D. Smith, Justices.]

ceeding for this purpose before the county judge. I think the order made by him should be affirmed, and the proceedings remitted to him for further prosecution.

Ordered accordingly.

Talcott, J., concurred.

Mullin, P. J., dissented.  