Squire v. Young.

not a proceeding incident to the action. It is wholly a creature of the statute. No authority is given to the Judge to revive or continue it, if the creditor fails to appear on the day at which the original order is made returnable, or on any day to which he may have adjourned it.

When such a failure of the creditor occurs, we think his proper course is to obtain a new order, on an affidavit conforming to the Code and excusing his previous neglect or default. In the proceedings on such order he will be restricted, as a matter of course, to such relief as it would be proper to grant, if the prior proceeding had not been instituted. He can reach only such property as the debtor has when the new order is served, unless the debtor has previously disposed of his property fraudulently: In that event it may be recovered by a receiver, to be appointed by the Judge.

In proceedings under chap. 2 of title 9 of the Code, the Judge can exercise no powers except such as it confers, either in express terms or by necessary implication.

To hold that such proceedings, when once commenced, will continue operative until formally vacated by order, and that, too, although the creditor fails to appear on the return day, or on an adjourned day, or to move in the matter for months or for years thereafter, is giving a character and effect to them not declared by the Code, and in nowise necessary to the execution of all, or any, of the powers it expressly confers.

Cases of apparent hardship may arise, as they occasionally do, in actions themselves: Such cases, if of frequent occurrence, and involving considerations of importance, may be addressed to the Legislature, as inducements to amend the law. The Courts can only administer the laws as they are enacted. They cannot legislate, to meet the exigencies of cases of hardship or misfortune. Whenever they attempt it, they furnish new illus trations of the maxim: that hard cases make bad precedents.

To avoid misconstruction, it is proper to remark, that we must not be understood to deny the power of the Judge to appoint a receiver of the debtor's property, or to punish him, as for a contempt, if he disposes of his property, contrary to the injunction, provided the proceeding has been continued by adjournments agreed upon, in writing, by the parties, although not ordered by

Addendum.

the Judge: No such question is before us on this appeal. At the same time, we think it more prudent, that all adjournments should be made by order of the Judge.

Without discussing further the questions presented by this appeal, the order in question, for the reasons already stated, must be reversed.

But as the question is new, and as the loose practice pursued has given rise to views in relation to these provisions of the Code, which we think no one would entertain on a reading of them, however careful, no costs of the appeal will be allowed to either party.

Order reversed, without costs to either party.

ADDENDUM.

NOTE of decisions reported in the 17th Volume of the New York Reports, in cases carried by appeal from the Superior Court of the City of New York to the Court of Appeals. (That volume was published the last of December, 1858, after the stereotyping of this volume had been commenced.)

Dunham and Dimon v. Waterman, Heckers, and Rowell, P. 1 (S. C. in 3 Duer, 166). The Court of Appeals held the statement insufficient to authorize the entry of a judgment under §§ 282 and 283 of the Code: That the assignment in question was void on its face; overruling Cunningham v. Freeborn (11 Wend. 240), in the Court of Errors, and reversing the judgment of this Court, which conformed to it.

Mayor, &c., of New York v. Stuyvesant's Heirs. P. 34. Judgment of the Superior Court affirmed.

Pendleton v. Weed. P. 72. Judgment of the Superior Court affirmed.

Russell v. The Hudson River Railroad Company. P. 134.

Addendum.

(S. C. 5 Duer, 39.) Judgment of the Superior Court reversed: The Court of Appeals held, that a laborer employed by a railroad company to work on the line of the road, in connection with a gravel train of cars, under an arrangement by which he was to be conveyed from the city of New York every morning, and back to the city to his home every night, in such cars, free of charge, cannot maintain an action against the company for an injury sustained while thus riding home, in consequence of the negligence of the engineer: the Superior Court held, that the relation of employer and employee had ceased, for the day, before the accident, and that at the time of the injury the laborer was being carried home by the defendants, in pursuance of their contract in that behalf: In the view taken of the case by the Court of Appeals, the laborer, from the time of leaving the city in the morning until his return to it at night, should "be regarded as having been, during the entire interval, the servant of the company, and bound as such to render aid, if necessary, in promoting the passage of the train, both to and from the city."

Van Wyck v. Aspinwall. P. 191. (S. C. 4 Duer, 268.) Judgment of the Superior Court affirmed.

Hull v. Carnley. P. 202. Judgment of the Superior Court affirmed.

Harris v. Pratt. P. 249. (S. C. 6 Duer, 606, under the title, Harris v. Hart.) Judgment of the Superior Court affirmed.

Weed v. The Panama Railroad Co. P. 362. (S. C. 5 Duer, 193.) Judgment of the Superior Court affirmed.

Grosvenor v. The Atlantic Fire Insurance Company. P. 391. (S. C. 5 Duer, 517.) The Court of Appeals overruled The Traders' Insurance Company v. Robert (9 Wend. 404), and Tillou v. The Kingston Mutual Insurance Company (1 Seld. 406), and reversed the judgment of the Superior Court, which conformed to them. See note to Grosvenor v. The Atlantic Insurance Co., ante, p. 469.

Kernochan v. The Bowery Fire Ins. Co. 429. (S. C. 5 Duer, 1.) Judgment of the Superior Court affirmed.

Addendum.

Coddington v. Gilbert. P. 489. (S. C. 5 Duer, 72.) Judgment of the Superior Court affirmed.

Mellen v. The Hamilton Fire Insurance Company. P. 609. (S. C. 5 Duer, 101.) Judgment of the Superior Court affirmed: Both Courts held, "that the assignment of a policy of insurance after a loss, is not within the clause prohibiting a transfer without the consent of the insurers. The restriction is upon an assignment during the pendency of the risk, and not of a transfer of the debt arising from a loss.

"As a matter of law, an unexplained delay, for twenty days, to notify insurers, residing in the same city with the insured, of a subsequent insurance, is unreasonable, and avoids a policy which required such notice to be given with reasonable diligence."

The Court of Appeals-all the Judges, except ROOSEVELT, J., concurring-affirmed the judgment, for the reasons stated by Ch. J. DUER in his opinion, delivered on announcing the judgment appealed from: That opinion is reported in 17 N. Y. R. 615, as expressing the reasons of the Court of Appeals for affirming the judgment.