18 Abb. Pr. 1 | N.Y. Sup. Ct. | 1864
The statute of 1862 (Laws of 1862, 975), is emphatically a remedial statute. It gives a Justice of the District Courts, in the city of Hew York, authority, “ upon motion before him, to open and set aside any default made in any action tried before or by him.” These are the words. This power no justice of the peace before possessed; so that, whatever may have been the circumstances under which the default was taken, the party suffering by the default was without remedy. He may have been taken sick, or assaulted, or hindered by a long procession, or any other crowd in the street, on his way to the court-room ; still he was without remedy. This act now gives the remedy. Ho rule is more familiar, than that a remedial statute ought to be construed liberally. “ Such construction,” say the books, “ ought to be put upon a remedial statute, as will tend to suppress the mischief intended to be remedied, and give life and strength to the remedy according to the true intent of the makers of the law and for this purpose, even the enacting words may be extended beyond their natural import and effect, and even contrary to the letter, in order to include cases within the same mischief. (See cases cited in 9 Bac. Abr., 246, 251, tit. Stat., Phil, ed., 1861.) We must also have regard to the maxim, “qui hoeret in litera, houret in cortice.”
It certainly would not be in conformity with these rules, to say that because the act under consideration states that the justice before whom the cause was tried may open the default, that, when a cause is tried before a justice of another district in the city, who takes the place of the permanent justice of the court, in consequence of the illness of the latter, or some other temporary cause, that the latter shall not have power to open the default. So far from being a liberal, this would be a most illiberal construction.
The order, denying the peremptory writ of mandamus, should be affirmed, with costs.
Leonard and Sutherland, JJ., concurred.
