4 N.Y.S. 504 | N.Y. Sup. Ct. | 1888
Lead Opinion
The plaintiff recovered two judgments against the defendant in a justice’s court for more than $25 each. Transcripts were duly filed, and judgments duly docketed by the county clerk, and thereby the justice’s judgments became judgments of the county court. Code Civil Proc. § 3017. Proceedings supplementary to execution' were duly begun upon these judgments before a county judge, who made an order, pursuant to section 2447 of the Code of Civil Procedure, requiring the defendant to pay certain moneys to the sheriff of the county, from which order the defendant appeals. The respondent insists that the order is not appealable, and that the appeal should be dismissed. Section 2433 of the Code provides that orders made in supplementary proceedings shall be reviewed only by the two modes specified in that section: (1) Orders made in proceedings supplementary to executions issued upon judgments other than judgments of county courts must be reviewed in the first instance by motion. (2) Orders made in proceedings supplementary to executions issued out of a county court must be reviewed in the first instance by an appeal, “taken in like manner as if the order was made in an action brought in the same court. ” Orders affecting substantial rights, made by a county court, or by a county judge, in an action brought in, or taken by appeal to, a county court, are appealable to the general term. Section 1342. In Finck v. Mannering, 46 Hun, 323, the proceedings were supplementary to an execution issued out of the supreme court, and the appeal was dismissed because the order was sought to be reviewed in the first instance by appeal, instead of by motion; but it was distinctly stated that orders like the one now before the court must be reviewed in the first instance by appeal.
The appeal is well taken; but an examination of the evidence convinces us that the order is right on the merits, and should be affirmed. Order affirmed, with $10 costs and printing disbursements.
Dissenting Opinion
(dissenting.) I fully concur with my brethren in the opinion that the appeal herein is well taken. I do not concur in their conclusion that the order should be affirmed on the merits. A careful study of the evidence taken on the examination in this proceeding has led me to the conclusion that it was insufficient to justify the county judge in finding or holding that the defendant had in his possession or under his control money or other personal property belonging to him, and that the order appealed from cannot be upheld. I am of the opinion that the order appealed from should be reversed, with costs, on the ground that the evidence was insufficient to justify it.
