McAlpin v. Stoddard

105 N.Y.S. 9 | N.Y. App. Term. | 1907

Gildersleeve, J.

In February, 1901, the plaintiffs obtained an order, based upon an affidavit, for the examination of the defendant herein, in proceedings supplementary to execution. The affidavit and order,,were entitled as in an action in the City Court; and upon the return day of the order the defendant, the judgment debtor, objected to the validity of the order, and thereupon the justice, before whom the examination was about to be taken, made this indorsement upon the order: “Proceeding dismissed upon objection made by judgment-debtor that proceeding is entitled in an action, with leave to renew. No costs. J. I. G. J. C. C.” Thereafter the judgment creditor obtained a second order for the debtor’s examination, and, upon the return day of this order, the judgment debtor asked that the proceeding be dismissed on the ground that no order had been entered dismissing the prior proceeding. The justice of the City Court thereupon dismissed the proceeding, with leave to renew after the entry of an order dismissing the proceeding. Thereafter the attorney for the judgment creditor prepared an order headed: “ At a Speciál Term of the City Court, etc.,” and entitled in' the action and reciting that, upon motion of the attorney for the judgment debtor, the proceedings, were dismissed, with leave to renew without costs; and, after giving the debtor’s attorney notice of the settlement thereof, caused the same to be entered on April 8, 1907. A third order for the examination of the debtor was thereafter obtained. The debtor then obtained an order to show cause why the order of April eighth, aforesaid, should not be vacated and also procured a stay of the examination of the debtor pending the decision on the motion. This motion came on to be heard at a Special Term of the City Court and was denied, the stay vacated, and the judgment debtor ordered to appear for examination at a time and place fixed. From this last mentioned order this appeal is taken. Section 2432 of the Code of Civil Procedure provides three remedies for the examination of a judgment debtor, and each of these remedies is declared to be a “ special proceeding.” § 2433. The judgment in the case at bar was obtained in the Municipal Court. A transcript was filed in the county clerk’s office, thereby making it a judgment of the Supreme Court for the purpose of its enforcement. Municipal Court Act, § 261. And, by section 24.34 of the Code of Civil Procedure, in such a case a proceeding to examine the judgment debtor must be instituted before a justice of the City Court. The power to entertain these proceedings is statutory and is conferred upon the judges as separate judicial officers. Webber v. Hobbie, 13 How. 382. Section 2433, supra, provides that an order made by a judge out of court may be vacated or modified by the judge who made it, or it may be vacated or modified “by the court ” out of which the execution was issued. As section 26 of the Code of Civil Procedure provides that, in the city and county of New York, “a special proceeding instituted before a judge * * * may be continued * "x" * before one or more other judges of the same court, with like effect, as if it had been instituted, or commenced before the judge, who last hears the same,” it follows that an order made by a judge of the City Court for the examination of the judgment debtor can only bé vacated or modified by a judge of that court, or “ upon motion ” in the Supreme Court, that being the court “cut of which the execution was issued.” § 2433, supra. The proceedings are instituted and continued before a judge out of. court as a separate tribunal. Ho other judge at chambers has the right to interfere or make any order therein excepting when acting in his place as provided by statute. Riddle Suppl. Pro. (3d ed.), 19, and cases cited. As to whether or not the entitling of the affidavit and order as in the action rendered the order invalid, the authorities are not entirely in harmony. In Special Term of the Supreme Court in Harris v. Weis, N. Y. L. J., April 16, 1906, an order entitled in the action was vacated on that ground. In Lynch v. Reilly, 22 N. Y. Wkly. Dig. 357, a General Term, Supreme Court, Second Department, held that an affidavit and order entitled in the City Court was sufficient to confer jurisdiction and that such an order should not be vacated. Other cases upon either position might be cited. In the case at" bar there was an order made by the judge dismissing the proceedings upon the application of the judgment debtor. The indorsement upon the order for the debtor’s examination of the words hereinbefore quoted constituted an order. Code Civ. Pro., § 767. If an entry of such order was required, it was the duty of the prevailing ‘ party to enter it. Savage v. Relyea, 3 How. Pr. 276. And the debtor was in no position to object to the second order upon the ground that the prior proceeding was pending in which an order on his own application had been made vacating the first order, whether the same had been entered or not. Shults v. Andrews, 54 How. Pr. 380. The order of April eighth was unnecessary, whether made at Special Term or by" a judge; and the making and entry thereof violated no substantial right of the judgment debtor, as it provided for the relief thereinbefore granted the debtor by the order made by Mr. Justice Green. The order appears to have been entered upon motion of the debtor’s attorney. It has been - held that a party cannot appeal from an order entered upon his own motion, and the proper practice would have been to have had the order resettled, if the debtor was materially injured by its terms. Raymond v. Tiffany, 115 App. Div. 351. The order appealed from was properly granted, so far as it denied the debtor’s motion to vacate the order of April eighth, and so far as it vacated the stay obtained by him pending the hearing of the motion. The order, however, should not have directed the judgment debtor to appear for examination. This the Special Term had no authority to do. " It should have been left for the judgment creditor to have obtained an order from a justice of the City Court fixing a new date for the examination under the order last granted.

The order will, therefore, be modified by striking therefrom the provision requiring the judgment debtor to appear for examination and, as modified, affirmed, without costs to either party of this appeal.

Fitzgerald and Goff, JJ., concur.

Order modified, and, as modified, affirmed, without costs of this appeal.