| N.Y. App. Div. | Mar 23, 1944
Order modified by striking therefrom the second and fourth ordering paragraphs thereof, and motion to dismiss the third-party proceeding and to vacate the restraining provisions therein denied, and order as so modified affirmed, without costs of this appeal to any party. Memorandum: Ordering paragraphs, being second and fourth in the order, and the order below from which appeal is taken, have no foundation in the order of reference to the Official Referee nor in the proceedings before such 'Official Referee nor in his report to the Special Term. Therefore the order should be modified by striking out two such numbered paragraphs and by denying the motion to vacate the third-party order and the restraining provision therein. The record does not show any basis for the recital in the order below of the following: — “ the Official Referee having found that there were no funds or property of the judgment-debtor, Niagara Shipbuilding Corporation in the hands of The Niagara National Bank, the third person herein, which were subject to levy”. Ml concur. (The order confirms the report of the Official Referee dismissing a third-party order and its restraining provisions, and denies a motion to punish for contempt.) Present — Cunningham, P. J., Taylor, Dowling, Harris and McCurn, JJ.