Majority
p. 316(Decided July 15th, 1879.
The Bank for Savings in the City of New York, Respondent, against Anthony S. Hope et al. Appellants.
Headnote
- An order in supplementary proceedings requiring the judgment debtor to appear and answer concerning his property before the justice granting the order, 11 or some other justice of this court at chambers,” specifying place and time of appearance, is not void or irregular on account of its alternative form. The words “ or some other justice, &c,,” are merely surplusage.Appeal from an order of this court made at special term, denying oa motion to vacate an order for the examination of a judgment debtor.
On the 1st of March, 1879, an order in “ supplemental proceedings ” was granted by one of the judges of this court, requiring the defendant to appear “before me or some other justice at chambers, &c.” Upon the return day of the order the defendant appeared and raised the objection that the order was irregular and void, because it contained the words “ or some other justice of this court,” and made a motion to
p. 317
dismiss the order upon that ground, which motion was denied, and from the order denying that motion this appeal was taken.
Chas. W. Brooke, for appellants.
Strong &• Cadwalader, for respondent.
I do not think that the objection raised can be sustained. The words objected to are merely surplusage, could not possibly mislead the party, and only inserted in the order that which would have necessarily followed in case, upon the return day of the order, the judge granting it was absent from the chambers of the court.
The order required the defendant to do nothing more than the Code would have required him to do if the words in question had been omitted. 'There was no variation from the statute in any material particular.
The objections of the defendants was properly overruled, and the order appealej. from must be affirmed, with costs and disbursements.
J. F. Daly and Beach, JJ., concurred.
Order affirmed, with costs and disbursements.