Majority
p. 270N. Y. COMMON PLEAS. Brockway agt. Brien. Special Term June, 1869.
Headnote
The first order, in supplementary proceedings, appointing a referee, &c., must he finished or some order made by the court in the proceeding, before any other order can be made in the premises.Mr. Rust, counsel for plaintiff,
made a motion for an attachment against defendant for contempt in dissolving an an order supplemental to execution, made by his Honor Judge Brady, dated June 1, 1869, commanding the defendant to appear before Thaddeus H. Lane Esq., referee, and submit to an examination as a judgment debtor.
J. M. Sheehan, counsel for defendant,
admitted service of the order and the disobedience of it under his instructions; and rested his opposition on the fact that although seven or eight orders were granted for the examination of the defendant, and motions for attachment for contempt of each of them made against the defendant, they were all denied on the ground that the papers of the plaintiff’s attorney were informal; but now, to settle the practice, he admitted the papers for contempt in the present motion were correct; but he objected to the jurisdiction of the court on the ground that in February last, an order was made herein appointing Felix V. B. Kennedy Esqr. referee, which order, though repudiated by the plaintiff, after obtaining the same, was still in existence, and that therefore the court had no jurisdiction of the proposed centempt.
stated that he wished to make this a test case to settle the practice in supplementary proceedings, as
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to his own knowledge great wi’ong was being done by changing referees and making orders while the first orders were still in force, and not set aside by any order of the court; and requested the judge to settle the practice, which was, up to this time doubtful.
Daly First Judge, coincided with defendants counsel, and decided that the first order in a supplementary proceeding must be finished or some order made by the court in the proceeding, before any other order could be made in the premises.
Motion denied.