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Vogel v. Nimark

116 N.Y.S. 825 Court N.Y. Sup. Ct. English

Delivered by MAREAN, J.

Contents

Majority

p. 825
(62 Misc. Rep. 591.)
VOGEL v. NIMARK.
(Supreme Court, Special Term, Kings County.
March, 1909.)

Headnote

Execution (§ 417[1] ) — Supplementary Proceedings —Contempt—Defense-Alteration of Order.
An order in supplementary proceedings, requiring defendant to appear and be examined on a certain date, having been changed by another justice by substitution of a later date, and not having been signed by the second justice, his initials having been written in the margin opposite the alteration, ceased to be the order of any justice, and, having been served after the original date for appearance, did not oblige defendant to obey it, so that he was not guilty of contempt for not doing so.
[Ed. Note.—For other cases, see Execution, Cent Dig. §§ 1198-1200; Dec. Dig. § 417.*]
Action by one Vogel against one Nimark. Plaintiff moves to punish defendant for contempt of court.
Motion denied.
Leventritt, Cook & Nathan, for plaintiff.
Max Hallheimer, for defendant.

This is a motion to punish the defendant for failure to obey an order in supplementary proceedings, made originally by Mr. Justice Stapleton, requiring the defendant to appear and be examined as to his property on August 31, 1908. The defendant not having been served, the order was subsequently altered by another justice by changing August 31st to September 29th. The latter justice’s initials were written in the margin opposite the alteration to authenticate it. It was served, so altered, on September 9th. The defendant did not attend.. The other justice had no more power to change Justice Stapleton’s order than the man in the street. Another justice, after its alteration, could have signed it, making it his own order; but he had no power to alter it. It was no longer, after the alteration, an order of any justice. It was an absolute nullity, and the defendant was under no obligation to obey it. See Code Civ. Proc. § 772.

_ Motion denied, with $10 costs to the defendant, to be paid by the plaintiff’s attorney to the defendant.