Onetto v. Teutonia Fire Insurance — 157 N.Y.S. 170

Majority

p. 170

In re ONETTO. ONETTO v. TEUTONIA FIRE INS. CO.

(Supreme Court, Appellate Division, Fourth Department.

December 8, 1915.)

Headnote

Contempt <@=>66—Execution <@=>418—Supplemental Proceedings—-Failure to Appear por Examination—Proceeding to Punish—-Appeal—Statutes.

Code Civ. Proc. § 2433, provides that an order made in supplemental proceedings, which are special proceedings, can be reviewed only as follows: An order, made by a judge out of court, may be vacated or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating' or modifying it, may be vacated or modified, upon motion, by the court out of which the execution issued, etc. Section 1356 gives a right of appeal to the Appellate Division from an order affecting a substantial right, made in a special proceeding, at a Special or Trial Term of the Supreme Court, or by a justice thereof in a special proceed- • ing instituted before him. An order adjudging a judgment debtor in contempt of court for disobedience of an order in supplementary proceedings, made by a justice of the Supreme Court out of court, was appealed from to the Appellate Division. Held,, that the appeal must be dismissed, the judgment debtor being bound by section 2433, as the order was made in the course of the supplementary proceedings, to move at Special Term to review the order; the Appellate Division being without jurisdiction to review, except upon appeal from an order made at Special Term, and section 1356 having no application to an order made in supplementary proceedings.

[Ed. Note.—For other cases, see Contempt, Cent. Dig. §§ 213-215, 223-237; Dec. Dig. <@=>66; Execution, Cent. Dig. § 1201; Dec. Dig. <S=»418.] <£=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, Chautauqua County.

In the matter of the examination of Ernest Onetto, judgment debtor, in proceedings supplementary to execution, upon the application of Teutonia Eire Insurance Company, judgment creditor, under a judgment recovered in an action by the judgment debtor against it. From an order by a justice of the Supreme Court, made out of court, adjudging the judgment debtor in contempt for disobedience of an order

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made by the justice, and for failure to obey orders and directions of the referee, and imposing a fine upon such judgment debtor and committing him to imprisonment, he appeals. Appeal dismissed.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

Thomas H. Larkins and Francis S. Stegelske, both of Dunkirk, for appellant.

J. Sawyer Pitch and McGuire & Wood, all of Rochester, for respondent.

The order appealed from is a judge’s order, and not a court order. It is an order made in and as a part of the supplementary proceedings. Matter of Steinman v. Conlon, 208 N. Y. 198 , 101 N. E. 863 . Section 2433 of the Code of Civil Procedure prescribes the method of reviewing such an order as follows:

“Each of those remedies is a special proceeding. But an order, made in the course thereof, can he reviewed only as follows: 1. An order, made by a judge, out of court, may be vacated or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued.”

Inasmuch as the order appealed from must be held to have been made in the course of the supplementary proceedings, we think appellant was bound to move at Special Term and thus to review the order, and that this court is without jurisdiction to1 review it except upon appeal from an order so made at Special Term. There is little or no reason for requiring such a review at Special Term in a case like this, where application for the order was on notice and a full hearing of both parties had upon the testimony given before the referee as well as upon affidavits upon both sides. Still, in view of the decision in Matter of Steinman v. Conlon, supra, that this order is one made in the course of the supplementary proceedings, we see no escape from holding that section 2433 applies and prescribes the only method of review.

Section 1356 of the Code, which gives a right of appeal to this court “from an order, affecting a substantial right, made in a special proceeding, at a Special Term or a Trial Term of the Supreme Court, or made by a justice thereof, in a special proceeding instituted before him, pursuant to a special statutory provision,” must be construed with section 2433, and, as so construed, does not apply to an order made in supplementary proceedings. The preliminary note to section 1356 of the revisors who prepared that section states :

“This title contains only general provisions relating to appeals in special • proceedings, leaving those which apply exclusively to particular kinds of special proceedings to be treated in connection with the other provisions upon the same subject in chapters 16 and 17 of this Code.”

Section 2433 is found in chapter 17, where special provision is made for orders in proceedings supplementary to execution, and the method of reviewing such orders. We conclude that appellant has mistaken

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his remedy, and that he must first move at Special Term to modify or vacate the order appealed from, and that an appeal to this court can be taken only from the order of the Special Term.

The appeal is dismissed, with $10 costs and disbursements.

Cases cited

Steinman v. Conlon 208 N. Y. 198 N.Y. 1913-04-22 p. 171