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Schenck v. Erwin

17 N.Y.S. 616 Court N.Y. Gen. Term English

Decision Majority — Martin, J. · Concurring — Merwin, J.,

Contents

Majority

p. 616
Schenck et al. v. Erwin.
(Supreme Court, General Term, Fourth Department.
February, 1892.)

Headnote

Supplementary Proceedings—Jurisdiction.
A transcript of a judgment recovered before a justice of the peace in S. county having been filed in C. county, supplementary proceedings were duly instituted thereon in 0. county, and the judgment debtor examined, after which the judge of S. county ordered the examination of appellant, a resident of S. county, relative to funds of the judgment debtor in his hands, and thereupon the judge of C. county directed appellant to pay plaintiff out of such funds. Held, that the judge of S. county obtained no jurisdiction to order the examination of appellant, and therefore the "judge of C. county acquired no jurisdiction over appellant to order payment by him to the judgment creditor.'
Appeal from order of Chemung county judge.
p. 617
Action by Mathias Schenck and Frank L. Pease against Arthur B. Erwin. From an order in supplementary proceedings denying a motion to vacate an order directing defendant’s debtor to pay plaintiffs $129, such debtor, Francis Erwin, appeals.
Reversed.
Plaintiffs recovered a judgment against Arthur B. Erwin before a justice of the peace in Steuben county, and a transcript was filed and judgment docketed in the clerk’s office of Chemung county, and an execution was issued to the sheriff of that county, and returned unsatisfied. Supplementary proceedings were instituted before the county judge of Chemung county, and defendant Arthur B. Erwin was examined, he then being a resident of Chemung county. Subsequently plaintiffs obtained an order from the county judge of Steuben county for the examination of Francis Erwin, the appellant, concerning the property of the defendant; and on the examination of Francis, and the previous examination of defendant, the county judge of Chemung made an order requiring Francis to pay to the receiver $129, the amount of the judgment and costs in the supplementary proceedings.
Argued before Hardin, P. J., and Martin and Merwin, JJ.
Spencer & Mills, for appellant. Leslie W. Wellington, for respondents.

On February 12, 1891, the county judge of Chemung county made an order requiring the appellant to pay to the receiver herein the sum of $129. The single question in this case is whether the judge making that order had jurisdiction. If he had no jurisdiction to make the order, then he erred in refusing to vacate it. He acquired no jurisdiction over Francis Erwin, who was examined as a third person having property of the judgment debtor, under or by virtue of the order issued by the Steuben county judge. The county judge of Steuben county had no authority to issue such an order. It could be issued only by the county judge of Chemung county. Merrill v. Allin, 46 Hun, 623 . The county judge of the latter county made no such order; hence there was never any valid order to examine the appellant as such third person. There was an attempt to institute the special proceeding provided for by subdivision 3 of section 2432 of the Code, but it failed. There was no proceeding under that provision of the Code in which the county judge of Chemung county could make any valid order whatever. Hor do I think that in the proceedings instituted before him under subdivision 1 of section 2432 he in any way acquired jurisdiction of the appellant, or jurisdiction to make the order requiring him to pay the sum named to the receiver. The appellant was not even examined under the order in that proceeding. He was examined only in a proceeding commenced before another county judge, who had no authority whatever to entertain it, and neither judge obtained any jurisdiction over the person of the appellant. These views lead me to the conclusion that the order appealed from should be reversed.

Upon reflection, I yield to the views expressed in the foregoing opinion, and vote for a reversal. Order reversed, with $10 costs and disbursements.

(concurring.) The cases of Cooman v. Board, 37 Hun, 96 , and Woodman v. Goodenough, 18 Abb. Pr. 265 , sustain the proposition that the county judge of Chemung county had no jurisdiction to make the order complained of. See, also, Bidd. & B. Supp. Proc. (3d Ed.) 320. The appellant was not a party to the proceeding before that officer, and did not appear therein. The service of notice by the plaintiffs’ attorney could not take the place of a third party order. Besides, a case was not made that justified an order requiring the appellant to pay. It was not shown that he had money in his hands that belonged to the defendant. It may be that he owed the defendant a portion of his legacy, or had in his hands a mortgage from which,

Concurrence

p. 618
at some future time, he would have the means to pay the legacy; but that was not enough. Bank v. Pugsley, 47 N. Y. 368 . 1 think, therefore, that the order appealed from should be reversed.

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