Moschell v. Boor — 21 N.Y.S. 683

Majority

p. 683

MOSCHELL v. BOOR.

(Supreme Court, General Term, Fifth Department.

January 18, 1893.)

Headnote

Appealable Orders—Supplementary Proceedings—Receiver. Code Civil Proc. § 2433, declares that all proceedings supplementary to an execution are special proceedings, but an order made in the course thereof can only be reviewed 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 was issued. Held, that the appointment of a receiver of a debtor’s property in proceedings supplementary to execution, being an order made in the course of such proceedings, can only be reviewed under section 2433, and therefore is not appealable.

Appeal from order of Monroe county judge.

Action for the recovery of money by Josephine Moschell against Francis Boor. There was a judgment for plaintiff, and an order appointing a receiver for defendant’s property, and from the order he appeals. Dismissed.

Argued before DWIGHT, P. J., and MACOMBER and LEWIS, JJ.

John R. Fanning, for appellant.

Q. VanVoorhis, for respondent.

On the 4th day of December, 1891, the plaintiff recovered a judgment in the supreme court against the defendant for the sum of $10,060.27, upon which an execution was issued, and subsequently returned unsatisfied; and thereupon proceedings supplementary •to execution were instituted in behalf of the judgment creditor against the debtor before the county judge of Monroe county. A reference was ■ordered, and upon the coming in of the evidence taken before the referee the county judge appointed a receiver of the defendant’s property, and from that order this appeal is taken. We think that this order is not ;appealable. Section 2433 of the Code of Civil Procedure declares:

“Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows: (1) An order made by a judge ■out of court may be vapated or modified by the jndge 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. ”

The appellant’s counsel calls attention to sections 1347 and 1348 of "this Code, to be considered in connection with section 2433, but sections 1347 and 1348 refer to orders made in actions as distinct from special proceedings. Proceedings supplementary to execution are by the Code declared to be special proceedings. The case of People v. Warner, 51 Hun, 58 , 3 N. Y. Supp. 768 , arose upon a proceeding to punish a wit

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ness for contempt for not appearing before the referee in supplementary proceedings; but proceedings for contempt are themselves special proceedings, independent of the action or special proceeding in which they may be taken, and an order made therein cannot be regarded as an order made in the course of the original proceedings. The appointment of a receiver of a debtor’s property in proceedings supplementary to execution is, on the other hand, an order made in the course of such proceedings, and consequently is reviewable only under section 2433 of this-Code. It follows that the appeal should be dismissed.

Appeal dismissed, with $10 costs and disbursements. All concur.