Palen v. Bushnell — 22 N.Y.S. 1044

Majority

p. 1044

PALEN v. BUSHNELL et al.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

Appeal—Jurisdiction—Obdeb op Judge.

Under Code Civil Proc. § 2433, which declares that an order made by a judge out of court in the course of a proceeding can only be reviewed by the judge who made it, or by the court in which the proceeding is had, an appeal does not lie to the general term from such an order.

Appeal from special term, New York county.

Action by William Palen against Adelaide E. Bushnell and others. Plaintiff obtained judgment. Defendants appeal from an order appointing a receiver in proceedings supplementary to execution.

Dismissed.

For former report, see 13 N. Y. Supp. 785 .

Argued before' VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ.

W. 0. Holbrook, for appellants.

H. M. Whitehead, for respondent.

The order appealed from was an order made by a judge out of court, and not by the court, under the title of the Code relating to proceedings supplementary to execution. By section 2433 it is provided that an order made in the course of a proceeding can be reviewed only as follows: .First, 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. If the appellants wished to review the order of Justice Beach they should have made a motion, on notice either to Justice Beach or to the court, to vacate that order, and from the order granted on that motion an appeal would lie; but we think no appeal could be taken until such motion was made. The appeal must therefore be dismissed, with $10 costs and disbursements.