Finch v. Manning — 12 N.Y. St. Rep. 453

Majority

p. 453

August Finch, Resp’t, v. George A. Manning, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed November 27, 1887.)

Headnote

1. Practice—Supplementary proceedings—Contempt—Order of county judge in—Where reviewable in first instance—Code Crv. Pro., §§ 2457 and 2433.

A county judge made an order in supplementary proceedings adjudging the defendant in contempt for disobeying an order requiring him to he ex

p. 454

amined. Seld, that said order was reviewable in the first instance only by the court out of which the execution was issued upon a motion to vacate or modify it.

3. Same—Appeal—Order made by court—How reviewed.

An order made by a court on such a motion may be reviewed on appeal by the general term.

H. E. Miller, for resp’t; William D. Tuttle, for app’lt.

Appeal from an order of a county judge adjudging defendant in contempt for disobeying an order of the county judge which required defendant to be examined in proceedings supplementary to execution issued out of the supreme court.

This order was made in the course of supplementary proceedings (Code Civ. Pro., § 2457), and is reviewable in the first instance only by “the court out of which the execution was issued,” upon a motion to vacate or modify the order. Code Civ. Pro., § 2433; Chamberlain v. Gallup, 25 Hun, 318 .

The order reviewed in Hart v. Johnson (7 N. Y. State Rep., 133) was granted by a special term.

The order reviewed in Baker v. Herkimer (6 N. Y. State Rep., 581) was granted by a county court (not by a county judge), and the proceeding was supplementary to an execution issued out of the county court upon a judgment entered upon a transcript of a justice’s judgment, and the order was. appealable under the second subdivision of section 2433.

The appeal is dismissed, with ten dollars costs and printing disbursements.

Hardin, P. J., and Martin, J., concur.