Dorsey v. Cummings — 15 N.Y. St. Rep. 459

Majority

p. 459

James Dorsey, App’lt, v. Michael Cummings, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 14, 1888.)

Headnote

1. Supplementary proceedings—Endorsement op papers served— Omission op—Not ground for dismissing proceedings.

The plaintiff recovered judgment against the defendant in an action, and issued execution thereon, which was entered unsatisfied, and thereupon he made an affidavit in full compliance with Code Civ. Pro., §§ 2435, 2458, and procured an order for the examination of the judgment debtor, respecting his property, which he served personally upon him the same day. Later in the same day the judge who granted the order, granted an order dismissing the proceedings, upon the ground that the affidavit and order served were not endorsed or subscribed with the name of the plaintiff appearing in person, and his office and place of address, Held, that the omission to give the office address or place of business of the plaintiff, who appeared in person, was a mere irregularity occurring after the order was properly granted, and that it was error to dismiss the proceedings for that reason.

2. Same—Order made in—Judge making order may not vacate it ex parte—Code Civ. Pro., § 2433.

It is provided by Code Civ. Pro., § 2433, that an order made in the course of supplementary proceedings, by a judgment 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 this gave the judge no power to vacate or modify an order previously made by him, on say ex parte application.

3. Same—Failure to endorse papers—Remedy for.

Held, that the only remedy to which the defendant was entitled, was to have the service of the order set aside, and that could only be done on notice to the plaintiff.

4. Same—Provisions of Cops Civ. Pro., § 772, Not applicable to.

Held, that the provisions of Code Civ. Pro., § 772, permitting a judge in particular instances, to vacate or modify an order previously made by him on an ex parte application, did not apply to these proceedings, but to orders granted in actions before final judgment.

Appeal from an order made by the special judge of Monroe county, denying the plaintiff’s motion to vacate and set aside an ex parte order previously granted by him vacating an order in supplemental proceedings, requiring the defendant to appear before a referee and submit to an examination concerning his property, and which order also contained a clause restraining the defendant from disposing of his property. After the return of an execution unsatisfied, the plaintiff made an affidavit, which was in full compliance with the requirements of sections 2,435 and 2,458 of the Code, presented the same on the 11th day of December, 1887, to the said judge, who granted an order thereon requiring the judgment debtor to appear before a referee on the 14th of the same month and submit to an examination. This order was duly and personally served on the defendant the same day. Afterwards, and on the same day, on the ex parte application of the defendant, the

p. 460

judge granted an order .dismissing the proceedings, upon the sole ground, and, as stated in the order of dismissal, “ that the affidavit and order this day served is not indorsed or subscribed with the name of the said plaintiff appearing in person, and his office and place of address.” On the 14th of December, the plaintiff made a motion to vacate and set aside the last named order, which was denied.

James Murphy, for app’lt; Henry J. Sullivan, for resp’t.

—-The evidence presented to the special county judge was in full compliance with the requirements of the statute, and gave the judge jurisdiction over the subject matter, and by the personal service of the order he also acquired jurisdiction over the person of the defendant. The omission to give the office address or place of business of the plaintiff, who appeared in person, as required by standing rule number two, was a mere irregularity, occurring after the order was properly granted, and it was error to dismiss the proceedings for that reason. It was not necessary to make the indorsement upon the papers intended to be filed or served prior to their presentation to the judge. That formal and clerical act could have been done at any time prior to the service.

If the service of the order was not good and sufficient because the same was not properly endorsed, the plaintiff could have made another service of a copy of the order, supplying the omission before the return day named in the order, and thus kept the proceedings on foot. The rule was enacted for the convenience of the opposing party and his attorney, and a non-compliance therewith is a mere irregularity and does not necessarily vitiate the service of the order. Evans v. Backer, 101 N. Y., 291 ; Clapp v. Graves, 26 id., 418 .

The pending proceedings were of importance to the plaintiff, and their dismissal, if allowed to stand, may defeat the collection of the plaintiff’s judgment.

The only relief to which the defendant was entitled, in consequence of a non-compliance with the rule, was to have the review set aside, and that could only be done upon notice to the plaintiff.

By section 2433 it is declared that an order made in the course of the proceedings can only be reviewed in the way and manner therein provided, which is as follows:

“ An order, made by a judge, out of court, maybe 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.”

No power is here given to the judge to vacate or modify

p. 461

an order previously made by him on an ex parte application.

The provisions of section 112, which permits a judge, in particular instances, to vacate or modify orders previously granted by him, without notice to the adverse party, do not apply to these proceedings, as they relate to orders granted in actions before final judgment. The remedies granted by the statute are denominated special proceedings and are original in their character, and intended as a substitute for an action, in the nature of a creditor’s bill, and should not be dismissed, when properly instituted, except for the most substantial reasons.

I cannot think that the legislature intended to confer upon a judge at chambers, on an ex parte application, the power to dismiss the proceedings, or to make an order effecting the substantial rights of the prosecuting creditor without giving notice of the application.

The order dismissing the proceeding should have been set aside for the reason that it was irregularly, as well as erroneously, granted.

The order appealed from is reversed, and the order dismissing the proceeding is vacated and set aside, with ten dollars costs and disbursements.

All concur.