Keihen v. Shipherd — 24 N.Y. St. Rep. 739

Majority

p. 739

Thomas Keihen, Plt’ff, v. Jacob R. Shipherd, Def’t.

(City Court of New York, Chambers,

Filed March 11, 1889.)

Headnote

'Supplementary proceedings—When not terminated by absence of referee—Code Ciy. Pro., § 8454.

Where an ordei is made in supplementary proceedings appointing a referee and directing the examination of the judgment debtor to proceed at the referee’s office, and on the day appointed the referee fails to appear, his absence does not terminate the proceeding, but it may be resuscitated by an order made in continuation of the proceeding.

An order was made June 12, 1888, requiring the defendant to appear at the chambers of this court for examination as a judgment debtor in supplementary proceedings on June 16, 1888. He appeared in conformity to the order, and the justice presiding made an order appointing a referee, and directing that the examination proceed at the referee’s office on June 21, 1888, at 2 p. m. On the day and at the hour appointed the parties attended at the referee’s office, but the referee failed to appear. The parties thereupon agreed to appear before the referee on June 27, at 2 p. M. They did appear, but the referee was again absent.

p. 740

On July 5, 1888, the referee made an order requiring the defendant to appear and proceed with his examination on July 9, 1888. On that day the parties appeared before the referee. The defendant objected to the power of the referee to issue the order for his appearance, and objected to the light of the creditor to proceed. The referee sustained these objections. The plaintiff now applies to the court for an order directing the defendant to appear and proceed with his examination.

Peckham & Tyler, for motion; J. P. Shipherd, opposed.

The absence of the referee did not terminate the proceeding (Allen v. Starring, 26 How. Pr., 57 ; Brockway v. Brien, 37 id., 270; Stanley v. Lovett, 14 Hun, 412 ; Schanck v. Conover, 56 How. Pr., 437 ), which may be resuscitated by an order made by the justice in continuation of the proceeding. Schanck v. Conover (supra).

That this is the correct view of the practice is evidenced by the phraseology of section 2454 of the Code, which provides how such a proceeding shall be discontinued or dismissed. It does not provide that the absence of the justice or referee shall effect either of these results. The court in Schanck v. Conover (supra) holds that, in such a case, the judgment creditor may either continue the old proceeding or treat that as abandoned, and institute a new one; Chief Justice Daly was of a different opinion, for in Brockway v. Brien ( 37 How. Pr., 270 ) he held that the first proceeding must be finished, or some order made terminating it, before a new one can be instituted. This is certainly the better practice, for it harmonizes with section 2454 (supra), and with the rule that where a statute prescribes the mode of doing an act, or accomplishing a result, it shall only be effected in the manner directed. The evident object of this section (2454) was to settle the practice which had been placed in doubt by prior conflicting decisions. I, therefore, direct that in continuation of the order of June 12,1888, the defendant appear at the chambers of this court for examination on March 18, 1889, at 10 A. M., and that the order of reference heretofore made be henceforth vacated. No costs. _