Ackerly & Gerard Co. v. Partz — 39 N.Y. St. Rep. 17

Majority

p. 17

The Ackerly & Gerard Co., Resp’t, v. Charles Partz, App’lt

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Supplementary proceedings—Order—Title of court.

Section 2434 of the Code of Civil Procedure gives a county judge power to institute proceedings supplementary to execution in an action in the supreme' court in the county to which an execution may he issued, and an order made by a county judge that the defendant appear and make discovery concerning his property was properly entitled as of the supreme court.

Appeal from an order of Queens county court, denying a motion to dismiss supplementary proceedings begun before that court.

George A. Stearns, for app’lt; Charles E. Seward, for resp’t.

—A judgment was recovered by the plaintiff against in the supreme court. The judgment roll was filed in Queens county. The defendant resided in that county and an execution therein directed to the sheriff of Queens county was returned unsatisfied. Upon an affidavit entitled in the

p. 18

supreme court, showing these facts, an order was made, also entitled in the supreme court, that the defendant appear and make discovery concerning his property. The order was made by the county judge of Queens county and the examination was required before him.

The defendant claims that the proceeding is in the supreme court and not before the county judge. By § 2434 of the Code, a county judge has power to institute proceedings supplementary to execution in action in the supreme court in the county to which an execution may be issued. The affidavit was properly made in the supreme court action. The judgment was still in existence, and this proceeding was a special proceeding to enforce its payment

If the application had been made before a judge of the supreme court the title of the judgment would have appeared as it does at present without valid objection. Where application is made to the county judge the affidavit must set out the judgment and the issue of an execution and its return unsatisfied, and that the judgment is unpaid. The power of a county judge in the proceedings is the same as a judge of the supreme court. Code, §§ 348, 349. His orders are reviewed like orders in the supreme court. Code, § 774.

There is no difference between a case of an order in supplementary proceedings and orders in other cases. The general rule is that a county judge may sign certain orders in the supreme court. Code, |§ 354, 435, 440, 472, 556, 606, 862, 872, 889.

If the proceeding was an original one, begun before the county judge, the title would be surplusage. The affidavit and order will be supported by the facts contained in'them.

The order should, therefore, be affirmed, with costs.

Dlemán and Pratt, JJ., concur.