Schenck v. Erwin — 43 N.Y. St. Rep. 862

Majority

p. 862

Mathias Schenck et al., Resp’ts, v. Arthur B. Erwin, Def’t. Francis Erwin, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

Supplementary proceedings—Third party order—Jurisdiction.

A county judge of a county other than that of the debtor’s residence has no authority to grant a third party order. Where such order was granted, and the county judge of the debtor’s residence, before whom supplementary proceedings had been instituted, subsequently made an order directing such third party to pay over to a receiver, Held, that no jurisdiction over such third party had been acquired, and that such order was unauthorized.

Appeal from an order made by the county judge of Chemung -denying motion that an order made by said judge requiring appellant to pay the receiver appointed in supplementary proceedings $129 out of a legacy be. vacated. Plaintiff recovered a judgment against Arthur B. Erwin before a justice of the peace in Steuben county, and a transcript was filed and judgment docketed in the clerk’s office of Chemung county, and an execution was issued to the sheriff of that county and returned unsatisfied. Supplementary proceedings were instituted before the county judge of Chemung county, and defendant Arthur B. Erwin was examined, he then being a resident of Ghemung county. Subsequently plaintiffs obtained an order from the county judge of

p. 863

Steuben county for the examination of Francis Erwin, the appellant, concerning the property of.the defendant, and on the examination of Francis and the previous examination of defendant, the county judge of Chemung made an order requiring Francis, to pay to the receiver $129, the amount of the judgment and. costs in the supplementary proceedings.

Spencer & Mills, for app’lt; Leslie W. Wellington, for resp’ts.

On February 12, 1891, the county judge of Chemung county made an order requiring the appellant to pay to the receiver herein the sum of one hundred and twenty-nine-dollars. The single question in-this case is, whether the judge-making that order had jurisdiction. If he had no jurisdiction to-make the order, then he erred in refusing to vacate it. He acquired no jurisdiction over Francis Erwin, who was examined as; a third person having property of the judgment debtor, under or by virtue of the order issued by the Steuben county judge. -The county judge of Steuben county had no authority to issue such an order. It could be issued only by the county judge of Che-mung county. Merrill v. Allin, 46 Hun, 623 ; 13 St. Rep., 20 . The county judge of the latter county made no such order,, hence there was never any valid order to examine the appellant, as such third person. There was an attempt to institute the: • special proceeding provided for by subdi 3 of § 2432 of the Code, but it failed. There was no proceeding -under that provision of the Code in which the county judge of Chemung county could, make any valid order whatever.

Nor do I think that in the proceedings instituted before him under snbd. 1 of § 2432 he in any way acquired jurisdiction of the appellant or jurisdiction to make the order requiring him to-pay the sum named to the receiver. The appellant was not even, examined under the order in that proceeding. He was examined only in a proceeding commenced before another county judge, who had no authority whatever to entertain it, and neither judge obtained any jurisdiction over the person of the appellant.

These views lead me to the conclusion that the order appealed, from should he reversed.

Upon reflection I yield to the views expressed in the foregoing opinion, and vote for a reversal.

Order reversed, with ten dollars costs and disbursements.

The cases of Cooman v. Board of Education of Rochester, 37 Hun, 96 , and Woodman v. Goodenough, 18 Abb., 265 , sustain the proposition that the county judge of Chemung county had no jurisdiction to make the order complained of. See also Riddle & Bullard Suppl. Pro., 3d ed., 320. The appellant was not a party to the proceeding before that officer, and did not appear therein. The service of notice by the plaintiffs’ attorney could not take the place of a third party order.

Besides a case was not made that justified an order requiring the appellant to pay. It was not shown that he had money in his hands that belonged to the defendant. It may be that he owed

p. 864

.the defendant a portion of his legacy, or had in his hands a mortgage from which at some future time he would have the means to pay the legacy, but that was not enough. West Side Bank v. Pugsley, 47 N. Y., 368 .

1 think, therefore, that the order appealed from should be .reversed.