Moschell v. Boor — 50 N.Y. St. Rep. 238

Majority

p. 238

Josephine Moschell, Resp't., v. Francis Boor, App'lt.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Supplementary proceedings—Receiver—Appeal.

The appointment of a receiver in proceedings supplementary to execution is an order made in the course of such proceedings and is reviewable only under § 2433 of the Code. Such an order is not appealable.

Appeal by the defendant, Francis Boor, from an order of the county judge of Monroe county, entered August 22, 1892, appointing a receiver of the defendant’s property in proceedings supplementary to execution.

John R. Fanning, for app’lt;

Q. Van Voorhis, for resp’t

On the 4th day of December, 1891, the plaintiff recovered a judgment in the supreme court against the defendant for the sum of ten thousand and sixty dollars and twenty-seven cents, upon which an execution was issued and subsequently returned unsatisfied; and thereupon proceedings supplementary to execution were instituted in behalf of the judgment creditor against the debtor, before the county judge of Monroe county. A reference- was ordered, and upon the coming in of the evidence taken before the referee the county judge appointed a receiver of the defendant’s property, and from that order this appeal is taken.

We think that this order is not appealable. Section 2433 of the Code of Civil Procedure declares: “ Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows:

“ 1. An order made by a judge out 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.” The appellant’s counsel calls attention to §§ 1347 and 1348 of this Code to be considered in connection with § 2433. But §§ 1347 and 1348 refer to orders made in actions, as distinct from special proceedings. Proceedings supplementary to execution are by the Code declared to be special proceedings.

p. 239

The case of Peo. ex rel. Grant v. Warner, 51 Hun, 53 ; 20 St. Rep., 573 , arose upon a proceeding to punish a witness for contempt for not appearing before the referee in supplementary proceedings, but proceedings for contempt are themselves special proceedings, independent of the action or special proceeding in which they may be taken, and an order made therein cannot be regarded as an order made in the course of the original proceedings.

The appointment of a receiver of a debtor’s property in proceedings supplementary to execution is, on the other hand, an order made in the course of such proceedings, and consequently is reviewable only under § 2433 of this Code.

It follows that the appeal should be dismissed.

Appeal dismissed, with ten dollars costs and disbursements.

Dwight, P. J., and Lewis, J., concur.