Majority
p. 556William Palen, Rec'r, App'lts, v. Adelaide E. Bushnell et al., Resp'ts. (Supreme Court, General Term, First Department, Filed April 14, 1893.)
Headnote
Supplementary proceedings—Appeal.An appeal will not lie from an order made by a judge out of court in supplementary proceedings; if a review of such order is desired a motion to vacate such order should be made, and from the order made on such motion an appeal will lie.
Appeal from an order appointing in proceedings supplementary to execution one Adolph Bierck, Jr., receiver of all the debts, property, etc., of the appellant William Palen, as receiver of Henry Bange, the judgment debtor.
W. G. Holbrook, for app’lt'; H. M. Whitehead, for resp’ts.
The order appealed from was an order made by a judge out of court, and not by the court, under the title of the Code relating to proceedings supplementary to execution. By § 2433 it is provided that an order made in the course of'a proceeding can be reviewed only as follows: First, 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. If the appellants,, wished tq review the order of Justice' Beach they should have made a motion, on notice either to Justice
p. 557
Beach or to the court, to vacate that order, and from the order granted on that motion an appeal would lie; but we think no appeal could be taken until such motion was made. The appeal must, therefore, be dismissed, with ten dollars costs and disbursements.
Tan Brunt, P. J., O’Brien and Ingraham, JJ., concur.