Hyperlawhypertext legal database Finck v. Mannering 53 N.Y. Sup. Ct. 323

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Finck v. Mannering

53 N.Y. Sup. Ct. 323 Court N.Y. Gen. Term English

Judges Hardin, P. J., and Martin, J., concurred.

Delivered by Follett, J.:

Contents

Majority

p. 323
AUGUST FINCK, Respondent, v. GEORGE A. MANNERING, Appellant.

Headnote

Appeal from an order of a county judge, in supplementary proceedings, must be reviewed,, in the first instance, by the court out of which, the execution issued.
An order of a county judge adjudging a defendant in contempt for disobeying an order of tbe county judge, which required the defendant to be examined in proceedings supplementary to an execution issued out of the Supreme Court, is reviewable, in the first instance, only by “ the court out of which the execution was issued,” upon a motion to vacate or modify the order.
An appeal, taken from the order of the county judge to the General Term, will be dismissed,- although an order made by a court, on a motion to vacate or modify such order, may be reviewed by it on appeal.
Appeal from an order granted by the Cortland County Judge punishing the defendant for contempt of court in failing to appear before a referee and to submit to an examination, as a judgment debtor, in proceedings supplementary to execution.
William P. Tuttle, for the appellant.
FT. E. Miller, for the respondent.

Appeal from an order of a county judge adjudging defendant in- contempt for disobeying an order of the county judge which required defendant to be examined in proceedings supplementary to an execution issued out of the Supreme Court.

p. 324
' This order was made in the course of supplementary proceedings (Code Civil Pro., § 2457) and is reviewable in the first instance, only by “the court out of which the execution was issued,” upon a motion to vacate, of modify the order. (Code Civil Pro., § 2433 ; Chamberlain v. Gallup, 25 Hun, 318 .) An order made by a court oh such a motion may be reviewed on appeal by the General Term.

The order reviewed in Hart v. Johnson ( 43 Hun, 505 ) was granted by a Special Term. The order reviewed in Baker v. Herkimer ( 43 Hun, 86 ) was granted by a County Court (not by a county judge) and the proceeding was supplementary to an execution issued out of the County Court upon a judgment entered upon a transcript of a justice’s judgment, and the order was appealable under the second subdivision of section 2433.

The appeal should be dismissed, with ten dollars costs and printing disbursements.

Hardin, P. J., and Martin, J., concurred.

Appeal dismissed with ten dollars costs including disbursements.