Ackerly & Gerard Co. v. Partz

New York Supreme Court

Ackerly & Gerard Co. v. Partz

14 N.Y.S. 466, 39 N.Y. St. Rep. 17, 1891 N.Y. Misc. LEXIS 2054

DecidedMay 11, 1891

StatusPublished

This text of 14 N.Y.S. 466 (Ackerly & Gerard Co. v. Partz) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ackerly & Gerard Co. v. Partz, 14 N.Y.S. 466, 39 N.Y. St. Rep. 17, 1891 N.Y. Misc. LEXIS 2054 (N.Y. Super. Ct. 1891).

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Opinion

Barnard, P. J.

A judgment was recovered by the plaintiff against the defendant 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 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.'-They differ was made by the county judge of Queens county, and the eXaininattpp/iyas required before him. The defendant claims that the proeeeding4s>tn8the- supreme court, and not before the county judge. By section 2434 of the Code, a county judge lias power to institute proceedings supplementary to execution in an 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 spdbtaloprbceeding to enforce its payment. If the application had been itiad'eí; befóla judge of the supreme-court, the title.of the judgment would have appeared as it does at present, without valid obj.ec[467]*467tian. AVhere 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 reversed 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 county judges may sign certain orders in the supreme court. Code, §§ 354, 433, 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. All concur.

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Barnard, P. J.

A judgment was recovered by the plaintiff against the defendant 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 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.'-They differ was made by the county judge of Queens county, and the eXaininattpp/iyas required before him. The defendant claims that the proeeeding4s>tn8the- supreme court, and not before the county judge. By section 2434 of the Code, a county judge lias power to institute proceedings supplementary to execution in an 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 spdbtaloprbceeding to enforce its payment. If the application had been itiad'eí; befóla judge of the supreme-court, the title.of the judgment would have appeared as it does at present, without valid obj.ec[467]*467tian. AVhere 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 reversed 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 county judges may sign certain orders in the supreme court. Code, §§ 354, 433, 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. All concur.

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Bluebook (online)

14 N.Y.S. 466, 39 N.Y. St. Rep. 17, 1891 N.Y. Misc. LEXIS 2054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ackerly-gerard-co-v-partz-nysupct-1891.