Fiss v. Haag

75 A.D. 241, 78 N.Y.S. 1

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Chase, J.:

The respondents’ judgment was obtained in the Supreme Court. In supplementary proceedings, “ Where it appears from the examination or-testimony taken in a special proceeding, * * "x" that the judgment debtor has in his possession or under his control money * - belonging to him, * * * the judge by whom the order or warrant was granted; or to whom it is returnable, may, in his discretion, * * * make an order directing the judgment debtor * * * immediately to pay the money * * * to the receiver.” (Code Civ. Proc. § 2447.)

“ A person who refuses or without sufficient excuse neglects to obey an order of a judge or referee, * * * or an. oral direction given directly to him by a judge or referee, * * * may be punished by the judge or by the court out of which the- execution was issued as for a contempt.” (Code Civ. Proc. § 2457.)

The order of October 5, 1901, appealed from purports to be an order of the County Court of Albany county granted at a Special Term thereof. The respondents’ attorney entered the order- and gave notice of entry to appellant’s attorney, describing the order in his notice as “ an order of the County Court duly granted.”

It seems to have been intended as a County Court order and it has been treated as such by the parties. As a County Court order it was unauthorized.

Orders reversed, with ten dollars costs and disbursements.

Pabkbb, P. J., concurred ; Smith, J., concurred in result; Kellogg and Fubsmah, JJ., dissented.

Sas^s DETERMINED IN THE SECOND DEPARTMENT IN THE' APPELLATE DIVISION, &jclcftje£, 1902.