In re the Supplementary Proceedings v. Glenny

54 Misc. 36, 103 N.Y.S. 499

Opinion

Giegerich, J.

It is conceded by the attorney for the judgment creditor that no orders have been entered upon the decisions dismissing the two former orders for the judgment debtor’s examination. While the failure to enter such orders may not formerly have been a valid objection to the third order, which is now sought to be vacated on the ground of the pendency of the prior proceedings (Shults v. Andrews, 54 How. Pr. 380), under the present practice (Code Civ. Pro., § 2454) the proceedings can only he discontinued or dismissed by an order. Rothschild v. Gould, 84 App. Div. 196; Riddle & Bullard Supp. Pro. (3d ed.) 172 et seq. Since such orders were not entered new proceedings could not be instituted. Gaylord v. Jones, 7 Hun, 480; Keiher v. Shipherd, 16 Civ. Pro. 183, and cases there cited; Riddle & Bullard Supp. Pro. (3d ed.) 484. The last order obtained for the defendant’s examination must therefore be vacated.

Motion granted, without costs.