In re Van Ness

17 A.D. 581, 45 N.Y.S. 576

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1897
• Status: Published

Opinion

Parker, J.:

The order appealed from adjudges Woodruff in contempt for failing to pay over to the sheriff $700, to he applied on an execution issued in favor of the respondent Edward Van Ness, as directed by an order made by Mr. Justice Beekman in proceedings supplementary to execution. The notice of appeal also contains a notice that the appellant “ will bring up for review the order entered herein, made on February 1st, 1897, directing the undersigned to pay over the money therein referred to, and from each and every' part of said order.”. ' ' . '

The order to which Such notice refers is a judge’s order in supplementary .proceedings,' and cannot be reviewed on an appeal to this court. ■ Such an order can only be rev-iewecl in the first instance by the court out -of which the execution was issued upon a motion to vacate or modify it. (Code Civ, Proc. § 2433-.) Nor-can the court, on the appeal from the order adjudging the appellant guilty of contempt in failing to obey the judge’s order directing him- to pay over certain moneys, inquire whether the latter order was' improvidently or erroneously granted.. The .Supreme Court justice who made the order had jurisdiction of the subject-matter and of the parties. Tlie order, therefore, was not void. If it was erroneous,. appellant’s remedy was by Way of a motion to vacate or'-modify it; but so long as it remained in force it was his duty to obey it .and the duty óf the court .to enforce obedience to it. (People ex. rel. Day v. Bergen, 53 N. Y. 404; People ex rel. Cauffman v. Van Buren, 136 id. 252; Daly v. Amberg, 126 id., 490.)

- The order should be affirmed, with ten dollars costs and printing-, disbursements. ' -

Van Brunt, P. J., Rumsby, Williams and Patterson, JJ., concurred.'

Order affirmed, with ten dollars costs-and disbursements.