Vogel v. Ninmark

62 Misc. 591, 116 N.Y.S. 825

• Court: New York Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Marean, J.

This is a motion to punish the defendant for failure to obey an order in supplementary proceedings, made originally by Mr. Justice Stapleton, requiring the defendant to appear and be examined as to his property on August 31, 1908. The defendant not having been served, the order was subsequently altered by another justice by changing August thirty-first to September' twenty-ninth. The latter justice’s initials were written in the margin opposite the alteration to authenticate it. It was served, so altered, on September ninth. The defendant -did not attend. The other justice had no tnore power to change Justice Stapleton’s order than the man in the street. Another justice, after its alteration, could have signed it, making it his own order, but he had no power to alter it. It was no longer, after the alteration, an order of any justice. It was an absolute nullity, and the defendant was under no obligation to obey it. See Code Pro., § 772. Motion denied, with ten dollars costs to the defendant, to be paid by the plaintiff’s attorney to the defendant.

Motion denied, with ten dollars costs to the defendant, to he paid by the plaintiff’s attorney to the defendant.