Opinion
April 7, 1911.
William C. Relyea, for the appellant.
Howard A. Sperry, for the respondent.
Appeal by a judgment creditor from a determination of the Appellate Term which reversed an order of the chief justice of the City Court adjudging the judgment debtor guilty of a contempt and punishing him therefor. The facts are succinctly and accurately stated in the opinion of Mr. Justice BRADY at the Appellate Term, as follows: "A judgment was rendered on January 24, 1902, for the sum of forty-six dollars and six cents in favor of the plaintiff against this defendant in the Municipal Court for the then tenth district of Manhattan; the judgment was docketed on January 29, 1902, in the office of the Clerk of New York County and an execution issued thereon out of the Supreme Court by said Clerk on February 6, 1902. On August 9, 1910, an order was made by Hon. PETER SCHMUCK, a Justice of the City Court of the City of New York, requiring the defendant to appear before him, one of the Justices of said Court at Chambers thereof, etc., on the 16th day of August, 1910, at ten o'clock in the forenoon of that day, etc., to submit to examination in proceedings supplementary to execution. On September 13, 1910, the defendant judgment debtor was personally served with a paper which was in all respects a copy of said order except that the date `August 16th,' was stricken out and the date `September 14th,' substituted therefor; and in the margin of the paper opposite said change were written the letters `E.B.L.J.C.C.' It is claimed by the respondent that the original order of Justice SCHMUCK was presented to Hon. EDWARD B. LA FETRA, a Justice of the City Court, sitting at Chambers on August 16, 1910, at ten A.M., for extension, and that the return date was altered from August 16, 1910, to September 14, 1910, and that said Justice thereupon wrote upon the margin opposite said date the initials E.B.L.J.C.C., to authenticate said change. The defendant failed to appear for examination or otherwise on September 14, 1910, and his default was noted. Thereafter on September 30, 1910, an order to show cause why said debtor should not be punished for contempt was procured; and on the return day, October 6, 1910, the debtor appeared specially by counsel and objected to the jurisdiction of the court to make the order. The Hon. EDWARD F. O'DWYER, Chief Justice of the City Court, presiding at Chambers upon the return of said order to show cause, after due deliberation, adjudged the debtor in contempt and fined him the amount of the judgment and interest thereon, with twenty dollars costs, aggregating ninety dollars and one cent and made the order from which the judgment debtor appeals." ( 70 Misc. Rep. 506.)
It is said, and for the purpose of this appeal will be assumed, that Justice LA FETRA was presiding at the chambers of the City Court and on August 16, 1910, wrote his initials opposite the alteration in the date of the original order of Justice SCHMUCK. This appeal presents two questions as to which, as it appears, a difference of opinion and of practice has obtained which, it is considered, should be definitely determined. The first question is whether when an order in proceedings supplementary to execution has been made by one justice requiring a judgment debtor to appear for examination, and such order has not been served, another justice may validly change the date fixed for the debtor's appearance. This question has been answered in the negative by Mr. Justice MAREAN of the Supreme Court ( Vogel v. Ninmark, 62 Misc. Rep. 591) and in the affirmative by Justice GREEN of the City Court ( Bridges v. Koppelman, 63 id. 27). A majority of the justices of the Appellate Term have expressed their concurrence with the views expressed by Mr. Justice MAREAN. With this view we also concur. Proceedings supplementary to execution are purely statutory and no court has inherent jurisdiction respecting them. They are regulated by title 12 of chapter 17 of the Code of Civil Procedure, embracing sections 2432 to 2471 inclusive. The proceedings are of three kinds (§ 2432), and each is denominated a special proceeding (§ 2433). Either special proceeding may be instituted before a judge of the court, out of which, or the county judge, the special county judge, or the special surrogate, of the county to which the execution was issued; or where it was issued to the city and county of New York, from a court other than the City Court of that city, before a justice of the Supreme Court for that city and county. "Where the judgment upon which the execution was issued was recovered in a District [Municipal] Court of the City of New York, either special proceeding shall be instituted before a justice of the City Court of the City of New York." (§ 2434.) The institution of the proceeding in a case like the present consists of the presentation to the judge or justice of proof of the requisite facts "by affidavit or other competent written evidence," and the granting of an order requiring the debtor to attend and be examined concerning his property at a time and place specified in the order. (§ 2435.) Since the jurisdiction to entertain the proceeding and issue such an order is confided expressly to the judge or justice, and not to the court of which he is a member, the order to be obtained must be a judge's order, and not a court order. The order must be signed by the judge or justice, and not by the clerk, because when served, such service must be made by exhibiting the original order under the hand of the judge making it. (Code Civ. Proc. § 2452.) It seems to me to be entirely clear that no other judge has authority to alter or amend an order so issued and signed and such is the clear rule laid down in section 2433 which provides that "an order, made by a judge, out of court, may be vacated or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued." It is not questioned, as I understand the briefs and the opinion in Bridges v. Koppelman ( supra), that if this section stood alone, there could be found no authority for one judge or justice to alter the order of another judge or justice. It is contended, however, that in this department such authority is conferred by section 26 of the Code of Civil Procedure, which reads as follows: "When one judge may continue proceedings commenced before another. In the counties within the first and second judicial districts, a special proceeding instituted before a judge of a court of record, or a proceeding commenced before a judge of the court, out of court, in an action or special proceeding pending in a court of record may be continued from time to time, before one or more other judges of the same court, with like effect, as if it had been instituted or commenced before the judge who last hears the same." (See, also, §§ 53, 2462.) The argument is, as I understand it, that the special proceeding is instituted when the order for examination has been signed by a judge or justice and that thereafter, by virtue of the section last quoted, any other judge or justice of the same court may do any act in continuation of the special proceeding, which could have been done by the judge or justice who signed the original order, including the act of vacating or modifying it. This, I think, places an entirely wrong construction upon the word "continued" in section 26. The section was doubtless framed in view of the large volume of judicial work in the First and Second Departments which leads to the sitting of the justices in rotation in the different parts of the court, and the purpose of the section will be fully met, and as we consider the intended effect given to it, by holding that when a special proceeding has been instituted before one judge or justice the successive steps need not be taken by the same judge or justice, but may be taken by another. Thus in supplementary proceedings the next step after service upon the debtor of the order to appear and be examined is to administer an oath to him and cause him to be examined as to his property. In this department, or the second, the probability is that on the return day a different justice from the one who signed the order will be found to be presiding in the place at which the debtor has been summoned to appear. In such a case, under section 26, and the other sections above cited, the justice who happens to be sitting will be authorized to "continue" the proceeding by administering the oath to the debtor. But there is nothing in section 26 to justify one justice in mutilating the order of another justice by changing the date or place upon or at which the judgment debtor is required to appear. Such an order, when so mutilated, becomes a nullity. It is neither the order of the justice who first signed it, nor of him who undertook to alter it. If it is found to be impossible to serve an order within the time prescribed the justice who signed it may undoubtedly amend it by altering the return day or the place at which the debtor is required to attend (Code Civ. Proc. § 772), but if it is necessary to apply to another justice he can do nothing but issue a new order of his own.
The second question presented on this appeal is whether or not a justice other than the justice who signed the order in supplementary proceedings may punish the debtor as for a contempt for disobeying the order. The doubt arises under the provisions of section 2457 of the Code of Civil Procedure, relating to supplementary proceedings, which provides that: "A person who refuses, or without sufficient excuse neglects, to obey an order of 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." If this section stood alone it would be clear that no judge except the one who made the disobeyed order would have jurisdiction to punish as for a contempt. If he were unable to act, jurisdiction would rest only with the court out of which the execution issued, which in case of an execution issued upon a judgment of the Municipal Court is the Supreme Court. The enforcement of orders in supplementary proceedings, by punishment as for a contempt is, however, but one of the steps in the proceeding and may fairly and reasonably be deemed to be a "continuation" of the proceeding instituted by the issuance of the order, and we think that this is one of the cases to which section 26 ( supra) was intended to apply. Such a construction serves to carry into effect the evident purpose which sections 26, 53 and 2462 were designed to effect. We are, therefore, of opinion that a justice other than the one who signed the disobeyed order may entertain proceedings to punish the disobedient debtor as for a contempt. But since in this case the original order requiring the debtor to attend and be examined was not a valid order when served upon him, he was guilty of no contempt in refusing to obey it.
The determination of the Appellate Term must be affirmed, with costs.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.