Happel v. Lippe

Scott, J.

The judgment debtors appeal from an order appointing a receiver of their property in proceedings supplementary to execution. The proceeding was begun by the issuance of an order for the examination of a third party, the city of Hew York; and the point upon which the appellants rely is that the third party order itself was unauthorized and void because the affidavit upon which it was issued failed, as it is said, to state the necessary facts to show that the City Court, in which the judgment was recovered, had jurisdiction to render the judgment. It has been held in a number of cases that, while proceedings supplementary to execution are special proceedings, they are not to be regarded as wholly independent of and unconnected with /the action in which judgment was rendered. Graves v. Scoville, 12 Civ. Pro. 165; Hyatt v. Dusenbury, 12 id. 152. Under this conception of the nature of the proceedings, it is at least doubtful'if it is necessary to set forth the jurisdictional facts sustaining the judgment. It is not, however, necessary to consider that question at present, for the order appointing the receiver is not appealable. Although described in the notice of appeal as an order of the court, it is,, in fact, the order of a judge. Section 2433, Code of Civil Procedure, forbids a direct appeal from such an order. The judgment debtors should have made a motion, on notice, either to the judge who signed the order, or to the court, to vacate that order; and, if that motion had been denied, an appeal would then lie. Palen v. Bushnell, 68 Hun, 554; Matter of Van Ness, 17 App. Div. 581.

Bischoff and Fitzgerald, JJ., concur.

Appeal dismissed, with ten dollars costs and disbursements.