(dissenting.) Pardee v. Tilton, 20 Hun, 76; affirmed, 83 N. Y. 623, expressly held that, under section 292 of the Code of Procedure, it was irregular for a justice of this court to issue an order for the examination of a judgment debtor in a county outside of the district wherein the judge resided, and in which there was no provision “requiring the evidence and proceedings had before the referee” to be returned to the justice making the order. In delivering the opinion in that case, quotation was made from section 292 of the Code of Procedure as follows: “All subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides to be specified in the order.” Following that quotation, the opinion continues: “The direction should therefore have been that the referee report the testimony and proceedings to the justice designated in the order before whom the subsequent proceedings were to be had, and not to the justice who made .the order. ” Pardee v. Tilton was decided at a general term in *796the first department in January, 1880. In Shults v. Andrews, 54 How. Pr. 376, decided at a special term held by me, the provisions of section 292, already quoted, came under consideration, and it was there said in the opinion: “This clause contains, a limitation in respect to the jurisdiction of justices who grant such orders.- * * * But debtors are not required to appear in subsequent proceedings before a justice residing out of the judicial district in which the debtor resides. The right to order him to appear in subsequent proceedings out of the district is taken away. The provision also requires the order to specify ‘ some justice in the judicial district where th,e judgment debtor resides.’ Such specification is imposed by the statute.” The provision in section 292 of the Code of Procedure, to which we have already referred, is omitted from section 2434 of the Code of Civil Procedure, and the latter section provides that “either special proceeding may be instituted before a judge of the court out of which * * * the execution was issued.” This language is broad, and confers, in terms, upon the judges of the court out of which the execution issued power and jurisdiction over special proceedings instituted before them in cases where the execution was issued out of the court in which they are judges. Following this general language is a provision for a class of cases “where the execution was issued out of a court other than the supreme court;” and after enumerating the class, and providing for •certain facts being shown by an affidavit, it is provided that, if the -facts -enumerated in the section are thus shown, “the special proceedings may be instituted before a justice of the supreme court.” Then follows the words: “In that case, if he does not reside within the judicial district, embracing the county to which the execution was issued, the order made or warrants issued by him must be returnable to a justice of the supreme court, residing in .that district, or the county judge, or the special county judge of that or an adjoining county, as directed in the order or warrant.” We think the words “in that case” refer only to the words found in the second provision of the statute conferring power upon justices of the supreme court in the exceptional cases enumerated, to-wit, where the execution was issued out of a court other than the supreme court. And it is made to appear by affidavit “that each of the judges, before whom the special proceeding might be instituted, as prescribed in this section, is absent from the county, or, for any reason, unable or disqualified to act. ” Such is the interpretation placed upon the section by Vann, J., in Blanchard v. Reilly, 11 Civil Proc. R. 278, and the views expressed in that opinion meet with our approval. In delivering the opinion in Browning v. Hayes, 11 Civil Proc. R. 223, 41 Hun, 382, Barnard, P. J., observed: “Section 2434 of the Code of Civil Procedure is not very plain. It can be gathered therefrom, by a very strict reading, that it is only in cases where a supreme court justice makes the order in place of other inferior judges, that a provision must be inserted making the order returnable before a supreme court justice or other local magistrate of the judicial district where the order is to be executed.” We prefer this portion of the opinion as a correct interpretation Of the section to the general expressions used by him in the latter part of his opinion, in which he reaches a contrary interpretation of the section under consideration. In a note to that case it appears that Mr. Justice Bartlett entertained and expressed substantially the same views as are found in the opinion of Vann, J., in Blanchard v. Reilly, supra; and that result seems to be approved by Kennedy, J., and Smith, J., the first of whom made the order in question, and the second approved of the same, as appears by his memorandum delivered at the Schuyler special term found in the appeal book before us; Merrill v. Allin, 46 Hun, 623, does not aid the contention of the appellant. In that case the judgment was recovered in the court of common pleas in the city and county of New York, and an execution was issued thereon to the sheriff of that county, that being the county where the judgment debtor resided; and subsequently, a transcript of the judgment' *797was filed in Ontario County, and an execution was issued to that county; and. it was alleged that certain parties held property of the judgment debtor, and upon an affidavit to that effect, application was made to the county judge of Ontario county; and it was finally held in that case that the county judge had not jurisdiction to entertain the proceedings. We are of the opinion that the-order appealed from should be affirmed. Order affirmed, with $10 costs and disbursements.