The appeal book shows that the defendant William H. Burr confessed judgment, January 9, 1895, to- Euphemia 0. Burr, for $2,000 and costs, and that in supplementary proceedings founded thereon James I. Delany was appointed receiver of the defendant’s property January 14, 1895.
The plaintiff, a prior judgment creditor, instituted supplementary proceedings against the defendant December 8, 1894, and the confession' of judgment by the 'plaintiff to Euphemia 0. Burr was evidently intended by the parties thereto to supersede any application that might be made in *639the plaintiff’s action looking towards the appointment of a receiver, and to secure an appointment agreeable to the defendant.
It does not appear that any notice of the application to appoint Delany as receiver Was ever served on the plaintiff, and its proceeding being pending at the time, this omission is a defect.
For this reason, and those assigned by the court below, the order appealed from must be affirmed, with costs.
Newburger and Van Wyck, JJ., concur.
Order affirmed, with costs.