Ward v. Stoddard

Brady, J.

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, 1903, in the office of the clerk of Hew 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 Schmuclc, a justice of the City Court of the city of Hew 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 ^o 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. LaFetra, 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, 19Í0, and that said justice thereupon wrote upon the margin opposite said date the initials E. B. L. J. C. C. to authenticate sa;id 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.

For the purposes of this appeal it may be assumed as fact that Justice Edward B. LaFetra of the City Court of the city of New York was presiding at chambers of said court, the place mentioned in the order of Justice Schmuck, on the 16th day of August, 1910, at ten o’clock in the forenoon and wrote his initials opposite the alteration in the date of the original order of Justice Schmuck. The question then arises whether the order of Justice Schmuck was thereby legally extended, or, in other words, whether one judge possesses the right in such circumstances to alter or extend the order of another judge.

It is quite true that for many years such practice was followed in -all the courts having jurisdiction of supplementary proceedings and had never been questioned.

In Vogel v. Ninmark, 62 Misc. Rep. 591, however, decided at Special Term in the Second Department of this court in Mlareh, 190-9, it was held that such an alteration was unauthorized and'the order a nullity. The correctness of this determination was discussed and criticised by the Special Term of the City Court of the city of New York, in a very interesting opinion written in Bridges v. Koppelman, 63 Misc. Rep. 27, in April, 1909. As matter of fact the authority of the former case has been recognized by all justices of this court sitting in Special Term, Part II, in this department, and alterations are now made only by the justice who signed the original order. Authority for such extension by one judge of an order made by another is alleged to be found in section 26 of the Code of Civil Procedure which provides “ that in 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.” It may he true that the proceeding was instituted by the signing of the order of Justice Schmuck, and that proposition was ably argued by the justice writing’ the opinion in Bridges v. Koppelman, supra ; but I doubt that the mode adopted for the continuance by initialing, simply, was legal. A proper service of the order would require the exhibition of the original with the judge’s signature thereon, and, as the order so served would contain the direction of two judges, the signatures of both judges must necessarily appear thereon with sufficient words to indicate the intent of the judge making the extension.

We are inclined, however, to follow the authority of Vogel v. Ninmark, supra ; and, as the order directing the defendant to appear for examination was a nullity when served, a discussion of the many other points raised by the appellant becomes unnecessary.

Order reversed, with ten dollars costs and disbursements and motion denied.

Gavegak, J., dissents.