Opinion
May, 1895.
James P. Niemann, for appellant.
Philip Carpenter ( Jonathan C. Ross, of counsel), for respondent.
Defendant, a judgment debtor, appealed to this court from an order of the General Term of the City Court of New York, affirming an order made in supplementary proceedings whereby it was directed that he "pay the sheriff the amount of the judgment against him, and in default thereof that a precept of commitment issue."
Upon that appeal we affirmed the order in so far as it directed payment to the sheriff and reversed so much of it as authorized the commitment. Blake v. Bolte, 10 Misc. 333; 31 N.Y.S. 124. The record shows that the appellant appeared in the court below in active opposition to the granting of the order, and our determination proceeded upon the merits.
A motion for reargument was granted in order that a point of law not raised upon the appeal, to wit, the question whether that portion of the order which directed payment to the sheriff was appealable to this court, might be considered; the appellant contending that if no appeal could lie from so much of the order, its total invalidity would result from our reversal of the remaining portion. Without discussing this last aspect of the situation, we are clearly of the opinion that the order was appealable in its entirety.
An appeal lies to this court from an order of the City Court of New York, after actual determination by the General Term, which affects a substantial right (Code Civ. Proc. § 3191, subd. 3), and such an order is appealable when made "upon summary application after judgment." Peetsch v. Quinn, 12 Misc. 61. An order directing payment by a judgment debtor is an order "affecting a substantial right," and so has been held to be appealable to the General Term of the Supreme Court when made in a case originating in a Justice's Court. Code Civ. Proc. § 1342; Code Proc. § 344; Crounse v. Whipple, 34 How. Pr. 333.
An appeal lies to the Court of Appeals from a "final order affecting a substantial right made * * * upon summary application in an action after judgment" (Code Civ. Proc. § 190, subd. 3; Code Proc. § 11, subd. 3), and, such being the rule, an order similar to that before us was held appealable in Locke v. Mabbett, 2 Keyes, 460, where it was said by DAVIS, Ch. J., "The order is absolute, and compliance can be enforced against her by process to punish her as for a contempt. I am clearly of the opinion, therefore, that she can be heard in opposition to the order."
The case of Wolf v. Buttner, 6 Misc. 119, cited by appellant, is certainly not opposed to our conclusion. The order in that case was held to be in its nature appealable, but the decision turned upon the fact of the defendant's default of appearance. Such an element was not in this case.
Neither upon principle nor authority was the defendant required to disobey the absolute direction in this order and suffer the resulting penalty, to the end that he might be heard upon appeal ( Locke v. Mabbett, supra); by its terms the matter was closed, and it is not to be viewed as interlocutory. Wolf v. Buttner, supra; Whitfield v. Broadway S.A.R. Co., 16 Daly, 288.
It results from these views that our original determination is to remain undisturbed.
The order appealed from should, therefore, be affirmed in part and reversed in part in accordance with the opinion heretofore filed, with costs of reargument and printing disbursements to respondent.
DALY, Ch. J., and PRYOR, J., concur.
Order affirmed in part and reversed in part in accordance with former opinion, with costs of reargument and printing disbursements to respondent.