Opinion
February, 1906.
Gustavus A. Rogers, for appellants.
Max Brown, for respondent.
The judge of the City Court, who made the order from which this appeal is taken, had jurisdiction to entertain the proceedings supplementary to execution, notwithstanding the original order had been granted by another judge. Code Civ. Pro. § 26.
Assuming, therefore, that the proceedings were regular, said judge had power to take the default of the debtor and, therefore, jurisdiction to entertain a motion to open the default and, upon a denial of said motion, to hear a reargument and nullify his previous determination, by opening the default and setting down the examination for another day.
The motion to open the default of the judgment-debtor was based upon an order to show cause granted by the same judge who had taken the default and who had denied the motion to open it, and the fact that the order to show cause was made returnable "before me or one of the justices of this court, at a Special Term chambers thereof," etc., did not affect the validity of the proceedings, as the words "one of the justices of this court, etc.," may be regarded as surplusage.
In Bitting v. Vanderburgh, 17 How. Pr. 81, cited by the appellants, the motion was made returnable "at a Special Term of this court" and not before the justice who had entertained original jurisdiction of the special proceedings.
The point here raised, that the order opening the default is erroneous in form in that it appears to be a court instead of a judge's order, is well taken; and to that extent the order should have been resettled.
The action of the learned judge in refusing to resettle the order in the form proposed will not, however, be disturbed.
The order opening the default will be modified so as to be in form a judge's order and, for that purpose, the matter is remitted to the justice who decided the motion; and, as thus modified, the order will be affirmed, without costs.
Appeal from the order denying a motion to resettle, known as appeal No. 2, will be modified to the extent that the costs therein allowed may be offset against the judgment by plaintiffs, instead of being absolute.
Appeal No. 3 presents the situation which fully justified the entry of the order made by the learned justice. It was entirely within the exercise of his discretion to deny the motion to adjourn the examination, and no abuse of the exercise of that discretion is apparent. That order is affirmed, with ten dollars costs and disbursements to respondent, to be offset against plaintiffs' judgment.
Appeal No. 4 is from an order of the Special Term denying a motion to resettle the order opening the judgment-debtor's default made by a justice of that court.
If, as plaintiffs' counsel contends, the order sought to be resettled was a judge's order, then it was improperly made returnable before the Special Term, and the court was justified in denying the motion; and, if the Special Term had the power to entertain it, then the exercise of its discretion should not be here disturbed.
The order is affirmed, with ten dollars costs to respondent, to be offset against plaintiffs' judgment.
SCOTT and GIEGERICH, JJ., concur.
Order opening default modified and, as thus modified, affirmed, without costs. Appeal No. 2, order modified. Appeal No. 3, order affirmed, with ten dollars costs and disbursements to respondent, to be offset against plaintiffs' judgment. Appeal No. 4, order affirmed, with ten dollars costs to respondent, to be offset against plaintiffs' judgment.