Opinion
September Term, 1902.
Mark Cohn and John H. Dugan, for the appellant.
Edgar T. Chapman, Jr., for the respondents.
The respondents' judgment was obtained in the Supreme Court. In supplementary proceedings, "Where it appears from the examination or testimony taken in a special proceeding, * * * that the judgment debtor has in his possession or under his control money * * * belonging to him, * * * the judge by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, * * * make an order directing the judgment debtor * * * immediately to pay the money * * * to the receiver." (Code Civ. Proc. § 2447.)
"A person who refuses or without sufficient excuse neglects to obey an order of a judge or referee, * * * or an oral direction given directly to him by a judge or referee, * * * may be punished by the judge or by the court out of which the execution was issued as for a contempt." (Code Civ. Proc. § 2457.)
The order of October 5, 1901, appealed from purports to be an order of the County Court of Albany county granted at a Special Term thereof. The respondents' attorney entered the order and gave notice of entry to appellant's attorney, describing the order in his notice as "an order of the County Court duly granted."
It seems to have been intended as a County Court order and it has been treated as such by the parties. As a County Court order it was unauthorized.
Orders reversed, with ten dollars costs and disbursements.
PARKER, P.J., concurred; SMITH, J., concurred in result; KELLOGG and FURSMAN, JJ., dissented.
Orders reversed, with ten dollars costs and disbursements.