Opinion
November, 1915.
Steiner Petersen (Joseph H. Kahan, of counsel), for motion.
Samuel A. Langfud for defendant.
This motion has been referred to me for decision, for the reason that the order hereinafter referred to was issued by me. It appears from the facts herein that on August 18, 1915, an order in supplementary proceedings was issued to examine the judgment debtor concerning the property. This order for the examination of the judgment debtor was made after a return by the sheriff of the county of New York of an execution wholly unsatisfied, issued on a judgment theretofore recovered in favor of the plaintiff in this court, on the 12th day of March, 1915, for the sum of $1,937.14. The affidavit upon which the order for the examination of the debtor was obtained contained the statement " that two previous orders for the examination of the debtor had been obtained, but after due and diligent effort these orders could not be served on the judgment debtor." On the return day of the said last mentioned order, on August 20, 1915, the debtor appeared by attorney and moved to vacate the order on the ground that the orders theretofore obtained were still in existence, as no order of discontinuance had been entered. The court granted the motion to vacate said order. The question now presented is, Is it necessary to enter an order of discontinuance in a special proceeding instituted by the judgment creditor for the examination of the judgment debtor after the return of an execution where the debtor is not served with an order? It is true that the orders heretofore obtained before the last order was issued became void or voidable or in full force at the option of the judgment creditor. The orders became a nullity unless revived, as held in Matter of Ward v. Stoddard, 144 A.D. 147, and could be revived by the justice who made the order by his initialing same on the margin thereof, by changing the return date thereon before the service of the same. The judgment creditor could not have two orders revived. It would be necessary to keep one alive, as before stated. This has not been done by the judgment creditor. Supplementary proceedings can be instituted only by an order; they can only be discontinued or dismissed by an order (Code Civ. Pro. § 2454), and this is clear. Proceedings are statutory, and the statute must be strictly followed. The object of a resort to these proceedings is to aid the creditor in collecting his judgment. The proceedings herein, when the third order was obtained, which is in question, had been legally issued, as required by the statute. There has been a great deal of contention in the practice of supplementary proceedings in reference to discontinuing orders by entering an order thereon where the examination had been had and before termination, or when proceedings adjourned without day or hour fixed, or when the time had elapsed. In such an instance it is necessary to enter an order of discontinuance terminating the proceedings. And where the order for the examination of the judgment debtor has been obtained and served upon the judgment debtor, and wherein the time within which to examine the judgment debtor had not yet arrived, the judgment creditor desiring to discontinue the proceedings, in such an instance it is necessary to enter an order by the court discontinuing same (Code Civ. Pro. § 2454; Matter of Rotschild v. Gould, 84, App. Div. 196; Bibble v. Bullard, Supp Pro. [3d ed.] 172 et seq.), and where such order was not entered new proceedings could not be instituted. Gaylord v. Jones, 7 Hun, 480; Kihen v. Shippard, 16 Civ. Pro. 183; 4 N.Y.S. 339, and cases therein cited; Riddle v. Bullard, Supp. Pro. [3d ed.] 484; Schwarmecke v. Glenny, 54 Misc. 36; Tobias v. Walton, 116 N.Y.S. 587. But where an order in supplementary proceedings is allowed to lapse, in an instance wherein the court had not yet obtained jurisdiction over the judgment debtor, such order falls by itself and becomes a nullity, and no order is necessary to be entered discontinuing such proceedings as prerequisite to the issuance of a new order. I find but one decision upholding the judgment debtor's contention that the order must be entered discontinuing the proceedings irrespective of the service of the order upon the judgment debtor before a new order can be issued, or wherein the proceedings are actually abandoned they do not fall of their own weight, but should be terminated only by entry of a subsequent order ( Westervelt v. Shapiro, 137 N.Y.S. 338, 340), but on reading the authorities cited therein, such as Rothschild v. Gould, supra, and Chrystal v. Chrystal, 120 N.Y.S. 50, hold that the proceedings are such that the orders had been served and adjournments had and the proceedings allowed to lapse, such proceedings could not fall by their own weight, but must be terminated by an entry of a subsequent order. It follows, therefore, that the orders heretofore obtained before the issuance of the third order, not having been served, became a nullity, and the proceedings thereunder fall for the reasons hereinbefore expressed. The last order in question, of August 20, 1915, being proper in form and served upon the judgment debtor, is a valid order irrespective of the two previous orders having been issued. Motion granted. The judgment debtor is therefore directed to appear and submit to an examination concerning his property on the 29th day of November, 1915, at Special Term, Part II, of this court.
Ordered accordingly.