Deane v. Sire

The question presented upon this appeal is whether an order in supplementary proceedings, requiring the judgment debtor to attend for examination, is an order in an action (Code Civ. Pro., § 338, subd. 4), and thus an order which may be served in any part of the State, when made by a justice of the city court.

In view of the unqualified statement in the statute that supplementary proceedings are special proceedings (Code Civ. Pro., § 2433), taken in connection with the expressed statu*607tory distinction between special proceedings and actions (Code Civ. Pro., §§ 3333, 3334), it would seem difficult to escape the conclusion that, within the meaning and intent of the Code, an order in supplementary proceedings is not an order in an action, and that there cannot be a “ special proceeding in an action,” a term sometimes applied to supplementary proceedings.

In the case of Graves v. Scoville (12 Civ. Pro. 165), however, the meaning of the words “ special proceeding,” as applied to supplementary proceedings by section 2433 of the Code, was directly involved; and the conclusion there reached, that these were not special proceedings, within the statute, has received the sanction of the Court of Appeals, this being the necessary result of the affirmance of the order in that case. Graves v. Scovil, 102 N. Y. 676.

Therefore, we cannot view the question as one open to independent discussion, and must hold that the court below had jurisdiction.

It results that the order denying the motion to punish for contempt, on the ground of lack of power, must be reversed, with ten dollars costs and disbursements, and the matter remitted to the court below for further proceedings.

Scott and Fitzgerald, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and matter remitted to court below for further proceedings.