Schenck v. Erwin

On February 12, 1891, the county judge of Chemung county made an order requiring the appellant to pay to the receiver herein the sum of $129. The single question in this case is whether the judge making that order had jurisdiction. If he had no jurisdiction to make the order, then he erred in refusing to vacate it. He acquired no jurisdiction over Francis Erwin, who was examined as a third person having property of the judgment debtor, under or by virtue of the order issued by the Steuben county judge. The county judge of Steuben county had no authority to issue such an order. It could be issued only by the county judge of Chemung county. Merrill v. Allin, 46 Hun, 623. The county judge of the latter county made no such order; hence there was never any valid order to examine the appellant as such third person. There was an attempt to institute the special proceeding provided for by subdivision 3 of section 2432 of the Code, but it failed. There was no proceeding under that provision of the Code in which the county judge of Chemung county could make any valid order whatever. Hor do I think that in the proceedings instituted before him under subdivision 1 of section 2432 he in any way acquired jurisdiction of the appellant, or jurisdiction to make the order requiring him to pay the sum named to the receiver. The appellant was not even examined under the order in that proceeding. He was examined only in a proceeding commenced before another county judge, who had no authority whatever to entertain it, and neither judge obtained any jurisdiction over the person of the appellant. These views lead me to the conclusion that the order appealed from should be reversed.

Upon reflection, I yield to the views expressed in the foregoing opinion, and vote for a reversal. Order reversed, with $10 costs and disbursements.

(concurring.) The cases of Cooman v. Board, 37 Hun, 96, and Woodman v. Goodenough, 18 Abb. Pr. 265, sustain the proposition that the county judge of Chemung county had no jurisdiction to make the order complained of. See, also, Bidd. & B. Supp. Proc. (3d Ed.) 320. The appellant was not a party to the proceeding before that officer, and did not appear therein. The service of notice by the plaintiffs’ attorney could not take the place of a third party order. Besides, a case was not made that justified an order requiring the appellant to pay. It was not shown that he had money in his hands that belonged to the defendant. It may be that he owed the defendant a portion of his legacy, or had in his hands a mortgage from which, *618at some future time, he would have the means to pay the legacy; but that was not enough. Bank v. Pugsley, 47 N. Y. 368. 1 think, therefore, that the order appealed from should be reversed.