Examination of Onetto v. Teutonia Fire Insurance

Per Curiam: The order appealed from is a judge’s order and not a court order. It is an order made in and as a part of the supplementary proceedings. (Matter of Steinman v. Conlon, 208 N. Y. 198.) Section 2433 of the Code of Civil Procedure prescribes the method of reviewing such an order as follows: “Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows: 1. An order, made by a judge, out of court, may be vacated or modified by the judge who made it, as if it was made in an. action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued.” Inasmuch as the order appealed from must be held to have been made in the course of the supplementary proceedings, we think appellant was bound to move at Special Term and thus to review the order, and that this court is without jurisdiction to review it except upon appeal from an order so made at Special Term. There is little or no reason for requiring such a review at Special Term in a case like this where application for the order was on notice and a full hearing of both parties had upon the testimony given before the referee as well as upon affidavits upon both sides. Still, in view of the decision in Matter of Steinman v. Conlon (supra) that this order is one made in the course of the supplementary proceedings, we see no escape from holding that section 2433 applies and prescribes the only method of review. Section 1356 of the Code, which gives a right of appeal to this court “from an order, affecting a substantial right, made in a special proceeding, at a Special Term or a Trial Term of the Supreme Court; or made by a justice thereof in a special proceeding instituted before him, pursuant to a special statutory provision,” must be construed with section 2433, and as so construed, does not apply to an order made in supplementary proceedings. The preliminary note to section 1356 of the Code as issued by one of the revisers who prepared that section states: “This title contains only general provisions, relating to appeals in special proceedings; leaving those which apply exclusively to particular kinds of special proceedings, to be treated, in con [213] nection with the other provisions upon the same subject, in chapters 16 and 17 of this Code.” (See Throop’s Code Civ. Proc. 1892, § 1356, note; Id. chap. 12, tit. 5, note.) Section 2433 is found in title 12 of chapter 17, where special provision is made for orders in proceedings supplementary to execution, and the method of reviewing such orders. We conclude that appellant has mistaken his remedy and that he must first move at Special Term to modify or vacate the order appealed from, and that an appeal to this court can be taken only from the order of the Special Term. The appeal is dismissed, with costs. All concurred. Appeal dismissed, with ten dollars costs and disbursements.