Misc.] City Court of New York, January, 1896. THE FUCHS & LANG MANUFACTURING CO., Respondent, v. THE. SPRINGER & WELTY Co., Appellant. (Two cases.) (City Court of New York - General Term, January, 1896.) DEFAULT-CONDITIONS ON OPENING. A party cannot be required, as a condition of opening a default, to consent that the verdict upon the trial should be final and that no appeal shall be taken therefrom. APPEAL by the defendant from a conditional order, made in each of the above two actions, opening the judgments obtained by default and allowing the defendant to come in and defend the action, dated September 27, 1895, and also from the final order in said actions, made October 8, 1895, denying the defendant's motion to open the default because of defendant's failure to comply with the conditions imposed upon it by the first-named order. Boothby & Warren, for appellant. J. E. Ludden, for respondent. BOTTY, J. The facts disclosed by the affidavits used on the motion to open the judgment taken by default against the defendant show that the defendant was unable to meet its debts and that its property was sold by the sheriff under and by virtue of several executions issued upon judgments recov ered by plaintiff and other creditors. To grant the defendant's motion to open the default without requiring it to furnish security of some sum to satisfy the plaintiff's claims, costs, disbursements, etc., would in effect defeat the plaintiff in the collection of its claim and give other execution creditors a preference over plaintiff. Under the circumstances the requirement of the deposit with the clerk of this court of the sum mentioned in the order to secure the plaintiff's claim, costs, disbursements and expenses of sale, as a condition of opening the default and setting aside the judgment and execution, was not unreasona City Court of New York, January, 1896. [Vol. 15. ble, but the same was a fair exercise of the court's discretionary power in the premises, and the same should be sustained. The other condition imposed upon the defendant by the terms of said order, viz., that it consent that the verdict of the jury upon the trial of the action should be final and no appeal taken therefrom for any reason, affects a substantial right of which no litigant should be deprived. We are, therefore, unable to sustain that part of the order. Order of September 27, 1895, appealed from, affirmed, without costs, except as to that part thereof which requires the defendant to consent that the verdict of the jury shall be final and no appeal taken therefrom for any reason. Let the defendant appellant have ten days from the date of the service of the order on this appeal within which to comply with the conditions of said order opening the default, and let the trial of the actions be set down for Monday, February 17, 1896. The conditional order of September 27, 1895, having been affirmed in part only, it follows that the final order of October 8, 1895, must be reversed. The same is accordingly reversed, without costs. MCCARTHY, J., concurs. Conditional order affirmed in part and final order reversed. CATHARINE A. JENNINGS, Respondent, v. JAMES H. LANCASTER, Appellant. (City Court of New York General Term, January, 1896.) 1. SUPPLEMENTARY PROCEEDINGS RETURN OF EXECUTION ESSENTIAL. To authorize the institution of proceedings under section 2435 of the Code it is absolutely essential that the execution should have been returned unsatisfied in whole or in part previous to the granting of the order. An objection to the proceedings that the execution had not been returned is not waived by the debtor's appearance and submission to examination, as such defect is a jurisdictional one. Misc.] City Court of New York, January, 1896. APPEAL by the defendant from an order adjudging him guilty of contempt of court in having disposed of his property in violation of an injunction order in supplementary proceedings instituted under the provisions of section 2435 of the Code of Civil Procedure. Charles W. Pierson, for appellant. P. M. Brown, for respondent. BOTTY, J. The order for the examination of the appellant as a judgment debtor in proceedings supplementary to execution, whereby he was forbidden to transfer or make any other disposition of his property, etc., was based on an affidavit. showing amongst other things that an execution was duly issued. to the sheriff of the county of New York upon a judgment recovered by the respondent and that said sheriff has returned said execution wholly unsatisfied. On the return day of the order the said appellant appeared and obtained an adjournment of the proceedings, and on such adjourned day he submitted himself to an examination and was accordingly examined. The examination discloses the fact that on the very day of this examination under said order he had collected a claim of $1,000 due him from Cornell & Co. for a stone crusher which he had sold to them previous to the granting and service of said order for his examination and that he disposed of the money so received by him by applying the same towards the paying of debts other than the claim of the respondent in this action. Assuming that the proceedings for the appellant's examination were regular and that the court had jurisdiction of the subject-matter as well as the person of the appellant, such a disposition of his property was clearly in violation of the injunction order and rendered him liable to punishment as for a contempt of court; but the appellant on the motion to punish him for such contempt objected to the jurisdiction of the court upon the ground that the execution which had been City Court of New York, January, 1896. [Vol. 15, issued had not been returned at the time the order for his examination was obtained. This objection, if tenable, is fatal to respondent's proceeding. To entitle a judgment creditor to an order for the examination of a judgment debtor he must proceed either under the provision of section 2435 of the Code of Civil Procedure, or section 2436 of the Code of Civil Procedure. Under the latter section he may examine a judgment debtor after the issuing of an execution against property and before the return thereof, upon proof by affidavit that the judgment debtor had property which he unjustly refuses to apply towards the satisfaction of the judgment. Whereas, under section 2435 of the Code, he may examine the judgment debtor after the return wholly or partly unsatisfied of an execution against property. The plaintiff proceeded under section 2435 of the Code of Civil Procedure, and to confer jurisdiction upon the judge granting the order it was absolutely essential that the execution should have been returned unsatisfied in whole or in part previous to the granting of said order. The fact, however, appears to be, as shown by appellant's affidavit in opposition to the motion to punish for contempt of court for a violation of said order, that said execution had not been returned by the sheriff at the time of the issuing of the order and examination of appellant. This being so, the order for appellant's examination as a judgment debtor in proceedings supplementary to execution was null and void, as the judge had no jurisdiction to grant the same. The respondent, however, contends that, inasmuch as the judgment debtor appeared and submitted to an examination under said order, without objection, he thereby waived all objections to the regularity of the proceedings. Ordinarily this would be so, but jurisdictional defects are not thus waived. The distinction is this, where a fact material to the jurisdiction really exists, though erroneously or not all set forth in the Misc.] City Court of New York, January, 1896. proof, or where a tribunal can have jurisdiction of a given subject-matter because all the essential facts for that exist, although the order or process bringing the same before it may be erroneous, such defect may be waived by the adverse party, and is waived when he fails to object on that ground at the first opportunity, but submits to the direction of the officer who has or assumes to take charge of the proceeding. But where a fact necessary to give a tribunal jurisdiction, as in this case, viz., the return of an execution wholly or partly unsatisfied, does not exist, the defect cannot be waived, for consent cannot confer jurisdiction not vested by law. The objection can be taken at any time. Sackett v. Newton, 10 How. Pr. 560; Engle v. Bonneau, 2 Sandf. 679; Dudley v. Mayhew, 3 N. Y. 9; Beach v. Nixon, 9 id. 35. It, therefore, follows that the order adjudging the appellant (judgment debtor) guilty of contempt of court for violating the said injunction order in supplementary proceedings, which, as has been shown, is null and void for want of jurisdiction, must be reversed. MCCARTHY, J., concurs. Order reversed, without costs. WILLIAM NICHTAUSER et al., Appellants, v. SIGMUND S. LEHMANN, Respondent. (City Court of New York - General Term, January, 1896.) 1. ATTACHMENT REFERENCE. The court has power to refer the disputed questions of fact arising upon a motion to vacate an attachment to a referee for determination. 2. SAME COSTS. Where the successful party upon such a reference has paid the referee's and stenographer's fees in pursuance of a stipulation between the counsel for the respective parties, such fees may be included among his taxable disbursements. APPEAL from order confirming report of a referee in favor of defendant, vacating an attachment. |