
    Abraham Levy, Appellant, v. The Swick Piano Co., Defendant. William H. Speidel, Respondent, v. The Swick Piano Co., Defendant. Frank Hartenstein, Respondent, v. The Swick Piano Co., Defendant. Hester Ann Swick, Respondent, v. The Swick Piano Co., Defendant.
    (Supreme Court, Appellate Term,
    May, 1896.)
    1. Supplementary proceedings — Corporations exempt from.
    A domestic corporation or a foreign corporation which has its principal place of business in this state is exempt from supplementary proceedings.
    2. Same — Estoppel.
    An order instituting a proceeding in such a case is absolutely void, and a party is not precluded from taking objection thereto by the fact that he had instituted a similar proceeding against the company.
    3. Same — Appeal, ...
    A third party order made,by a Special Term is not within subdivision 3 of section 2433 of the Code, and is appealable.
    Levy v. Swick Piano Co., 16 Mise. Rep. 685, reversed.
    Appeal by Abraham Levy from an affirmance by the General Term of the City Court of an order of the Special Term in supple-
    
      Philip Waldheimer, for appellant. "
    Alfred B. Jaworowér, for respondent, Wm. H. Speidel.
    Benno Loewy, for respondent, Hester Ann Swick.
    Lexow, Mackellar & Wells, for Twenty-third Ward Bank.
   Daly, P. J.

The appeal is taken on the ground that the City ■ Court had no jurisdiction to make the order appealed from ip supplementary proceedings because the judgment debtor was a corporation created by the laws of this State, or'a foreign corporation doing ‘business within the State. Code of Civ. Pro., §§ 2463, 1812.

The first section of the Code, above cited, declares that this article (the one relating to supplementary proceedings) does not apply where the judgment debtor is a corporation created by or under the. laws of the'state, or a foreign corporation specified in section 1812. The latter section specifies- corporations, or joint-stock associations, created by or under the laws of another state,' government or • country, where the corporation or association does business within .the state, or has within the state a business agency, a fiscal agency, or an agency for the transfer of its stock.

It appears from the affidavit of William H. Calloway that the judgment debtor, the Swick Piano Co., is a corporation, and it. is stated in the affidavit of Walter B. Jaworower and in other parts of the record that the defendant has its principal place of business, in .the city and county of Hew York. This more .than answers the requirement of doing business within the state or having a business agency therein, and clearly exempts this corporation, if a foreign corporation, from the Code provisions relating to supplementary proceedings. The remedy of a judgment debtor of a domestic corporation, or a foreign corporation doing, business in this state, is .by resort to. proceedings under sections 1184 and 1809-1812.

The respondent urges that the appellant is precluded from raising the question of jurisdiction by his failure to present it to the court below, and by the epneessions recited in the order appealed from, and by his conduct in instituting supplementary proceedings, himself, against the same judgment debtor.’ As the corporation is, however, exempted from the operation of supplementary proceedings, an order therein made against it is absolutely void, as the court is without jurisdiction of the subject-matter attempted to be brought before it, and. this objection can be made at any time (Robinson v. Oceanic Nav. Co., 112 N. Y. 315); and, in fact, any attempt to confer jurisdiction in such a case by consent is ineffectual. Buckle v. Eckhart, 3 N. Y. 132; 12 Am. & Eng. Ency. of Law, 301.

There remains the question whether the order is appealable to this court. The remedy sought in the court below was a so-called third party proceeding claimed to be authorized by section 2432. Section 2433 declares that 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 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.”

The remainder of the section is immaterial to the question in hand, and is not quoted.

In this instance, the order was not made by a judge, but by the Special Term; and, consequently, it does .not fall within the provisions of the above enactment, and the appeal may be entertained under section 3191 relating to appeals generally from the City ’ Court.

Orders of the General Term and Special Term reversed, with costs and disbursements in this court to the appellant.

McAdam, J., concurs.

■Orders reversed, with costs and disbursements.  