
    William H. Rupert, Respondent, v. Ella G. Lee, Appellant.
    
      Contempt—application to punish a judgment debtor for a failure to appear in proceedings supplementary to execution — an order adjudging her in contempt unless she appears at a time stated is appealable —- the better practice.
    
    An order made upon an application to punish a judgment debtor for contempt,' because of her failure to obey an order for her examination in proceedings supplementary to execution, which provides that the application “is granted, unless she appears and submits to examination herein * * * on the 83rd day of November,. 1904, * * * in which case said motion to punish her as for a contempt is denied,” is appealable to the Appellate Division, although it is not a final order.
    
      Semblé, that the better practice would have been for the judgment debtor to have waited until the entry of the final order punishing her for contempt, and then to have appealed frbm such order. < ■ , ■
    i Appeal by the defendant, Ella G. Lee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of tlie county of New York on the 23 st day of November, 1904, denying the defendant’s motion to vacate an order for her examination in supplementary proceedings and granting the plaintiff’s motion to punish the defendant for a contempt in failing to appear for examination pursuant to said order.
    
      Robert L. Stmston, for the appellant.
    
      H. D. Wright, for the respondent.
   O’Brien, J.:

An order for the examination of the judgment debtor in proceedings, supplementary was returnable on November 5, 1904, but on that day she failed to appear. Thereafter, on . the seventh of November, an order to show cause why she should not be punished. . for her alleged misconduct in disobeying said order, returnable November eleventh, was granted. ' On the latter date the attorney for defendant appeared specially and urged certain, preliminary objections, which were overruled, and then, in opposition to a motion' to punish her as for a contempt, urged reasons why the motion should be denied and the order for her examination be vacated.' These latter were overruled and an order was entered .which in terms provided that the motion to punish her as for a contempt “ is granted, unless she' appears and submits to examination herein * * * on the 23rd' day of November, 190i, * * * in which case said motion to punish her as for a contempt is denied.” It is from this last order that the judgment debtor appeals.

It will be noticed that this is not a final order, and the only serious question before us is whether-such an order is appealable. We think, in view of the repeated decisions of this court which hold that an order for the examination of a party, because affecting a substantial right,'is appealable, that the validity of the order here in question may be assailed upon appeal. It may be that the better practice would have been for the judgment debtor to have waited and, when the final order was entered punishing her for contempt, then to appeal, when many of the questions sought to be discussed upon the appeal from the present order could be considered.

Upon the merits of the appeal little need be said. The original order for the examination of the judgment debtor was not void; but even if the irregularities claimed by the appellant existed, these at most would only make it voidable; so ■ that in either event the judgment debtor was obliged to appear and, if so advised, to move to set aside or vacate the order. Instead, however, she defaulted, and thereupon the order appealed from was made, and we think that with respect to the irregularities suggested, many of which had been waived by her default or by her failure to make a direct motion to vacate the order, she is not.in a position, because too late, now to have them passed upon.

Our conclusion is that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JL, •concurred.

Order affirmed, with ten dollars costs and disbursements.  