
    In the Matter of Proceedings Supplementary to Execution, Consolidated Agency Company, Judgment Creditor, v. Henry P. Townsley, Judgment Debtor.
    (Supreme Court, New York Special Term,
    May, 1911.)
    Supplementary proceedings — Procedure in general: Successive proceedings : Termination of proceeding — Dismissal — Sufficiency of order.
    An indorsement on an order for the examination of a judgment debtor in supplementary proceedings that the judgment creditor made default in appearing and the proceeding was dismissed is an order which it was the duty of the judgment debtor to enter, and his motion to vacate a subsequent order on the ground of the pendency of the prior proceeding will he denied.
    Motion to vacate an order in proceedings supplementary to execution.
    Harry H. Salvage, for motion.
    Joseph G. Fenster, opposed.
   Giegerich, J.

The former order in proceedings supplementary to execution hears the indorsement that “ the judgment creditor having been duly called on April 4, 1911, and not appearing its default is hereby noted and the within proceeding dismissed.” It was held by the Appellate Term in MeAlpin v. Stoddard, 54 Misc. Rep. 647, that such an indorsement constituted an order as defined by section 767 of the Code of Civil Procedure, and that if entry thereof is required it is the duty of the judgment debtor to enter the order. The point urged by the latter that no order was made upon such decision is, therefore, not well taken, and the motion to vacate the present order for the debtor’s examination is, therefore, denied, with ten dollars costs, and he is directed to submit to examination at a time and place to be designated in the order to he entered hereon. Settle order on notice.

Motion denied.  