
    Schenck et al. v. Irwin.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1891.)
    L Appealable Order—Supplementary Proceedings.
    Under Code Civil Proc. N. T. § 3433, providing for an appeal from “ an order made in the course of the proceedings * * * where the execution was issued out of a county court, ” an appeal will lie from an order of a judge of a county court vacating an order for the examination of a third person in supplementary proceedings. 3. Supplementary Proceedings—Sufficiency of Affidavit.
    An affidavit by a judgment creditor to obtain an order for the examination of a third person in supplementary proceedings, where the judgment debtor had removed from the county wherein the special proceeding was commenced,was fatally defccdve in not showing that the execution therein described had been delivered to the sheriff of the county where the judgment debtor resided at the time the affidavit was made, under Code Civil Proo. N. T. § 3458, which provides in such case that “the execution must have been issued * * * to the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceeding, a place for the regular transaction of business, in person. ”
    8. Same—Waiver of Defects—Jurisdiction.
    In such case, the attendance of the person to be examined before the referee, and' Ms submission to the examination, could not operate as a waiver by him of objections to the sufficiency of the affidavit, since without a sufficient affidavit the court could not have jurisdiction of the subject-matter.
    Appeal from Steuben county court.
    Action by Mathias Sehenck and another against Arthur B. Irwin. From an order vacating an order for the examination of Francis Irwin in proceedings supplementary to an execution on a judgment against defendant, plaintiffs appeal.
    Argued before Dwight, P. J., and Macomber, J.
    
      L. W. Wellington, for appellants. Spencer & Mills, for respondent.
   Dwight, P. J.

The judgment was docketed as a judgment of the county court of Steuben county, and an execution was issued out of that court to the sheriff of that county, where the judgment debtor then resided, and was returned unsatisBed. Thereafter the judgment debtor removed to Chemung county, and while he was residing there proceedings supplementary to the above execution were instituted before the county judge of Steuben county against the respondent, Francis Irwin, who was a resident of that county, as a person having property of the judgment debtor. He appeared pursuant to the order in those proceedings, and was examined without objection on his part, but subsequently made a motion before the same county judge to vacate the order for his examination. That motion was granted, and from the order of the county judge of Steuben county so vacating his former order this appeal was taken. The objection that the order was not appealable cannot be 'maintained. The statute (Code Civil Proc. § 2433, subsec. 2) makes express provision for an appeal from “an order made in the course of the proceedings,” “where [as in this case] the execution was issued out of a county court.” This order affected the substantial right of the judgment creditors to collect their debt out of property of the judgment debtor in the hands of a third person; and it was not an order in the discretion of the county judge, especially if it was made, as we may suppose it was, upon the ground that he had no jurisdiction of the proceeding. But upon that ground we think the order appealed from was properly made, and must be affirmed. The affidavit on which the first order was made was sufficient, on its face, to give jurisdiction to the county judge, except in one particular. It did not show that the execution described therein had been delivered to the sheriff of the county where the judgment debtor resided at the time the affidavit was made and ihe proceeding comménced. This was required by the provisions of section 2458 of the Code. That section, so far as applicable to this case, is as follows: “In order to entitle a judgment creditor to maintain-either of the special proceedings authorized by this article, [and the proceeding in question was one of them,] the execution must have been issued * * * either (1) to the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceeding, a place for the regular transaction of business, in person; or, (2) if the judgment debtor is then a resident of the state, to the sheriff of the county where he resides.” The affidavit showed that the execution had been issued to the sheriff of the county where the judgment debtor did reside when the execution was issued; but that clearly does not meet the requirement of the provision above quoted. The word “then,” in the second subdivision of the section, evidently refers to the “time of thb commencement of the special proceeding” mentioned in the first subdivision; and the use of the present tense of the verbs in the phrases, “has * * * aplace of business,” “isthen a resident,” and “where he resides,” plainly shows that the reference throughout is to the present residence, etc., of the judgment debtor, at the time the application for the order is made. The effect, therefore, of the provision, as applicable to this case, is that, in order to give to the county judge jurisdiction to make the order for the examination of the third person, the affidavit upon which it is made must show that the execution upon which the proceeding was based had been issued to the sheriff of the county where the judgment debtor then presently resided. That fact does not appear by the affidavit upon which the order was granted, and the contrary appeared by the affidavit upon which that order was vacated. This view of the case is in accordance with the reasoning, if not necessarily involved in the decision, of this court in the case of Merrill v. Allin, 46 Hun, 623. But we wish to put our conclusion of the want of jurisdiction in the county judge in this case more distinctly upon the ground that the proofs showed that the execution which was alleged as the basis of the proceeding was not issued to the county where the judgment debtor re- ° sided when the proceeding was commenced. The objection was not waived by the attendance of the third person before the referee, and his submission to the examination. It was necessary to the validity of his order that the county judge should have jurisdiction of the subject-matter, and that jurisdiction could not be given by consent. The order appealed from should be affirmed, but witiiout costs to either party against the other.  