
    WEST SIDE BANK against PUGSLEY.
    
      Court of Appeals,
    
    
      January, 1872.
    Appeal from Orders. — Punishment for Con- -" tempt.—Action by Receiver in Supplementary Proceedings.
    An order made by a judge out of court, may be set aside Try the court, on motion.
    The provision of section 350 of the Code of Procedure, which allows certain orders made out of court, upon notice, to be entered with the clerk, and to be appealed from,—does not deny the remedy by motion to the court to set aside a mere judge's order.
    
    On an application in supplementary proceeedings, for an order compelling a third person to pay over, or apply to the judgment, property in his hands, or a debt, belonging to the judgment-debtor, if such person, under oath, claims an interest in the property or denies the debt, the judge cannot proceed summarily to examine into the fact; but the judgment creditor must be left to the appointment of a receiver of the property of the judgment-debtor, and an action by him against the third party.
    A judgment creditor, prosecuting supplementary proceedings against his judgment debtor, cannot compel payment of a debt due to the judgment debtor from a' third person, by means of process for contempt.
    Appeal from an order.
    The West Side Bank, having obtained an attachment against the property of James E. Pngsley, in an action in the supreme court, first district, levied it on the balance standing to his account in the Sixth National Bank, and received from the cashier a certificate that, on January 22, 1870 (the day. when the levy was made), Pngsley had to his credit in the bank the sum of one thousand and sixty-two dollars and eighty-seven cents. Afterwards, and on April 29, 1870, judgment by default was entered for one thousand and ninety-five dollars and fifty-five cents; and, on the same day, execution was issued and levied on the funds which had been attached. The Sixth National Bank refused to pay over the money; whereupon the plaintiff, on May 9, obtained from a judge of the court (who was, during that month, holding the special term of the court at chambers, and was sitting in chambers of the court when he made the judge’s orders herein mentioned), an ex-parte order commanding “ The Sixth National Bank, its officers, agents, attorneys and servants and especially the said A. E. Colson,” (the cashier), to surrender to the sheriff all moneys, funds. &c., belonging to Pugsley, “ and especially the money heretofore levied upon under the warrant of attachment,” or to show cause at chambers before the judge granting the order, why they should not be punished as for a contempt of the court. The order was signed with the judge’s full name merely, with the usual addition, “ J. SI C.,” [Justice of the supreme court.] On the day appointed to show cause, the Sixth National Bank appeared and submitted the affidavit of its cashier, stating that the certificate on the attachment had been given under a mistake of facts, and that, in reality, Pugsley was indebted to the bank to a large amount in excess of his deposit. The judge thereupon made an order that the president, the cashier, and the note teller of the bank appear before him at chambers of the court, on May 14, 1870, and submit to an examination as to the credit of Pugsley with the bank, and that the examination so taken be used on the further hearing of the motion, which was adjourned until two days after the examination. That order was entitled : “At chambers, New York, May 12, 1870,” but was signed with the judge’s initials only, followed by the word “ enter,” as if it had been an order of the court, and was entered.
    The examination was had accordingly, and the judge being of opinion that the Sixth national Bank had no claims upon the money, as against the plaintiffs, made an order, dated September 29, 1870, commanding “the officers” of the bank to pay over the moneys within twenty-four hours after service of a copy of the order, or be committed as for a contempt. The order recited the fact that the motion had been made ‘1 on the part of the sheriff;” it was entitled at special term of the court, was signed with the judge’s initials and the direction to “enter,” and was entered with the clerk as an order of the court.
    Upon service of that order, the Sixth Hationál Bank obtained from another judge of the court, an order that the plaintiff and sheriff show cause before “one of the justices of this court, at chambers, at a special term of this court,” why the order last mentioned and also that of May 9, should not be set aside and vacated. On the hearing at special term, the motion to set aside the orders was denied, and an order of the court to that effect was entered October 11, 1870.
    From that order the Sixth national Bank appealed to the general term of the court for the first department, where the appeal was dismissed, upon the ground that, in the opinion of the court, the order appealed from was not appealable,—not affecting a substantial right,—and that, if the appellants intended to appeal at all, they should have appealed from the order of September 29. The present appeal to the court of appeals was thereupon taken from that order of dismissal.
    
      Burton N. Harrison, for appellants.
    I. The order appealed from is appealable to this court. That an order dismissing an appeal to the general term, of the supreme court is appealable to this court, is well settled (Bates v. Voorhees, 20 N. Y., 525; Maltby v. Green, 1 Keyes, 548; and In the Matter of Duff, 10 Abb. Pr. N. S., 410). And, as this is an appeal from an order after judgment, and not from a judgment, the facts are reviewable in this court as well as the law (Gillig v. Maass, 28 N. Y., 197; Griscom v. Mayor, &c., 12 Id., 590). This appeal brings up the entire merits of the order (Bates v. Voorhees, 20 N. Y., 527-8).
    II. The orders moved to be set aside were made under section 297 of the Code. The Sixth National Bank, appellants, were not a party to the action after judgment in which the orders were made, and the judge had no authority to order them to surrender the amount of the pretended credit, to the sheriff, upon the writ of execution, though it was alleged to be the property of the judgment debtor, until they had first been made a party to the proceeding authorized by section 294,' and had an opportunity to be heard in answer to the allegation. When such a proceeding was afterwards instituted, and the appellants’ officers examined, they denied the alleged indebtedness, and claimed an absolute title and interest in the property in the appellants, adverse "to the judgment debtor. By the Code (§ 299), in such a case the indebtedness is recoverable only in an action by a receiver of the property of the judgment debtor (Edmonston v. McLoud, 19 Barb., 362; Tompkins County Bank v. Trapp, 2L How. Pr., 20 ; Rodman v. Henry, 17 N. Y., 484, citing many authorities). The authority of the cases quoted has never been questioned ; it is conclusive. It is only undisputed property of the judgment debtor, Which the judge can order to be surrendered in this proceeding. He can never make an order, under section 297 of the Code, where the indebtedness or the amount of the indebtedness alleged to be due from the thh’d person is either disputed or uncertain. The assertion of claim by the third party puts an immediate stop to the proceedings. The judge cannot try the validity of the claim in this proceeding—there must be a formal trial in a new action, in which the third party is defendant, and a receiver of the property of the judgment debtor is plaintiff (7 Robt., 64 ; 1 Hilt., 505 ; 10 Abb. Pr., 103 ; 9 How. Pr., 97; 13 Id., 137; 12 Id., 139; 22 Id., 3; 12 Id., 307; 5 Id., 16; 23 Id., 423; 26 Id., 155; 34 Id., 333 ; 40 Barb., 242). Before the adoption of the Code, the remedies of a judgment creditor, against third parties who were supposed to haye the property of the judgment debtor which should be'applied on the judgment, were to be pursued only after filing a “creditor’s bill” in chancery and the appointment thereupon of a receiver of the property of the judgment debtor—and, if the third party disputed the claim of the judgment creditor that the property belonged to the judgment debtor, that question was an issue to be tried by a jury in a proceeding in which the third party himself was necessarily a defendant (2 Rev. Stat., 174, §§ 38, 39; 2 Barb. Ch. Pr., 153 ; Robeson v. Ford, 3 Edw. Ch., 442); and, “The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever” (Const. of N. Y., Art. 1, §2).
    III. The order, from which the appeal was taken to the general term of the supreme court, was an order of the court at special term denying the motion of the Sixth national Bank for an order vacating "and setting aside the orders of May 9, and September 29, 1870, which were both orders of a judge merely, sitting as a judge and not as the court. 1. That those were judge’s orders only, is evident with regard to the first from an inspection of it. It is not entitled—it is signed with the judge’s full name—cause is to be shown before the judge himself, not before “ one of the justices of the court”—and, throughout, the judge speaks in the first person. We might rest there, inasmuch as the proceeding having been instituted before a judge out of court, and by him' ordered, as judge merely, to continue before him as judge, and not before the court—the court could have no functions to perform in the premises until specially moved, which was not done until appellant’s motion was made, October 1, and denied October 11. And although the order next in succession, that of May 12, which adjourned the hearing, is drawn with less accuracy and precision in some of its details, it is still avowedly an order of the judge merely. It is entitled not as an order of the court, but as a judge’s order, made out of court, “at chambers, New York, May 12, 1870.” It requires appellants’ officers to appear before the judge who made it, to be examined, not before the court or “one of the justices of the court.” And it shows that it is still the same proceeding which was before the judge, by referring to it throughout as “this motion,”—i. e., the motion under the order of May 9. It was entered with the clerk ; but that was merely because the judge, who-was holding special term of the court during that month, inadvertently 'signed it with his initials and the usual direction to enter. The motion being thus before a judge and not before the court, the order in which it resulted should have been so drawn as to express the fact that it was a judge’s order merely. The order of September 29 is therefore incorrect as drawn,, in that it is entitled as an order of the court. It should, by its title, recitals and form of order, have avowed itself an order of the judge, made out of court—which in effect it was. AM it must be so regarded and ' treated by this court. The books are full of cases, in proceedings similar to this, in which it has been-expressly ruled that the mere order of a judge does not change its character or acquire any new force or effect, from entitling and entering it as an order of the court. The title does not change the fact, or make the order an order of the court (Wickes v. Dresser, 13 How. Pr., 336; see, also, 18 How. Pr., 245 ; 22 Id., 309 ; Matter of Knickerbocker Bank, 19 Barb., 602, at N. Y. general term; Dresser v. Van Pelt, 15 How. Pr., 19; 5 Abb. Pr., 53 ; 10 How. Pr., 425; Bitting v. Vandenburg, 17 Id., 80; Carter v. Clarke, 7 Robt., 497; Matter of Smethurst, 2 Sandf., 724). 2. Whether these orders are avowedly a judge’s orders or not, this court will hold it to be a fact that they are such, and that they could be nothing else, for the Sixth National Bank, the appellants, were not parties to the action, after judgment in which the obnoxious orders were made, but were third parties, and section 297 of the Code, which, in a proper case, is the authority to a judge to make orders like those moved to be vacated, does not give any such power to the court—and the court cannot claim it from any other source (Miller v. Rossman, 15 How. Pr., 11; Davis v. Turner, 4 Id., 190; Bitting v. Vandenburg, 17 Id., 80; Carter v. Clarke, 7 Robt., 497 ; Hawes v. Barr, Id., 454; Kelly v. McCormick, 2 E. D. Smith, 503; Matter of Smethurst, 2 Sandf., 726; Fenner v. Sanborn, 3 Id., 613; Joyce v. Holbrook, 2 Hilt., 95; 13 How. Pr., 435, 470). There has never been, then, any difficulty or hesitation about holding that such orders as those of May 9 and May 12 in this case are and must be treated as orders of a judge merely, and not of the court—however entitled. And, 3. In the common pleas and Hew York superior court there has never been any doubt as to the rule that such an order as that of September 29,—which is an order that appellants’ officers be committed as for contempt if they continue to disobey the order of May 9,—can be made only by the judge {Code, § 302) whose order has been disobeyed, and not by the court. And, although, in a few reported cases in several of the districts of the supreme court, there occur unguarded expressions which seem to indicate that some of the justices have supposed that the order of commitment may, upon occasion, be made by the court, as well as by the judge—reference to such cases will ascertain the fact that they all refer to and rely upon the decision of Justice Clerks in Wickes v. Dresser (13 How. Pr., 331) as the authority which, excuses them from an inquiry into the reasons for the opinion. But an examination of that decision shows that, although the learned judge there gives what he considered several reasons which, in a case requiring it, would induce him to hold that the court may punish as for contempt of a judge’s order, he expressly says that he did not then pretend to so decide, because it was unnecessary to pass upon the point in the case before him, and his decision of the case went upon another and very different ground. And even his reasoning upon the question was discredited in the later case, between the same parties, where it was relied upon by one of the counsel (reported in 14 How. Pr., 465), when, as Justice lxgraham says (45 Barb., 344), “the contrary rule was adopted”—and where the court expressly held that the court has no power to make even the order of commitment. “ The court, as such, cannot punish, because no contempt is shown to its authority, and no power is given to it to punish for contempt of the orders of the judge” (Matter of Smethurst, 2 Sandf., 726, with which agrees Kelly v. McCormick, 28 N. Y., 320); and the rule is now established (People v. Brennan, 45 Barb., 344). If, therefore, the order of September 29 is indeed an order of the court, it is null and void as being ultra vires. 2 Rev. Stat. (535, 536), prescribes the powers of punishing for contempts, and shows that the only case in which the court can punish for contempt of á mere judge’s order is that in which the order directs an attorney or other officer of the court to pay moneys, and in which no one but the disobedient officer himself can be so punished. Notwithstanding the title, therefore, and form, of the order of September 39, it, too, must be regarded and treated, if as of any effect at all, as a judge’s order merely, and not as an order of the court.
    IY. 1. There is no such thing, under our Code, as a direct appeal from a mere judge’s order, whether made ex-parte or on notice. Unless the order is an order of the court at special term, there is no appeal from it to the general term. The Code, in section 37, and elsewhere, distinctly recognizes the fact that there is necessarily a large volume of judicial business which not only may but must be done by judges not only out of the court room, but when they are “not engaged in holding court.” Instead of an appeal, section 334 expressly allows a motion to the court to set it aside and vacate it, as a means of correcting a judge’s order made ex-parte in transacting such business. And as there is no express prescription of the method to be pursued to correct a judge’s order in such business made upon notice, we are referred for it, by section 469, to the “rules and practice” which.regulated that matter at the time the Code went into operation. 3. In some óf the earlier cases, argued soon after the Code went into operation, it was suggested by counsel that, to correct judges’ orders like those herein complained of, there should be certiorari to the judge who made them, to bring the proceedings into court; because it was thought that, although such orders were made by a person who chanced to be a judge of the very court from which it was proposed that the writ should issue, they were made by him as a special statutory tribunal exercising functions required to be performed by him as such, and not as a judge of the court. That suggestion went upon the theory under which it was once the practice in the old supreme court to issue certiorari to the judges themselves, in order to review proceedings had before them in assessment cases and others, in which it was suggested that they had acted as commissioners and not as the court or as judges of the court. But that practice in the old supreme court was discredited by, and has never been followed by any court in this State since, the decision of the court of errors in Striker v. Kelly (2 Den., 323), in 1845. Gardiner, President, there stigmatized it as “incongruous,” for the reasons that certiorari cannot issue except to a subordinate court or inferior tribunal; and that the supreme court could not deal with any of its own justices as an inferior tribunal, because the constitution of the State expressly provided that they should “not hold any other office or public trust,”— which it was in that case held, that they must be considered to be doing, if any of their orders could be reviewed by the court upon certiorari. That prohibition is, by article VI., section 10, of the present constitution, applied to the existing supreme court; and the present supreme court itself, in 1851, in a case exactly like ours, adopted the rule laid down by the court of errors, and decided that certiorari will not lie from the court to review a judge’s order made by one of its own justices. See Lindsay v. Sherman (5 How. Pr., 308), which has always been followed since. 3. But, to get rid of a mere judge1 s order made whether ex-parte or upon notice, the proper practice is, and always has been, to move the court, upon notice, or upon an order to show cause returnable before the court, to set it aside and vacate it. (a.) That has always been the practice in the English courts (2 Arch. Pr. K. B.,1 Am. ed., from 1 Lond. ed., p. 278; and see 1 Tidd Pr., 3 Am. ed., 511; see, also, the decisions of Abbott, C. J., in Wood v. Kirk, 1 Chit., 246, and of Lord Abinger, C. B., in Pike v. Davis, 6 Mees. & W., 546, which were cases in which the judge’s order moved to be set aside had been made upon the hearing after notice by summons to attend before the judge.) Where the judge’s order is made a rule of court before the motion is made, the motion should be to set aside both t rule of the court and the judge’s order (Tindal, C. J., in Clement v. Weaver, 6 Jurist, 62). (5.) That was the proper practice in our own courts, before the Code was adopted (1 Burr. Pr., 348-350 ; 1 Dunl. Pr., 307-309). And the books are full of reported cases in which it was enforced (2 Wend., 627; 6 Id., 555; 9 Id., 470 ; 2 Cow., 587; Id., 463; 3 Id., 73; 3 Hill, 455). It was the same whether the judge’s order to be got rid of was made by him ex-parte or upon the hearing on an order to show cause returnable before him, which is equivalent to the summons to attend before the judge in England (1 Burr. Pr., 350; 1 Dunl. Pr., 307; 2 Paine & D. Pr., 50; 1 Johns. Cas., 245; 4 Cow., 539). (c.) And it is always held that it is still the proper practice in our courts since the Code went into operation, whether the judge’s order complained of is ex-parte or made after a hearing upon an order to show cause returnable before him. The latest reports of practice cases are full of examples : e. g., Follet v. Weed, 3 How. Pr., 361; Blake v. Locy, 6 Id., 109; Lindsay v. Sherman, 5 Id., 308; in which last case, the learned and lucid decision of Justice Hand, in 1851, is solely to that one point. The rule was exhaustively discussed, and firmly established in the proceedings in Bank of Genesee v. Spencer. Like Lindsay v. Sherman, that was a review of an order in “ supplementary proceedings,” similar to those in our case. An order had been made by Justice Mullet, at his chambers, but upon notice (i. e„, upon an order to show cause), and after hearing the parties. The party aggrieved appealed to the general term of the seventh district, which dismissed the appeal on the ground that' the proper practice was to move the court at special term to vacate and set aside the judge’s order. Thereafter, the motion was so made and denied, on the ground that, in the opinion of the justice holding special term, the general term was in error, and the remedy was not by the motion, but by appeal. Upon appeal from that last order, the general term (in 1857) reversed the special term order, on the ground, as reported, that: “to get rid of an order improperly made by a judge at chambers, the proper practice is to move the coart to set it aside” (Bank of Grenesee v. Spencer, 15 How. Pr., 15; see, also, Boyd v. Bigelow, 14 Id., 511, decided by the Erie general term in 1857, and citing 5 Id., 308). Those decisions were made when the Code, in section 349, was as follows: “An appeal may, in like manner, and within the same time, be taken from an order made at a special term, or by a single judge of the same court.” In 1862 that section of the Code was amended so as to read: “An appeal may, in like manner, and within the same time, be taken from an order made at a special term by a single judge of the same court or county, &c.” —which removes any doubt as to the fact that that section is strictly within the purview of part 2, title XI., chapter IV. of the Code, in which it occurs, which is entitled: “ Appeals in the supreme court and the superior court, and court of common pleas of the city of New York, from a single judge to the general term.” It applies only to an order made by a single judge sitting as a court, whether actually in the court and during term and entered there immediately with the clerk, or (under § 350) out of court upon notice (being, by consent of parties or after an adjournment, under § 24, of the same force and effect as if made in court), and subsequently entered with the clerk as the order of the court. It must be and avow itself an order of the court, and be made in a proceeding pending in the court, and have reference to matter in which the court, as a court, can make an order. That is the only case in which an appeal can be taken immediately to the general term. If it is an order made, whether at the court room or elsewhere, in a proceeding pending before the judge merely as such, and having reference to matter in which the judge, not the court, is authorized to make the order (which is our case here), there is no immediate appeal, and the only remedy is by moving the court to set aside the improper order of the judge. It was so held in a late case [citing Lindsay v. Sherman, 5 How. Pr., 308; Conway v. Hitchings, 9 Barb., 378, 387; Bank of Genesee v. Spencer, 15 How. Pr., 14] : Union Bank of Troy v. Sargeant (53 Barb., 424). In Thayer’s case, the Onondaga general term, in 1865, held the same to be the rule •, and further, that if the judge’s order has been entered as an order of the court, the only remedy is still by motion to the court at special term to set it aside, and by appeal to the general term from the order of the special term denying that motion—which is the English rule as shown by the cases above cited—and which is exactly the practice pursued by the appellants here (Kelly v. Thayer, 34 How. Pr., 168). And, that section 350 of the Code does not apply to a mere judges order, is shown by the facts, 1, that the orders to which it refers are “included” in “the last section” (§ 349), which has reference as is shown above, only to orders of the court / and, 2, that it is only an order which is and is intended to be an order of the court which can be entered with the clerk of the court. That section was intended only to reach the case where, after an adjournment under section 24, or by consent of parties, a term of the court, for matters pending in the court, is held, not in the court room, but at some place where the clerk is not present, and where the books of the court are not accessible. If an order is made in such a case, the judge who presides hands it to the attorney of the party in whose favor it is—with the expectation, of course, that he will carry it to the clerk to be entered ; but the expectation may be disappointed. Until entry is actually made, the order cannot be appealed from ; and the object of section 350 is to secure to the adverse party his remedy of appeal, by enabling him to compel the successful party to enter the order with the clerk.
    Y. The papers used on appellant’s motion show that they denied the alleged debt to the judgment debtor, and claimed an inter'est in the property adverse to him. That denial and claim entitled them to a trial of the issues by a jury, and to the continued possession and enjoyment of the property until taken from them by a judgment after verdict, on those issues —as of strict, legal, and absolute right (Code, § 299). By their motion to the court to strike out the judge’s orders which attempted to deprive them of that right, they have pursued the proper and only remedy known to our laws or practice, and the court below had no discretion to withhold what they demanded. The order appealed from denied that remedy, and thereby unquestionably affected a substantial right of appellants—within the strictest definition of that term, as used in the Code (Congdon v. Dows, 28 N. Y., 128; Matter of Duff, 10 Abb. Pr. N. S., 440). It is no reply to suggest that, if the judge’s orders were ultra ñires, they were null and void and therefore inoperative to injure the appellants ; and that there was no necessity for an order striking them out (Striker v. Mott, 6 Wend., 465). The case is not at all analogous to those like Bank of Genesee v. Spencer (18 N. Y., 151), where the former court of appeals dismissed ah appeal from an order denying a motion to set aside an execution issued, without leave, more than five years after judgment. That was for the reason that, there, the writ on its face (unlike the order of September 29 in the case at bar), disclosed its invalidity; and that the sheriff, being so informed by the execution itself that it was null and void, would have no defense to an action for damages for a levy under it. It was unnecessary to set aside such an execution.
    YI. The foregoing reasoning has been upon the assumption that the order of October 11 was an order in a civil action, though made in “ supplementary proceedings. But, whatever may be the nature of “supplementary proceedings” by the judgment creditor against the judgment debtor himself (under § 292 of the Code), both of whom were parties to the action in which the judgment was recovered—it has been repeatedly held that these proceedings, so far as they are carried on by the sheriff or the judgment creditor against a third party (under §§ 294, 297 and 299) are special proceedings (Davis v. Turner, 4 How. Pr., 192; and see Holstein v. Rice, 15 Abb. Pr., 308). And, if the definitions of a “civil action” and “special proceedings” furnished by the Code itself are of any avail, it is difficult to see how there can be any difficulty about classifying them. “ § 2. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, &c.” And section 127 directs that “civil actions in the courts of record of this State shall be commenced by the service of a summons.” But the proceedings by -the sheriff in this case, against these appellants, were certainly not by a party to any action against another party to that action —they were before a judge merely, and not in any court—they were very far from being ordinary proceedings—and they were not commenced by the service of a summons on appellants. They have, therefore, none of the characteristics of an action, and must be classified under section 3, which declares that “ every other remedy is a special proceeding.” The act of 1854 (ch. 270) expressly authorizes an appeal to the general term from any order of the special term is a special proceeding in the court. Amidon v. Wolcott (15 Abb. Pr., 314, a general term decision of the supreme court in the first district, in 1860), is directly to the point that, though the proceedings had been previously before the judge merely,1 the motion to the court to vacate and set aside Ms orders, brought the proceedings into the court. Appellants were, therefore, entitled under the statute to have their appeal from the order of October 11 (which was an order of the court at special term) entertained by the general term, whether that order affected a substantial right or not.
    VII. The respondents do not better their case by the suggestion that the orders of May 9 and September 29 may be considered to have been made, not in what the Code calls “proceedings supplementary to execution,” but to assist the sheriff in the prosecution of his rights and duties under the attachment, for under the attachment, as well as under the execution, the only proceeding which can be had to determine the claims of tMrd parties to a debt which has been attached, is an action, and that whether the proceeding is instituted by the sheriff or by plaintiffs (Code, §§ 232-243). “All that the sheriff could do would be to sue them for the debt” (Lyman v. Cartwright, 3 E. D. Smith, 117). And, under the circumstances of this case, the neglect of a third party to state his claim to an interest in the property at the time the sheriff calls on him for a certificate, is no estoppel to an assertion of it afterwards. He may be held liable in a proper action for damages, suffered by plaintiff by reason of Ms reliance on the certificate—but neither the judge nor the court has any power, in this proceeding, to determine the measure, or to enforce the payment of damages, or to decide whether any have been suffered.
    
      Hammond & Pomeroy, for respondents.
   By the Court. Court.—Peckham J.

It is insisted that this order is not appealable, but that the appeal should have been taken from the other orders, if erroneous, instead of attempting to set them aside, upon motion to the court.

The orders sought to be set aside were made in a sort of supplementary proceedings against defendant, Pugsley, as a judgment debtor. They were made before a judge out of court, and resulted in the order of September 29, peremptorily requiring the officers of the Sixth National Bank to pay this one thousand and sixty-two dollars and eighty-seven cents to the sheriff having the execution against Pugsley, “ within twenty-four hours after the service of a copy of this order, or that they be committed as for a contempt, until the said order be complied with.” Both of these orders seem to be proceedings with a view to punish said defaulting bank as for a contempt in not paying said money, and the last one orders that all of the officers be sent to jail as for contempt, there to remain until they pay.

As these orders were made by a judge out of court, it seems to be regular practice to move to set them aside, if erroneous, before the court. The counsel for the Sixth National Bank has cited numerous cases to that effect.

True, the Code has provided that “ for the purpose of an appeal, any party affected by such order, may require it to be entered with the clerk, and it shall be entered accordingly” (Code, as amended in 1870, § 350).

But this does not deny the other remedy. It does not assume to deprive the party aggrieved, of his right to make a motion to the court to set aside the order of a judge, made out of court.

This order then, is appealable.

Is it right upon the merits ? I think not, upon the grounds: 1. The Sixth National Bank had denied, and under oath, that it owed anything to Pugsley, the judgment debtor:—in the language of the Code, had denied “the debt.” In such case the Code declares that “such interest or debt shall be recoverable only in an action against such person or corporation by the receiver” {Code, as amended in 1849, § 299). When the bank denied owing the alleged debt to the judgment debtor, the judge had no legal right to proceed to examine in that summary way whether it did owe such debt or not He had no authority, no right whatever then, to make any such determination. The law had provided another remedy, by action by a receiver, where the rights of the parties could be determined in the usual course of a suit at law. And see Rodman v. Henry, 17 N. Y., 484, and cases cited.

2. These orders required the officers of the bank to pay or be sent to jail, as for contempt, and there remain until they paid.

It is difficult to believe that the legislature has intended to revive, in its most offensive form, this condemned remedy of imprisonment for debt.

We cannot believe, and cannot adjudge, that the legislature intended to revive this odious mode of collecting debts, unless it is plainly so declared.

True, the Code provides that “the judge may order any property of the judgment debtor.....in the hands either of himself or any other person, or due to the judgment debtor,' to be applied towards the satisfaction of the judgment” (§ 297).

There is another provision, that if “any person, party, or witness, disobey an order of a judge . . . duly served, such person .... may be , punished by the judge as for contempt”; but. . . “in case of inability to perform the act required, or to endure the imprisonment,” he may be discharged “by the court or judge committing him, or the court in which the judgment was rendered, on such terms as maybe just” (§ 302).

To hold that this authority extends to the collection, by these summary proceedings, of an ordinary debt due to the judgment debtor, invests a judge with a justly dreaded power over the liberty of an embarrassed or insolvent debtor. A party in extensive business, with many debts due to him, has only to allow a judgment to be recovered against him, and he may collect his desperate debts by this severe machinery.

He may send the debtor to jail, and then he may discharge him, according to the sense of justice the judge may entertain.

Inability to pay is thus made punishable with imprisonment—longer or shorter’, depending upon the length of notice for discharge that the imprisoned debtor must give, the ability to reach the case in its regular order of business, the time the judge may hold the case under consideration before deciding it, and the sense of justice the judge may entertain, as to the propriety of discharging the debtor :—a harsh remedy for this age.

It is not necessary by any provision of the Code, that the debtor should be able to pay, to justify an order by the judge requiring him to do so. It is sufficient that he owes a debt to the judgment debtor. The judge may then not only order him to pay it, but commit him to jail for not doing so. Simple inability to pay, is not then ground for a discharge—otherwise the act would have so declared—but if utterly unable to pay, he can be then discharged only upon such terms, as, to the judge, may seem just. First send him to jail, and then let him get out by due process of law—always provided that he can comply with such terms as the judge deems just.

If these provisions as to “property of the judgment debtor in the hands of himself or any other person, or due to the judgment debtor ” in section 297, be confined to property other than debts, choses in action, then these proceedings are without authority. This would give authority to the judge to order a person who had possession of goods, or of specific money belonging to the judgment debtor, or as the statute says, due to him, to deliver it over to the sheriff, to be applied to the satisfaction of the judgment. It not being denied that the property did in fact belong to the judgment debtor, the refusal to deliver it over as ordered, would be a willful contempt of the judge’s order.

It is a very different principle to apply this doctrine of contempt to the collection of debts. The principle of imprisonment for debt was abolished some forty years ago in this State, deliberately, and we are not disposed to revive it by uncertain implications.

■ Therefore, the order appealed from must be reversed, and the motion to set aside the orders of .May 12, and September 29, is granted, with costs.

It was so ordered. 
      
       The amendment of 1870 does not affect this point, hut relates only to staying proceedings.
     