#### In the Matter of Supplementary Proceedings: David Stell and Abraham Lessack, Copartners Doing Business Under the Firm Name of Philadelphia Dress Company, Judgment Creditors, Respondents, *v.*British Union and National Insurance Company, Limited, Judgment Debtor, C. N. Pinkney Company, Third Party, Appellant.

(Supreme Court, Appellate Term, First Department,

October, 1912.)

Supplementary proceedings — order for examination of corporation — contempt.

Where, upon the denial of a motion to vacate a third party order for the examination of. a corporation and its president in supplementary proceedings, the judgment creditor was gramted leave to file an additional affidavit for the purpose of overcoming alleged technical defects in the moving papers, the motion must be deemed tó have been granted upon the filing of such an affidavit; *41and, where the same was not filed, the judgment creditor was not entitled to proceed with the examination, arid the refusal to submit thereto is not a contempt either on the part of the corporation, or its president as an individual.

Appeal from an order of the City Court of the city of ¡New York.

William A. Walling, for appellant.

William Otis Badger, Jr., for respondents.

Guy, J.

Appeal by the C. ¡N". Pinkney Company from an order adjudging the president of the C. ¡N". Pinkney Company in contempt of court in refusing to answer questions upon an examination .under an order in supplementary proceedings.

The judgment-creditor procured a third party order for the examination of the C. ¡NT. Pinkney Company, a corporation of which Charles ¡N". Pinkney is president. The president of the company appeared for examination; hut, during the progress of the examination, a motion was made to vacate the "order upon the ground of the insufficiency of the moving papers. In opposition to the motion, plaintiffs’ attorney submitted an additional affidavit for the purpose of overcoming alleged technical defects in the moving papers. The court denied the motion to vacate the order, at the same time, giving plaintiffs leave to file an additional affidavit. Plaintiffs however, failed to file such affidavit, though they served upon defendant’s attorney a copy of the additional affidavit submitted to the court upon the motion and paid the defendant’s attorney the ten dollars costs allowed to the third party on the denial of the motion." Plaintiffs then insisted upon proceeding with the examination. The third party, the O. ¡N". Pinkney Company, refused to proceed until the affidavit was filed, and the witness, acting under advice of counsel, refused to answer any further questions. A motion was made to punish the third party, the C. ¡N". Pinkney Company, for contempt; the motion was heard, and on order made punish*42ing C. 1ST. Pinkney individually for contempt, from which order this appeal is taken.

By its decision upon the motion to vacate, coupled with the granting of leave to file an additional affidavit, the court in effect held that the original motion papers were insufficient; and the motion must be deemed to have been granted upon the filing of the additional affidavit. The affidavit not having been filed, the plaintiffs were not entitled to proceed with the examination, and the refusal to submit thereto did not constitute a contempt either on the part of the O. ÜST. Pinkney Company, or individually upon the part of Pinkney, its president.

The order must, therefore, be reversed, with ten dollars costs and disbursements and the motion denied, with ten dollars costs.

Seabttey and Bijub, JJ., concur.

Order reversed and motion denied.