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App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. ceedings supplementary to execution upon the senior judgment and the order appointing the receiver in said proceedings should not be vacated upon papers showing, among other things, that the execution on the senior judgment was not in fact returned by the sheriff and filed with the county clerk until the 14th day of March, 1902, and that it did not become aware of this fact until about a week prior to the application for the order to show cause. It appears by the certificate of the sheriff and by the transcript of the judgment forming part of the moving papers that the execution on the respondent's judgment was not formally returned until the 14th day of March, 1902; but it appears by the affidavit of the deputy sheriff who had charge of the execution that he made entries in the records of the sheriff's office of the return of this execution on the 13th day of March, 1902, and that it was the custom to enter the executions in the main docket of the sheriff's office on the morning following their return by the deputy, and after such entry the executions are returned to the county clerk.

The appellant contends that the court liad no jurisdiction to make the orders, the execution not having been returned unsatisfied, and he bases this contention on the doctrine which seems well sustained by authority, that proceedings supplementary to execution take the place of a bill of discovery which would only lie where the judgment creditor had exhausted his legal remedy and that the issue of a valid execntion and its return unsatisfied were prerequisites to obtaining any relief in equity and are still prerequisites to obtaining the benefit of this remedy under the Code. (McElwain v. Willis, 9 Wend. 548; Dittmar v. Gould, 60 App. Div. 94; Wright v. Nostrand, 94 N. Y. 31; Importers & Traders' Nat. Bank v. Quackenbush, 143 id. 567; Matter of Shannon v. Steger, 75 App. Div. 279.) It does not follow, however, that the orders were void. If it appeared from the proceedings themselves that the court was without jurisdiction of course the orders would be void and might either be dieregarded or vacated on the application of the defendant or a junior judgment creditor (Matter of Shannon v. Steger, supra), but in the case at bar the judge had jurisdiction. The order for the examination of the judgment debtor recites that it was shown to the satisfaction of the judge that execution had been issued and returned unsatisfied. The rule in such case is that the order when attacked collaterally is


(Vol. 86. conclusive evidence of the regularity of the proceedings and presumptive evidence of the existence of the jurisdictional facts, and, therefore, it cannot be attacked collaterally, but only in a direct proceeding. (Palmer v. Colville, 63 IIun, 536; Fischer v. Langbein, 103 N. Y. S4, 91 ; Wright v. Nostrand, supra.) Section 2433 of the Code of Civil Procedure provides that the judge who grants such an order may vacate or modify it as if it were made in an action and that it may be vacated or modified by the court upon motion, and these remedies were undoubtedly designed to be exclusive. The appellant, however, attacks this order directly by motion under said section of the Code of Civil Procedure, but he is confronted not only with the recital of the jurisdictional facts in the order itself, but with the affidavit upon which the order was granted showing that the execution liad been duly returned unsatisfied. The appellant attacks this affidavit as false. The facts necessary to confer jurisdiction on the court were properly and sufficiently presented. No basis for a charge of fraud or bad faith is shown. The precise lour of the return of the execution does not appear, but from the affidavit of the deputy sheriff it presumptively appears from the course of business that it was returned on the morning of the fourteenth, and, if so, this was before the appointment of the receiver. The order being valid and regular, the question as to whether it should be vacated, even if the appellant could litigate the facts anew, at most rested in the sound discretion of the court. The respondent's judgment was prior and he proceeded with due diligence. The equities were with him. The only authority precisely in point is to the effect that the appellant cannot be heard to impeach the affidavit upon which the order was granted. (Baher v. Brund. age, 79 Iun, 382.) The case of Matter of Shannon v. Steger (supra) is not in conflict with Baker v. Brundage, for in the former it appeared on the face of the proceedings that the execution had not been returned as unsatisfied.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

PATTERSON and McLauguLIN, JJ., concurred; Van Brunt, P.J., and O'BRIEN, J., dissented.

Order affirmed, with ten dollars costs and disbursements.

App. Dis.)



W. Bushnell, Appellant.

Testimony as to admissions made by an accused in a conversation with an officer of

the New York Society for the Suppression of l'ice - objection, hou presented to that part which relates to other like offenses.

l'pon the trial of an indictment an officer of the New York Society for the Sup.

pression of Vice, to whom the defendant admitted committing the crime charged in the iudictment, may testify to such admission not withstanding that it was made during an interview which took place between the defendant and the officer at the latter's request, and that the officer did not apprise the defendant of his rights or inform him that any statement he might make might be

used against him. If the witness in relating the conversation which took place at the interview

states facts that are incompetent and inadmissible against the defendant, because they tend to show the commission by the defendant of other similar crimes, the defendant should request the court to instruct the witness to state only that part of the conversation which relates to the commission of the crime charged in the indictment, or, as the evidence of other similar crimes is received, should move to strike it out and have the jury instructed to disregard it; if he neglects to do this he cannot raise upon appeal the question whether the entire conversation was admissible in evidence.

APPEAL by the defendant, George W. Bushnell, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 28th day of June, 1901, convieting him of the crime of sodomy, and also from an order denying the defendant's motion for a new trial and in arrest of judgment.

Hal Bell, for the appellant.

llenry G. Gray, for the respondent. Laughlin, J.:

The appellant contends that the court erred in denying his motion to direct an acquittal, and his counsel argues that the evidence was insufficient to warrant a conviction. The evidence has been examined in the light of the criticism of the counsel for appellant, and we are of opinion that it was not only sufficient to require the submission of the case to the jury, but that any other verdict than one of guilty would have been a miscarriage of justice. It is claimed that the People relied on the testimony of the individual who will


(Vol. 86. ingly submitted to the unnatural acts and who, therefore, was an accomplice, and that his testimony was not sufficiently corroborated. We are of opinion that it was sufficiently corroborated by the testimony of appellant's wife, and of the wife of the janitor of the building in which he had an apartment, and by his own admissions to Anthony Comstock. Although the appellant's failure to testify did not permit any inference of guilt, yet the testimony of the People, being uncontradicted, sufficiently showed and fairly warranted the inference of guilt.

The only question in the case worthy of consideration relates to the conversation between Anthony Comstock and the appellant received in evidence and containing an important admission with reference to the crime of which appellant has been convicted, and also embracing admissions of prior similar practices. The crime of which the appellant has been convicted was committed on the night of the 17th day of March, 1900. Two interviews between the appellant and Mr. Comstock were received in evidence. The first was upon the 2d day of August, 1900, and the second was on the fourteenth day of December in the same year. There was no objection or exception to the evidence of the conversation at the second interview. At that interview Mr. Comstock charged the appellant with having committed a similar offense subsequent to the commission of the crime in question, and the defendant made no denial of the charge. At this time the appellant was arrested upon a warrant for the previous crime now under review, and Mr. Comstock assigned to him as the reason for his arrest his failure to keep a promise made at the first interview to desist from such practices in the future. An important admission concerning the crime in question and the appellant's silence with reference to the rest of the charge, connecting him with this crime, occurred at the first interview. The People claim that in these circumstances they were entitled to show the entire conversation, and cite as authority for that proposition the cases of People v. Loomis (76 App. Div. 243); Gore v. People (162 Ill. 259), and State v. Underwood (75 Mo. 230).

It is not entirely clear that it was essential to a proper presentation of the admission concerning this crime that the entire conversation, embracing the admission of other similar crimes, should have been received; but we deem it unnecessary to decide that question,

App. Div.]


for it was not properly presented by objection and exception. The only objection to the conversation in the first instance, was that it did not appear that Mr. Comstock informed the appellant of the purpose of the interview which took place at Mr. Comstock's office, the appellant having appeared there at his request, or that appellant was apprised of his rights or informed that any statement made might be used against him, and on the further ground that it was inmaterial, irrelevant and too remote. The objections were overruled, and appellant's counsel excepted. It is manifest that these objections were without merit. The witness then proceeded with the conversation, in answer to a question calling upon him to give the conversation which he said he had with the appellant concerning the commission of the criine. Mr. Comstock said that he informed the appellant that a matter had been referred to the New York Society for the Suppression of Vice, of which he was the secretary and chief special agent, in reference to appellant's conduct with young men, and assaults that he had been making upon them. At this point counsel for appellant objected, and moved to strike out this testimony as not responsive to the question. The objection was overruled, and exception taken. The witness then proceeded to narrate the conversation as follows: “I have made a very careful investigation to get at the facts. I have examined one of your victims." Counsel for appellant then inquired of the court whether this was relevant and material. The court replied that, it being a conversation between appellant and the witness, it was admissible, and counsel for appellant excepted.

These statements were preliminary and essential to show the full effect of appellant's admission in part and of his silence with reference to the remaining part of the charge concerning the particular crime in question. It clearly appears from Mr. Comstock’s evidence, subsequently given, that the victim referred to was the complainant in this case. The witness then continued to narrate the conversation in which he charged the appellant with being guilty of the crime of sodoiny with various young men, who were not named, and to which charge appellant made no response. No objection was taken to this evidence, and no motion made to strike it out or to direct the jury to disregard it. Mr. Comstock then narrated what he said to appellant concerning this particular crime, and dur

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