SCHULTZ v. DE HART.
(Supreme Court, Appellate Term, First Department.
June 14, 1915.)
1. Courts <@=>190—Municipal Courts—Appeal—Motion to Dismiss—Air. IKDAVIT.
Where a motion to dismiss an appeal from the Municipal Court is not accompanied by an affidavit, so that the court cannot determine the motion without resort to the record, the motion will be dismissed.
[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>190; Appeal and Error, Cent. Dig. § 103.]
2. Courts <@=>190—Municipal Courts—Appealable Orders—Issuance oe Execution Against Wages.
An order of the Municipal Court, denying a motion to set aside an order issuing execution against defendant’s wages, is not appealable.
[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>190; Appeal and Error, Cent. Dig. § 103.]
<§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, First District.
*940Action by Harry Schultz against H. Clarence De Hart. From an order denying defendant’s motion to vacate an order for the issuance of an execution against his wages, defendant appeals, and plaintiff moves to dismiss the appeal.
Motion dismissed, and appeal dismissed.
Argued May term, 1915, before GUY, LEHMAN, and WHITAKER, JJ.
Dilworth & Wurts, of New York City (William H. Wurts, of New York City, of counsel), for appellant.
Hirschman & Drucker, of New York City (Edward W. Drucker, of New York City, of counsel), for respondent.
GUY, J.
The defendant appeals from an order denying his motion to vacate an order which directed that an execution issue out of the Municipal Court against the earnings, wages, and salary of the defendant.
[1] The plaintiff moves for an order dismissing the appeal, upon the ground that the order is not appealable. The notice of motion is not accompanied by any affidavit. Consequently the notice is not based upon any statement of facts to enable the court to determine the motion without resort to the record, and the motion must therefore be dismissed.
[2] An examination of the record discloses that the order is not appealable, and therefore the appeal must be dismissed.
Motion and appeal dismissed, without costs to either party. All concur.