Majority
p. 208MATTER OF CLARK. N. Y. Supreme Ct., First Department; Chambers, December, 1876.
Headnote
Leave to issue Execution.A surrogate’s order granting leave to issue execution against executors is a sufficient adjudication of existence of assets, as against a receiver of the estate.[1]
Where, after an application had been made to the surrogate for leave
p. 209
to issue execution against executors, and before the order had been granted, a receiver of the property of decedent was appointed in an action in the supreme court,—Held, that upon the surrogate granting leave, the supreme court would give the receiver leave to pay the amount due on the execution.
Motion for leave to issue execution against the goods, chattels, &c., of John H. McCrum, deceased.
In February, 1876, Samuel and Alexander Clark obtained a judgment against the executors of John H. McCrum. On March 15 a petition was filed and proceedings taken in the surrogate’s court of New York county, for leave to issue an execution upon the judgment against the executors, under the statute, on, the ground that there were assets in their hands applicable thereto. The order was granted on May 6 following, and an execution issued in pursuance of the order.
On March 28, 1876, an order was entered in the supreme court, in an action brought by one of the executors against the others, appointing Joseph J. O’Donohue receiver of the property of decedent.
George V. N. Baldwin, for plaintiff,—Moved that the receiver have leave to pay the sheriff the amount due on the execution out of moneys in his hands, or relinquish to the sheriff, and that the sheriff levy upon and sell property enough to satisfy it.
J. P. Lowery, opposed.
While the surrogate’s order remains in force it is a sufficient basis for issuing execution, and must be regarded as an adjudication that the assets are abundant to justify the making of the order. The execution is rendered unavailing by the appointment and possession of the receiver. The court can only carry the order of the surrogate into effect by allowing-the order now asked for. Motion granted.