Patten v. Connah — 13 Abb. Pr. 418

Majority

p. 418

PATTEN a. CONNAH.

New York Common Pleas ;

General Term, October, 1861.

Headnote

Supplementary Proceedings.^[1] —Debts due to Judgment-Debtor.

-Where the plaintiff had obtained an order, under § 297 of the Code, that the defendant pay to him money due to a judgment-debtor of the plaintiff, which .the

p. 419

defendant failed to pay;—Held, that the plaintiff was not entitled to recover by action from the defendant, the sum so directed to be paid, but that a receiver of the judgment-debtor’s property should have been appointed.

Appeal from a judgment of the Marine Court.

This action was'brought to recover the sum of $570, claimed to be due from the defendant, under an order made in supplementary proceedings by a justice of the Supreme Court. The plaintiff had obtained a judgment against one Crane, for about $1400; after the return of execution unsatisfied, the plaintiff, under § 294 of the Code, examined the defendant as the debtor of Crane. On that examination she admitted she owed Crane for rent $570, and to which she had no set-off or claim. The judge, by order, directed the amount acknowledged by her to be due Crane, to be paid Patten on his judgment. The defendant having refused to pay him on the service of this order, Patten obtained an order for her" to show cause why she did not obey the order of the court. On the return-day Connah returned for answer that she had not then the money to pay, and Justice Davis dismissed the motion, with' $10 costs to be paid by plaintiff, but to be deducted from the amount ordered to be paid by Connah to Patten. Plaintiff then commenced this action in the Marine Court against Connah, upon the order directing her to pay him the amount of rent she owed to Crane, and the Marine Court having decided in favor of the defendant the plaintiff appealed to the Common Pleas.

Joseph H. Patten, for the appellant.

—I. The order directing Connah to pay the judgment-creditors the debt she owed Crane,

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vested the debt in the judgment-creditors. It did this, or else the court had no power to make the order. (Code, § 297.)

II. " That the debt after this order was vested in plaintiff is evident. 1. Because his receipt would have been a full receipt for the payment. 2. Crane, after the order, could not have assigned" the debt. 3. It could not have been paid to him. 4. He could not have sued for it. 5. If he had sued, he would have been beaten by a plea that she did not owe him any thing, but owed it to plaintiff.

III. A receiver is-but an assignee appointed by the court,— if, then, Crane could not sue, his assignee or receiver could not Sue, as Connah owed him nothing." (Towson a. Watson, Turn. & Russ., 421.)

IY. Section 299 of the Code, by directing “a receiver and a suit, where the debt is denied,” precludes the appointment of one where the debt is admitted. (Code, § 299.)

Y. The appointment of a receiver and a suit would be absurd in a proceeding intended to “ aid and expédite a judgment-creditor,” in which the debt is not denied.

YI. The Code (§ 244) points out the cases in which a receiver can be appointed. A case like this is not one of them, and is, therefore, excluded. • -■

YH. Unless plaintiff can sue defendant, he has no means of obtaining this debt, as the court has refused an attachment. And, as- shown above, a receiver of Crane’s property could not sue, and so this debt of Connah’s will neither.be .paid to plaintiff or to Crane, and plaintiff’s judgment is cancelled to the amount of five hundred and thirty-seven dollars.

YIII. That the plaintiff has h right to maintaih 'this ‘suit is settled by Paff a. Kinney ( 1 Bradf., 1 ) ; Dubois a. Dubois ( 6 Cow., 494 ) ; Post a. Neafie ( 3 Cai., 22 ) ; 7 Wentworth Pl., 95 ; Sadler a. Robins (1 Campb., 253) ; and see Rules U. S. Court, Washington ed., 36, Rules 8, 10.

A. S. Van Duzer, for the respondent.

—I. This action cannot be maintained. "1. Is it an action of tort? The" defendant has not damaged the plaintiff in any way. 2. Is it an action of contract ? where is the privity of contract between them.

II. The.plaintiff has mistaken his remedy. • A receiver should have been appointed, under § 298 of the Code," and the defend

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ant would then be liable to the receiver for the sum originally due to Crane.

—This is an appeal from the Marine Court, in a suit brought by the plaintiff upon an order of a justice of the Supreme Court in proceedings supplementary to execution ; in which proceedings the defendant, Connah, was examined as a debtor of Crane, the judgment-debtor, and on such examination admitted that she owed Crane for rent the sum of $570 to which she had no set-off or claim. The judge, under | 297, ordered her to -pay the aniount to Patten towards satisfaction of liis judgment, and having refused to do so, Patten supposes he has a right to bring a suit upon this order, in the nature of an action of assumpsit. We think not; and that a receiver of Crane’s property must be appointed, and the suit brought by him against Connah.

Judgment affirmed.

Footnotes

* Present, Daly, Brady, and Hilton, JJ.