Foster v. Prince — 8 Abb. Pr. 407

Majority

p. 407

FOSTER a. PRINCE.

Supreme Court, First District; General Term,

May, 1859.

Headnote

Supplementary Proceedings.—Examination op Third Party.— Appeal.

The examination in supplementary proceedings of a debtor to the judgment debtor, or of those having property belonging to him, under section 294 of the Code, may be ordered in the county in which such third party resides, without reference to the residence of the judgment debtor.

It seems, that the judgment debtor is not entitled to notice of such examination. The judgment debtors appeared on the return of an order for the examination of a third party, for the purpose merely of objecting to the granting of any order affecting their rights, and the judge made an order directing the third party to pay over to the plaintiff moneys belonging to one of the judgment debtors.

Held, that the judgment debtors could not maintain an appeal from such order.

Appeal from an order in supplementary proceedings.

The plaintiff in this action made an affidavit that he had obtained judgment therein against the defendants for a sum specified ; that the judgment-roll was filed in the office of the clerk of the city and county of New York; and stating further, “ that an execution thereon against the property of the judgment debtors has been duly issued to the sheriff of the city and county of New York, and the sheriff of the county of Queens; that the judgment debtors resided in said county of Queens at the time of issuing such execution, and still so reside, and that the Fulton Bank, in the city of New York is indebted to the judgment debtors in an amount exceeding ten dollars.” Upon this affidavit the plaintiff obtained ex parte from a justice of the Supreme Court, in the first district, an order which, after reciting the facts shown by the affidavit, concluded as follows: “ I do hereby require the said Fulton Bank, William J. Lane, the cashier thereof, to appear before me at the chambers of this court in,” &c., “ on the 30th day of Rovember, 1858, at 10 o’clock in the forenoon, and be examined concerning the

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same. And the said Fulton Bank and its officers are hereby forbidden to transfer the property of said defendants now in their hands, or otherwise dispose of the same, or in any way interfere therewith until further order in the premises.”

This order was made on the 22d day of ¡November, and on the same day it was with a copy of the affidavit served on the cashier of the Fulton Bank, and copies of the order and affidavit, with a notice indorsed that the within were copies of such order and affidavit, were on the same day deposited in the post-office in the city of New York, addressed to the defendants at Flushing, Long Island, and the postage paid thereon.

On the return day of the order the cashier of the Fulton Bank appeared pursuant to its requirement, before Hr. Justice Clerke, and submitted without objection to examination. He testified that the bank kept an account with Wm. E. Prince, one of the defendants, but none with Wm. Prince the other. That there was then to the credit of Wm. E. Prince, in account, the sum of $198.55 due him from the Fulton Bank.

Upon the examination, counsel for the defendants appeared for the purpose of raising objections on their behalf to the making of any order affecting them.

The court, however, made an order that the bank pay over to the plaintiff or his attorneys the sum appearing to be due from them to one of the defendants.

From this order the defendants now appealed.

Henry Bleekman, for the appellants.

I. The order in this case granted by Justice Clerke was a nullity, because the Code does not contemplate that proceedings of this nature can be had in any other county than that where the judgment debtor resides. The affidavit upon which the first order was granted, showed that both defendants reside in Queens county, and the order is made returnable in Hew York.

II. The Code contemplates that the plaintiff shall proceed first under section 292, and that proceedings under section 294 are to be taken merely in aid of the principal proceeding against the judgment debtor, and must be had in connection with section 292, and cannot be resorted to independently of any proceeding against such judgment debtor. (Sherwood a. The Buffalo and New York City Railroad, 12 How. Pr. R., 136;

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Hinds a. Canandaigua and Niagara Railroad, 10 Ib., 489; 4 Ib., 178.)

III. Before any order under section 297, like the one appealed from could be made, the plaintiff should show clearly by his papers, that he had complied with section 292 and section 294. The order in the first instance should have required the plaintiff to serve a copy of that order on the defendant. Section 297 clearly contemplates notice to be given to the judgment debtor, if not, how could he show that the property sought to be reached was earned by him within sixty days next preceding the order, and that such earnings were necessary for the use of a family supported wholly or in part by his labor. Section 297 of the Code clearly contemplates that the defendant should have notice of the proceedings.

IV. This is a proceeding under section 294, which does not authorize the court to apply property of the judgment debtor in payment of the judgment.

V. There was no service or notice given to defendants as the law recognizes. It could not be made through the mail. It is in its nature an original proceeding, and must be made personally.

VI. But if the court should hold the notice served by mail sufficient, yet it would be of no avail, because the proceeding should be in Queens county, and not elsewhere, and the court cannot take the defendant’s property from him by an order returnable in New York. The court gets no jurisdiction of the defendant except the proceedings be had in the county where he resides, and jurisdiction must be had before the order can be made to apply his property in the hands of a third person on the judgment. (See 12 How. Pr. R., 138.)

YIL The most that section contemplates is, before or after the return of an execution, to bring up a third person and examine him to find out whether he has property of the judgment debtor, or is indebted to him, and if on such examination it be found that he is indebted to the judgment debtor, or has property belonging to him, to restrain him from parting with it until proceedings can be taken against the judgment debtor under section 292; and when that be done, and the judgment debtor has a chance to be heard, and no good reason shown why an order under section 297 should not be made, the court have the power to make it.

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This court have refused to appoint a receiver until the judgment creditor has been duly brought into court so that he could defend, and the court will not deprive a man of his property as this order has done, when it refuses to transfer it to a receiver. (Tychener a. Tychener, decided by Justice Clerke, April 7, 1854; see also Voorhees’ Code, 5th ed., 406, note.)

John S. Jenness, for the respondents.

Foster, the plaintiff, having obtained a judgment against the Messrs. Prince, residing at Flushing, in Queens county, upon which an execution to that county had' afterwards been returned unsatisfied, took steps to compel the application of a balance standing to the credit of one of the defendants, in the Fulton Bank of New York, to the satisfaction of the demand.

On the 22d of November one of the judges of this court ac: cordingly made an order requiring the cashier of the bank to appear before him in this city, to be examined concerning the alleged balance of the defendant, and enjoining the bank in the mean while from parting with, or otherwise disposing of the fund. Upon the examination on the 30th of the same month, another order was made directing the bank to pay over the balance to the judgment creditor.

The defendants, the judgment debtors, now contend that this order was a nullity; that as they resided in Queens county, although the bank was in New York, the judge in the first district had no jurisdiction. No objection is made on the part of the bank. All that the bank requires is protection against any double demand. And as to the judgment debtors, the point raised by them, it will be seen, is merely technical; for no man can doubt the justice of compelling a debtor, residing in Queens, to pay his debts out of a balance of his credit in bank, even though the banking-house should be in New York.

The question raised turns on the true interpretation of the Code; sections 292 and 294 of which provide that in a case like the present, the judgment creditor is entitled to an order from “ a judge of the cov/rif compelling the debtor to appear

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and answer before him within the county where the debtor resides touching his property, and also to an order requiring any debtor to the judgment debtor, to appear and answer at a specified time and place, concerning such debt. The judgment debtor is to appear in the particular county, but the debtor to the judgment debtor is to appear “ at a specified place meaning, of course, a place to be specified by the judge, who would naturally select a place, other things being equal, most convenient to the person to be examined, and not necessarily to the judgment debtor. It is right to do so, and its fitness, also, is shown by the provision which dispenses with any attendance in such case as matter of right or obligation, of the judgment debtor on the examination of said third party. I allude to the clause in section 294, which declares that “ the judge (meaning judge of the court,’ that is any judge of the Supreme Court), may also, in Ms discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.”

As, then, the party to the action has no absolute right to notice of the time and place of examining his debtor, he of course cannot except to the selection.

This view of the true meaning of the Code is further confirmed by section 293, which declares that “ after the issuing of execution against property, any person, indebted to the judgement debtor, may pay to the sheriff the amount of his debt, or so much as shall be necessary to satisfy the execution, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid.” Ko consent, it will be perceived, is required on the part of the judgment debtor, nor any notice to enable him, if so disposed, to prevent the application of that, which is due to him from one person, to the payment of that which is due by him to another. If then his debtor, without his consent, may pay voluntarily, how can he complain that his debtor, without his consent, has paid under the sanction of the judge?

As the defendants, whatever may be said in respect of the bank, are not aggrieved, they cannot complain, and their appeal, of course, should be dismissed.

Appeal dismissed, with costs.

Footnotes

* Present. Roosevelt, P. J., and Ingraham and Pratt, JJ.