Owen v. Dupignac — 9 Abb. Pr. 180

Majority

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OWEN a. DUPIGNAC.

New York Common Pleas ;

General Term, July, 1859.

Headnote

Supplementary Proceedings.—Issue and Return of Execution.

It appeared by the affidavit upon which the order for the examination of the defendant was founded, and the fact was recited in the order, that about fifteen years previously an execution had been issued upon the judgment, "Und had been returned wholly unsatisfied; and that an alias execution, issued shortly before the making of the affidavit, had not been returned.

Held, that the affidavit was sufficient, and the judgment-creditor was entitled to an order for the examination of the defendant.

The right to the examination under the Code is, like the right to discovery under a creditor’s action under the Revised Statutes, unqualifiedly given wherever an execution has been returned unsatisfied in whole or in part.

The rules settled in reference to proceedings under creditor’s bills may be regarded as controlling the practice in supplementary proceedings, when not altered by the Code, or the practice under it.

Of the facts requisite to be stated in the affidavit.

Appeal from an order in supplementary proceedings requiring the judgment-debtor to appear and be examined.

The allegations of the affidavit on which the assignee of the

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judgment obtained the order for the examination of the defendant supplementary to execution, were as follows :

“ That judgment was recovered in this action in favor of the above-named plaintiff, and against the above-named defendant in this court on the 30th day of August, a. d., 1843, for the sum of one hundred and eighty-four dollars and eighty cents, damages and costs, and the judgment-roll filed in the office of the clerk of the city and county of New York on said 30th day of August, 1843; that an execution against the property of said judgment-debtor was immediately thereafter duly issued to the sheriff of said city and county of New York, and the same was thereupon duly returned wholly unsatisfied ;

“That on the 27th day of September, 1858, an alias execution against the property of said judgment-debtor was duly issued to the sheriff of said city and county of New York, for the principal sum and interest then due upon said judgment, which said last-named execution is still in the hands of the said sheriff, and not been by him returned ; that said sheriff informed this deponent that he (said sheriff) had called at the said defendant’s place of business in the city of New York, with the intent and purpose of making a levy under said execution, but was not able to find said judgment-debtor at that time, and was informed by the son of said judgment-debtor who had charge of said place of business, that said judgment-debtor resided out of this State, and was engaged in manufacturing at Norwalk, Conn., and had no property at his said place of business in this city; whereupon said sheriff declined, and still declines to make a levy unless indemnified in respect thereto ; deponent further says that he has made, and caused to be made inquiries in relation to said defendant and his business and property, and as the result of such inquiries, has been informed and believes that the said judgment-debtor has for many years past had his place of business at No. 8 Peck Slip, in the city and county of New York, and has had and still has merchandise and stock, or an interest in the merchandise, stock, and other property at said last-named place; that said judgment-debtor is regularly and frequently at said place of business, and seems to be engaged as the principal party in business at said place ;

“ That one of the persons doing business near said judgment-

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debtor, informed deponent that he supposed said judgment-debtor to be the principal man there without doubt; though as he had some difficulty about 1838, the business was ostensibly done in the young man’s name ; that he supposed the business was done in the son’s name on account of that difficulty ; deponent further says that he has obtained information of like purport from other persons having knowledge of said judgment-debtor, and his business 'at said Eo. 8 Peck Slip ; that from the facts above stated, and diligent inquiries made and caused to be made by deponent, deponent verily believes that said judgment-debtor has property, or an interest and share in property at his said place of business, which is so kept by said judgment-debtor, that it cannot be clearly identified, or with ordinary diligence reached by an execution;

“ Deponent further says that said judgment above named, and all moneys due and to grow due' thereon, has for a valuable consideration been duly assigned to, and now belongs to this deponent.”

Upon this affidavit, the plaintiff, on the 14th day of October, 1858, obtained from a judge of the court the following order :

[Title of the Cause.]

“ It appearing to me by the affidavit of George W. Dixey, the assignee of the plaintiff, that judgment was recovered in the above-entitled action in favor of said plaintiff, and against said defendant on the 30th day of August, 1843, and that an execution upon said judgment against the property of said judgment-debtor was thereafter duly issued to the sheriff of the county of Eew York, where said judgment-debtor then resided, which execution was duly returned wholly unsatisfied, and that afterwards and on the 27th day of September, 1858, an alias execution upon said judgment was duly issued to the sheriff of the county of Eew York, where said judgment-debtor then had and still lias a place of business (though it appears that in fact said judgment-debtor is not a resident of this State), and that said last-named execution has not been returned, and said judgment is still unpaid:

“ I do hereby order and require the said Ebenezer E. Dupignac to appear before me at the chambers of this court, in the City

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Hall, in the city of New York, on the 19th day of October, 1858, at 11 o’clock in the forenoon of that day, to make discovery on oath concerning his property. And the said judgment debtor, Ebenezer E. Dupignac is hereby forbidden to transfer or make any other disposition of any property belonging to him, not exempt by law from execution, or in any manner to interfere therewith until the further order in the premises.

[“Date.] [Signature.”]

This order having been served on the defendant, he moved at special term to vacate it, on account of the insufficiency of the affidavit. The motion was denied, and the defendant appealed to the general term.

Harris Wilson, for the appellants.

I. The power to entertain these proceedings is a statutory authority, and must be strictly pursued ; therefore, when the facts disclosed by the affidavit of the creditor are not such as to make a case within the statute, the officer acquires no jurisdiction over the subject-matter. (Webber a. Hobbie, 13 How. Pr. R., 383; Sackett a. Newton, 10 Ib., 561.)

II. The property sought to be reached by this proceeding must be such as is not tangible and subject to levy, or which is so kept by the debtor that it cannot be clearly identified, and with, ordinary diligence reached by execution. (Sackett a. Newton, 10 How. Pr. R., 560; Dorr a. Noxon, 5 Ib., 29.)

III. The order in this case requires the debtor to appear and make discovery on oath concerning his property. Under subdivision 2, section 292, the judge is only authorized to oz’der the debtor to appear and answer concez-ning the property whiclz he unj ustly refuses to apply towards the satisfaction of the judgment.

IV. The provision of the statute was inteizded to reach choses in action, and equitable interests which could not be reached by execution. (Webber a. Hobbie, 13 How. Pr. R., 383.)

It appeared by the affidavit upon which the order for the examination of the defendant was founded, and the fact was recited in the order’, that an execution had beezr issued upon the judgment, and had been returned

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wholly unsatisfied. This was sufficient to entitle the plaintiff to an order for the examination of the defendant. It was held in Cuyler a. Moreland (6 Paige, 273), that when an execution upon the judgment had been returned unsatisfied that a creditors’ bill might be filed, though the plaintiff had issued another execution, and that he was not bound to wait, before the filing of his bill, until the new execution was also returned unsatisfied. That even where a levy was made under the second execution, the bill might be maintained unless it was shown that the property levied upon was amply sufficient to pay the judgment. And in Bates a. Lyons (7 Paige, 85), it was held where an execution had been returned unsatisfied, that a creditors’ bill might be filed, though the complainant had brought a new suit upon his judgment, and had recovered a new judgment thereon. The principle and the practice established by these cases is applicable to proceedings under section 192, for it has been repeatedly held that these proceedings are to be regarded as a more summary and less expensive substitute for the creditors’ bill under our former system, and that the rules settled in reference to proceedings under creditors’ bills may with propriety be regarded as controlling, when not altered by the Code, or by the practice under it. (Orr’s case, 2 Abbotts’ Pr. R., 458; Griffith a. Dominguez, 2 Duer, 658 ; Davis a. Turner, 4 How. Pr. R., 190; Myer’s case, 2 Abbotts’ Pr. R., 476; Sale a. Lawson, 4 Sandf., 718 ; Lilliendahl a. Fellerman, 11 How. Pr. R., 528.)

It is true that the execution in this case was issued and returned unsatisfied ten years before the application was made for this order. But that makes no difference. The Code in this respect is the same as the provision in the Bevised Statutes respecting creditors’ bills. (2 Rev. Stats., 173, § 38, 1st ed.) The right to the discovery by the examination of the debtor is given whenever an execution has been returned unsatisfied in whole or in part. It is unqualified, and we cannot in face of this statutory provision say that by reason of lapse of time, the creditor must issue another execution and wait its return before he can have the order. The return of an execution unsatisfied is the only condition imposed. (McElwain a. Willis, 9 Wend., 560 .) When that is done, the right is given by the statute, and court cannot take it away or impair it by imposing other conditions. Even before the Bevised Statutes, all that was essential to give

Dissent

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the court jurisdiction was, the return of an execution unsatisfied, to reach property of the debtor held in trust, or fraudulently covered. (Brinkerhoff a. Brown, 1 Johns. Ch„, 671; Beck a. Burdett, 1 Paige, 305; Edmonston a. Lyde, Ib., 636; Child a. Brace, 4 Ib., 309; Clarkson a. Depeyster, 3 Ib., 320; Cassedy a. Meacham, Ib., 311; Donovan a. Finn, 1 Hopk., 59; Angel a. Draper, 1 Vern., 399; Shirley a. Watts, 3 Atk., 200; Balch a. Wostall, 1 P. Wms., 445.) “The legal remedy by execution,” says Chancellor Kent in the first of these cases, Brinkerhoff a. Brown, “ must first be tried, as this court is not to know by anticipation that it will be ineffectual,” and in McDermot a. Strong (4 Johns. Gh., 687), a supplemental bill to reach property in the hands of assignees was filed in 1819, upon an execution returned unsatisfied ten years before, in 1809.

It was upon this ground that I denied the motion to set aside the order, the affidavit disclosing facts sufficient to entitle the plaintiff to examine the judgment-debtor. The other facts set up in the affidavit I regarded as immaterial.

Hilton, J.—I concur in the above.

The second subdivision of section 292 of the Code of Procedure is analogous to the second subdivision of section 8, of the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831. To obtain a warrant under the latter act and subdivision, satisfactory evidence must be adduced to the officer applied to therefor, that the debtor has property which he unjustly refuses to apply to the payment of the judgment set forth, and under the former act and subdivision after the issuing of an execution against property, upon proof to the satisfaction of the judge granting the order, that any judgment-debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such judge may by order require the judgment-debtor to appear at a specified time and place to answer concerning the same. The proceeding referred to under the act of 1831, has been considered as a statute execution, reaching property which is not subject to seizure b y fieri facias, and such as through the fraud of the debtor, either has been, or is in danger of being placed

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beyond the reach of the ordinary process, per Jewett, Ch. J. (Steward a. Biddlecum, 2 Coms., 107; see also Sackett a. Newton, 10 How. Pr. R., 560), and it was held that the applicant under this statute must make out a plain case. (The People ex rel. Van Yalkenburgh a. The Recorder of Albany, 6 Hill, 429 .) I think the same obligation rests upon the applicant under the Code. The proceeding is one in aid of the execution, and the evidence submitted should show that the debtor has property which he unjustly refuses to apply to the payment of the judgment sought to be enforced. Where the circumstances disclosed are such as to justify the presumption that the debtor operating through another, is carrying on business for his own benefit, owning the property with which such business is done, the creditor should be left to the proceeding subsequent to the return of the execution, when by the interposition of a receiver the whole subject may be investigated. The affidavit on which the order herein was obtained is entirely speculative, and may be summed up briefly thus : that there is a place of business in this city, conducted by the son of the defendant, the merchandise and stock and property of which the plaintiff is informed the defendant has had, and still has, or has an interest therein. This is not a plain case. It does not show that the defendant has any property free from claims of third persons, which he refuses to apply to the payment of his debts. On the contrary, the affidavit discloses the fact that the son of the defendant, who had charge of the alleged place of business, informed the sheriff that the defendant had no property therein. I think the order should have been discharged, and that the motion for that purpose made should have been granted.

The order in this case was not granted upon the return of the original execution, and the plaintiff having made application under subdivision 2, of section 292 of the Code, should be confined to his remedy under that subdivision.

The first execution bad been returned about fifteen years, and had ceased, I think, to be operative, for the purposes of the section referred to. See Corning, &c., a. Stebbins (1 Barb. Ch. R., 589.)

Order appealed from affirmed, with $10 costs.