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Ryan v. Wagner

143 A.D. 176 Court Second Department, Decision date 1911-02-24 English

Delivered by Rich, J. :

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p. 176
In the Matter of Supplementary Proceedings of Daniel Ryan, as Administrator, etc., of Timothy Ryan, Deceased, Judgment Creditor, Appellant, v. Louis Wagner, Judgment Debtor, Respondent.
Second Department,
February 24, 1911.

Headnote

Supplementary proceedings —receiver.
A receiver may "beappointed in proceedings supplementary to execution, although there be no proof that the judgment debtor has property which may be applied to the payment of the judgment.
p. 177
Appeal by the judgment creditor, Daniel Ryan, from an order of the Supreme Court, made at the Engs County Special Term and entered in the office of the clerk of the county of Engs on the 27th day of October, 1910, denying his motion for the appointment of a receiver in proceedings supplementary to execution.
Charles E. Thorn [M. P. O' Connor with him on the brief], for the appellant.
Edgar J. Treacy [Abram I. Elkus with him on the brief], for the respondent.

The rights of the parties depend upon the determination of the question whether the judgment debtor has a vested estate or present interest in the estate of his deceased father. We think it unwise, however, to decide that question in this proceeding, as the order must be reversed upon another ground.

The learned justice at Special Term based the denial of the motion upon the sole ground that there was no proof that the judgment debtor had any property, and hence the appointment of a receiver would serve no purpose. We think the court was in error, for the reason that upon such an application it is not a condition precedent to the appointing of a receiver that it be made to appear that the judgment debtor has property which may be applied to the payment of the judgment, as was held in Dease v. Reese ( 39 Misc. Rep. 657 ).

The order must be reversed, with ten dollars costs and disbursements, and the motion for the appointment of a receiver granted.

Jenks, P. J., and Thomas, J., concurred; Burr and Carr, JJ., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion for the ap2iointment of a receiver granted, with costs.

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