Steinmann v. Conlon — 150 A.D. 708

Majority

p. 708

In the Matter of the Supplementary Proceedings in the Action of Benjamin F. Steinmann and Harry H. Meyers, Judgment Creditors, Respondents, v. Eva K. Conlon, Judgment Debtor, Defendant. Edward B. Hosier, Appellant.

First Department,

May 31, 1912.

Headnote

Supplementary proceedings—when subpoena for examination of third party vacated.

Where, on a motion to vacate a subpoena requiring a witness to testify in a proceeding supplementary to execution, it appears that no proceeding requiring the judgment debtor to appear is pending in which the witness can testify; .that an order has been granted directing a third party to submit to an examination concerning the judgment debtor’s property, but it is not shown that such order was granted in this proceeding or whether there is any basis for requiring the witness to give testimony concerning the judgment debtor’s property held either by him or such third party; and where it further appears that a receiver has already been appointed at the instigation of another judgment creditor, the subpoena should be vacated.

Appeal by Edward B. Hosier from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of April, 1912.'

Jay Noble Emley, for the appellant.

David Steckler, for the respondents.

This appeal is from an order denying a motion to vacate a subpoena requiring appellant to appear and testify in a proceeding supplementary to execution instituted by plaintiffs, the judgment creditors, against defendant, the judgment debtor.

No proceeding requiring the judgment debtor to appear is pending in which appellant could testify. It does appear, however, that an order has been granted directing a third party to appear and submit to an examination concerning the judgment debtor’s property which, it is claimed, is held by him. A copy of such order is not set forth, nor are sufficient facts stated to enable the court to determine whether that order was granted in this proceeding, or whether there is any basis for requiring appel

p. 709

lant to appear as a witness and give testimony concerning the j udgment debtor’s property held either by him or such third party.

Moreover, it appears that a receiver has already been appointed in proceedings supplementary to execution at the instigation of another judgment creditor. Upon his appointment and qualification the title to all of the judgment debtor’s personal property, whether held by the judgment debtor or a third party,, vested in him. (Moore v. Taylor, 40 Hun, 56 .) If there is property in the hands of a third party for whose examination an order has been obtained, that can now he reduced to possession only by the receiver. The examination of the appellant as a witness in a proceeding under that order would be futile, because if property were discovered it would belong to the receiver, to he disposed of by him under an order of the court. (Sorrentino v. Langlois, 144 App. Div. 271 .)

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.