Teller v. Randall — 40 Barb. 242

Majority

p. 242

Teller vs. Randall and Briare.

Headnote

Where, upon proceedings supplementary to execution, it appears that property of the judgment debtor is in the hands of a third person who claims title thereto by transfer from the debtor, the judge has no power to proceed to try the title to such property and summarily to determine to whom it belongs, and impose a fine upon the defendant. Peckham, J. dissented.

The proper course is for the judge to appoint a receiver, by whom an action may be brought against the person claiming the property, to test the validity of his claim.

p. 243

APPEAL "by the defendant Eandall, from an order made by the county judge of Albany county, in proceedings supplementary to execution.

Upon the examination of the defendant Eandall before the referee, it appeared that he had received money from the avails of property sold and disposed of since the service of the order upon him, which property, it was alleged, belonged to one Stone, and which the defendant- claimed to have transferred to Stone by a bill of sale. It appeared, upon the "examination, that the defendant, claiming, to be indebted to Stone for liabilities incurred by him as indorser of notes, and prior to the service of the order, executed to Stone a bill of sale of the personal property sold by him, including also other personal property. On the 18th September, 1862, the county judge made an order that the defendant show cause before him on the 22d of September following, why an attachment should not be issued against him, and he be punished for a contempt for selling, disposing of, and interfering with his property since' the service of the first order.

The defendant appeared; interrogatories were filed, and the defendant answered substantially as upon his examination under the first order. The affidavit of Stone was also introduced, showing that he, Stone, claimed to own the property sold and disposed of by the defendant, under the bill of sale to him, as stated by the defendant. The county judge thereupon made an order reciting that the defendant was guilty of misconduct in having disposed of the property in violation of the first order, and adjudging that he pay a fine of $65; that being the value of the property, to the plaintiff; that an attachment issue against the defendant, and that he be committed to the county jail of Albany county until the said fine should be paid. »

John D. Livingston, for the defendant.

I. Lawson, for the plaintiff.

The question presented upon the appeal arises under the provisions of the code in regard to proceedings supplementary to execution. The proceedings were instituted under § 292, and it is provided by § 297 that the judge may order the property of the judgment debtor not exempt from execution, in the hands of either himself or of any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment. It is however quite obviou" from § 299, that it was not intended that the judge should proceed to try the title to property, when it was disputed, and summarily to determine to whom it belonged. The proper course to be pursued in such cases would be to appoint a- receiver, and by an action, to test any question which may arise as to the validity of the claim. In the case of The People v. King, ( 9 How. 97 ,) it was decided that in supplementary proceedings, where the title to funds in the hands of the defendant is in dispute, claimed by persons other than the -defendant, it was improper to make an order that the defendant pay over the money and apply it directly in satisfaction of the judgment; and that the judge had no authority to try and determine, in this summary manner, these conflicting claims. (See also Sherwood v. Buffalo and New York City R. R. Co., 12 How. Pr. Rep. 139 ; Rodman v. Henry, 17 N. Y. Rep. 484 .)

Under the cases cited, I do not think that the county judge was authorized to make the order imposing a fine upon the defendant. Although the property which was claimed by Stone had been converted into money, and in this respect may be considered, in an aspect somewhat different from other property which might be seized on execution, yet I do not consider that this fact alters the principle applicable to the case. The judgment debtor claimed that it belonged to a third party, who also claimed to own it. With these conflicting claimants the title could only be determined by legal proceedings commenced expressly for that purpose. It is said that the appointment of the receiver would be of no avail as the debtor

p. 245

was irresponsible and insolvent, and the money could only be reached and applied by the order of the judge to pay it over to the judgment creditor.

[Albany General Term,

December 1, 1862.

I do not think that this view of the case can be sustained. The very same end could be accomplished in another way, and quite as effectually. 'While the judge had no power to decide a disputed question as to the ownership of the money, in this summary manner, he had full authority to order the appointment of a receiver, who might bring an action against the claimant to test the question of ownership. ( 17 N. Y. Rep. 384 .) Here was a full and adequate remedy, and in accordance with what I understand to be the practice in similar cases. The county judge actually determined the whole question of title by his proceedings. This I think he had no right to do, and the proceedings should be reversed, with ten dollars costs of appeal.

Hogeboom, J. concurred.

Peckham, J. dissented.

Order reversed.

Hogeboom, Peckham and Miller, Justices.]