Frost v. Craig — 16 Daly (N.Y.) 107

Majority

p. 107

James M. Frost, Respondent, against Daniel D. Craig, Appellant.

(Decided April 7th, 1890.)

Headnote

An order in supplementary proceedings required a judgment debtor to deliver to the receiver appointed in such proceedings, a policy of insurance on the debtor’s life, which he alleged he had assigned as security for an indebtedness due from him to an estate of which he was executor. Held, it appearing that such policy was then in the hands of the substituted trustee for the estate, and claimed by him as such security, that the judg- ■ ment debtor’s right to possession was “substantially disputed” within section 2447 of the Code of Civil Procedure, and the order should be so modified as to require only that the judgment debtor assign to the receiver the policy and all his right, title, and interest therein, so that the receiver might take proceedings to recover it from the substituted trustee.

p. 108

An order for examination of a debtor in supplementary proceedings, and a subsequent warrant for his arrest in such proceedings, are independent, and the vacating of the order does not affect the warrant.

A motion to vacate a warrant in supplementary proceedings waives all irregularities in the recitals not specified therein.

Appeal from an order of the General Term of the City Court of New York, affirming an order of that court in supplementary proceedings, requiring the debtor to deliver certain property to the receiver.

The facts are stated in the opinion.

Albert I. Sire, for appellant.""

S. M. Little, for respondent.

This is an appeal by the judgment debtor, from an order of the General Term of the City Court, affirming an order made by that court in proceedings supplementary to execution, requiring him to deliver to Isaac L. Falk, receiver appointed in such proceedings, a life insurance policy for $2,500, issued by the Mutual Life Insurance Company of New York, upon the life of the judgment debtor.

The judgment debtor claims to have transferred the policy in question as security for an indebtedness due from him- to the estate of Henry Baird, of which he was executor. No definite statement as to the amount of such indebtedness is made by him, or by any other person. He testifies generally that he owed the estate $1,500 to $1,600 ; that he took it and some bonds; that he invested some money of the estate in bonds and transferred those bonds to some creditor of his, or disposed of them, he does not remember which. The present holder of the policy, Lewis T. Janes, the substituted trustee of the said estate, makes no statement; but his attorney, A. W. Cutler of New Jersey, swears that he holds the policy as security for indebtedness of the judgment debtor, but is not able to say what the exact indebtedness is, but is satisfied that it exceeds $2,500. J.

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that he has the vouchers of the latter in his hands, and after giving him credit for moneys expended on account of the estate, he is indebted to it in a considerable sum, the amount of which cannot at this time (owing to the ill-health of the judgment debtor) be ascertained.

But although there is no definite statement showing an actual indebtedness from the judgment debtor to the Baird estate, the fact appears to be that he has assigned the policy to his successor, the substituted trustee, as security for an alleged or admitted indebtedness, and that it may be the right and duty of the latter as such trustee to refuse to deliver the policy until required by law to do so. Under such circumstances the right of the judgment debtor to the possession of the property may be said to be “ substantially disputed ” within the terms of the Code (§ 2447), and the order made in the supplementary proceedings should be, not that the judgment debtor deliver the policy to the receiver, but that he assign and convey to the latter the said policy and all his right, title and interest therein, so that the receiver may be in a position to take proceedings to recover it from Janes, the trustee, if the latter has no right to retain it. The order appealed from should be modified accordingly, without costs of this appeal to either party, and as so modified, affirmed.

The judges of the City Court properly decided that the warrant upon which these proceedings were'instituted (Code, § 2438), was independent of the previous order for examination, and that the vacating of such previous order did not affect .the warrant. The Code permits the supplementary proceedings to be instituted by warrant instead of by order (§ 2437), and also permits the warrant to be issued at any time after an order is granted; but it does not appear that in the latter case the subsequent vacating of the order requires the vacating of the warrant. The section provides that the judge may, if necessary, direct the adjournment, or if the return day of the order has elapsed, the continuance of the proceedings under the order, until after the return of the warrant and his decision thereupon. This shows that the

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judgment creditor may abandon the proceedings instituted by the order, and elect to proceed under the warrant, or may keep the proceedings under the order alive until his right to proceed under the warrant is established. But the complete independence of the two proceedings is thus clearly indicated.

The appellant cannot take advantage of any irregularities in the recitals in the warrant, because such irregularities were not specified in his motion to vacate it (Rule 37; Code § 323). The order denying the motion to vacate the warrant must be affirmed, and so with the other intermediate orders appealed from.

No authority is cited for the proposition that the motion to compel delivery of property to the receiver cannot be made by the judgment creditor.

The order appealed from should be modified as heretofore directed, and as so modified, affirmed, without costs to either party. .

Labbemobb,- Ch. J., and Bischoff, J., concurred.

Order accordingly.