Muldowney v. Corney — 3 Daly (N.Y.) 170

Majority

p. 170

Edward J. Muldowney v. John Corney.

Special Term,

February, 1869.

Headnote

Supplementary proceedings cannot be sustained on the return of a marshal to an execution issued out of a district court. The act of 1865 (chap. 400, p. Í38,. § 2) only refers to process issued by the Marine Court.

Motion to dismiss supplementary proceedings. Judgment was obtained in the Fifth District Court for $72.50, and execution issued thereon to a city marshal, who returned the execution wholly unsatisfied. These facts appearing by affidavit, the court granted an order requiring the defendant to appear before a referee, and be examined under section 292 of the Code. The defendant moved to dismiss the proceedings.

The act of 1865, page 738, amendatory of the act of 1862, by section 3, provides that the return of a marshal to any process issued by any justice of the Marine Court, and directed to him for service or execution, shall have the same force and effect as the return of a sheriff to process issued out of courts of record. There is no such provision in respect to the return of a marshal upon an execution issued out of the district courts. If the execution upon a judgment in one of those courts is issued or returned therefore before any transcript is filed in the office of the clerk of the county by which such judgment becomes a judgment of this court, no proceedings supplementary can be predicated of such return. By section 292, the order in such proceedings must be based upon the return of an execution issued to the sheriff, where the order for examination is not merely in aid of the execution still outstanding. The statute must be strictly followed, and as there is no-provision of law by which the return of a marshal to the execution issued out of' a district court shall have the same force and effect as the return of a sheriff to process issued out of a court of record, no proceeding supplementary can be sustained on such a return. The order granted, therefore, must be discharged. Ordered accordingly.