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Lederer v. Ehrenfeld

49 How. Pr. 403 Court N. Y. SUPERIOR COURT. Decision date 1875-09-24 English

Delivered by *404 Van Vorst, J.

Contents

Majority

p. 403
N. Y. SUPERIOR COURT.
Samuel Lederer, Jr., agt. Joseph Ehrenfeld.
Special Term, Chambers,
September 24, 1875.

Headnote

Supplementary proceedings against an infant judgment debtor.
Supplementary proceedings, under section 292 of the Code, are authorized when the execution against the property of the judgment debtor is returned unsatisfied; and this applies to an infant judgment debtor equally with any other.
The regularity of the judgment cannot he questioned in these proceedings.
The plaintiff, who was an infant of about nineteen years of age, commenced an action against the defendant, after a guardian had been duly appointed, for said plaintiff. On the trial of said action the complaint was dismissed, and the defendant asked to have judgment entered against the plaintiff for his costs, and also that the guardian of the plaintiff pay the costs, or on default that an attachment issue against said guardian. On that motion judgment was directed to be entered against the infant plaintiff, and judgment was thereafter so entered. The defendant issued an execution against the property of the plaintiff, and after the return thereof obtained an order for the examination of the plaintiff. The plaintiff moved to set aside and vacate the order on the ground that he was an infant at the time the judgment was entered.
Kinzman & Yeaman, for motion.
A. C. Anderson, opposed.

By order of March 30, 1872, the judgment was ordered to be entered against the plaintiff personally, and it was accordingly so entered. The plaintiff, Samuel Lederer, jr., is the judgment debtor. ■ The proceedings under section 292 of the Code, are authorized when the execution against the property of the judgment debtor is returned unsatisfied.

This step having been taken the supplementary proceedings are regular.

The regularity of the judgment cannot be questioned in this proceeding.

In Grantman agt. Thrall ( 31 How., 464 ), it is suggested that the reasonable and better practice is to issue the execution against the infant in the first instance, before proceeding ' against the guardian. Motion denied.