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Drake v. Barry

73 Misc. 391 Court N.Y. Sup. Ct. English

Delivered by Clarke, J.

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p. 391
In the Matter of Proceedings Supplementary to Execution in the Case Entitled James A. Drake, Judgment Creditor, v. Charles Barry, Judgment Debtor.
(Supreme Court, Steuben Special Term,
September, 1911.)

Headnote

Supplementary proceedings — Time for proceedings — In general —' Second execution.
Supplementary proceedings for the examination of a third person are limited by section 388 of the Code of Civil Procedure and must be instituted within ten years after the return of an execution unsatisfied, and the time is not extended by the reissuing and return of a second execution upon the same judgment.
Motion by judgment debtor to vacate a third party order in supplementary proceedings.
Leslie W. Wellington, for motion.
Fay H. White, opposed.

This is a motion to vacate a third party order in supplementary proceedings. The judgment was recovered in this action in July, 1898. Execution was issued thereon and returned unsatisfied in October, 1898. The matter remained perfectly dormant until August, 1911, considerably more than twelve years after the first execution was returned, when another execution was issued and was returned unsatisfied August 10, 1911, whereupon the judgment creditor procured the order to examine the committee of the person and property of Charles Barry, the judgment

p. 392
debtor; and it is that order which it is sought to have vacated here.

The right to institute supplementary proceedings accrued when the first execution was returned unsatisfied, in October, 1898. It goes without saying that there must be some limit somewhere to the right of a judgment creditor to institute supplementary proceedings, and the statute has placed it at ten years after the return of the execution. Oode Civ. Pro., § 2435. '

A new order cannot be obtained after the expiration of that period, unless the debtor is made a party to a new proceeding to revive the judgment and has due notice of the application. Importers & Traders’ National Bank v. Quackenbush, 143 N. Y. 567 .

The learned counsellor the judgment'creditor urges that-this order was obtained under the authority of section 2441 of the Oode of Civil Procedure, which does not limit the time within which it could be obtained.

It is true that that section does not, in terms, limit the time within which supplementary proceedings can be instituted, but it is a special proceeding and must be governed by section 388 of the Oode of Civil Procedure.

The ten-year rule applies, and the word “ action ” .as- used in section 388, supra, includes special proceedings such as this. Code Civ. Pro., § 414, subd. 4; Biddell-Bullard, Sup. Pro. 79; Peck v. Disken, 41 Misc. Rep. 473 .

Ooncededly the second execution was issued more than ten years after the first one had been returned unsatisfied, and, there having been no proceedings to revive the creditor’s rights by bringing suit on the judgment and procuring a new one, I think the present proceeding was barred, and the order shoiild be vacated.

Motion granted, with ten dollars costs.

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