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In re Albright

105 N.Y.S. 486 Court N.Y. Sup. Ct. English

Delivered by WHEELER, J.

Contents

Majority

p. 486
(55 Misc. Rep. 324)
In re ALBRIGHT. In re SMITH.
(Supreme Court, Special Term, Erie County.
June, 1907.)

Headnote

Execution — Supplementary Proceedings — Creditors’ Suit — Nature and Form op Remedy—Election.
Where a judgment creditor, pending the examination of a third party in proceedings supplementary to execution, commenced an action in the nature of a creditors’ bill against the third party and others, seeking to set aside the conveyances of certain properties made by the judgment debtor to him, he did not thereby waive his right to examine the third party in the supplementary proceedings, since the remedies provided by supplementary proceedings and by judgment creditors’ actions are concurrent, and the judgment creditor may prosecute either or both until satisfaction of the judgment.
Application of William Wheeler Smith, judgment creditor, for the examination of John J. Albright, a third person, in a proceeding supplementary to execution.
Order directing the witness to appear and submit to further examination granted.
William C. Carroll, for the motion.
Louis L.- Babcock, for J. J. Albright, opposed.

The affidavits disclose that an order for the examination of John J. Albright as a third party in proceedings supplementary to execution was heretofore granted, and that he appeared before the referee and submitted to a partial examination, whereupon the proceedings were adjourned for a further hearing, which Mr. Al-bright promised to attend. Subsequent to this adjournment, and prior to the time fixed for the second hearing, the judgment creditor commenced an action in the courts of the District of Columbia in the nature of a creditors’ bill against Mr. Albright and others, seeking to set aside the conveyance of certain properties made by the judgment debtor to Mr. Albright. It is claimed that by so doing the judgment

p. 487
debtor has elected his remedy, and ought not to be permitted to continue this proceeding in order to enable him to obtain evidence in aid of his creditors’ action in Washington. Tor these reasons Mr. Al-bright declined to appear before the referee and submit to a further examination, and thereupon a motion is now made by counsel for the judgment creditor for an order requiring such appearance and submission to an examination.

The authorities sustain the judgment creditor in this application. It is held that the remedies provided by supplementary proceedings and by judgment creditors’ actions are concurrent, and that the judgment creditor may prosecute either or both until satisfaction of the judgment, and that the judgment creditor does not waive his right to examine in supplementary proceedings by bringing a creditors’ action. In re Bacheller De Ponce De Leon, 69 N. Y. Supp. 242 ; In re Sickle, 52 Hun. 527 , 5 N. Y. Supp. 703 ; Schloss v. Wallach, 16 Abb. N. C. 319 . Note Schloss v. Wallach, 38 Hun, 638 ; Id., 102 N. Y. 683 . The right of the judgment creditor for a further examination of Mr. Al-bright appears plain.

Let an order be entered directing such an appearance and submission to an examination on a day to be mutually agreed upon, and if such a day cannot be agreed upon the court will fix the date in the order to be entered herein.

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