Pendleton v. Friedman

One Caroline Glatner is alleged to have obtained judgment in the Municipal Court of the city of New York, borough of Manhattan, Eighth district, against the defendant Friedman, and subsequently to have instituted supplementary proceedings thereon, in which proceeding this plaintiff was appointed receiver of the property of the judgment debtor. He brings this action to set aside a transfer of property claimed to have been made by the defendant Friedman in fraud of his creditors. The defendant interposed an answer, and under the right given by section 547 of the Code of Civil Procedure moved for judgment dismissing the plaintiff’s complaint, insisting that it stated no cause of action, because it failed to allege facts showing jurisdiction in the Municipal Court to render judgment against the defendant, and because it failed to show that execution

The complaint simply states that Caroline Glatner recovered judgment against the defendant Friedman in the specified Municipal Court for a certain sum, and that such judgment was docketed in the office of the clerk of the county of New York, without stating any facts showing that the Municipal Court had jurisdiction to render judgment against the defendant. The Municipal Court is one of limited and ■special jurisdiction, and, when a judgment rendered therein forms the basis of any action or judicial proceeding, jurisdiction must be pleaded and proved, for there is no presumption in its favor. Friedman v. Metropolitan Steamship Co., 109 App. Div. 600 , 96 N. Y. Supp. 331 .

It is urged that the allegation of the complaint setting forth that the judgment was docketed in the clerk’s office of the county of New York, and that supplementary proceedings thereon were duly instituted in the City Court, and that this plaintiff was duly appointed receiver therein, cures this defect. We think not. The .judgment is the basis of this action, and jurisdiction in the court which rendered it must appear.

We are of opinion," also, that the complaint is fatally defective in ¡failing to allege sufficient facts with respect to the issuing of an exeicution. It is alleged that the execution was issued to the sheriff of the .county of New York, where the judgment debtor then had and still 'has a place for the regular transaction of business in person. An issue of execution to the sheriff of the county where the judgment •debtor has, at the commencement of the proceeding, a place for the ■regular transaction of business in person, is sufficient upon which to ■found supplementary proceedings. Section 2458 of the Code of Civil "Procedure prescribes that supplementary proceedings lie where an -execution has been issued, either to such county, or, if the judgment ■debtor is a resident of the state, to the sheriff of the county where he •resides. The issue of execution, however, upon which to found a judgment creditor’s action, is regulated by section 1872 of the Code. This section provides as follows:

“To entitle the judgment creditor to maintain an action as prescribed in the •last section, the execution must have been issued as follows: (1) If at the ¡time of the commencement of the action the judgment debtor is a resident of .the state, to the sheriff of the county where he resides. (2) If he is not then a •resident of the state, to the sheriff of the county where he has an office for the ¡regular transaction of business in person.”

If the defendant was a resident of the state, it therefore was not ■sufficient to issue an execution to the county in which he did not reside, but in which he had an office for the regular transaction of. business in person. If he was not a resident of the state, the complaint should have so alleged, and thus disclosed that the execution was issued to the proper county. In an action by a judgment creditor to set aside- a transfer of his judgment debtor on the ground of fraud, the complaint must allege the proper issuing of the execution and its return unsatisfied. Adsit v. Butler, 87 N. Y. 585 .

The plaintiff seeks to avoid this conceded requirement of the law because he is not the judgment creditor himself, but is a receiver ap

The fatal defects existing, it was error for the learned Specials' Term to refuse to grant the defendant’s motion for judgment and to dismiss the plaintiff’s complaint.

The order must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, unless the plaintiff amends his complaint and . pays the costs of the action and costs in this courfc within 20 days after the service of this order. All concur.