Majority
p. 1002RATHERS v. KAPLAN. (Supreme Court, Special Term, New York County. August 8, 1911.)
Headnote
1. Execution (§ 390*)—Supplementary Proceedings—Property of Debtorin Possession of Third Person—Restraining Order.
The purpose of a restraining order to a person in possession of property of a judgment debtor is to preserve the property pending an order for its application to the payment of the judgment, and a third party having the legal title to such property may move to vacate such restraining order.
[Ed. Note.—For other cases, see Execution, Cent Dig. § 1141; Dec. Dig. § 390.*]
2. Execution (§ 390*)—Supplementary Proceedings—Property of Debtor
in Possession of Third Person.
Where a judgment debtor’s ownership of property in the possession of a third person is in dispute, no restraining order against such third party can be had.
[Ed. Note.—For other cases, see Execution, Cent. Dig. § 1141; Dec. Dig. § 390.*]
Action by one Rathers against one Kaplan. On motion by third party to vacate the restraining provision of a third party order. Motion granted.
Jas. H. Hickey, of New York City, for plaintiff.
Morris Leight, of New York City, for defendant.
[1] It is sufficient that this motion to vacate the restraining provision of the third party order is made in behalf of the corporation having the legal title to the money deposited. The purport of the restraining provision is to preserve the property in the hands of the third party pending an order directing its application towards the payment of the judgment.
[2] Where, however, the ownership of the property by the judgment debtor is in dispute, as it is here, no such order can be had. Locke v. Mabbett, 3 Abb. Dec. 68. The ground for the restraint of the third party having failed, the restraint can serve no further purpose in the proceeding.
Mqtion granted, without costs. Settle order on notice.