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Friedman v. Stein

138 N.Y.S. 928 Court N.Y. Sup. Ct. Decision date 1911-11-09 English

Delivered by KAPPER, J.

Contents

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p. 928
FRIEDMAN v. STEIN.
(Supreme Court, Special Term, Kings County.
November 9, 1911.)

Headnote

1. Execution (§ 364*)—Supplementary Proceedings—Power oe Court—
Property in Possession of Third Person.
Code Civ. Proe. § 2447, which empowers the court to direct a third person in the possession of specific personal property of a judgment debtor to deliver such property to a sheriff or receiver, is expressly limited to property as to ■ which the rights of the debtor are not substantially disputed.
[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1100, 1101; Dec. Dig. § 364.*]
2. Execution (§ 405*)—Supplementary Proceedings—Receiver.
Under Code Civ. Proc. § 2447, the proper procedure, where the question of title to property in the hands of a third person is raised, is to appoint1 a receiver, who can test the question by action, and not to determine the question upon motion.
[Ed. Note.—For other cases, see Execution, Dec. Dig. § 405.*]
*For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep r Indexes
Action by one Friedman against one Stein. Third party order entered for delivery of personal property by a loan company subject to its lien; and motion denied as to the remainder of the property mentionéd in the moving papers.
David Weiss, of New York City, for plaintiff.
Henry Silverman, of New York City, for defendant.

[1] Section 2447 ,of the Code, empowering a judge . to order the property of a judgment debtor held by a third person to be turned over to the sheriff, relates only to specific personal property of the judgment debtor shown to ’exist, and where the right of the debtor thereto is not substantially disputed. Matter of Ehrich, 134 App. Div. 432 , 119 N. Y. Supp. 395 ; Krone v. Klotz, 3 App. Di.v. 587, 38 N. Y. Supp. 225 . A substantial dispute as to the judgment debtor’s ownership of the property, except the watch chain and locket, is presented.

[2] The rule is that, where the question of the title to property in the hands of a third person is raised in supplementary proceedings, the

p. 929
proper procedure is to appoint a receiver, who can test the question by action, and not to determine the matter upon motion. Matter of Thompson, 47 Misc. Rep. 357 , 360, 94 N. Y. Supp. 31 .

An order may be entered for the delivery, subject to the loan company’s lien, of the watch and locket, but denying the motion as to the remainder of the property mentioned in the moving papers, without costs. Submit order.

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