Baker v. Brundage — 29 N.Y.S. 792

Majority

p. 792

BAKER v. BRUNDAGE. COLLINS v. SAME.

(Supreme Court, General Term, Second Department.

June 18, 1894.)

Headnote

Supplementary Proceedings—Irregularities—Who may Object.

Irregularities in appointing a receiver can 'be taken advantage of only by the judgment debtor, and not by another judgment creditor.

Appeal from special term, Orange county.

Two actions, one by Fred Baker against Edward Brundage, and the other by Charles Collins against the same defendant. From an order denying a motion by plaintiff Collins, to vacate supplementary proceedings had by plaintiff Brundage, said Collins appeals.

Affirmed.

Argued before DYKMAN and CULLEN, JJ.

L. S. Sterrit, for appellant.

A. H. F. Seeger, for respondent.

The plaintiff in the first of these actions obtained a judgment against the defendant therein, on the 16th day of January, 1893, for $1,145.90, and an execution was issued thereon to the sheriff of Orange county on the same day. On the 27th day of July, 1893, proceedings supplementary to execution were instituted upon the judgment. The affidavit upon which such proceedings were based stated that the execution upon the judgment had been returned unsatisfied, but the fact was otherwise. The judgment debtor was examined under the proceedings, and a receiver was appointed by his consent. On the 20th day of November, 1893, the plaintiff in the second action obtained a judgment against the defendant for $493, and execution thereon was issued to the sheriff of Orange county, which was returned unsatisfied on the same day. Thereafter, on the 8th day of February, 1894, proceedings supplementary to execution were instituted upon that judgment, which were adjourned to afford time for a motion on behalf of Collins, the plaintiff in the second judgment, to set aside the order appointing a receiver in the first action, upon the ground that the execution issued upon the judgment therein had not been returned at the time when the proceedings were commenced. The motion was denied, and an appeal has been taken from the order of denial. It is unnecessary to examine the irregularities set up by the appellant, because none but the judgment debtor can take advantage of them. Underwood v. Sutcliffe, 10 Hun, 453 , and cases cited. The defendant himself has waived all irregularities by. consenting to the appointment of the receiver in the first action. The order should be afffrmed, with $10 costs and disbursements.