Levey v. Bull — 14 N.Y. St. Rep. 596

Majority

p. 596

Augustus A. Levey, as Receiver, etc., App’lt, v. William Lauman Bull, individually and as Executor and Trustee in the last Will and Testament of Henry R. Worthington, deceased, and others, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 13, 1888.)

Headnote

Supplementary proceedings—Receivers—Powers of—What property THEY MAY RECOVER—CODE ClVIL PRO., § 3463,

Receivers in supplementary proceedings have no power beyond that, given by statute and by section 3463 of the Code of Civil Procedure. Such proceedings are decided not to apply when property is held in trust for a judgment debtor, when the trust proceeded from a person other than the judgment debtor.

Wingate & Cullen, for app’lt; Wetmore & Jenner, for resp’ts.

The plaintiff is a receiver appointed in proceedings supplementary to execution upon judgment against Amelia J. Roe and Henry F. Worthington. These judgments are several and there are other judgments against them, two persons severally wherein -the same receivership has been extended to include them. These two judgment debtors are the children of Henry R. Worthington. By his will the executors are directed to pay from the income $10,000 a year to the widow, and the remaining income to pay quarterly to four children, of whom these judgment debtors are two, during the life-time of the wife. Upon her death the estate is directed to be divided among-these four children. If the children should not be living at the death of the widow, the shares should go to the de

p. 597

ceased children’s children. The property is thus held in trust for the life of the widow, and these two judgment creditors have each a right to one-quarter of the income over $10,000 during his life.

In Campbell v. Foster ( 35 N. Y., 361 ) it was held by the court of appeals that this fund could not be reached by creditors.

In Williams v. Thorn ( 81 N. Y., 383 ) it was held that it was within the power of the court to fix a definite amount of income from a trust fund which should be surplus, and direct that that surplus should go to the judgment creditors.

The question now is whether a receiver in supplementary proceedings can bring an action for the purpose. Receivers in these proceeding have no power beyond that given by statute and by section 2463, Code; such proceedings are decided not to apply when property is held in trust for a judgment debtor, where the trust proceeded from a person other than a judgment debtor. This decision leaves the only power to proceed against the trust fund to the creditors, by direct action, as was done in Tolles v. Wood ( 99 N. Y., 616 ). Manning v. Evans ( 19 Hun, 500 ).

Assuming, therefore, that the averments in the complaint are sufficient to charge that there is an accumulated surplus, the receiver is not the party who is clothed with the power as such to raise the question.

The judgment should, therefore, be affirmed, with costs,

Pratt and Dykman, JJ., concur.