Kennedy v. Burr — 19 N.Y. St. Rep. 158

Majority

p. 158

Euphemia E. Kennedy and ano., Executrices, etc., App’lts, v. William H. Burr, et al., Granville S. Ingraham, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Execution — Rights oe succeeding execution-creditors — When DORMANT AS ?0 THEM.

The property of the debtors was seized under an attachment in favor of the plainffs in this action on the day succeeding the completed levy under the execution in favor of Ingraham against the same defendants. This application is made to secure priority over that execution for the plaintiffs in this action upon the ground that the proceeding was a friendly one, intended to protect the judgment-debtors in the use of their property and not for the collection of the execution. Held, that if these facts were established the plaintiffs and their action would be entitled to an order securing to them that advantage. That when an execution is issued in favor of the debtor and not for its enforcement against his property, it will become dormant in favor of succeeding execution-creditors.

Appeal from an order denying an application to restrain the sheriff from proceeding under an execution held by his deputy in favor of the respondent Granville S. Ingraham and to secure to the execution of the plaintiffs in this action priority in payment out of the proceeds of the debt- or’s property.

James Bennett, for appl’ts': Thomas Allison, for respondent Ingraham.

The property of the debtors was seized' under an attachment in favor of the plaintiffs in this action, on the day succeeding the completed levy under the execution in favor of Ingraham against the same defendants. The application to secure priority over that execution for the plaintiffs in this action, proceeds upon the asserted fact that the proceeding was a friendly one intended to protect the judgment-debtors in the enjoyment, use, and sale, of their property and not in fact for the collection of the execution.

And if that had been established to the satisfaction of the court, or could now be held to be proved by the affidavits, the plaintiffs in this action would be entitled to an order securing to them that advantage. Eor where an execution may be issued and levied in whole of in part, to favor the debtor, and not for its enforcement strictly and regularly, against his property, and is so used it will become dormant in favor of succeeding execution-creditors. Dunderdale v. Sauvestre, 13 Abb., 116 .

The controversy upon which this appeal depends, is not so much as to the law, as it is to the fact, upon which this legal principle is made to depend. The affidavit of the

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deputy having the execution in charge does disclose such a state of facts, as would render this execution dormant. But the case in favor of the application depends almost entirely upon the affidavits of the deputy. For those made by Lewis, the attorney, so far as they affect this fact, are in the main upon information and belief and prove nothing as to the existence of the essential fact itself, while on behalf of the respondent and plaintiff in the execution whose validity in this manner has been drawn in question, the affidavits are direct and positive that no such proposal or authority, or intimation, as the deputy swears to, was made to him concerning this execution.

The affiant Ackley had charge of the proceedings in the action and of the execution after it was issued, and he, as well as the plaintiff in the execution, explained the delay intervening before the entry of the judgment to he entirely consistent with bona fide intention of the respondent to collect his debt. The delay itself was obtained by special solicitation of the debtors founded upon an assurance that means would be provided, if that were conceded, through which the debt itself would be paid. And a delay obtained in that manner, and for that purpose, is not a fact which can be relied upon to abridge the creditor’s rights afterwards under his judgment and his execution. The execution at first was not levied upon all of the debtor’s property, but this is shown to have proceeded upon a misapprehension concerning the amount of a preceding chattel mortgage. And when its true amount was discovered, all the debtor’s property was included in the levy.

The affidavit of Ackley is positive that no intimation or authority whatever, was given to the deputy to favor debtors under the execution, and no admissions made that the execution was designed to be'or could be used for their convenience or protection, in any manner whatever. In this statement he is sustained by the affidavit of Helm, the attorney for the respondent, and so he is by those of Ingraham, the respondent himself, and of Frisbee and Burr, one of the debtors, and Hntermeyer, his counsel. Their affidavits all tend directly to establish the fact that no disposition existed, and no intimation was given, by which the deputy was at liberty to use the execution as a cover, or protection, for the debtor’s property, or to delay its collection. On the contrary the deputy was urged persistently to proceed, with the sale of the property under the execution, and he declined to do so, and from time to time adjourned the sale contrary to the remonstrance of the respondent bimself and those acting in. his behalf. Their affidavits entirely overcome the statements, as to the material facts made on behalf of the plaintiffs in this action, and they certainly have a tendency to indicate the truth to be, that the deputy procrastinated the proceedings-with "the expectation of securing a benefit to himself for the discharge of his legal duties. He denies in

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his affidavit that he suggested the payment to himself for his proposed favorable management under the execution, of the sum of $1,000. _ But in this denial he is directly contradicted by the affidavits on behalf of the respondent. It is not necessary to determine whether this proposition was made by the deputy or not. For the facts, in no view of the case, have been established which would authorize a preference to be given to the plaintiff’s execution over that of the respondent. '

The order was right, and it should be affirmed, with ten dollars costs, and also the disbursements.

Yan Brunt, P. J., and Bartlett, J., concur.