Lingsweiler v. Lingsweiler — 29 N.Y. St. Rep. 354

Majority

p. 354

Fredrick Lingsweiler, App’lt, v. Charles Lingsweiler, Resp’t.

(New York Superior Court, General Term,

Filed January 6, 1890.)

Headnote

Supplementary Proceedings—Third party order.

The mere fact that the execution was returned after the granting of an order to examinen third party, is not a ground for superseding such order. To justify superseding the order, it must he shown that the execution has heen satisfied, or that something had occurred which changed the rights of the parties, or called for a different disposition of the matter finally.

Appeal by judgment creditor from an order vacating an order for the examination of a third person in proceedings supplementary to execution.

Peter Cook, for app’lt; James A. Dowgan, for resp’t.

The judgment creditor obtained an order" under § 2441, Code Civ. Pro., for the examination of a person a ed to have in her possession property belonging to the execution debtor. The affidavits showed what at the time was the fact, that the execution had not been returned. Before the return day of the order, the execution debtor, not the third person, moved that the order be vacated. The motion was granted. The ground of this disposition only appears in the recital of the order then made as follows: “ and it now appearing that at the time of the service of copies of said affidavit and order, said execution had been returned, etc.”

In my opinion to justify superseding the original order it was necessary to prove that after it was allowed something had occurred which changed the rights of the parties in requiring an order different from that allowed or which would have called for another kind of disposition of the matter finally. The mere fact of the return of the execution would not have called for another kind of order or for another kind of exercise of the power of the court Sections 2447-8-9. If the exécution had been returned satisfied, then the court would have been without power to direct the person ex

p. 355

amined to pay or to deliver. The respondent was bound to show this. There was no presumption of satisfaction. It was consonant with the recital that the execution had been returned partly unsatisfied.

As it does not appear by the record that the judgment debtor had been called into the proceeding by a notice required by the court, §§ 2441-2447, and was a party to it, there may be a doubt whether he had a right to make the motion below. This was not considered by the argument of the appeal and is not passed upon.

The order should be reversed, and the motion denied, with ten ■dollars costs.

Ingraham, J., concurs.