Smith v. McQuade — 36 N.Y. St. Rep. 556

Majority

p. 556

Catherine L. Smith, Resp’t, v. Hugh McQuade, App’lt.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Supplementary proceedings—Delivery to receiver.

An order in supplementary proceedings directed the delivery to the receiver, at his office in this city, of certain furniture, wagons, etc., hay, oats and corn, which was at a place some distance from the city. The order did not specify the quantities of the hay, oats and corn. Held, that the order was too indefinite, and that the court had no power to compel the debtor to transport the property to the city, and, therefore, a delivery could not he compelled.

Appeal from order directing a judgment debtor to deliver over certain property to the receiver.

F. 0. Trautmann, for app’lt; S. Jones, for resp’t.

A judgment having been obtained against the defendant, proceedings supplementary to execution were had, and the judgment debtor examined and a receiver of his property appointed. By such examination it is claimed that it appeared

p. 557

that at Cornwall, in the state of New York, the judgment debtor had certain property consisting of household furniture, wagons, harness, farming implements, hay, oats and corn, and by the order appealed from the judgment debtor was directed to deliver this property to the receiver, who had been appointed in the supplementary proceedings, at 20 Nassau street, in the city of New York. There was a particular enumeration of the wagons, harness and farming implements, but the number of tons of hay, bushels of oats and bushels of corn was left blank.

From this order the judgment debtor has appealed.

It is plain that the court had no power to compel the judgment debtor to transport this property from Cornwall to this city to be delivered to the receiver. If the receiver wanted it, he was compelled to go after it; and we rather think that he would have been somewhat embarrassed by receiving, at his office at No. 20 Nassau street, wagons, harness, farming implements, tons of hay, bushels -of oats, corn, etc. •

In fact the order was one impossible to be complied with.

There is another difficulty with the order, and that is, it was too indefinite. There was no specification of the number of tons of hay or bushels of corn or" of oats. Who was to determine when the debtor had delivered the bushels of corn, the bushels ■of oats, and the tons of hay provided for in the order ?

As already stated, the court had no power to compel the judgment debtor under pain of imprisonment to transport this property from Cornwall to the city of New York. At the best the receiver was bound to go to Cornwall and there receive the property. But it is doubtful, under the circumstances of this case, whether a delivery of the property could be compelled, and whether the receiver must not be remitted to proceedings to recover possession ■of the same.

The order should be reversed, with ten dollars costs and •disbursements.

Daniels and Beady, JJ., concur.