Smith v. Davis — 43 N.Y. St. Rep. 504

Majority

p. 504

Abram Smith, App’lt, v. Almon H. Davis, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

1. Execution—Second may be is.sued pending supplementary proceedings.

A judgment creditor may issue a second execution although proceedings supplementary.to the first are pending, and may pursue both, remedies unless the property acquired by the proceedings or levied on by virtue of

p. 505

the execution indisputably belong to the debtor and is amply sufficient to satisfy the debt;' in which case he may be required to elect .between them.

3. Same.

A levy and sale under such execution is not irregular where the property levied upon was not only not in the possession of the receiver, but was claimed by a third party and the receiver made no claim thereto, being in doubt whether the transfer to such person could be successfully assailed.

Appeal from an order of the Otsego county court, entered January 9, 1890, vacating and setting aside an execution issued herein and the levy thereunder upon the ground that the execution and levy were irregular and void.

On the 23d of December, 1887, the plaintiff obtained judgment against the defendant before a justice of the peace of the county of Otsego for $201.05 damages and costs. A transcript was duly filed, and judgment docketed in the office of the clerk of Otsego county and an execution issued thereon by the clerk of that county to the sheriff thereof. The execution was returned wholly unsatisfied. Soon after, the plaintiff caused proceedings supplementary to execution to be commenced before the county judge, who appointed M. E. Baldwin referee to take the evidence therein, and an examination was duly had. Afterwards, and on the 26th day of January, 1889, M. E. Baldwin was duly appointed receiver of the property of the judgment debtor, and duly qualified and entered' upon the duties of his office. On October 26, 1889, the plaintiff caused another execution on the same judgment to be issued against the property of the defendant, which was delivered to the sheriff, who, by virtue thereof, levied upon certain personal property as the property of the defendant. He afterwards advertised a portion of said property for sale. The property levied upon was in the possession of the defendant when the receiver was appointed. The property thus levied upon had been formerly owned by the defendant, but he had transferred it to other parties previous to the institution of the proceedings supplementary to execution. The receiver never took possession of any of such property or made any demand for the same and did not attack the transfer of the property for the reason, as stated in his affidavit, that he had not been directed so to do by the judgment creditor, and for the further reason that he regarded it doubtful if the transfer could be successfully assailed. The receiver was about to apply for his discharge when this motion was made. After the property mentioned was levied upon, the officer making such levy was sued by the daughter of the judgment debtor, who claimed to be the owner thereof, which action was pending when this motion was made.

J. B. Holmes, for app’lt; L. J. Barnes, for resp’t

The only question involved on this appeal is, whether, after proceeedings supplementary to execution had been instituted and a receiver appointed therein, who had qualified, the issuing of another or second execution and a levy under- it

p. 506

was irregular and void, because made before . the receiver was discharged.

The institution of supplementary proceedings after return of execution against property does not preclude the issuing of another execution upon the same judgment. The two proceedings-having the same object in view, the collection of the judgment, may be pursued concurrently. (Smith v. Mahony, 3 Daly, 285 ; Gates v. Young, 17 W. Dig., 551.) Nor will the proceedings be superseded by the issue of a second execution, unless it clearly appears that the property levied upon indisputably belongs to the debtor and. is abundantly sufficient to satisfy the debt, and then the creditor may be compelled to elect between the execution and the proceedings. Fellerman's Case, 2 Abb., 155 ; 1 How., 528 , Fargueharson v. Kimball, 18 How., 33 ; 9 Abb., 385 , note; Hanson v. Tripler, 1 Code R. (N. S.), 154; 3 Sandford, 733; Owen v. Dupignac, 9 Abb., 180 ; Conway v. Hitchins, 9 Barb., 378 .

Under these authorities it would seem that the plaintiff was authorized to issue the second execution in this case; although proceedings supplementary to execution had been instituted and were-then pending, and that as these remedies were concurrent, the: plaintiff might pursue either or both, unless the property acquired by the supplementary proceedings, or levied upon by virtue of the execution, indisputably belonged to the debtor and was amply sufficient to satisfy the debt, and that in that case he could be compelled to elect between the two proceedings. We think the-plaintiff had the right to have the second execution issued, and as there was a question as to the ownership of the property levied upon, the appellant was not required to elect between the two-remedies. !

But it is said that by operation of law the receiver upon his-appointment» became vested with the title to the property of the judgment debtor, and a levy upon any such property or sale of it. in pursuance thereof would be irregular and void. The case of Walling v. Miller ( 108 N. Y., 173 ; 13 St. Rep., 93 ), is relied upon, to sustain that claim. We think that case is clearly distinguishable from the case at bar. In that case the receiver, who was-appointed in an action in the supreme court and not in proceedings supplementary to execution, was in possession of the property when it was sold by the sheriff, and it was held that the sale was illegal and void. In this case, however, the receiver was not only not in possession of the property .levied upon, but his affidavit shows that he did not claim any right or interest-in it

It was claimed by a third person under a transfer that he did not propose to attack, for the reason that he had not been directed by the judgment debtor to do so, and because he regarded it doubtful if it could be successfully assailed. Moreover, he regarded his duties as receiver practically at an end and was about to apply for his discharge. In Varnum v. Hart, ( 119 N. Y., 108 ; 28 St. Rep., 262 ), it was held, that -where a sheriff was in possession of property, a sale., thereof by him while the property was in-his possession but after the appointment of a receiver was not void,.

p. 507

but, at most, irregular, and that the case of Walling v. Miller was distinguishable from that case.

We need not now consider or decide the question whether the „ plaintiff should have obtained consent of the court before selling the property levied upon under the second execution, but under the circumstances disclosed by the papers used on this motion we think the issuing of the execution was authorized, and the learned county judge erred in vacating and setting it aside, and in setting aside the levy of the sheriff under it Therefore, the order should be reversed.

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J., concurs.

I favor reversal upon the ground that it was not shown that the property levied upon under the second execution was owned by the defendant at. the commencement of the supplementary proceedings.