Palmer v. Colville

The plaintiff brought this action, alleging himself to be a receiver appointed in supplementary proceedings, to procure satisfaction of an alleged equitable lien impressed upon a lease of property in this city, to have himself declared entitled to the possession thereof, together with the books, paperá and contracts connected therewith, and to have defendants account and pay over all moneys that may be found due to the judgment debtor.

It will thus be seen that the action was brought not only to enforce a lien against real estate, but also involved the right of the plaintiff to recover personal property in the possession of the defendants belonging to the judgment debtor.

The ground upon which the complaint was dismissed was because the proceedings supplementary in which he was appointed having been brought in aid of an execution, proof was not furnished that the execution was not outstanding at the time the pro

It was held by the court of appeals in the case of Wright v. Nostrand, 94 N. Y., 45 , that the production and proof of an order made by a court or judge authorized by law to make it in proceedings supplementary to execution, reciting the facts necessary to give such court or judge jurisdiction to act in the proceedings, furnishes conclusive evidence of the regularity of such order when questioned collaterally, and prima facie evidence of the existence of the facts necessary to confer jurisdiction. The plaintiff produced on the trial an order made by a justice of the city court requiring the judgment debtor to appear before him on the 25th of February, 1886, to make discovery on oath concerning his property, which order was based upon an affidavit that recited the recovery of a judgment against the debtor, the issuing of an execution to the sheriff of the county of New York where the judgment debtor resided; that said execution had been returned unsatisfied; that said judgment remained unpaid, and that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, and that such property was so kept by the said debtor that it could not be identified and-with ordinary diligence reached by execution. Upon the return-day of that order the judgment debtor appeared and was examined before the justice. Such examination disclosed the existence of property consisting of a lease of real estate, certain plays, and the scenery used in producing the plays valued at about $800 r and at the close of the examination an order was made by the justice before whom the examination was had appointing a receiver of the property of the judgment debtor.

Upon the authority of Wright v. Nostrand, supra, the production and proof of this order was conclusive evidence of the regularity of the order and of the appointment of the receiver when questioned collaterally, and prima fade evidence of the existence of the facts necessary to confer jurisdiction. The plaintiff, therefore, proved the valid appointment of the receiver, and by operation of law such receiver thereby became vested with the personal property, including the choses in action belonging to the judgment debtor.

Conceding that the defendants had the right to show that at the time of the appointment of the receiver the execution upon which the proceeding was based had been countermanded, the burden was upon them to show such fact; and if we can take notice of the execution that was offered in evidence by the plaintiff and rejected by the court upon defendant’s objection, the plaintiff had the right to show that the countermand of the execution was after the appointment of the receiver. And we think that if the court had jurisdiction to appoint the receiver at the time the order appointing him was made, a countermand of the execution subsequent to such appointment would not render the order void until it was vacated by the judge or the court in which the proceeding was pending; and the subsequent orders made after the appointment of the receiver, extending the receivership

It seems to us, therefore, as was said in Wright v. Nostrand, supra, that the orders of a court or judge authorized by law to act in such a proceeding must be presumed to be regular until annulled in a direct proceeding to review or set them aside; and that such orders, so far as they recite the facts necessary to confer jurisdiction upon the court or judge to move in the proceedings, furnish prima facie evidence of the existence of such facts.

If, therefore, the receivership was extended to other judgments, the mere fact that the execution on the original judgment was countermanded should not result in destroying the title of the receiver. This must follow from an examination of the provisions of the Code, which do not leave it entirely at the will of the original judgment creditor to determine whether a receiver once vested with the property of the judgment debtor shall be divested or not, because by the provisions of the Code where one receiver is appointed, subsequent judgment creditors in proceedings supplementary must, instead of obtaining a new receiver, have the receivership already in existence extended so as to include their judgments.

We* think, therefore, that the countermanding of the original execution upon which the order appointing the receiver was based after the appointment of the receiver and before the receivership had been extended did not divest the receiver of his rights to the debtor’s property so that the right of such subsequent judgment creditors to have such receivership extended to their judgments was lost, and that when extended the receiver was vested with the ■title to the judgment debtor’s property.

We are therefore of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant tq abide the event

Ingraham, J., concurs.