Baker v. Herkimer — 6 N.Y. St. Rep. 581

Majority

p. 581

Henry J. Baker and Samuel J. Downs, Resp’ts, v. Warren J. Herkimer, App’lt Erastus A. Taylor and Ellen J. Duffy, Resp’ts, v. Same, App’lt George D. Lathrop, Resp’t, v. Same, App’lt Ward I. Phillips, Resp’t, v. Same, App’lt

(No. 1).

(No. 2).

(No. 3).

(No. 4).

(Supreme Court, General Term, Fourth Department,

Filed January, 1887.)

Headnote

Practice—Supplementary Proceedings—Waiver op irregularity in GRANTING ORDER.

When the affidavit in proceedings supplementary to execution states all the necessary facts to give the judge jurisdiction to grant an order for the judgment debtor’s examination, arid he appears and submits to the examination and to the appointment of a receiver without objection, it is too late to move to vacate the order upon the gfound that the sheriff’s

p. 582

return upon the execution is defective, when it appears by the judgment debtor’s examination that he has not been prejudiced by the defect complained of.

Appeal from an order of the county judge of Otsego county denying defendant’s motion to vacate an order appointing a receiver in proceedings supplementary to execution, and to vacate an order directing the defendant to be examined.

LowellS. Henry, forresp’ts; Walter H. Bunn, forapp’lts.

The defendant, in his affidavit of July 6, 1886, swears that he was personally served with the orders for his examination and the affidavits upon which they were granted. Each affidavit states that an execution had been issued, and returned wholly unsatisfied. The affidavits stated all of the facts necessary to give the county judge jurisdiction to grant the orders for the examination of the judgment-debtor, who submitted to the examination and to the appointment of a receiver without raising the objection, that the sheriff’s returns upon the executions were insufficient, in fact or form, to justify the granting of the examination orders, or the orders appointing a receiver. It seems that the judgment-debtor did not suspect that he had property wherewith to pay the judgments, or that his rights were being infringed by the proceedings until he was called upon by the receiver to convey his interest in the farm, when he moved to vacate the orders because the sheriff’s returns failed to state that the defendant had not real estate out of which the executions could have been satisfied. These motions were made in the face of the judgment-debtor’s examinations under the orders; wherein he testified that he had no personal property subject to "execution, and no real estate except an undivided half interest in a farm of 300 acres, which he thought would sell for about ten dollars per acre, (his interest for $1,500), which was subject to a mortgage for $1,200 with interest for about a year, and to the four judgments in these cases, amounting to $237.11.

When the affidavit states all the necessary facts to give the judge jurisdiction to grant an order for the judgment-debtor’s examination and he appears and submits to the examination and to the appointment of a receiver without objection, it is too late to move to vacate the orders upon the ground that the sheriff’s return upon the execution is defective, when it appears by the judgment-debtor’s examination, that he has not been prejudiced by the defect complained of.

In Marx v. Spaulding ( 35 Hun, 478 , S.

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of was the act of the judgment-creditor, and the motion to vacate the examination order was made promptly, and before the examination was had. The superior court held, on a return precisely like the one considered in the case last cited, that the defect was not sufficient to vacate the order. Forbes v. Spaulding, 20 J. & S., 166; S. C., 8 Civil Pro. R. 135. This case must be regarded as overruled by the affirmance by the court of appeals of the decision of the supreme court in Marx v. Spaulding.

The fact that the examination showed that defendant held the legal title to heavily encumbered real estate, out of which it was improbable that the execution could have been collected in whole, or in part, is no reason for refusing a receiver. Fenton v. Flagg, 24 How., 499 ; Bailey v. Lane, 15 Abb., 373 .

The executions, or returns in actions Nos. 2 and 3 are not contained in the appeal book and there is no evidence that the returns upon them were not, in all respects, sufficient.

The order refusing to vacate the order appointing a receiver, and refusing to vacate the examination order, is affirmed in ea,ch of the cases, but the appeals having been conducted, as one, the affirmance is with ten dollars costs and printing disbursements in Lathrop v. Herkimer, and without costs in the other cases.

Hardin, P. J., and Boardman, J., concur.