p. 88Robert F. Austin et al., Resp’ts, v. Joseph F. Byrnes, App’lt.(New York Superior Court, General Term,Filed December 30, 1886.)Headnote
1. Supplementary proceedings—Order to examine defendant.The judgment upon which an order to examine the defendant in supplementary proceedings was granted was regular, unsatisfied of record and sufficient to sustain the order. Held, that if there was anything due or unpaid on the judgment, a motion to vacate the order was properly denied.
3. Same—Practice where dispute as to fact of payment.
Where the facts upon which defendant claims the judgment in said action was paid, and the right to set off certain claims that the defendant had against the party owing the judgment was disputed. Held, that the proper remedy for defendant was by motion to have the judgment declared satisfied of record.
Appeal from an order denying motion to vacate proceedings supplementary to execution.
The plaintiffs having recovered a judgment against the defendant, an appeal was taken to the general term and an undertaking was given to stay plaintiff’s proceedings, upon which T. P. Gilman and J. G. Allport became sureties. The sureties afterward had to pay the judgment, and requested that the judgment be assigned to W. D. Duckworth, the appellant herein, which was done. At the time this assignment was made Gilman owed defendant money for which a judgment was subsequently recovered and was unpaid. Duckworth, when he took the assignment, knew nothing of any agreements between Gilman and defendant.
Wm. H. Arnoux, for app’lt; George W. Carr, for resp’t.
The judgment upon which the order to examine the defendant was granted is regular, unsatisfied of record and sufficient to sustain the order. If there is. anything due or unpaid on the judgment, the motion to. vacate the order was properly denied.
p. 89The facts upon which the defendant claims the judgment was paid, or satisfied, are either denied by the assignee of the judgment or their legal effect disputed, and whether the whole judgment is or is not satisfied, depends on the right to set off a claim that the defendant has against the person who paid a portion of the judgment and for whose benefit it was assigned.
Under the circumstances we think the proper remedy for the defendant is by motion in the action to have the judgment declared satisfied of record. On such a motion a reference can be ordered if necessary to take proof of the facts, and on such reference the question of the amount, if any, that remains unpaid, can be much more satisfactorily determined than on the papers before us, and the order on that motion can, if the motion is granted, make proper provision as to any set Off required.
The order appealed from should be affirmed, with ten dollars costs and disbursements.