Bunn v. Daly — 31 N.Y. Sup. Ct. 526

Majority

p. 526

MARTIN Y. BUNN, Appellant, v. MICHAEL DALY and JOHN DALY, Respondents.

Headnote

Supplementary proceedings — when a receiver to sell the real estate of the debtor, should not be appointed.

Where, upon the examination of a judgment debtor in supplementary proceedings, it appears that he has an estate in land, as a tenant by the curtesy, and it is not shown that an execution has been issued and returned upon the judgment since he acquired the said estate, a receiver to sell the same should not be appointed, but the creditor should issue an execution upon his judgment and sell the debtor’s estate thereunder.

Appeal from an order made at Special Term, denying a motion for tbe appointment of a receiver.

C. A. & A. D. Peake, for the appellant.

James P. Sanders, for the respondents.

This is an appeal from an order denying a motion for tbe appointment of a receiver in supplementary, proceedings.

Upon tbe examination of tbe judgment debtor it appeared tbat be had an estate as tenant by tbe courtesy in certain real estate which be acquired by tbe death of bis wife, in January, 1819.

Tbe judgment was recovered in January, 1816, and an execution was issued thereon and returned unsatisfied.

It does not appear when this execution was issued or returned, but we think it is enough tbat it does not appear that an execution has been issued and returned since tbe judgment debtor acquired tbe property discovered on bis examination.

The intent of tbe Code is to give tbe summary remedy provided by proceedings supplementary to execution only after the legal remedy has been exhausted. íhe statutes in relation to these proceedings and to the sale of real and personal property on execution, arempari materia and must be construed together. Tbe property of tbe judgment debtor discovered in this case is a freehold estate

p. 527

in lands. The statute provides for the sale on execution of such estate, and gives the judgment debtor one year after the sale to redeem. The appointment of a receiver of said property would deprive the judgment debtor of the right conferred by that statute. We think the provisions of the Code were not intended to produce that result.

The order must, therefore, be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurred in the result; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.