Town v. Safeguard Insurance — 17 N.Y. Super. Ct. 683

Majority

p. 683

Town v. The Safeguard Insurance Company of New York and Pennsylvania.

Headnote

1. On proceedings supplementary to execution, neither a witness nor a person alleged to have property belonging to the judgment debtor, can be required to answer questions put with a view to eliciting evidence tending to show that transfers of property made by such debtor were made with intent to defraud creditors.

2. Property in the possession of a third person claiming title, no matter how fraudulent the transfer, the Judge cannot order to be delivered to the creditor.

3. The object of the examination is the discovery of property in the possession or control of the debtor.

(At Chambers, July 13th, 1860.

Robertson, J.)

The facts are stated in the opinion.

Examinations or supplementary proceedings to a judgment can only be extended to the discovery of the property in the possession or control of the defendant, which he can deliver over; if in the possession of another claiming title, no matter how fraudulent the transfer, no order can be made to compel him to deliver the property, and, therefore, no questions can be put to the debtor or a witness to discover or prove the fraud. Such an examination is a fishing one and was not the object of these proceedings. The remedy of the creditor is by direct action against the fraudulent assignee, when the good faith of the assignment is in issue. The difficulty of ascertaining the disposition of property does not justify the assumption of this unlimited jurisdiction.

The witness in this case, as an officer of the Company, takes the place of a debtor in an ordinary case, and is not bound to go further in making disclosures than answering what has become of the property of the defendants, so as to see whether it can be delivered. The questions, therefore, to that extent, must be allowed. The questions not having been submitted to me, I cannot specify which come within the rule now laid down.