Cowdrey v. Carpenter — 25 N.Y. Super. Ct. 601

Majority

p. 601

Nathaniel A. Cowdrey, plaintiff and appellant, vs. Jacob Carpenter, defendant and respondent.

Headnote

1. A stay of proceedings affected by taking an appeal from a judgment, with the requisite security to procure such stay, operates to suspend proceedings supplementary to execution on the judgment.

2. But the proceedings should not be dismissed on account of the stay. The creditor’s lien acquired by them is not taken away, although its enforcement may be delayed. A dismissal by the judge should be reversed on appeal, as being, at least,'not an equitable exercise of discretion.

3. It seems that the judge, before whom such proceedings are pending, has no power to dismiss them because of such stay.

(Before Bosworth, Ch. J., and White and Monell, JJ.)

Heard November 9, 1863;

decided December 6, 1863.

An order was obtained for the examination of a debtor to the defendant, who was a judgment debtor, supplementary to execution against the latter. Pending the proceedings, ■ and

p. 602

"before any examination had taken place, the defendant appealed from the judgment to the general term of this court. He perfected his appeal by the usual notice, and gave an undertaking pursuant to sections 334 and 335, of the Code. The sureties upon the undertaking justified, upon exception, and were approved by the judge.

Upon presentation of these facts, the judge, before whom the supplementary proceedings were commenced, dismissed the supplementary order.

The plaintiff appealed.

F. N. Bangs, for the appellant.

A. R. Dyett, for the respondent.

I. The order was matter of discretion, and not appealable.

II. The ordér was right, and a proper exercise of authority. It would be extremely unjust to restrain the defendant from collecting the demand in this action and to hold it subject to the plaintiff’s lien ; after the defendant had appealed from the judgment and given full security, which had justified and been approved, (Code, § 282.)

III. The judge could not proceed on the order. (Code, §§ 322, 339.) If he could, he had a right to dismiss it, as the court may dismiss of suspend an execution upon security being filed, although it does not follow as matter of course.

By the Court,

The effect of the undertaking given upon the appeal from the judgment, was to stay all further proceedings upon the judgment appealed from. It, therefore, necessarily follows, I think, that all further proceedings upon the order supplemental to the execution issued and returned upon the judgment appealed from, were suspended. The examination of the judgment debtor could not proceed, nor could any action whatever be had or steps taken under the order. It is even doubtful if the judge could adjourn, and thus keep afloat the proceeding.

The question then arises, whether the judge had the power

p. 603

to, or could, in the exercise of his discretion, dismiss the supplemental order.

. These proceedings are not before the court, and never come before the court, in any of their original incidents. The order is granted by a “judge;” the examination is had before a “judge,” and all orders to carry into effect the results of the examination are made by a “judge,” and nothing connected with the proceeding, from first to last, comes before the court, except upon an appeal from some order made by the “judge.” We think if cannot be doubted, that the judge has the same general power over these proceedings, that the court would have, if the authority to make the order and conduct the examination had been conferred ‘ upon the court. He may adjourn the matter from time to time ; suspend the examination indefinitely; examine witnesses; admit or reject evidence, and prosecute parties and witnesses for disobedience of orders. His power, therefore, over the proceeding is absolute, and he is subject only to review by the court, on appeal from any of his orders.

But here, we think, the power of the judge ends, and he cannot ultimately dispose of the proceeding, to the prejudice of the debtor, by dismissing or annulling it, against his objection.

The object of the examination is to reach the equitable interests and things in action of the judgment debtor, which cannot be reached by execution upon the judgment. By the service of the order and the restraint of the debtor, the creditor obtains an equitable lien upon such interests and things in action, which he has the right to retain as a security, pending the suspension of' his power to proceed on his judgment. Having acquired such lien previous to the appeal, he cannot, I think, in the absence of some express provision of law, be deprived of it. The appeal suspends his right to obtain the benefit of his lien, but does not take it away. We are not aware of any case, where an appeal has been taken from the judgment, after execution and levy, where the court has set aside the execution and removed the levy. The levy is stayed and the sheriff cannot proceed to sell. Ñor could the lien of a

p. 604

judgment upon the real property of the judgment debtor, be removed by an appeal and security, until a recent special enactment, applicable to such a case. Before that law, the court were without power to retain the property, be the security never so ample.

The cases of Parsons v. Train, ( 2 Duer, 662 ,) and Spencer v. Rogers’ Locomotive Works, ( 13 Abb. 180 ,) I think, sustain this view.

If, however, the right to dismiss these proceedings rested in the discretion of the judge, (although we think it does not,) it would be an unsound exercise of such discretion' to deprive the creditor of a security obtained through his equitable lien upon the debtor’s property, by substituting for it the mere personal obligation of two sureties, who, although responsible now, may be utterly and hopelessly insolvent, before the determination of the appeal.

Until the legislature provides for the discharge of these proceedings, upon securing the judgment on appeal, as they have provided for relieving real property, it seems to us, independently of the want of power, that no other or greater effect should be given to the appeal from the judgment, than is given by the Code; namely, to stay all further proceedings on the judgment appealed from, and, necessarily, all further proceedings under the supplemental order.

We think the dismissal of the supplemental proceedings was erroneous, and the order appealed from should be reversed.

Order reversed.