Hanson v. Tripler — 3 N.Y. Super. Ct. 733

Majority

p. 733

Hanson v. Tripler.

Headnote

The issuing of an attachment against a party as a non-resident debtor, will not prevent an execution creditor from continuing proceedings supplementary to execution against persons alleged to have property belonging to the debtor.

The court may, in such ease, appoint a receiver of the property, in the hands of such persons, to preserve it; and if the attachment be prosecuted, the question of right may then be determined.

April 12, 1851.

The question arose on proceedings supplementary to the execution, and was decided by the chief justice, after consulting all the justices. The plaintiff had obtained a judgment against the defendant, upon which an execution had been issued to the, sheriff of the city and county of blew York, where the defendant resided. The plaintiff', upon an affidavit that certain parties: had property of the judgment, debtor in their possession, to an amount exceeding ten dollars, then applied to one of the justices of this court, and obtained an order under § 294 of the code of procedure, requiring those parties to appear and be examined on oath concerning the same. Upon the return day of the order, the parties appeared by their counsel, and moved to dismiss the order, oil the ground that an attachment had issued against the property of the defendant as a non resident debtor under the revised statutes, and notice thereof served prior to the service of the order of the judge, though after the latter was issued ; and that as, by the provision of the statute, all property of the debtor was absolutely enjoined by the attachment, in whatever hands it might be, the proceedings under the order* were of no practical value.

C. A. Davison, for the plaintiff.

W. Mulooh, for the defendant.

We think, that the plaintiff is entitled to

p. 734

continue the proceedings which he has instituted. He has shown a right to have the property of the defendant secured for the satisfaction of his judgment, within the provisions of the statute ; and we do not see how he can be divested of the right thus obtained, by the mere fact that an attachment has issued against the property of the defendant. It may be, that the attachment will be discontinued, or set aside. It is, therefore, proper, that the examination should proceed, and if, at the termination of the inquiry, it should be ascertained, that the parties have in their possession property of the defendant, a receiver may be appointed. If the attachment be continued, this proceeding will not determine the right. The property will be preserved, and the question of right, between the attaching creditors and the receiver, can then be determined. In the mean time, whatever order is made by the court, it will he a complete protection to these parties. This is not the proper place to raise the question between the rival creditors, which they attempt to present.

Motion denied.