Hyperlawhypertext legal database Levy v. Kirby 51 N.Y. Super. Ct. 69

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Levy v. Kirby

51 N.Y. Super. Ct. 69 19 Jones & S. 69 Court N.Y. Super. Ct. Decision date 1884-12-01 English

Delivered by Van Vorst, J.

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p. 69
HENRY LEVY, et al., Appellants, v. CHARLES W. KIRBY, et al., Respondents.
Decided December 1, 1884.

Headnote

Supplementary, proceedings.— Order for examination judgment debtor— When may be issued.
Under § 2435 Code, an order in supplementary proceedings is justified by the return, unsatisfied, of a second execution, regularly issued on the judgment, though such order be issued more than ten years subsequent to the return of the first execution.
Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
Appeal from an order setting aside an order for the examination of defendants in proceedings supplementary to execution.
The facts appear in the opinion.
Ritterband & Cohn, for appellants.
The contention of the defendants is that the legislature in changing the words of section 292 of the old Code, “at any time after such return made,” to the words of section 2435, “within ten years after the return of an execution,” intended to limit the right of the judgment-creditor to examine his judgment-debtor within ten years after the return of the first execution. Such a construction would be manifestly unjust. Section 2435 expressly says, within ten years after the return of an execution—any execution—properly and regularly issued. If the legislature meant “the first execution,” it would have so enacted. Its language is, “of an execution,” and it clearly intends “ of an execution.”
Edward M. Felt, for respondent.
The order appealed from was properly granted. This proceeding was instituted under the provisions of section 2435 of the Code of Civil Procedure, which provides that: “At anytime within ten years after the return, wholly" or partly unsatisfied, of an execution against property issued upon a judgment, etc., the creditor is entitled to an order requiring the judgment
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debtor to appear and be examined, etc.” This judgment was obtained in August, 1870, and an execution was issued on the same day, and returned unsatisfied, and it is submitted that the ten years allowed by the statute within which the examination could be had, commenced running at the return of the execution issued August 13, 1870, and expired some four years ago. As the former statute, Code of Procedure, § 292, provided that the proceeding could be instituted at any time after the return of an execution wholly or partly unsatisfied, and the present statute provides that it can only be instituted within ten years after such return, it seems clear that the legislature intended to limit the time. We must assume that the legislature intended to limit the right to institute these proceedings within ten years after the return of the first execution, otherwise the amendment by the legislature accomplishes nothing. If the ten years commences to run after the return of any execution, then the creditor, by issuing executions seriatim, can - practically keep his remedy alive for more than ten years and thereby frustrate the plain intention of the statutes.

By the Court.

The affidavit upon which the order for the examination of the defendant was founded stated in substance the recovery of the judgment on August 13, 1870 ; that an execution upon the judgment was issued on the same day and returned wholly unsatisfied ; and that fourteen years afterward, and on June 11, 1884, another execution was issued upon the judgment and returned unsatisfied. In August, 1884, the order for the examination of the defendant was made. This order was vacated by the court, upon the ground that it was not obtained within the time provided by section 2435 of the Code of Civil Procedure. The second execution was regularly issued (§ 1337), and its return unsatisfied, justified the order for the examination of the defendants. Section 2435 provides that at any time within ten years after the return of an execution unsatisfied the creditor is entitled to an

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order requiring the judgment debtor to attend and be examined. I find nothing in the statute which justifies the conclusion that the creditor was limited to the term of ten years from the return of the first execution, in which to assert his right to examine the judgment debtor. As he was right in issuing the second execution, so he was entitled to proceed under it for the examination of the defendant, at the time he instituted the proceedings. There is no hardship in the case. It is suggested by the respondent’s counsel that the plaintiff’s remedy was by a creditor’s bill after the return of the second execution. That could not have been the intention of the framers of the law. The summary proceedings are a substitute for the proceeding by suit in equity. The order appealed from is reversed, with costs and disbursements.

Freedman, J,, concurred.