Lingsweiler v. Lingsweiler — 57 N.Y. Super. Ct. 395

Majority

p. 395

In Re FREDERICK LINGSWEILER, Judgment Creditor, Appellant, v. CHARLES LINGSWEILER, Judgment Debtor, Respondent.

Headnote

Superseding order competently made, what not ground for—Order for examination of third party in supplementary proceedings, when return of execution not cause for superseding•

Where an order has been competently made, it cannot be superseded by reason of events subsequently occurring unless they are such as change the rights of the parties in requiring an order different from that allowed, or would have called for another kind of disposition of the matter finally.

The bare fact that after an order for the examination of a third party has been competently made in supplementary proceedings, the execution has

p. 396

been returned, it not appearing that it was returned satisfied, is not sufficient cause for superseding the order.

Before Sedgwick, Ch. J., and Ingbaham, J.

Decided January 6, 1890.

Appeal by judgment creditor from an order vacating an order for the examination of a third person in proceedings supplementary to execution. The facts sufficiently appear in the opinion.

James A. Donegan, attorney, and Henry Huffman Browne, of counsel, for appellant, argued:—

The return of an execution unsatisfied after the making but before the service of an order for the examination of a third person in supplementary proceedings is not sufficient ground for vacating the order. Code Civ. Pro., §§ 2432, 2441; Gibson v. Haggerty, 37 N. Y. 555 ; Riddle & Bullard on Supplementary Proceedings (3 ed.), pp. 12, 13, 17. This proceeding is in part a substitute for the old creditor’s bill; this is well settled. Vide Webber v. Hobby, 13 How. 382 ; Barnes v. Morgan, 3 Hun, 703 ; Driggs v. Williams, 15 Abb. 477 ; Allen v. Starling, 26 How. 57 ; Sale v. Lawson, 4 Sandf. 718 ; Oar’s Case, 2 Abb. 257 ; Owen v. Dupignac, 9 Ib. 180. This being so, the ruling in the recent case of the Royer Wheel Co. v. Fielding, 31 Hun, 274 , is in point.

Cook & Schuck, attorneys, and Peter Cook of counsel, for respondent, cited :—

Code Civil Procedure, §§ 2432, 2441, 416, 433; Riddle & Bullard on Supplementary Proceedings, p 108

The judgment creditor obtained an order, under section 2441, Code Civil Procedure, for the examination of a' person averred to have in her possession property belonging to the execution debtor. The affidavits showed what

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at the time was the fact, that the execution had not been returned. Before the return-day of the order, the execution debtor, not the third person, moved that the order be vacated. The motion was granted. The ground of this disposition only appears in the recital of the order then made, as follows : “ and it now appearing that at the time of the service of copies of said affidavit and order, said execution had been returned, etc.”

In my opinion, to justify superseding the original order, it was necessary to prove that after it was allowed, something had occurred which changed the rights of the parties in requiring an order different, from that allowed, or which would have called for another kind of disposition of the matter finally. The mere fact of the return of the execution would not have called for another kind of order or for another kind of exercise of the power of the court. Code Civil Procedure, §§ 2447, 8, 9. If the execution had been returned satisfied, then the court would have been without power to direct the person examined to pay or to deliver. The respondent was bound to show this. There was no presumption of satisfaction. It was consistent with the recital that the execution had been returned partly unsatisfied.

As it does not appear by the record that the judgment debtor had been called into the proceeding by a notice required by the court, Code Civil Procedure, §§ 2441-2447, and was a party to it, there may be a doubt whether he had a right to make the motion below. This was not considered by the argument of the appeal, and is not passed upon.

The order should be reversed, and the motion denied, with $10 costs.

Ingkaham, J., concurred.

Cases cited

Sale v. Lawson 4 Sandf. 718 N.Y. Super. Ct. 1852-03-20 p. 396