Todd v. Crooke — 6 N.Y. Super. Ct. 694

Majority

p. 694

Todd v. Crooke.

Headnote

In a proceeding supplemental to an execution, where other creditors have commenced like proceedings, they are entitled to notice of an application for a receiver, but not to service of a copy of the examinations on which it is founded.

The proceeding is summary, and in theory it follows directly on the close of the debtor’s examination, he being present and no notice being necessary.

Where other creditors are proceeding they must have notice, and so must the debtor when his examination has been taken before á referee.

Although it appear by the debtor’s examination that the property, which the judgment creditor seeks to reach as his, is such and so situated, that the creditor may seize it on a new execution, he will not be driven to that remedy if the property be claimed by a stranger. He may have a receiver, and contest in a suit brought by him-, the title to the property.

January 31, 1852.

Proceeding supplementary to an execution returned unsatisfied. It appeared by the examination of the judgment debtor, that he had formerly owned, or was in possession using as his own, certain vessels navigating the Hudson river; but which he alleged were all bought for, or were now owned by, his sisters. That these vessels were laid up for the winter season, at a designated place, where a new execution might .be levied upon them without difficulty.

It also appeared that several other creditors had instituted similar supplemental proceedings against this defendant. The plaintiff now applied for the appointment of a receiver of the defendant’s property, under sections 298 and 299 of the code. Notice of the application had been given to all the creditors who were proceeding in the same manner, but no copy of the examinations was served with the notice.

P. A. Cowdrey, for the plaintiff.'

P. S. Oroolce, for the defendant.

J. Moncrief and B. Ten Broedc, for other creditors.

The counsel for one of the other creditors objected preliminarily that the plaintiff ought to have served on the other creditors, a copy of the debtor’s examination and other papers on which his application is made. The proceeding of the objecting creditor, it was said, was prior in time to the plaintiff’s, and it being in the nature1 of the former judgment creditor’s suit, is prior in right'.

The objection is not well founded. This is a summary proceeding. In theory, the application for a receiver, is made to the judge at the time the examination is taken, founded upon it, without any copy being made by or for either party. The examination is taken in the presence of the judge, and at its conclusion, the defendant being present, the plaintiff moves upon it at once.

This is the usual course. When the examination is directed to be taken before a referee, the application is still made upon the original examination, but the defendant must have notice of the time and place. So in all cases where it appears that other creditors are proceeding against' the debtor in this mode, the code, as amended in July last, requires notice of the application to be given to such creditors. But it requires nothing more. It places the practice on the same footing that it was in the late court of chancery on appointing receivers in creditors’ suits.

The counsel for the judgment debtor objected that the only property claimed to have been discovered, was such as could be taken in execution, and was accessible and open to seizure and sale; and therefore the plaintiff ought to take a new execution and sell the property, leaving its claimants to bring an action to try the title, instead of resorting to a receiver. We have considered the subject, and see no reason to depart from the course pursued under the former system, for which this is a substitute. The title to the property can be tried with as little expense in a suit by a receiver, as in one brought by the adverse , claimants, and the appointment of a receiver will cost quite as little as a new execution and a levy and sale by the sheriff. (All the Justices of the court concurred in the decision made in this case.)