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Watrous v. Lathrop

6 N.Y. Super. Ct. 700 4 Sandf. 700 Court N.Y. Super. Ct. Decision date 1852-02-13 English

Delivered by (Sandford, J.,)

Contents

Majority

p. 700
Watrous v. Lathrop.

Headnote

A creditor cannot, by a proceeding supplementary to hia execution returned unsatiafied, reach movables which the debtor assigned for the benefit of hia creditors while the execution was in life in the sheriff’s handa.
He might have levied his execution on such property after the assignment, but his priority over the assignee ceased when hia execution was returned without levying it.
The lien of the execution was then spent, and the supplemental proceeding does not revive it as against the assignee.
February 13, 1852.
J Palmer, for the plaintiff.
Proceeding supplementary to an execution. On examining the judgment debtor, it appeared that while the execution was in full life-in the sheriff’s hands, the debtor made an assignment of movable property, which was subject to the execution, to a trustee for the benefit of his creditors. The execution was returned wholly unsatisfied, without levying or attempting to levy, on the property in question. The assignee appeared on a summons from the judge and claimed the property. The parties consented in writing to submit their rights to the decision of the judge, with the same effect as if a receiver had been appointed and had brought a suit for the property against the assignee.

The Justice at chambers,

with the concurrence of all the Justices, decided that the assignee was entitled to retain the property. That although the plaintiff by his execution obtained a right to take the property, which, if it had been followed by a levy after the assignment would have defeated the latter, that right ceased when the execution was returned. The execution was then spent, and it could not be made to effect a lien by relation. (See Weed v. Pierce, 9 Cowen, 728, 729, per Walworth, Circuit Judge, and afterwards Chancellor.) The supplementary proceeding, being subsequent to the assignment, cannot affect the rights of the assignee.