Sale v. Lawson — 6 N.Y. Super. Ct. 718

Majority

p. 718

Sale v. Lawson.

Headnote

It is no objection to proceeding in the examination of a judgment debtor, after the return of an execution unsatisfied, that another execution has been issued and . levied on personal property, unless it is clear such levy will be effectual to satisfy the judgment.

The constitution is not violated by the power given to a county judge to make an order for the examination of the judgment debtor after the return of an execution.

March 20, 1852.

An execution upon a judgment against the defendant, Lawson, was issued to the county of Kings, in which he resided, and returned unsatisfied, and an order for his examination was thereupon made by the county judge. Upon the same day, another execution was issued to the city and county of New York, under which the sheriff had levied upon a store of goods alleged to belong to the defendant, but which were claimed by a third person as his exclusive property. A motion was made on behalf of the defendant, to vacate the order for his examination, or set aside the execution, or that the plaintiff should elect which he would retain.

P. J. Joachimssen, for the defendant.

P. Callaghan, for the plaintiff.

I have consulted my brethren'upon the questions raised upon this motion, and we are all of opinion that the constitution is not violated by the power which is given to a county judge, by the code, of making an order for the examination of a judgment debtor. Such an order is a substitute for a creditor’s bill, and in its nature is an equitable proceeding. By the express words of the constitution, equitable powers may be vested in a county court. The county judge is the court.

As to the effect of the second execution. Before the code, the

p. 719

law was settled by repeated decisions of Chancellor Walworth, that a creditor’s bill is not superseded by the issuing of a new execution, unless it clearly appears that the property levied upon is the undisputed property of the debtor, and is sufficient to satisfy the debt. These rules are just as applicable to the examination of the debtor under the code as to the proceeding by bill, and we are all of opinion that they must still be followed. It is not only doubtful in this case whether the property levied upon is sufficient to satisfy the debt, but it is-claimed by the defendant’s brother under an assignment, and the validity of this claim is not only not denied, but asserted by the defendant. .

Motion denied with costs.