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King v. Tuska

8 N.Y. Super. Ct. 635 1 Duer 635 Court N.Y. Super. Ct. Decision date 1852-11-15 English

Delivered by Bosworth, J.

Contents

Majority

p. 635
King et al. v. Tuska.
At Chambers,
Nov. 15, 1852.

Headnote

In proceedings supplementary to an execution, an order, restraining a third person from disposing of property of the debtor, cannot be made until such person has been made a party to the proceeding.
A motion was made for an injunction order restraining If. Ferris, assignee of Tuska, from disposing of assigned property.

(Duer, J., concurred-.) It does not appear that any order has been made under § 294, requiring Ferris to appear and answer. This seems to be necessary in order to make him a party to the proceedings ( 5 How. P. R. 16 ), and to enable the court properly to enjoin him under § 299.

Section 294 seems to prescribe the proceedings to be taken, to authorize an order under § 299.

The affidavit does not affirm that Tuska has any interest, or had when the supplementary proceedings Were commenced, in the property alleged to have been assigned to Ferris, nor when the assignment was made to him, whether before or since the 17th of May. The order asked for must be denied, but without prejudice to the right to apply for an injunction order under §294.

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