Brein v. Light, 36 Misc. 110

Brein v. Light

36 Misc. 110 | City of New York Municipal Court | 1901

McCarthy, J.

This is an appeal by Mark Jacobs, as receiver, from an order granting a motion made by Eisenbud, the respond*111ent herein, compelling Mark Jacobs, as receiver in supplementary proceedings to pay back to him the sum of $158, which was claimed by said Eisenbud to have been forced from him by said Jacobs by threats and duress, as appears by the affidavits herein:, said Eisenbud also claiming to be the owner of the property which, the receiver so attempted to take possession of. Johnson, Ch. J.,. in Rodman v. Henry, 17 N. Y. 482, says: “ Hpon proceedings supplementary to execution, * * * the judge has power to-order any property of the judgment debtor, in the hands of himself or any other person, to be applied towards the satisfaction of the judgment. But if it appear that a person alleged to have-property of the judgment debtor claims an interest in the property adverse to him, such interest is only recoverable in an action against such person by the receiver. It is not enough, therefore, that property is found in the hands of the judgment debtor; it mustalso appear to be his property.”

These sections preclude the idea that a third person who claims-the property as his own is to be placed by virtue of these proceedings in a position where his rights can only be asserted in a suit in which he is the plaintiff. The obvious purpose of the series of" provisions is to give the creditor an immediate and summary remedy against the debtor’s property, but not to permit the rights of’ third persons to be brought in litigation except in a regular way by suit. If Eisenbud made no claim to the property in question, then an order for the delivery of the property by the defendant to the plaintiff would have been a matter of course, but, if Eisenbud claimed the property, the only way the matter could be settled would have been by the receiver’s bringing action against him. The case of Gomprecht v. Scott, 21 Misc. Rep. 192, does not apply, inasmuch as, in that case, Minna Scott, who claimed to own the property, conferred jurisdiction on the court to determine her right and interest, as held by Leventritt, J., in proceedings like the one at bar. In the case at bar, the third party, Eisenbud, did not consent to a determination of his rights, nor did he appear to be heard in regard to the same; therefore he was a stranger to the proceeding herein and his interest or rights could not be determined unless by an action brought by the receiver against him. Where a third party claims the property alleged to belong to a judgment debtor, such property of whatever kind can only be-recovered in an action by the receiver. Sherwood v. Buffalo *112N. Y. City R. R. Co., 12 How. Pr. 136; Robinson v. Wood, 39 N. Y. St. Repr. 466, 488.

For these, reasons this order must be and is affirmed, with costs and disbursements.

Conlan and Schuchman, JJ., concur.

Order affirmed, with costs and disbursements.