36 Misc. 110 | City of New York Municipal Court | 1901
This is an appeal by Mark Jacobs, as receiver, from an order granting a motion made by Eisenbud, the respond
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
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.