Bucki v. Bucki

56 N.Y.S. 439 | N.Y. Sup. Ct. | 1899

Russell, J.

The examination of a third party to reach personal property in his hands belonging to the judgment debtor must be obtained by proof of a judgment against the debtor upon the personal service of the summons, his appearance, or the substituted service required by law, the issue of an execution to the proper county, and of the fact that the person or corporation has personal property of the judgment debtor exceeding $10, or is indebted to him in a sum exceeding that amount. Code Civ. Pro., §§ 2441, 2458.

The third party in this ease, by his counsel, attacks the validity of the judgment. It was rendered in an action brought for separation in which alimony was awarded for the amount of $2,500 a year, and upon proof of nonpayment of some of the installments, a personal judgment was directed to be docketed by an order made ex parte, it being impossible to find the defendant within the state. Counsel claims that such judgment was not rendered upon the personal service of a summons; that the final judgment in the case was the one which decreed a separation and awarded alimony, which was only enforcible by proceedings for sequestration or contempt, and that it was necessary to begin a new action to recover the amount unpaid ini order to justify th!a recovery of a judgment which might be docketed.

It will be seen that the merits of the right of the plaintiff to' a sum of money have already been adjudicated in an action begun by the personal service of a summons, and in which the defendant appeared, the case having been carried to the Court of Appeals upon the appeal of the defendant. It would seem to be a very useless formality to require the bringing of a new action for the simple purpose of having a judgment docketed, upon which the ordinary remedies for collection might operate. I do not see any reason why the judgment might not by proper order made provide for docketing in case of nonpayment, as in a foreclosure case for deficiency. At most this judgment could be said to be only irregular, for jurisdiction over the defendant for the purposes of the action, one of which was the payment of alimony, was once obtained by the service of the summons and the defendant’s voluntary appearance. If the awarding of a judgment for money was irregular the defendant only can attack it and he must do so by a proper motion; no stranger to the motion can take advantage of such irregularity. This view seems to be taken by the Court of Appeals in considering the case of Wetmore v. Wetmore, 149 N. Y. 521, 527, in which the opinion approves of the cases of Miller v. Miller, 7 Hun, 208, and Lansing v. Lansing, 4 Lans. 377.

Objection is also made by counsel for the third party that the affidavit upon which the order was granted to examine this third party was insufficient because made by the attorney for the plaintiff, who stated simply that the third party had personal property exceeding $10 in value belonging to the judgment debtor without disclosing his means of knowledge or information. The tendency of the courts seems to require in an affidavit to justify a statutory remedy, like an attachment, injunction, or other process of a compulsory character, that the affiant shall either display such a position as inferentially to prove a supposed familiarity with the events of which he speaks, or shall disclose the means of information and sources of his knowledge, and that such kind of evidence is the only satisfactory proof. Crowns v. Vail, 51 Hun, 205; Hoormann v. Climax Cycle Co., 9 App. Div. 579.

But this precise question has been decided by the Appellate Division in the second department and such an affidavit sustained. Bruen v. Nickels, 30 App. Div. 396.

There is, however, upon the record sufficient to show that the statement of the attorney as to the third party having personal properly in his possession belonging to the defendant, is not sufficient proof of the fact, to justify the continuance of this order, the motion having been made to vacate it. It appears that sequestration proceedings were instituted as against the defendant to enforce the payment of alimony, and a receiver appointed in those proceedings. He takes title to all the personalty belonging to the defendant. If the third party had in his possession any personalty which once belonged to the defendant, and which did not pass by good title to the third party, that personally now belongs to the receiver. The object of the order to examine the third party is to provide for the payment of any indebtedness or the delivery of any personal property, under the force of the supplementary proceedings so inaugurated, which cannot be accomplished in this case as the sequestration receiver is entitled to- take such personalty of the defendant. That receiver has the remedies afforded by law to ascertain what property he is entitled to claim from this third party and, therefore, this third party should not be subject to the require-, ments of a useless proceeding. The motion to set aside the order is, therefore, granted, with $10 costs.

Motion granted, with $10 costs.