Crounse v. Whipple, 34 How. Pr. 333

34 How. Pr. 333 | N.Y. Sup. Ct. | 1865

By the court, Miller, J.

A preliminary objection is taken to the appeals made in these causes, from the orders of the county judge, upon the ground that no appeal lies from an order of a county judge, in proceedings supplementary to execution, in a cause originating in a justice’s or in a county court.

In Smith agt. Bart (11 How. 203), it was held, that such an appeal did not lie. This decision was made in 1855, and since that time section 344 of the Code has been amended, and by the amendment an appeal is authorized to the supreme court “ from any order affecting a substantial right made by ‘a county court or a county judge, in any action or proceeding.’’ Under this provision, I think an appeal can be had and the objection therefore, is not well taken.

The remaining question presented relates to the power of the county judge to make an order, to compel the wife of the defendant to pay over the amount of the several j udgments to the plaintiff. The proof shows that the alleged consideration of the mortgage, which Elizabeth Whipple held, was for money loaned-to her husband, as well as for her joining with her husband, in a conveyance of his real estate. This claim was disputed upon two grounds: First, that the moneys alleged were not advanced by the wife to her husband | and secondly, because the defendant had no right to secure his wife’s contingent right of dower in his real estate» The question whether the moneys were actually advanced, and whether there was a sufficient equitable consideration, to uphold the security given, were matters of grave dispute. So also, the question as to the right to secure the contingent dower of the wife in such a manner, and its value if such a right existed,,was a matter Which would only be satisfactorily determined after full proof and due deliberation, in a suit instituted for that purpose. Under such a state of things, as I understand the rule, the judge had no power to make an order to pay over the money. Supplementary proceedings are limited to reaching the property of the debtor in his possession, or in the possession of another party, which, are conceded to belong to the defendant, when it is in the hands of others, who make claim to it, the judge has no power to proceed and try the question of title? but the proper course is, to appoint a receiver by whom an action may be brought against the party claiming the property, to test the validity of the claim. (Stewart agt. Foster, 1 Hilt. 505 ; Hall agt. McMahon, 10 Abb. 103 ; Teller agt. Randull, &c., 40 Barb. 242; Code, §§ 297, 298 and 299.)

I am inclined to think therefore, that the county judge erred in making an order to pay over the moneys. The orders should have beenfor the appointment of a receiver to test the question, as to the claim of the defendant’s wife to the moneys, and the orders should be modified accordingly. The costs of the proceedings and appellant’s costs of this .appeal, must abide the result of the litigation..