146 A.D. 605 | N.Y. App. Div. | 1911
The following is the opinion of Mr. Justice Blackmar:
The interlocutory judgment "or order under, section 820a of the Code having been entered, the plaintiff is practically discharged from the action. The contest is now solely between the different defendants. Now comes another person, the applicant, who claims an interest in the fund, and I can see no theoretical or practical objection to giving him an opportunity to assert it. A judgment creditor, whose execution has been returned unsatisfied, has an interest in property of the judgment debtor which warrants him in seeking the aid of a court of equity to have it applied to the satisfaction of his judgment. As incidental to the relief, fraudulent conveyance may be swept aside. The applicant, therefore, has such an interest as is contemplated by section 452 of the Code. In addition to this, the third-party order gives him a specific equitable lien. The applicant may take an order making him a party defendant, and amending all process and pleadings accordingly without prejudice and subject to all proceedings already had in the action, with leave to set up his claim to the fund by serving on the other defendants within ten days such pleadings as he may be advised, which shall he considered as controverted by the other defendants by traverse or avoidance, as the case may require, without formal pleadings. No costs. ,
Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.
Order affirmed, with ten dollars cost and disbursements, on the opinion of Blackmar, J., at Special Term.
