143 N.Y.S. 874 | N.Y. App. Div. | 1913
This action was begun by the service of the summons and complaint upon the defendant James W. Henning on April 24, 1912. The defendant W. Lewis Stevens voluntarily appeared herein on May 20,1912. Issue was joined by the service of the answer of said defendants on June 10, 1912. On March 11, 1913, upon the consent of the said defendants, a judgment was entered in favor of the plaintiff and against the said defendants for the sum of $2,234.88.
Execution upon said judgment against the property of said defendants was, on March 28, 1913, issued to the sheriff of the county of New York and was returned unsatisfied by him. Thereafter execution against the person of both defendants was, on April 16, 1913, issued to the sheriff of the county of New York. The defendant W. Lewis Stevens was arrested by the sheriff of the county of New York on April 18, 1913, and has since been in his custody. The defendant James W. Henning was not arrested and is not and has not been in custody.
On April 29, 1913, an order was made for the examination of both defendants in supplementary proceedings. On May 6, 1913, an order to show cause why the aforesaid order should not be vacated was granted. On June 23, 1913, this motion was granted to the extent of vacating the original order for examination with respect to the defendant W. Lewis Stevens, but refusing to vacate it with respect to the defendant James W. Henning and directing that the said Henning appear for examination. ' From said last-mentioned order the defendant James W: Henning now appeals. The defendants were copartners and are sued as such. ' The question is whether the arrest upon execution of one of two joint and several judgment debtors suspends all other remedies against both. It is certain and it is conceded that as to the debtor held in execution all other remedies are suspended while the imprisonment continues. (0Koenig v. Steckel, 58 N. Y. 475.)
The motion to vacate the order for the examination of the defendants should, therefore, have been vacated in toto, and the order appealed from will be modified accordingly, with ten dollars costs and disbursements to the appellant.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order modified as directed in opinion, with ten dollars costs to appellant. Order to be settled on notice.