16 Daly 107 | New York Court of Common Pleas | 1890
This is an appeal brought by the j udgment debtor from an order-of the general term of the city court affirming an order made by that court, in proceedings supplementary to execution, requiring him to deliver to Isaac-L. Falk, receiver appointed in such proceedings, a life insurance policy for $2,500 issued by the Mutual Life Insurance Company of Yew York upon the-life of the judgment debtor. The judgment debtor claims to have transferred.
The judges of the city court properly decided that the warrant upon which these proceedings were instituted (Code, § 2488) was independent of the previous order for examination, and that the vacating of s«ch previous order did not affect the warrant. The Code permits the supplementary proceedings to be instituted by warrant instead of by order, (section 2437,) and also permits the warrant to be issued at any time after an order is granted; but it does not appear that in the latter case the subsequent vacating of the order requires the vacating of the warrant. The section provides that the judge may, if necessary, direct the adjournment, or, if the return-day of the order has elapsed, the continuance, of the proceedings under the order until after the return of the warrant and his decision thereupon. This shows that the judgment creditor may abandon the proceedings instituted by the order, and elect to proceed under the warrant, or may keep the proceedings under the order alive until his right to proceed under the warrant is established. But the complete independence of the two proceedings is thus clearly indicated.
The appellant cannot take advantage of any irregularities in the recitals in the warrant, because such irregularities were not specified in his motion to vacate it. Buie 37, Code, § 323. The order denying the motion to vacate the warrant must be affirmed, and so with the other intermediate orders appealed from. Ho authority is cited for the proposition that the motion to compel delivery of property to the receiver cannot be made by the judgment creditor. The order appealed from should be modified as heretofore directed, and as so modified affirmed, without costs to either party.