Glover v. Gargan

42 N.Y.S. 74 | N.Y. App. Div. | 1896

Brown, P. J.:

The judgment in this action was recovered April 15, 1882, and an execution was issued thereon against the property of the appellant in June, 1882, and returned unsatisfied in- August, 1882. Nothing further appears to have been done until February 25, 1896, when a second execution was issued to the sheriff of Kings county, where the judgment debtor then resided, which execution was returned unsatisfied in March, 1896. Upon the return of the second execution an order was granted for the examination of the judgment debtor. Such examination was had on Hay eighth, and thereafter, on June twenty-second last, a receiver of the judgment debtor’s property was appointed.

Upon these facts the condition did not exist which entitled the respondents to examine the appellant in proceedings supplementary to execution. Hore than ten years had expired since the return of the first execution issued upon the judgment, and the second execution was not effective to reach all the judgment debtor’s property, inasmuch as, at the time it was issued, the judgment had ceased to be a lien upon the debtor’s real estate and chattels real. (Importers & Traders' National Bank v. Quackenbush, 143 N. Y. 567.)

The orders for the debtor’s examination and for the appointment of a receiver of his property should, therefore, have been set aside, unless the defects in the proceedings were such as the debtor could waive.

We are of opinion that the objections now taken to the orders by the appellant were such as the judgment debtor could waive, and that he must be deemed to have waived them.

It appears from the record before us that he appeared before one of the justices of the Supreme Court at the Special Term in obedience to the order for his examination in person and by attorney, and without objection submitted to an examination in reference to his property, and that at the close of such examination a motion was made for the appointment of a receiver. The appellant made no opposition to that motion, whereupon it was granted and the receiver was appointed. These facts are not denied by the appellant, but the court is asked to set aside the orders on the ground that at the time of the examination the appellant’s attorney was not aware of the decision of the Court of Appeals to which reference has heretofore been made in this opinion. We think that, having failed to object to the order for his examination, or to oppose the motion for the appointment of a receiver, the appellant was not entitled, for the reasons stated, to have the order vacated. It appears from the papers before us that, subsequent to the recovery of the judgment against him, the appellant conveyed to his sister, Annie H. Cargan, certain lots, with the buildings thereon, in the city of Brooklyn, and that the receive] has been authorized to commence an action against said Annie M. Gargan to have said conveyance set aside as fraudulent.

It is quite apparent that the objections now made by the appellant to the order for his examination and to the order appointing a receiver will be available as a defense to any action which the receiver may commence to procure said deed to be set aside. But Annie M. Gargan is not a party to this appeal and is not before the court, and she alone is entitled to defend the title to the real estate conveyed to her. So far as the appellant is concerned he must be deemed to have waived the defects in the proceeding claimed to exist, and the orders appealed from must, therefore, be affirmed, with ten dollars costs and disbursements.

All concurred.

Orders affirmed, with ten dollars costs and disbursements.