10 Daly 168 | New York Court of Common Pleas | 1881
If the judgment debtor is alleged to have property which he unjustly refuses to apply towards the satisfaction of the judgment, the statute provides this mode of inquiry, and upon the fact appearing, the judge may order it applied, if not exempt from execution, and not earnings necessary for a family wholly or in part supported by the debtor’s labor. If, therefore, the seat in the Stock Exchange is property, the plaintiff has a right to its application. The learned justice below held it was not, and his conclusion is supported by statements contained in opinions given by the courts of a sister state, whose expressions are entitled to great respect. In Thompson v. Adams (Weekly Hotes of Cases, Vol. 7, No. 18), plaintiff claimed to be the equitable owner of the seat of a deceased member, in the Philadelphia Stock Exchange, he having advanced the money for its purchase, the debt being unpaid. He therefore demanded the whole proceeds of sale, or to share equally with creditors who were members of the board. The court held the moneys applicable, first, in payment of indebtedness to members, which exhausted the fund. Elcock, J., before whom the ease was tried, said, “ a seat in the board is a species of property, incumbered with conditions. It is not a matter of absolute purchase, for it never was freed from the conditions and duties of the constitution and by-laws.’ Upon appeal the court say: “ The seat is not property in the eye of the law; it could not be seized in execution for the debts of the members.”
In Pancoast v. Gowen (Weekly Notes of Cases, Vol. 7, No. 29), the question before the court was whether or not the seat could be reached by an attachment execution, and it was held, it could not be levied upon, under that process ora fi. fa. The above cases are somewhat fully quoted to show that the question of the seat being property, was not directly before the court, for decision, in either. The first related to the disposition of the proceeds of sale, and the second to the power of certain process to reach the property.
The order must be reversed with costs.
Charles P. Daly, Oh. J., concurred.
Van Brunt, J., dissented.
Order reversed, with costs.