135 N.Y.S. 145 | N.Y. App. Div. | 1912
The facts stated in the moving papers were in no manner disputed, or questioned, on the hearing of the application, and assuming, as we must, the truth of these statements we are of the opinion that petitioner’s application was improperly denied.
On the 27th day of July, 1898, the petitioner duly recovered a judgment in the Supreme Court of this State, on personal service of process, against Charles Barry, and it was duly entered in the proper clerk’s office. An execution, duly issued, was returned unsatisfied; and the judgment still remains wholly unpaid. Barry was duly adjudged to be an incompetent person in proceedings had in the County Court of Steuben county;
The learned county judge on denying petitioner’s application recognized the propriety of a proceeding by petition to the court having control, through the committee it had appointed^ of the incompetent’s estate, for the payment of the debts of the incompetent. He says in his opinion then delivered: “It is true that the court which by its committee takes possession of the property of an incompetent person is clothed with full authority to pay all just claims against the incompetent to the extent of his estate. This summary remedy is favored by the courts, and is adopted unless some special facts or circumstances exist which render it necessary or appropriate that the claimant should be permitted by the court to maintain an action for the purpose of having his claim or the extent thereof adjudged,” citing Kent v. West (33 App. Div. 112); Williams v. Estate of Cameron (26 Barb. 172); Matter of Hopper (5 Paige, 489). Citations to like effect might be indefinitely multiplied. But he held that special facts did appear in this case making it appropriate and necessary that the petitioner be remitted to another application, or proceeding, to revive the judgment. These special facts are stated to be that "by the lapse of time all the liens acquired by the judgment and which existed in full force for a period often years have now expired; and so far as any force remains in the judgment, as a judgment, it stands more now like a disputed claim against this estate and until proceedings are taken to revive the judgment it stands no different from any other claim against the incompetent person.” It is also suggested that because the judgment could not have been enforced against Barry’s property as a lien thereon or by proceedings supplementary to execution until the lien had been revived or the judgment sued over, it cannot be enforced as a judgment in this proceeding against the committee, who represents the judgment debtor. But, though the lien of the judgment had expired, it still remained a debt against the incompetent. “There is always on the part of the judg
It is possible, however, that on a rehearing of the application facts may be made to appear showing that the amount of the claim had been reduced by payments or that there exist other claims or charges which should be provided for out of the fund by which its amount may be reduced so as to be insufficient to pay the petitioner’s claim in full.
The order should, therefore, be reversed, with costs to appellant to abide event, and the proceedings remitted to the County Court of Steuben county for further action thereon.
All concurred.
Order reversed, with ten dollars costs and disbursements to appellant to abide event, and the proceeding remitted to the County Court for its further action thereon. Order entered nunc pro tunc as of March 5, 1912, the date of argument of the appeal.
