194 A.D. 921 | N.Y. App. Div. | 1920
Order reversed, without costs, and proceeding remitted to the Special Term to determine, after inquiry, by reference or otherwise, as may be best, the question whether or not the wife of the judgment debtor and her apparent grantees, Abramowitz and Schafran, were holding title to the real property in trust for the judgment debtor, and whether the avails that came into the hands of the judgment debtor belonged to him or to his wife, and the disposition thereof; and to make such order as the evidence justifies. We are of opinion'that in this case every question of fact which it is necessary to decide in order to determine whether the judgment debtor had violated the injunction order, was within the jurisdiction of the court upon this motion, and that a mere claim upon the part of the judgment debtor that the property belonged to his wife did not foreclose such inquiry. The inquiry should at least be prosecuted so far as to decide whether the claim was a substantial one; in such ease the remedy is by an action by a receiver to reach the fund. Jenks, P. J., Mills, Putnam, Blaekmar and Kelly, JJ., concur.
