18 N.Y.S. 509 | N.Y. Sup. Ct. | 1892
The plaintiff brought this action, alleging himself to be a receiver appointed in supplementary proceedings, to procure satisfaction of an alleged equitable lien impressed upon a lease of property in this city; to-to have himself declared entitled to the possession thereof, together with the books, papers, and contracts connected therewith; and to have defendants account and pay over all moneys that may be found due to the judgment debtor. It will be seen that the action was brought not only to enforce a lien as against real estate, but also involved the right of the plaintiff to recover personal property in the possession of the defendant belonging to the judgment debtor. The ground upon which the complaint was dismissed was because, the proceedings supplementary, in which he was appointed, having been brought in aid of an execution, proof was not furnished that the execution was not outstanding at the time the proceeding was commenced and the order appointing the receiver made. It was held by the court of appeals in the case of Wright v. Nostrand, 94 N. Y. 45, that, the production and proof