10 How. Pr. 560 | N.Y. Sup. Ct. | 1854
By the court—Greene, Justice.
By the 2d clause of § 292 of the Code, it is provided that after the issuing of an execu • tion against property, and upon proof by affidavit, to the satisfaction of the court or judge, that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, the court or judge may," by an order, require the judgment debtor to appear and answer concerning the same, and that such proceedings may thereupon be had, for the application of the debtors property towards the satisfaction of the judgment, as are provided upon the return of an execution unsatisfied."
This provision was, undoubtedly, suggested by the 4th sub. of the 4th section of the non-imprisonment act, which provided that where satisfactory evidence, by affidavit, should be adduced to the officer mentioned in the act, that the defendant had property or rights in action which he fraudulently
It is entirely clear from the provisions of this statute, and from all the decisions upon, and practice under it, that it was never intended by the legislature, nor construed by the courts, to sanction this summary proceeding for the purpose, of reaching tangible property in the open and notorious possession.of the. debtor and within the reach of an ordinary execution, where the debtor had manifested no design to remove or dispose of it with a fraudulent intent.
In my opinion, the provisions of the fl,92d section of the Code, when fairly construed, are not susceptible of any such intolerable abuse. The first clause of the section provides for the issuing of the order, requiring the debtor t,o appear and answer concerning his property,, after an execution has been returned unsatisfied—thus plainly implying, that in ordinary cases the creditor must exhaust his remedy by execution, before resorting to this proceeding. The second clause provides that
In this case, the respondent’s affidavit, that the execution had not been returned; and, although the time within which the sheriff was authorized to levy under it, had expired, that fact did not authorize this proceeding. It was the duty of the creditor to issue a new execution. I am, therefore, of the opinion, that the facts disclosed in the affidavit upon which the proceeding was founded, did not make a case within the statute—that the officer acquired no jurisdiction over the subject matter-; and, as none could be conferred by the appearance of the appellant, even if he had made no objections to the proceeding, the orders appealed from should be reversed with costs.