128 N.Y.S. 1003 | N.Y. App. Div. | 1911
It appeared in the affidavit on which the original motion was made for the examination of a third party, as to property of the judgment debtor,! that a receiver had been appointed, and it likewise failed to appear by such affidavit that' the third person to be examined had personal property of the defendant, the said judgment debtor, exceeding ten dollars in value, or that she was indebted to jhim in a sum exceeding ten dollars. The affidavit was made in the alternative, and did not -allege that either of said facts jexisted. .(Collins v. Beebe, 7 N. Y. Supp. 442; Tifft v. Tifft, 4 Den. 175, 177.) This question was not, perhaps, fully raised by the motion of the defendant to vacate the order, but wje are of the opinion that "a receiver having been appointed ml the action, a judgment creditor could not properly be permitted to go into an examination of a third party, for the reason that j upon the appointment of the receiver the title to all of the judgment debtor’s personal property vested in the receiver, as jwell that which he possessed as that which might be in the 'hands of thud persons. (Moore v. Taylor, 40 Hun, 56, 57.) | If there is property in the hands of third persons belonging to the judgment debtor, that can now be reduced to possession only by the receiver, and to continue an order for the examination of a third party under such circumstance's would be entirely futile; if property was found it would belong to the'receiver, to be paid out upon the order of the court, and could only ¡go to the judgment creditor under such an order. ' I '
The order appealed from should be reversed, with ten dollars costs and disbursements, and the original order vacated, with costs. I
.Jerks, P. J., Hirschberg, Burr and Kich, JJ., concurred.
Order of the County ojaurt . of Kings county reversed, with ten dollars costs and disbursements, and original order vacated, with costs. ¡ . .
