26 How. Pr. 155 | N.Y. Sup. Ct. | 1862
The question presented upon the appeal arises under the provisions of the code in regard to proceedings supplementary to execution. The proceedings were instituted under § 292, and it is provided by § 297 that the judge may order the property of the judgment debtor not exempt from execution, in the hands of either himself or of any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment. It is however quite obviou" from § 299, that it was not intended that the judge should proceed to try the title to property, when it was disputed, and summarily to determine to whom it belonged. The proper course to be pursued in such cases would be to appoint a- receiver, and by an action, to test any question which may arise as to the validity of the claim. In the case of The People v. King, (9 How. 97,) it was decided that in supplementary proceedings, where the title to funds in the hands of the defendant is in dispute, claimed by persons other than the -defendant, it was improper to make an order that the defendant pay over the money and apply it directly in satisfaction of the judgment; and that the judge had no authority to try and determine, in this summary manner, these conflicting claims. (See also Sherwood v. Buffalo and New York City R. R. Co., 12 How. Pr. Rep. 139 ; Rodman v. Henry, 17 N. Y. Rep. 484.)
Under the cases cited, I do not think that the county judge was authorized to make the order imposing a fine upon the defendant. Although the property which was claimed by Stone had been converted into money, and in this respect may be considered, in an aspect somewhat different from other property which might be seized on execution, yet I do not consider that this fact alters the principle applicable to the case. The judgment debtor claimed that it belonged to a third party, who also claimed to own it. With these conflicting claimants the title could only be determined by legal proceedings commenced expressly for that purpose. It is said that the appointment of the receiver would be of no avail as the debtor
I do not think that this view of the case can be sustained. The very same end could be accomplished in another way, and quite as effectually. 'While the judge had no power to decide a disputed question as to the ownership of the money, in this summary manner, he had full authority to order the appointment of a receiver, who might bring an action against the claimant to test the question of ownership. (17 N. Y. Rep. 384.) Here was a full and adequate remedy, and in accordance with what I understand to be the practice in similar cases. The county judge actually determined the whole question of title by his proceedings. This I think he had no right to do, and the proceedings should be reversed, with ten dollars costs of appeal.
Hogeboom, J. concurred.
Peckham, J. dissented.
Order reversed.
Hogeboom, Peckham and Miller, Justices.]