Summary
In Sorrentino v. Langlois (supra), cited in the opinion of this court as authority for the proposition that the examination of a witness in a third party proceeding would be futile, for the reason that any property that might be discovered would belong to the receiver and could only be reduced to possession and disposed of by him under an order of the court, the third party proceeding was instituted by the judgment creditor in whose behalf the receiver had been appointed.
Summary of this case from Matter of WalkerOpinion
April 21, 1911.
John J. McGinniss, for the appellant.
Clyde E. Black, for the respondent.
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 him in a sum exceeding ten dollars. The affidavit was made in the alternative, and did not allege that either of said facts existed. ( 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 we are of the opinion that a receiver having been appointed in the action, a judgment creditor could not properly be permitted to go into an examination of a third party, for the reason that upon the appointment of the receiver the title to all of the judgment debtor's personal property vested in the receiver, as well that which he possessed as that which might be in the hands of third 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 circumstances 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.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the original order vacated, with costs.
JENKS, P.J., HIRSCHBERG, BURR and RICH, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and original order vacated, with costs.