Cooney v. Cooney

65 Barb. 524, 1873 N.Y. App. Div. LEXIS 40

• Court: New York Supreme Court
• Decided: September 2, 1873
• Status: Published

Opinion

Hardin, J.

Before the enactment of the Code, it was held that the appointment of a receiver vested in him all the debtor’s personal property, without any assignment. (Mann v. Pentz, 2 Sandf. Ch. 257. Wilson v. Allen, 6 Barb. 542.) Since the Code, it has been settled that such appointment has the like effect upon the real property as well as personal estate of the debtor. (Porter v. Williams, 5 Seld. 148.) From the operation of this rule is excepted such property of the judgihent debtor as is by statute exempt from levy and sale on execution. (Hudson v. Plets, 11 Paige, 180. Andrews v. Rowan, 28 How. 126. Tillotson v. Woolcott, 48 N. Y. 190. Code, § 297.)

In Andrews v. Rowan, and Tillotson v. Woolcott, (supra,) it was held that a judgment recovered against a debtor for exempt property cannot be reached by creditors. Here the debtor has not voluntarily parted with his exempt property, and it cannot be said he has waived his right to it, any more than in the cases quoted. The property was insured, and the fire rendered the insurance company liable to replace the furniture, or its equivalent in money. For a reasonable time, the debtor has a right to the money due from the insurance company, to replace the articles of household furniture, if he has not used other means for that purpose. (See opinion of Lott., in Tillotson v. Woolcott, supra.)

[Herkimer Special Term, September 2, 1873.

Hardin, Justice.]

This motion must be denied, but without prejudice to. an application by the receiver to be made a party to the action brought by the judgment debtor against the insurance company; and without costs, as the question, is novel.