Darrow v. Lee

16 Abb. Pr. 215

Opinion

By the Court.

*—Hiltoh, J.

This was a proceeding supplementary to execution, instituted against the defendant before one of the judges of this court, at chambers, under an order granted pursuant to section 294 of the Code, to reach certain moneys in the Bank of Horth America, alleged to belong to the defendant.

The money was deposited in the name of the defendant, but, upon his examination before the judge, he testified that it was not his, but a part of it was deposited by him as agent for another, and was rents collected by him as such agent from property in which he was in no manner interested; and the residue was alleged to have been assigned for a valuable consideration after this proceeding was instituted.

The judge appointed a receiver of so much of the money due from the bank to the defendant as would be sufficient to satisfy the judgment and costs; and authorized the receiver, in case the bank refused to pay over the same, to institute an action for its recovery.

At the time this order was made, the execution issued upon the judgment recovered against the defendant had not been returned, but was still in the hands of the sheriff.

I am unable to find any authority for the appointment of a receiver in such a case.

By section 298, the judge before whom proceedings supplementary to execution have been instituted, is clothed with the power to appoint a receiver of the property, real and personal (§ 464), of the judgment-debtor, in the same manner, and with the like authority as if the appointment was' made by the court according to section 244; and, by subdivision 3 of this section, the power thus conferred is in proceedings of this character limited to cases where the execution has been returned unsatisfied.

Hor can it be said that the power is conferred by subdivision 5 of the same section,—-which declares that a receiver may be appointed in such other cases than those therein previously enumerated, “ as are now provided by law or may be in accordance with the existing practice, except as otherwise provided” in the Code,—because the practice in equity was never to entertain jurisdiction upon a creditor’s bill, much less appoint a receiver, special or otherwise, of the property of a j udgmentdebtor, until an execution upon the judgment had been issued, and returned unsatisfied; and, apart from the practice thus established, there was none other from which such an authority could be inferred. (Porter a. Williams, 9 N. Y., 142; 12 How. Pr., 107, opinion Denio, J.; Reubens a. Joel, 13 N. Y., 488; Kemp a. Harding, 4 How. Pr., 178.)

The order appealed from should be reversed.

Present, Daly, F. J., Hilton and Bkady, JJ.