Dickinson v. Onderdonk

New York Supreme Court

Dickinson v. Onderdonk

25 N.Y. Sup. Ct. 479

DecidedSeptember 15, 1879

StatusPublished

This text of 25 N.Y. Sup. Ct. 479 (Dickinson v. Onderdonk) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dickinson v. Onderdonk, 25 N.Y. Sup. Ct. 479 (N.Y. Super. Ct. 1879).

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Opinion

Per Curiam:

We tbink that the county judge was not authorized to make this order. The law applies the property of a debtor to the payment of a debt by selling and applying the avails. When the judge ordered the horse to be applied on the debt and the creditor to give a receipt, he practically established the value of the horse, and compelled the debtor to sell at that value. And though the value which he thus fixed may have been even more than the true value, we think that he erred. The plaintiff might have issued execution and levied; and that would have been the best way of protecting all rights. Or probably a receiver might have been appointed ; and the receiver, if he ever obtained title to the horse, could have sold it.

Whore another person than the debtor claims title to the property, as has often been decided, the title cannot be determined in this summary way. In analogy to that principle, when the property is such as may by law be exempt, and the debtor claims that it is actually exempt, it would seem very doubtful whether the question of exemption could be tried under these supplementary proceedings. Such a question involves the title to chattels personal, and is proper for a jury trial. If the creditor should levy by execution on the alleged exempt property, the debtor could then try his rights by an ordinary action at law. And we think he ought not to be deprived of the opportunity to do this by means of an order granted in supplementary proceedings.

The order appealed from must be reversed, with ten dollars costs and printing disbursements, the same to be set-off against the debt of the plaintiff.

Present — LeaeNE», P. J., Bockes and BoaedmaN, JJ.

Order reversed, with ten dollars costs and printing disbursements, to be off-set against plaintiff’s recovery.

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Per Curiam:

We tbink that the county judge was not authorized to make this order. The law applies the property of a debtor to the payment of a debt by selling and applying the avails. When the judge ordered the horse to be applied on the debt and the creditor to give a receipt, he practically established the value of the horse, and compelled the debtor to sell at that value. And though the value which he thus fixed may have been even more than the true value, we think that he erred. The plaintiff might have issued execution and levied; and that would have been the best way of protecting all rights. Or probably a receiver might have been appointed ; and the receiver, if he ever obtained title to the horse, could have sold it.

Whore another person than the debtor claims title to the property, as has often been decided, the title cannot be determined in this summary way. In analogy to that principle, when the property is such as may by law be exempt, and the debtor claims that it is actually exempt, it would seem very doubtful whether the question of exemption could be tried under these supplementary proceedings. Such a question involves the title to chattels personal, and is proper for a jury trial. If the creditor should levy by execution on the alleged exempt property, the debtor could then try his rights by an ordinary action at law. And we think he ought not to be deprived of the opportunity to do this by means of an order granted in supplementary proceedings.

The order appealed from must be reversed, with ten dollars costs and printing disbursements, the same to be set-off against the debt of the plaintiff.

Present — LeaeNE», P. J., Bockes and BoaedmaN, JJ.

Order reversed, with ten dollars costs and printing disbursements, to be off-set against plaintiff’s recovery.

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Bluebook (online)

25 N.Y. Sup. Ct. 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickinson-v-onderdonk-nysupct-1879.