Hall v. McMahon

10 Abb. Pr. 103

• Court: New York Court of Common Pleas
• Decided: November 15, 1859
• Status: Published

Opinion

Hilton, J.

—In supplementary proceedings, where a judge is asked to make an order requiring property alleged to belong to the defendant, but in the possession of and claimed by another, to be delivered over to a receiver, the testimony should show beyond a reasonable doubt that the claim is without any foundation in fact, and used merely as a cover to protect the defendant’s property from the just demands of his creditors. And even in such a case, where the property is capable of being levied on, there would be no impropriety in refusing the order—leaving the plaintiff to his remedy by a levy upon the property, under an execution issued upon his judgment.

Here, the most, I think, that can be said of the evidence taken before the referee is, that it excites a suspicion that the bill of sale by the defendant to his nephew was without adequate consideration, and made upon some secret understanding by which he was to have an interest in the business thereafter earned on by the nephew.

This is not enough to justify me in making the order applied for. If, as the plaintiff contends, the property described in the bill of sale, and the horse, are clearly the property of the defendant, there will be no risk incurred by taking them upon execution, which he can issue at any moment, or they may be reached through an action brought by the receiver.

In respect to the application for an execution against the person of the defendant, it is sufficient to say, that the evidence upon the trial of this cause showed that the action was brought to recover for work, labor, and materials furnished to the defendant, and although the stipulation signed at the time by the defendant gives some ground for supposing that the recovery was for moneys had and received by the defendant as belonging to the plaintiff, yet that supposition is entirely overcome by the affidavit of the defendant, and the agreement signed by the parties in March, 1854.

Therefore, the only order granted will be that for- the appointment of a receiver: all the others are refused.