In re Gough

31 A.D. 307, 52 N.Y.S. 627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Per Curiam :

Upon the granting of the order to show cause in this case the following opinion was delivered by Mr. Justice Pryor : “ The judgment is against the defendants as trustees, and the object of the proposed examination is to reach a fund deposited with them for satisfaction of the judgment. A supplementary proceeding is a substitute for a creditor’s bill (Pope v. Cole, 64 Barb. 406), and the case authorizes such a bill. (Code, § 1871.) It is objected that a supplementary proceeding is not available against a trustee, but the adjudications cited for the contention do not support it. In In re Jung (16 Wkly. Dig. 563) the irregularity of the judgment was the ground of decision. In Collins v. Beebe (54 Hun, 318) the proceeding was held untenable because the statute authorizes an execution and nothing further against the estate of a decedent. The argument in neither case applies to the present. (Lynch v. Johnson, 48 N. Y. 27, 33.) The legal title to the fund is in the defendants, and they are the judgment debtors. The execution is in proper form. (Code, § 1371.) Here, then, is a fruitless execution against the only property of the judgment debtors available to the plaintiff —■ a fund specifically devoted to the satisfaction of his judgment — and it were manifest injustice to refuse him its benefit. A supplementary proceeding is a remedial process, and a liberal construction should be indulged to uphold it.”

In accordance with the views therein expressed the order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Rumsey-, Patterson and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.