Marx v. Spaulding

42 N.Y. Sup. Ct. 478, 16 Abb. N. Cas. 309

• Court: New York Supreme Court
• Decided: March 15, 1885
• Status: Published

Opinion

"Bv the Couet,

Davis, P. J.:

We think the order should be reversed. The return was not such an one as justified the supplementary order. It is not enough to show that, upon the existing facts, it ought to have been such an one. The remedy was to require the sheriff to make the proper return, and if he refused, to move to compel him to do so on affidavits showing the facts now claimed to exist. Á creditor’s bill would not have been sustained in chancery upon such a return as was made in this case. The Code does not justify the proceedings where th'e execution has not been returned, for the reason that the sheriff has levied upon and is about to sell real estate of defendant. Nor ought the right to the supplementary order be made to depend upon the result of a controversy, upon motion to set it aside, upon conflicting affidavits on the question whether the sheriff should not have made the return required by law as the basis of the supplementary examination.

The order should be reversed, with ten dollars costs and disbursements.

Present — Davis, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements.