Penn v. Faber

Appellate Division of the Supreme Court of New York

Penn v. Faber

42 A.D.2d 574, 344 N.Y.S.2d 196, 1973 N.Y. App. Div. LEXIS 4261

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1973

StatusPublished

Cited by1 cases

This text of 42 A.D.2d 574 (Penn v. Faber) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Penn v. Faber, 42 A.D.2d 574, 344 N.Y.S.2d 196, 1973 N.Y. App. Div. LEXIS 4261 (N.Y. Ct. App. 1973).

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Opinion

Appeals by two judgment debtors from separate orders of the Supreme Court, Kings County, both dated June 8, 1972, which granted the judgment creditor’s motions pursuant to CPLR 5225 to compel the judgment debtors to deliver certain certificates of corporate capital stock to the Sheriff of the City of New York. Orders reversed, without costs, and both motions remitted to Special Term for (1) a hearing and determination as to the actual possession and locus of the stock certificates and (2) new determinations of the motions. While the transcripts of the examinations of the judgment debtors in these supplementary proceedings revealed some equivocation respecting the possession and locus of the subject stock certificates, the judgment debtors averred, in opposition to these motions, that the stock certificates were in the possession and custody of their uncle as a pledge for loans made by the latter to each of them; and one of them, Max Munn, further averred that he has “ communicated with ” the uncle and that the latter “has agreed to send * * * [Max Munn] copies of cancelled checks and other evidence of the loan, together with a copy of the pledge agreement which ” he [Max Munn] does “ not have”. The other judgment debtor [575]*575made a similar averment in her opposition affidavit. In view of the judgment debtors’ most recent unequivocal statements as to the whereabouts of the stock certificates, it was error for Special Term to grant the turnover orders without conducting a hearing to resolve the disputed issue. At the hearing directed to be held, the judgment debtors will be obliged to substantiate their claims that the stock certificates are in the possession of their uncle. Apart from the documentary proof referred to, we deem the best proof of that fact to be the testimony of the uncle, at the hearing in person or by interrogatories and cross interrogatories. Hopkins, Acting P. J., Munder, Martuscello, Gulotta and Brennan, JJ., concur.

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Appeals by two judgment debtors from separate orders of the Supreme Court, Kings County, both dated June 8, 1972, which granted the judgment creditor’s motions pursuant to CPLR 5225 to compel the judgment debtors to deliver certain certificates of corporate capital stock to the Sheriff of the City of New York. Orders reversed, without costs, and both motions remitted to Special Term for (1) a hearing and determination as to the actual possession and locus of the stock certificates and (2) new determinations of the motions. While the transcripts of the examinations of the judgment debtors in these supplementary proceedings revealed some equivocation respecting the possession and locus of the subject stock certificates, the judgment debtors averred, in opposition to these motions, that the stock certificates were in the possession and custody of their uncle as a pledge for loans made by the latter to each of them; and one of them, Max Munn, further averred that he has “ communicated with ” the uncle and that the latter “has agreed to send * * * [Max Munn] copies of cancelled checks and other evidence of the loan, together with a copy of the pledge agreement which ” he [Max Munn] does “ not have”. The other judgment debtor [575]*575made a similar averment in her opposition affidavit. In view of the judgment debtors’ most recent unequivocal statements as to the whereabouts of the stock certificates, it was error for Special Term to grant the turnover orders without conducting a hearing to resolve the disputed issue. At the hearing directed to be held, the judgment debtors will be obliged to substantiate their claims that the stock certificates are in the possession of their uncle. Apart from the documentary proof referred to, we deem the best proof of that fact to be the testimony of the uncle, at the hearing in person or by interrogatories and cross interrogatories. Hopkins, Acting P. J., Munder, Martuscello, Gulotta and Brennan, JJ., concur.

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Bluebook (online)

42 A.D.2d 574, 344 N.Y.S.2d 196, 1973 N.Y. App. Div. LEXIS 4261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-v-faber-nyappdiv-1973.

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