Powley v. Dorland Building Co.

256 A.D. 934, 9 N.Y.S.2d 860, 1939 N.Y. App. Div. LEXIS 5527

Opinion

In an application made by a receiver in supplementary proceedings for an order under section 794 of the Civil Practice Act directing appellant, a thud party, to pay to the receiver the amount of an indebtedness alleged to be due from appellant to the judgment debtor, order dated April 19, 1938, referring the matter to an official referee, reversed on the law, without costs, and motion denied, without costs. Order dated August 13, 1938, confirming the official referee’s report and directing appellant to turn over and pay the sum of $4,013.31 to respondent, reversed on the law, without costs, and motion denied, without costs. We reverse the orders without prejudice to the right of the judgment creditor or the receiver in supplementary proceedings to maintain an action against the third party to recover the alleged indebtedness. In a proceeding under section 794 of the Civil Practice Act the court is without power to determine disputed issues of fact as to the existence of an indebtedness. (Kenney v. South Shore Natural Gas & F. Co., 201 N, Y. 89; Bank of United States v. Canal Securities Corp., 250 App. Div. 505.) Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.