Ryan v. Wagner

143 A.D. 176, 127 N.Y.S. 973, 1911 N.Y. App. Div. LEXIS 792

Opinion

Rich, J. :

The rights of the parties depend upon the determination of the question whether the judgment debtor has a vested estate or present interest in the estate of his deceased father. We think it unwise, however, to decide that question in this proceeding, as the order must be reversed upon another ground.

The learned justice at Special Term based the denial of the motion upon the sole ground that there was no proof that the judgment debtor had any property, and hence the appointment of a receiver would serve no purpose. We think the court was in error, for the reason that upon such an application it is not a condition precedent to the appointing of a receiver that it be made to appear that the judgment debtor has property which may be applied to the payment of the judgment, as was held in Dease v. Reese (39 Misc. Rep. 657).

The order must be reversed, with ten dollars costs and disbursements, and the motion for the appointment of a receiver granted.

Jenks, P. J., and Thomas, J., concurred; Burr and Carr, JJ., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion for the ap2iointment of a receiver granted, with costs.