Steinmann v. Hosier

139 N.Y.S. 863, 3 N.Y. Civ. Proc. R., (N.S.) 22

Opinion

McCALL, J.

The order to examine Edward B. Hosier as a third party must he vacated for the following reasons:

[1] (a) The only property of the judgment debtor which is claimed to be possessed by the third party is a dower interest in real estate claimed to have been fraudulently assigned. Under section 2441 of the Code, a third party can only be examined if he has personal property of the debtor or is indebted to him in a sum exceeding $10.

[2] (b) A receiver of all the interests of the debtor in this-property has Seen appointed, and if there is real estate in the hands of third persons belonging to the debtor, it can only be reduced to possession by the receiver. Sorrentino v. Langlois, 144 App. Div. 271, 128 N. Y. Supp. 1003.

[3] (c) The third party is now under subpoena as a witness in supplementary proceedings instittited against the debtor by the judgment creditors. He must therefore be examined as a witness under the subpoena served upon him, and a third party order should not issue while that subpoena is in force. First National Bank v. Gow, 139 App. Div. 576, 124 N. Y. Supp. 449.

Motion granted. Settle order on notice.