Owen v. Dupignac

The second subdivision of section 292 of the Code of Procedure is analogous to the second subdivision of section 8, of the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831. To obtain a warrant under the latter act and subdivision, satisfactory evidence must be adduced to the officer applied to therefor, that the debtor has property which he unjustly refuses to apply to the payment of the judgment set forth, and under the former act and subdivision after the issuing of an execution against property, upon proof to the satisfaction of the judge granting the order, that any judgment-debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such judge may by order require the judgment-debtor to appear at a specified time and place to answer concerning the same. The proceeding referred to under the act of 1831, has been considered as a statute execution, reaching property which is not subject to seizure b y fieri facias, and such as through the fraud of the debtor, either has been, or is in danger of being placed *186beyond the reach of the ordinary process, per Jewett, Ch. J. (Steward a. Biddlecum, 2 Coms., 107; see also Sackett a. Newton, 10 How. Pr. R., 560), and it was held that the applicant under this statute must make out a plain case. (The People ex rel. Van Yalkenburgh a. The Recorder of Albany, 6 Hill, 429.) I think the same obligation rests upon the applicant under the Code. The proceeding is one in aid of the execution, and the evidence submitted should show that the debtor has property which he unjustly refuses to apply to the payment of the judgment sought to be enforced. Where the circumstances disclosed are such as to justify the presumption that the debtor operating through another, is carrying on business for his own benefit, owning the property with which such business is done, the creditor should be left to the proceeding subsequent to the return of the execution, when by the interposition of a receiver the whole subject may be investigated. The affidavit on which the order herein was obtained is entirely speculative, and may be summed up briefly thus : that there is a place of business in this city, conducted by the son of the defendant, the merchandise and stock and property of which the plaintiff is informed the defendant has had, and still has, or has an interest therein. This is not a plain case. It does not show that the defendant has any property free from claims of third persons, which he refuses to apply to the payment of his debts. On the contrary, the affidavit discloses the fact that the son of the defendant, who had charge of the alleged place of business, informed the sheriff that the defendant had no property therein. I think the order should have been discharged, and that the motion for that purpose made should have been granted.

The order in this case was not granted upon the return of the original execution, and the plaintiff having made application under subdivision 2, of section 292 of the Code, should be confined to his remedy under that subdivision.

The first execution bad been returned about fifteen years, and had ceased, I think, to be operative, for the purposes of the section referred to. See Corning, &c., a. Stebbins (1 Barb. Ch. R., 589.)

Order appealed from affirmed, with $10 costs.

It appeared by the affidavit upon which the order for the examination of the defendant was founded, and the fact was recited in the order’, that an execution had beezr issued upon the judgment, and had been returned *184wholly unsatisfied. This was sufficient to entitle the plaintiff to an order for the examination of the defendant. It was held in Cuyler a. Moreland (6 Paige, 273), that when an execution upon the judgment had been returned unsatisfied that a creditors’ bill might be filed, though the plaintiff had issued another execution, and that he was not bound to wait, before the filing of his bill, until the new execution was also returned unsatisfied. That even where a levy was made under the second execution, the bill might be maintained unless it was shown that the property levied upon was amply sufficient to pay the judgment. And in Bates a. Lyons (7 Paige, 85), it was held where an execution had been returned unsatisfied, that a creditors’ bill might be filed, though the complainant had brought a new suit upon his judgment, and had recovered a new judgment thereon. The principle and the practice established by these cases is applicable to proceedings under section 192, for it has been repeatedly held that these proceedings are to be regarded as a more summary and less expensive substitute for the creditors’ bill under our former system, and that the rules settled in reference to proceedings under creditors’ bills may with propriety be regarded as controlling, when not altered by the Code, or by the practice under it. (Orr’s case, 2 Abbotts’ Pr. R., 458; Griffith a. Dominguez, 2 Duer, 658; Davis a. Turner, 4 How. Pr. R., 190; Myer’s case, 2 Abbotts’ Pr. R., 476; Sale a. Lawson, 4 Sandf., 718; Lilliendahl a. Fellerman, 11 How. Pr. R., 528.)

It is true that the execution in this case was issued and returned unsatisfied ten years before the application was made for this order. But that makes no difference. The Code in this respect is the same as the provision in the Bevised Statutes respecting creditors’ bills. (2 Rev. Stats., 173, § 38, 1st ed.) The right to the discovery by the examination of the debtor is given whenever an execution has been returned unsatisfied in whole or in part. It is unqualified, and we cannot in face of this statutory provision say that by reason of lapse of time, the creditor must issue another execution and wait its return before he can have the order. The return of an execution unsatisfied is the only condition imposed. (McElwain a. Willis, 9 Wend., 560.) When that is done, the right is given by the statute, and court cannot take it away or impair it by imposing other conditions. Even before the Bevised Statutes, all that was essential to give

*185the court jurisdiction was, the return of an execution unsatisfied, to reach property of the debtor held in trust, or fraudulently covered. (Brinkerhoff a. Brown, 1 Johns. Ch„, 671; Beck a. Burdett, 1 Paige, 305; Edmonston a. Lyde, Ib., 636; Child a. Brace, 4 Ib., 309; Clarkson a. Depeyster, 3 Ib., 320; Cassedy a. Meacham, Ib., 311; Donovan a. Finn, 1 Hopk., 59; Angel a. Draper, 1 Vern., 399; Shirley a. Watts, 3 Atk., 200; Balch a. Wostall, 1 P. Wms., 445.) “The legal remedy by execution,” says Chancellor Kent in the first of these cases, Brinkerhoff a. Brown, “ must first be tried, as this court is not to know by anticipation that it will be ineffectual,” and in McDermot a. Strong (4 Johns. Gh., 687), a supplemental bill to reach property in the hands of assignees was filed in 1819, upon an execution returned unsatisfied ten years before, in 1809.

It was upon this ground that I denied the motion to set aside the order, the affidavit disclosing facts sufficient to entitle the plaintiff to examine the judgment-debtor. The other facts set up in the affidavit I regarded as immaterial.

Hilton, J.—I concur in the above.