Green v. Griswold.

GREEN v. GRISWOLD.

SUPERIOR COURT OF THE CITY OF NEW YORK, SPECIAL TERM, JULY, 1888.

$$ 723, 1871 et seq.

Judgment creditor's action-parties to-striking out unnecessary clause

in title.

A judgment creditor, by the commencement of an action to discover property belonging to the debtor, secures a lien upon all the property of the debtor acquired before the commencement of the action.

The fact that the plaintiff in a judgment creditor's action sets forth in the complaint that the action is brought on behalf of the plaintiff and of all judgment creditors who shall in due time come in and seek relief by, and contribute to the expenses thereof, does not prevent a judgment in favor of the plaintiff alone against the defendants. Such an allegation is not necessary to the sustainment of the cause of action; and, upon the plaintiff's motion should be stricken out after trial and before the entry of judgment where no other creditors have come in in due time since the commencement of the action, or offered to pay the expenses of the action. (Decided July 12, 1888.)

Motion by plaintiff to strike out an allegation in the complaint.

The facts appear in the opinion.

George Walton Green, for plaintiff.

Anthony R. Dyett and Royal S. Crane, for defendant Griswold.

Green v. Griswold.

Miller, Peckan & Dixon, for defendant the Mutual Trust Company.

O'GORMAN, J.-The plaintiff, a judgment creditor of defendant, William N. Griswold, by commencement of this action acquired a lien upon all the property of the said defendant acquired before the action began (Storm v. Waddell, 2 Sandf. Ch. 494; Brown v. Nichols, 42 N. Y. 30). The fact that the plaintiff set forth in her complaint that she brought the suit "on behalf of herself and all judgment creditors who shall, in due time, come in and seek relief by, and contribute to the expenses thereof," does not prevent a judgment in favor of the plaintiff alone against the defendants in this action.

.

Such an allegation was not necessary to the sustainment of plaintiff's cause of action, and plaintiff's motion, now made, that it should be stricken out, is granted (White's Bank of Buffalo v. Farthing, 101 N. Y. 344). In point of fact, no other creditors have come in, in due time, since the commencement of this action, or offered to pay the expenses thereof.

The defendant, The Union Trust Company, is entitled to its costs and disbursements before trial, to be charged as against the defendants Griswold, and not in reduction of the plaintiff's claim.

Let findings to that effect be prepared by counsel for The Union Trust Company.

Chambers v. Bentley.

CHAMBERS ET AL. v. BENTLEY.

SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY, SPECIAL TERM, APRIL, 1888.

S$ 650 et seq., 655.

Attachment-Power of court to order party having property to expose it to levy.

Where, after one having possession of property belonging to an attachment debtor, has refused to give a truthful certificate, the court requires him to submit to an examination and he does so, the remedy of the plaintiff in the attachment is exhausted, and an order cannot be made requiring that the property be so exposed that the sheriff may levy thereupon. The court has no power to require a person having property in his possession, or claiming it, to assist in effecting a levy thereon.

In such a case, the only remedy left is for the sheriff to proceed under Code of Civil Procedure, section 655, by action or special proceeding to reduce to his actual possession personal property capable of manual delivery, but of which he has been unable to obtain possession.

Buckingham v. White (25 Hun, 441), followed.

(Decided April 11, 1888.)

Motion by the plaintiff that one McCullom be required to expose property in his possession and claimed by him, but alleged to belong to the defendant, so that the sheriff may levy thereon under an attachment issued against the defendant.

An attachment was issued in this action against the property of the defendant, and the sheriff sought to levy on it, then in the possession of one McCullom, and which

Chambers v. Bentley.

was alleged by the plaintiff to belong to the defendant, but to which McCullom claimed title. The sheriff sought to obtain possession of the property, but failed, and also demanded a certificate as provided by section 650 of the Code of Civil Procedure from McCullom, which he refused to give. Thereafter, an examination of McCullum was had for the purpose of disclosing what property he had in his possession belonging to the defendant, and it then appeared that he had certain property of the defendant in his possession, and that it was held by him as collateral security for an indebtedness owing to him from the defendant, and that, therefore, he claimed the right to possession of it.

Blumensteil & Hirsch, for plaintiff and motion.

Max F. Eller, for McCullom, opposed.

BARRETT, J.-The court has no power to require McCullom to assist the sheriff in effecting a levy upon the property in his possession and claimed by him. As well might the court be asked to compel a defendant to facilitate a levy. The plaintiff's remedy was exhausted when, upon McCullom's failure to give a truthful certificate, the court required him to submit to examination. Such examination was, as the court said in Buckingham v. White (25 Hun, 441), a consummation of all that the Code has prescribed concerning such a proceeding. Thereafter the court can make no order requiring the party claiming the property to deliver it to the sheriff (Hall v. Brooks, 89 N. Y. 33).

The only remedy left is under section 655 of the Code of Civil Procedure, for the sheriff to proceed by action or special proceeding to reduce to his actual possession personal property capable of manual delivery, but of which he has been unable to obtain possession. It is certainly a novel idea that, while the bailee cannot be required to

Foley v. Stone.

deliver the property to the sheriff, he can be required, without action or special proceeding, and on mere motion, to pick out the property and place it at some convenient point where it will be readily accessible to the sheriff. The law imposes no such obligation upon a party to facilitate his adversary's attack. The sheriff must find the property if he is to levy upon it, and if he cannot do so he must proceed as authorized by the Code.

The motion must be denied, with costs.

FOLEY v. STONE.

SUPREME COURT, FIRST DEPARMENT, NEW YORK COUNTY, SPECIAL TERM, OCTOBER, 1888.

S$ 14, 559.

Contempt when giring undertaking with worthless sureties upon procuring order of arrest is.

One who imposes upon the court and the defendant in an action by procuring an order to arrest the defendant by the giving of an undertaking with worthless sureties may be punished as for contempt.

Eagan v. Lynch (3 N. Y. Civ. Pro. 237); Stevenson v. Hanson, (6 ld. 45), followed.

Where an order of arrest was vacated, and thereafter the defendant therein recovered a judgment against the plaintiff in the action and the surieties on the undertaking given to procure such order, and it thereafter appeared that the sureties were worthless, and that the plaintiff in the original action had imposed upon the court in procuring the order of arrest upon the worthless undertaking,-Held, that the plaintiff in the original action, her attorney and the sureties in the undertaking, were guilty of contempt; and that a proper punishment therefor would be to impose a fine