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Statement of case.

It seems that the issue and return of an execution nulla bona is essential to the validity of an order in supplementary proceedings, as well as to the right to institute an action to reach equitable assets.

An execution, however, although it be so defective that it is subject to be vacated and set aside on motion, may not be treated as void when questioned in collateral proceedings, where the defects are amendable, or where all the essential facts necessary for the direction and protection of the sheriff are stated in the execution, or are plainly inferable from the facts stated.

An execution was entitled on the outside "N. Y. Superior Court" with the names of the parties. It was directed to the sheriff of the county of New York, and stated in the body thereof that judgment was rendered March 2, 1874, in "the Superior Court," in favor of plaintiff and against defendant, as appeared by the judgment-roll on file in the office of the clerk of said court; that said judgment was docketed in the county of New York, and that there was "on the 4th day of March, 1874, the sum of $604.95 actually due thereon." The sheriff was directed to collect that amount with interest from the date the judgment was rendered. Held, that the execution was not void and could not be questioned collaterally; that it was fairly inferable there from that the judgment described was rendered in the Superior Court of the city of New York and was for the amount asserted to be due thereon; and that the return of the sheriff of nulla bona was evidence of the exhaustion of legal remedies, sufficient to authorize the institution of an action to reach property of the judgment debtor.

Plaintiff was appointed receiver under a judgment in favor of a bank. Held, the fact that the bank had ceased to be a corporation by reason of the appointment of a receiver in bankruptcy of its assets did not invalidate plaintiff's appointment; that it was competent for the receiver of the bank to institute proceedings in its name, to collect the judgment and to procure or sanction the appointment of a receiver of the assets of the judgment debtor.

Supplementary proceedings were instituted in April, 1875; plaintiff was appointed receiver therein in February, 1878. It was not shown that the proceedings were adjourned from time to time. Held, that the court would not presume a loss of jurisdiction from the omission to show regular adjournments.

The plaintiffs, in whose favor the judgment upon which the supplementary proceedings were based was rendered, composed the firm of P. & Co.; three of the four members of the firm had become insolvent, and assignees in bankruptcy of their assets had been appointed. Held, that said assignees were not authorized to take the firm property, and so their appointment had no effect upon the ownership of the judgment.

(Submitted October 15, 1883; decided November 20, 1883.)

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Statement of case.

APPEAL from order of the General Term of the Superior Court of the city of New York, entered upon an order made March 8, 1881, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and ordered a new trial. (Reported below, 15 J. & S. 441.)

The nature of the action and the material facts are stated in the opinion.

A. Wakeman for appellant. In the execution issued on the Arnold judgment the teste and the direction to return to the office of the clerk of the city and county of New York were mere surplusage. (Carpenter v. Simmons, 28 How. 12, 16; 1 Robt. 360; Fake v. Edgerton et al., 5 Duer, 681; Butterfield v. Howe, 19 Wend. 86.) The sheriff was bound to return the execution according to the requirements of the statute. (Wilson v. Wright, 9 How. 459.) The defects in the execution are all amendable and should be amended by the court, nunc pro tunc, or disregarded. (Abels v. Westervelt, 15 Abb. 230; Park v. Church, 5 How. 381; Carpenter v. Simmons, 28 id. 12; 1 Robt. 360; Inman v. Griswold, 1 Cow. 199; Chichester v. Conde, impl'd, etc., 3 id. 39, 40; Ross v. Luther, 4 id. 158; Scudder v. Snow, 29 How. 95; Bucklin v. Chapin, 53 Barb. 488; Kennedy v. Thorpe, 3 Abb. [N: S.] 131; Fake v. Edgerton et al.,, 5 Duer, 681; Cutler v. Rathbone, 1 Hill, 204; Peck v. Tiffany, 2 N. Y. 451; James v. Gurley, 48 id. 163; Hill v. Haynes, 54id. 153; Code of Procedure, $ 169, 170, 173, 174, 176; Code of Civil Procedure, §§ 721, 722, 723; Douglas v. Haberstro, 14 N. Y. W’kly Dig. 311.) None of the defendants, except the judgment debtor, Elbert Nostrand, can object to the defects in the execution, or to any irregularity in the supplemental proceedings. (Abels v. Westervelt, 15 Abb. 230; Grosvenor v. Hunt, 11 How. 355; Berry v. Riley, 2 Barb. 307; Oakley v. Becker, 2 Cow. 454; Renick v. Orser, 4 Bosw. 384; Bacon v. Cropsy, 7 N. Y. 195.) The judgment debtor waived the defects in the execution by appearing and submitting to examination in supplemental proceedings, without objection, by submitting to

Statement of case.

the appointment of a receiver of his property, and by failing to appeal from the order appointing such receiver. (Bingham v. Disbrow, 14 Abb. 251; Viburt v. Frost, 3 id. 119; Diddell v. Diddell, id. 167; Union B'k of Troy v. Sargent, 35 How. 87; Green v. Bullard, 8 id. 24; People v. Globe Mut. L. Ins. Co., 60 id. 82; Hobart v. Frost, 5 Duer, 672; Quinn v. Floyd, 7 Robt. 157; Bucklin v. Chapin, 53 Barb. 488; Bell v. Vernooy, 18 Hun, 125; People v. Brenham, 3 id. 666; Greason v. Keteltas, 17 N. Y. 491; Macy v. Nelson, 62 id. 638; Vose v. Cockcroft, 44 id. 415; Baird v. Mayor, etc., N. Y., 74 id. 382.) The order appointing the plaintiff receiver in the Arnold action was properly received in evidence. (Roosevelt v. Gardinier, 2 Cow. 463; Jackson v. Jackson, 3 id. 73; Starr v. Francis, 22 Wend. 633; Gould v. Root, 4 Hill, 554; Spencer v. Barber, 5 id. 568; 2 Wend. 625; 6 Paige, 371; 3 id. 195; Jackson v. Shaffer, 11 J. R. 513; Hartwell v. Root, 19 id. 345; Jackson v. Cole, 4 Cow. 587; Smith v. Jones, 20 Wend. 192; Doughty v. Hope, 3 Denio, 149; Ross v. Bedell, 5 Duer, 462; Sperling v. Levy 1 Daly, 95; Arent v. Squire, id. 347; Nelson v. People, 23 N. Y. 293– 297; Leland v. Cameron, 31 id. 115; People v. Carpenter, 24 id. 86; McAndrew v. Radway, 34 id. 511-513; De Forrest v. Farley, 62 id. 628.) The proceedings supplementary to execution under the judgment of the Loaners' Bank were in all respects legal and proper and were properly entitled in the action in which the judgment was recovered, because they were proceedings in that action. (Wegman v. Childs, 41 N. Y. 159-163; Dresser v. Van Pelt et al., 15 How. 19; B'k of Genesee v. Spencer, id. 412; Gould v. Torrance, 19 id. 560; Catlin v. Gottlier et al., 57 N. Y. 363-373; Wines v. Mayor, 70 id. 613; Rockwell v. Merwin, 45 id. 166; B'k of Charleston v. Emerick, 2 Sandf. 718; Underwood v. Sutcliffe, 10 Hun, 453; Kennedy v. Norcott, 54 How. 87; Brockway v. Brien, 37 id. 270; Allen v. Starring, 26 id. 57.) As this action was in equity, and equitable relief only sought, it was clearly in the discretion of the judge whether he would send any of the questions involved to a jury for a trial. (Wheelock

Statement of case.

There was

v. Lee, 74 N. Y. 495, 500; Davis v. Morris, 36 id. 569; Coleman v. Dixson, 50 id. 572; McCarty v. Edwards, 24 How. 236.) The supplemental examinations were admissible as declarations of a co-conspirator to show the execution, extent and effect of the common purpose to defraud. (Menlin v. Lyon, 49 N. Y. 661; Cuyler v. McCartney, 40 id. 221; Dewey v. Moyer, 72 id. 70.) The notice of the application for the appointment of the plaintiff receiver under the Arnold judgment was sufficient. (Ashley v. Turner, 22 Hun, 226; Leggett v. Sloan, 24 How. 479; People, ex rel. Fitch, v. Mead, 29 id. 360.) The order appointing the plaintiff receiver was duly filed and recorded in the office of the clerk of the city and county of New York; there was no necessity of filing it in the office of the register. (Old Code, $298; Rockwell v. Merwin, 45 N. Y. 166, 168.) no necessity of a conveyance of the property sought to be reached to the receiver. (Chautauqua Co. B'k v. Risley, 19 N. Y. 369.) The direction in the judgment that the plaintiffs in the original judgments, or their successors, shall be at liberty to sell the property described in the complaint upon executions to be issued upon their respective judgments, is proper. (Seaman v. Schaffer, 76 N. Y. 606, 607.) As the buildings at 112 Clinton street were erected in 1839, even if, as Mrs. Nostrand swears, they were built with her money, which she received from her father, they became the absolute property of her husband by operation of law. (2 Kent's Com. [3d. ed.] 133-135; Martin v. Martin, 1 N. Y. 473; Wood v. Genet, 8 Paige, 137; Glann v. Younglove, 27 Barb. 480; Little v. Willets, 37 How. 481; Ryder v. Hulse, 24 N. Y. 372; Westervelt v. Gregg, 10 id. 202; Stokes v. Macken, 62 Barb. 145; Woodbeck v. Hoocus, 42 id. 66; King v. O'Brien, 1 J. & S. 49; Ferman v. Orser, 5 Duer, 476.) Where a grant for a valuable consideration shall be made to one person, and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance. (2 R. S., chap. 1, part 2, § 51,

Statement of case.

art. 2; Donovan v. Sheridan, 5 J. & S. 256.) A voluntary conveyance of property by a debtor through a third person to his wife is fraudulent, as against his creditors, even though there is no fraudulent intent. (Coles v. Tyler, 65 N. Y. 73; Mohawk B'k v. Atwater, 2 Paige, 54; Carpenter v. Roe, 10 N. Y. 280; Babcock v. Eckler, 24 id. 623; Dygert v. Remerschnider, 32 id. 648; Curtis v. Fox, 47 id. 300.) The voluntary conveyance of this property by Nostrand to his wife was fraudulent, even as against subsequent creditors. (Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 id. 164.) To invalidate a voluntary conveyance, as against creditors, it is not necessary that the debtor be, or believe himself to be, insolvent at the time of the grant. It is sufficient if his solvency is contingent upon the stability of the market in the business in which he is engaged, and it is only where a voluntary conveyance is made in good faith, with no intent to defraud the grantor's creditors, that it will be upheld by proof that when made the grantor retained an estate to pay his debts. (Carpenter v. Roe, 10 N. Y. 227; Fox v. Moyer, 54 id. 125; Ford v. Johnson, 7 Hun, 563: Warner v. Blakeman, 43 N. Y. 487.)

Edward P. Wilder for respondents. An action in equity of this nature cannot be maintained until the remedy at law is exhausted. (Crippen v. Hudson, 13 N. Y. 161; Dunlevy v. Tallmadge, 32 id. 457.) The execution was defective because it did not intelligently refer to the judgment, stating the court and county where the judgment-roll was filed, the names of the parties, the amount actually due, and the time of docketing in the county to which the execution was issued. (Clark v. Miller, 18 Barb. 269; Code of Procedure, $ 289, 290; Clearwater v. Brill, 63 N. Y. 627; Watson v. Fuller, 6 Johns. 282; Todd v. Botchford, 56 N. Y. 517; Douglas v. Whiting, 28 Ill. 362; Brem v. Johnson, 70 N. C. 566; Ins. Co. v. Halleck, 6 Wall. 556; Anon., Loft, 184; Albee v. Ward, 8 Mass. 79; Hall v. Moor, Add. [Penn.] 376; Toof v. Bentley, 5 Wend. 276; Farr v. Smith, 9 id. 338 ·

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