Слике страница
PDF
ePub

Foster a. Prince.

Hinds a. Canandaigua and Niagara Railroad, 10 Ib., 489; 4 Ib., 178.)

III. Before any order under section 297, like the one appealed from could be made, the plaintiff should show clearly by his papers, that he had complied with section 292 and section 294. The order in the first instance should have required the plaintiff to serve a copy of that order on the defendant. Section 297 clearly contemplates notice to be given to the judgment debtor, if not, how could he show that the property sought to be reached was earned by him within sixty days next preceding the order, and that such earnings were necessary for the use of a family supported wholly or in part by his labor. Section 297 of the Code clearly contemplates that the defendant should have notice of the proceedings.

IV. This is a proceeding under section 294, which does not authorize the court to apply property of the judgment debtor in payment of the judgment.

V. There was no service or notice given to defendants as the law recognizes. It could not be made through the mail. It is in its nature an original proceeding, and must be made personally.

VI. But if the court should hold the notice served by mail sufficient, yet it would be of no avail, because the proceeding should be in Queens county, and not elsewhere, and the court cannot take the defendant's property from him by an order returnable in New York. The court gets no jurisdiction of the defendant except the proceedings be had in the county where he resides, and jurisdiction must be had before the order can be made to apply his property in the hands of a third person on the judgment. (See 12 How. Pr. R., 138.)

VII. The most that section contemplates is, before or after the return of an execution, to bring up a third person and examine him to find out whether he has property of the judgment debtor, or is indebted to him, and if on such examination it be found that he is indebted to the judgment debtor, or has property belonging to him, to restrain him from parting with it until proceedings can be taken against the judgment debtor under section 292; and when that be done, and the judgment debtor has a chance to be heard, and no good reason shown why an order under section 297 should not be made, the court have the power to make it.

Foster a. Prince.

This court have refused to appoint a receiver until the judg ment creditor has been duly brought into court so that he could defend, and the court will not deprive a man of his property as this order has done, when it refuses to transfer it to a receiver. (Tychener a. Tychener, decided by Justice Clerke, April 7, 1854; see also Voorhees' Code, 5th ed., 406, note.)

John S. Jenness, for the respondents.

BY THE COURT.*-ROOSEVELT, P. J.-Foster, the plaintiff, having obtained a judgment against the Messrs. Prince, residing at Flushing, in Queens county, upon which an execution to that county had afterwards been returned unsatisfied, took steps to compel the application of a balance standing to the credit of one of the defendants, in the Fulton Bank of New York, to the satisfaction of the demand.

On the 22d of November one of the judges of this court accordingly made an order requiring the cashier of the bank to appear before him in this city, to be examined concerning the alleged balance of the defendant, and enjoining the bank in the mean while from parting with, or otherwise disposing of the fund. Upon the examination on the 30th of the same month, another order was made directing the bank to pay over the balance to the judgment creditor.

The defendants, the judgment debtors, now contend that this order was a nullity; that as they resided in Queens county, although the bank was in New York, the judge in the first district had no jurisdiction. No objection is made on the part of the bank. All that the bank requires is protection against any double demand. And as to the judgment debtors, the point raised by them, it will be seen, is merely technical; for no man can doubt the justice of compelling a debtor, residing in Queens, to pay his debts out of a balance of his credit in bank, even though the banking-house should be in New York.

The question raised turns on the true interpretation of the Code; sections 292 and 294 of which provide that in a case like the present, the judgment creditor is entitled to an order from "a judge of the court," compelling the debtor to appear

*Present, ROOSEVELT, P. J., and INGRAHAM and PRATT, JJ.

Foster a. Prince.

and answer before him within the county where the debtor resides touching his property, and also to an order requiring any debtor to the judgment debtor, to appear and answer at a specified time and place, concerning such debt. The judgment debtor is to appear in the particular county, but the debtor to the judgment debtor is to appear" at a specified place;" meaning, of course, a place to be specified by the judge, who would naturally select a place, other things being equal, most convenient to the person to be examined, and not necessarily to the judgment debtor. It is right to do so, and its fitness, also, is shown by the provision which dispenses with any attendance in such case as matter of right or obligation, of the judgment debtor on the examination of said third party. I allude to the clause in section 294, which declares that "the judge (meaning a judge of the court,' that is any judge of the Supreme Court), may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.'

As, then, the party to the action has no absolute right to notice of the time and place of examining his debtor, he of course cannot except to the selection.

This view of the true meaning of the Code is further confirmed by section 293, which declares that "after the issuing of execution against property, any person, indebted to the judgment debtor, may pay to the sheriff the amount of his debt, or so much as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid." No consent, it will be perceived, is required on the part of the judgment debtor, nor any notice to enable him, if so disposed, to prevent the application of that, which is due to him from one person, to the payment of that which is due by him to another. If then his debtor, without his consent, may pay voluntarily, how can he complain that his debtor, without his consent, has paid under the sanction of the judge?

As the defendants, whatever may be said in respect of the bank, are not aggrieved, they cannot complain, and their appeal, of course, should be dismissed.

Appeal dismissed, with costs.

Claflin a. Frank.

CLAFLIN a. FRANK.

Supreme Court, First District; Special Term, April, 1859.

ARREST. FRAUDULENT REPRESENTATIONS ON PART OF AGENT.

Though a defendant would be civilly liable for the fraud of his agent, he is not liable to arrest therefor, without personal guilt on his part in respect to the commission of the fraud, or by ratification of the fraudulent act.

To warrant arrest of a defendant whose fraud is alleged as the ground for the order, the fraud must be clearly proved. If there is a serious doubt as to the fraud, an order of arrest is not allowable.

Motion to vacate an order of arrest.

The facts are stated in the opinion.

STRONG, J.-The order for the arrest of the defendant was granted on affidavit setting forth that, on or about the 10th of February, 1859, the defendant applied to the plaintiffs, in this city, to sell him goods; and to induce the plaintiffs to do so, made certain statements in regard to his pecuniary circumstances, by which the plaintiffs were influenced to sell to the defendant at that time, and within a few days thereafter, goods to the amount of $707.39; that the statements were false and fraudulent, and the defendant was thereby guilty of fraud in contracting the debt.

It now appears, by the affidavits for the motion, that the defendant left the city on the 2d of February, 1859, for New Orleans, and was absent until the 19th of March, and that the goods were purchased during his absence by the defendant's wife on the defendant's account.

Previous to the purchase of those goods, and on the 10th of January, 1859, the wife and son of the defendant called at the plaintiff's store and purchased a bill of goods in behalf of the defendant, which the wife paid for on the 9th and 17th of February thereafter. On the occasion of that purchase, some in

Claflin a. Frank.

quiries were made of the son as to the property of the defendant, but the son denies having made any such statements as are alleged to have been made by the defendant in the affidavits for the order.

The plaintiffs reply to these facts by affidavits of the same persons who made the affidavits to obtain the order, in substance that the representations were made by the defendant's son at the time of the purchase on the 10th of January, and explanations are given of the mistakes in the former affidavits, to wit: that one of the persons did not know the defendant, and understood the son to be the defendant; and that the other did not read the affidavits carefully. It is further set forth in one of the affidavits in reply, that shortly after the 10th of January, and while the defendant was making purchases of the plaintiffs, the witness saw the defendant in the store of the latter, and told him it was the rule in the plaintiffs' store to require representations from persons who applied to purchase goods as to their means, and then inquired of him in regard to his responsibility, when the defendant referred to what his son had said as to the defendant's means, and said it was true, and proceeded himself to make similar representations on the subject. These affidavits also state that the subsequent purchases were made on the faith of the representations of the son, and the reiteration and confirmation of them by the defendant.

What was said by the son on the 10th of January, if it were false and fraudulent, and the goods purchased thereafter were obtained on the faith of it, furnished no ground for the order in question, unless the statements were authorized or subsequently approved by the defendant. The defendant would be civilly liable for the fraud of his agent, but would not be subject to arrest by reason of it; there must be personal guilt of a party to a debt, in respect to fraud in contracting it, to make him liable in an action for the debt to arrest, within the spirit of section 179, subdivision 4 of the Code.

The order of arrest must then depend for support upon the affidavit of the aforesaid conversation with the defendant. The defendant swears that neither the plaintiffs, nor any one on their behalf, ever questioned him as to his circumstances, and that he never made any representations on the subject. The plaintiffs' witness to the conversation is corroborated by an affidavit that

« ПретходнаНастави »