Fellerman's Case
New York Supreme Court
Motion to dismiss an order for the examination of a judgment debtor. An execution issued on a judgment rendered in favor of one Lilliendahl against Eellerman, having been returned unsatisfied, thé judgment creditor obtained an order for the debtor’s examination. Before the examination, the creditor issued a second execution on the judgment.
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Motion to dismiss an order for the examination of a judgment debtor. An execution issued on a judgment rendered in favor of one Lilliendahl against Eellerman, having been returned unsatisfied, thé judgment creditor obtained an order for the debtor’s examination. Before the examination, the creditor issued a second execution on the judgment. The debtor then moved to dismiss the order for the examination, contending that the second execution was a waiver of the supplementary proceedings.
1Opinion of the CourtClerKe, J.
Contrary to my first impressions, I now think that the issuing of a second execution is not a waiver of supplementary proceedings commenced against the defendant after the return of the first execution. These proceedings are a substitute for the creditor’s bill, and are merely auxiliary to the ordinary legal method of enforcing the satisfaction of a judgment. To be sure the Code, like the former law, contemplates that the ordinary remedy should be exhausted before recourse shall be had in the first instance, to the supplemental remedy, and for this reason requires that an execution shall be…
2Cited by5 opinions
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