Smith v. Mahony
New York Court of Common Pleas
Appeal from an order vacating an order granting the plaintiffs leave to issue execution and requiring them to proceed by supplementary proceedings. The plaintiffs having recovered a judgment in this action for $1,073.37, on July 25,1865, issued an execution thereon, which was returned unsatisfied. On the 3d September, 1870, proceedings supplementary to execution were commenced and defendant partially examined, after which" further examination was adjourned to September 17th.
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Appeal from an order vacating an order granting the plaintiffs leave to issue execution and requiring them to proceed by supplementary proceedings. The plaintiffs having recovered a judgment in this action for $1,073.37, on July 25,1865, issued an execution thereon, which was returned unsatisfied. On the 3d September, 1870, proceedings supplementary to execution were commenced and defendant partially examined, after which" further examination was adjourned to September 17th. On.the 3d September, 1870, on motion of the plaintiff and after hearing, leave was granted to issue execution on said…
1Opinion of the Court
By the Court.*
Daly, Ch. J.
It has been repeatedly held that the proceedings supplementary to execution, instituted by the Code, were intended as a summary and inexpensive substitute for the former creditors’ bill, and that the practice established by the former Court of Chancery in respect to the course of procedure upon creditors’ bills, applied to the new proceeding, unless it was inconsistent with, or obviously superseded by, the change which the Legislature had made. It was held, in the former Court of Chancery, that the filing of a creditor’s bill did not preclude the plaintiff from…
2Cases cited2 opinions
- Cuyler v. MorelandNew York Court of Chancery · 1837
- Fellerman's CaseNew York Supreme Court · 1855
3Cited by3 opinions
- Woodward v. HallWisconsin Supreme Court · 1890
- Ritter v. GreasonNew York Supreme Court · 1899
- Smith v. DavisNew York Supreme Court · 1892