Seeley v. Garrison , 10 Abb. Pr. 460 ( 1860 )

Brady, J.

It is not necessary in all applications under section 292 of the Code that the execution should be returned. The second subdivision of that section provides that after the issuing of an execution against property, and upon proof by affidavit of a party or otherwise, to the satisfaction of the court or a judge thereof, that any judgment-debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment ; such court or judge, having jurisdiction, may by an order require the judgment-debtor to appear at a specified time and place, to answer concerning the same. And by section 294, the judge may, after the issuing of an execution, require any person having property of the judgment-debtor, or being indebted to him in a sum exceeding ten dollars, to appear before him at a specified time and place, to answer concerning the same. The same section provides that the judge 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. It is not necessary when the proceeding is under the section last referred to, that the remedy should be exhausted first against the debtor. The creditor has a right, as soon as the .execution is issued, to demand the application of property owned by the debtor, and, upon refusal, to proceed under the second subdivision of section 292, or to adopt a proceeding under section 294, against any person having property of the debtor, or being indebted to him in the sum of ten dollars. Section 294 does not require notice of the application or proceeding to be given to the debtor. Whether it shall be given or not depends upon the discretion of the judge conducting the proceeding; and there, in my judgment, it should rest. The intended operation of the statute might often be defeated by collusion between the judgment-debtor and his debtor if notice were' in all cases required to be given; and hence the provision that the propriety of notice shall depend upon the circumstances of each case.

The section provides for notice, in the discretion of the judge; and the maxim “ expressio unius est exclusio alterius,” applies. Any other notice is excluded. The section is also analogous to section 293, which provides that after the issuing of the execution, any person indebted to the judgment-debtor may pay to the sheriff the amount of his debt, and that without notice to the judgment-debtor.

The defendant insists, in addition to the objections considered, that the restraining clause of the order is unauthorized. I think not. By section 297, the judge may order any property of the judgment-debtor in his hands exempt from execution, or due to the judgment-debtor, to be applied towards the satisfaction of the judgment; and if the order requiring the debtor of the judgment-debtor to appear, was not intended to prevent a payment of the debt to the judgment-debtor, then the judgment-debtor might collect and appropriate it at any time before his debtor was directed to pay it. Such was not the design of the Legislature in creating section 294. The legal operation of the order should be to suspend the right of payment; and there can be no impropriety in advising the person proceeded against, by inserting in the order a command not to dispose of the money due until the further order of the court. At all events, I think such a provision is in perfect harmony with the general character of the sections of the Code relating to supplementary proceedings, and fully authorized by them.

Order appealed from affirmed, with $10 costs.

Daly, F. J., and Hilton, J., concurred.