Griswold v. Tompkins ( 1877 )

Charles P. Daly, Chief Justice.

There may be some doubt whether an appeal will lie in this case, but I do not propose to examine the question, as it is one of some difficulty, because, assuming that it would lie, there would be no ground whatever for reversing the order of the general term of the Marine Court.

The defendant in his examination, in supplementary proceedings, testified that the property specified by him, a watch, chain, and office furniture, was mortgaged to his mother.

This property Judge McAdam had no authority to order him to deliver to the receiver, as the defendant’s mother was no party to the proceedings, and there was no equitable authority in the judge to divest her of her title to the property as mortgagee. To reach it, the receiver would have to bring an action, making her a party, if the mortgage was fraudulent, which it may have been, as the property was left in the possession of the mortgagor. The defendant also disclosed upon his examination that he had some law books, and a few miscellaneous books at his boarding house, and it further appeared, on the motion for the attachment, that he had, about eight months before his examination, executed chattel mortgages to his mother of his law boobs, both of which mortgages were on file. Under these circumstances, Chief Justice Shea very properly denied the motion to attach the defendant for , refusing to deliver the property to the receiver, and the general term was right in affirming his decision. (Gardner v. Smith, 29 Barb. 68.)

In addition to this, when the demand was made upon the defendant to deliver this property to the receiver, it had been levied upon by an execution, issued upon a judgment recovered against the defendant by another creditor, and was not, therefore, in the defendant’s custody, but in the custody of the sheriff under that execution, and the receiver’s remedy, if he had any, was against the sheriff who held it adversely to the receiver’s title.

The affirmance of the order denying the'motion for attachment, being in my judgment right, I deem it unnecessary to consider the other questions discussed, viz: 1st. Whether the appeal will lie; 2d. Whether supplemental proceedings can be had in the Marine Court, where a transcript of the judgment is filed with the countj'- clerk; and 3d. Whether the order directing the delivery of the property, being an order of the Marine Court, was valid; this proceeding being a proceeding before a judge out of court, and not a proceeding in court. (Bitting v. Vandenburgh, 17 How. Pr. 81.)

Robinson and Labbemobe, JJ., concurred in the result.

Order affirmed.