Annie Maloney, Appellant, v. John S. Klein and Mary Klein, Respondents

Annie Maloney, Appellant, v. John S. Klein and Mary Klein, Respondents. Second Department, January 11, 1907. Supplementary proceedings—when execution properly returned unsatisfied. An order for examination in-supplementary proceedings should not be vacated because one of the judgment debtors owns real estate, if it be shown to be so incumbered that nothing would be realized upon a sale. The sheriff’s return.of execution unsatisfied is conclusive until impeached. Appeal by the plaintiff, Annie Maloney, from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 1st day of June, 1906, vacating an order . for the examination of two judgment debtors in supplementary proceedings. William Riley, for the appellant. No brief for the respondents. [MAJORITY — Per Curiam:] Per Curiam: The order was regularly obtained and should not have been vacated. Presumably the statement on information and belief in the affidavit of the judgment debtor that the execution was returned unsatisfied at the request of the plaintiff’s attorney caused it to be vacated. But there was no proof of the. fact. And if there had been it fully appears that a sale of the real estate which one of the judgment debtors owns would realize nothing owing to the large incumbrances on it. That the sheriff advertised the sale of it and then abandoned it does not matter. The plaintiff is not obliged to resort to a, sale that would probably only result in an expense to him. Moreover, the return of the sheriff until impeached is conclusive. The order should be reversed. Hirschberg, P. J., Woodward, Gatnor, Rich and Miller; JJ., concurred. Order of the County Court of Westchester county reversed, with ten dollars costs and disbursements, and motion denied, with-costs.'