NAGLE a. JAMES

NAGLE a. JAMES. New York Superior Court; Special Term, May, 1858. Before supplementary proceedings can be instituted, the creditor’s remedy by execution must be really exhausted. Where it appeared that the execution had been returned by the sheriff unsatisfied, at the request of the plaintiff, and not by the sheriff upon his official responsibility,—Held, that the order for the examination of the judgment debtor must be set aside. Motion to set aside order for examination of judgment debtor, in proceedings supplementary to execution. On the- return of the order for the defendant’s examination, it appeared that the execution was returned unsatisfied, at the request of the plaintiff, and before the expiration of sixty days; and the defendant moved to set aside the order. To the same effect is Pudney a. Griffiths, 6 Ante, 211. [MAJORITY — Woodruff, J.] Woodruff, J. —When anexecution is returned by the sheriff, before the period allowed by law within which to execute it, and this appears to have been done by request of the plaintiff, and not by the sheriff, upon his official responsibility for the truth of his return, the plaintiff cannot be said to have exhausted his ordinary remedy by legal process. In such cases the section allowing supplementary proceedings is not, in its proper construction, complied with. The order is therefore discharged.