WINTERS v. McCARTHY

WINTERS v. McCARTHY. N. Y. Common Pleas; Special Term, March, 1877. Supplementary Proceedings. The court will not grant a peremptory order for the payment of a debt by a judgment debtor oiit of property discovered in supplementary proceedings to have been in his hands and not fully accounted for, unless the facts, disclosed upon reliable evidence, show that the defendant actually had the property in his possession or under his control when he was served with the injunction. Motion by a judgment creditor for an order directing a judgment debtor to apply his property to payment of debt. This action was by John Winters against James McCarthy. Supplementary proceedings therein were taken against defendant in July, 1876, upon a district court judgment for $117.50, under which he was examined before a referee appointed by the court in August, 1876, and thereupon disclosed that in May, 1875, he had collected $5,000 on a bond and mortgage which he owned in his own right. He was not, in direct terms, examined as to any moneys or property he possessed when the injunction order was served upon him, but the proceedings on his examination were directed rather to a disclosure of the manner in which he had disposed of the sum of $5,000 received on payment of that mortgage, and to charge him with the possession of that sum, and a liability for its expenditure in 1875, without regard to his ownership of the one-half of the mortgage. The defendant, on his original examina: tion, replied he paid off his debts with it, and accounted for such payments to some $3,500: To R. Francis, 47 Broad street, he claimed he had paid $1,200, while a witness in that concern, testified his payments amounted only to $680. The aggregate of payments so made by him, as inferental from the testimony given before the referee, amounted only to about $3,500, and by order he was required to further account for the additional $1,500 he had received. On further proceedings, so ordered before the referee, he sustained by the testimony of other witnesses the payment to Francis of about $1,200, and to his brother-in-law, Henry McKeitt, of $1,000 instead of $500 as stated in his original account of his expenditures. [MAJORITY — Robinson, J.] Robinson, J. [After stating the facts.]—If any ambiguity or uncertainty existed in respect to his expenditure of the $5,000 it resulted from plaintiffs failure to elicit or disclose the particulars. The proceeding is one not merely for purposes of discovery, but in any final order for an appropriation of any property applicable to the claim of the plaintiff, the right to any such application must be made to appear manifest and clear. Plaintiff’s right to exact a peremptory order from the court for payment of his debt from any fund or property of the defendant that he has discovered does not, as the claim made on his part would seem to imply, ensue from the fact that the defendant, against whom he proceeds, had, in 1875, been possessed of money or property as to which he was unable to account for its disposition, but solely upon facts disclosing, upon reliable evidence, that when the injunction was served the defendant actually had in his possession or under his control property applicable to the judgment. The procedure of showing defendant at some anterior period possessed of some such property which rendered him accountable for its disposition, might be applied to other relations of trust, but not in that of debtor and creditor. This proceeding in no respects shows that defendant had in his possession when the injunction was served any money or property applicable to plaintiff’s judgment, and it is therefore dismissed; but on account of defendant’s prior remissness in his explanations, without costs.