Estate of George K. Sistare

ESTATE OF GEORGE K. SISTARE. N. Y. Surrogate's Court; May, 1891. 1. Supplementary proceedings; receiver.] A receiver appointed in supplementary proceedings cannot compel the testamentary trustee of an estate in which the judgment debtor had an interest to account before the surrogate, where it appears that the order for examination in such proceedings was never served upon the judgment debtor, and was not served upon the testamentary trustee until after the judgment debtor had assigned his interest in the estate. The receiver’s title in such case does not relate back before the time of assignment. 2. Surrogate’s cou7'tl\ Such an accounting cannot be sustained upon the ground that the assignment was invalid as to creditors, as the assignment cannot be attacked on such ground in the surrogate’s court. Petition of Job E. Hedges, receiver appointed in supplementary proceedings, to compel William H. M. Sistare, the testamentary trustee of George K. Sistare, deceased, to account concerning a trust fund in which the judgment debtor, George K. Sistare, had an interest. William Erdman, for petitioner. Henry S. Bennett, for trustee. [MAJORITY — Ransom, S.] Ransom, S. A judgment was recovered against George K. Sistare, a beneficiary under the will of decedent, on or about April 3, 1890, in the superior court of the city of New York. The judgment roll was filed in' the office of the clerk of that court on the 3d day of April, 1890, and a transcript thereof was duly filed, and the judgment duly docketed in the county clerk’s office on April 3, 1890; thereafter, an execution on .said judgment against the property of the judgment debtor was, on April 3, 1890, duly issued to the sheriff of the city and county of New York, and was returned wholly unsatisfied, and the judgment remains wholly unpaid. Thereafter, an order was duly made and entered for the examination of William H. M. Sistare as the third person in the supplementary proceedings duly instituted against the judgment debtor, and such proceedings were had that a receiver of all the property of the judgment debtor was appointed by an order dated June 18, 1890. The receiver seeks to compel an accounting of the testamentary trustee under the will of the decedent. The answer to the application is that on the 29th day of April, 1890, George K. Sistare, the judgment debtor, by an instrument duly made, executed and delivered, and for value, assigned all of his interest in the estate of decedent, and that the said judgment debtor had no interest in the estate at the time of the proceeding which resulted in the appointment of a receiver. It is further alleged that no order in the supplementary proceeding upon said judgment was ever served upon the judgment debtor, and that he was never examined under such order. As a further defense, the testamentary trustee alleges that not until the month of June, 1890, was an order made for his examination as the third person in the supplementary proceedings. Section 2468, Code of Civil Procedure, provides that the property of the judgment debtor is vested in the receiver, who has duly qualified, from the time of filing the order appointing,him „ . . and that his title to personal property only extends back by relation for the benefit of the judgment creditor, in the following cases (§ 2469): (1.) Where an order, requiring the judgment debtor to attend and be examined, or a warrant requiring the sheriff to arrest him and bring him before the judge, has been served, before the appointment of the receiver, or the extension of the receivership, the receiver’s title extends back so as to include the personal property of the judgment debtor, at the time of the service of the order or warrant. (2.) Where an order or warrant has not been served, as specified in the foregoing subdivision, but an order has been made requiring a person to attend and be examined concerning property belonging, or a debt due, to the judgment debtor, the receiver’s title extends to the personal property belonging to the judgment debtor which ivas, in the hands, or under the control of, the person or corporation thus required to attend, at the time of the service of the order; and to a debt then due to him from that person or corporation. (3.) In every other case, where notice of the application for the appointment of the receiver was given to the judgment debtor,, the receiver’s title extends to the personal property of the judgment debtor, at the time when the notice was-served, either personally or by complying with the requirements of an order prescribing a substitute for personal service. The answer of the testamentary trustee is a complete defense to the application. From an examination of the will, it appears that the judgment debtor’s interest thereunder was not inalienable but assignable. The receiver’s title vested at the time the order was made appointing him, viz: June 18, 1890, unless the proceeding is brought within the exceptions provided for by § 2469. It is alleged and not denied, that no order requiring the judgment debtor to attend and be examined had ever been served upon him, and the order requiring the third person to attend and be examined was not served until May 1890, being a period subsequent to the date of the alleged assignment. The validity of the assignment cannot be attacked in this court (Matter of Palmer, Surr. Dec. 1891, p. 102 ; Matter of Wagner, 119 N. Y. Rep. 28, 36), and as long as it exists is an effectual bar to any proceedings of the petitioner to reach the interest in the estate that belonged to the assignor prior to the alleged assignment.