Damers v. Sternberger

MacLean, J. The defendant, judgment-debtor, appeals from an order of the City Court authorizing and directing the receiver, appointed in supplementary proceedings subsequent to the return of an unsatisfied execution, of all his property, rights and things in action, to sell his estate, right [533] and interest in remainder to certain premises situate in the borough of Manhattan, and contends that the remedy by execution must be exhausted. His contention must be sustained, for such receiver, under subdivision 1 of section 2468 of the Code of Civil Procedure, acquires no title to real property nor power to sell and convey (Nat. Bank v. Bussing, 147 N. Y. 665, 670; Chadeayne v. Gwyer, 83 App. Div. 403), while it was the duty of the plaintiff, the judgment-creditor, to exhaust his remedy by execution before resorting to these proceedings (First Nat. Bank of Canandaigua v. Martin, 49 Hun, 571) ; otherwise “ it would be a practical repeal of the statutes providing for the sale of real estate under a judgment.” Albany City Nat. Bank v. Gaynor, 67 How. Pr. 421, 424. The order should be reversed, with costs and disbursements. Gildebsleeve and Amend, JJ., concur. Order reversed, with costs and disbursements.