Marsullo v. Rosendorf

Giegerich, J. I do not think the plaintiff has made out any case for equitable relief. It appears that the judgment debtor is seized of individual shares in several parcels of real property. It is not sought to set aside any fraudulent conveyances of this or any other property, nor to remove any impediments to the sale of the debtor’s real property on execution, for there appears to be none such. I cannot see any ground for the maintenance • of an equitable action, the purpose of which is to procure satisfaction of the plaintiff’s judgment from the personal assets of his father’s estate, which is in course of administration, when the plaintiff apparently has an adequate remedy at law in an execution sale of the debtor’s real property. Until that remedy -has been exhausted and shown to be insufficient, an action of- this kind ought not to be maintainable. See Heyl v. Taylor, 137 App. Div. 41. It is not quite clear whether or not the plaintiff seeks.to subject the debtor’s interest" in the real property formerly belonging to his father to the satisfaction of the judgment debt in this action. If so, the answer is that such property cannot be reached in the statutory action (Code Civ. Pro. § 1873) and that there is no ground for the maintenance of any action with regard to it under the general equity jurisdiction of the court, because there is no obstacle tó be-removed before the plaintiff can sell such property under his judgment. I think the complaint should be dismissed, but without costs. The requests for findings of the respective parties have been passed upon [561] as indicated on the margins. Submit for my signature upon two days’ notice of presentation a complete copy of the decision, which shall embody without change of language all findings made by me at the request of either party, and also an additional finding dismissing the complaint, without costs, with proof of service on the other side. Ordered accordingly.