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42 N.Y. Sup. Ct. 478

Marx v. Spaulding

New York Supreme Court

Decided March 15, 1885

New York Supreme Court · decided 1885-03-15

The facts in the six above entitled cases are the same. The plaintiffs, wbo are the same in each case, beld six bonds secured by six mortgages upon real estate in the city of New York. Two of the bonds and mortgages were made by Michael Brennan, the defendant in the two Brennan cases, and the remaining four bonds and mortgages were made by Bernard Spaulding, the defendant in the four Spaulding cases. The defendant Jones assumed the payment of all these bonds and mortgages.

Decided 1885-03-15

¶1"Bv the Couet,

Davis, P. J.:

¶2We think the order should be reversed. The return was not such an one as justified the supplementary order. It is not enough to show that, upon the existing facts, it ought to have been such an one. The remedy was to require the sheriff to make the proper return, and if he refused, to move to compel him to do so on affidavits showing the facts now claimed to exist. Á creditor’s bill *480would not have been sustained in chancery upon such a return as was made in this case. The Code does not justify the proceedings where th'e execution has not been returned, for the reason that the sheriff has levied upon and is about to sell real estate of defendant. Nor ought the right to the supplementary order be made to depend upon the result of a controversy, upon motion to set it aside, upon conflicting affidavits on the question whether the sheriff should not have made the return required by law as the basis of the supplementary examination.

¶3The order should be reversed, with ten dollars costs and disbursements.

Present — Davis, P. J., and Daniels, J.

¶4Order reversed, with ten dollars costs and disbursements.

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