
    The High Rock Knitting Co., Plaintiff, v. Gus Bronner et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    December, 1896.)
    1. Supplementary proceedings — Return of execution.
    So long as the return of an execution stands, it is a sufficient basis for supplementary proceedings.
    2. Execution — Return.
    The mere return of an execution in less than sixty days, even though .made at the suggestion or request of the plaintiff’s attorney, does not invalidate or vitiate such return. To accomplish that result there must be collusion between the plaintiff and the sheriff or. intentional omission to attempt to collect.
    Motion upon order to show cause “why the order.heretofore * * * granted herein should not be vacated and set aside on the ground that the court had no jurisdiction to grant the same, and that jurisdictional facts were not stated in the papers upon which said order was granted, and that the execution upon which said order was granted was not returned as contemplated by the statute, but was returned at the request of the plaintiff and his attorneys and that the return of execution herein was not sufficient upon which to base supplementary proceedings.”
    B. Stolz, for motion.
    Thomas Hogan, opposed.
   Hiscock, J.

This motion was urged upon the argument upon the sole ground that .the return of the execution upon which the order in supplementary proceedings was granted herein was made at the request of plaintiff’s attorney. There was no claim of any fraud or collusion between such attorney and the. sheriff or that there was property out of which said execution should have been collected. In fact it appears by the affidavit of the deputy sheriff upon which in part the order herein was granted that the execution in this case was returned at the same time with others in his hands.

Defendants upon this motion seek simply to set aside the order in supplementary proceedings. They do not directly attack or ask to have set aside' the return of the sheriff upon which, that order was granted. So long as that return stands it is a sufficient basis for the order and the latter should, not be set aside. Spurling v. Levy, 10 Abb. Pr. 426; Tyler v. Willis, 33 Barb. 327, 332.

Furthermore the mere return of an execution inside of the sixty days fixed by law, even though made at the suggestion or request of the plaintiff’s attorney, does not invalidate or vitiate such return. In order to accomplish such latter result there must be present some other element, such as collusion between the plaintiff and the sheriff, or intentional omission to attempt to collect such execution. Forbes v. Waller, 25 N. Y. 430; Renaud v. O’Brien, 35 id. 97, 100; Pudney v. Griffiths, 15 How. Pr. 410.

Motion denied, with $10 costs.  