
    In the Matter of Supplementary Proceedings, John Damers, Judgment-Creditor-Respondent, v. Morris S. Sternberger, Judgment-Debtor-Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Supplementary proceedings — Receivers — Property rights and management and disposition of property — Real property.
    An order will not be made authorizing a receiver, appointed in proceedings supplementary to execution, to sell the judgment debtor’s real property; for the receiver acquires no title thereto nor power to sell and convey it.
    The judgment creditor must exhaust his remedy against the debtor’s real property before resorting to supplementary proceedings.
    Appeal by the judgment-debtor from an order of the City Court of the city of blew York, entered May 21, 1906, granting a motion for the sale of the property interests' of the judgment-debtor.
    E. M. Wight, for appellant.
    L. A. Gould, for respondent.
   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 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.  