
    MARX v. SPAULDINGS.
    
      N. Y. Supreme Court, First Department ; General Term,
    March, 1885.
    Supplementary proceedings ; order for debtor’s examination, WHEN VACATED; RETURN OF EXECUTION UNSATISFIED.
    A return of execution by the sheriil was in these words: “I have collected nothing under and have not found any personal property out of which the said execution, or any part of the same can be made; but I have thereunder levied upon the real estate mentioned in the annexed notice of sale, and have advertised the same for sale as in said notice provided. I have found no other property out of which to satisfy the same.” Held, that this was not such a return as justified an order under Code Civ. Pro. § 2435, for the examination of the judgment debtor in proceedings supplementary to execution.
    Appeal from an order denying a motion to vacate orders for the examination of a judgment debtor in proceedings supplementary to execution.
    In an action by Solomon Marx and Eliza Ghiggenheimer against Bernard Spaulding and Charles Jones and others, for the foreclosure of mortgage on real estate, judgment for deficiency was recovered, and execution was issued thereon.
    Prior to the expiration of the sixty days allowed the sheriff to make his return of execution, he levied upon certain real estate, and advertised the sale of all the right, title and interest therein of the defendant Jones.
    The plaintiffs took proceedings to compel the sheriff to make a return, and he thereupon indorsed a return as follows:
    “In pursuance of the demand of plaintiffs’ attorneys, I make the following return to the within execution. I have collected nothing under, and have not found any personal- property out of which the said execution, or any part of the same, can be made ; but I have thereunder levied upon the real estate mentioned in the annexed notice of sale, and have advertised the same for sale as in said notice provided. I have found no other property out of which to satisfy the same.”
    Thereafter, upon affidavit of return of execution unsatisfied, &c., an order was made for the examination of the judgment debtors in proceedings supplementary to execution. Defendants thereupon moved to vacate such order, and the motion was denied with costs, and from the order denying such motion, this appeal was taken by the defendants.
    Upon the motion to vacate, the plaintiffs introduced affidavits to show that the defendant Jones had no interest in the real estate levied upon by the sheriff, whom they had notified of the fact, and that the levy was made collusively with the defendants in order to delay return of execution and the institution of supplementary proceedings.
    
      This decision was affirmed by the court of appeals, without further opinion, September, 1885,
    
      A. Thain (Thain & Kearney, attorneys), for the defendants, appellants.
    
      Samuel Untermeyer (Guggenheimer & Untermeyer, attorneys), for the plaintiffs, respondents.
   By the Court.—Davis, P. J.

We 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 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. A creditor’s bill would not have been sustained in chancery upon such a return as was made in this case. The Code does not justify the proceedings where the 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 the return required by law as the basis of the supplementary examination.

The order should be reversed, with $10 costs and disbursements. 
      
       Noah Davis, P. J., Charles Daniels, J.
     