
    Dominick Marsullo, Plaintiff, v. Hugo D. Rosendorf, Individually, and Others, Defendants.
    (Supreme Court, New York Special Term,
    March, 1915.)
    Real property — judgment debtor by death of father seized of certain real property — when judgment creditor cannot maintain action to procure satisfaction of his judgment — Code Civ. Pro., § 1873..'
    Where a judgment debtor by the death of his father became seized of individual shares in several pieces of real property his judgment creditor cannot maintain an action the purpose of which is to procure satisfaction of his judgment from the personal assets of the decedent’s estate which is in course of administration, as plaintiff has an adequate remedy at law in an execution sale of the judgment debtor’s real property.
    The judgment debtor’s interest in the real property formerly belonging to his father cannot be reached in an action under section 1873 of the Code of Civil Procedure, and an equitable action cannot be maintained in regard to such property because there is no obstacle to be removed before plaintiff can sell it under his judgment.
    Action by judgment creditor to enforce a lien upon the interest of the judgment debtor in the estate of his deceased father who died intestate.
    
      Saxe, Powell & Silver (Martin Saxe, of counsel), for plaintiff.
    Max Altmayer, for defendant Hugo D. Rosendorf, individually.
   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 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.  