
    In the Matter of Supplementary Proceedings: Lillian Foley, Judgment Creditor, Respondent, v. John Vincent Foley, Judgment Debtor. The Equitable Life Assurance Society of the United States, Third Party, Appellant.
    First Department,
    May 19, 1939.
    
      
      James D. Ewing of counsel [Alexander & Green, attorneys], for appellant.
    
      Emanuel Redfield of counsel [Dwyer & Redfield, attorneys], for the respondent.
   Per Curiam.

Although the receiver acquired whatever title the judgment debtor had in the annuities at the commencement of this supplementary proceeding, there are issues of fact in respect of the extent of that title as to which appellant is entitled to have a plenary trial, particularly in view of the receiver’s failure to surrender the annuity contracts. In the circumstances the court should not have made the summary order commanding appellant to pay the cash surrender values of sixteen annuities. The further direction contained in the order requiring appellant to deliver to the receiver the eight original annuity contracts or duplicates thereof is not authorized by section 794 or section 796 of the Civil Practice Act.

The orders entered on March 31, 1938, and December 22, 1938, so far as appealed from, should be reversed, with twenty dollars costs and disbursements, and the motions denied.

The appeal from the order entered May 17, 1938, should be dismissed.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Orders entered March 31, 1938, and December 22, 1938, respectively, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the motions denied. Appeal from order entered May 17, 1938, dismissed.  