
    Matter of the Examination of John J. Albright, a Third Person, Upon the Application of William Wheeler Smith, Judgment Creditor, Etc.
    (Supreme Court, Erie Special Term,
    July, 1907.)
    Supplementary proceedings — Nature and purpose — Concurrent with remedy by creditor’s action.
    Proceedings supplementary to execution and by judgment creditors’ actions are concurrent; and a judgment creditor, by instituting an action in the District of Columbia in the nature of a creditor’s action, does not lose his right to prosecute proceedings supplementary to the execution here.
    Betttrn of an order to show cause why a third party should not appear and submit to a further examination in proceedings supplementary to execution.
    William C. Carroll, for motion.
    Louis L. Babcock, for J. J. Albright, opposed.
   Wheeler, J.

The affidavits disclose that an order for the examination of John J. Albright as a third party in proceedings supplementary to execution was heretofore granted and that he appeared before the referee and submitted to a partial examination, whereupon the proceedings were adjourned for a further hearing, which Mr. Albright promised to attend.

Subsequently to this adjournment and prior to the time fixed for the second hearing, the judgment creditor commenced an action in the courts of the District of Columbia in the nature of a creditor’s hill against Mr. Albright and others, seeking to set aside the conveyance of certain properties made by the judgment debtor to- Mr. Albright. It is claimed that by so doing the judgment debtor has elected his remedy and c-nght not to be permitted to continue this proceeding in order to enable him to obtain evidence in aid of his creditor’^ action in Washington. For these reasons Mr. Albright dedined to appear before the referee and submit to a further examination and, thereupon, a motion is now made by counsel for the judgment creditor for an order requiring such appearance and submission to an examination.

The authorities sustain the judgment creditor in this application.

It is held that the remedies provided by supplementary proceedings and by judgment creditors’ actions are concurrent, and that the judgment creditor may prosecute either or both until satisfaction of the judgment, and that the judgment creditor does not waive his right to examine in supplementary proceedings by bringing a creditor’s action. Matter of Bacheller De Ponce De Leon, 69 N. Y. Supp. 242; Matter of Sidle, 52 Hun, 527; Schloss v. Wallach, 16 Abb. N. C. 319; Note, 38 Hun, 638; 102 N. Y. 683.

The right of the judgment creditor for a further examination of Mr. Albright áppears plain.

Let an order be entered directing such an appearance and submission to an examination on a day to be mutually agreed upon; and, if such a day cannot he agreed upon, the court will fix the date in the order to be entered herein.

Ordered accordingly.  