
    Howard Pendleton, Jr., as Receiver of the Property of Hyman Friedman, Respondent, v. Hyman Friedman, Appellant, Impleaded with H. F. Hat Company, Defendant.
    First Department,
    December 10, 1909.
    Debtor and creditor— fraudulent conveyances — pleading—judgment of court of limited jurisdiction — necessary allegations — execution — suit by receiver in supplementary proceedings.
    ■ The complaint in a judgment creditor’s action to set aside fraudulent conveyances which merely alleges that judgment against the defendant was recovered in a Municipal Court and was docketed in the office of the county clerk, is insufficient if it fail to allege facts showing that the Municipal Court had jurisdiction to render the judgment. As a Muncipal Court is one of limited jurisdiction, a plaintiff basing an action or judicial proceeding upon the judgment of that court must plead and prove its'jurisdiction, as there is no presumption thereof. ’ ,
    The defect aforesaid is not cured by an allegation that the judgment was docketed' in the county clerk’s office and that supplementary proceedings were duly instituted thereon wherein the plaintiff was appointed receiver.
    
      Such complaint is also fatally defective where it merely alleges that the execution, returned unsatisfied, was issued to the sheriff of a certain county where the judgment debtor then had and still has a place for the regular transaction of business in person, for while such execution is a sufficient basis for supplementary proceedings, yet in a judgment creditor’s action, regulated by section 1872 of the Code of Civil Procedure, the plaintiff must show either that the execution was issued-to the sheriff of >the county where the debtor resided if a resident of the State, or to the sheriff of the county where he had an office for the regular transaction of business in person if a non-resident.
    The plaintiff in a judgment creditor’s action is not excused from showing that execution was issued as required by section 1872 of the Code of Civil Procedure merely because he is a receiver appointed in supplementary proceedings. While the receiver acts both for the judgment creditor and the judgment debtor, where he sues on behalf of either, he stands in the place of the one whom -he represents, and is governed by the same rules of law which apply to the one or to the other.
    Appeal by the defendant, Hyman Friedman, from an order of the Supreme Court,-made, at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of October, 1909, denying the said defendant’s motion for judgment upon the pleadings.
    
      Nathan April, for the appellant.
    
      George P. Preoleenridge, for the respondent.
   Houghton, J.:

One Caroline Grlatner is alleged to have' obtained judgment in the Municipal Court of the city of Hew York, borough of Manhattan, "eighth district, against the defendant Friedman, and subsequently to have instituted supplementary proceedings thereon, in which proceeding this plaintiff was appointed receiver of the property of the judgment debtor. He brings this action to set aside a transfer of property claimed to have been made by the defendant Friedman in fraud of his creditors.

The defendant interposed an answer and, under the right given by section 547 of the Code of Civil Procedure, moved for judgment dismissing the plaintiff’s complaint, insisting that it stated no cause of action because it failed to allege facts showing jurisdiction in the Municipal Court to render judgment against the defendant, and because it failed to show that execution thereon had been properly issued. This motion Was denied and he appeals.

The complaint simply states that Caroline Glatner recovered judgment against the defendant Friedman in the specified Municipal Court for a certain' sum, and that such judgment was docketed in the office of the clerk of the county of Mew York without stating any facts showing that the Municipal Court had jurisdiction to render judgment against the defendant. The Municipal Court is one of limited and special jurisdiction, and when a judgment rendered therein forms the basis of any action or judicial proceeding, jurisdiction must be plead and proved, for there is no, presumption in its favor. (Friedman v. Metropolitan Steamship Co., 109 App. Div. 600.)

It is urged that the allegation of the complaint setting forth that the judgment was docketed in the clerk’s office of the county of Mew York, and that supplementary proceedings thereon were duly instituted in the City Court, arid that this plaintiff was duly appointed receiver therein, cures this defect. We think not. The udgment is the basis of this action, and jurisdiction in the court which rendered it must appear.

We are of opinion also that the complaint is fatally defective in failing to allege sufficient facts with respect to the issuing of an execution. It is alleged that the execution was issued to the sheriff of the county of Mew York, where the judgment debtor then had and still has a place for the regular transaction of business in person. An issue of execution to the sheriff of the county where -the judgment debtor has, at the commencement of the proceeding, a place for the regular transaction of business in person is sufficient upon which to found supplementary proceedings. Section 2458 of the Code of Civil Procedure prescribes that supplementary proceedings lie where an execution has been issued either to such county or, if the judgment debtor is a resident of the State, to the sheriff of the county where he resides. The issue of execution, however, upon which to found a judgment creditor’s action is regulated by section 1872 of the Code. This section provides as follows: “ To entitle the -judgment creditor to maintain an action as prescribed in the last section, the execution must have been issued’ as follows : 1. If at the-time of the commencement of the action the judgment debtor is a resident of the State, to the sheriff of the county where he resides. 2. If he is not then a resident of the State, to the sheriff of the county where he has an office for the regular transaction of business in person.” If the defendant was a resident of the State, it therefore was not sufficient to issue an execution to the county in which he did not reside but in which he had an office for the regular transaction of business in person. If he was not a resident of the State, the complaint should have so alleged and thus disclosed that the execution was issued to the proper county. ■ In an action by a judgment creditor to set aside a transfer of his judgment debtor on the ground of fraud, the complaint must allege the proper issuing of the execution and its return unsatisfied. (Adsit v. Butler, 87 N. Y. 586.)

The plaintiff seeks to avoid this conceded requirement of the law because he is not the judgment creditor himself, but is a receiver appointed in supplementary proceedings. While it is true that the judgment creditor does not bring the action, the receiver stands in her shoes. He acts in a dual capacity both for the judgment creditor and the judgment debtor, and he can bring an action at law which the judgment debtor could bring, to recover property which belonged to him; and he also can bring an action in equity to set aside a fraudulent transfer by the judgment debtor, which the judgment creditor himself could'bring. When he brings the one or the other he stands in place of the one whom. he represents and is governed by the same rules of law which apply to the one or the other. (Stephens v. Meriden Britannia Co., 160 N. Y. 178, 181.)

The fatal defects existing, it was error for' the learned Special Term to refuse to grant the defendant’s motion for judgment and to dismiss the plaintiff’s complaint.

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, unless the plaintiff amends his complaint and pays the costs of the action and' costs in this court within twenty days after the service of this' order.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.*

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars' costs, unless plaintiff amends and pays costs of action and costs in this court within twenty days.  