
    Marta Louisa Collins, Trustee, App’lt, v. Adeline M. Beebe, Executrix, et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    1. Supplementary proceedings—Third party order should hot be GRANTED ON ALTERNATIVE AFFIDAVIT.
    An affidavit stating that a third person has property of the judgment debtor, or is indebted to him, is insufficient to authorize the granting of a third party order.
    2. Same—Will not lie upon judgment against executors.
    Supplementary proceedings cannot he instituted upon a judgment recovered against executors; but the claim thereon should be presented against the estate if the execution is returned unsatisfied.
    Appeal from an order vacating an order requiring a third person to appear and submit to an examination in supplementary proceedings.
    
      A. M. Card, for app’lt; Stephen 0 Baldwin, for resp’ts.
   Daniels, J.

The plaintiff recovered a judgment against the .defendants as executrix and executor of the estate of Welcome B. Beebe, deceased. An execution was permitted, by order of the surrogate of the county of New York, to be issued upon this judgment, and it was afterwards issued against the property of the testator in the possession of his executor and executrix. While the execution remained in the hands of the sheriff an order was made, upon the application of the plaintiff, directing Charles Donohue to appear before one of the justices of this court to be examined concerning his indebtedness to the testator, and as to property in his possession belonging to the estate of the testator. Upon a motion being made to vacate this order, it was set aside, and from the order setting it aside this appeal has been brought.

The order for the examination of Charles Donohue might very well have been vacated for the insufficiency of the affidavit upon which it was made. For all that was stated in it as to the fact of the person directed to be examined having property, or being indebted to the estate, was that he “ has personal property of the judgment debtor exceeding ten dollars in value, or is indebted to the judgment debtor in a sum exceeding ten dollars.” For it is quite evident from this statement that the person making the affidavit had no knowledge or information justifying the statement. If she had, it would not have been made in this alternative manner. For if she had knowledge or information as to either of the facts which she mentioned, her affidavit would not have been left in this uncertain condition, but she would have set forth the fact coming to her knowledge, either that he did have personal property of the judgment debtors, or that he was indebted to them. The one or the other of the facts intended to be disclosed would have been so stated as to indicate its probable existence, if it had been within the knowledge or information of the plaintiff, instead of the statement being made as it was that the person to be examined either had property or was indebted, etc. The affidavit was probably made in this manner because the affiant could not state as a matter of fact, either that he had personal property of the judgment debtor, or was indebted to the executors. It was a hazardous and experimental statement, which should not be accepted as the foundation of the order that was made.

But a still more substantial obstacle stood in the way of the right of the plaintiff to examine the judgment debtors, or any other person having property belonging, or indebted, to the estate. And that arises out of the fact that the defendants were sued as executors, and the judgment has been recovered against them alone in that capacity. It was not a judgment attended with the ordinary right of the plaintiff to issue an execution upon it, but its object was to secure the legal existence of a disputed demand, as that has been provided for by § 1822 of the Code of Civil Procedure. Upon the recovery of the judgment no right was vested in' the plaintiff to issue an execution, or in any manner to interfere with the property of the testator’s estate. But by § 1825 of this ‘Code the surrogate was authorized, upon notice to the executors, to permit an execution to be issued upon the judgment. Such an application was made, and his consent was secured for the issuing of the execution. And so far it was a regular proceeding in behalf of the plaintiff. But neither this section of the Code, nor any other, authorized the plaintiff to proceed further than that could be done under the authority in this manner obtained from the surrogate.

< The authority was to issue the execution, and in that manner to secure the payment of the judgment, if it could be so far made effectual. No authority has been provided for proceeding otherwise in the way of sequestrating or appropriating the property of the estate to the payment of the judgment. And the fact that the law has made no provision for the judgment creditor taking, proceedings upon the judgment, or the execution, beyond the power to levy upon and sell the property of the estate, is a circumstance supporting the inference that it was not intended that the plaintiff should possess any additional authority beyond that which was given in this manner.

H the order for the examination of the third person was regularly obtained under § 2441 of this Code, then the examination directed to be taken by it might be followed by the appointment of a receiver under § 2464, and the money or property appropriated to the payment of the judgment, even though that might constitute the bulk of the estate and defeat the right to satisfaction of all its other creditors. But the statute relating to the estate and the payment of the debts of deceased persons has not been framed so as to permit that to be done. It has, on the contrary, provided for equality in payment of recognizances, bonds, sealed instruments, notes, bills,‘and unliquidated demands and accounts. And it has further declared that no preference shall be given in the payment of any debt over other debts of the same class. “ Nor shall the commencement of a suit for the recovery of any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class.” 3 R. S., 6th ed., 95, §§ 27-8. And this restraint would plainly be violated if the proceedings commenced by the plaintiff should be maintained. The surrogate has also’ been provided with jurisdiction to direct and control the conduct and settle the accounts of executors, administrators and testamentary trustees, and to enforce the payment of debts, and the distribution of the estates of decedents, and to administer justice in all matters relating to their affairs. Code Civil Pro., § 2472.

And this jurisdiction would be interrupted and defeated if a creditor recovering a judgment against the personal representatives could proceed by supplementary proceedings and appropriate the property of the deceased to the payment of the judgment. And it has been further provided and declared, where the validity of a debt has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same. Code Civil Pro., § 2743.

And this, as well as the other provisions which have been mentioned, are entirely inconsistent with the right of the creditor having a judgment against the personal representatives to proceed by supplementary proceedings and thereby appropriate the estate of the deceased, or any part of it, to the payment of the judgment. They have created an altogether different course of proceeding which the creditor has been required to follow,-where the judgment may not be capable of being collected by means of the execution which the surrogate allows to be issued. And that is to present the demand against the estate, to receive either payment or its distributive share, as it may be entitled to that with other creditors having similar rights against the estate. The order in this case was right, and it should be affirmed, with ten dollars costs, and also the disbursements.

Van Brunt, P. J.

I concur with Mr. Justice Daniels. The affidavit upon which the order was granted was wholly insufficient The affidavit not only should not have been in the alternative, but it should have stated the facts upon which the affiant bases his allegation that the person to be examined either had property of the debtor or was indebted to him. An allegation in the words of the statute is wholly insufficient. Pacts must be stated from which a conclusion can be drawn, not the conclusion alone.

Order affirmed, with ten dollars costs and disbursements.

Brady, J., concurs.  