
    TEN BROECK a. SLOO.
    
      Supreme Court, First District; Special Term,
    
      November, 1855.
    Supplementary Proceedings. — What is “ Property.”
    
      It seems that a right of action in a judgment debtor to recover damages for a mera tort, can not be reached by his creditor by means of supplementary proceedings.
    But a right of action upon contract to recover damages which will be the subject of computation only, is “ property,” within § 292, as that term is defined in §§ 463 and 464; and may be reached through a receiver.
    Motion to vacate an order appointing a receiver.
    
      George D. Sargent, for the motion.
    
      W. E. Curtis, opposed.
   Mitchell, J.

The defendant is a judgment debtor, and on proceedings supplementary to execution, be disclosed that he had an annuity of $25,000, to continue for some five years, and an interest in a steamship company under a contract under which he claims that the amount now due to him, either in money or in vessels, is over one million of dollars. This last right is being prosecuted by him, now, in the United States courts ; and he there also claims that the defendants are accountable to him for still larger sums for their misfeasance or malfeasance in relation to that contract. A receiver was appointed as well of this annuity, as of the defendant’s rights under that contract. The defendant moves to vacate the order, and it has been ably argued that neither the Code nor the judgment creditor’s bill is intended to reach all manner of actions, but only such as admit of a strict numerical computation. It may be that they do not reach any action for a tort, or for any wrong or injury which is not founded on contract, and in which damages could not be ascertained except through the intervention of a jury. (Davenport v. Ludlan, 3 C. R., 66). But the action in the United States Court is a suit in equity, and is founded on a contract only, and in it nothing can be recovered except the precise sum which this defendant will show that he would have obtained if the defendants in that suit had fully carried out their agreement. Nothing like punitive damages will be given.

The Code (§ 292) requires the judgment debtor, if execution is returned unsatisfied, “ to appear and answer concerning his property,” — and if the execution is only issued, and it appears that he has property which he unjustly refuses to apply towards satisfaction of the judgment, he must also answer as to the same, and by section 298, the judge may by order appoint a receiver of the property of the judgment debtor, in the same manner, and with the like effect, as if the appointment was made by the court according to section 244. By section 244 a receiver may be appointed when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment, and also in such other cases as were then previously provided by law, or were according to the previously existing practice, except as otherwise provided in the Code. It was in conformity with the former practice always to appoint a receiver of the judgment debtor’s property, when property was discovered on a judgment creditor’s bill which could not be reached by the execution, and the judgment debtor did not apply it to the satisfaction of the judgment. This appointment is therefore sanctioned by section 244.

As to what is meant by “ property” in these sections, the Code itself determines the question. In sections 462, 463, 464, it defines “ real property,” when used in that act, as coextensive with “ lands, tenements, and hereditaments,” — personal property as including “ money, goods, chattels, things in action, and evidences of debt,” and property as including both real and personal property. The words choses in action might be broad enough to include even actions for damages for fort, were it not that they probably have never been regarded strictly as property, nor as assignable, and were it not also for the associates of these words. But neither of these reasons will apply to a right of action founded on a contract, and in which nothing can be recovered except profits actually made, or which would have been made but for the fault of the parties who are accountable. That right is property which will pass to executors, and which may be assigned, and is recoverable without leaving the amount to the discretion of a jury.

The plaintiff’s judgment is about eleven thousand dollars ; the annuity has been assigned by the defendant to the extent of $6,000 per annum. He is willing to give orders for the annuity as it shall accrue ; but the plaintiff’s right is to have the annuity itself secured to him until he be paid. If he chooses to take an assignment of an interest on that annuity, payable out of any arrears thereon, and out of the first instal-ments hereafter to accrue, sufficient to pay his judgment, with interest, the defendant must assign it to him. If he will not be contented with that, or the defendant will not make an assignment, the order appointing the receiver of both properties must stand, but with modifications which may be necessary to prevent a sacrifice of the defendant’s property, to the injury of his creditors as well as of himself. It has been held that, under the Code, the judge cannot require any assignment, but can only appoint the receiver, and leave him then to sue under the title derived from his office merely. In this case it might abate the suit in the United States Court, to direct an assignment by the defendant, of the cause of action under prosecution in that court; but it probably will not cause any difficulty to leave the receivership as it is. The receiver therefore may be expressly instructed not to sell, assign, or in any way dispose of the annuity, or the claim or suit, without the special leave of the court, on a notice of at least ten days to both parties in this suit, or to their attorneys,— and not to interfere in the conducting of the suit brought by the defendant, unless ordered by the court, after like notice, and on its appearing to the court that such interference is necessary, — and the defendant should be enjoined from compromising or compounding that suit, and from making any assignment or other disposition of it, or of the rights claimed in it, or of the annuity,, without further order of the court, on like notice, until the plaintiff’s judgment and interest be fully paid.

The defendant should pay the costs of this motion, $10, and also $25 costs on supplementary proceedings.  