Opinion
June, 1909.
I. Louis Balch, for appellant.
Oscar B. Bergstrom, for respondent.
The plaintiff herein has recovered a judgment against the defendant upon which execution was issued, supplementary proceedings taken and a receiver in such proceeding duly appointed. At the time of the commencement of the proceedings supplementary to execution, the defendant was domiciled in the State of Connecticut, and had an office for the transaction of business in the city of New York. The defendant is the owner of certain real property situated in the State of Connecticut. After the appointment of the receiver in supplementary proceedings, an action was commenced in the State of Connecticut by the National Rubber Company against the plaintiff. In that action the plaintiff was not personally served, but a writ of attachment was issued, garnishing the debt due this plaintiff from this defendant; and notice of this proceeding was served upon this defendant.
In the court below, two motions were made. In one motion the plaintiff sought an order compelling the defendant to execute to the receiver a conveyance of his real property in the State of Connecticut. This motion was denied. The other motion was made by the defendant for an order staying further proceedings in this action until the foreign attachment is disposed of. The motion was granted. From both of the orders so made the plaintiff appeals to this court.
Two questions are presented for decision: First. Has the City Court of the city of New York power to compel the defendant to convey real estate in Connecticut, of which he is the owner, to a receiver, appointed in New York State in supplementary proceedings, of the property of the judgment debtor? Second. Was the action of the court below in staying proceedings upon the judgment in this action until the termination of the attachment proceedings in Connecticut, proper?
I. The court is without power to compel a judgment debtor to convey real property situated within the State to his receiver in supplementary proceedings. This was distinctly held in Moyer v. Moyer, 7 A.D. 523.
Nor is there any power resident in the court to compel a judgment debtor to convey real estate in a foreign jurisdiction to his receiver in supplementary proceedings. The fact that no purpose could be served by such an order when the property is situated within the State, because in such a case the real property of the debtor vests in such receiver on filing the order appointing him as provided by section 2468 of the Code, distinguishes these two classes of cases; but this distinguishing characteristic does not obviate the objection that the court is without power to make such an order in proceedings supplementary to execution. The fact that courts of equity, acting in personam, may decree specific performance of contracts for the sale of lands in foreign States is no authority for the action which the plaintiff urges the court to take in this case. Supplementary proceedings are statutory creations, and warrant for the action taken in these proceedings must be found in the statute. The statute confers upon the court no power to compel a judgment debtor to convey to his receiver in supplementary proceedings real property situated in a foreign State.
It follows that the order denying the motion of the plaintiff was proper, and should be affirmed.
II. Whether the action of the court below, in staying proceedings upon the judgment in this action until the termination of the attachment proceedings in Connecticut, was proper, depends upon the effect to be accorded to the Connecticut proceedings in the courts of this State. The plaintiff was not personally served with process and did not appear in the attachment proceedings in Connecticut; and those proceedings, therefore, operate only upon property of the debtor which is within that jurisdiction.
In Ward v. Boyce, 152 N.Y. 191, 195, Judge O'Brien said: "The judgment of a court of a sister state recovered upon trustee process or attachment proceedings, in which the defendant is not personally served with process, and does not appear, is effectual only to bind such property of the debtor as is found within the jurisdiction. It can form no basis for a personal judgment, and cannot affect the title of property not seized or attached, and not within the jurisdiction of the sovereignty where the proceedings are had."
The property claimed to be attached is the debt which this defendant owed to the plaintiff. That debt, however, is merged in the judgment which the plaintiff has recovered; and the legal situs of the judgment is the state of its rendition. It cannot be said to be property of the debtor within the State of Connecticut; and, as was said in Ward v. Boyce in reference to a note having its situs here, "according to the settled doctrine of this court, the courts of that state had no power in such a proceeding to make any decree affecting its title or ownership."
The Connecticut court not having acquired jurisdiction either of the person of the plaintiff or of the res, its proceedings were without legal effect; and it was error for the court below to stay proceedings upon the judgment here, pending the termination of the ineffective proceedings which had been instituted in Connecticut.
It follows that the order staying the proceedings upon the judgment in this action should be reversed, and the motion denied.
GILDERSLEEVE and LEHMAN, JJ., concur.
Order reversed, and motion denied.