Ward v. Beebe , 17 Abb. Pr. 1 ( 1863 )

By the Court.—Sutherland, P. J.

The order made at special term, authorizing and directing the clerk to satisfy the judgment in this action of record, appealed from, was founded on the proceeding supplemental to the executions issued on the judgments of Buckman against Ward, under section 294 of the Code, and on the order made in the last-mentioned proceeding, and on proof that the last-mentioned order had been complied with,—that is, that Beebe had paid on the 29 th of April, 1862, $415.79, on account of the judgment of Ward against Ruclcman and Beehe, and had subsequently paid to the sheriff $247.41, the amount due on the judgments of Ruckman against Ward, as the balance due on the judgment of Ward against Ruckman and Beebe, including sheriff-fees.

The order under which Beebe paid the $247.41 in satisfaction of the judgment against him and Ruckman, was made without notice to either Ward or his attorney, Mr. Williams, of the proceeding in which that order was made. As to Ward; the judgment-debtor, the order was entirely ex parte.

Unless this want of notice rendered that order not only irregular, but void, as to Ward, the order appealed from, directing satisfaction of the judgment against Ruckman and Beebe, certainly was not erroneous, although under the circumstances it may have been unnecessary.

Section 294 of the Code expressly declares that the judge may, “ in his discretion, require notice” of the proceeding under that section, “to be given to any party to the action, in such mannér as may seem to him proper.” (See, also, Kemp a. Harding, 4 How. Pr., 178; Seely a. Garrison, 10 Abbotts’ Pr., 460; Foster a. Prince, 8 Ib., 407.)

The order, then, under which Beebe paid the $247.41, the amount of Ruckman’s judgments against Ward, in satisfaction of the balance due on the judgment against Beebe and Ruck-man, was not irregular, much less void, for want of notice to Ward or his attorney of the proceeding in which that order was made, for it was a matter within the discretion of the judge whether such notice should be given or not.

If, when that-proceeding was instituted, the judgment against Ruckman and Beebe equitably belonged to Mr. Williams, the attorney of Ward, and the proceeding was instituted in fraud of Williams’ rights as such equitable owner, perhaps the order made in that proceeding might have been stayed or vacated on a proper application by him; but as no such application had been made, it appears to me that the order appealed from was regular, and authorized by the previous order under section 294 of the Code, and the proof that such last-mentioned order had been complied with.

If the order appealed from was useless or unnecessary, because the judgment against Ruckman and Beebe had already been satisfied of record, I do not see how that order did, or could, injure either Ward or Williams.

I do not see how the order appealed from did, or could, take away or affect any right or remedy of Ward or Williams under the written agreement, on the execution of which, and the payment of $415.79 by Beebe, the judgment against Buckman and Beebe had been satisfied of record, previous to the motion in which the order appealed from was made.

In my opinion, the order appealed from should be affirmed, with $10 costs.

Ingraham and Leonard, JJ., concurred.