The case presents but a single question, under the decision of the judge at Special Term. The Code, section 290, provides, that an execution is returnable "within sixty days after its receipt by the officer," differing somewhat from the former provision of the statute, as to the time for the return of an execution, which required it to be sixty days from the receipt thereof by the sheriff. The Revised Statutes provide that, whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant to compel a discovery of any property or thing in action belonging to the defendant, c.
The question appears to be free from a doubt, in a case without fraud or collusion in procuring the return. The time allowed for the return of an execution is for the benefit of the sheriff, to prevent an action or compulsory proceedings against him before he has had a reasonable time to execute the process. If the sheriff has made an honest return that he can find no property of the defendant in his county, there can be no reason for staying the proceedings of a creditor in resorting to a court of equity for relief against the fraudulent disposition of property by a judgment debtor.
The whole subject has been considered, and, I think, fully and correctly disposed of by this court, in the case of Forbes v.Waller (25 N.Y., 430).
It appeared on the trial in that case, that the execution was issued on the 2d of June, 1856, and returned on the 9th of the same month. All the judges of this court but one concnrred *Page 101 in the opinion that an action in the nature of a creditor's bill is now maintainable before the expiration of sixty days from the delivery of the execution to the sheriff (p. 442).
The court below erred in refusing to receive the evidence of fraud and in dismissing the complaint. The judgment should be reversed, with costs, and a new trial be ordered.