I think that the order supplementary should have been discharged. The execution was returned, long before the expiration of thesixty days, at the request, direction, and demand of the plaintiff. The mere fact that the execution was returned within the sixty days would amount to nothing (Livingston a. Cleveland, *4305 How. Pr. R., 396), because, as stated by Mason, P. J., “ It follows, that as we are to presume that the sheriff has done his duty in searching for property, when he has made his return of nulla bona, that we must regard the legal remedies of the plaintiff as exhausted, before these proceedings supplementary to the execution were instituted.” Where, however, the execution is returned at the request of the creditor, no such presumption can be entertained. It is not the return of the sheriff, predicated of official action, and he assumes no responsibility in regard to it. It is the act of the creditor in fact, and a mere formula to enable him to adopt proceedings for which, it might be, there was no necessity. The Legislature never intended to subject the debtor to the expense of proceedings supplementary at the instance of the creditor, but to provide against the concealment of property, or against the enjoyment of property which official vigilance could not discover. The Supreme Court of this district (Pudney a. Griffiths, 6 Abbotts’ Pr. R., 211; S. C., 15 How. Pr. R., 410), and the Superior Court of this city, have held that orders obtained in the manner stated, should be discharged. (James a. Eagle, 7 Abbotts’ Pr. R., 234.) It did not appear in either of the cases cited, that the creditor knew of property owned by the judgment-debtor, and available under execution. In this case, that fact is shown by the defendant’s affidavits. I think the order, on principle and on authority, should have been discharged, and that the order made at special term should be reversed.
Order affirmed.