In the Matter of DAVID LISNER, Respondent, v. SAMSON L. TOPLITZ, Defendant. NATIONAL CITIZENS' BANK OF THE CITY OF NEW YORK, Appellant. Supplementary proceedings — an execution issued and returned unsatisfied is a prerequisite thereto — when sustained where they are instituted before, and a receiver is appointed after, the return of the execution. Proceedings supplementary to execution have taken the place of the former bill of discovery, and as such a bill would lie only where a valid execution had been issued and returned unsatisfied, such matters are prerequisites to the institution of proceedings supplementary to execution. Upon an affidavit made by a judgment creditor's attorney, alleging that an execu tion had been issued on the judgment and had been returned unsatisfied, an order for the examination of the judgment debtor in proceedings supplementary to execution was granted March 13, 1902. The order recited that the issuing of the execution and its return unsatisfied had been shown to the satisfaction of the court. The execution upon the judgment was not formally returned and filed with the county clerk until the morning of March 14, 1902, although the deputy sheriff who had charge of the execution had made an entry of its return upon the sheriff's records on March 13, 1902. March 14, 1902, after the return of the execution, a receiver of the judgment debtor's property was appointed in the proceeding. Held, that an order denying a motion made by a junior judgment creditor to vacate the order for the examination of the judgment debtor and the order appointing the receiver should be affirmed. VAN BRUNT, P. J., and O'BRIEN, J., dissented. *The other cases of this term will be found in volume 85 App. Div.- [REP. 1 App. Div.—VOL. LXXXVI. FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 86. APPEAL by the National Citizens' Bank of the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of May, 1903, denying its motion to vacate an order made by a justice of the Supreme Court on the 13th day of March, 1902, for the examination of the defendant Toplitz, a judgment debtor in supplementary proceedings, and also to vacate an order made by a justice of the Supreme Court on the 14th day of March, 1902, appointing a receiver of said judgment debtor in supplementary proceedings. Charles Blandy, for the appellant. Herbert A. Heyn, for the respondent. LAUGHLIN, J.: On the 11th day of March, 1902, one David Lisner obtained a judgment for $7,837.10 against Samson L. Toplitz by confession in an action pending in the Supreme Court in the county of New York. Two days later, on the affidavit of one of the attorneys for the plaintiff showing the recovery of the judgment, that execution thereon had been duly issued to the sheriff of the county of New York and returned by him unsatisfied, the order for the examination of the judgment debtor was obtained ex parte and served on the same day. The judgment debtor appeared for examination pursuant to the requirements of the order on the 14th day of March, 1902, and it appearing from his examination that he had property not exempt from execution the order appointing the receiver was made the same day. The appellant recovered a judgment for $1,583.77 against the same defendant in the City Court on the day the receiver was appointed. Execution was issued on its judgment on the same day and returned unsatisfied on the sixth day of May thereafter. On the 3d day of June, 1902, the appellant obtained and served an order for the examination of the judgment debtor in proceedings supplementary to execution upon its judgment. Upon his examination pursuant to this order the appellant first learned of the respondent's judgment and proceedings thereon. The appellant, on the 31st day of March, 1903, obtained an order to show cause why the order for the examination of the judgment debtor in pro |