First Department, November, 1913. [Vol. 158. Charles T. Payne, for the appellant. Gerald B. Rosenheim, for the respondent. SCOTT, J.: This action was begun by the service of the summons and complaint upon the defendant James W. Henning on April 24, 1912. The defendant W. Lewis Stevens voluntarily appeared herein on May 20, 1912. Issue was joined by the service of the answer of said defendants on June 10, 1912. On March 11, 1913, upon the consent of the said defendants, a judgment was entered in favor of the plaintiff and against the said defendants for the sum of $2,234.88. Execution upon said judgment against the property of said defendants was, on March 28, 1913, issued to the sheriff of the county of New York and was returned unsatisfied by him. Thereafter execution against the person of both defendants was, on April 16, 1913, issued to the sheriff of the county of New York. The defendant W. Lewis Stevens was arrested by the sheriff of the county of New York on April 18, 1913, and has since been in his custody. The defendant James W. Henning was not arrested and is not and has not been in custody. On April 29, 1913, an order was made for the examination of both defendants in supplementary proceedings. On May 6, 1913, an order to show cause why the aforesaid order should not be vacated was granted. On June 23, 1913, this motion was granted to the extent of vacating the original order for examination with respect to the defendant W. Lewis Stevens, but refusing to vacate it with respect to the defendant James W. Henning and directing that the said Henning appear for examination. From said last-mentioned order the defendant James W. Henning now appeals. The defendants were copartners and are sued as such. The question is whether the arrest upon execution of one of two joint and several judgment debtors suspends all other remedies against both. It is certain and it is conceded that as to the debtor held in execution all other remedies are suspended while the imprisonment continues. (Koenig v. Steckel, 58 N. Y. 475.) App. Div.] First Department, November, 1913. We think that they are also suspended as to all property in which the imprisoned debtor has an interest, as for instance copartnership property, for to permit the creditor to reach copartnership property by proceedings against the debtor not held in execution would in effect authorize proceedings against the imprisoned debtor's property and thus do by indirection what may not be done directly. It is urged, however, that notwithstanding the imprisoned debtor may not be proceeded against in supplementary proceedings, and assuming that because of his imprisonment such proceedings may not be prosecuted to discover copartnership property, still the proceedings may be continued for the purpose of discovering the individual property of the non-imprisoned debtor and compelling its application to the payment of the judgment debt for which he is severally as well as jointly liable. This suggestion, however, loses sight of the fact that the several liability of a copartner and the obligation to apply his individual property to the payment of a copartnership debt attach only after the copartnership assets have been exhausted or have proven insufficient to pay the debt. If, therefore, for the reasons above stated recourse cannot be had to the copartnership assets while one copartner is held in execution the condition cannot arise or be created in which it would be permissible to resort to the individual property of any one of the copartners even if he were not the one held in execution. The motion to vacate the order for the examination of the defendants should, therefore, have been vacated in toto, and the order appealed from will be modified accordingly, with ten dollars costs and disbursements to the appellant. INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred. Order modified as directed in opinion, with ten dollars costs to appellant. Order to be settled on notice. First Department, November, 1913. [Vol. 158. PANAMA REALTY COMPANY, Appellant, v. THE CITY of NEW YORK, Respondent. First Department, November 7, 1913. Real property - easement license to maintain nuisance terminated on conveyance of lands by licensor-subsequent action to abate nuisance brought by grantee. An easement in real property giving to an adjoining owner a right to maintain a nuisance on his own lands, or a right in the nature of an easement, can only be created by grant, or by prescription which presumes a grant. Where a city has acquired a mere license from the owner of adjacent lands entitling it to maintain a pumping station which is a nuisance by reason of causing vibration, noise, etc., the license terminates on a conveyance of the realty by the licensor and his grantee may subsequently maintain an action for damages and to abate the nuisance. Thus, where a judgment against the city of New York in an action to recover damages and to abate a nuisance caused by a pumping station connected with the water supply system, provided that on payment of the judgment by the city there should be a full satisfaction and discharge of all claims against the city, which the plaintiff has or which her heirs, executors, grantees or assigns, etc., may hereafter have, her grantee may, nevertheless, maintain a similar action to abate the nuisance and for damages, for the judgment did not create an easement but a mere license operative only against the grantor personally. APPEAL by the plaintiff, Panama Realty Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of January, 1913, upon the verdict of a jury rendered by direction of the court. Max L. Schallek, for the appellant. William E. C. Mayer, for the respondent. SCOTT, J.: Plaintiff is the owner of a lot of land, with a building thereon, known as No. 102 West Ninety-eighth street in the city of New York. Adjacent thereto is a lot of land owned by the city of New York which has erected thereon and used for a number of years a pumping station in connection with its water supply system. The plaintiff complains that said pumping plant App. Div.] First Department, November, 1913. is so constructed and operated as to cause constant and serious injury to its property by shaking, jarring and noise-in short, that the said pumping plant constitutes a nuisance in so far as it affects plaintiff's property. Although the merits were not gone into upon the trial, it seems probable that plaintiff's complaint is well founded. (Vide Morton v. Mayor, etc., 65 Hun, 32; 140 N. Y. 207.) The defense upon which the plaintiff has thus far succeeded is based upon the recovery and satisfaction of a judgment against the city by one Sarah Levy, who at one time owned the property now owned by plaintiff. The judgment in question was entered in an action commenced by the said Sarah Levy in the year 1894. As originally drawn, her complaint alleged that defendant's pumping station constituted a nuisance and damaged her to the extent of $12,000. She asked a judgment for her damages and an abatement of the nuisance. At the trial the complaint was amended, by consent, by increasing the amount of damages claimed to $20,000, the same to be in full for all past and future damages in consequence of the wrongful acts of the defendant, and their continuance, and in lieu of the injunctive relief demanded by the original complaint. The jury awarded $7,500 damages and a judgment for that amount was entered in favor of the plaintiff. The judgment was subsequently amended by consent by the addition of the following clause: "Adjudged, that upon the payment, satisfaction and discharge of said sum of $7,871.20, adjudged due as aforesaid to the plaintiff from defendants, such payment shall be in full satisfaction and discharge of any and all claims or demands in said amended complaint set forth, and the said defendants, the Mayor, Aldermen and Commonalty of the City of New York, shall be thereupon remised, released, and forever discharged of and from all *** manner of action and actions, cause and causes of action, suits, damages, judgments, claims and demands whatsoever, in law or in equity, which against the said defendants, the Mayor, Aldermen and Commonalty of the City of New York, the said plaintiff, Sarah Levy, ever had, now has, or which she, her heirs, executors, administrators, lessees, grantees or assigns hereafter can, shall or may have for, upon, or by reason of the First Department, November, 1913. [Vol. 158. wrongful acts set forth in said complaint as amended, and the continuance thereof." The judgment was thereafter paid and satisfied by the defendant. The defendant claims, and the claim has been sustained by the learned justice at the Trial Term, that the effect of this judgment and its satisfaction has been to grant to defendant a perpetual, irrevocable license, good as against all of Sarah Levy's successors in title, to continue to maintain and operate the nuisance in so far as it affects the property now owned by plaintiff. With this conclusion we are unable to agree. It would be profitless to indulge in an extended discussion of the nature of the right which defendant claims to have acquired to continuously work an injury upon the property owned by plaintiff. It certainly falls within the accepted definition of an easement, or is, as some of the authorities put it, a right in the nature of an easement, for it permits the dominant owner, the city, to do an act which, as to the plaintiff's property, would be, if not authorized by grant or license, a nuisance or a trespass. (10 Am. & Eng. Ency. of Law [2d ed.], 405.) An easement, however, can only be created by a grant, or by prescription which presumes a grant, and upon neither of these does the defendant rely. It is certain that the decree entered in the Levy action is not equivalent to a grant by the then owner. It was distinctly so held by this court in a case wherein a very similar judgment was entered against one of the elevated railways (Herman v. Manhattan R. Co., 58 App. Div. 369), and the same principle has been generally recognized by the form of judgment commonly entered in the elevated railway cases. (See Pappenheim v. Metropolitan El. R. Co., 128 N. Y. 436.) It is clear, therefore, that defendant cannot claim to have acquired an easement as to plaintiff's property. The most it can claim to have acquired by the decree in the Levy action was a license to continue the nuisance. We need not stop to consider whether, in view of the form of the complaint and of the order entered by consent, the city acquired a license, irrevocable as to Sarah Levy so long as she held the property. Very likely it did, or, speaking more accurately, that she would have been estopped from making a further claim for damages during her ownership. But an essen |