Jurgenson v. Hamilton

Headnote

SUPLEMENTARY PROCEEDINGS.

Proceedings supplementary to execution must be instituted in the county where the judgment debtor resides or has a place of business.

A second examination will not be allowed unless it is shown that the judgment debtor, since his former examination, has acquired property.

Motion to dismiss supplementary proceedings.

Christian Jurgenson recovered judgment against one Hamilton in 1874, shortly after examined him in supplementary proceedings, and having ascertained that he •had no property, let the matter rest until April, 1878, when he procured another order from Judge Pottek to examine the defendant. On the return-day of the order the defendant appeared, and his counsel moved to dismiss the order, on the ground that the affidavit on which the order was obtained was not true in stating

that the defendant resided and had a place of business in the county of New York, and denied this fact by affidavit, and stated that he resided in the county of Kings.

The proceedings were thereupon dismissed, for the following reasons, as stated by the justice before whom they were brought.

Donohue, J. — The defendant swears positively that he does not reside, nor have a place of business in this county, and the opposition swears on information and belief. The proceedings must be dismissed with costs.

After the above decision the plaintiff assigned the judgment to T. David Gr. It. Pelton, and on October 10, 1878, the assignee obtained an order that the defendant be examined concerning his property. Mr. Hamilton appeared, and his counsel again moved to dismiss the order, for the reason that the affidavit on which the order had been obtained did not state the fact that the judgment debtor had heretofore, in 1874, been examined in supplementary proceedings, nor show that the defendant had acquired property since his former examination.