Day v. Brosnan — 6 Abb. N. Cas. 312

Majority

p. 312

DAY v. BROSNAN.

N. Y. Common Pleas;

Special Term, March, 1879.

Headnote

Supplementary Proceedings.—Requisites of Order for Examination of Judgment Debtor.

An order for the examination of a judgment debtor in supplementary proceedings, must state all the facts necessary to give the court of common pleas jurisdiction.

If such facts are stated only in the affidavit on which the order is obtained, the order is irregular.

Such an order on a judgment recovered in a district court, or in a justice’s court, must show that a transcript of the judgment was filed and docketed with the county clerk, and when it was so filed and docketed. '

Motion to dismiss supplementary proceedings.

p. 313

William T. Day, as executor of Samuel S. Day, recovered judgment against one Brosnan in the third judicial district court in the city of New York, for $186.50. Transcript of the judgment was filed and docketed in the office of the clerk of the city and county of New York. An execution was issued to the sheriff, and returned unsatisfied. The plaintiff obtained an order from the court of common pleas to examine the defendant in supplementary proceedings before a referee.

Defendant’s counsel procures an order staying the examination before the referee, with an order to show cause from the court why the supplementary order should not be dismissed, in failing to state that the transcript of the judgment was filed and docketed with the clerk of the city and county of New York, and when the same was filed and docketed.

George H. Kracht, defendant, and for the motion.

W. Q. Carpenter, for the plaintiff, opposed.

The order for the examination of the judgment debtor fails to show the filing and docketing of the transcript of the judgment of the district court, in the office of the clerk of the city and county of New York, and when the same was so filed and docketed. In order that this court may acquire jurisdiction in supplementary proceedings instituted on judgments of district and justices’ courts, it is necessary that all the jurisdictional facts should be stated in the order. It is not sufficient to show the jurisdictional facts in the affidavit on which the order is obtained, but the same must be shown in the order, to give this court jurisdiction.

The order herein, failing to show that a transcript of the judgment was filed and docketed with the county clerk, and when the same was so filed and docketed, is irregular and defective, and the motion for dismissal must therefore be granted.