In re the Examination of Rowland — 21 A.D. 172

Majority

p. 172

In the Matter of the Examination of John T. Rowland, a Judgment Debtor, in Supplementary Proceedings upon a Judgment entitled “ Supreme Court, Queens County, Phebe Hobby, as Administratrix of All and Singular the Goods, Chattels and Credits which were of David R. Hobby, Deceased, Plaintiff, Against John T. Rowland, Defendant.” John T. Rowland, Appellant; Phebe Hobby, as Administratrix, etc., of David R. Hobby, Deceased, Respondent.

Headnote

Supplementary proceedings based on an execution issued to a county in which the • debtor has a summer residence.

The residence of a judgment debtor contemplated by section 3458 of the Code of Civil Procedure is not necessarily a permanent residence, and an execution issued to the sheriff of the county in which the debtor has a summer residence and ' returned- unsatisfied will sustain an order for his examination in proceedings supplementary thereto.

Appeal by John T. Rowland, a judgment debtor, from an order of the county judge of Rockland county, entered in the office of. the clerk of the county of Rockland on the 7th day of September, 1897, denying his motion to set aside an order for his examination in supplementary proceedings, with notice of an inténtion to bring up for review upon' such appeal an order entered in said clerk’s office on the 12th"day of August, 1897, directing such examination.

Chas. D. Ridgway, for the appellant.

William J. Griffin, for the respondent.

On April 16, 1-897, Phebe Hobby obtained a judgment against John T. Rowland in the Supreme- Court in the county of Queens,

p. 173

and the same was docketed in Rockland county. Execution was issued to the sheriff of that county, and on its return unsatisfied an order was obtained from the county judge for the examination of Rowland in supplementary proceedings. On the return day Rowland appeared and moved to- vacate the order on the ground that the county judge had no power to make the order, as Rowland did not reside in Rockland county. Section 2458 of the Code of Civil Procedure provides that to sustain the issue of the order an' execution must have been issued to the sheriff of the county where the judgment debtor resided at the time of the issuance of the order. The question, therefore, is whether Rowland resided in the county of Rockland when the order for his examination was made, on August 12, 1897. He testified in April, on the trial of the action, as follows: “ Q. Where do you live? A. I live in Jersey City part of the time and part of the time in Rockland county.”

It appears by the affidavit used in opposition to the motion that on August twenty-third Mr. Ridgway, his attorney, informed the plaintiff’s attorney that Rowland had resided at New Hempstead, Rockland county, since May 1, 1897, and was still residing there; that he was at New Hempstead and had been there every summer for twenty-eight years.

It is the evident intention of the Code that a judgment debtor should not be compelled to attend for examination at a place distant from his ordinary place of abode, and the limitations of the section are primarily intended for the protection and convenience of the debtor. In this view no hardship would be imposed by his compulsory attendance at a place in Rockland county contiguous to what he admitted was his place of abode during the summer. The question of permanent residence does not obtrude itself into this view of the purpose of the statute. The use of the word “ resident ” in many other statutes, such for instance as those relating to the residence of a party, necessary to give jurisdiction in actions-of divorce, does not apply to the present proceedings.

. We are of opinion that the order was proper, and it is affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.