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In re First National Bank

52 A.D. 601 Court N.Y. App. Div. English

Delivered by Merwin, J.:

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p. 601
In the Matter of Proceedings Supplementary to Execution in an Action wherein The First National Bank of Albany, N. Y., was Plaintiff and Joseph H. Clark was Defendant. The First National Bank of Albany, N. Y., Judgment Creditor, Appellant; Joseph H. Clark, Judgment Debtor, Respondent.

Headnote

Supplementary proceedings — refusal of a judgment debtor to apply real estate to the payment of the judgment ■— what allegations in respect thereto are insufficient.
An affidavit, used upon a motion for the examination of a judgment debtor in proceedings supplementary to execution, which alleges that the judgment debtor is the owner of certain real prop'erty, applicable to the payment of the judgment, and that, upon demand, he unjustly refuses to so apply it, but does not state any facts or circumstances from which it may be determined whether such refusal was unjust, or whether the judgment creditor’s remedy by execution is not adequate, is insufficient to justify the granting of the motion.
Appeal by The First National Bank of Albany, N. Y., judgment creditor, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Delaware on the 27th day of April, 1900, vacating an order requiring Joseph H. Clark to appear before a referee and be examined concerning his property.
Buchanan & Lawyer, for the appellant.
James R. Baumes, for the respondent.

On the 9th day of March, 1900, the plaintiff duly obtained against the defendant a judgment for the sum of $7,794.72, and a transcript thereof was on the 12th of March, 1900, duly filed in the office of the clerk of the. county of Delaware in which county the defendant resided and still resides. An execution against the property of the defendant was on the 13th of March, 1900, duly issued upon the judgment and delivered to the sheriff of Delaware county. On the 5th of April, 1900, the plaintiff obtained from a justice of the Supreme Court an order, under section 2436 of the Code of Civil Procedure, requiring the defendant to attend before a referee

p. 602
at a named time and place, and be examined concerning his property. The affidavit upon which the order was granted stated the foregoing facts, and also stated that. the execution had not been returned; that the judgment was wholly unsatisfied; that the defendant was the owner of certain real property situated in that county which was applicable to the payment and satisfaction of the judgment; that a demand in behalf of the plaintiff had been made of the defendant that he apply the said property to the payment and satisfaction of the judgment, but that he unjustly neglected and refused, and still unjustly neglects and refuses, to apply the same or any part thereof upon the judgment. This order having been duly served on the defendant, he made a motion at Special Term to set it aside. This motion was granted and the plaintiff appeals.

The question upon this, appeal is whether or not the affidavit, upon which the order was granted, was sufficient 'to justify the granting of the order. It-contained only the general statement- that the defendant had certain real estate which, upon demand, he unjustly refused to apply towards the satisfaction of the judgment. No facts or circumstances are stated from which it may be determined whether or not there has been an unjust refusal. Such a statement is, as a rule, necessary. (3 Rumsey Pr. 412; First Nat. Bank of Rome v. Wilson, 13 Hun, 232 .) The ordinary remedy of the judgment creditor as to real estate is to sell it upon execution. That remedy was available here, and nothing is shown to indicate that any examination of the defendant was necessary in aid of that remedy. We are not referred to any authority holding that the judgment debtor must, upon demand, transfer his real estate to his judgment creditor. The authorities are in the other direction. (Sackett v. Newton, 10 How. Pr. 560 ; First Nat. Bank of Canandaigua v. Martin, 49 Hun, 573 ; Bunn v. Daly, 24 id. 526; Moyer v. Moyer, 7 App. Div. 523 .)

We are of the opinion that the Special Term did not err in holding that the affidavit was insufficient to show the unjust refusal, required to be shown in order to entitle the plaintiff to the order.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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