Binghamton Trust Co. v. Grant — 65 A.D. 178

Majority

p. 178

The Binghamton Trust Company, Respondent, v. Judson H. Grant, Appellant, Impleaded with Anna M. Wheeler.

Headnote

Motion made on an affidavit and judgment roll—review of the ordm', made on a record not containing the judgment roll.

The Appellate Division will not vacate an order for the examination of a judgment debtor in proceedings supplementary to execution, upon the ground that the affidavit used on the motion did not show in what county the action was brought or the county in which the judgment was entered or the judgment roll filed, where the order recites that it was based upon the affidavit and the judgment roll, and such judgment roll is not incorporated in the appeal papers.

Appeal by the defendant, Judson H. Grant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of - the county of New York on the 12th day of July, 1901, denying said defendant’s motion to vacate an order for his examination in proceedings supplementary to execution.

p. 179

O. II. Machín, for the appellant.

Taylor More, for the respondent.

The respondent applied to and obtained from one of the justices of this court an order for the examination of a judgment debtor in proceedings supplementary to execution. The order was granted upon an affidavit and the judgment roll in the action. Subsequent to the service of the order upon the judgment debtor, he moved, upon the papers upon which it had been granted, to set aside the same, upon the ground, among others, that the affidavit upon which it was granted was insufficient, in that it did not appear therefrom in what county the action was brought, or in what county the judgment was entered, or the judgment roll filed, and that it was necessary for the judgment creditor to establish these facts, with others specified, in order to give the court jurisdiction. The motion was denied and from that order the present appeal is taken.

If the order directing the examination had been granted on the affidavit alone, there would be much force in the appellant’s contention, inasmuch as section 2458 of the Code of Civil Procedure specifically provides that in order to entitle a judgment creditor to maintain a proceeding of this character these facts, with others, must be satisfactorily established. But the order was not based upon the affidavit alone; on the contrary, as appears from the recitals contained in it, it was based upon the affidavit and the judgment roll in the action, and for aught that appears, each of the required facts omitted in the affidavit was supplied by the judgment roll. Inasmuch as the appellant has not seen fit to incorporate the judgment roll in his appeal papers, we are unable to say that all of the facts required by the Code were not established to the satisfaction of the learned justice who granted the order.

The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.