Majority
p. 3SUPREME COURT. David J. Peters agt. Thomas Kerr. New York Special Term, August, 1861.
Headnote
In supplementary proceedings, the plaintiff must establish thatthe defendant has the money or means, before the defendant can be ordered to pay the judgment or be committed to jail.The defendant’s statement may be very unsatisfactory to a creditor, and give rise to suspicion that he may be concealing money or property, but that does not warrant such an order.
The defendant, in substance, swears he has no money or property.
During his examination he discloses that he sold his real and personal estate, receiving therefor about $8,000, in March, 1860. He is asked for the items of the expenditure of that sum. His memory will serve him, as he swears,
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only far enough to particularize about $6,000, but he knows that every cent of it has been spent, and he has none of it now.
The plaintiff moves that the defendant be required to pay his judgment (over $1,000,) or that he be committed to jail.
J. & G. W. Cook, for plaintiff.
Harrington & Grieff, for defendant.
The plaintiff must establish that the defendant has the money or means before such an order can be made.
The defendant cannot be committed to jail on suspicion, nor can any order be made that would have that result, unless it be admitted or proven that the defendant can comply with the order asked for.
The defendant’s statement is, no doubt, very unsatisfactory to a creditor, and gives rise to a suspicion that he may be concealing money or property, but that does not warrant the order for which the plaintiff asks.
The application is therefore denied.