Carbonating Apparatus Co. v. Bennett

To entitle a judgment creditor to an order for the examination of the judgment debtor before the return of execution, under Code Civ. Proc. § 2436, he must show by affidavit or other competent written evidence “that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment.” A judgment debtor is not required to turn over property to satisfy a judgment, where the property may readily be levied upon by the. sheriff on execution. Supplementary proceedings in aid of execution in such a case are unnecessary. It is only where the creditor can prove to the satisfaction of the judge that the debtor has property, not subject to levy, or which is so kept by the. debtor that it cannot be clearly identified and with ordinary diligence be reached by execution, that the motion may be granted. Garcia v. Morris, 51 Misc. Rep. 592 , 594, 101 N. Y. Supp. 253 ; Sackett v. Newton, 10 How. Prac. (N. Y.) 560 . An order for such examination may be assailed upon the ground that the property defendant refused to apply upon the judgment was subject to levy and sale upon execution. See Kreiser v. Kitaoka, 36 Misc. Rep. 174 , 73 N. Y. Supp. 164 .

The affidavit upon whidi the order for examination was obtained merely states, in reference to the property of. the judgment debtor, “that said judgment debtor has property, consisting of a drug store at 1299 Fulton street, Brooklyn, N. Y., and the cash receipts therefrom, which he unjustly refuses to apply to the satisfaction of said judgment, as deponent is informed and believes,” followed by an allegation of a demand made on the debtor to apply said property to the satisfaction of the judgment. The affidavit should set forth facts and circumstances, so that it may be determined whether there has been an unjust refusal by the judgment debtor to apply the property toward the satisfaction of the judgment. It is not sufficient to merely follow the language of the statute. First National Bank v. Wilon, 13 Hun, 232 ; Matter of First National Bank, 52 App. Div. 601 , 65 N. Y. Supp. 439 . It is true that the averment in the language of the statute is enough to give jurisdiction, and that the omission to state the facts and circumstances is a defect and irregularity which may be waived or amended. The defect in this case, however, is not cured by the affidavits submitted on the motion to vacate the order of examination.

The affidavits in support of the motion state that the property, which the debtor is alleged to have had, has been already seized by the sheriff on execution issued on plaintiff’s judgment, and in the replying affidavit submitted in behalf of the plaintiff it is stated that the sheriff, or his deputy, for some unexplained reasons, which are obvious, how

Motion granted.