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Eyre v. Stubbert

128 N.Y.S. 4 Court N.Y. App. Term English

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p. 4
(71 Misc. Rep. 147.)
EYRE v. STUBBERT.
(Supreme Court, Appellate Term.
February, 1911.)

Headnote

Attorney and Client (§ 29[1] )—Attorney’s Clerks—Authority.
An affidavit in support of a motion to punish a judgment debtor for contempt cannot be made by the managing clerk of the attorney of the judgment creditor, unless expressly authorized to ,d° so, and reason is shown why it is not made by the judgment creditor or his attorney.
[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 42; Dec. Dig. § 29.[1] ]
Appeal from City Court of New York, Special Term.
In the matter of supplementary proceedings by Rhoda R. Eyre against J. Edward Stubbert, a judgment debtor. From an order denying a motion to punish for contempt, plaintiff appeals.
Affirmed.
Argued before SEABURY, PAGE, and BIJUR, JJ.
Philip Carpenter (Henry Eckhard, of counsel), for appellant.
Michael H. Harris (Louis Susman, of counsel), for respondent.

The order should be. affirmed, upon the first objection urged to the sufficiency of the affidavit upon which the supplementary proceeding was based; • i. e., that the affidavit was made by

p. 5
the managing clerk of the attorney, and not by the judgment creditor or his attorney. The proceeding must be instituted by the judgment creditor or by some one authorized by him. It has been held that the authority of his attorney will be presumed. Miller v. Adams, 52 N. Y. 409 . This presumption of authority to act for the judgment creditor cannot be extended to the clerk of the attorney. It has been held that an affidavit of the clerk of the attorney is insufficient for the foundation of a motion, if no excuse is offered for its not being made by the attorney. Jackson v. Woodworth, 3 Caines, 136; Chase v. Edwards, 2 Wend. 283 . It has been frequently held that an affidavit executed by an attorney associated with the attorney for the judgment creditor was insufficient to give the court jurisdiction. Beardsley v. Stone Valley Distilling Co., 122 N. Y. Supp. 686 ; Title Guarantee & Trust Co. v. Brown, 136 App. Div. 843 , 121 N. Y. Supp. 891 . And we are of opinion that the affidavit made by a managing or other clerk of the attorney is not sufficient to institute the proceeding, unless his authority is shown, and the reason why it is not made by the judgment creditor or his attorney is set forth.

The order should therefore be affirmed, with $10 costs an<£ disbursements.

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