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Scialampo v. Ciolino

128 N.Y.S. 623 Court N.Y. App. Term Decision date 1911-03-21 English

Delivered by BIJUR, J.

Contents

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p. 623
SCIALAMPO v. CIOLINO.
(Supreme Court, Appellate Term.
March 21, 1911.)

Headnote

Execution (§ 419[1] )—Supplementary Proceedings—Disobedience of Order —Discharge from Imprisonment.
A judgment debtor, imprisoned for disobeying an order in supplementary proceedings, who seeks his discharge, under Judiciary Law (Consol. Laws 1909, c. 30) § 775, because of his inability to pay the sum required, must definitely show by the affidavits that he has no property of any nature and no source of income, and averments of lack of funds and money and earnings are insufficient
[Ed. Note.—For other cases, see Execution, Cent. Dig. § 1204; Dec. Dig. § 419.[1] ]
Appeal from City Court of New York, Special Term.
Supplementary proceedings by Giuseppe Scialampo, judgment creditor, against Pietro Ciolino, judgment debtor. From an order granting a motion to discharge the judgment debtor from imprisonment for disobedience of an order in the proceedings, the judgment creditor appeals.
Reversed, and debtor imprisoned.
Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Foulds & Galland, for appellant.
Vitale & Vitale and William Mahler, for respondent.

The judgment debtor respondent was imprisoned for failure to obey an order in supplementary proceedings. Two days after his imprisonment he moved to be released, under section 775 of the judiciary law (Consol. Laws 1909, c. 30). In so far as the application is based on the claim that the respondent is unable to endure the imprisonment, the moving papers are manifestly inadequate.

In so far as the application is based on the claim that respondent is unable to pay the sum required to be paid, the moving papers, though

p. 624
replete with allegations of the defendant’s lack of funds and money and earnings, do not snow that he is unable to pay. For all that appears, respondent may possess a substantial amount of real or personal property. It should definitely appear from the affidavits that the respondent has no property of any nature whatsoever and no source of income. They should contain an adequate statement of his financial condition.

' Order reversed, and debtor imprisoned, with $10 costs and disbursements, with leave, however, to renew upon proper papers. All concur.

Statutes and regulations cited