Majority
p. 433NATIONAL PRINTING & ENGRAVING CO. v. ARMSTRONG. (Supreme Court, Appellate Term, First Department. December 14, 1914.) Argued December term, 1914, before GUY, PAGE, and BIJUR, JJ.
Headnote
Execution (§ 377*)—Supplementary Proceedings—Affidavit—Sufficiency.An affidavit of the judgment creditor’s attorney was insufficient to support an order for the examination of a judgment debtor before the return of execution, where it stated the jurisdictional fact that the debtor had property on information and belief, and did not state the sources of his information or the grounds of his belief.
[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1109-1113, 1132-1135; Dec. Dig. § 377.*]
Appeal from City Court of New York, .Special Term.
Supplementary proceedings by the National Printing & Engraving Company against Paul Armstrong. From an order denying his motion to vacate and set aside an order for his examination in supplementary proceedings before return of execution, the judgment debtor appeals. Reversed and motion granted.
Phelan Beale, of New York City, for appellant.
Leon Laski, of New York City, for respondent.
The affidavit upon which the order for examination of the debtor was granted was made by the plaintiff’s attorney, and was based entirely upon information and belief as to the jurisdictional fact that the debtor has property. Neither the sources of the information nor the grounds of the belief were stated. The affidavit was therefore clearly insufficient, and the order should have been vacated upon motion. Matter of Garcia v. Morris, 51 Misc. Rep. 592 , 101 N. Y. Supp. 253 .
The order appealed from is reversed, with $10 costs and disbursements, and motion to set aside order for examination of defendant granted with $10 costs.
Cases cited
- Garcia v. Morris 51 Misc. Rep. 592 p. 433