Lett v. Beacham — 18 N.Y.S. 748

Majority

p. 748

Lett v. Beacham.

(Supreme Court, General Term, First Department

April 14, 1892.)

Headnote

Supplementary Proceedings—Examination op Debtor.

Under Code Civil Proc. § 2436, which provides that a judgment creditor, on proof that the judgment debtor has property which he unjustly refuses to apply in payment of the judgment, is entitled to an order for the examination of the debtor concerning his property, the creditor must show a demand on the debtor for such application. Bank v. Wilson, 13 Hun, 232 , and Hutson v. Weld, 38 Hun, 142 , followed.

Appeal from special term, New York county.

Action by Aaron Levy against John Beacham. Plaintiff had judgment against defendant, and, the sheriff failing to find property from which to satisfy the same, an order was granted requiring defendant to submit to an examination concerning his property, from which order he appeals.

Reversed.

Argued before Van Brunt, P. J., and O’Brien and Andrews, JJ.

P. Q. Eckerson, for appellant. J. Goldman, for respondent.

Without disposing of the other questions raised upon this appeal as to the sufficiency of the affidavit,-there is one respect in which it appears to be fatally defective, and to require a reversal of the order. Section 2436 of the Code requires that, in order to obtain an order requiring the judgment debtor to be examined concerning his property in aid of the execution the judgment creditor must prove to the court that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment. Such proof must show that a-demand of the application of the property to the payment of the judgment has been made, otherwise no refusal can be established. This is the rule which has been laid down in the cases of Bank v. Wilson, 13 Hun, 232 , and Hutson v. Weld, 38 Hun, 142 . The-order should be reversed, and the order for the examination dismissed, with costs.