Franey v. Smith — 34 N.Y.S. 780

Majority

p. 780

(88 Hun, 215.)

FRANEY v. SMITH et al. (two cases).

(Supreme Court, General Term, Fourth Department.

July 5, 1895.)

Headnote

Supplementary Proceedings—Aeeidavit.

An. affidavit filed In support of a motion before the county judge of B. county for the examination of a person in supplementary proceedings alleged that judgment was recovered and the roll filed and docketed in B. county; that the transcript of the judgment was filed in D. county, and execution issued thereon against defendant to the sheriff of D. county, where defendant then resided. Held, that the affidavit was insufficient, in that it did not state the residence of defendant at the time it was made.

Appeal from order of Broome county judge.

Supplementary proceedings by John Franey against Alvin C. Smith, impleaded with Hernán T. Smith, and John M. Wilson, a third party. From an order holding that the court had not jurisdiction, plaintiff appeals.

Affirmed.

On the 4th day of October, 1892, the county judge of Broome county, on a notice of motion, that the referee’s report bearing date March 31, 1890, be confirmed, “ordered that the motion herein be, and the same is hereby, denied, upon the ground that the county judge of Broome county had no jurisdiction to make or grant the order in supplementary proceedings herein.” By the affidavit of the attorney for the plaintiff it appears that a judgment was recovered, and the roll was filed and docketed, in Broome county, and that a transcript of the judgment was filed in the office of the clerk of the county of Delaware on the 30th of October, 1884; that an execution was issued thereon against Alvin C. Smith and Hernán T. Smith, the defendants, on the 27th day of October, 1884, to the sheriff of the county of Broome, and also, on the 2d day of December, 1884, to the sheriff of Delaware county, “where the said judgment debtor, Alvin C. Smith, then resided; and that such execution has, within the 10 years last past, been returned wholly unsatisfied.” In the affidavit it is further stated that John M. Wilson has property of said judgment debtor, Alvin O. Smith; “is indebted to said Alvin O. Smith for moneys collected and received by him to and for the use and benefit of said Alvin O. Smith, in an amount exceeding $10, to wit, $120, or upwards; .that said John M. Wilson resides, and has an office for the regular transaction, of business in person, at Deposit, Delaware county, N. Y.” That affidavit was verified on the 17th of March, 1890. Thereupon the county judge of Broome county, on fhe 18th day of March, 1890, granted an order appointing a referee to take testimony, and ordered said Wilson to appear before the referee at his office in Deposit, Delaware county, on the 20th of March. The referee certifies that, in pursuance of the order, at the time and place mentioned in it, the plaintiff appeared by counsel, and John M. Wilson by counsel, and answered; that the proceedings

p. 781

were adjourned to March 28th; and on the 28th of March, 1890, the plaintiff again appeared, and Wilson appeared in person; and at the request of plaintiff’s attorney, and consent of Wilson, the examination was adjourned to March 31st; and on March 31, 1890, Wilson was sworn and examined, and he disclosed the fact that he had moneys belonging to Alvin. C. Smith, the judgment debtor, at the time of the service of the order upon him. The referee made a report of the proceedings before him, bearing date March 31, 1890; and by a notice made on the 12th day of May, 1890, served upon, Wilson and upon Alvin C. Smith, to the effect that an application would be made on the 26th of May, 1890, for an order requiring Wilson to pay the plaintiff’s attorney in this action- the money in his hands belonging to Alvin O. Smith. The proceedings were brought before the county judge on the 4th of October, and the county judge, after hearing counsel for the plaintiff, and counsel for the defendant Alvin O. Smith in opposition to the motion, made the order in question.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Arthur More, for appellant

A. Mumford, for respondent.

The affidavits used before the county judge of Broome county fail to state facts sufficient to confer jurisdiction upon the county judge of Broome county. The affidavit presented to the county judge did not state the residence of Alvin 0. Smith at the time the order was granted, nor his residence at the time the affidavit was made. It does state, however, that his residence was in the county of Delaware at the time of issuing the execution in the year 1884. Marrill v. Allen, 46 Hun, 623 . In the course of the opinion delivered in that case, Barker, J., said, in speaking of proceedings against a third party who- was indebted to the judgment debtor, viz.: “When proceedings are taken against a debtor of the judgment debtor, for the purpose of securing an application of an indebtedness toward the payment of the judgment, where the execution is in the hands of the sheriff, as in this case, the judgment debtor is, in a sense, a party to such proceedings. Such remedy is resorted to for the purpose of reaching his property and converting it to a particular purpose. His interests are directly involved in the procedure. In order that he may protect his rights, so far as they are involved by. the proceeding, provision is made, in section 2464, that no receiver shall be appointed without notice given to him, if he can be found in the state.” It is said further in the course of the opinion in that case that the county judge did not have jurisdiction over the subject-matter, and an order vacating the proceedings attempted to be had before the county judge of Ontario county was affirmed. That case was referred to with approval by Judge Martin in delivering the opinion in Schenck v. Erwin, 63 Hun, 104 , 17 N. Y. Supp. 616 , and we are inclined to think the reasoning of the learned judge in the latter case sustains the order of the county judge in the proceedings now before us. We think the order should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements. All concur.