In re Gagnon — 52 N.Y.S. 309

Majority

p. 309

In re GAGNON.

(Supreme Court, Appellate Division, Second Department.

June 14, 1898.)

Headnote

Supplementary Proceedings—Examination of Third Party.

A failure, in the affidavit upon which an order for the examination of a third party in proceedings supplementary to execution is granted, to state the residence of the judgment debtor at the time of the institution of the proceeding (Code Civ. Proc. § 2458), renders it fatally defective.

Appeal from special term.

Action by John W. Matthews and others against Frank W. Hendry. Judgment for plaintiffs. From an order denying a motion to vacate an order for the examination of George S. Gagnon in proceedings

p. 310

supplementary to execution, and an order appointing a receiver, defendant appeals.

Reversed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

M. Linn Bruce, for appellant.

Russel Headley, for respondents.

The affidavit on which the order for the examination of the third party in proceedings supplementary to execution was granted was fatally defective, in failing to state the residence of the judgment debtor at the time of the institution of the proceeding, as required by section 2458 of the Code of Civil Procedure. On this question the cases of Schenck v. Irwin, 60 Hun, 361 , 15 N. Y. Supp. 55 , and Franey v. Smith, 88 Hun, 215 , 34 N. Y. Supp. 780 , are decisive authorities. The rule under the old Code was to the contrary, but Mr. Throop’s note to section 2458 shows that it was intended to change that rule. The cases cited by the respondents, which arose under the old Code, are therefore not in point.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, all to be applied on plaintiff's judgment. All concur.