In re Delsalse — 56 N.Y.S. 384

Majority

p. 384

In re DELSALSE et al.

(City Court of New York, General Term.

March 6, 1899.)

Headnote

Supplementary Proceedings—Nonresidents—Affidavits—Conclusions.

Affidavits on behalf of a judgment debtor, in apparent contempt of an order for his examination, that he was not a resident when the order was served on him, are insufficient to justify the contempt, unless facts are set out which warrant the court in sustaining the conclusion of non-residence.

Appeal from special term.

Application of F. Delsalse and others, creditors, for the examination of Martin Cassidy, judgment debtor, in proceedings supplementary to execution. The debtor was adjudged in contempt for

p. 385

disregard of the order for his examination, and he appeals.

Affirmed.

Argued before FITZSIMONS, C. J., and CONLAN and SCHUCHMAN, JJ.

Frank J. McBarron, for appellant.

Blumenstiel & Hirsch, for respondents.

The order adjudging the debtor herein guilty of contempt must be affirmed. The only reason offered by him in justification of his contempt was that at the time of the service upon him of the order for his examination as a judgment debtor he was a nonresident. In support of his contention he submitted his own affidavit and the affidavits of several others, in which the following conclusion is set forth: “He is not now, and has not been for a period of three years or more, a resident of the city and county of New York, but resides without said city and county.” The special term justice was right in disregarding this conclusion. It alleged no facts which would justify said justice in sustaining the debtor’s conclusion. It was for the court to decide whether the debtor was a nonresident, based upon facts presented by the debtor. He had no right to assume this judicial function.

The order appealed from is affirmed, with costs, with leave, however, to the debtor to appear and submit to examination, upon payment of costs herein, and also the costs of appeal from the order of December 9, 1898. Upon complying with these terms, the fine of $250 will be remitted.