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McGuire v. Schroeder

63 N.Y.S. 968 Court N.Y. City Ct. Decision date 1900-04-05 English

Delivered by *969 O’DWYER, J.

Contents

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p. 968
McGUIRE v. SCHROEDER et al.
(City Court of New York, General Term.
April 5, 1900.)

Headnote

Supplementary Proceedings — Second Examination — Defective Affidavits.
An affidavit for a second order for a judgment debtor’s examination in supplementary proceedings, alleging that deponent “verily believes” that defendant has acquired property since the first examination, is insufficient without a statement of. the grounds of such belief.
Appeal from special term.
Action by James E. McGuire against Frederick H. Schroeder and others. From an order denying a motion on behalf of the judgment debtor, Schroeder, to vacate a second order in supplementary proceedings for his examination, defendants appeal.
Reversed.
Argued before McCARTHY and O’DWYER, JJ.
Nichols & Bacon, for appellants.
Lavinia Lally, for respondent.

The motion was made on the ground of the insufficiency of the moving affidavit, the affidavit alleging “that an examination of the judgment debtor under the judgment of plaintiff was had in 1897, and discontinued and abandoned, and no property was reached or discovered on said examination; that deponent verily believes that since said examination the said Frederick H. Schroeder has acquired property, and is now the owner of thousands of shares of stock in the Standard Gold Production Company, of Boulder county, Colorado, worth more than the sum of one thousand dollars.” A second order for the examination of a judgment debtor will not be granted, except upon proof that he has since acquired property; and the allegation in the affidavit that the deponent verily believes the defendant has acquired property is insufficient. He should have stated the grounds for that belief, and, having failed to do so, the affidavit is defective, and the motion to dismiss the proceeding should have been granted. Pierce v. Parrish, 28 App. Div. 22 , 50 N. Y. Supp. 735 ; Losee v. Allen, 17 Misc. Rep. 275 , 40 N. Y. Supp. 349 .

Order appealed from reversed, and motion to vacate and set aside the second order for the examination of the judgment debtor granted, with $10 costs and disbursements, to be credited upon the judgment herein.

McCARTHY, j., concurs.

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