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Tefft v. Epstein

7 N.Y.S. 897 Court N.Y. City Ct. Decision date 1889-08-06 English

Delivered by Nehrbas, J.

Contents

Majority

p. 897
Tefft v. Epstein.
(City Court of New York, Special Term.
August 6, 1889.)

Headnote

Execution—Supplementary Proceedings—Affidavit.
An affidavit for an examination in supplementary proceedings is sufficient, though the allegation that the person to be examined has possession of the debtor’s property is on information and belief. Following Miller v. Adams, 53 N. Y. 409 .
Motion to vacate an order for an examination in supplementary proceedings.
David Leventritt, for Rachel Epstein. Palmer <& Boothby, for judgment creditors.

The affidavit upon which the order for the examination of a third person was granted states that Rachel Epstein, as deponent is informed and believes, has personal property of Simon Epstein, the said judgment debtor, exceeding $10 in value. A motion is made to vacate the order, for the reason that the sources of the deponent’s information are not stated. The cases of People v. Jones, 1 Abb. N. C. 172 , and Day v. Lee, 52 How. Pr. 95 , hold this to be jurisdictional and necessary. But Miller v. Adams, 52 N. Y. 409 , decides that an affidavit on information and belief merely, similar to this one, is sufficient. The latter authority being controlling, the motion to vacate will be denied, without costs. Let the party appear on the 7th inst. for examination.

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