In re Rose — 84 N.Y.S. 276

Majority

p. 276

(87 App. Div. 240.)

In re ROSE.

(Supreme Court, Appellate Division, First Department.

November 6, 1903.)

Headnote

1. Supplementary Proceedings—Venue—Debtor’s Residence.

A judgment debtor, who had lodgings in the city of New York, which he hired from month to month, and which he had occupied for three or four years, though his permanent residence was in another county, was a resident in New York City, within Code Civ. Proc. § 2458, providing that, to sustain the issue -of an order in supplementary proceedings, an execution must have been issued to the sheriff of the county where the judgment debtor resides.

Appeal from Special Term, New York County.

Supplementary proceedings by Heloise D. Rose, a judgment credit- or, for the examination of William. W. Durant. From an order vacating the order for - examination, the applicant appeals. Reversed.

Argued before VAN BRUNT, P. J„ and HATCH, PATTERSON, and INGRAHAM, JJ.

H. W. Harden, for appellant.

H. W. Simpson, for respondent.

Heloise Durant Rose, a judgment creditor of William W. Durant, procured an order for the examination of the judgment debtor in supplementary proceedings upon an affidavit setting forth that he was a resident of the city and county of New York, and had a place for the regular transaction of business in the county of New York. Thereupon the judgment debtor moved to vacate the order upon affidavits tending to show that his residence was in Hamilton county, in the state of New York, and that he had no place of business in the county of New York. The motion to vacate the order was granted, and from the order entered thereupon the judgment creditor appeals.

In reply to the affidavits presented by the judgment debtor, it was made to appear that he had lodgings in the city of New York; that he occupied those lodgings from time to time, and hired them by the month. It has been held that the residence of a judgment debtor, contemplated by section 2458 of the Code of Civil Procedure, is not necessarily his permanent residence, and that, where he has a permanent residence and also a summer residence, an execution issued to the sheriff of the county in which the debtor has his summer residence, returned unsatisfied, is sufficient to sustain an order for an examination in supplementary proceedings. Matter of Rowland, 21 App. Div. 172 , 47 N. Y. Supp. 493 , affirmed in 154 N. Y. 777 , 49 N. E. 1104 . Here it is shown that the judgment debtor, while his permanent residence may have been in Hamilton county, had a residence in the city of New York; that he hired lodgings from month to month, and that he occupied such lodgings, and had had them for three or four years. We think there was enough shown to sustain the order for his examination.

The order vacating the order for the examination of the judgment debtor should be reversed, with $10 costs and disbursements, and the

p. 277

motion to vacate denied, with $10 costs, and he should be required to attend, under the order for his examination, at a date to be fixed. All concur.

Cases cited

In re Rowland 21 App. Div. 172 N.Y. App. Div. 1897-10-12 p. 276