Lawyers' Title Insurance v. Stanton — 84 N.Y.S. 468

Majority

p. 468

LAWYERS’ TITLE INS. CO. OF NEW YORK v. STANTON.

(Supreme Court, Appellate Term.

November 6, 1903.)

Headnote

1. Execution—Supplementary Proceedings — Examination of Debtor— Affidavit—Sufficiency.

Under Code Civ. Proc. § 2458, subd. 2, providing that, to entitle a judgment creditor to maintain supplementary proceedings, the execution must have issued to the sheriff of the county where the judgment debtor resides, if he is then a resident of the state, the affidavit for an order for the examination of the judgment debtor must state the residence of the judgment debtor at the time of the commencement of the proceedings, in order to give the court jurisdiction.

¶ 1. See Execution, vol. 21, Cent. Dig. § 1109.

p. 469

Appeal from City Court of New York, Special Term.

Action by the Lawyers’ Title Insurance Company of" New York against Robert L. Stanton. From an order refusing to vacate an order for defendant’s examination in supplementary proceedings, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Robert L. Stanton, in pro. per.

David B. Ogden, for respondent.

The order appealed from must be reversed. The affidavit upon which the order for the examination of the judgment debtor was made fails to state the residence of the judgment debtor at the time of the' commencement of the proceeding. This is a necessary allegation to give the court jurisdiction, under subdivision 2 of section 2438 of the Code "of Civil Procedure. The case of Schenck v. Irwin, 60 Hun, 361 , 15 N. Y. Supp. 55 , is authority for this proposition.

The order denying the motion to vacate the proceedings is reversed, with $10 costs and disbursements, and the motion should be granted, with $10 costs. All concur.