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Bowery Bank v. Widmayer

9 N.Y.S. 629 Court N.Y. City Ct. Decision date 1890-04-16 English

Delivered by Giegerich, J.

Contents

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p. 629
Bowery Bank of New York v. Widmayer.
(City Court of New York, Special Term.
April 16, 1890.)

Headnote

Supplementary Proceedings—Affidavit.
An order for the examination of a judgment debtor in aid of an execution will be vacated when the affidavit therefor fails to allege a demand that the debtor apply his property to payment of the judgment, and also fails to state the means of knowledge of affiant’s informant.
At chambers. Action by the Bowery Bank of New York against Henry Widmayer. Defendant moves to vacate an order in aid of an execution against the defendant’s property.
Abram Kling, for plaintiff. Isaac L. Sink, for defendant.

The affidavit upon which the order for the examination of the judgment debtor in aid of an execution issued against the defendant’s property was granted, is defective, for the following reasons; (1) It fails to state what means of knowledge the informant of the affiant had, so that the court may determine whether the information is entitled to credit as proof. Manken v. Pape, 65 How. Pr. 453 . (2) It does not allege a demand. Manken v. Pape, supra; Bank v. Wilson, 13 Hun, 232 . As was well said by McAdam, J., in Manken v. Pape, supra: “The affidavit should show facts and circumstances, in order that the judge may decide whether there has been an unjust refusal,” and this the plaintiff has wholly failed to show. For reasons aforementioned, the order will be vacated, with $10 costs to be credited on the judgment.

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