Smith v. Cowles — 99 N.Y.S. 747

Majority

p. 747

SMITH et al. v. COWLES.

(Supreme Court, Appellate Division, Third Department.

June 27, 1906.)

Headnote

Execution—Supplementary Proceedings—Setting Aside Order—Affidavit.

Where the affidavit of a judgment defendant, in an action by plaintiffs as administratrix and administrator, states that three years previously an order for the examination of defendant in supplementary proceedings was made on a judgment recovered by the administratrix individually through the same attorney who represents the present plaintiffs, and that the defendant is a poor man and has only his salary of $1,000 a year for the support of his family, but does not state that he has now no property which should be applied in payment of the judgment, an order for his examination in supplementary proceedings will not be set aside.

Appeal from Special Term, Warren County.

Action by Mary Ann Smith and another, as administratrix and administrator of Horace Crittenden, against Benjamin S. Cowles. From an order refusing to set aside an order for .the examination of the defendant in proceedings supplementary to execution, defendant appeals.

Affirmed.

See 81 N. Y. Supp. 524 .

Argued before SMITH, CHESTER, KELLOGG, and COCH-RANE, JJ.

Henry W. Williams, for appellant.

Adam Armstrong, for respondent.

Upon a judgment in this action against defendant and the return of execution unsatisfied an order was made for defendant’s examination in supplementary proceedings before a referee therein appointed. This motion to set aside this order for examination is made by the defendant on the ground that in 1903, upon a judgment recovered by Mary Ann Smith, individually, the defendant was exhaustively examined. by the same attorney who now represents these plaintiffs. While it appears by the affidavit of defendant’s counsel that the defendant is a poor man and has only his salary of $1,000 a year for the support of his family, it does not appear that he has now no property which should be applied in payment of the judgment. At least in the absence of such a statement, clearly and specifically made by the defendant himself under oath, this order for examination should not be set aside.

Defendant’s apprehension that he may be unreasonably harassed by such an examination to the detriment of his present business connection rests upon the assumption that the referee will not confine the examination within reasonable limitations. This proceeding is not authorized to be used as a club, to enforce settlements of claims which the debtor is without property to pay. If at any time it should appear to the referee that such use was being made of the proceeding it would be within his power to force the concluding of the examination, or upon the failure of the referee properly to protect the interest of a judgment debtor, the county judge or this court at Special Term would have the power at any

p. 748

time to set aside the order for examination upon the ground that the right thereby given was being abused.

The order should therefore be affirmed, with $10 costs, and disbursements. All concur.