p. 435Samuel T. Ludlow et al., Resp’ts, v. George W. Mead, Impleaded, App’lt.(Supreme Court, General Term, Second Department,Filed December 10, 1888.)Headnote
1. Supplementary proceedings—Sufficiency of affidavit—Former. APPLICATION.When an affidavit for the examination of a judgment-debtor stated that, no previous application had been made for the order, except that an order had been previously obtained, which was by stipulation between the parties declared lapsed and abandoned without prejudice to a renewal of the application, the case showing that there had been still another order which had been set aside on motion, Feld, that the affidavit was sufficient to confer jurisdiction. As the first order was a nullity, it was not necessary to mention it.
2. Same—Execution—Docketing of judgment—Presumption of regularity—Duty of clerk.
Where a judgment was obtained in Westchester county, execution issued in Kings county, where defendant resided, and returned unsatisfied, the affidavit made in supplementary proceedings stated that the judgment-roll was filed in Westchester county and a transcript filed and the judgment docketed in Kings county, before the execution was issued. Feld, that the affidavit was not defective in not stating that the judgment was. docketed in Westchester county. The plaintiff having filed his judgment-roll, it will be presumed that the clerk of Westchester county did his duty, the transcript being based on the docketed judgment, and not on the filed judgment-roll.
Appeal from so much of an order, made at a special term of Westchester county, as refused to set aside and vacate an order for the examination of the appellant in. proceedings supplementary to execution obtained by respondents.
Samuel Sergeant, for app’lt; Shinto & Martin, forresp’ts.
The affidavit for the examination of the judgment-debtor stated that no previous application, had been made for the order, except that an order had been previously obtained which was by stipulation between
p. 436the parties declared “lapsed and abandoned without prejudice to a renewal of the application.” The case shows that there had been still another order which had been set aside on motion. The affidavit was sufficient to confer jurisdiction. It stated the statute fact that no previous application had been made with a certain exception.
There had been no examination upon the first order, and it will be presumed that it was void. No harm is done by the omission to state the issuing of the first order. The case shows that it was granted in violation of a stay then ■existing, and it was never executed. A new order was taken, and this was declared abandoned. The affidavit was, therefore, true in all respects without mention of the first order. The judgment was obtained in Westchester •county. The execution was issued in Kings county, and returned unsatisfied. The defendant resided there. The affidavit states that the judgment-roll was filed in Westchester county, and that a transcript was duly filed and the judgment duly docketed in Kings county before the execution was issued. There is no force in the objection that the affidavit is fatally defective in not averring a docket of the judgment in Kings county. The plaintiff filed his judgment-roll, and the clerk of Westchester must be presumed to have done his duty and docketed the same. The transcript is directly based on the docketed judgment and not on the filed judgment-roll.
The order should, therefore, be affirmed, with costs and disbursements.
All concur.