Brown v. Walker — 28 N.Y. St. Rep. 36

Majority

p. 36

Jewett W. Brown et al., App’lts, v. Edgar P. Walker, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

Supplementary proceedings—Affidavit.

An affidavit to begin proceedings supplementary to execution executed by one in no way a party to the record is defective. It should appear in some way that the proceedings were authorized by the judgment creditor:

Appeal from order of the Saratoga county judge, setting aside an order to examine defendant in supplementary proceedings, and sustaining an injunction granted without security or payment of money into court, restraining the proceedings of plaintiffs to enforce their judgment.

Jesse Stiles, for app’lts; Willard J. Miner, for resp’ts.

In this action the county judge granted an order for examination of defendant in proceedings supplementary. This order he afterwards set aside on motion. The plaintiff appeals. The ground on which he set it aside was that the affidavit was defective in failing to show that it was made by authority of the plaintiff or of a judgment creditor.

The affidavit is made by John H. Benedict. It sufficiently states the recovery of judgment and the filing of a transcript and issue and return of an execution, and that Jesse Stiles, plaintiff’s attorney, is authorized by plaintiff to commence these proceedings.

On the affidavit in the printed papers there appears an endorsement which contains the name, “ Jesse Stiles, Attorney.” But the opinion of the county judge states that this was not on the affidavit when presented.

In the case of Miller v. Adams, 52 N. Y., 415 , the affidavit was made by one who described himself as attorney for the plaintiff. So it would seem must have been the case in Kress v. Morehead, 8 N. Y. State Rep., 859.

The question here is whether it should not appear by the affidavit that the proceeding is taken by the owner of the judgment. An attorney is an officer of the court, and when he makes an application describing himself as the attorney for a party his authority is assumed. But here there is no evidence, even presumptive, that the owner of the judgment authorized _ the proceeding. Mr. Benedict is not the attorney for the plaintiff, for he says that Mr. Stiles is, and is authorized to commence the

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proceedings. It may be that Mr. Stiles afterwards, by endorsing 3iis name, adopted the act of Mr. Benedict. But the question is rather what was the county judge authorized to do when the papers first came before him.

And as it is the judgment creditor and not any other person who is entitled to the order, we think the county judge was right in holding that it should in some way appear that the application is made by him.

As to the stay of proceedings there was nothing improper or invalid.

The order is affirmed with ten dollars costs and printing disbursements, such caste and disbursements to be credited on the judgment and not collected otherwise.

Landón and Putnam, JJ., concur.