Marshall v. Link — 36 N.Y. St. Rep. 60

Majority

p. 60

Matthew Marshall, Resp’t, v. Daniel H. Link, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 18, 1891.)

Headnote

1. Supplementary proceedings—Second obdeb.

The principle that a second order of examination in supplementary proceedings shall not be granted unless good reason therefor he shown is not jurisdictional and the matter rests in discretion.

p. 61

2. Same.

Upon application to vacate a second ordet it is therefore proper for plaintiff to show, if he can, more strongly than upon the exparte application, that the proceeding is not taken to harass the defendant, hut to reach subsequently acquired property.

Appeal from an order refusing to set aside an order for a second examination of defendant in supplementary proceedings.

Cady & Hoysradt, for app’lt; F. F. McCormick (L. Boyce Til- den, of counsel), for resp’t.

The principle that a second order for examination in proceedings supplementary shall not be granted unless good reason therefor be shown is not jurisdictional It is only to prevent the unreasonable harassing of a defendant.

Therefore on the motion to set aside the second order in this case it was not improper for the plaintiff to show more strongly than had appeared on the exparte application that the proceeding was not taken to harass the defendant, but with good reason, and to reach property which had come to the defendant since the prior examination.

The jurisdictional facts in these applications under § 2486 are the recovery of the judgment and the issue and return of the execution.

On the hearing of the motion to vacate the second order for examination the learned judge could decide whether the application for that order had been made in good faith or with evil intent; and he could grant or refuse the motion as he thought best.

We see no ground to interfere with his discretion. The first order and examination discovered a sum of $241.95 payable to defendant, but which the court decided could not he reached by those proceedings. The sum was in the hands of the county treasurer. Afterwards it was paid to defendant. And this second order was obtained, as it se'ems, in order to reach that money which had thus come into {he actual possession and ownership of the defendant. We think the order was properly granted and that the refusal to vacate it was right.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.