Leonard v. Bowman — 40 N.Y. St. Rep. 135

Majority

p. 135

Charles P. Leonard, App’lt, v. James P. Bowman and Edward J. Boshart, Def’ts.

(Supreme Court, General Term, Fourth Department,

Filed October 3, 1891.)

Headnote

Supplementary proceedings—Affidavit fob third party order.

An affidavit for a third party order, under § 3441 of the Code, which states that the execution was issued to a county where the judgment debtor then resided, and yet resides or has * * * an office for the regular transaction of business, and on information and belief that the third person has property of the judgment debtor exceeding ten dollars in value, or is indebted to him in such sum, is defective in making the statements in the alternative and in failing to state the sources of information and grounds of belief and is insufficient to support the proceeding.

Appeal from an order made at Oswego special term, vacating an order for the examination of a third party, in supplemental proceedings, under § 2441, Code of Civil Procedure.

The affidavit, among other things, stated that execution was issued to the sheriff of Lewis county, “where the judgment debtor then resided and yet resides, or has at the time of the commencement of these proceedings an office for the regular transaction of business in person.” And upon information and belief that the third person “has personal property of the judgment debtor exceeding ten dollars in value, or is indebted to him in such sum of ten dollars.”

It is claimed the affidavit was defective in making the foregoing statements in the alternative, and in failing to state the sources of affiant’s information and the grounds of his belief as to property or indebtedness.

Merrell, Ryel & Merrell, for app’lt; E. J. Boshart, for resp’ts.

In Arnot v. Wright, 55 Hun, 561 ; 29 N. Y. State Rep., 425, this court held that such a statement as to the county to which the execution was issued was defective and rendered the affidavit insufficient to support the proceeding.

In Lee v. Heirberger, 1 Code R, 38, it was held, under a statute substantially like the present, that such a statement as to property or indebtedness was defective, and rendered the affidavit insufficient to support the proceeding. The same thing was held by the general term, first department, in Collins v. Beebee, 7 N. Y. Sup., 442; 27 N. Y. State Rep., 4, a case under the provision of the Code now in force. The latter two cases were cited and approved by this court in Arnot v. Wright, above cited.

In Miller v. Adams, 52 N. Y, 409 , cited by appellant’s counsel,, the question as to the alternative form of statement was not considered. The question raised was as to the sufficiency of the-statement of facts on information and belief. That was an attachment case. In People v. Recorder of Albany, 6 Hill, 429 , also cited, an application was made for a warrant under the non-imprisonment act, and the statement as to property was in the alternative. This statement was held defective because in the alternative, and no reason was shown why the affiant could not be more definite. In Van Alystne v. Erwine, 11 N. Y, 331 , also cited, an application was made for an attachment. The statements were in the alternative as to departure from the state or keeping concealed therein, and as to intent, and it was held in an action brought by trustees claiming under the attachment proceeding, that the affidavit was sufficient to confer jurisdiction to grant the attachment and appoint the trustees. That case is clearly distinguishable-from the present one, as appears from the following brief extract from the opinion of the court: “The remedy is precisely the same-whether the debtor had absconded or was concealed. A case may be so circumstanced that although it may be conclusively shown that the debtor has left his place of business-in order to defraud his creditors by depriving them of their remedies, yet it may be impossible even to conjecture whether he has continued his flight beyond the boundaries of the state, or has resorted to some place of concealment in it. The same considerations apply to the alternative as to the debtor’s intent. This affidavit discloses such a case in the present instance. If such an objection is well founded, there could be no proceeding under this statute in a case thus-circumstanced. The debtor would only have so to conduct his evasion as to make it uncertain which course he had adopted, and he would avoid this remedy. I do not think the statute requires such a construction. The case cited by defendant’s counsel, 6 Hill, above, implies that where the circumstances are such that it is doubtful in what particular the defendant’s conduct' has brought him within the statute, the creditor has only to state all the facts without electing which aspect he inll adopt” Precisely that course was adopted here.

In that case it appears, in addition to the formal affidavit in which these alternative statements were made, there were other affidavits in which circumstances were disclosed, as a basis upon.

p. 137

which the formal affidavit was founded. In the case we are considering it does not appear there was uncertainty as to the residence of the judgment debtor, and it could not well be doubtful whether he had in the county an office for the regular transaction of business in person. It does not appear there was uncertainty whether the third person had property or owed a debt to the judgment debtor. These latter statements were made on information and belief. It does not appear what the nature of the information was, or whether it left any doubt or uncertainty upon the mind of the affiant as to which alternative was the true one.

We think the affidavit in this case was clearly insufficient to support the supplemental proceeding, and that the order made by the court below was correct and should be affirmed, with costs and disbursements of appeal.

Hardin, P. J., and Merwin, J., concur.