Levy v. Beacham — 46 N.Y. St. Rep. 51

Majority

p. 51

Aaron Levy, Resp’t, v. John Beacham, App’lt.

(Supreme Court, General Term, First Department,

Filed April 14, 1892.)

Headnote

Supplementary proceedings—Examination before return of execution. j

An order to examine a judgment debtor before return of execution in

p. 52

aid thereof cannot he granted in the absence of proof that a demand for the application of property to the payment of the judgment has been made.

Appeal from order denying motion to set aside for the examination of defendant as a judgment debtor in aid of execution.

P. P. Eckerson, for app’lt; J. Goldman, for resp’t.

Without disposing of the other questions raised upon this appeal as to the sufficiency of the affidavit, there is one respect in which it appears to be fatally defective and to require a reversal of the order.

Section 2436 of the Code requires that in order to. obtain an order requiring the judgment debtor to be examined concerning his property in aid of the execution the judgment creditor must prove to the court that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment Such proof must show that a demand of the application of the property to the payment of the judgment has been made, otherwise no refusal can be established. This is the rule which has been laid down in the case of the First National Bank v. Wilson, 13 Hun, 232 , and Hutson v. Weld, 38 id., 142.

The order should be reversed and the order for the examination dismissed, with costs.

Yak Brunt, P. J., O’Brien and Andrews, JJ., concur.