Levy v. Beacham — 71 N.Y. Sup. Ct. 62

Majority

p. 62

AARON LEVY, Respondent, v. JOHN BEACHAM, Appellant.

Headnote

Supplementa/ry proceedings — examination before the return of an execution — the affidavit must show a demand upon the debtor.

Under section 2436 of the Code of Civil Procedure, providing that, in order to obtain an order requiring a judgment-debtor to be examined concerning his property in aid of an execution, the judgment-creditor must prove that the debtor has property which he unjustly refused to apply towards the satisfaction of the judgment, the affidavit upon which such an order is granted must state that a demand, that such an application be made, has been made upon the judgment-debtor, and in default thereof the affidavit is fatally defective.

Appeal by tlie defendant John Beacham from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 18th day of March, 1892, denying a motion to vacate au order in supplementary proceedings.

The affidavit upon which the order was granted failed to show that a demand had been made upon the defendant that he apply his property towards the satisfaction of the judgment.

P. Q. Eckerson, for the appellant.

J. Goldman, for the respondent.

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).

p. 63

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

Present — Yan Brunt, P. J., O’Brien and Andrews, JJ.

Order reversed and order for the examination dismissed, with costs.