Hyperlawhypertext legal database Rallings v. Pitman 49 N.Y. Super. Ct. 307

← Cases

Rallings v. Pitman

49 N.Y. Super. Ct. 307 17 Jones & S. 307 Court N.Y. Super. Ct. Decision date 1883-06-02 English

Contents

Majority

p. 307
ELIZA RALLINGS, Appellant, v. THOMAS W. PITMAN, Respondent.

Headnote

Supplementary proceedings—second order—jurisdiction. An affidavit for an order in supplementary proceedings for the examination of a judgment debtor, which, in addition to the usual allegations, states “ that the defendant hath been, at divers times heretofore, examined under orders supplementary, previously granted, and no property discovered, but that since the last examination the defendant hath become possessed of certain personal property ”—while it states enough to give jurisdiction to the judge to whom the application is made, does not show sufficient reason for the granting of the order for further examination.
Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
Decided June 2, 1883.
Appeal by plaintiff from order vacating an order for examination of defendant supplementary to execution. The facts appear in the opinion.
Henry H. Morange, for appellant.
Richard M. Bruno, for respondent.
—The affidavits upon which the second application is based should show grounds for the examination, such as subsequently acquired property, or the like (Canavan v. McAndrew, 20 Hun, 46 ). The affidavit must disclose the previous examination, and show some reason for the second examination, upon which the court may exercise its discretion with respect to granting the order (Grocer’s Bank v. Bayand, 10 Week. Dig. 124). After one examination, no further order should be made, unless the affidavits show that the debtor has subsequently acquired property, etc. (Carter v. Clarke, 7 Rob. 43 ; Jurgensen v. Hamilton, 5 Abb. N. C. 149 ; Hamilton v. Morange, 2 Law Bul. 58; Irwin v. Chambers, 40 Super. Ct. 432.
p. 308
Unless the facts necessary to bring the - case within the section are proved, the judge has no jurisdiction ; the mere appearance, etc., does not confer jurisdiction (Sackett v. Newton, 10 Hun, 560 ; Carter v. Clarke, 7 Rob. 490 ; De Comeau v. People, Id. 498 ).

—The judge below had jurisdiction of the matter, and it was probably by inadvertence that the order contained the clause that it was granted because the affidavit on which the order for examination was made was insufficient to confer jurisdiction. It is clear that the affidavit did not, under the precedents, state sufficient to give the plaintiff a right to an order of examination. It showed that the plaintiff, had divers times used the right of examination,, under the Code, in averring “that the defendant has been divers times heretofore examined under orders supplementary previously granted.” It was therefore necessary to show, under the cases, a special reason for another examination. On this point no more was averred than “ that since last examination the defendant hath become possessed of certain personal property.” It does not state what the property referred to is; whether it remains in possession of defendant, or whether it may be applied to the payment of the judgment. Nor does it state anything that would make an examination into the existence of such * facts proper or useful for plaintiff. What is said must be true of any judgment debtor who has been examined, under any circumstances, and within a very brief time after the examination.

As the statement in the order appealed from was incorrect as to the jurisdiction, and it is now sustained on the merits, it is affirmed without costs to either party.

Cases cited