Hersenheim v. Hooper — 8 N.Y. Super. Ct. 594

Majority

p. 594

H. Hersenheim v. Thomas Hooper and Henry Hooper.

Headnote

Under § 292 of the Code, a judgment debtor, residing out of the city and county of New York, cannot be required to appear before a judge of the Superior Court to be examined concerning his property, after the return of an execution unsatisfied, notwithstanding the judgment was recovered in that court. In such a case, the order can only be made by a county judge of the county where the

p. 595

debtor resides, after an execution has been issued to that county and returned unsatisfied; and the order must require the debtor to appear in the latter county.

Chambers, 9th October, 1852.—A judgment was recovered in this court against both defendants. Thomas resided in Kings County.; a transcript was filed and a judgment docketed in that county. An execution was issued to the sheriff of that county, and returned by him unsatisfied. On the affidavit of these facts, an order was made by a judge of this court, requiring Thomas Hooper to appear on a day named, before a judge of this court, in the city of Hew York, to make a discovery on oath concerning his property pursuant to § 292 of the Code.

Thomas Hooper now moved to vacate the order on the ground that it could be granted only by a county judge of Kings County.

C. T. Cromwell, for Thomas Hooper.

Chas. Hen. Smith, for plaintiff,

The defendant is a,resident of this state, and resided in Kings County, when the execution was issued, and the order was made. Section 292 of the Code is express, that when an execution against the property of a judgment debtor, “ issued to the sheriff of a county where he resides,” has been returned unsatisfied, the plaintiff is entitled to an order from the judge of the court, or a county judge of the county to which the execution was issued, requiring such judgment debtor to appear and answer concerning his property before such judge at a time and place specified in the order, within the coxxnty to which the execution was issued. ' .

The obvious meaning of the Code is, that a resident debtor shall be brought up for an examination only in the county in which he resides. An execution must be first issued to the county where he resides, and the order must require bim to appear at a specified time, and answer within the county to which the execution was issued.

If no judge of the court resides in the county to which the

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execution was issued, the order must be obtained from a county judge of that county. The order must require the debtor to appear before the judge by whom it is made, and at some place within the county to which the execution was issued, which must be the county where the debtor resides. It was not intended that a judge of this court should have proceedings of this kind conducted before him out of the city and county of New York.

The order, therefore, could not properly be granted by any judge except the county judge of Kings County, and so far as it relates to Thomas Hooper, must be discharged.