Bank of Port Jefferson v. Darling

102 A.D. 431 | N.Y. App. Div. | 1905

Jenks, J.:

This is an appeal from an order denying a motion to vacate an execution issued and returned on a judgment, the affidavit and order appointing a receiver, his bond and all papers and proceedings supplementary to execution. The execution was issuable in the county of Suffolk. (Code Oiv. Proc. § 1365.) A receiver could be appointed only after making an order for examination, for there was no warrant issued in this action. (Id. § 2464.) The order for examination must be based upon the issue or return of an execution issued upon the judgment as prescribed by section 2458 of the Code of Civil Procedure. (Id. §§ 2435,2441.) The affidavit upon which the order for examination was based stated the recovery of a judgment in the Supreme Court, duly docketed in the county of Suffolk, and the issue and delivery of an execution to the sheriff of Suffolk county, “ where said judgment debtor has a place for the Tegular transaction of business, * "* * in person or by agent, as deponent is informed and believes.” This affidavit does not meet the requirements of subdivision 1 of section 2458 of the Code of Civil Procedure. The statement “ or by agent, as deponent is informed and believes,” makes possible the construction that the affiant does not depose in the terms of the subdivision at all, and moreover is an interpolation for which there seems no authority. Alternative allegations are bad. (Arnot v. Wright, 55 Hun, 561; Smith v. Cutter, 64 App. Div. 413.) This defect goes to the foundation and is fatal. (See National Bank v. Bussing, 147 N. Y. 665.) We think that in view of the laches of the defendant the execution and the return may stand, but that all other proceedings subsequent thereto must be vacated and set aside, without costs of this appeal to either party.

Hirschberg, P. J., Bartlett and Woodward, JJ., concurred; Hooker, J., not voting.

Order modified in accordance with opinion of Jenks, J., without costs of this appeal to either party.