Barrington v. Watkins

| N.Y. App. Div. | Jul 1, 1898

Ingraham, J.:

This motion was made on an order to show cause to vacate an order for the examination of a judgment -debtor in a proceeding supplementary to execution. Annexed to this order to'show cause was what purported to be the copy of the order for the examination and the affidavit upon which it had been granted which had been served' upon the judgment debtor. Upon the return of this order to show cause, it appeared that the copy- of the affidavit served was incorrect in some particulars,.'but that the original affidavit upon which the order had been granted justified an order for the examination of the judgment debtor. The order, therefore, had been properly granted, and the court would not have been justified in vacating it, and as the only relief asked for in the order to show cause was the vacation of the order, the motion on the ground of .the irregularity specified in the affidavit was properly denied.

The order granted was also objected to upon the ground that it was made returnable at a Special Term of the court. The order requires the judgment debtor to appear before the judge signing it, or one of the justices of the court at a Special Term thereof, to be held at Part 2 thereof, at the county court house in the city of New York. The debtor was required to appear before a justice of the court, and thé place at which he was required to. appear was. Special Term, Part 2, designated in the order. There was nothing irregular in this provision. The order expressly specified the time and place at which the judgment debtor was required to attend, viz., on June twenty-eighth át Üaíf-past ten o’clock in the forenoon, at Part 2 of the Special-Term of the Supreme Court, before the justice signing the order, or one of the justices of the court, and the objection that in the copy served the year was not inserted is frivolous. The order was granted on June 23,1898, and required the judgment debtor to appear on June twenty-eighth, and the omission in the copy served of the year in which the judgment debtor was to appear could not have caused the judgment debtor any embarrassment. If the judgment debtor had been willing to take the risk of the proceeding he could have stayed away, and upon an application to punish him for contempt, the validity of his objections to the copy of the order or affidavit served upon him would have been considered ; but none of the grounds assigned was a reason for vacating the order which was properly granted upon a proper affidavit.

The order appealed from is affirmed, with ten dollars costs and disbursements.

Van Brdnt, P. J., Barrett, Patterson and McLaughlin, JJ.,. concurred.

. Order affirmed, with ten dollars costs and disbursements.