8 N.Y.S. 59 | N.Y. Sup. Ct. | 1889
In this action the county judge granted an order for examination of defendant in proceeding supplementary. This order he after-wards set aside on motion. The plaintiffs appeal. The ground on which he set it aside was that the affidavit was defective, in failing to show that it was made by authority of the plaintiffs or of a judgment creditor. The affidavit is made by John H. Benedict. It sufficiently states the recovery of judgment, and the filing of a transcript, and issue and return of an execution, and that Jesse Stiles, plaintiff’s attorney, is authorized by plaintiff to commence these proceedings. On the affidavit in the printed papers there appears an indorsement which contains the name, “Jesse Stiles, Attorney.” But the opinion of the county judge states that this was not on the affidavit when presented. In the case of Miller v. Adams, 52 N. Y. 415, the affidavit was made by one who described himself as attorney for the plaintiff. So, it would seem, must have been the case in Kress v. Morehead, 8 N. Y. St. Rep. 858. The question here is whether it should not appear by the affidavit that the proceeding is taken by the owner of the judgment. An attorney is an officer of the court, and, when he makes an application describing himself as the attorney for a party, his- authority is assumed. But here there is no evidence, even presumptive, that the owner of the judgment authorized the proceeding. Mr. Benedict is not the attorney for the. plaintiff; for he says that Mr. Stiles is, and is authorized to commence the proceedings. It may be that Mr. Stiles afterwards, by indorsing his name, adopted the act of Mr. Benedict. But the question is, rather, what was the county judge authorized to do when the papers first came before him? And, as it is the judgment creditor, and not any other person, who is entitled to the order, we think the county judge was right in holding that it should in some way appear that the application is made by him.
