Burke v. Burke

58 N.Y.S. 676 | N.Y. Sup. Ct. | 1899

Gildersleeve, J.

The defendant in this action, William Y. Burke, obtained a judgment for costs against the plaintiff herein, Mary 0. Burke. The plaintiff failed to pay said judgment, and the defendant obtained an order for her examination in supplementary proceedings. This motion is made to set aside the order on the grounds (1) that such proceedings cannot be maintained where the judgment is for costs only, and, (2) because the plaintiff is a school teacher in one of the public schoolsAf this city, but-resides in Mount Vernon, Westchester county, and the execution on the judgment was issued to the sheriff of Mew York county. The first point is without merit. Proceedings supplementary to an execution may be taken upon a judgment for costs only, rendered against a plaintiff. See Davis v. Herrig, 65 How. Pr. 290; Matter of Sirrett, 25 Misc. Rep. 89. Mor is the second point well taken. Section 2458 of the Code, subdivision 1, provides that “ execution must have been issued out of a court of record. (1.) To the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceeding, a place for the regular transaction of business in person,” .etc. It does not .use the word “-office,” but says “place.” Mow, the plaintiff attends regularly to her duties as school teacher in this city, and she has a “ place for the regular transaction of business in person ” in this county, i. e., the school-house where she is employed. It seems to me that the requirement of the statute above quoted has been met. I do not see any application in the case of Belknap v. Hasbrouck, 13 Abb. Pr. 418, and Bowman v. Pernie, 23 Abb. N. C. 236, cited by plaintiff’s counsel. The motion must be denied, but without costs.

Motion denied, without costs.