124 N.Y.S. 449 | N.Y. App. Div. | 1910
The papers on which the order for the examination of Ward was made were sufficient to entitle the judgment creditor to the order, which was duly made on an ex parte application. The moving papers on the application to vacate the order show that Ward denies that he has any property of the judgment debtor, and that the theory upon which it is claimed by the judgment creditor that he has such property is that he and the judgment debtor were formerly copartners in business, and that on the 24th day of October, 1907, the judgment debtor formally consented in writing to a dissolution of the firm and formally assigned his interest therein to Ward on
The mere fact that a third party, whose examination is ordered pursuant to the provisions of section 2441 of the Code of Civil Procedure, claims that he has no property of the judgment debtor, or that he is the owner of the property which it is claimed belongs to the judgment debtor, and that in consequence the judge- cannot in any event order the property delivered to the sheriff or to a receiver to be applied on the judgment, does not deprive the judgment creditor of the right to continue the examination. (3 Rumsey Pr. [2d ed.] 517, 562; Rid. & Bull. Supp. Proc. [3d ed.] 166, 169; Matter of De Leon, 63 App. Div. 41.) The case of Tompkins County Bank v. Trapp (21 How. Pr. 17) to the contrary must be deemed o verruled and no longer authority! By the provisions of sections 2432, 2434, 2435 and 2436 of the Code of Civil Procedure the Legislature has conferred authority upon the judge to order a judgment debtor “ to attend and be examined concerning his property ” after the issuance, and either before or after the return of execution on the judgment as therein provided, and said section 2432. and section 2441 of the Code of Civil Procedure authorize the judge after the issuance. and either before or after the- return of execution on satisfactory proof that “ any person or corporation has personal property of the judgment- debtor, exceeding ten dollars in value, or is. indebted to him in a sum exceeding ten dollars ” to make an
In the case at bar, however, there appears to have been no necessity for the third party order. Before it was obtained the judgment debtor had been fully examined before a referee with respect to the copartnership dissolution agreement and the assignment of his interest in the firm and in its property to Ward and a subpoena duees
For these reasons, therefore, the order should be affirmed, but, since the question was not authoritatively settled, without costs.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Order affirmed, without costs.