Manken v. Pape

65 How. Pr. 453 | New York City Court | 1883

McAdam, J.

— An affidavit to obtain an order for the examination of a judgment-debtor in aid of execution, which states as a ground for such examination “ that as deponent is informed and believes the said defendant has property which he unjustly refuses to apply towards the satisfaction of the judgment,” is insufficient to warrant the order, for the reasons:

1. The affiant fails to give the name of the informant with his means of knowledge, so that the court may determine whether the information is entitled to credit as proof.

2. The character of the property is not described. This is an important omission, because the examination of a debtor before the return of an execution can only be had where the property which he refuses to apply is concealed or is not subject to levy (10 How. Pr., 560).

3. It is defective because the affidavit does not allege a demand (13 Hun, 232).

In short the affidavit should show facts and cirenmstances, in order that the judge may decide whether there has been an unjust refusal (13 Hun, supra). The plaintiffs have not made out a case entitling them to the order (17 How. Pr., 512), which will be vacated, wi'th ten dollars costs to be credited on the judgment.