Title Guarantee & Trust Co. v. Brown

121 N.Y.S. 891 | N.Y. App. Div. | 1910

Rich, J.:

The motion was based upon the ground that the affidavit upon which the order for examination was granted was insufficient to confer jurisdiction. The proceeding is a statutory one, and all the requirements of the statute must be complied with before jurisdiction to make the order existed. If, therefore, the affidavit was lacking in any of the details required by the statute, the appellant’s motion to vacate and set aside the order should have been granted. A judgment creditor is the only person entitled to such an order, and the affidavit, if made by a person other than himself, must show authority to act for the judgment creditor, so that the application will show upon its face that the pi’oceeding was authorized by the owner of the judgment,- unless the affidavit is inade by the attorney for a party, when authority will be presumed, (Miller v. Adams, 52 N. Y. 409.) The affidavit in the case at bar is made by Sidney A. Clarkson, who' sets forth “ that he is an attorney connected witli the office of Albert A. Hovell, the attorney for the above-named plaintiff.” Mr. Clarkson was not the attorney for the judgment creditor; kesays’that Mr. Hovell was; nó authority is shown in him to act for -the judgment creditor in making the affidavit or instituting the proceeding. The moving papers are not signed or indorsed by Mr. Hovell, and there is no evidence that the owner of the judgment authorized the proceeding. The case, is directly within the rule stated in Brown v. Walker (8 N. Y. Supp. 59; affd., without opinion, 121 N. Y. 717.)

The order appealed from must be reversed, with ten dollars costs and disbursements, and the defendant’s motion to vacate and set aside the order granted,, with costs!

Hirschberg, P. J., and Thomas, J., concurred; Woodward, J., dissented; Carr, J., taking no part. x

Order reversed, with ten dollars costs and- disbursements, and motion granted, with costs.'