Alexander v. Richardson

7 Rob. 63

• Court: The Superior Court of New York City
• Decided: February 15, 1868
• Status: Published

Opinion

Jones, J.

The power given by section 297 of the Code, to order a third person indebted to a judgment debtor to pay to the judgment creditor so much of such indebtedness, as shall be sufficient to satisfy the judgment creditor’s claim, is one which should be exercised with great caution. It should never be exercised where the amount of the indebtedness due from the third person is either disputed or uncertain ; or where there is any doubt as to the pecuniary ability of the third person to make present payment.

In the present case, the same witness, (the judgment debtor,) who shows the indebtedness of the third person also shows the inability of that person to make payment.

It is true a subsequent affidavit of the judgment debtor, casts considerable suspicion upon his previous testimony as to the ability of the third person, but then that affidavit, together with his examination, renders it very uncertain whether $500, $200, or $30 be due from the third person.

Under these circumstances, I think neither the amount of the indebtedness, nor the ability of the third person to. pay, is sufficiently apparent to justify the making of the order in question. The proper course is to have a receiver appointed.

The motion must be denied, without costs.