Driggs v. Williams

15 Abb. Pr. 477

Opinion

Clerke,

J.—It has been generally, and I think correctly, held that an order for the examination of a judgment-debtor is not a mere process like the execution to enforce satisfaction of the judgment. It is not based upon the judgment alone but on a presentation of new facts which the plaintiff must prove to entitle him to the relief he seeks. It is, in short, in all respects, a substitute for a creditor’s bill, and is, in all its essential features, equivalent to a new suit.

If, then, the institution of a new suit (a creditor’s bill), would stop the operation of the statute presuming payment of a judgment at the expiration of twenty years, this proceeding, by a parity of reasoning, produces the same effect. The order in this case was issued and served before the expiration of that period, and, consequently, the presumption of payment cannot be entertained. The defendant must submit to an examination. The plaintiff’s affidavits undoubtedly contain impertinent matter which must be expunged. Indeed, as it is not necessary to consider the question for which the respective affidavits were presented, both parties are at liberty to withdraw them ; otherwise the objectionable matter in plaintiff’s affidavits must be expunged.

Motion denied.