First National Bank v. Wilson

New York Supreme Court

First National Bank v. Wilson

20 N.Y. Sup. Ct. 232

DecidedJanuary 15, 1878

StatusPublished

This text of 20 N.Y. Sup. Ct. 232 (First National Bank v. Wilson) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First National Bank v. Wilson, 20 N.Y. Sup. Ct. 232 (N.Y. Super. Ct. 1878).

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Opinion

Smith, J.:

The principal point made by the appellant’s counsel is, that the affidavit presented to the county judge was not sufficient to give him jurisdiction, inasmuch as it did not state that a demand had been made of the debtor to apply this property to the satisfaction of the judgment. The language of the affidavit, on that subject, is a transcript of the statute. It states a conclusion merely, and not [233]*233facts. ¥e are of the opinion that in proceedings under this statute, the proof made on the application for the order, should show facts and circumstances, in order that the judge may decide whether there has been an unjust refusal, although, doubtless, the practice has been otherwise, to a large extent. The defect, however, is not jurisdictional. The averment, in the language of the statute, is enough to give jurisdiction. The defect is an irregularity which may be waived or amended. In this ease it was amended by the affidavits read on the part of the respondent in opposition to the motion. Those affidavits allege a demand and refusal. That, we think, is enough, in view of the liberal construction required to be given to the provisions of the Code. (§ 461.)

The point is made that a copy of the affidavit was not served with the order. The Code does not require a copy to be served. An affidavit need not be made. The proof may be by affidavit, or otherwise. (Code, § 292.)

The order should be affirmed, with ten dollars costs and disbursements.

Mullin, P. J., and Talcott, J., concurred.

Order affirmed, with costs, etc.

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Smith, J.:

The principal point made by the appellant’s counsel is, that the affidavit presented to the county judge was not sufficient to give him jurisdiction, inasmuch as it did not state that a demand had been made of the debtor to apply this property to the satisfaction of the judgment. The language of the affidavit, on that subject, is a transcript of the statute. It states a conclusion merely, and not [233]*233facts. ¥e are of the opinion that in proceedings under this statute, the proof made on the application for the order, should show facts and circumstances, in order that the judge may decide whether there has been an unjust refusal, although, doubtless, the practice has been otherwise, to a large extent. The defect, however, is not jurisdictional. The averment, in the language of the statute, is enough to give jurisdiction. The defect is an irregularity which may be waived or amended. In this ease it was amended by the affidavits read on the part of the respondent in opposition to the motion. Those affidavits allege a demand and refusal. That, we think, is enough, in view of the liberal construction required to be given to the provisions of the Code. (§ 461.)

The point is made that a copy of the affidavit was not served with the order. The Code does not require a copy to be served. An affidavit need not be made. The proof may be by affidavit, or otherwise. (Code, § 292.)

The order should be affirmed, with ten dollars costs and disbursements.

Mullin, P. J., and Talcott, J., concurred.

Order affirmed, with costs, etc.

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20 N.Y. Sup. Ct. 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-wilson-nysupct-1878.