In re Gagnon

52 N.Y.S. 309

Opinion

CULLEN, J.

The affidavit on which the order for the examination of the third party in proceedings supplementary to execution was granted was fatally defective, in failing to state the residence of the judgment debtor at the time of the institution of the proceeding, as required by section 2458 of the Code of Civil Procedure. On this question the cases of Schenck v. Irwin, 60 Hun, 361, 15 N. Y. Supp. 55, and Franey v. Smith, 88 Hun, 215, 34 N. Y. Supp. 780, are decisive authorities. The rule under the old Code was to the contrary, but Mr. Throop’s note to section 2458 shows that it was intended to change that rule. The cases cited by the respondents, which arose under the old Code, are therefore not in point.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, all to be applied on plaintiff's judgment. All concur.