Losee v. Allen

City of New York Municipal Court

Losee v. Allen

17 Misc. 275, 40 N.Y.S. 349

CourtCity of New York Municipal Court

DecidedJune 15, 1896

StatusPublished

Cited by3 cases

This text of 17 Misc. 275 (Losee v. Allen) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Losee v. Allen, 17 Misc. 275, 40 N.Y.S. 349 (N.Y. Super. Ct. 1896).

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Opinion

Van Wyck, Oh. J.

. The record shows that prior to the obtaining of the second order for judgment debtor’s examination he had been fully examined in supplementary proceedings and a receiver of his property duly appointed. The rule of practice is, that where a debtor, has once been fully examined in supplementary proceedings a second order for his examination will not be granted, except upon proof that he has since acquired property, or that an alias execution has been issued or returned unsatisfied. The only proof shown by the record in this regard is, that on the previous examination. “ certain outstanding contracts and subscriptions due to a certain publication in which the judgment debtor was interested were discovered; that deponent (plaintiff's attorney) has reason to believe that moneys have come into the hands of said judgment debtor since said examination on account of said contracts, and subscriptions.” The affiant should have stated what publication defendant was interested in and what was his alleged interest and the facts which induced affiant to believe that moneys had come into defendant’s hands, so that the judge might find that such reasons existed as to justify affiant in believing, etc., and whether defendant had any interest, and if so, what interest. Whatever interest the defendant might have was certainly discovered on his first examination, and that interest, whatever it was, had then passed to his receiver. If the affiant had any reason to believe, etc., he should state it and not hold it in his mind alone. If this averment of' reason to believe is sufficient to justify the granting of a second order for a debtor’s. examination, it can be. repeated ad libitum, and so often as repeated orders for his examination will be granted. The order denying motion to.vacate reversed, with costs, and orig-ihal motion granted.

Conlan, J., concurs.

Order reversed, with costs, and motion granted.

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Van Wyck, Oh. J.

. The record shows that prior to the obtaining of the second order for judgment debtor’s examination he had been fully examined in supplementary proceedings and a receiver of his property duly appointed. The rule of practice is, that where a debtor, has once been fully examined in supplementary proceedings a second order for his examination will not be granted, except upon proof that he has since acquired property, or that an alias execution has been issued or returned unsatisfied. The only proof shown by the record in this regard is, that on the previous examination. “ certain outstanding contracts and subscriptions due to a certain publication in which the judgment debtor was interested were discovered; that deponent (plaintiff's attorney) has reason to believe that moneys have come into the hands of said judgment debtor since said examination on account of said contracts, and subscriptions.” The affiant should have stated what publication defendant was interested in and what was his alleged interest and the facts which induced affiant to believe that moneys had come into defendant’s hands, so that the judge might find that such reasons existed as to justify affiant in believing, etc., and whether defendant had any interest, and if so, what interest. Whatever interest the defendant might have was certainly discovered on his first examination, and that interest, whatever it was, had then passed to his receiver. If the affiant had any reason to believe, etc., he should state it and not hold it in his mind alone. If this averment of' reason to believe is sufficient to justify the granting of a second order for a debtor’s. examination, it can be. repeated ad libitum, and so often as repeated orders for his examination will be granted. The order denying motion to.vacate reversed, with costs, and orig-ihal motion granted.

Conlan, J., concurs.

Order reversed, with costs, and motion granted.

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17 Misc. 275, 40 N.Y.S. 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/losee-v-allen-nynyccityct-1896.

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