Marshall v. Link

13 N.Y.S. 224, 36 N.Y. St. Rep. 60, 1891 N.Y. Misc. LEXIS 1045

• Court: New York Supreme Court
• Decided: February 18, 1891
• Status: Published

Opinion

Learned, P. J

The principle that a second order for examination in proceedings supplementary shall not be granted, unless good reason therefor be shown, is not jurisdictional. ■ It is only to prevent the unreasonable harassing of a defendant. Therefore, on the motion to set aside the second order-in this case, it was not improper for the plaintiff to show more strongly than-had appeared on the ex parte application that the proceeding was not taken to harass the defendant, but with good reason, and to reach property which had come to the defendant since the prior examination. The jurisdictional factsA in these applications, under section 2435, Code Civil Proc., are the recovery 1 of the judgment, and the issue and return of the execution. On the hearing: | of the motion to vacate the second order for examination, the learned justice could decide whether the application for that order had been made in good faith or with evil intent, and he could grant or refuse the motion, as he thought best. We see no ground to interfere with his discretion. The first order and examination discovered a sum of $241.95 payable to defendant, but which the court decided could not be reached by those proceedings. The sum was in the hands of the county treasurer. Afterwards it was paid to the defendant. And this second order was obtained, as it seems, in order to reach that money which had thus come into the actual possession and ownership of the defendant. We think the order was properly granted, and that the refusal to vacate it was right. Order affirmed, with $10 costs and printing disbursements. All concur. .