Martz v. Cohen

145 Misc. 284, 259 N.Y.S. 302, 1931 N.Y. Misc. LEXIS 1020

Opinion

Ryan, J.

Motion to vacate order in supplementary proceedings, dated October 1, 1931, and all proceedings and orders based thereon, is granted. The order is jurisdietionally defective in that the affidavit upon which it is based fails to allege, as required by section 780 of the Civil Practice Act, that the debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, (Matter of Smith v. Haverty’s Stables, 157 App. Div. 777.) Nor is there allegation that any demand for the application of his property was made upon the debtor, (Friedlander v. Lehman, 101 N. Y. Supp. 252.) The order also improperly required the debtor to appear for examination in a county other than the one in which he resided or had a place for the transaction of business. Order filed.