Matthews v. Hendry

32 A.D. 22

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

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) and Franey v. Smith (88 id. 215) 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 únder the old Code, are, therefore, not in point.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, all to be applied on plaintiff’s judgment.

All concurred.

Order reversed, with ten • dollars costs and disbursements, and motion granted, with ten dollars costs, all to be applied on plaintiff’s judgment.