Solomon v. L. Rosenfeld & Co.

114 N.Y.S. 770, 1 N.Y. Civ. Proc. R., (N.S.) 4

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 5, 1909
• Status: Published

Opinion

SEABURY, J.

This is an appeal from an order denying a motion to vacate an order in supplementary proceedings for the examination of the judgment debtor, purporting to have been made under subdivision-1 of section 2458 of the Code of Civil Procedure. The affidavit, upon which the order was granted, sets forth the recovery of a judgment against the defendant, and that execution was issued on the 14th day of October, 1905, to the sheriff of New York county, “where said judgment debtor at the time had its office and place for the transaction of its business, it being a domestic corporation,” and avers “that said corporation never had any place of business outside of New York county, and has none now.”

These allegations are insufficient to confer jurisdiction upon the court to make the order for examination. Under section 2458 of the Code of Civil Procedure it must appear that the execution was issued “to the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceeding, a place for the regular transaction of business in person.” The affidavit does not comply with this provision of the statute. The allegation that on the 14th day of October, 1905, the judgment debtor had a place for the transaction of business in New York county, does not show that at the time of the commencement of this proceeding, to wit, October 26, 1908, the judgment debtor had a place for the regular transaction of business in New York county.

The order appealed from is reversed, with $10 costs, and the motion to vacate the order of examination granted, with $10 costs. All' concur.