Beardsley v. Stone Valley Distilling Co. ( 1910 )

BIJUR, J.

The order for the examination of the judgment debtor was granted on an affidavit of one Lewis, who avers that he is an “attorney associated with” the attorneys for the plaintiff judgment creditor.

The judgment creditor is the only person who, under sections 2435 and 2436 of the Code, is entitled to the order ; and the affidavit, if made by a person other than himself, must show authority to act, unless it be made by his attorney, in which case authority will be presumed. Citing Miller v. Adams, 52 N. Y. 409; Title Guarantee & Trust Co. v. Brown, 121 N. Y. Supp. 891. ■ In the latter case, the affiant recited that he was “an attorney connected with the office of” the attorney of the plaintiff, and the affidavit was held insufficient.

The subsequent approval or adoption by the judgment creditor is ineffective, since the question is as to the authority of the judge who made the order when the papers first came before h'im. Brown v. Walker, 54 Hun, 639, 8 N. Y. Supp. 59, affirmed 121 N. Y. 717, 24 N. E. 1101.

The order appealed from should be reversed, with $10 costs and disbursements, and' order for examination vacated. All concur.