Schermerhorn v. Owens , 62 N.Y.S. 763 ( 1899 )

Dunmoke, J.

The only facts set forth in the affidavit upon which the order for a second examination of the judgment debtors herein was granted were the following:

“ Deponent further says that he is informed and verily believes that said judgment debtors were examined under this judgment in supplementary proceedings in 1891, but that since that time they have acquired and owned property which could not be reached by said former order and which should have been applied to the payment of the judgment above referred to. That said former proceeding has been abandoned.”

It seems to be a well-settled rule that ivhere a debtor has once been fully examined in supplementary proceedings a second order for his examination will not be granted, except upon proof that he has since acquired property, or that an alias execution has been issued or returned unsatisfied. Losee v. Allen, 17 Misc. Rep. 275; Canavan v. McAndrew, 20 Hun, 46; Grocers’ Bank v. Bayaud, 21 id. 203.

Defendants’ counsel contends that whether the judgment creditor is entitled to a second examination is a question of discretion, to be exercised by the judge granting the order, and cites Bean v. Tonnelle, 24 Hun, 353. That case simply holds that a failure to show that no previous application for the order had been made to any court or judge, as required by rule 25, was not such an irregularity as required the court to vacate the order. There was no claim that a previous examination had been made in that case. That case has no application to the rule invoked here. The judge has no jurisdiction to grant the second order unless the affidavit alleges sufficient reasons therefor. When sufficient facts are alleged to give the judge jurisdiction, then it may very properly be said that it rests in his sound discretion as to whether, upon those facts, the judgment creditor ought to have a further or second examination of his judgment debtor. It is only to that extent that the question is discretionary.

In this case the facts stated are upon information and belief and do not state the sources of information or the grounds of belief. Such an affidavit is irregular and insufficient. This is a general rule pertaining to all affidavits upon which it is sought to obtain attachments, injunctions and other important orders, and is applicable to proceedings supplementary to execution. Matter of Parrish, 28 App. Div. 22; Ammon v. Kellar, 21 Misc. Rep. 442; Mowry v. Sanborn, 65 N. Y. 581 (584).

For the foregoing reasons I do not think the affidavit upon which the order was granted was sufficient.

The motion must, therefore, be granted, with ten dollars costs.

Motion granted, with ten dollars costs.