Opinion
April, 1909.
Harold K. Straus, for plaintiff.
Abraham Rosenstein, for defendant.
This is an application to punish a judgment debtor as for a contempt in failing to appear upon the return day, December 29, 1908, of an order for his examination in proceedings supplementary to execution. The affidavit for his examination states among other facts that an execution was "on the 19th day of October, 1908, duly issued out of the Supreme Court, which is a court of record, by the clerk thereof, to the Sheriff of the County New York, where such judgment debtor, at the time of the commencement of this special proceeding, then resided and still resides." It was sworn to and the order granted thereon was served on the 19th day of December, 1908. The judgment creditor bases his right to maintain this proceeding upon the above allegations of residence of the judgment debtor. It is apparent that the residence of the judgment debtor at the time of the issuance of the execution is not set forth, and that he may have resided without the State or in some other county in the State, on October 19, 1908. The court has been referred to the case of Schenck v. Irwin, 60 Hun, 361, followed by Matter of Gagnon, 32 A.D. 22. In the former case the execution had been issued to Steuben county, where the judgment debtor then resided, but before the proceedings were commenced he had taken a residence in Chemung county. The affidavit in that case set forth the issuing of an execution to Steuben county. The court held that the execution should have been issued to Chemung county, "where the judgment debtor then, presently, resided." Dwight, P.J., said (p. 363): "But we wish to put our conclusion of the want of jurisdiction in the county judge in this case more distinctly upon the ground that the proofs showed that the execution, which was alleged as the basis of the proceeding, was not issued to the county where the judgment debtor resided when the proceeding was commenced." It follows, therefore, as the proceeding is based upon the residence of the judgment debtor, the execution must have issued to the county where he resided at the time of the commencement of the proceeding. A further question to be determined is whether or not the execution must have issued to the sheriff of the county where the judgment debtor resided at the time of its issuance. The Code of Civil Procedure (§ 2458) limits the right to maintain these special proceedings. To obtain an order it must be shown that an execution has issued as therein provided. See Code Civ. Pro., §§ 2435, 2436, 2441. The execution precedes the order. Subdivision 2 reads: "2. If the judgment debtor is then a resident of the state, to the sheriff of the county where he resides." Thus it appears, where a judgment creditor bases his right under said subdivision, an execution must have been issued to the county where he then resided and been returned, as provided in either section 2435, 2436 or 2441 of the Code. The reason that an execution should issue to the county of his residence is to satisfy the judgment by execution before resorting to these proceedings. Naturally the execution would more likely be satisfied in the county where he resided than in any other county of the State. Possibly an execution could be satisfied by issuing it to the county where the judgment debtor at the time of the commencement of the special proceedings had a place for the regular transaction of business in person, and, therefore, the Legislature has wisely made such a provision. § 2458, subd. 1. As the original affidavit upon which these proceedings were instituted failed to show where the judgment debtor resided at the time of the issuing of the execution, this court had no authority to grant the order of December 19, 1908, and the motion to punish the judgment debtor as for a contempt in failing to appear and make discovery on oath concerning his property must fall. The court is without jurisdiction to punish the judgment debtor as for a contempt in proceedings supplementary to execution. See also Matter of Landis Machine Co. v. Willchinski, 63 Misc. 24.
Motion denied.