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Matter of Gagnon

Appellate Division of the Supreme Court of New York, Second Department
Jun 1, 1898
32 App. Div. 22 (N.Y. App. Div. 1898)

Opinion

June Term, 1898.

M. Linn Bruce, for the appellant.

Russell Headley, for the respondents.


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 under 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.


Summaries of

Matter of Gagnon

Appellate Division of the Supreme Court of New York, Second Department
Jun 1, 1898
32 App. Div. 22 (N.Y. App. Div. 1898)
Case details for

Matter of Gagnon

Case Details

Full title:In the Matter of the Examination of GEORGE S. GAGNON, Third Person, in…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 1, 1898

Citations

32 App. Div. 22 (N.Y. App. Div. 1898)
52 N.Y.S. 309

Citing Cases

Sinnott v. First National Bank

The right of the judgment debtor to move in the proceedings is, therefore, clear. ( Matter of Gagnon, 32 App.…