Summary
In Lowther v. Lowther (110 App. Div. 122) prior to the examination the judgment creditor had brought an action against the third party to recover the property concerning which it was sought to examine him, and that action was pending undetermined at the time.
Summary of this case from Matter of First National Bank v. Gow. No. 1Opinion
December 30, 1905.
Max D. Steuer, for the appellant.
L.E. Warren, for the respondent.
Clarence L. Lowther obtained a judgment against Charles S. Lowther for the sum of $36,827.82, upon which execution was duly issued but returned unsatisfied, whereupon the judgment creditor presented to one of the justices of the Supreme Court an affidavit made by the plaintiff's attorney, which stated that "deponent is informed and believes that Amelia Lowther, wife of the said judgment debtor, has personal property of the said judgment debtor exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars. That the source of deponent's knowledge is the record of transfers of real property in the office of the Register of New York County and statements made by said judgment debtor under oath to the effect that he has turned over money received by him to said Amelia Lowther." Upon this affidavit an order was granted requiring the said Amelia Lowther to appear before one of the justices of the Supreme Court to be examined concerning said property, and the usual injunction restraining said Amelia Lowther from making any disposition of any of the property belonging to the said judgment debtor. Amelia Lowther then obtained an order requiring the judgment creditor to show cause why the order for her examination should not be vacated upon the ground that the affidavit upon which the order had been obtained was defective. Upon the hearing of this application that motion was denied, and Amelia Lowther appeals.
This order was obtained under section 2441 of the Code of Civil Procedure, which provides: "Upon proof by affidavit or other competent written evidence, to the satisfaction of the judge, that an execution against property has been issued, as prescribed in section 2458 of this act, and either that it has been returned wholly or partly unsatisfied or that it has not been returned; and also that any person or corporation has personal property of the judgment debtor, exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars, the judgment creditor is entitled to an order requiring that person or corporation to attend and be examined concerning the debt, or other property, at a time and place specified in the order." This affidavit, quoting this section of the Code, states that the appellant "has personal property of the said judgment debtor exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars." The Code requires proof by affidavit or other competent written evidence that the person sought to be examined either has personal property of the judgment debtor exceeding ten dollars in value or that he is indebted to the judgment debtor in a sum exceeding ten dollars; and an allegation in the alternative is not a proof of either fact. In Cronin v. Crooks ( 143 N.Y. 352) it was said: "To state in the alternative, is to state neither the one nor the other fact. Such an alternative statement of grounds results in a mutual exclusion." To entitle the judgment creditor to the order, he must prove by affidavit or other competent written evidence one or the other fact, and by alleging these two facts in the alternative, he proves neither the one nor the other. The further statements as to the source of the deponent's knowledge in relation to these alternative allegations are not proof of either of the alternative allegations which the Code requires shall be proved to entitle the judgment creditor to such an order. The affidavit was not sufficient to justify the order and it should, therefore, be vacated.
It is apparent that the judgment creditor cannot obtain in this proceeding an order requiring from this appellant a retransfer of this property or the appointment of a receiver. The fact that the judgment creditor has brought an action against the appellant to set aside certain conveyances by which property of the judgment debtor was conveyed to the appellant, and the appellant is defending it, denying that any of the property transferred to her is subject to the payment of this judgment, would prevent the court in this proceeding from making any order which would subject this property to its payment. The question should be fought out in that action. It cannot be determined in this proceeding.
There is no reason why the appellant should be compelled to submit to an examination when it is apparent that no order could result therefrom.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order granted, with ten dollars costs.
O'BRIEN, P.J., PATTERSON, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.