Matter of Rose v. Durant

Full title: In the Matter of the Application of HELOISE DURANT ROSE, Appellant, in…

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

Date published: Nov 1, 1903

87 App. Div. 240 (N.Y. App. Div. 1903)

84 N.Y.S. 276

Opinion

November Term, 1903.

Henry W. Hardon, for the appellant.

H.W. Simpson, for the respondent.

PATTERSON, J.:

Heloise Durant Rose, a judgment creditor of William W. Durant, procured an order for the examination of the judgment debtor in supplementary proceedings, upon an affidavit setting forth that he was a resident of the city and county of New York and had a place for the regular transaction of business in the county of New York. Thereupon the judgment debtor moved to vacate the order, upon affidavits tending to show that his residence was in Hamilton county, in the State of New York, and that he had no place of business in the county of New York. The motion to vacate the order was granted, and from the order entered thereupon the judgment creditor appeals.

In reply to the affidavits presented by the judgment debtor, it was made to appear that he had lodgings in the city of New York; that he occupied those lodgings from time to time and hired them by the month. It has been held that the residence of a judgment debtor, contemplated by section 2458 of the Code of Civil Procedure, is not necessarily his permanent residence, and that where he has a permanent residence and also a summer residence, an execution issued to the sheriff of the county in which the debtor has his summer residence, returned unsatisfied, is sufficient to sustain an order for an examination in supplementary proceedings. ( Matter of Rowland, 21 App. Div. 172; affd., 154 N.Y. 777.)

Here it is shown that the judgment debtor, while his permanent residence may have been in Hamilton county, had a residence in the city of New York; that he hired lodgings from month to month, and that he occupied such lodgings and had had them for three or four years. We think there was enough shown to sustain the order for his examination.

The order vacating the order for the examination of the judgment debtor should be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs, and he should be required to attend under the order for his examination, at a date to be fixed.

VAN BRUNT, P.J., INGRAHAM and HATCH, JJ., concurred.

Order vacating order for examination of judgment debtor reversed, with ten dollars costs and disbursements, and motion to vacate denied, with ten dollars costs, and judgment debtor required to attend under order for his examination, at a date to be fixed.