Opinion
November, 1905.
John R. Kuhn, for the appellant.
Edward H. Kissam, for the respondent.
In the course of a litigation between the plaintiff, James J. Seeley, and the defendants, James J. Connors and Matilda Ostrum, a judgment for costs for $148.09 has resulted against the plaintiff, which judgment was duly entered in the office of the clerk of Nassau county, and a transcript of such judgment has been entered in Kings county. Upon a retaxation of costs, the amount of the judgment was reduced to $121.09, though it seems such judgment has not been formally amended in accordance with this retaxation.
One George Allaire, as assignee of this judgment, instituted supplementary proceedings, and the questions presented upon this appeal relate to the sufficiency of the affidavits on which the proceeding rests. The moving affidavit is entitled in the action with "George Allaire, Assignee," and is made by Edward H. Kissam, who describes himself as the "attorney for the above-named Allaire, the judgment creditor in this proceeding," and sets forth the facts necessary to give jurisdiction to the court, it being alleged that the "said judgment was duly assigned to George Allaire." The objections raised to the affidavit were set forth in the order to show cause which foreran the order appealed from, as follows:
"1st. Because a copy of said affidavit and order were not duly delivered to and served upon said Seeley as required by Subdivision 2 of Section 2452 of the Code C.P.
"2d. Because said order was not granted upon application of `the creditor' under such judgment `upon proof of the facts by affidavit or other competent written evidence' as required by Section 2435 of the Code C.P. to justify the issuance of the said order."
The point is now urged that as the affidavit of Mr. Kissam described the judgment as being for $121.09, instead of for $148.09 as the judgment was originally entered, there was such a misdescription of the judgment as to vitiate the proceeding, but under the circumstances disclosed this is hardly a tenable objection. The judgment, in so far as it is effective, is for $121.09, and this fact is well known to the plaintiff, and the affidavit correctly describes the judgment except as to the amount, so that there is no room for a mistake, and it sets forth the necessary jurisdictional fact that the judgment was rendered after the personal appearance of the plaintiff and that it was for a sum not less than $25. (Code Civ. Proc. § 2458.)
The next objection urged is that "when an assignee of a judgment seeks to examine the judgment debtor he must show in his affidavit all the facts to establish his right to proceed upon the judgment and to move in the matter." While the matters might have been set out with greater clearness in the affidavit, we are of opinion that the plaintiff was not misled by the copy of the affidavit served upon him, and which gave notice of the fact that George Allaire was the assignee of such judgment, it being stated that "said judgment was duly assigned to George Allaire," and no one has questioned the truthfulness of this recital. (See Matter of Wyman, 76 App. Div. 294; Barrington v. Watkins, 36 id. 31.)
It is next objected that the order appointing a receiver of all of the plaintiff's property was void, in that it made no provision for exemptions under the statute. While it is undoubtedly true that under the provisions of section 2463 of the Code of Civil Procedure the plaintiff would be entitled to withhold any property which was exempt under the law, this does not operate to vitiate the order in so far as it deals with property not exempt. At most the order would be irregular, not void, and while it does appear that the plaintiff used some part of his wages in the support of his family, it does not appear, "by his oath, or otherwise, that those earnings are necessary for the use of" his family, and this is one of the conditions prescribed by section 2463 of the Code of Civil Procedure for such exemptions as the plaintiff now suggests. (See Hancock v. Sears, 93 N.Y. 79, 81.)
The other points suggested have been examined without discovering any good reason for reversing the orders appealed from.
The orders appealed from should be affirmed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., BARTLETT, JENKS and HOOKER, JJ., concurred.
Orders affirmed, with ten dollars costs and disbursements.