Arnot v. Wright 9 N.Y.S. 15

Martin, J.

The only question we need consider on this appeal is the sufficiency of the affidavit upon which the order to examine the judgment debtor was granted. The Code of Civil Procedure provides that, after the return unsatisfied of an execution against property, issued either to the sheriff of the county where (1) the judgment debtor has a place for the regular transaction of business in person, or (2) where he resides, if a resident of the state, or. *16(3) if not a resident, the county where the judgment roll is filed, upon proof of the facts by affidavit, the judgment creditor is entitled to an order requiring-the debtor to be examined. Code Civil Proc. §§ 2435, 2458. The affidavit in this case was to the effect that an execution against the property of the judgment debtor was issued out of a court of record, “and delivered to the sheriff of Chemung county, where the said judgment debtor then resided, and yet resides, or has at the time of the commencement of these proceedings an office-for the regular transaction of business in person.” The claimed defect in. this affidavit is that it neither shows that the execution was issued to the-sheriff of a county where the debtor had a place for the regular transaction of business in person, nor that it was issued to the sheriff of the county where-the debtor resided. The statement in the affidavit was in the alternative, and. hence alleged neither one fact nor the other. Such an allegation in an indictment would be bad for uncertainty. 1 Archb. Crim. Pr. & Pl. 283. It would also be insufficient in a pleading in a civil action, for the same reason. Moak, Van Sant. Pl. 271. The Code of 1848, § 249, provided that, “ upon an affidavit that any person has property of the judgment debtor, or is indebted tollina, the judge may, by an order, require such person to appear at a specified time and place, and be examined concerning the same. ” In Lee v. Heirberger, 1 Code R. 38, an application was made under this section to examine-a third person upon an affidavit that the person sought to be examined “ has-property of the judgment debtor, or is indebted to him;” and the court held that the application could not be granted; that the affidavit was not sufficient;, that it should have been positive, either that the person had property of the judgment debtor, or that he was indebted to the judgment debtor, or that hell ad property and was indebted to the judgment debtor, but that it could not. be put in the alternative. In Collins v. Beebe, 7 N. Y. Supp. 442, substantially the same question arose; and the general term of the first department, held that an affidavit that a third person “has property of the judgment debtor-exceeding ten dollars in value, or is indebted to the judgment debtor in a sum! exceeding ten dollars,” is in the alternative, and alleges neither the one nor the other fact necessary to obtain an order for examination in supplementary proceedings. In Bid. Supp. Proc. 29, it is said: “It will not do to allege residence, or place of business and non-residence in the alternative, as, for instance, that the debtor resided in the county when the execution was issued,, or was a non-resident of the state. But residence and place of business, or non-residence and place of business, may be jointly alleged.” We are of the-opinion, both upon reason and authority, that an affidavit for an order to examine a judgment debtor should contain a clear statement that the judgment, debtor is a resident of the county to which the execution was issued, if such, be the ground upon which the application is made. If he has a place for the-transaction of business in person in the county, and the application is upon that ground, that fact should be positively alleged. If he both reside and have such place of business in the county to which the execution was issued, that fact may be properly alleged in the conjunctive; but that a disjunctive-statement that the judgment debtor is a resident of, or has a place for the transaction of business in, the county, is not proper. We think the affidavit upon which the order to examine the appellant was granted was insufficient, and that the special term erred in denying the appellant’s motion to set such order-aside. Order reversed, with $10 costs and disbursements, and motion granted,, with $10 costs. All concur.