Sayer v. MacDonald
City of New York Municipal Court
This was an appeal from an order denying a motion to vacate order for examination of judgment debtor in proceedings supplementary to execution, on the grounds that the affidavit on which said order was obtained did not state that the city court is a court of record, that no previous application for an order to examine judgment debtor had been made* in the action, and that the judgment was rendered upon the judgment debtor’s appearance or personal service of the summons upon…
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This was an appeal from an order denying a motion to vacate order for examination of judgment debtor in proceedings supplementary to execution, on the grounds that the affidavit on which said order was obtained did not state that the city court is a court of record, that no previous application for an order to examine judgment debtor had been made* in the action, and that the judgment was rendered upon the judgment debtor’s appearance or personal service of the summons upon him.
1Opinion of the CourtMcAdam, C. J.
The affidavit proves a judgment recovered in the city court, and it was not necessary to allege that the city court is a court of record. The Code supplies proof of that fact. It was not necessary to allege that no previous application had been made for the order (Shank agt. Conover, *12056 How. Pr., 437). The only other point made by the appellant is that the affidavit does not allege that the judgment was recovered upon the personal service of the summons on the defendant or on his appearance (Code, sec. 2458). The Code is silent as to how this fact is to be established when called in question,…
2Cases cited1 opinion
- Schanck v. ConoverNew York Supreme Court · 1878