Matthews v. Hendry
Appellate Division of the Supreme Court of the State of New York
Appeal by Frank W. Hendry, the judgment debtor herein, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 23d day of March, 1898, denying his motion to ■vacate an order for the examination of George S. Gagnon,, the third person herein, and also denying his motion to vacate an order' appointing a receiver.
1Opinion of the Court
Cullen, J.:
The affidavit on which the order for the examination of the third party in proceedings supplementary to execution was granted was fatally defective, in failing to state the residence of the judgment debtor at the time of the institution of the proceeding, as required by section 2458 of the Code of Civil Procedure. On. this question the cases of Schenck v. Irwin (60 Hun, 361) and Franey v. Smith (88 id. 215) are decisive authorities. The rule under the old Code was to the contrary, but Mr. Throop’s note to section 2458 shows that it was intended to change that rule. The cases cited…
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