In re the Examination of Fancher
New York County Courts
On January 10, 1908, the judgment creditors procured an order from the county judge directing Frank Fancher, the judgment debtor, to appear and he examined in proceedings supplementary to exeéution, before a referee, on the 16th day of January, 1908; and the order and affidavit upon which it was granted were duly served upon the judgment' debtor on the 14th day of January, 1908. The order in question was granted upon the affidavit of Charles A. Fuller, who states that he was…
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On January 10, 1908, the judgment creditors procured an order from the county judge directing Frank Fancher, the judgment debtor, to appear and he examined in proceedings supplementary to exeéution, before a referee, on the 16th day of January, 1908; and the order and affidavit upon which it was granted were duly served upon the judgment' debtor on the 14th day of January, 1908. The order in question was granted upon the affidavit of Charles A. Fuller, who states that he was the attorney for the judgment ereditors, and was sworn to by Mr. Fuller before Ward FT. Truesdell, notary public. This…
1Opinion of the CourtStratton, J.
Assuming, without deciding, that the affidavit upon which the order requiring the judgment debtor to appear and be examined was irregular, I do not think such irregularity, can be urged in defense of the motion to punish for contempt. Such affidavit, at best, was probably not void but only voidable. Baumeister v. Demuth, 84 App. Div. 398. And the judgment debtor, not having taken any affirmative proceeding to vacate or set aside the order, can not now be heard, after he has violated the same, on a mere irregularity.
The decisions on this proposition seem to be plain and to the point and are…
2Cases cited4 opinions
- Baumeister v. DemuthAppellate Division of the Supreme Court of the State of New York · 1903
- In re HatfieldAppellate Division of the Supreme Court of the State of New York · 1897
- Rupert v. LeeAppellate Division of the Supreme Court of the State of New York · 1905
- Shults v. AndrewsNew York Supreme Court · 1877