McGuire v. Schroeder , 63 N.Y.S. 968 ( 1900 )

O’Dwyer, J.

The motion-was made on the ground of the insufficiency of the moving affidavit, the affidavit alleging “ That an examination of the judgment-debtor, under the judgment of plaintiff, was had in 1897 and discontinued and abandoned and no property was reached or discovered on said examination; that deponent verily believes that since said examination the said Frederick H. Schroeder has acquired property and is now the owner of a thousand shares of stock in the Standard Gold Production Co. of Boulder County, Colorado, worth more than the sum of one thousand dollars.”

A second order for the examination of a judgment-debtor will not be granted, except upon proof that he has since acquired property, and the allegation in the affidavit that the deponent v&rily believes the defendant has acquired property, is insufficient. He should have stated the ¿rounds for that belief, and, having failed to do so, the affidavit is defective, and the motion to- dismiss the proceeding should have been granted. Pierce v. Parrish, 28 App. Div. 624; Losee v. Allen, 17 Misc. Rep. 275.

Order appealed from reversed and motion to vacate and set aside the second order for the examination of the judgment-debtor granted, with ten dollars costs and disbursements. to- be credited upon the judgment herein.

McCarthy, J., concurs.

Order reversed and motion granted, with ten dollars to be credited upon judgment herein.