Canavan v. McAndrew , 27 N.Y. Sup. Ct. 46 ( 1880 )

Barrett, J.:

A judgment creditor is not permitted to harass his debtor by successive examinations in supplementary proceedings. He is entitled to examine the defendant as fully as may be once. After that it becomes a question of sound discretion. It is well settled that a second order will not be granted, as a matter of course. To secure it properly the affidavit should disclose the first proceeding, and give some good reason for again invoking the powers of the judge, such as subsequently acquired property, or the like.

In the case at bar nothing of the kind was attempted to be shown, either affirmatively or in answer to the motion to vacate. Indeed, the plaintiff seemed to recognize the rule but sought to evade it, by applying on another judgment of his against the same defendant. This will not do. The spirit and intent, rather than the letter of the statute, must govern. If the plaintiff’s position be correct he has an absolute right to examine the defendant on every judgment he may obtain, no matter how numerous they may be. This would result in making the statute a means of oppression and could not be tolerated. The fair rule is freely to grant the right, not as attaching specially to the two or more judgments, but as the privilege of the particular plaintiff. (See Irwin v. Chambers, 8 Jones & Spencer, 432.) Mr. Justice Lawrence was right, in exercising his discretion, to vacate the proceedings, and the order appealed from must be affirmed, with ten dollars costs and disbursements.

Davis, P. J., concurred. Present — Davis, P.. J., and Baurett, J.

Order affirmed, with ten dollars costs and disbursements.