Baum v. Rosenberg , 155 N.Y.S. 404 ( 1915 )

FINCH, J.

Plaintiff obtained judgment against defendant in February, 1915, and subsequently obtained and served an order for his examination in supplementary proceedings. Judgment debtor appeared and submitted to the examination, but was decidedly evasive in his answers. His examination was adjourned five times, and covered a period of 3% months. During all that period it does not appear that any objection was made by the judgment creditor at the examinations to any of the answers given by the judgment debtor, nor was any request made of the judge to instruct the witness to give the information which he was obviously withholding under pretense that he did not remember, and which amounted to a refusal to give such information. It will be noted that the examination was not held before a referee. After the examination had been concluded, plaintiff applied on an order to show cause to have the judgment debtor punished for contempt. From the order granting the motion the judgment debtor

The order should be reversed, on the authority of Shorwitz v. Caminez, 152 App. Div. 758, 137 N. Y. Supp. 545, and Matter of East River Bank v. De Lacy et al., 37 Misc. Rep. 765, 76 N. Y. Supp. 927. The case of Becker v. Gerlich, 72 Misc. Rep. 157, 129 N. Y. Supp. 614, is distinguishable, because it appears very clearly in that case, and was clearly stated in the opinion, that:

“A referee was appointed to conduct the examination of the debtor in this proceeding, and the latter appeared before him and was examined at length.”

In the case at bar it does not appear in the record that the examination was had in the presence of a judge of the court, and there was certainly no request to instruct the witness to answer, or to make his answers more specific.

For the foregoing reason, the order is reversed, with $10 costs and disbursements. All concur.