Eyre v. Stubbert

Per Ouriam. The order should be affirmed upon the first objection urged to the sufficiency of the affidavit upon which the supplementary proceeding was based, i. e., that the affidavit was made by the managing clerk of the attorney, and not by the judgment creditor or his attorney. The proceeding must be instituted by the judgment creditor or by some one authorized by him. It has been held that the authority of his attorney will be presumed. Miller v. Adams, 52 N. Y. 409. This presumption of authority to act for the judgment creditor cannot be extended to the clerk-of the attorney. It has been held that an affidavit of the fclerk of the -attorney is insufficient for the foundation of a motion, if no excuse is offered for its not being made by the attorney. Jackson v. Woolworth, 3 Caines, 136; Chase v. Edwards, 2 Wend. 283. It has been frequently held that an affidavit executed by an attorney associated with the attorney for the judgment creditor was insufficient to give the court jurisdiction (Beardsley v. Stone Valley Distilling Co., 122 N. Y. Supp. 686; Title Guarantee & Trust Co. v. Brown, 136 App. Div. 843) ; and we are of opinion that the affidavit- made by a managing or other clerk of the attorney is not sufficient to institute the proceeding, unless his authority is shown, and the reason why it is not made by the judgment creditor or his attorney is set forth. The order should, therefore, be affirmed, with ten dollars costs and disbursements. Present: Seabuby, Page and Bijub, JJ. Order affirmed.