Franey v. Smith

HARDIN, P. J. The affidavits used before the county judge of Broome county fail to state facts sufficient to confer jurisdiction upon the county judge of Broome county. The affidavit presented to the county judge did not state the residence of Alvin 0. Smith at the time the order was granted, nor his residence at the time the affidavit was made. It does state, however, that his residence was in the county of Delaware at the time of issuing the execution in the year 1884. Marrill v. Allen, 46 Hun, 623. In the course of the opinion delivered in that case, Barker, J., said, in speaking of proceedings against a third party who- was indebted to the judgment debtor, viz.: “When proceedings are taken against a debtor of the judgment debtor, for the purpose of securing an application of an indebtedness toward the payment of the judgment, where the execution is in the hands of the sheriff, as in this case, the judgment debtor is, in a sense, a party to such proceedings. Such remedy is resorted to for the purpose of reaching his property and converting it to a particular purpose. His interests are directly involved in the procedure. In order that he may protect his rights, so far as they are involved by. the proceeding, provision is made, in section 2464, that no receiver shall be appointed without notice given to him, if he can be found in the state.” It is said further in the course of the opinion in that case that the county judge did not have jurisdiction over the subject-matter, and an order vacating the proceedings attempted to be had before the county judge of Ontario county was affirmed. That case was referred to with approval by Judge Martin in delivering the opinion in Schenck v. Erwin, 63 Hun, 104, 17 N. Y. Supp. 616, and we are inclined to think the reasoning of the learned judge in the latter case sustains the order of the county judge in the proceedings now before us. We think the order should be affirmed, with costs. Order affirmed, with $10 costs and disbursements. All concur.