Goodall v. Demarest

Brady, J. If there has been an examination of the judgment debtor, and the creditor seeks a further examination, the affidavit on which the order is asked should state the previous proceeding, and the fact that the defendant had subsequently acquired some property, or circumstances from which such fact should be presumed. A multiplicity of examinations will not be tolerated without good reasons therefor, but, at the same time, no judgment creditor will be prevented from bona fide efforts in these proceedings to obtain satisfaction of his judgment. The affidavit on which the second order was obtained herein, is deficient in the respects named, but is not deficient in any jurisdictional fact. The omission is, therefore, one of practice, which may be supplied by amendment. The affidavit read in opposition to the motion to discharge the order, discloses circumstances which justify, in my judgment, the belief that the debtor has acquired property since the last examination, and the order will be retained, therefore, fortified by the affidavit mentioned. The question of the defendant’s costs on this motion, is reserved until the conclusion of the examination to take place. And further, the defendant’s examination must be limited to the time when the previous one was concluded. I do not concur in the proposition that no subsequent order should be granted except upon notice to the defendant. The creditor proceeds at his peril, and the costs allowed by the statute must be his indemnity if he be improperly required to appear. A hearing upon notice would necessarily involve the question of property, in respect to which the right to examine is given by statute, subject to the rules of practice relating thereto, and if decided in favor of the applicant, would subject the judge conducting the proceeding to another consideration of the same question upon the examination when finished. Ordered accordingly.