Bowery Bank v. Widmayer

Giegerich, J. The affidavit upon which the order for the examination of the judgment debtor in aid of an execution issued against the defendant’s property was granted, is defective, for the following reasons; (1) It fails to state what means of knowledge the informant of the affiant had, so that the court may determine whether the information is entitled to credit as proof. Manken v. Pape, 65 How. Pr. 453. (2) It does not allege a demand. Manken v. Pape, supra; Bank v. Wilson, 13 Hun, 232. As was well said by McAdam, J., in Manken v. Pape, supra: “The affidavit should show facts and circumstances, in order that the judge may decide whether there has been an unjust refusal,” and this the plaintiff has wholly failed to show. For reasons aforementioned, the order will be vacated, with $10 costs to be credited on the judgment.