In the Matter of Supplementary Proceedings: Title Guarantee and Trust Company, Respondent, v. Max Brown, Appellant

In the Matter of Supplementary Proceedings: Title Guarantee and Trust Company, Respondent, v. Max Brown, Appellant. Second Department, March 18, 1910. Supplementary proceedings —statute must be followed — moving affidavit — failure to show authority of affiant. As proceedings supplementary to execution are .the creation of the statute, the requirements of the statute must he complied with in order to confer jurisdiction. An affidavit upon which, an order for examination in supplementary proceedings is granted must be made by the judgment creditor himself, or, if made by another, his authority to act for the judgment creditor must appear upon its face, except where the affidavit is made by his attorney at law, in which case authority is presumed. An affidavit made by an attorney “ connected with the office” of the-judgment creditor’s attorney is insufficient to confer jurisdiction if it do not show that the judgment creditor authorized the proceeding. Woodward, J., dissented. Appeal by the defendant, Max Brown, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of April, 1909, denying the defendant’s motion to vacate and set aside an order in supplementary proceedings for his examination as a judgment debtor. Edward P. Sobel, for the appellant. Albert A. Eovell, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The motion was based upon the ground that the affidavit upon which the order for examination was granted was insufficient to confer jurisdiction. The proceeding is a statutory one, and all the requirements of the statute must be complied with before jurisdiction to make the order existed. If, therefore, the affidavit was lacking in any of the details required by the statute, the appellant’s motion to vacate and set aside the order should have been granted. A judgment creditor is the only person entitled to such an order, and the affidavit, if made by a person other than himself, must show authority to act for the judgment creditor, so that the application will show upon its face that the pi’oceeding was authorized by the owner of the judgment,- unless the affidavit is inade by the attorney for a party, when authority will be presumed, (Miller v. Adams, 52 N. Y. 409.) The affidavit in the case at bar is made by Sidney A. Clarkson, who' sets forth “ that he is an attorney connected witli the office of Albert A. Hovell, the attorney for the above-named plaintiff.” Mr. Clarkson was not the attorney for the judgment creditor; kesays’that Mr. Hovell was; nó authority is shown in him to act for -the judgment creditor in making the affidavit or instituting the proceeding. The moving papers are not signed or indorsed by Mr. Hovell, and there is no evidence that the owner of the judgment authorized the proceeding. The case, is directly within the rule stated in Brown v. Walker (8 N. Y. Supp. 59; affd., without opinion, 121 N. Y. 717.) The order appealed from must be reversed, with ten dollars costs and disbursements, and the defendant’s motion to vacate and set aside the order granted,, with costs! Hirschberg, P. J., and Thomas, J., concurred; Woodward, J., dissented; Carr, J., taking no part. x Order reversed, with ten dollars costs and- disbursements, and motion granted, with costs.'