Mary Ann Smith and George S. Raley, as Administrators, etc., of Horace S. Crittenden, Deceased, Respondents, v. Benjamin S. Cowles, Appellant

Mary Ann Smith and George S. Raley, as Administrators, etc., of Horace S. Crittenden, Deceased, Respondents, v. Benjamin S. Cowles, Appellant. Third Department, June 27, 1906. Supplementary proceedings — order for second examination of debtor sustained — remedy when right of examination abused. An order for the examination of a debtor in proceedings supplementary to execution on a judgment obtained by an executrix will not be set aside merely because the same plaintiff has had a prior examination of the debtor conducted by the same attorney on a judgment obtained by the plaintiff individually, in the absence of a specific statement by the debtor under oath that he has now no property applicable to the payment of the judgment. If an examination in supplementary proceedings is abused the court has power to set aside the order. Appeal by the defendant, Benjamin S. Cowles, from an order of the Supreme Court, made by the county judge of Warren county, and entered in the office of the clerk of the county of Warren on the 25th day of April, 1906. Henry W. Williams, for the appellant. Adam Armstrong, for the respondents. [MAJORITY — Smith, J.:] Smith, J.: Upon a judgment in -this action against defendant and the return of execution unsatisfied an order was made for defendant’s examination in supplementary proceedings before a referee therein appointed. This motion to set aside this order for examination is made by the defendant on the ground that in 1903, upon a judgment recovered by Mary Ann Smith individually, the defendant was exhaustively examined by the same attorney who n'ow represents these plaintiffs. While it appears by the affidavit of defendant’s counsel that the defendant is a poor man and has only his salary of $1,000 a year for the support of his family, it does not appear that he has now no property which should be applied in payment of the judgment. At least in the absence of such a statement, clearly and specifically made by the defendant himself under oath, this order for examination should not be set aside. Defendant’s apprehension that he may be unreasonably harassed by such an examination to the detriment of his present business connection rests upon the assumption that the referee will not confine the examination within reasonable limitations. This proceeding is not authorized to be used as a club to enforce settlement of claims which the debtor is without property to pay. If at any time it should appear to the referee that such use was being made of the proceeding it would be within his power to force the concluding of the examination, or upon the failure of the referee properly to protect the interest of a judgment debtor the county judge or this court at Special Term would have the power at any time to set aside the order for examination upon the ground that the right thereby given was being abused. The order should, therefore, be affirmed, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements.