In the Matter of the Examination of George S. Gagnon, Third Person, in Proceedings Supplementary to Execution in an Action Entitled, "Supreme Court, Orange County. John W. Matthews and Others v. Frank W. Hendry." Frank W. Hendry, Judgment Debtor, Appellant; John W. Matthews and Others, Judgment Creditors, and Graham Witschief, Receiver, Respondents

In the Matter of the Examination of George S. Gagnon, Third Person, in Proceedings Supplementary to Execution in an Action Entitled, “Supreme Court, Orange County. John W. Matthews and Others v. Frank W. Hendry.” Frank W. Hendry, Judgment Debtor, Appellant; John W. Matthews and Others, Judgment Creditors, and Graham Witschief, Receiver, Respondents. Supplementary proceedings—the application to examine a third party must state the residence of the judgment debtor. An affidavit on which an application-is made for an order for the examination of a third party in proceedings supplementary to execution must, under the ■requirements of section 3458 of the Code of Civil Procedure, state the residence of the judgment debtor at the time of the institution of the proceedings. Appeal by Frank W. Hendry, the judgment debtor herein, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 23d day of March, 1898, denying his motion to ■vacate an order for the examination of George S. Gagnon,, the third person herein, and also denying his motion to vacate an order' appointing a receiver. M. li/nn Bruce, for the appellant. Bussell Headley, for the respondents. [MAJORITY — Cullen, J.:] Cullen, J.: The affidavit on which the order for the examination of the third party in proceedings supplementary to execution was granted was fatally defective, in failing to state the residence of the judgment debtor at the time of the institution of the proceeding, as required by section 2458 of the Code of Civil Procedure. On. this question the cases of Schenck v. Irwin (60 Hun, 361) and Franey v. Smith (88 id. 215) are decisive authorities. The rule under the old Code was to the contrary, but Mr. Throop’s note to section 2458 shows that it was intended to change that rule. The cases cited by the respondents, which arose únder the old Code, are, therefore, not in point. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, all to be applied on plaintiff’s judgment. All concurred. Order reversed, with ten • dollars costs and disbursements, and motion granted, with ten dollars costs, all to be applied on plaintiff’s judgment.