¶1Without disposing of the other questions raised upon this appeal as to the sufficiency of the affidavit,-there is one respect in which it appears to be fatally defective, and to require a reversal of the order. Section 2436 of the Code requires that, in order to obtain an order requiring the judgment debtor to be examined concerning his property in aid of the execution the judgment creditor must prove to the court that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment. Such proof must show that a-demand of the application of the property to the payment of the judgment has been made, otherwise no refusal can be established. This is the rule which has been laid down in the cases of Bank v. Wilson, 13 Hun, 232, and Hutson v. Weld, 38 Hun, 142. The-order should be reversed, and the order for the examination dismissed, with costs.
18 N.Y.S. 748
Lett v. Beacham
Decided April 14, 1892
New York Supreme Court · decided 1892-04-14
Action by Aaron Levy against John Beacham. Plaintiff had judgment against defendant, and, the sheriff failing to find property from which to satisfy the same, an order was granted requiring defendant to submit to an examination concerning his property, from which order he appeals.
Reversed · Decided 1892-04-14