
    Matter of Carlos Garcia and Julian Llera, Judgment Creditors, Respondents, v. Aaron Morris, Judgment Debtor, Appellant.
    (Supreme Court, Appellate Term,
    November, 1906.)
    Supplementary proceedings — Proceedings to examine judgment debtor — Affidavit- — Sufficiency — Information and1 belief — Demand— Refusal to apply property.'
    Code of Civil Procedure, § 2436.
    An affidavit for an order in supplementary proceedings, under section 2436 of the Code of Civil Procedure, made by the attorney, based as to material allegations on information and belief, which gives neither the grounds of the belief nor the sources of the information, is defective. Allegations that the judgment debtor has made an assignment of property to his son tend to show that the former has not possession of and cannot apply such property to the judgment; and, where a refusal to apply is claimed, facts and circumstances must be shown from which it-may be inferred that the refusal is unjust.
    Appeal from an order made at a Special Term of the City Court of the city of New York, which order denied the appellant’s motion to vacate an order for "his examination in aid of execution.
    Eosenberg & Greenberg, for appellant.
    Wilbur F. Earp, or respondents.
   Dowling, J.

Upon an affidavit setting forth the rendition of a judgment in favor of the plaintiffs herein against the defendant,- the filing of the judgment roll, the issuance of an execution to the sheriff of this county, that the same had not yet been returned, and the allegation that “ said judgment debtor had property consisting of stock of goods, principally cigars and tobacco, and money which he unjustly refuses to apply to the satisfaction of said judgment as- , deponent is informed and believesand the further statement that: “After the issuing of the said execution a demand was made by said Sheriff upon said judgment-debtor to apply said property to the satisfaction of said judgment and he has neglected and refused to do so,” an order was made requiring the debtor to be examined regarding his property. A motion was made to vacate such order upon the ground of the insufficiency of the affidavit upon which the order was granted, which motion was denied, and from the order denying such motion the debtor appeals. The affidavit upon which the order was granted is clearly defective. It is made by plaintiffs’ attorney and is based, as to the allegation that the defendant ■ has property, etc., wholly upon information and belief; neither the grounds of the belief nor the sources of the information are given. Even if we assume that an averment in the language of the statute is sufficient (First Nat. Bank v. Wilson, 13 Hun, 232), it does not comply with that, as there is no positive allegation that the debtor had property. Upon the hearing of the motion the judgment creditor was permitted to file an additional affidavit intended to cure the defects in the first. The second affidavit, however, fails to supply the essential elements required to authorize the granting of the order for the debtor’s examination. The' source of information as to the possession of property by the debtor is an alleged statement, made to the affiant by one of the plaintiffs, that, at the “ commencement of the action upon which the proceeding was predicated,” the debtor was the owner of the property mentioned and that since that time the debtor had made an assignment or pretended assignment of such- property to the debtor’s son; and also an alleged statement, made to affiant by a salesman of the plaintiffs, to substantially the same effect. ■ As to the money stated to be in -the debtor’s possession, 'the affiant’s information is based upon an offer of the debtor’s counsel to settle the judgment by a payment of fifty cents on a dollar. Instead of these facts showing that the debtor had property, they tend to show that he had transferred the same by assignment to- his son, and not that he had property which he could apply in payment of the judgment. “ Where the evidence does not show that the defendant has any property free from the claims .of third persons, the order should not be granted.”, Owen v. Dupignac, 17 How. Pr. 512. As to,whether or not the debtor had any money which he refused to apply on the judgment, the offer of settlement made by his attorney affords no evidence whatever. If, on the other hand, the defendant had tangible property, the creditor must exhaust his remedy under the execution. It is only where the creditor can prove to the satisfaction of the judge that the debtor has property, not subject to levy, or which is so kept by the debtor that it cannot be clearly identified and with ordinary diligence reached, by execution, that the order may be granted. Sackett v. Newton, 10 How. Pr. 560. As to the allegation of a demand upon and refusal,by the debtor, that is equally defective. “ Where the affidavit does not state any facts or circumstances from which it may be determined whether such refusal was unjust, or whether the creditor’s remedy by execution is not adequate, it is insufficient.” Matter of First Nat. Bank, 52 App. Div. 601.

Order denying motion to vacate order reversed, with ten dollars costs and disbursements; and motion to vacate order for examination of judgment-debtor granted, with ten dollars costs.

Gildebsleeve and Dugkbo, JJ., concur.

Order reversed, with ten dollars costs and disbursements, . and motion to vacate order for examination of judgment-debtor granted, with ten dollars costs.  