
    Philip C. Donner, Doing Business as Donner & Co., Respondent, v. Meyer Mercy, Defendant. Lazar Jacobsohn, Appellant.
    
      Attachment — affidavit of service thereof— refusal by a third person, to give a certificate as to the debtor's property—what affidavit in that respect is insufficient to sustain an order for his examination.
    
    An allegation contained in an affidavit made by a deputy sheriff that he “ duly effected service of such warrant of attachment on said Lazar Jacobsohn at No. 260 Grand street, Borough of Manhattan, City of New York, between two and three o’clock in the afternoon of Friday, January 2d, 1903,” is an allegation of fact and sufficiently avers the service of the warrant of attachment.
    Where a person served with a warrant of attachment issued in an action against a third party refuses to give a certificate as to the property, if any, of the defendant in his hands, it is not necessary for the plaintiff, in order to secure an order for the examination of such person under section 651 of the Code of Civil Procedure, to show that he has in his hands property belonging to the judgment debtor.
    An affidavit by the sheriff, that such a person failed to furnish a certificate to the effect that he did not hold any property belonging to the defendant or for the benefit of the defendant, is insufficient to warrant the granting of an order for his examination, as the affidavit would be true if the person sought to be examined had given a certificate specifying what property he held belonging to the defendant.
    Appeal by Lazar Jacobsohn, a third party, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1903, denying his motion to vacate and set aside' an order for his examination concerning the property of the defendant.
    
      Henry W. Unger, for the appellant.
    
      Herbert H. Maass, for the respondent.
   Ingraham, J.:

On the 2d day of January, 1903, a warrant of attachment against the property of the defendant was issued and delivered to the sheriff. Upon an affidavit of the sheriff that he had duly effected service of such warrant of attachment on one Lazar Jacobsohn, in the city of New York; that said Jacobsohn did not furnish the sheriff with a certificate to the effect that he did not hold any property belonging to the defendant, Or for his benefit, though such certificate was duly demanded, an order was granted requiring Jacobsohn to appear for examination before a justice of the Supreme Court under section 651 of the Code of Civil Procedure. That section provides that if a person to whom an application is made for a certificate as to the defendant’s property in his hands “ refuses to give such a certificate ; or if it is made to appear by affidavit to the satisfaction of the court, or a judge thereof) or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts required to be shown thereby; the court or judge may make an order directing him to attend at a specified time, and at a place within the county to which the warrant is issued, and submit to an examination under oath concerning the same.”

Where a person refuses to give any certificate it is not necessary, in order to secure the examination of such person, to show that the person sought to be examined has property in his hands which would be subject to a levy under the attachment. It is only where a certificate is given that the plaintiff must present to the.court evidence to show that the certificate is untrue. The appellant criticises the affidavit of the sheriff upon the ground that there is no legal proof showing that a certificate was demanded from the appellant, or that he refused to give one to the sheriff. The allegation of the deputy sheriff is that he “ duly effected-ser vice of such warrant of attachment on said Lazar Jacohsohn at No. 26(3. Grand street, Borough of Manhattan, City of New York, between two and three o’clock in the afternoon of Friday, January 2d, 1903.” This is the allegation of a fact. It is positive in form, stating the time and place of such service, and, we think, a sufficient allegation of the service of the warrant of attachment.

The right of the sheriff, however, to demand a certificate, under section 650 of the Code, does not depend upon the service by him of the warrant of attachment or a levy under the attachment.- That section provides that upon the application of a sheriff holding a warrant of attachment, a debtor of the defendant, or a person holding property belonging to him, must furnish to the sheriff a certificate specifying the amount, nature and description of the property held for the benefit of the defendant, or of the debt or demand owing to the defendant, as the case may require. By section 651 of the' Code a person refusing such a certificate must submit to an examination. To entitle the plaintiff to the examination, however, it must appear either that the person sought to be examined failed to give any certificate, or. did give a certificate, which there is reason to believe is untrue. • The-affidavit of the sheriff is that the appellant failed to give a certificate.to the effect that he did not hold any property belonging to the defendant, or for the benefit of the defendant. That allegation would be true if the appellant had given a certificate specifying what property he held belonging to the defendant, in which case the plaintiff would only be entitled to an examination of the defendant upon producing proof that there is reason to suspect that the certificate is untrue. If the appellant had refused to give any certificate, the plaintiff was entitled to an order for his examination. The affidavit of the sheriff, however, does not say he refused to give any certificate, but only a certificate to the effect that he did not hold any property of the defendant. This was not sufficient.

For this reason the order appealed from must be reversed, with ten dollars costs and disbursements, and the order for the examination of the appellant vacated, with ten dollars costs, with leave to the plaintiff, upon payment of such costs, to apply for a new order upon, proper papers.

McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to renew on payment of such costs.  