
    Sudlow et al. v. Mead.
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    1. Execution—Supplementary Proceedings—Affidavit—Former Application.
    An affidavit for examination of a judgment debtor stated that no previous application had been made for the order, except that an order bad been previously obtained, which was by stipulation declared lapsed and abandoned without prejudice to a renewal. There had, in fact, been an earlier order issued in violation of a stay, which was never executed, and was set aside on motion. Held, that the affidavit was sufficient to confer jurisdiction; the first order being a nullity, it was not necessary to mention it.
    8. Same—Docketing Judgment—Duty oe Clerk—Presumption oe Regularity.
    Judgment was obtained in W. county. Execution issued in K. county, where de-. fendant resided, and returned unsatisfied. The affidavit in supplementary proceedings stated that the judgment roll was filed in W. county, and a transcript filed and the judgment docketed in K. county before the execution issued. Held, that the affidavit was not defective in not stating that the judgment was docketed in W. county. The judgment roll having been filed, it will be presumed that the clerk of W. county did his duty, a transcript being based on the docketed judgment, and not on thg filed judgment roll.
    Appeal from special term, Westchester county.
    Defendant, George W. Mead, appeals from an order refusing to vacate and set aside an order for his examination in supplementary proceedings, obtained by Samuel T. Sudlow and others, judgment creditors.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      Sewall Sergeant, for appellant. Spink & Martin, for respondents.
   Barnard, P. J.

The affidavit for the examination of the judgment debtor stated that no previous application had been made for the order, except that an order had been previously obtained, which was by stipulation between the parties declared “lapsed and abandoned without prejudice to a renewal of the application.” The case shows that there had been still another order, which had been set aside on motion. The affidavit was sufficient to confer jurisdiction. It stated the statute fact that no previous application had been made, with a certain exception. There had been no examination upon the first order, and it will be presumed that it was void. Ko harm is done by the omission to state the issuing of the first order. The case shows that it was granted in violation of a stay then existing, and it was never executed. A new order was taken, and this was declared abandoned. The affidavit was therefore true in all respects without mention of the first order. The judgment was obtained in Westchester county. The execution was issued in Kings county, and returned unsatisfied. The defendant resided there. • The affidavit states that the judgment roll was filed in Westchester county, and that a transcript was duly filed, and the judgment duly docketed, in Kings county, before the execution was issued. There is no force in the objection that the affidavit is fatally defective in not averring a docket of the judgment in Weschester county. The plaintiff filed his judgment roll, and the clerk of Westchester must be presumed to have done his duty, and docketed the same. The transcript is directly based on the docketed judgment, and not on the hied judgment roll. The order should therefore be affirmed, with costs and disbursements. All concur.  