
    SUPREME COURT.
    Horace Webster and another agt. Willis Sawens and another.
    
      Supplementary proceedings — Sufficiency of the affidavit to warrant the order to appear and answer.
    
    Where the affidavit upon which an order for a debtor to appear and be examined in supplementary proceedings was entitled in the supreme court, giving the title to the action and stating that “ judgment was rendered and perfected in this action,” &c.:
    
      Held, that this is in substance a statement that judgment was recovered in the supreme court.
    The affidavit stated that the said judgment was docketed and the judgment roll filed in the office of the clerk of the county of New York on the 14th day of January, 1886, and a transcript filed and duly docketed in the office of the clerk of Oneida county on the 15th day of January, 18S6, and that an execution against the property of the defendants was on that 15th day of January, 1886, duly issued on said judgment and delivered to the sheriff of Oneida county, where the defendants reside.
    
      .Held, that upon this state of the case it will be presumed as between the parties, that the execution was issued after the filing of the transcript.
    
      Held, further, that there being a sufficient allegation of the recovery of the judgment in the supreme court, then the allegation that the execution was duly issued on said judgment is in substance an allegation that the execution was issued out of a court of record.
    
      Oneida Special Term,
    February, 1886.
    Motion by defendants to vacate supplementary proceedings by reason of defects in'tbe affidavit upon wbicb tbe order to appear and answer was made. Tbe following is tbe affidavit:
    ■County of ^neida, ss. :
    
    William Townsend, being sworn, says, that be is tbe attorney for plaintiff and duly authorized to institute these proceedings; that judgment was rendered and perfected in this action in favor of Horace Webster and Charles W. Lawrence, plaintiffs, against Willis Sawens, Gilbert S. Sawens and Edwin S. Anderson (the latter not summoned), defendants, on the 14th day of January, 1886, for $160.03 damages, and $21.26 costs, upon the personal service of the summons upon defendants, Willis Sawens and Gilbert S. Sawens, and the said judgment was docketed, and the judgment roll therein filed in the office of the clerk of the county of New York on that day; that a transcript of the original docket of said judgment was filed, and said judgment duly docketed in the office of the clerk of the county of Oneida on the 15th day of January, 1886; that an execution against the property of the said Willis Sawens, Gilbert S. Sawens and Edwin S. Anderson was on the 15th day of January, 1886, duly issued upon said judgment, and delivered to the sheriff of the county of Oneida where the said defendants, Willis Sawens and Gilbert S. Sawens, then resided and yet reside and have a place for the regular transaction of business in person, directing said sheriff to levy upon the joint property of all the defendants and upon the separate property of the defendants served with summons, and that the said sheriff has duly returned the said execution wholly unsatisfied to the New York county clerk’s office where the judgment roll in this action is filed; that such return was made within ten years; that the said judgment remains wholly unpaid and unsatisfied; that no previous application has been made for the order asked hereon.
    WILLIAM TOWNSEND.
    Subscribed and sworn to before me,) this 16th day of January, 1886. f
    James A. Long,
    
      Notary Public, Oneida County, N Yl
    
    The grounds upon which motion is made to vacate is as fol-follows:
    
      
      First. That the affidavit does not sufficiently describe tbe judgment, in tbat it does not show in what court the judgment ■ was recovered.
    
      Second. Tbat tbe affidavit does not sbow tbat a transcript of tbe judgment was filed before tbe execution was issued and tbat it is not sufficient for them to state tbat tbe execution was issued tbe same day tbe transcript was filed.
    
      Third. Tbat tbe affidavit does not sbow tbat tbe execution was issued out of a court of record. '
    
      Fourth. It appears tbat tbe execution was issued on tbe 15th of January, 1886, and tbe order herein granted January 16th, and it does not appear tbat any sufficient effort was made to collect tbe debt by execution.
    
      Fifth. Tbat tbe order does not sbow before what judge further proceedings are to be bad.
    
      Sixth. Tbe affidavit does not sbow in what county tbe judgment was recovered.
    
      William A. Matteson, for motion.
    
      William Townsend, opposed.
   Merwin, <T.

It is claimed tbat tbe affidavit does not stow in what court tbe judgment was recovered, or tbat a transcript was filed in Oneida county before tbe execution was issued, or that tbe execution was issued out of a court of record.

Tbe .affidavit is entitled in tbe supreme court, and gives tbe title of tbe action, and states tbat “ judgment was rendered and perfected in this action,” &c.

This is in substance a statement that judgment was recovered in tbe supreme court

Tbe affidavit states that tbe said judgment was docketed and tbe judgment roll filed in tbe office of tbe clerk of tbe county of New York on tbe 14th of January, 1886, and a transcript filed and duly docketed in tbe office of tbe clerk of Oneida county on tbe 15tb of January, 1886, and tbat an execution against tbe property of the defendants was on that 15th of January, 1886, duly issued on said judgment and delivered to tbe sheriff of Oneida county, where the defendants reside. The filing of the transcript and issuing of the execution are on the same day, it not being stated that the execution was issued after the filing, except as it may be inferred from the expression “duly issued.” Upon this state of the case, it will be presumed as between the parties, that the execution was 'issued after the filing of the transcript (Jones agt. Porter, 6 How., 286; Small agt. McChesney, 8 Cow., 19).

There being a sufficient allegation of the recovery of the judgment in the supreme court, then the allegation that the execution was duly issued on said judgment is in substance an allegation that the execution was issued out of a court of' record, according to the ruling in the case of Jager agt. Shepard, decided at Onondaga special term, September, 1885, and affirmed at general term, November, 1885.

It follows that the motion must be denied, with costs of motion.  