Fitchburgh National Bank v. Bushwick Chemical Works.

of right, to leave to issue a new execution. The recent Half-Saturday Holiday act does not prevent the service of papers or the execution of writs in legal proceedings on that day or any part of it. Application granted.

FITCHBURGH NATIONAL BANK, JUDGMENT CREDITOR, v. BUSHWICK CHEMICAL WORKS, JUDGMENT DEBTOR.

CITY COURT OF NEW YORK, SPECIAL TERM, DECEMBER, 1887. $3463.

Supplementary proceedings—Third party cannot be examined as to property of a corporation-Receiver not subject to examination in.

A third party cannot be examined in proceedings supplementary to execution as to the property of a judgment debtor where the judgment debtor is a corporation created by the laws of this State.

An order cannot be granted in proceedings supplementary to execution for the examination of a third party as to property in his possession as receiver belonging to the judgment debtor, nor where the affidavit states that he has property of the judgment debtor, either "as receiver, etc., or individually."

(Decided December 6, 1887.)

Motion to set aside an order granted in proceedings supplementary to execution for the examination of William Brookfield, a receiver, etc., in regard to property in his possession belonging to the judgment debtor.

Other facts appear in the opinion.

Alexander & Green, for judgment debtor, and motion.

Billings&Cardozo, for judgment creditor, opposed.

Fitchburgh National Bank e. Bushwick Chemical Works.

POTTER, J.-This is a motion upon an order to show cause, &c., to set aside an order in supplementary proceedings requiring William Brookfield, a receiver appoinued by this court on the dissolution of a partnership and the settlement of its affairs, to appear for examination.

The affidavit upon which the supplementary order was granted contains the statement that said Brookfield, as receiver, &c., of said copartnership, or individually, has personal property of the judgment debtor exceeding $10 in value, or is indebted to it in a sum exceeding $10, &c. The supplementary order contains the same statement in that respect.

It is shown upon the moving papers, by the judgmentroll in the action in which said judgment was recovered, that said defendant is a corporation created by the laws of the State of New York. I think it is entirely clear, upon these facts, that the supplementary order should be set aside. Section 3463 provides that article first, title twelve, of the Code shall not apply where the judgment debtor is a corporation created by or under the laws of this State. But if the defendant was an individual debtor, I do not think the affidavit that said Brookfield, as receiver, &c., or individually, owned or had property of the judgment debtor exceeding $10 in value, justified the issuing of the order for his examination; for, as receiver appointed by the court, he would not be subject to such examination (Smith v. McNamara, 15 Iun, 447).

An affidavit that Brookfield as receiver or indvidually owed the judgment debtor, or had his property, does not state a case authorizing the issuing of such order. The statement is in the alternative. One alternative,-viz.: that Brookfield as a receiver,-gives no authority or warrant for the order. It is necessarily to be inferred from the language of the affidavit and order that but one of the alternatives is true. If the alternative that Brookfield owes the debt or holds the property is the true one, then the affidavit was insufficient to warrant the order; for no one

Betts v. Krindell.

can determine from the affidavit that the alternative is not the true one.

The order should be set aside, with $10 costs.

BETTS v. KRINDELL.

CITY COURT NEW YORK, SPECIAL TERM, DECEMBER, 1887.

$$ 525, 542.

Pleading Amendment of—Verification.

A defendant who has demurred to a complaint may serve an answer as an amended pleading.

Frank v. Bush (2 N. Y. Civ. Pro. 250; S. C., 62 How. Pr.

282);

Carpenter v. Adams (34 Hun, 429, appeal dismissed, 98 N. Y. 668); People v. Whitwell (62 How. Pr. 383); followed. Smith v. Laird (44 Hun, 530), not followed.

A verification to a pleading made by an agent, which states that "all the material allegations. . . . are within his personal knowledge" is sufficient without assigning any reason why the verification is not made by the party.

(Decided December 6, 1887.)

MCADAM, Ch. J.-This court decided in 1882 (Frank v. Bush, 2 N. Y. Civ. Pro. 250; S. C. 62 How. Pr. 282) that a defendant who has demurred to the complaint may serve an answer as an amended pleading. This practice was followed by the superior court (FREEDMAN, J., in Moffatt v. Henderson, Daily Reg. March 2, 1883), and by the supreme court of this department at general term in 1885 (Carpenter v. Adams, 34 Hun, 429). An appeal was taken in this case to the court of appeals and argument was had on the merits. Instead of reversing the order for want of power, the appeal was dismissed (98 N. Y. 668).

Bank of North America v. Hornsey.

The common pleas announce similar practice (People v. Whitwell, 62 How. Pr. 383), and in this way all the courts of record in this county became committed to the principle as a rule of practice. The recent case of Smith v. Laird (44 Iun, 530), decided by the supreme court of this department, overturns the practice thus established, and the question is whether this court is to embrace the new departure or adhere to established precedent. Until further instructed, it is deemed safer to adhere to the old rule until the new one is generally recognized by the courts or until it has been approved by the court of appeals. It follows from this, that the defendant has been regular in his practice.

The verification is correct. The agent swears that "all the material allegations of the answer are within his personal knowledge;" and this is sufficient without assigning any reason why the verification is not made by the party (Code, § 525, subd. 3).

The form adopted is that approved by Abbott in his new book on Forms, p. 150, form 217.

The motion as to the superseded demurrer abates, and the plaintiff must accept the amended pleading. No costs.

BANK OF NORTH AMERICA v. HORNSEY ET AL.

CITY COURT OF NEW YORK, SPECIAL TERM, DECEMBER, 1887. $$ 500, 723.

Pleading When-non joinder of party defendant may be cured by amend

ment.

Non-joinder of a party defendant can only be taken advantage of in abatement; and, as the object of such a plea is to give the plaintiff a better

Bank of North America v. Hornsey.

writ, it must correct the mistake so as to enable the plaintiff to set it right.

Where a defendant pleads non-joinder of a party defendant, as a defense,

the error may be corrected without a new action, and an amendment should be allowed without prejudice to proceedings already had. (Decided December 6, 1887.)

Motion by plaintiff for leave to amend complaint and that supplemental summons bringing in new party be issued.

This action is upon a promissory note made by the defendant Hornsey to the order of the defendant Stevens indorsed by the latter, and also in the firm name of John G. Allport & Co. It was begun on November 4, 1887. The complaint alleged that the defendant Allport did business under the firm name of John G. Allport & Co., and that he indorsed said note in said firm name, on November 10, 1887. Defendant Allport appeared and answered; the other defendants having made default, the plaintiff moved for judgment on said answer as frivolous. The motion was denied, but the court set the cause down for trial on November 18. On November 16, 1887, the defendant served an amended answer, setting up, as an additional defense, that Frances G. Allport was a member of the firm of John G. Allport & Co., in whose name the said note was indorsed, and that said Frances G. Allport was, therefore, a necessary party defendant. The plaintiffs thereupon moved for an order to amend the summons and complaint by adding thereto the name of Frances G. Allport as a party defendant, and describing her in said summons and complaint as a member of the firm of John G. Allport & Co., and permitting the plaintiff to issue a supplemental summons directed to her, as provided for by section 453 of the Code of Civil Procedure.

Root & Strong, for plaintiff and motion.

Morrison & Kennedy, for defendant, opposed.