Strong v. Epstein — 14 Abb. N. Cas. 322

Majority

p. 322

STRONG v. EPSTEIN.

City Court of New York, Special Term,

July, 1884.

Headnote

Supplementary Proceedings.—Motion for Appointment of a Receiver.

Under Code Civ. Pro. § 8464,—which provides that two day’s notice of motion for a receiver in supplementary proceedings must be given unless the judge’s order dispenses with notice or directs otherwise because the debtor cannot be found within the State, hut allows the appointment to be made on the return day or at the close of the examination without further notice, where the debtor has appeared and been examined, or a warrant has been served on him, —an appointment without notice should not be made except where the proceedings are had before a justice of the court. Where the examination is had before a referee, notice of motion is necessary.

Motion to vacate order for the appointment of a receiver in supplementary proceedings.

My interpretation of section 2464 of the Code is that upon the return day of the order or

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warrant served in supplementary proceedings, or upon the close of the examination, on both of which days the defendant is supposed to be present in person or by attorney, an application “ without further notice ” may be made then and there for the appointment of a receiver. But if the proceedings are had before a referee and not before a justice of the court, “at least two days’ notice of the application for the order must be given” in the manner provided by said section.

In other words, that section was not designed to do away with the formal notice required under the Old Code, excepting in the two instances stated, when the defendant was supposed to be in court personally or legally represented there, on which occasions a motion then and there made was to dispense with “further notice.”

The examination herein was had before a referee, and upon its conclusion the report and evidence were filed, and on the following day a receiver was appointed without notice. This was irregular practice for which the order must be set aside (see 22 Hun, 226 ).

Ho costs.