Whitney v. Welch

Headnote

Evidence.—Notice.—Non-Resident Judgment Debtor; — Receiver.—Supplementary Proceedings.—Section 294 ob Code ob Pro.—Section 714 ob Code ob Civ. Pro.

In analogy to section 714 of the Code of Civil Procedure a non-resident judgment debtor is entitled to notice of application for appointment of a receiver in proceedings under section 294 of the Code of Procedure.

In such a case the plaintiff can take an order to show cause with a proper provision as to the mode of service, upon a disclosure of the defendant’s residence.

As a matter of discretion under section 294 of the Code of Procedure the defendant should have some notice.

Application for receiver in supplementary proceedings under section 394, Code of Procedure.

Charles M. Whitney obtained a judgment against Solomon Welch and William Welch, on August 13, 1877, for $1,661.04. The defendants were non-residents, and it did not appear in the moving papers whether they had appeared in the action or not. Execution

having been issued and returned wholly unsatisfied, one John H. Platt, assignee in bankruptcy of the firm of William Mills, surviving partner of the firm of Thomas H. Bate & Co., was examined as a third party in supplementary proceedings. On this examination it was disclosed that the defendants were creditors to a large amount of the bankrupt estate, but had not proved their claim, although notices of the bankruptcy had been sent to them and the assignee had funds in his hands belonging to the bankrupt estate amounting to several hundred dollars, and had declared a dividend.

Upon the judgment and execution, the said supplementary proceedings, and also an affidavit of the plaintiff, stating that the defendants did not reside in the United States, and since the commencement of this action had transferred their interest in a certain mortgage for §6,000, upon property in Kings county, to one Francis A. Osbourn, who resided in Philadelphia, the plaintiff’s attorney moved ex parte for the appointment of a receiver of all the debts, property, equitable interests, &c., of the judgment debtors.

I. That a receiver could be appointed in proceedings, under section 294, and cited sections 292-299, of Code of Pro.; Durand v. Hankerson, 39 N. Y. 287 , 296 ; West Side Bank v. Pugsley, 47 N. Y. 368 , 372; Barnard v. Kobbe, 54 N. Y. 516 ; Rodman v. Henry, 17 N. Y. 482 , 484.

II. That section 294 left the matter of notice to the discretion of the judge, and that a receiver could be appointed in proceedings under that section, ex parte, and without notice to the judgment debtor (sections 244, 298, of Code of Pro. ; Gibson v. Haggerty, 37 N. Y. 555 ).