Groshut v. Kinetophote Corp.

[1-3] The judgment debtor has willfully disregarded an order for his examination made in supplementary proceedings, on the ground that the original order was void. He did not see fit to make any motion to vacate the order, but assumed for himself to decide that the court had no jurisdiction to make the order. The court was therefore bound to punish him for his contempt, unless the original order was absolutely void. The affidavit upon which this order was made states that the execution was issued to the “sheriff of the county of New York, where said judgment debtor then had its principal place of business, and at the time of the commencement of this proceeding still has its principal place of business.” The judgment debtor claims that this allegation is insufficient to constitute proof under subdivision 1 of section 2458 of the Code, which provides that there must be proof that the execution was issued “to the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceedings, a place for the regular transaction of business in person.”

It is to be noted, however, that the order does not recite that it appears to the satisfaction of the justice that the debtor had a place for the regular transaction of business in the county of New York, but merely recites the same language contained in the affidavit. Even if the creditor attempted unsuccessfully to comply with subdivision 1 of section 2458 of the Code, the order is not void, if the language is sufficient to show compliance with any other subdivision. It seems now well established that the residence of a domestic corporation is, as a matter of law, in the county where its principal office or place of business is situated. See Finch School v. Finch, 144 App. Div. 687 , 129 N. Y. Supp. 1 . While neither this decision, nor any other decision that we have been able to find, directly construes the section of the Code now under consideration, it seems to us clearly applicable thereto. Prior to the amendment of Code, § 2463, by chapter 278 of the Laws of 1908, this article of the Code did not “apply where the judgment debtor is a corporation created by or under the laws of this state or a foreign corporation specified in section 1812 of this act except in those actions or special proceedings brought by or against the people of this state,” etc. Since that restriction was abrogated, the article applies to all judgment debtors, including domestic corporations. See opinion of this court in the Matter of Bouker Contracting Co. v. W. Id. Callahan Contracting Co., 92 Misc. Rep. 241 , 155 N. Y. Supp. 543 (November, 1915), affirmed in the Appellate Division on opinion below in January, 1916.

If the allegation contained in the affidavit is insufficient under subdivision 2 of section 2458, we would have the anomalous situation that, where a domestic corporation maintains no place for the regular transaction of business in person, it is not subject to any proceedings supplementary to execution. Obviously the Legislature never intended

It follows that the order denying the motion to punish his contempt should be reversed, with $10 costs and disbursements, and the judgment debtor fined the sum of $250.