Bank of Port Jefferson v. Darling — 95 N.Y.S. 492

Majority

p. 492

(108 App. Div. 48.)

BANK OF PORT JEFFERSON v. DARLING.

(Supreme Court, Appellate Division, Second Department.

October 20, 1905.)

Headnote

Execution—Supplementary Proceedings—Receivers—Appointment—Validity.

An order appointing a receiver in supplementary proceedings, which recites that, “it appearing that * * * judgment debtor is a resident 0f * * * Massachusetts, notice for the application of this order is dispensed with,” does not show that the judge was satisfied that the judgment debtor could not with reasonable diligence have been served in New York, and is insufficient, within Code Civ. Proc. § 2464, requiring two days’ notice of the application for a receiver to the judgment debtor, unless the judge is satisfied that he cannot be found in the state.

Appeal from Special Term, Suffolk County.

Action by the Bank of Port Jefferson against Mary A. Darling. From an order appointing a receiver in proceedings supplementary to execution, defendant appeals.

Reversed.

See 92 N. Y. Supp. 483 .

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Thomas J. Ritch, Jr., for appellant.

Ralph J. Hawkins, for respondent.

Section 2464 of the Code of Civil Procedure, relative to the appointment of a receiver of the property of a judgment debtor in proceedings supplementary to execution, provides :

“At least two days’ notice of the application for the order appointing a receiver, must be given personally to the judgment debtor, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the state; in which case, the order must recite that fact, and may dispense With notice, or may direct notice to be given in any manner which the judge thinks proper.” •

It is insisted upon this appeal that there was no proof upon which the judge could be satisfied that the judgment debtor could not with reasonable diligence be found within the state, and that the order contains no recital of that fact. The recital in the order is as follows:

“And it also appearing that said judgment debtor is a resident of the state of Massachusetts, and that she is at this time within the said state of Massachusetts, notice for the application of this order is dispensed with pursuant to the provisions of the Code of Oivil Procedure.”

It is unnecessary to consider whether the proof was sufficient to establish the fact required, because it is clear that the recital in this order is not a substantial compliance with the requirements of the statute. It does not necessarily follow, from the mere fact that the judgment debtor resided in the state of Massachusetts and was then within said state, that she could not with reasonable diligence be served within the state of New York. Kennedy v. Lamb, 182 N. Y. 228 , 74 N.

p. 493

tied that the judgment debtor could not with reasonable diligence be found within the state of New York.

For this reason the order should be reversed, with $10 costs and disbursements, and the motion granted, with costs. All concur.

Cases cited

Kennedy v. Lamb 182 N. Y. 228 N.Y. 1905-06-13 p. 492