Catholic University of America v. Conrad

27 Misc. 326, 57 N.Y.S. 820

• Court: City of New York Municipal Court
• Decided: April 15, 1899
• Status: Published

Opinion

Per Curiam.

This is an appeal from an order of the Special Term, entered herein July 6, 1898, denying defendant’s motion to vacate an order- appointing a receiver of defendant in supplementary proceedings, on the ground that said last order was irregular in having been granted without personal notice to the defendant.

Section 2464 of the Code requires personal service of the application for the appointment of a receiver to be served on the judgment debtor, unless, dispensed with by the judge for reasons shown.

Ho such application was made in this case, nor is it claimed -that the notice of application was served on the judgment debtor, but it is claimed that the notice was served on the attorneys of record for defendant in the action in which the judgment was obtained, and that such service was equivalent to the service on the debtor personally. We do not think so.

The attorneys of record could have appeared on the motion and waived personal service, as in the case of Moore v. Empie, 17 App. Div. 218. But they did not do so, but elected to treat the service as a nullity; this they had a right to do, and it follows that the service was not such as is required by the Code, and the order entered thereon must be reversed, with costs.

Present: McCarthy and O’Dwyer, JJ.

Order reversed, with costs.