Cregg v. Brown

263 A.D. 1056, 34 N.Y.S.2d 336, 1942 N.Y. App. Div. LEXIS 8010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1942
• Status: Published

Opinion

Order affirmed, without costs of this appeal to any party. All concur, except Taylor, J., who dissents and votes for reversal and for a denial of the motion in the following memorandum: The court did not acquire jurisdiction of Brown. This is a special proceeding. (Peri v. N. Y. C. R. R. Co., 152 N. Y. 521.) The service of the order should be made in the manner required for service of a summons. (Rules Civ. Prac. rule 21; Smith v. First National Bank, 103 Misc. 274; modfd. on another point, 184 App. Div. 719; Enterberg v. Goodman, 153 Misc. 205, 206; affd., 242 App. Div. 825.) The petitioners are not entitled to a charging lien upon income payable to Brown under the trust set up by his mother’s will. (Ekelman v. Marano, 251 N. Y. 173, 176, and Robinson v. Rogers, 237 id. 467.) (The resettled order grants a motion to establish attorneys' liens upon the interest and fund due or to become due to defendant Julian S. Brown from the estate of Mary L. Brown.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCum, JJ.