Dowling v. Twombly

113 N.Y.S. 970

Opinion

PER CURIAM.

This is an appeal from an order punishing defendant for contempt. The vital question in the case is: Was or was not the defendant, a judgment debtor, personally served with a copy of the order appointing the receiver in supplementary proceedings ? If he was so served, he was guilty of contempt in failing to pay over to the receiver the property demanded; whereas,' if he was not so served, as he claims, he was not guilty of contempt or disobedience. The court below found that he was so served; but from a perusal of the affidavits it seems that the evidence does not sufficiently support this conclusion. The defendant denies positively that he was ever served, while the only evidence on behalf of plaintiff is that the receiver called on defendant and showed defendant a copy of the order and “satisfied” defendant that he was the receiver. This does not constitute legal service. Moreover, it does not appear from the record that the order appointing the receiver has been filed in the office of the clerk of the county where the judgment roll in the action is filed, as required by section 2467 of the Code of Civil Procedure.

The order must be reversed, with $10 costs and disbursements, without prejudice to another application in the court below.