Grace v. Curtiss

3 Misc. 558, 23 N.Y.S. 321, 52 N.Y. St. Rep. 514

Opinion

Eewburger, J.

On the 13th day of February, 1893, an order was made herein for the appointment of a receiver of defendant’s property.

It appears that judgment was entered against the defend ant, and thereafter an order for the examination of a third person was issued herein.

That the examination under said order disclosed that the defendant was the beneficiary of a trust created for her and her children by her husband, from whom she was separated. Upon such testimony the order for the receiver was made without notice to the defendant. On the 15th day of February, 1893, an order was made ex parte requiring the trustee to pay over to the receiver the funds in his hands. Subsequently a motion was made to vacate the order appointing a receiver and the order directing the payment of the trust funds to the receiver. A motion to vacate said orders was denied, and this appeal is now taken from such denial.

The order appointing the receiver was made without notice to the defendant, and is, therefore, void. Section 2464 of the Code provides that at least two days’ notice of the application for an 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. It does not appear that the defendant could not be found within the state. The order simply states that notice to the judgment debtor cannot with due diligence be given. This is not sufficient. Morgan v. Von Kohnstamm, 9 Daly, 355.

For these reasons the orders appealed from must be reversed, with costs.

Ehblich, Ch. J., concurs.

Orders reversed.