In re the Examination of Darling

Appellate Division of the Supreme Court of New York

In re the Examination of Darling

108 A.D. 48, 95 N.Y.S. 492

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 15, 1905

StatusPublished

This text of 108 A.D. 48 (In re the Examination of Darling) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Examination of Darling, 108 A.D. 48, 95 N.Y.S. 492 (N.Y. Ct. App. 1905).

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Opinion

Miller, J.:

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 his 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 said State of Massachusetts, notice for the application of this order is dispensed with pursuant to the provisions of the Code of Civil Procedure.” It is unnecessary to consider whether the proof was sufiicient 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.) It may have been possible to find her within the State of New York within twenty-four hours after the making of the order, and there is no statement contained in this order to indicate that the judge granting it was satisfied that the judgment debtor could not with reasonable diligence be found within the State of New York. For this reason the order 'should [50]*50be reversed, with ten dollars costs and disbursements, and the motion granted, with costs. • _ ,

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Order reversed, with! ten dollars costs andy disbursements, and motion to -set aside the order appointing receiver granted, with costs,

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Miller, J.:

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 his 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 said State of Massachusetts, notice for the application of this order is dispensed with pursuant to the provisions of the Code of Civil Procedure.” It is unnecessary to consider whether the proof was sufiicient 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.) It may have been possible to find her within the State of New York within twenty-four hours after the making of the order, and there is no statement contained in this order to indicate that the judge granting it was satisfied that the judgment debtor could not with reasonable diligence be found within the State of New York. For this reason the order 'should [50]*50be reversed, with ten dollars costs and disbursements, and the motion granted, with costs. • _ ,

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Order reversed, with! ten dollars costs andy disbursements, and motion to -set aside the order appointing receiver granted, with costs,

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108 A.D. 48, 95 N.Y.S. 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-examination-of-darling-nyappdiv-1905.

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