In re the Examination of Dawes

108 A.D. 174, 96 N.Y.S. 52

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1905
• Status: Published

Opinions

Spring, J.:

The plaintiffs in the action recovered a judgment against Rachel E. Elliott. The present proceeding was commenced with the granting of an order by the county judge of Erie county, pursuant to subdivision 3 of section 2432 and section 2441 of the Codq of Civil Procedure, for the examination of Dawes, upon .an affidavit showing that he had property of the judgment debtor. The order was served on Dawes personally by one of the judgment creditors. Dawes did not appear, but subsequently, upon his application, the service was set aside by the county judge. The only question for review is whether the service of the order by the judgment creditor was proper.

Section 425 of the Code of Civil Procedure, pertaining to the service of a summons in an action, provides that it may be served “ by any person other than- a party to the action, except where it is otherwise specially prescribed by law.” Section '433 of the Code' of Civil Procedure is as follows: “ The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, * * * except where special provision for the service thereof is otherwise made by law.” This proceeding is a special proceeding. (Code Civ. Proc. § 2433.)

Section 2452 of the Code of Civil Procedure sets forth the manner in, which the order must be served, but does not designate the .person who may or may not make the servjce.

The effect of the Code provisions, therefore, is that primarily the process by which an action or special proceeding is commenced cannot be served by a' party to the action or proceeding, unless the Code otherwise directs. The prohibition is general, and, in order to sustain service by' a party, some explicit authority should be found bringing the case within the excepted special provision.

Section 2452 of the Code of Civil Procedure d(oes contain certain requirements essential to the valid service of ati order in supplementary proceedings not applicable to the service of a summons. None of these provisions pertain to the person by whom the order may be served. The prohibitiqn against the party in section'425 of said Code, therefore, obtains because there is no provision “ otherwise made by law,” and which is necessary to create the exception.

While the manner of service has been provided for, yet the clause just referred to seems fairly to imply that the distinct inhibition ' against a party making service in said section 425 of the Code of Civil Procedure is applicable unless.the' contrary explicitly appears.1

Some support for this construction may be found in the .practice relating to the commencement of a proceeding in Surrogate’s. Court, which is a special proceeding commenced by a citation. '(§ 2516.)

Section 2520 of the Code of Civil Procedure provides for the manner of serving this process, but distinctly provides that it may be served by a party to the special proceeding. If the fact that it designates the manner in which service is to be made destroys the effect of sections 425 and 433, prohibiting a party from serving process, it would be unnecessary to provide in terms that a party may serve a citation. ' ' ■

There is full as much reason for inhibiting a party from making ' service of the order in supplementary proceedings as of the summons. There is no complication in serving a summons, while certain additional requirements are necessary in serving 'an order for .proceedings supplemental to execution. (§ 2452.)

Again, disobedience of the order is punishable “ as for a contempt.” (§ 2457.)

In proceedings to punish for disobeying the order if served by a party, the temptation to prevaricate would be extended, and unseemly controversies over the manner of service .would be frequent.

Public policy would seem to require reasonably strict adherence' to the general rule of. prohibition,' unless the given case is clearly within the exception mentioned in section 433.

The order should be affirmed, with ten dollars costs and" disbursements.

All concurred, except McLennan, P. J., dissenting.