Aluminum Fabricators, Inc. v. Apex Window Co.

The subpoena for the examination of the judgment debtor herein is dated January 11, 1957, and was returnable at Special Term, Part II, Supreme Court, Engs County, on February 19, 1957. By stipulation of the attorneys for the parties dated February 11, 1957, 350 Broadway, in the county of New York, was designated as the place for the examination. “ The testimony of the judgment debtor, third party or witness, upon the consent of the party or person to be examined or his attorney, may be taken before a notary public or commissioner of deeds and at a place other than in or before the court in which the order or subpoena is returnable with the same force and effect as if such testimony had been taken in or before the court.” (Civ. Prac. Act, § 791.) The said stipulation, by its terms, did not effect a change of venue of the proceeding herein and the venue thereof continued and remains in Engs County, wherein this proceeding was instituted by the subpmna dated January 11, 1957. Therefore, the order appealed from conditionally granting the judgment-creditor's motion to punish the appellants for contempt made at Special Term, Part I, Supreme Court, New York County, was without jurisdiction. (Matter of Backus, 91 App. Div. 266, affd. 179 N. Y. 571.) Order so far as appealed from unanimously reversed on the law, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs, without prejudice to an appropriate application before the Supreme Court, Kings County, for the relief herein sought. Concur—Rabin, J. P., Frank, Valente, McNally and Bergan, JJ.