Henry v. Furbish

Scotchman, J. This proceeding was begun by obtaining a third party order, in supplementary proceedings, for the examination of Norton Chase, as receiver, appointed of the above-named judgment debtor in a Supreme Court proceeding. [823] Chase appeared pursuant to said order and was examined. Upon his testimony there given and an affidavit made by Mr, Daley in which he states: “ I have made a search for the judgment debtor herein, but cannot find him. I have been informed by ¡Norton Chase, the receiver of the property of the judgment debtor, that the said judgment debtor is now without the State of ¡New York, and is somewhere in the South, and is not now within this State,” the court was moved to dispense with notice to the judgment debtor and to extend the receivership of Chase to this proceeding; which motion was granted. Two days after, the judgment debtor, upon an order to show cause, moved at Special Term to vacate the said order extending the receivership and to dismiss the proceeding. This motion was denied. Prom the order denying that motion this appeal is taken. Section 2464 of the Code of Civil Procedure 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.” Due diligence has been defined in the case of McCracken v. Flanagan, 127 N. Y. 493. The facts set forth in Daley’s affidavit, as above mentioned, do not amount to reasonable diligence. It simply says, “ I have made a search for the judgment debtor and cannot find him.” It does not state where he made the search. The section quoted says that if the judgment debtor cannot be found with reasonable diligence within the State. The affidavit further states that Mr. Chase, the receiver, informed him that the judgment debtor was in the South, but there, is no source whatever shown from which Chase derived his knowledge. For tina reason the court had no power to make the order dispensing with the giving of two days’ notice as required by said section. Failure to give such notice is an irregularity, for which the order should be set aside. Strong v. Epstein, 14 Abb. N. C. 322; Grace v. Curtiss, 3 Misc. Rep. 558, 23 N. Y. Supp. 321. The order appealed from, therefore, as far as it extended the receivership, etc., is reversed, and as far as it denies the dismissal of this proceeding it is affirmed, because the affidavit states that “ execution against the judgment debtor was issued to the sheriff of the counties of ¡New York and Kings.” It does not say “ to the counties of ¡New York or Kings.” It is stated in the conjunctive and for that reason we hold the affidavit sufficient to satisfy section 2458 of the Code of Civil Procedure as far as New York county is concerned. The affidavit fully sets forth that [824] judgment was obtained in the City Court; that it was docketed in New York county, where said Furbish at the time of the commencement of this special proceeding resided and now resides, and that the sheriff had returned said execution unsatisfied. It is to be considered that the defendant, the judgment debtor, makes no affidavit whatsoever on these motions; that his residence is nowhere disclosed; that the affidavit of Lounsbury, the father-in-law of said judgment debtor, is disregarded because it is verified before John Naumer, as commissioner of deeds, who is the attorney for the judgment debtor on these motions. No costs to either side on this appeal. Order modified as stated herein. O’Dwyer, J., concurs. Order reversed so far as it extends receivership, and affirmed as far as it denies the dismissal of the proceeding, without costs.