164 Misc. 15 | City of New York Municipal Court | 1936
This is a motion under section 794 of the Civil Practice Act for a permissive order directed to the Comptroller of the State of New York. The moving party, a judgment creditor of a liquor licensee, mailed from the city of New York a third-party subpoena to the Comptroller of the State of New York at Albany, the subpoena being received by the Comptroller on February 18, 1936.
The Comptroller would be subjected to a most unreasonable burden if required to record and take cognizance of all third-party subpoenas or orders served in relation to licensees who had not surrendered their licenses. It is by no means inconceivable that a judgment creditor might serve a subpoena though the debtor was then operating a going business. In such a case, in view of the many thousands of licenses in force throughout the State, the Comptroller could not be expected to give effect to the third-party subpoena or order in the event of a surrender of license at a later time, perhaps at a much later time.
With certain restrictions, there is a statutory right to surrender and obtain a refund as fixed by the statute. (Alcoholic Beverage Control Law, § 127.) But prior to surrender, the refund is a mere possibility; for should there be no surrender there will be no refund. The right to surrender the license in the future does not presently create the “ property ” or “ indebtedness ” referred to in section 779 of the Civil Practice Act.
In this connection, it should be borne in mind that section 779, Civil Practice Act, presupposes, as an indispensable condition of the institution of third-party supplementary proceedings, that the third party has “ property of the judgment debtor exceeding ten dollars in value, or is indebted to him, in a like sum.” The statute does not sanction or contemplate the institution of such a supplementary proceeding if the third party is not, at the time of the institution of the proceeding, then “ indebted to ” or in possession of “ property ” of the judgment debtor.
Neither at the time of the mailing of the third-party subpoena by the moving parties, nor at the time of its receipt by the Comptroller, had the judgment debtor surrendered its license. It was possible that the judgment debtor would not surrender its license during its term and that, accordingly, a refund would never be even in contemplation. Under such circumstances, there was no justification for service of the third-party subpoena and there could not be justification for giving effect to it.
While the motion is made on behalf of three judgment creditors, their position is the same so far as this application is concerned.
The motion is denied.