In re Cotton

105 N.Y.S. 347 | N.Y. Sup. Ct. | 1907

Maddox, J.

Until the passage of the Municipal Court Act of 1902 (chap. 580) an action could be maintained in that court only after personal service of summons or by the voluntary appearance of and joinder of issue by the parties (Laws of 1882, chap. 410, §§ 1296, 1300; Greater N. Y. charter [Laws of 1897, chap. 378], §§ 1331, 1610, as amd. by Laws of 1901, chap. 466) ; but, by the act of 1902 (chap. 580, §§ 32, 33, 34), there now may be a substituted-service of summons and jurisdiction of the person obtained in that way.

The language of section 33 of the Municipal Court Act is literally the same as that of section 436 of the Code of Civil Procedure, save that by the Code section the summons and order for such service shall be deposited “ in the post-office at the place where he resides;” while section 33 of the Municipal Court Act provides that the summons and order shall be deposited “in a post-office in the borough in which he resides.”

Here plaintiffs have had judgment in the Municipal Court and, a transcript thereof having been docketed in the county clerk’s office, the judgment became a judgment of this court. Mun. Ct. Act, § 261. An execution was issued thereon to the sheriff which was returned unsatisfied; and now the judgment creditors seek, in supplementary proceedings, to examine third parties as to property of the judgment debtor.

The third parties, appearing by counsel, object to the jurisdiction of the court to make the order here in question, claiming that section 2458 of the Code may be availed of only in a case where jurisdiction is obtained by substituted service of a summons issued cut of a court of record. Code Civ. Pro., § 435.

A judgment creditor may maintain supplementary proceedings to examine the judgment debtor or his debtor or bailee when the judgment, being for a sum not less than twenty-five dollars, was rendered upon the judgment debtor’s appearance in the action, or where the summons has been personally served, or where substituted service of the summons has been had “in accordance with section 436 of the Code,” and an execution has been issued out of a court of record. § 2458.

Here it appears that substituted service of the summons upon the defendant and judgment debtor was had under and pursuant to the provisions of sections 32 and 33 of the Municipal Court Act (Laws of 1902, chap. 580) and, hence, in accordance also with the requirements of section 436 of the Code.

It will be seen that the language of section 2458 is “in accordance with section 436;” and well may we inquire, how “ in accordance with ” that section, unless it be in conformity with its provisions and requirements ? It is not only in an action where the summons has issued from a court of record and the defendant has been brought in by substituted service that the supplementary proceeding order may be had; but, as I take it, also, that, in any action where substituted service has been made in the manner provided for and required by section 436, the other jurisdictional facts being shown, such order may be granted, provided the judgment has become a judgment of this court.

As before said, the requirements of section 33 of the Municipal Court Act and of section 436 of the Code are alike; and compliance with the provisions of said section 33 in making such substituted service was in accordance with section 436 of the Code. Here, presumably, every requirement of section 33 has been complied with; and the service so made must conform to and accord with its requirements.

If the remedy here sought cannot be had, then a judgment creditor in a Municipal Court action, where substituted service of summons is made, would be deprived of the rights given by title XII of chapter II of the Code of Civil Procedure; and the opportunity to follow the property of the judgment debtor would be lost.

Ordered accordingly.