Chesapeake Industries, Inc. v. Gatti ( 1957 )

Felix C. Benvenga, J.

This is a motion for an order directing the third party in supplementary proceedings to pay to the judgment creditor moneys on account of its alleged indebtedness to the judgment debtor. The application is made pursuant to subdivision 2 of section 794 of the Civil Practice Act, which provides that notice thereof may be served “ either personally or as the court may direct ” upon both the judgment debtor and the third party. The order to show cause directs that service be made “ on the judgment debtor’s attorney and on said third party.” Service was made on the third party and on the attorney who concededly represented the judgment debtor in the action which resulted in the judgment against him and who presently represents him on an appeal which is pending from that judgment. Such attorney has submitted an affidavit in which he states that, since he never appeared as attorney for the “ judgment debtor ” in this proceeding, service on him is not sufficient compliance with the statute. This is mere quibbling. The order to show cause contemplates service upon him, even though he chooses not to regard himself as attorney for the “ judgment debtor ”. It is sufficient to advise the judgment debtor of the relief sought against him; sufficient to give him an opportunity to be heard, if he so desires, and sufficient to constitute due process (cf. Matter of Bartley v. Bartley, 255 App. Div. 992; Karpf v. Karpf, 260 App. Div. 701, 703-704; Carmody on New York Practice [7th ed.], § 968).

Motion is granted. Settle order.