Citation Numbers: 28 Misc. 2d 136
Judges: Cone
Filed Date: 10/17/1960
Status: Precedential
Modified Date: 2/5/2022
The defendant moves to vacate an ex parte order made pursuant to section 977-b of the Civil Practice Act. [See, also, 12 A D 2d 486.] The basis for the order was that personal service of the summons could not be effected within the State of New York with due diligence and that defendant, a foreign corporation having assets, credits and other property in New York, has been nationalized and has ceased to do business. The defendant further moves that plaintiff post a bond as a condition to the maintenance of the action.
Plaintiff asserts that at the time the application was made herein there was an existing attachment on one of defendant’s planes and by reason thereof defendant ceased its operations and closed its offices. If what plaintiff asserts is true it cannot be said that the service could be effected with due diligence.
From the affidavits presented, a determination cannot be made that the representations made by the plaintiff were false. The requisite jurisdictional facts for the appointment of a temporary receiver have been set up by the plaintiff. All issues with respect to these facts are to be determined upon a trial thereof and if they will not be upheld, then the temporary receiver will be removed (see Oliner v. American-Oriental Banking Corp., 252 App. Div. 212, affd. 277 N. Y. 588). The defendant may by promptly filing an answer obtain an early trial of the issues and is entitled to an order setting the case for trial on a day certain as a preferred cause (Patton v. Compania Aerea Viajes Exp. de Venezuela, supra).
The motion to vacate the ex parte order is accordingly denied. No basis having been shown to require plaintiff to post a bond, that branch of the motion is also denied. The temporary receiver’s motion to direct the Chase Manhattan Bank and the City Sheriff of the City of New York to turn over to him all of the assets of the defendant corporation in their hands is granted. Settle orders on notice.