Cregg v. Brown

Full title: FRANK J. CREGG, JR., as Trustee of JULIAN S. BROWN, Bankrupt, Respondent…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 11, 1942

263 App. Div. 1056 (N.Y. App. Div. 1942)

Opinion

March 11, 1942.

Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.

Order affirmed, without costs of this appeal to any party.

All concur, except Taylor, J., who dissents and votes for reversal and for a denial of the motion in the following memorandum:

The court did not acquire jurisdiction of Brown. This is a special proceeding. ( Peri v. N.Y.C.R.R. Co., 152 N.Y. 521.) The service of the order should be made in the manner required for service of a summons. (Rules Civ. Prac. rule 21; Smith v. First National Bank, 103 Misc. 274; modfd. on another point, 184 App. Div. 719; Enterberg v. Goodman, 153 Misc. 205, 206; affd., 242 App. Div. 825.) The petitioners are not entitled to a charging lien upon income payable to Brown under the trust set up by his mother's will. ( Ekelman v. Marano, 251 N.Y. 173, 176, and Robinson v. Rogers, 237 id. 467.) (The resettled order grants a motion to establish attorneys' liens upon the interest and fund due or to become due to defendant Julian S. Brown from the estate of Mary L. Brown.)