Opinion
March 9, 1956
Harry G. Coman for judgment creditor.
In proceeding supplementary to execution the judgment creditor its applied for an order to show cause directing a third party to pay the judgment creditor the sum of $3,104.41 with interest, disbursements and counsel fees. A sum in excess of that amount is on deposit with the third party to the credit of the judgment debtor. Permission has been sought to serve the judgment debtor pursuant to section 794 of the Civil Practice Act by registered mail. The papers in support of the application allege that the judgment debtor is a nonresident of this country and for several years has resided in Tampico Tamps, Mexico.
Section 27 of the New York City Court Act provides, "All process and mandates of the court may be executed in any part of the city of New York." (Italics supplied.) Prior to 1933 the section provided for the execution of process in any part of the State of New York. In American Historical Soc. v. Glenn ( 248 N.Y. 445) it was held that the provision for service throughout the State of New York was unconstitutional and void. The provision of the Constitution which provides that the City Court of the City of New York shall have concurrent jurisdiction with the Supreme Court (N.Y. State Const., art. VI, § 15) granted to the City Court concurrent jurisdiction of subject matter, not of territorial power. Service of the order to show cause by registered mail or otherwise outside the limits of the city of New York would therefore be a nullity. ( Matter of Degenstein v. China Lantern, 200 Misc. 338; Bischoff v. Schnepp, 139 Misc. 293.)
Accordingly the application is denied.