Opinion
June 29, 1939.
Appeal from the City Court of the City of New York, New York County.
Tetelman Tetelman ( Louis L. Tetelman of counsel), for the appellant.
Milbank, Tweed Hope ( Clarence S. Birkmeyer of counsel), for the respondent.
The subpoena served on the third party contained a valid and enforcible restraint. The judgment creditor, in indorsing the provisions of section 781 of the Civil Practice Act on the subpoena, which was dated October 8, 1938, omitted the amendments effective September 1, 1938. These amendments did not constitute a substantial variation from the statute. The amendments were immaterial in the circumstances of this case and the failure to include them in no way prejudiced or misled the third party.
The intent of the Legislature was to eliminate the red tape and the technicalities which in the past so frequently put obstacles in the way of the collection of judgments. Section 787 of the Civil Practice Act provides:
"No order, subpoena or warrant shall be vacated or quashed nor shall any judgment debtor, third party or witness be relieved from compliance therewith because of any informality or irregularity therein, but the same may be amended so as to remedy such irregularity or informality as justice may require."
Justice requires that the validity of the subpoena and the restraining provisions therein be upheld.
Orders reversed, with ten dollars costs and disbursements, third party's motion denied, judgment creditor's motion granted, with ten dollars costs, and third party fined the amount of the judgment and matter remitted to City Court to proceed accordingly.
FRANKENTHALER and SHIENTAG, JJ., concur; NOONAN, J., dissents.