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IN RE MILLER

September 3, 1941

In re MILLER


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a motion for an order vacating the order of this Court dated June 30th, 1941, which stayed the Empire State Mercantile Co. Inc., from proceeding with the collection of its judgment, and for an order granting the movant herein such other, further and different relief as to this Court may seem just and proper in the premises.

On December 17th, 1940, the creditor herein recovered a judgment against the bankrupt, in the Municipal Court of the City of New York, Borough of Manhattan, First District, no part of which has been paid.

 On January 6th, 1941, the judgment creditor served a subpoena in supplementary proceedings on his judgment debtor, the bankrupt herein.

 On April 15th, 1941, an order was made by the City Court of the City of New York appointing a State Court receiver of the judgment debtor's personal property.

 On the same day the order was filed with the Clerk of the County of New York.

 On May 5th, 1941, the receiver qualified, by filing his bond as such receiver, in the office of the Clerk of the County of New York.

 On June 27th, 1941, the judgment debtor, the bankrupt herein, filed a voluntary petition in bankruptcy.

 On June 28th, 1941, he was adjudged a bankrupt.

 Under the provisions of Section 808 of the Civil Practice Act of the State of New York, the receiver's title to the personal property of the judgment debtor relates back to the date when the proceeding was instituted by the service of the order, or subpoena, requiring him to appear for examination, which subpoena was served on the judgment debtor on January 6th, 1941, more than four months prior to his adjudication in bankruptcy.

 On behalf of the bankrupt, it is contended that by reason of the failure to file a certified copy of the order appointing the receiver, in the office of the Clerk of the County of Kings, in which it is contended that the judgment debtor resided, title to the bankrupt's personal property did not vest in the State Court receiver.

 That contention is not sustained, as Section 809 of the Civil Practice Act, which provides for the filing of receivership orders, as amended effective September 1st, 1935, in its last paragraph provides: "The failure to file the order shall not affect the proceeding or the receivership, except that persons having no knowledge thereof shall not be bound thereby."

 On behalf of the bankrupt it is also contended, that the supplementary proceedings which were instituted against him in the City Court, New York County, were defective, because he should have been examined in the City Court, Kings County.

 That contention is not sustained, as under Section 777 of the Civil Practice Act, as amended effective September 1st, 1936, the judgment creditor might, at his option, examine the judgment debtor either in the county of his residence, or in the county where he maintains a place for the transaction of his business, and in the last paragraph of that section it is provided as follows: "Where the judgment was recovered in the municipal court of the city of New York, the proceeding shall be instituted in the ...


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