In the Matter of the Examination of Mary A. Darling, Judgment Debtor, Appellant, in Proceedings Supplementary to Execution upon the Application of The Bank of Port Jefferson, Judgment Creditor, Respondent, under a Judgment Entitled: Supreme Court, Suffolk County, The Bank of Port Jefferson, Plaintiff, v. Mary A. Darling, Defendant

In the Matter of the Examination of Mary A. Darling, Judgment Debtor, Appellant, in Proceedings Supplementary to Execution upon the Application of The Bank of Port Jefferson, Judgment Creditor, Respondent, under a Judgment Entitled: Supreme Court, Suffolk County, The Bank of Port Jefferson, Plaintiff, v. Mary A. Darling, Defendant. Receiver of a judgment debtor — notice of the application for his appointment — what recital in the order appointing him is insufficient to show that the debtor could not be found within the Slate. The following recital in an order for the appointment of a receiver of the- prop- ' erty of a judgment debtor in proceedings supplementary to execution, viz., “And it also appearing that said judgment debtor is a resident of the State of Massachusetts, and that she is at this time within' said State of Massachusetts, notice for the application of this order is dispensed with pursuant to the provisions of the Code of Civil Procedure,” is not a substantial compliance with a provision of section 2464 of the Code of Civil Procedure requiring notice of the application to be given personally to the judgment debtor, “unless the judge is satisfied that he cannot, with reasonable diligence, be found within the State; in which case, the order must recite that fact, and may dispense with notice, or may direct notice to be given in any manner which the judge ' thinks proper.” The mere fact that the judgment debtor resided in the State of Massachusetts and was then within said State does not necessarily establish that the judg- ' ment debtor could not, with reasonable diligence, be served within the State of New York. Appeal by thé defendant, Mary A. Darling, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the. clerk of the county of. Suffolk on the 24th day of June, 1905, denying the defendant’s motion to vacate and set aside a previous order appointing a receiver of the defendant’s property. Thomas J. Ritch, Jr., for the appellant. Ralph J. Hawkins, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: Section 2464 of the Code of Civil Procedure, relative to the appointment of a receiver of the property of a judgment debtor in proceedings supplementary to execution, provides: “ At least two days’ notice of the application for the order appointing a receiver, must be given personally to the judgment debtor, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the State; in which case, the order must recite that fact, and may dispense with notice, or may direct notice to be given in any manner which the judge thinks proper.” It is insisted upon his appeal that there was no proof upon which the judge could be satisfied that the judgment debtor could not with reasonable diligence be found within the State, and that the order contains no recital of that fact. The recital in the order is as. follows: “ And it also appearing that said judgment 'debtor is a resident of the State of Massachusetts, and that she is at this time within said State of Massachusetts, notice for the application of this order is dispensed with pursuant to the provisions of the Code of Civil Procedure.” It is unnecessary to consider whether the proof was sufiicient to establish the fact required, because it is clear that the recital in this order is not a substantial compliance with the requirements of the statute. It does not necessarily follow from the mere fact that the judgment debtor resided in the State of Massachusetts and was then within said State, that she could not with reasonable diligence be served within the State of New York. (Kennedy v. Lamb, 182 N. Y. 228.) It may have been possible to find her within the State of New York within twenty-four hours after the making of the order, and there is no statement contained in this order to indicate that the judge granting it was satisfied that the judgment debtor could not with reasonable diligence be found within the State of New York. For this reason the order 'should be reversed, with ten dollars costs and disbursements, and the motion granted, with costs. • _ , Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred. Order reversed, with! ten dollars costs andy disbursements, and motion to -set aside the order appointing receiver granted, with costs,