Geary v. Geary

• Court: New York Court of Appeals
• Writing for the Court: LEHMAN
• Citation: 6 N.E.2d 67,272 N.Y. 390
• Parties: GEARY v. GEARY.
• Decision Date: 31 December 1936

272 N.Y. 390
6 N.E.2d 67

GEARY
v.
GEARY.

Court of Appeals of New York.

Dec. 31, 1936.

Action by Camille Geary against John Richard Geary, wherein Caruthers Ewing was appointed receiver of property of defendant, and wherein the receiver filed motion for an order directing the General Electric Company to forthwith pay over to the receiver all moneys in its possession or control belonging to defendant Geary. From an order of the Appellate Division, First Department (248 App.Div. 705, 290 N.Y.S. 111) which affirmed an adverse order of the Special Term granting a motion by the respondent Caruthers Ewing, as receiver, for an order directing the General Electric Company to continue to turn over to such receiver all moneys due or to become due to the appellant under a pension or retirement plan of said company and restraining the appellant and representatives of the General Electric Company from interfering with the receiver in the discharge of his duties or from paying out the said moneys other than to the receiver, the defendant Geary appeals.

Affirmed.

[6 N.E.2d 68]

Appeal from Supreme Court, Appellate Division, First Department.
Carroll G. Walter and James Lee Kauffman, both of New York City, for appellant.

Edward D. Bolton, of New York City, for respondent Caruthers Ewing.

LEHMAN, Judge.

The plaintiff and the defendant were married in the city of New York in 1918. They resided in Japan after the marriage. In February, 1931, the plaintiff, having returned to the state of New York, obtained an order for the service upon the defendant, by publication or personally in the state of California, of the summons in an action which the plaintiff was about to begin in this state for a separation. Service of the summons and verified complaint was made upon the defendant personally in California on March 8, 1932. The defendant then was, and still is, a resident of Japan. On March 24th attorneys for the defendant appeared

[6 N.E.2d 69]

‘specially’ for the defendant ‘for the purpose and solely for the purpose of the motion to be made herein objecting to and denying the jurisdiction of the court over the person of the defendant and the subject of this action and for such reasons asking for a dismissal of the complaint herein and for no other purpose.’ An order to show cause why the complaint should not be dismissed was made returnable on March 28, 1932, and after a hearing the motion was denied. In March, 1933, a judgment in the action was entered in the plaintiff's favor upon the defendant's default. It provides that ‘the plaintiff is entitled to a judgment of separation, from the bed and board of the defendant for ever, because of the abandonment of the plaintiff by the defendant, because of the cruel and inhuman treatment of plaintiff by the defendant, and because of his failure, neglect and refusal to provide for the plaintiff and the issue of the marriage of the plaintiff and defendant.’ The judgment awards to the plaintiff the sole custody of the two infant sons of the parties and orders the defendant to pay to the plaintiff each month the sum of $3,000 for her support and the support of the two children. It further provides that ‘Caruthers Ewing, Esq., of 41 East 42nd Street, Borough of Manhattan, City of New York, the Receiver appointed by this Court by order dated the 7th day of April, 1932, be and he is hereby authorized to continue the Receivership in this action, for the support, maintenance and education of the children of the marriage, for the support of the plaintiff, and for her expenses in bringing and carrying this action and the proceedings incidental thereto or connected therewith, with the usual powers and directions.’

The order dated the 7th day of April, 1932, appointing Caruthers Ewing receiver, which is referred to in the judgment, was an order for the sequestration of the defendant's property made in the pending separation action pursuant to the provisions of section 1171-a of the Civil Practice Act. At the time of the service of the summons and complaint upon the defendant in California, the defendant was served also with an order to show cause why an order should not be entered, sequestrating the property of the defendant within this state and appointing a receiver to take and hold the same until the further order of the court. On the return day of the order to show cause the motion was adjourned to March 28, 1932. Prior to that day the plaintiff, by order to show cause, moved for alimony pendente lite and for counsel fee. That motion was also returnable on March 28th.

On that day not only the plaintiff's motions for orders sequestrating the defendant's property within the state and for alimony and counsel fees were made returnable, but also the defendant's motion to set aside the service of the summons in the action on the ground that the court had not, by service of the summons without the state, obtained jurisdiction of the person of the defendant or the subject matter of the action. The defendant could not appear generally and oppose the plaintiff's motions without submitting himself to the jurisdiction of the court and abandoning the ground of his own motion to dismiss the complaint. If he succeeded upon his own motion to dismiss the complaint, then the plaintiff's motions must, in any event, fail because no action for separation would then be pending in which alimony could be granted. As we have said, the defendant's motion was denied and then the plaintiff's motions were granted upon the defendant's default. A motion made thereafter by the defendant to vacate the orders granting the motion for alimony and the motion to sequestrate the defendant's property was denied.

The order April 7, 1932, sequestrating the defendant's personal property and appointing Caruthers Ewing receiver of such property, provides among other things that the General Electric Company of Schenectady, N. Y., and other corporations named in the order, deliver and turn over to the said receiver ‘all moneys, stocks, bonds and other property, in their possession, or control due or to become due to the defendant, John Richard Geary.’ The defendant was entitled to moneys from a pension or retirement fund of General Electric Company, and in September, 1932, an order was made directing the receiver ‘to take possession of all moneys which have become due or shall hereafter become due to the defendant out of the pension and/or retirement fund of the General Electric Company * * * and pay over the said funds to the plaintiff after deducting therefrom his lawful commissions and expenses.’

[6 N.E.2d 70]

Pursuant to these various orders of...