Nankivel v. Omsk All-Russian Gov't

• Decision Date: 04 December 1923
• Citation: 142 N.E. 569,237 N.Y. 150
• Parties: NANKIVEL et al. v. OMSK ALL-RUSSIAN GOVERNMENT et al.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 150

142 N.E. 569

NANKIVEL et al.

v.OMSK ALL-RUSSIAN GOVERNMENT et al.

Court of Appeals of New York.

Dec. 4, 1923.

Action by Claude M. Nankivel and another against Omsk All-Russian Government. From an order of the Appellate Division of the Supreme Court in the First judicial department (203 App. Div. 740,197 N. Y. Supp. 467) which affirmed an order of the special term denying a motion to vacate an order for the examination of defendant in supplementary proceedings, members of the firm of Kidder, Peabody & Co. appeal by permission.

Orders reversed, and motion granted, and third question certified answered in the affirmative.

Appeal, by permission, by third parties from an order of the Appellate Division of the Supreme Court in the First judicial department, entered December 22, 1922, which affirmed an order of Special Term denying a motion to vacate an order for the examination of defendant in supplementary proceedings.

The following questions were certified:

‘(1) Is the judgment of the New York Supreme Court herein, which was rendered against defendant Omsk All-Russian Government upon default in appearance, void by reason of the facts alleged in the verified complaint respecting the status of the defendant and the nature of the cause of action therein set forth?

‘(2) Does the fact that service of the summons and verified complaint was made only upon the alleged managing agent of defendant within the state, who at the time of the service thereof was the financial attaché of the Russian embassy in the United States duly recognized as such by the government of the United States, render void the judgment herein entered upon such service?

‘(3) Does the record on appeal present facts, or have the courts judicial knowledge of facts, respecting the existence of the defendant Omsk All-Russian Government, which show that, prior to the commencement of the action in which the judgment herein was entered, said defendant had so totally ceased to exist as to render void the judgment entered against it in the action thereafter commenced?

‘(4) Is a third party entitled, upon motion, to have vacated and set aside an order for its examination in proceedings supplementary to execution upon a judgment of the New York Supreme Court rendered by default against a nonappearing defendant, if such third party shows such judgment to be void by facts appearing upon the face of the record of the action in which such judgment was rendered?

‘(5) Is a third party entitled, upon motion, to have vacated and set aside an order for its examination in proceedings supplementary to execution upon a judgment of the New York Supreme Court, rendered by default against a nonappearing defendant, if such third party shows such judgment to be void by facts outside the record of the action in which such judgment was rendered, but not in contradiction of such record?

‘(6) Is a third party entitled upon motion to have vacated and set aside an order for its examination in proceedings supplementary to execution upon a judgment of the New York Supreme Court, rendered by default against a nonappearing defendant, if such third party shows such judgment to be void by facts outside the record of the action in which such judgment was rendered and in contradiction of such record?

‘(7) Is the judgment upon which the proceedings supplementary to execution herein are based void, by reason of any of the facts presented by the record on appeal or within the judicial knowledge of our courts?

‘(8) If so, is the third party in these supplementary proceedings entitled upon motion to have vacated and set aside the order for its examination herein by reason of such invalidity?

‘(9) Is a direction in a subpoena duces tecum in supplementary proceedings valid, which requires a third party to produce upon examination in such proceedings all documents, accounts, papers, checks, vouchers, and letters dealing with or in any way connected with accounts standing in the name of ‘Serge Ughet, Russian Financial Attaché, Account Transfers,’ or of ‘Serge Ughet, Russian Financial Attaché, Account Loan,’ said Serge Ughet at the time being the financial attaché to the Russian embassy, duly recognized as such by the government of the United States?

‘(10) Is a third party in proceedings supplementary to execution entitled upon motion to have set aside and declared null and void and of no effect the service of a subpoena duces tecum, which requires such third party to produce inter alia, upon the examination, all documents, accounts, papers, checks, vouchers, and letters dealing with or in any way connected with accounts standing in the name of ‘Serge Ughet, Russian Financial Attaché, Account Transfers,’ or of ‘Serge Ughet, Russian Financial Attaché, Account Loan,’ said Serge Ughet at the time being being the financial attaché to the Russian embassy, duly recognized as such by the government of the United States?'

Appeal from Supreme Court, Appellate Division, First Department.

Frederic R. Coudert and Mahlon B. Doing, both of New York City, for appellants.

George Zabriskie and William E. Sims, both of New York City, for respondents.

POUND, J.

The primary question is as to the validity of a judgment for $96,392.38 entered by default in Supreme Court, New York county, on May 9, 1922, against Omsk All-Russian Government in an action brought to recover the value of certain automobiles requisitioned and seized by it within its territory during the months of December, 1918, and January, February, and March, 1919. The summons and complaint were delivered on April 12, 1922, in New York, to Serge Ughet, said to be the managing agent of defendant.

Appellants resist an order for their examination in supplementary proceedings in aid of the execution issued on the judgment and a subpoena...