Bradley v. Bradley

The action is by a wife against her husband for a legal separation and the respondent, not a party to the action, was appointed receiver of the personal property of the defendant and the’ rents and profits of his real property and was ordered to apply the same to the payment of alimony and counsel fées directed to be paid to plaintiff by the defendant.. The receiver states that while he .lias reason to believe that defendant is in partnership with his father in business in the city of Rew York, and' entitled to a certain share of the profits of said business, yet respondent has been unable to locate any property belonging to defendant of which’he may take possession. It appears that the defendant-had paid all the alimony and counsel fees due down to the time that the order for liis examination was made, and that his attorney then-.held enough money to pay the next installment of alimony to fall due. The order for examination sought to be vacated was made on tlie application of the receiver and directs the defendant to be examined “ touching his property, both real and personal, and also touching any *752property which he may now, or which he may have formerly held possession of belonging to his wife, * * * the plaintiff in this action.” ' We have been.referred to no authority, and have been able to find none authorizing such an order as this. It does not fall within sections 803 to 809 of the Code of Civil Procedure relating to a discovery of books and papers, because the procedure therein authorized must be taken by a party to the action or proceeding and respondent is not a party. Furthermore it is an examination and not a discovery which is sought. Nor can the order be sustained under section 870 et.seq. for these sections refer to examinations at the instance- of a party or of one who expects to be a party.. Particularly is the "order unauthorized in so far as it requires the defendant to, be examined touching property of his wife which he has or had in his possession. With that, the- receiver had nothing to do. His receivership extends only to the property belonging to defendant, and not to property belonging to the wife in whose hands soever it may be.

, The order should be reversed, with ten dollars costs and disbursements, and motion to vacate order granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.