The action was commenced by plaintiff Dorothy C. Barton against her husband, the defendant Clifford Frank Barton, for a separation. The summons and complaint were served on defendant without the jurisdiction pursuant to the provisions of section 235 of the Civil Practice Act. The defendant has not appeared or answered and is not amenable to personal service within the jurisdiction.
Thereafter the plaintiff was appointed receiver and sequestrator pursuant to section 1171-a of the Civil Practice Act and subsequently obtained an award of $700 per month temporary alimony for herself and infant child and a counsel fee of $2,500. The orders for this two-fold relief were granted on default and predicated upon service of notice without the jurisdiction by mail.
Thereafter by order to show cause in the separation action, the appellant Victor Nathan Barton, a brother of the defendant and his partner in business in this jurisdiction, was directed to give reasons why he should not produce the books of the partnership *45for examination and inspection; why he should not open the safe deposit box of the partnership in the presence of the receiver; and why he should not appear for oral examination concerning the property of the defendant. The application was granted. So far as appears, no judgment has been entered.
Reversal is sought upon the ground that the court was without power to make the order appealed from. We disagree with this contention. The motion having been made in the separation action to which the appellant Victor Nathan Barton was not a party, the application took the form of a special proceeding. (Rosenberg v. Rosenberg, 259 N. Y. 338, 340, 341; Geary v. Geary, 272 id. 390, 397.) Appellant, therefore, was properly before the court, though not a party to the action. This is the effect of the holding in the two cases cited. In the first, reversal of the order directing the third party insurance company to pay the alleged surrender value of certain policies on the life of the defendant husband to the plaintiff wife, receiver in sequestration, was predicated upon the issue raised by the insurance company that there was no property in its hands to which the plaintiff was entitled. This issue, it was held, could not be determined summarily on affidavits. In Geary v. Geary {supra) no such issue was presented and the order directing the stranger to the action to turn over pension moneys due to defendant husband was affirmed.
It has been held that the practice under section 1171-a is properly assimilated to attachment proceedings as being similar in nature. (Matthews v. Matthews, 240 N. Y. 28, 35; 247 id. 32.) This being so, it would seem that plaintiff wife as sequestrator should have a remedy in aid of her order of sequestration similar to that afforded under section 919 of the Civil Practice Act to parties having an attachment.
The present proceeding is merely in aid of the sequestration and seeks only to discover what assets properly may be said to have been reduced to possession, tangible or intangible. It does not seek to enforce the payment of a disputed debt or other rights respecting which a trial might be necessary. The case, therefore, differs from the situation presented in Rosenberg v. Rosenberg (supra). Here, concededly, the defendant husband still retains some interest in the partnership.
It has long since been held that an examination of this nature is proper and lies within “ the inherent power ” of the court. This was the view of Cullen, J., in Mathushek Piano Mfg. Co. v. Pearce (79 Hun, 417). This procedure was but the old practice in chancery before the master as to persons properly before the court. (Fitzburgh v. Everingham, 6 Paige, 29; 1 Clark, The Law of *46Receivers, §§ 539-541, pp. 610-611.) Here, as already stated, the appellant Victor Nathan Barton was properly brought before the court.
It follows, therefore, that the order appealed from should be affirmed, with twenty dollars costs and disbursements.
Martin, P. J., and Glennon, J., concur; Townley and Untermyer, JJ., dissent and vote to reverse and deny the motion.