This is a motion to vacate a subpoena in supplementary proceedings. The witness is the mother of the judgment debtor. The judgment was obtained for unpaid alimony and support of the debtor’s children. When the debtor was found in contempt he fled the jurisdiction and his whereabouts are unknown to the judgment creditor and all efforts to locate him or to enforce the judgment or obtain support have been successfully frustrated. On this motion to vacate two points have been raised: the validity of the service and the right to examine.
As to the first, it appears almost without question that the process server made several unsuccessful attempts to serve the witness. The contention in the dissent to the contrary must have overlooked about the only fact stated in Mrs. Bowdoin’s affidavit, namely, that she was constantly being harassed by the efforts to serve her. Based upon this, service was attempted to be made pursuant to CPLB. 308 (subd. 3). The section allows service to be made by the f ollowing steps: 1. Mailing to the last known residence. 2. Delivery of the process to a person of suitable age and discretion at the place of business, dwelling house or usual place of abode of the person to be served. 3. Filing proof of the same. This applies to the service of a subpoena addressed to "a person found within the State (Beach v. Lost Mountain Manor, 53 Misc 2d 563, Macken, J.). Pursuant thereto the process server sought the witness at the Dorchester Hotel. At the hotel he was informed that Mrs. Bowdoin, the witness, was not there but that she had left a telephone number. He checked with the telephone company and was informed that Mrs. owdoin was listed at that number and the address was 178 East ¿^Street. On several visits to that address he was informed Bov?- Hughes that Mrs. Bowdoin was then in Europe. Finally qpo^ mber 14, 1968, Hughes told him that although Mrs. huilcii then in the building he could not see her. He there- & subpoena with him and mailed a copy to the
*135None of this is denied except by negative pregnants and the affidavit of an attorney not claiming to have knowledge of the facts. Mrs. Bowdoin submits an affidavit in which she makes no statement whatever as to her residence, her presence in the State, her telephone listing or her connection with the East 73rd Street building. Hughes ’ affidavit merely states he ‘ ‘ conducts ’ ’ a business known as Bowdoin Antiques in the building. He does not say that Mrs. Bowdoin has no connection with the business, nor does he deny that Mrs. Bowdoin was present in the building at the time of the alleged service. It was further shown that Mrs. Bowdoin’s late husband was the prior owner of the building and no explanation is given of the peculiar circumstances of the continuation of the name and the telephone listing. "
In the light of the prima facie showing, these failures to deny except by argument and attorney’s conclusory statements — while the persons with knowledge maintain a discrete silence — indicate clearly that this ground for the motion is pure sham.
On the second ground, the proffered witness’ affidavit is drawn almost in the words of section 782 of the superseded Civil Practice Act. The governing provisions of CPLB 5223 are more extensive. All that need be shown is ‘ matter relevant to the satisfaction of the judgment.” The judgment creditor asserts that the witness knows the present whereabouts of the debtor, which would certainly be relevant to obtaining satisfaction of the judgment. Also it is alleged that the witness has a joint bank account with the debtor. Although the details of this account are not given, the witness does not deny this execpt in the most conclusory terms.
The order entered January 22,1969, vacating subpoena in supplementary proceedings should be reversed on the law and the facts and the motion denied without costs.