The majority opinion represents what was once the law but no longer is. While it is quite true that a nonresident visiting this State for the purpose of attending judicial proceedings here is immune from service of process during the time he is necessarily here (Thermoid Co. v. Fabel, 4 N Y 2d 494), “process ” here means a summons or other paper which initiates an action or special proceeding. The theory is that the temporary presence of the prospective defendant in this State for such purpose does not give the court jurisdiction. The immunity does not extend to papers served in the course of an action where the court already has jurisdiction of the defendant. Up to the enactment of the CPLR, proceedings supplementary to judgment were special proceedings quite separate and apart from the action or proceeding in which judgment was obtained. CPLR article 52 provides for enforcement of money judgments. Professor Siegel’s Practice Commentary (McKinney’s Cons. Laws of N. Y., Book 7B, p. 20) points out that disclosure by examination of a judgment debtor’s assets is a remedy that does not involve a new or special proceeding. Actually, the view that an examination to discover assets was a separate proceeding was a mistaken one (McKinney’s, op. cit., p. 73). Be that as it may, the statutory designation no longer makes this procedural step a distinct special proceeding.
The cases cited in the majority opinion are inapposite. One is concerned with whether a subpoena may be served without the State pursuant to the “ long-arm ” statute (CPLR 304) and the court held it could not (Israel Discount Bank v. P. S. Prods. Corp., 65 Misc 2d 1002). The other case is actually an authority supporting the view herein expressed (Siemens & Halske GmbH. *373v. Gres, 37 A D 2d 768). Special Term had held valid a subpoena for examination in supplementary proceedings served in New Jersey on the ground that it initiated a new proceeding and hence was permissible under CPLR 304. This court reversed on the ground that it did not start a new special proceeding and hence was unauthorized under the statute.
The order should be affirmed.
Nunez and Murphy, JJ., concur with McGivern, P. J.; Steuer, J., dissents in an opinion in which Capozzoli, J., concurs.
Order, .Supreme Court, New York County, entered on August 2,1974, reversed, on the law and on the facts, without costs and without disbursements, the Referee’s report confirmed and the motion to quash the subpoena granted.