Qarnell Lam Schon! Library
Cornell University Library

KFN6066.K92

HAT
3 1924 022 885 531 iaw
GARNISHEE EXECUTION

AND

SUPPLEMENTARY
PROCEEDINGS

Including all the Statutes Involved, and Containing
all Decisions Relating to Garnishee Proceedings
and Executions Secured Thereunder, Together
with Proceedings Supplementary to Execution
under the Code, with an Exhaustive Analysis.

WITH FORMS FOR ALL PROCEEDINGS

By

CHARLES R. KREIDLER, B.S., L.L.B.,
Editor of
Haviland & Greene’s Table of New York Cases, Ete.

Published by
Williamson Law Book Company,
Rochester, New York.
Copyright 1920
By
Williamson Law Book Co.
PREFACE

The amendment of Section 1391 of the Code of Civil Proced-
ure authorizing garnishee execution in this State was of the
utmost importance to creditors and attorneys seeking to enforce
collection of their claims. It was the first time that accruing
salary of a debtor could be reached, as supplementary proceed-
ings have never been available for that purpose. Notwithstand-
ing the fact that the statute authorizing garnishee execution is
embraced in but one section.of the.Code, and is merely a part
of that section, yet its language is by no means clear, and con-
siderable difficulty has arisen in its interpretation. It has re-
quired the aid of the courts to construe its meaning and point
to attorneys the correct procedure. On this account, the need
for a careful and systematic treatment of this subject in the
form of a text book has become imperative. Realizing this, the
author has made an extended study of this subject and given
careful consideration to all the decisions thereunder, and the
following volume covering that and Supplementary Proceedings
has resulted therefrom.

An urgent need for a modern and practical treatment of Sup-
plementary Proceedings has also arisen, due to the fact that
no work written expressly upon that subject has been published
within a period of nearly twenty years. A great number of
decisions have been handed down since that time and the stat-
utes giving this remedy have also been amended during that
period. The remedy of supplementary proceedings, in many
respects, is by no means clear and simple. The various sec-
tions of the Code involved are not always harmonious, and a

iii
iv PREFACE.

careful consideration of the decisions has been necessary to ob-
tain the true rules governing thereunder.

Throughout this whole work, there has been kept continually
in view the fact that too many text books have been made by
throwing together the decisions without statement by the author
of the prevailing and governing rules. The attorney of to-day,
in the active stress of practice, needs books that are carefully
edited and which give him the meat of the decisions in clear
and concise language, with an exhaustive analysis of the sub-
jects involved and a usable and practical index showing every
question covered. This work has been written along these lines
and every effort employed by testing, careful checking back
and repeated proof reading to secure the highest degree of
accuracy, and continued use of the work will disclose whether
this degree has been attained. The author will appreciate sug-
gestions and constructive criticisms from the Bar relating to
matters treated in either part of the book.

Much time and research has been spent upon the forms in-
cluded in this work to make them usable and reliable, and it is
hoped that they will prove of great value to attorneys. The
“Standard” Blanks produced by the publishers of this work
have been freely consulted and found of great assistance.

The author feels especially grateful for the reception that
has been accorded his previous works, and will feel amply re-
paid if this book meets with as hearty an approval.

Cuartis R, Krerpier.
Rochester, N. Y., February 1, 1920,
TABLE OF CONTENTS
GARNISHEE EXECUTION

CHAPTER I

(A) Definition and Scope of Treatment, 2.
(B) Origin and History of Statute, 5.
(C) Constitutionality, 9.
(D) Exclusiveness of Remedy, 12.
(i) Bar of Remedy, 13.
(F) Necessity of Judgment, 14.
(G) On What Judgment Proceedings Lie, 15.
(1) Must Be Money Judgment, 15.
(2) What Courts Judgment Rendered In, 15.
(3) Time of Recovery, 16.
(4) Amount Due Under, 16.
(H) Necessity of Return of Property Execution, 17.
(1) Place of Employment, 17.
(J) What Constitutes “Wages, Debts, Earnings, Salary, Income from
Trust Funds or Profits Due or to become Due,” 17.
(1) “Wages,” 17.
(2) “Debts,” 18.
(8) “Earnings,” 21.
(4) “Salary,” 22.
(5) “Income from Trust Funds,” 23.
(6) “Profits,” 23.
(K) Percentage or Wages, etc., Reachable, 24.
(L) Application for Garnishee Exccution, 24.
(1) To What Judge, 24.

(2) Place of Application, 26.

(3) Necessity of Notice, 27.

(4) Affidavits—Requisites and Sufficiency, 29.
(5) Order-——Form and Requisites, 30.

(6) Issuance of Execution—Form, 31.
Vv
vi TABLE OF CONTENTS.

*

(M) Presentation ot Execution, 32,
(1) Who Presents, 33.
(2) Mode of Presentation, 33.
(3) To Whom Presented, 33.
(N) Protection of Employer, 35.
(QO) Remedies for Failure to Honor Execution, 35.
(1) Statutory Provisions, 35.
(2) Availability of Contempt Proceedings, 36.
(3) Right to Order Compelling Honoring of Execution, 36.
(4) By Action, 36.
(a) What Court, 37.
(b) Parties, 37.
(c) Pleading—Complaint, 38.
(d) Prima Facie Case, 39.
(e) Defenses Available, 39.
(P) Modification or Vacation of Execution, 41.
(1) Statutory Provisions, 41.
(2) Grounds Available, 41.
* (3) How Application Made, 42.
(4) Who May Apply, 43.
(5) To What Court or Judge, 44.
(6) Notice, 44.
(7) Sufficiency of Moving Papers, 45.
(Q) When Garnishee Execution Becomes Inoperative, 465.
(1) Statute, 45.
(2) By Payment, 45.
(3) By Reduction of Salary, etc., below Statutory Amount, 46.
(4) Upon Termination of Employment, 47.
(5) By Discharge in Bankruptcy, 47.
(R) Review of Orders, 56.
(1) Statutory Provisions, 56.
(2) Waiver of Right to Appeal, 56.

SUPPLEMENTARY PROCEEDINGS

CHAPTER II

ORIGIN AND NATURE OF PROCEEDINGS

(A) Origin and Basis, 58.

(B) Nature of Proceedings, 60.
(1) In General, 60.
(2) As Special Proceedings, 60.
(3) Creation of Lien, 61.
TABLE OF CONTENTS. vii

CHAPTER III

REMEDIES AVAILABLE

(A) In General, 62.
(B) Examination before Return of Execution, 64.

(1)
(2)
(3)

Statute, 64.
Requisite Showing for Order, 64.
Limitations, 65.

(C) Examination after Return of Execution, 66.

(1)

Statute, 66.

(D) Third Party Order, 66.

(1)
(2)
(3)
(4)

(5)
(6)

(7)
(8)

Statute, 66.

In General, 67.

Necessity of Examination of Judgment Debtor, 68.

Requisites as to Property of Judgment Debtor or Indebted-
ness, 68.

Effect of Receivership on Order, 69.

Right to Order—Effect of Pendency of Action or Other Legal
Proceeding, 72.

Before Return of Execution—Effect of Subsequent Return, 73

Necessity of Payment of Witness Fees, 73.

(E) Warrant for Arrest of Judgment Debtor, 74.

(1)
(2)
(3)

Statute, 74.
To Whom Applicable, 75.
Independent Proceeding, 75.

CHAPTER IV

ON WHAT JUDGMENTS, ORDERS, ETC., PROCEEDINGS LIE

(A) Statutes, Etc., 76.
(B) In General, 78.

(1)
(2)
(3)
(4)
(5)

(6)
(7)

Misnomer of Judgment Debtor, 78.

Effect of Pendency of Appeal from Judgment, 79.

Limitations, 80.

Irregular Judgments, 82.

Upon Judgments taken after Dissolution of Corporate Debtor,
82.

Paid Judgments—Reservation of Rights, 83.

Effect of Receivership of Judgment Debtor, 83.
viti TABLE OF CONTENTS.

(B) In General—continued.
(8) Effect of Pendency of Action to Make Judgment Lien on
Realty, 83.
(9) Judgments Discharged by Bankruptcy or Insolvency Proceed-
ings, 84.
(10) Suspension During Imprisonment of Judgment Debtor, 84.
(C) Amount, 85.
(D) Judgment by Confession, 87.
(E) Personal Service or Appearance, 87.
(F) Upon Substituted Service, 88.
(G) Judgments for Costs, 88.
(H) On Orders, 89.
(I) On Taxes, 90.
(J) Fine in United States Courts, 91.
(K) Judgments for Alimony, 91.
(L) Judgments against Associations, 91,
(M) On Foreign Judgments, 92,

CHAPTER V

WHO MAY INSTITUTE PROCEEDINGS

(A) Judgment Creditors, 93.

(B) Assignees of Judgment, 94.

(C) Executors and Administrators, 95.

(D) Attorneys Having Lien on Judgment, 96.
(E) Receivers and Assignees for Creditors, 97.

CHAPTER VI

AGAINST WHOM PROCEEDINGS LIE

(A) Extent of Application, 98.
(B) Individuals, 99.
(1) In General, 99.
(2) Effect of Death of Judgment Debtor, 100.
(C) Infants, 100.
(D) Representatives, 100.
(1) Attorneys in Fact—Lloyd’s Policy, 100.
(2) Executors and Administrators, 101.
(3) Assignees and Receivers, 102.
TABLE OF CONTENTS.

(E) Domestic Corporations, 102,
(F) Foreign Corporations, 102.
(G) Partnerships, 103.
(H) Joint Stock Associations, 103,
(I) Foreign Consul, 104.
(J) Third Persons, 104.
(1) Statute, 104.
(2) Executors and Administrators, 104,
(3) Public Fiscal Officers, 105.
(K) Effect of Death of Judgment Debtor, 106.
(L) Effect of Dissolution of Corporate Debtor, 106.

CHAPTER VII

REQUISITES AS TO EXECUTION

(A) Statute, 107.
(B) In General, 108.
(C) Form of Execution, 108.
(D) Limitations, 109.
(E) Effect of Countermand of Execution, 111.
(F) Effect of Issuance of Second Execution on Proceedings, 111,
(G) Effect of Removal of Judgment Debtor from County, 112.
(H) To What County Execution Issued, 112.
(1) To County Where Place of Business, 112,
(2) To County of Debtor’s Residence, 113.
(3) County in Case of Nonresidence of State, 113.
(4) To County of Residence of Judge, 113. °
(I) Return of Execution, 114.
(1) General Rule, 114.
(2) Specific Instances, 115.
(3) Waiver of Defects in Return, 120.

CHAPTER VIII

COUNTY OF EXAMINATION

(A) Statutory Provision, 121.

(B) In General, 121.

(C) What Constitutes Residence, 122,

(D) What Constitutes Place for Transaction of Business, 123.
(E) County in Case of Nonresidence of State, 125,
x TABLE OF CONTENTS.

CHAPTER IX

AFFIDAVIT FOR ORDER OR WARRANT—REQUISITES

(A) Requirements in General, 127.
(1) Alleging Facts Affirmatively, 127,
(2) How Proceedings Entitled, 127.
(3) By Whom Affidavit Made, 128.
(4) Affidavit by Attorney—Sufficiency, 128.
(5) Affidavit by Agent—Sufficiency, 129.
(6) Allegations as to No Previous Application, 130.
(7) Effect of Mistakes or Falsity in Affidavit, 131,
(8) Allegations in Alternative, 131.
(9) Allegations as to Judgment, 132.
(10) Allegations as to Execution, 136.
(11) Allegations as te Judgment Debtor Having Property, 137.
(12) Allegations as to Residence, 137.
(13) Allegations as to Place of Business, 139.
(14) Insufficient Affidavit—Waiver by Appearance, 140.
(15) Where Application Made by Assignee of Judgment, 142.
(16) Where Application Made by Representative of Deceased
Judgment Creditor, 143.
(17) Where Application Made by Attorney to Enforce Lien, 144.
(B) Upon Application to Examine Judgment Debtor after Return of
Execution, 144.
(1) Statutory Provisions, 144.
(C) Upon Application for Order to Examine Judgment Debtor before Re-
turn of Execution, 145.
(1) Statutory Provisions, 145.
(2) Sufficiency in General, 145,
(3) Alleging Demand, 146.
(4) Allegations on Information and Belief, 147.
(D) Upon Application for a Third Party Order, 148.
(1) Statutory Provisions, 148.
(2) Allegations as to Residence of Debtor, 149.
(3) Allegations as to Indebtedness or Property—Sufficiency, 149.
(4) Allegations on Information and Belief, 152.
(5) Allegations as to Execution, 154.
(6) Showing Authority of Deponent, 154.
(E) Upon Application for Warrant of Arrest Instead of Order, 164,
(1) Statutory Provision, 154,
(2) Sufficiency of Affidavit, 156.
TABLE OF CONTENTS. xi

CHAPTER X

TO WHAT JUDGE APPLICATION FOR ORDER MADE

(A) Statute, 157.

(B) Constitutionality, 158.

(C) To Judge Not Court, 158.

(D) Supreme Court Justices, 159.

(E) County Judges, 161.

(F) Other Judges, 162.’

(G) Upon Application for Revival of Order, 162.

(H) Effect of Resignation or Disability of Judge before Whom Order
Returnable, 163.

CHAPTER XI

FORM OF ORDER FOR EXAMINATION OR WARRANT OF ARREST

(A) Order for Examination, 164.
(1) Provisions of Statute, 164.
(2) How Entitled, 165.
(3) Jurisdictional Allegations, 166.
(4) Irregularities in Order, 167.
(a) In General, 167.
(b) Specific Instances, 167.
(c) Effect of Misnomer of Judgment Debtor, 168.
(5) Statements in Alternative, 168.
(6) Allegations as to Execution, 169.
(7) Provision as to Return Day, 169.
(8) Appointment of Referee, 170.
(9) Injunction Clause, 170.
(10) Provisions for Appearance before Judge after Examination,
171.
(B) Warrant of Arrest, 172.
(1) Statute, 172.
(2) General Requirements, 172.
xii TABLE OF CONTENTS.

CHAPTER XII

SERVICE OF ORDERS FOR EXAMINATION, WARRANT OF ARREST,
AND INJUNCTION ORDERS

(A) Statutory Provisions, 173.

(B) Exemption from Service, 174,

(C) Who May Serve, 174.

(D) Territorial Limits, 175.

(E) Period of Time before Return Day, 175.

(F) Exhibition of Original, 176.

(G) Service upon Corporation, 177.

(H) ‘ Effect: of Mistakes or Omissions in Copy Served, 177.
(1) Want of Service—Waiver, 178.

(J) Proof of Service, 179.

CHAPTER XIII

REFEREE

(A) Statute, 180.
(B) Qualifications,180.
(1) Statutory Provisions, 180.
(2) Specific Instances, 181.
(C) Fees of Referee, 182.
(1) Statutory Provisions, 182.
(D) Powers and Duties of Referee, 183.

CHAPTER XIV

REVIEW OF ORDERS AND PROCEEDINGS

(A) Motions to Vacate, 185.
(1) Statute, 185.
(2) To What Judge Application Made, 185. wal
(3) Application to Court, 186.
(4) Who May Move to Vacate, 186.
(5) Notice of Motion—Necessity, 187.
(A)

(B)

(C)
(D)
(E)

(A)
(B)
(C)

(D)
(EF)
(F)

TABLE OF CONTENTS. xill

Motion to vacate—continued.
(6) Specifying Notice of Defects, 187.
(7) Grounds for Vacation, 188.
(a) In General, 188.
(b) Specific Instances, 188.
(c) Orders for Payment of Money or Delivery of Prop-
erty, 194.
(d) Contempt Orders, 195.
(e) Orders Appointing Receiver, 195.
(8) Jurisdictional Defects—Waiver, 196.
(9) Effect of Laches, 197.
(10) Relief on Vacation—Refund of Payment, 197.
(11) Entry of Vacating Order—Necessity, 197.
Appeals, 198.
(1) Statutory Provisions and General Explanation, 198,
(2) Application of Statute, 199.
(3) Appeals Covered by Sec. 2433, Subd. 1. Code, 199.
(4) Appeals Covered by Sec. 2433, Subd. 2. Code, 201.
(5) Appeals from Orders Made on Motions to Vacate Orders, 202.
(6) Appeals Not Affecting Substantial Rights, 203.
(7) Appealability—Default Orders, 204,
(8) Appeal—Bar or Waiver, 204.
(9) Appeal—Questions Reviewable, 205.
(10) Appealability—Amount Involved, 206,
(11) Appeal—Facts Presumed, 207.
(12) Relief on Appeal, 207.
(13) Appeals—Venue, 207.
(14) Appeals to Court of Appeals, 208,
Habeas Corpus, 208.
Writ of Prohibition, 209.
Writ of Certiorari, 209.

CHAPTER XV

PROCEEDINGS ON EXAMINATION

Statute, 210.
In General, 211.
Taking of Referee’s Oath, 211.
(1) Statute, 211.
(2) Waiver, 211.
Appearance of Parties, 212.
Procedure to Enforce Attendance of Witnesses, 213.
Swearing Parties and Witnesses, 215,
xiv TABLE OF CONTENTS.

(G) Powera and Duties of Referee, 216.
(1) In General, 216.
(2) Adjournments, 216.
(a) Statutory Provision, 216.
(b) In General, 216.
(c) Specific Instances, 217.
{H) The Examination, 218.
(1) Scope and Competency of Questions, 218.
(2) Signing Testimony, 224.
(3) Production of Books and Papers, 224.
(4) Right to Deposition, 226.
(5) On Second Order for Examination, 226.
(6) Admissibility of Testimony in Other Actions or Proceedings,
227.
(1) Defeat of Proceedings, 228,
(J) Lapse of Proceedings, 228.

CHAPTER XVI

PROPERTY REACHABLE

(A) Real Estate and Interests Therein, 230.
(B) Personal Property, 2382.
(1) After-acquired Property, 232.
(2) Particular Instances, 233.
(3) Exemptions, 239.
{a) Statute, 239.
(b) In General, 240.
(ec) Trust Funds, 240.
(d) Earnings, 242.
(e) Household Goods, Etc., 248.
(f) Proceeds of Exempt Property, 250.

CHAPTER XVII

SECOND ORDER—RIGHT TO

(A) Grounds for Order, 251.

(B) Necessity of Termination of First Proceeding, 254.
(C) Application—To What Judge, 257.

(D) Notice of Application—Necessity, 257.

(E) Affidavit for Order—Sufficiency, 257.

(F) Service of Second Order—Excuse, 261.
TABLE OF CONTENTS. XV

CHAPTER XVIII

ORDERS DIRECTING PAYMENT OF MONEY OR DELIVERY OF
PROPERTY

(A) Statutory Provisions, 262.
(B) In General, 264.
(C) Who May Apply for Order, 266.
(D) Notice of Application—Necessity, 266.
(%) To What Judge Application for Order Made, 267,
(EF) When Order Granted, 269.
(1) Permissive Order, 269.
(2) Mandatory Order, 270.
(a) General Requisites, 270.
(b) Property Subject, 274.
(1) Real Estate, 274,
(2) Money, 275.
(3) Chattels, 280.
(4) Stock Exchange Seat, 281.
(5) Patent Rights, 282.
(6) Assigned Property, 282.
(ec) Denial—Substantial Dispute, 283.
(G) Attack of Order, 288.
(H) Indemnity, to Person Ordered, 289.
(1) Compliance with Order—Excuse, 289.
(J) Protection to Person Obeying Order, 290,
(1) What Constructive Notice, 290.
(2) Particular Instances, 291.
(K) Action on Order to Pay Money, 294.
(UL) Unwarranted Order—Directing Restoration, 204,

CHAPTER XIX

RECEIVER

(A) Appointment of Receiver, 296.
(1) Statutory Provisions, 296.
(2) In General, 297.
(3) Grounds for Appointment, 299.
(4) Limitations, 303.
(5) Application—Moving Papers, 303.
xvi TABLE OF CONTENTS.

(A) Appointment of Receiver—continued.
(6) Notice of Application, 304.
(a) Statute, 304,
(b) To Judgment Debtor, 304.
(c) To Other Judgment Creditors, 307.
(d) Service of Notice, 308.
(7) What Judge Makes Appointment, 308.
(8) Order—Form and Sufficiency, 310.
(9) Appointment—Attack—Grounds, 311,
(B) Qualifying—Requisite Acts, 313.
(1) Statutory Provisions, 313.
(2) Bond and Order of Appointment, 314.
(C) Receiver’s Title to Property, 316.
(1) Statutory Provisions, 316,
(2) In General, 318.
(83) Personalty, 319.
(a)In General, 319.
(b) Specific Articles, 320.
(c) Relating Back of Title, 322.
(d) Priority, 326.
(4) Realty and Interests Therein, 328.
(D) Powers and Duties of Receiver, 332.
(1) Statutory Provisions, 332.
(2) Receiver—Whom Represents, 333.
(3) Taking Possession of Property, 334.
(4) Sale of Property, 335.
(5) Disposition of Funds, 337.
(6) Actions by Receiver, 338,
(a) In General, 338.
(b) Leave to Sue. 338.
(c) Security for Costs, 338.
(d) Parties, 339.
(1) Parties Defendant, 339.
(2) Substitution of Parties, 340.
(e) Complaint—Sufficiency, 342.
(f{) Defenses Available, 344.
(g) Particular Actions, 348.
(1) Attack of Fraudulent Conveyances, 348.
(2) To Reach Funds or Property of Debtor, 354-
(3) Conversion, 358.
(4) Action to Redeem, 359.
(5) To Compel an Accounting, 360.
(6) Partition, 360.
(7) Replevin, 361.
(8) To Determine Priorities, 361.
(9) Trespass, 361.

~—

~~
TABLE OF CONTENTS. Xvil

({D) Powers and Duties of Receiver—continued.
(h) Right to Compel Judgment Creditor to Refund
Payment, 362.
(i) Right to Compel Accounting in Surrogate’s Court,
362.
(E) Actions against Receiver, 363.
(F) Receiver—Liability to Refund, 364.
(G) Fees of Receiver, 365.
(H) Discharge of Receiver, 366.
(I) Exclusion of Actions by Judgment Creditor, 367.
(J) Receivership—Extension to Other Judgments, 368.
(1) Statute, 368.
(2) Notice of Application, 369.
(3) When Extension Granted, 369,
(4) Rights Acquired, 369.

CHAPTER XX

CONTEMPT

{A) Statutory Provisions, 372.
(B) Kinds of Contempt, 374.
(C) Excuse, 375.
(1) In General, 375.
(2) Defects and Irregularities in Proceedings, 376.
(3) Unfair or Disqualified Referee, 382.
(4) Discharge in Insolvency Proceedings, 383.
(5) Insufficient Time for Compliance, 383.
(6) Advice of Counsel, 384.
(7) Defects and Omissions in Service of Papers, 386.
(8) Lapse or Abandonment of Proceedings, 389.
(9) Unfair or Inconsistent Conduct of Judgment Creditor, 391.
(10) Misnomer, 393.
(11) Absence of Formal Order of Direction to Appear, 394.
(12) Invalid Second Order, 395.
(13) Privileged Persons, 395. :
(a) Foreign Consul, 395.
(b) Attorneys, 396.
(D) Violation of Injunction, 396.
(1) Acts Constituting, 396.
(2) Excuse or Defense, 402.
(a) After-acquired Property, 402.
(b) Exempt Property, 403.
(c) Disputed Ownership, 405.
(d) No Restraining Clause, 407.
xviii TABLE OF CONTENTS.

(E) Misconduct of Persons Testifying, 408.
(1) Refusal to Answer, 408.
(2) Evasive Answers, 410.
(3) False Testimony, 412.
(4) Failure to Produce Books, 413.
(5) Refusal to Sign Testimony, 413.
(F) Disobedience of Order to Pay Money or Deliver Property, 413.
(1) Particular Instances, 413.
(2) Excuse, 416.
(a) Substantial Dispute, 416.
(b) Inconsistent Conduct of Judgment Creditor, 417..
(G) Interference with or Resistance to Receiver, 418.
(H) Suing Receiver without Leave, 419.
(I) Procedure to Punish, 420.
(1) Modes of Procedure, 420.
(a) Statutory Provisions, 420.
(b) Decisions Governing, 421.
(2) Writ of Attachment, 422.
(a) Statutory Provisions, 422.
(b) Practice, 424.
(ce) Liability for False Arrest, 425.
(3) Order to Show Cause, 425.
(a) Statutory Provisions, 425.
(b) Affidavit—Necessity and Sufficiency, 426.
(c) Procedure on Default, 426.
(d) Irregularities—Waiver, 427.
(e) Service of Affidavit and Order to Show Cause, 427.
(4) Taking Depositions, 428.
(5) Judge or Court Punishing for Contempt, 429.
(a) Statute, 429.
(b) Particular Instances, 429.
(6) Final Order Punishing for Contempt, 431,
(a) Statutory Provisions, 431.
(b) Requisites of Order, 432,
(J) Amount of Fine, 437.
(1) Statute, 437.
(2) When No Actual Damages, 437.
(3) Where Actual Damages, 441.
(4) Amount of Judgment, 443.
(5) Extenuating Circumstances, 446,
(6) Costs Allowable, 447.
(7) Excessive Fine—Effect, 448.
(K) Stay of Punishment, 448.
(L) Period of Imprisonment, 449.
(M) Discharge from Imprisonment, 450,
(1) Statute, 450.
(2) Grounds, 450.
TABLE OF CONTENTS.

CHAPTER XXTI

Costs

(A) In General, 452.
(B) Judge Granting Order, 453.
(C) To Judgment Creditor, 453.
(1) Statute, 453.
(2) Instances, 453.
(D) To Judgment Debtor, 455.
(1) Statute, 455.
(2) Instances, 455,
(E) To Third Persons, 457,
(1) Statute, 457.
(2) Instances, 457.
(F) Against Attorney, 457.
(G) To and against Receiver, 458,
(H) How Cost Collected, 459.

CHAPTER XXII

FILING PAPERS—-NEOCESSITY

CHAPTER XXIII

DISCONTINUANCE OR TEEMINATION OF PROOEEDISGS

(A) By Order, 463.
(1) Statute, 463.
(2) When Order Granted, 464.
(3) Judge Granting Order, 465.
(4) Form of Order, 465.
(B) Abatement or Lapse of Proceedings, 465.
(1) Absence of Judge or Referee, 465.
(2) Failure to Adjourn or Continue, 467.
. (3) Effect of Invalid Revival Order, 470.
(4) Order Not Served before Return Day, 471.
(C) By Estoppel or Election, 471.
(D) Effect of Appointment of Receiver, 472.
TABLE OF CONTENTS.

CHAPTER XXIV

Forms, 473,
TABLE OF CASES CITED

A

PAGE

Abell v. Anderson, 29 Hun, 514,
3. How: Pt: 489) saccsakekg
Aborn v. Herbert, Robertson &
Co. Inc., 94 Mise. 637, 158
Supp. 565
Ackerly & Gerard Co. v. Partz,
39 St. Rep. 17, 14 Supp. 466
Albany City Nat. Bank v. Gay-

nor, 67 How. Pr. 421 ......
Albright, Matter of, 55 Misc.
324, 105 Supp. 486 ........
Albright v. Kempton, 4 Civ.
Pro. Rep. 16 ...... 232, 233,
Aldrich v. Davis, 46 St. Rep.
587, 19 Supp. 765, .......
Alese v. Markowitz, 156 App.
Div. 906, 141 Supp. 4 ......

Alexander v. Creamer, 46 App.
Div. 211, 61 Supp. 539 ....
Alexander .. Richardson, 30
Super. Ct. Rep. (7 Robt.) 68,
Allen v. Starring, 26 How. Pr.
Dil» Ered Ei aed ee ReKt SD 257,
Amendola v. Zema, 93 Misc.
525, 157 Supp. 275. .392, 438,
American Fidelity Co., Matter
of, 122 App. Div. 93, 106

Supp. 738 .........6.- 94,
Amidon v. Walcott, 15 Abb. Pr.
BTA ceasechateee a onnsae 229, 382,

Amore v. La Mothe, 5 Abb. N.
C. 146
Andrews v. Glenville Woolen
Co., 11 Abb. N.S. 78 .. 297,
Andrews y. Mastin, 22 Misc.
263, 49 Supp. 1118 ........

283

387
165

274

—
wo

276
429
412
278
270
466

441

395
96
354

85

PAGE
Andrews v. Rowan, 28 How. Pr.
VAG. -Zeeyshsraieisnageseeon aus Ors tieeees
Anonymous, 1 Code Rep. N. S.
211 105, 106
Anonymous, 5 Super. Ct. Rep.
(3 Sandf.) 725, 1 Code Rep.
Ne Ss US: nai pera
«\nonymous, 11 Abb. Pr. 108 .. 457
Anway v. David, 9 Hun, 296, 125
Arctic Fire Ins. Co. v. Hicks,
7 Abb. Pr. 204 ....... 169, 378
Armstrong y. McLean, 153 N.
Wee WOO! aiastnale geeivanene 322, 360
Arnold v. Green Gold-Silver
Co., 68 Mise. 449, 125 Supp.
OD gis eo wee eee Lge ese $23, 324
Arnot v. Wright, 55 Hun, 561,
29 St. Rep. 425, 9 Supp. 15
132, 168
Arnoux v. Homans, 32 How. Pr.

BS2 sp awiehie yer Geared vives 80
Arthur v. Dalton, 14 App. Div.

108, 43 Supp. 583 ........ 458
Aschemoor v. Emmvert, 5 N. Y.

Law Bull. 80 ........ 247, 404

Ashley v. Turner, 22 Hun, 226, 305
Aultman & Taylor Co. v. Syme,
87 Hun, 295, 68 St. Rep. 311,
34 Supp. 379
Austin v. Byrnes, 54 Super. Ct.
Rep. (22 J. & §.) 552, 12
Civ. Pro. Rep. 332, 8 St. Rep.
SS) crore eyes Ra oun eae one 86
Avery v. Ackart, 20 Misc. 631, 46
Supp. 1085 ............4. 393

110

XX1
xxii

B

PAGE

Bachiller De Ponce De Leon,
Matter of, 103 St. Rep. 242,
69 Supp. 242 ............

Backus, Matter of, 91 App.
Div. 266, 86 Supp. 638 ....

Bailey v. Lane, 15 Abb. Pr. 373
(note)

Baker v. Brundage, 79 Hun,
382, 61 St. Rep. 498, 29 Supp.
TOD: aici acai aieiigeleacwiere lids -etecese

Baker v, Herkimer, 43 Hun, 86,
6 St. Rep. 581, 25 Week. Dig.
573 120, 301,

Baker v. Vanepps, 22 Hun, 460,
60 How. Pr. 79

Ball v. Goodenough, 37 How.
PH-WID se ssseysnwes 309, 310,

Bamberger v. Fillebrown, 12
Mise, 328, 33 Supp. 614. .343,

3amberger-Stern Co. v. Paris,
193 St. Rep. 647, 159 Supp.
647 185, 251, 453,

Bank of Genesee vy. Spencer, 15
How. Pt. dt" ws esg oe thitsanss

Bank of Port Jefferson v. Dar-
Jin, 102 App. Div. 431, 92
Supp. 483 132, 169,

Banks v. Potter, 21 How. Pr.
AOD, otis Se etomes 4Sae ethan ned a4

Barber v. People, 17 Hun, 366.

Bareither v. Brosche, 19 Civ.
Pro. Rep. 446, 18 Supp. 561

169,

Barnard v. Kobbe, 54 N. Y. 516,

Barnes v. Courtright, 37 Misc.
60, 74 Supp. 203

Barnes v. Levy, 23 Civ. Pro.
Rep. 253, 29 Supp. 1076 ....

Barnes v. Morgan, 3 Hun, 703,
6 T. & C. 105 236,

Barnett, Matter of v. Lewinsky,
68 Mise. 141, 121 Supp. 378,
2 Civ. Pro. Rep. N. 8. 65

172,

72

430

311

312

338

315

361

465

160

298
316
227

415
293

TABLE OF CASES CITED,

PAGE

Barnett v. Moore, 20 Misc. 518,
46 Supp. 668 308,
Barrington v. Watkins, 36 App.
Div. 31, 55 Supp. 97 .. 167,
Bartkowaik v. Sampson, 73
Mise. 446, 133 Supp. 401

469

328, 330, 335
Bassett v. Wheeler, Si N. Y.
466). ss mecccicewe beac eee Z 127
Batcheldor v. Nugent, 23 Civ.
Pro. Rep. 178, 24 Supp. 828
124, 131, 140
Bauer v. Betz, 4 St. Rep. 92. 289
Baumler v. Ackerman, 63 Hun,
40, 43 St. Rep. 87, 17 Supp.
430 ssugekss pXGhareaekieess so
Bayer v. Sack, 66 Misc. 536.
121, Supp. 1122 win. ccc eee. 250
Bayliss v. Ryan, 64 Mise. 146.
TG Supp. 1022. 2.2 seen ens 10
Beamish v. Hoyt, 25 Super. Ct.
Rep. (2 Robt.) 307........ 332
Bean v. Tonnelle, 24 Hun, 353,
1 Civ. Pro. Rep. 38 ........ 137
Beardsley v. Stone Valley Disx-
tilling Co., 122 Supp. 686 .. 128
Beck, Matter of, 238 Fed. 653.
38 Am. Bankr. Rep. 797..48. 52
Becker, Matter of, 36 Mise. 322.
(3 Supp. 500 vec. ees 406, 441
Becker, Matter of, 1. Gerlich,
72 Mise. 157. 129 Supp. 614
411, 421, 427, 428
Beebe v. Kenyon, 3 Hun, 73 .. 282
Beecher, Matter of, 47 St. Rep.
415, 19 Supp. 971 .... 362. 265
Belfer v. Ludlow, 144 App. Div.
746, 129 Supp. 626.... 108, 186
Belknap v. Hasbrouck, 13 Abb.
Pr. 41S (note) ...... 118, 124
Benedict v. Meyer, 72 Misc. 156,
129 SUPP. TL cc cess waves Q54
Benjamin v. Myers. 3 St. Rep.
BSH it 5:4. aiNatepttes 211, 264, 369
TABLE OF CASES CITED.

PAGE
Bennett v. McGuire, 58 Barb.
G25 Aaciee wei neueee aa wea
Bennett v. Wolfolk, 80 Hun,
390, 62 St. Rep. 55, 30 Supp.
928) 2k iseneees nuk cea Haas 24
Berkman v. New York Produce
Exchange Bank, 101 Misc.
282, 167 Supp. 441 .. 91, 237,
293
Berliner v. Kuttnerr, 85 Mise.
461, 147 Supp. 308 .... 334, 358
Bernheimer v. Kelleher, 31
Misc. 464, 64 Supp. 409. .205, 412
Bernstein v. McCahill, 56 Mise.
460, 107 Supp. 161 .... 392, 441
Bernstein v. Traverso, 82 Misc.
411, 143 Supp. 1091
Billings v. Carver, 54 Barb. 40
177, 384
Billington v. Billington, 16 Civ.
Pro. Rep. 56, 4 Supp. 504 ..
Bingham v. Disbrow, 14 Abb.
Pr. 251, 37 Barb. 24
113, 122, 312, 345
Binghanton Trust Co. v. Grant,
65 App. Div. 178, 72 Supp.
DBO. Gags cin a aisle ada iene aeas
Bird v. Wessels, 153 St. Rep.
329, 119 Supp. 329
257, 396, 440, 457
Bishop v. Gracia, 14 Abb. N. 8.
69
Bitting v. Vandenburgh, 17
How. Pr. 80 ...... 158, 240, 250
Blake v. Bolte, 10 Mise. 333, 31
Supp. 124, 24 Civ. Pro. Rep.

202

166, 1 Ann. Cas. 78 .... 245, 433
Blanchard v. Reilly, 11 Civ. Pr.
Rep. 278 ......seeeeneerees 380

Bliss v. Raynor, 91 Hun, 250,
72 St. Rep. 57, 36 Supp. 156, 278
Richardson,

50, 125 Supp.

Bloomingdale v.
140 App. Div.
320 ..

ge

XX1li
PAGE

Blumenthal, Matter of, 22 Mise.
704, 50 Supp. 49 ...... 416, 436

Board of County Com’rs of Tel-
ler Co. v. Trowbridge, 42
Colo. 449, 95 Pac. 554 ......

Boelger v. Swivel, 1 How. Pr.
ING ISS SPs Saas eee ee as

Bolt v. Hauser, 10 Supp. 397,
19 Civ. Pro. Rep. 7; Affirmed
11 Supp. 366, 19 Civ. Pro.
Rep. 210, 33 St. Rep. 343

80,

Bostwick v. Menck, 40 N. Y.
B89 ewied ecu 318, 348, 350,

Boucker Contracting Co., Mat-
ter of v. Callahan Contract-
ing Co., 218 N. Y. 321

102,

Bourdon v. Martin, 84 Hun,
179, 65 St. Rep. 716, 32 Supp.
GAN ok Mare Rd AE A a Gua

Bowery Bank of New York v.
Widmayer, 9 Supp. 629 ....

Boyd v. Buffalo Steam Roller
Co., 87 Misc. 20, 149 Supp.
LODO! xis: svaiake 2S aaeahget te toke aves

. Boynton v. Seibert, 33 Misc.
310, 68 Supp. 562

Boynton v. Sprague, 100 App.

Div. 443, 91 Supp. 839
314, 315,

Bradley v. Certigne Mining &
Dredging Co., 93 Mise. 519,
157 Supp. 275 ............

Branch v. Harrington, 49 How.
WP Wp EEG Gosia a Socata Siena tad

Brearley School, Limited v.
Ward, 201 N. Y. 358 .... 11,

Brein v. Light, 36 Misc. 112,
72 Supp. 1087

Brener v. Dahlstrom Metallic
Door Co., 201 St. Rep. 860,
167 Supp. 860 ......eeeeee

312

3a4

299

290

321

320

139

338

16

419

47
XKLV TABLE OF CASES CITED.

PAGE

Bridges v. Koppelman, 63 Misc.
27, 117 Supp. 306

128, 132, 163,

Brockway v. Brien, 37 How. Pr.

270

Brockway v. Miller, 144 App.

Div. 239, 128 Supp. 1079 ..
Broderick v. Archibald, 61 App.
Div. 473, 70 Supp. 617 ....
Brodie v. Hogan, 172 St. Rep.
871, 188 Supp. 871 .... 27,
Brodie v. Maher, 78 Misc. 92,
138 Supp. 872) ascccsance ices

Brooks Bros. v. Cassebeer, 157
App. Div. 683, 142 Supp. 781
21,

Brown v. Edinger, 61 Misc. 366,
114 Supp. 1116 174,
Brown v. Gump, 59 How. Pr.
507
Brown v. Walker, 54 Hun, 639,
28 St. Rep. 36, 8 Supp. 59,
Browning v. Bettis, 8 Paige,
568
Browning v. Chadwick, 30 Misc.
420, 62 Supp. 476
Browning v. Hayes, 41 Hun.
382, 1 St. Rep. 502, 11 Civ.
Pro. Rep. 223, 25 Week. Dig.
26
Bruen v. Nickels, 30 App, Div.
396, 51 Supp. 352, 5 Ann.
Cas 88). wis yse wacaker yea
Brunnemer v. Cook, & Bern-
heimer Co., 89 App. Div. 406,
85 Supp. 954 ...... sandentes
Bruns v. Kane, 12 Civ. Pro.
Rep. 86
Brush v. Kelsey, 47 App. Div.
270, 62 Supp. 214 .... 182,
Bryant v. Grant, 87 Hun, 68
67 St. Rep. 639, 33 Supp. 957
236, 335,

Buchanan v. Hunt, 98 N. Y.
560. sage es'emase S/S asejecetaie’ e's

430

357

271

31

27

24

248

123

129

233

400

122

150

349

298

462

340

275

PAGE

Buchsbaum v. Laue, 63 Mise.
374, 1 Civ. Pro. Rep. N. S.
378, 118 Supp. 418 ........

Buck v. MacDonald, 107 Misc.
338, 177 Supp. 684 ........

Bucki v. Bucki, 26 Misc. 69, 56
Supp. 439 ......... 91, 150,

Bunacleugh v. Poolman, 3 Daly,
230: onaaee ba aane nae: Syalest

Bunn vy. Fonda, 2 Code Rep. 70

Burke v. Burke, 27 Misc. 684,
58 Supp. 676 .......... 89,

Burn v. Sandfort, 206 St. Rep.
820, 172 Supp. 820

Burns vy. Kane, 12 Civ. Pro.
Reps 86. si asa nden rincidcacns

Burns \. Maurer, 72 Mise. 481,
131 Supp. 344 21,

Camerick, Matter of, 34 App.
Div. 31, 53 Supp. 1084 ..
Canakos, Matter of, 60 Mise.
63, 111 Supp. 601 ........
Canavan v. McAndrew, 20 Hun,
AG ce eaG dios man aeia ek Bash
Canda v. Gollner, 73 Hun, 493,
56 St. Rep. 153, 26 Supp.
AAD shee siete eitinns wads § ins
Carbonating Apparatus Co. v.
Bennett, 56 Mise. 47, 105
Supp. 1052 146,
Carley v. Tod, 56 App. Div.
170, 67 Supp. 640 ........
Carroll v. Langan, 63 Hun, 380,
44 St. Rep. 224, 18 Supp. 290,
Carter v. Clarke, 30 Super. Ct.
Rep. (7 Robt.) +490
200, 226, 254,
Catholic University of America
yv. Conrad, 27 Mise. 326, 57
Supp: $20) 6 o cekts eyes aes g
Caton yv. Southwell, 13 Barb.
335

192

360
240

124

286

tw
lo

. 419

451

258

399

189

154

162

308

276
TABLE OF CASES CITED.

PAGE
Chadeqyne v. Gwyer, 83 App.
Div. 403, 82 Supp. 198 . 328, 329
Champlin v. Stodart, 64 How.
Pr. 378 225, 226, 413
Chandler v. City of Fon du Lac,

56 How. Pr. 449 .......... 289
Charlier v. Saginaw Steel Steam-
ship Co., 7 App. Div. 609,

40 Supp. 278
Chautauqua County Bank v.
Risley, 19 N. Y. 369 ........
Chestnut v. Greenberg, 162
Supp. 137 204, 268, 269

Chicago, Burlington & Quincy,
R. R. v. Hall, 229 U. 8. 511,
516, 33 Sup. Ct. 885, 57 L. ed.
1306, 30 Am. Bankr. Rep. 619,

DOTS) gccicsairnek a ope e A ae osoissole 52
Clan Ranald v. Wykoff, 41 Su-

per. Ct. Rep. (9 J. & S.)

DLT os cena eed Senees 235, 282
Clark v. Clark, 11 Abb. N. C.

888i) sa sidan aa selere am Goes 298, 307
Clark v. Gallagher, 21 St. Rep.

314, 3 Supp. 312 .......... 288
Clark v. Gilbert, 10 Daly, 316,

14 Week. Dig. 241 ........ 349

Clark v. Shaw, 91 Misc. 245,
154 Supp. 1101 ... 234, 266, 268

Clarke v. Larremore, 188 U. 8.
486, 23 Sup. Ct. 363, 47 L.

00, BOS cyasen vn ieae heaves 53
Cleveland v. Johnson, 5 Misc.
484, 26 Supp. 734 ........ 82

Clover, Matter of, 154 N. Y. 443, 325
Cobb v. Edson, 118 St. Rep. 916,

84 Supp. 916 464
Cohen v. Allen; 170 Supp. 892.. 156
Collier v. De Revere, 7 Hun, 61

95, 144
Collins v. Beebe, 54 Hun, 318,
27 St. Rep. 4, 7 Supp. 442
101, 105, 151
Collins v. Collins, 80 N. Y.1.. 19

XXV

PAGE

Colne v. Girard, 19 Abb. N. C.
288 . 454,
Columbia Bank v. Ingersoll, 21
Abb. N, C, 241 266,
Columbian Institute v. .Cregan,
11 Civ. Pro. Rep. 87, 3 St.
Rep. 287 232,
Conger v. Sands, 19 How. Pr.
Bh Sritet gael demtiaog os yreatare oxcjeraenters
Conklin, Matter of, N. Y. Law
Jour. Aug. 3, 1897, 57 Supp.
844
Connolly v. Davidson, 15 Minn.
519
Connolly v. Kretz, 78 N. Y. 620,
Consolidated Agency Co. v.
Townsley, 72 Misc. 155, 129
Supp. 773
Conway v. Hitchins, 9 Barb.
378
Conyngham v. Dutty, 125 N. Y.
200, 34 St. Rep. 736 .... 81,
Cooman v. Board of Education
of Rochester, 37 Hun, 96
289,
Cooney v. Cooney, 65 Barb. 524
250, 318,
Corde v. Laughlin, 120 St. Rep.
795, 86 Supp. 795
Corey v. Harte, 21 Week. Dig.
247
Corning v. Glenville Woolen
Co., 14 Abb. Pr. 339
Corning v. Tocker, 5 How. Pr.

em ee mee ee ete ee ee

UG age te arecontenenecs oa 212, 224,
Cotton, Matter of, 55 Mise. 321,
105 Supp. 347 .............

Coursen v. Dearborn, 30 Super.
Ct. Rep. (7 Robt.) 143 ....
Courtois v. Harrison, 12 How.
Pr. 359, 1 Hilt. 109, 3 Abb.
Pr. 96 92, 103,
Cowdrey v. Carpenter, 17 Abb.
Pr. 107, 25 Super. Ct. Rep.
(2 Robt.) 601 ...... .. 194,

465

289

276

315

127

319

388

326

68

270

88

383.

188

464
XXV1 TABLE OF CASES CITED.

PAGE

Cowen v. Bernard, Inc. 80 Mise.
394, 141 Supp. 252

213, 462,

Crane, Matter of, 81 Hun, 96,

62 St. Rep. 549, 30 Supp.

616, 1 Ann. Cas. 148 ......
Crane v. Beecher, 26 St. Rep.
233, 6 Supp. 225 .. 253, 319,
Crill v. Kornmeyer, 56 How.
PY DTG: spacers shia aides 36 94,
Cromwell v. Spofford, 4 Civ.
Pro. Rep. 273 ......0e-e0.-
Crooks v. Findley, 3 Law Bull.
2G" citrota Nanos slid goa eninlne ts

Crouse v. Wheeler, 33 How. Pr.
337 205,
Crouse v. Whipple, 38 How. Pr.
333
Crystal v. Crystal, 154 St. Rep.
50, 120 Supp. 50 .. 211, 395,
Cumming v. Egerton, 22 Super.
Ct. Rep. (9 Bosw.) 684 ..
Cummings v. Timberman, 4°)
How. Pr. 236

Damers, Matter of v. Sternberg-
er, 52 Misc. 532, 102 Supp.
740 328,

Darrow v. Riley, 5 Misc. 363,
26 Supp. 91 311,

Davenport v. McChesney, 86 N.

ae. eee
Davis v. Briggs, 24 St. Rep.
896, 5 Supp. 323 ..........
Davis v. Herrig, 65 How. Pr.
DOO cs ccta acter nase See 89,

Pavis v. Jones, 8 Civ. Pro. Rep.
43 88, 89, 150,
Davis Bros. v. Choctow, 0. & G.
R. Co., 73 Ark. 120, 83 S. W.
318
Dawes, Matter of, 108 App.
Div. 174, 96 Supp. 52

ee ecoe

468

320

161

256

367

273

283

471

338

300

335

313

354

279

150

151

lo

175

PAGE

Day v. Brosnan, 6 Abb. N. C.
B12) op yuw sncengie es 166, 167,
Day v. Lee, 52 How. Pr. 95 ..
De Angelli y. Dixcy, 101 Mise.
606, 167 Supp. 663
Dean v. Hyatt, 5 Week.
Gl eimai asec ai teensy oR
Deane v. Sire, 48 Mise. 606,

95 Supp. 556 ..............
Dease v. Reese, 39 Mise. 657,80
Supp. 590 ............ 239,

De Camp v. Dempsey, 10 Civ.
Pro. Rep. 210 .... 241, 299,
De Comeau v. People, 30 Super.
Ct. Rep. (7 Robt.) 498 ....
Delehunty v. Hake, 10 App.
Div. 230, 41 Supp. 896 ....
De Leon, Matter of. 63 App.
Div. 41, 71 Supp. 380 ..
Demuth v. Kemp, 130 App. Div.
546, 115 Supp. 28. ...... 9,
Demuth v. N. Y. Life Ins. &
Trust Co., 165 App. Div. 77,
150 Supp. 981 ............
Denison v. Jackson Bros. Realty
Co., 158 App. Div. 475, 143
Supp. 586
Denning vy. Schieffelim, 26 St.
Rep. 96, 7 Supp. 98 ......
Deposit Nat. Bank v. Wickham
44 How. Pr. 421 ...... 249,
Depue, Matter of, 185 N. Y.
60, 37 Civ. Pro. Rep. 121
73, 205, 208, 215, 435,
Dewey v. Finn, 18 Week. Dig.
558 334,
Dewitt v. Dennis, 30 How. Pr.
131 424,
Devereaux y. Clifford, 11 App.
Div. 401, 42 Supp. 687 ....
De Vivier v. Smith, 6 Civ. Pro.
Rep. 394
Dickerson v. Van Tine, 3 Super.
Ct. Rep. (1 Sandf.) 724 ....

»

eaeegreecreay ORO,

193,

405

60

299

300

376

356

38

1
uo

400

446

419

439

297

334
TABLE OF CASES CITED.

PAGE
Dickinson v. Onderdonk, 18
Hun, 479 ............ 273, 280

Dienst v. Gustaveson, 119 St.
Rep. 371, 85 Supp. 371
203, 291,
Diosey v. West, 1 N. Y. Law
Bull. 23 133,
Dodge & Co. v. Albers, 54 Misc.
37, 104 Supp. 497, 39 Civ.
Pro, Rep. 89 sassvesasevecs
Dollard v. Taylor, 33 Super. Ct.
Rep. (1 J. & 8.) 496
201, 301,
Donovan, Matter of, 159 App.

322

189

163

367

Div. 228, 144 Supp. 280 .... 91
Dorsey v. Cummings, 48 Hun,

76, 15 St. Rep. 459 .... 168, 187
Douglass v. Mainzer, 40 Hun,

1D eiet.g Beanies 135, 158, 159
Dowling v. Twombly, 147 St.

Rep. 970, 113 Supp. 970 .... 389
Drake v. Barry, 73 Misc. 391,

131 Supp. 39 .......... 82, 110
Dresser v. Van Pelt, 15 How.

Pr. 19, 13 Super. Ct. Rep.

(6 Duer) 687 ............ 168
Driggs v. Williams, 15 Abb. Pr.

AU - asap sinea sa Dauad inc tals 60
Droege v. Baxter, 69 App. Div.

58, 74 Supp. 585, 32 Civ. Pro.

REP B04 esd a eee dieh ie be 324
DuBois v. Cassidy, 75 N. Y.

QOS! edan ce ate aa Sates 343, 360
Duffus v. Cole, 39 St. Rep. 838,

15 Supp. 370. .cssesveas as 397
Duffy v. Dawson, 2 Misc. 401,

21 Supp. 978 aos cesar onan 288
Duffy v. Morrissey, 82> Misc.

149, 143 Supp. 780 ...... 40, 46
Durkee & Co. v. Bonnell, 159

St. Rep. 790, 125 Supp. 790, 417
Duryea, Matter of, 17 App.

Div. 540, 45 Supp. 703 .... 407
Dusenbury v. Dusenbury, 63

How. Pr. 349 .......... «. 227

E

XXVIl

PAGE

East River Bank v. De Lacy,
37 Mise. 765, 76 Sunn. 927,
Eastern Nat. Bank v. Hulshizer,
2.96, RED. VS <.accomnsooae
Eckert v. Truman, 163 App.
Div. 17, 148 Supp. 48. .407,
Edlunds, Matter of, 35 Hun,
367 249,
Ehrich v. Root, 134 App. Div.
432, 119 Supp. 395
67, 68, 280,
Eigenmacht y. Herter, 74 Misc.
405, 132 Supp. 282 .... 207,
Eleventh Ward Bank v. Heath-
er, 22 Mise. 87, 48 Supp.
449, 5 Ann. Cas. 80, 27 Civ.
Pro. Rep. 90 115,
Elite Distributing Co. v. Schrul,
69 Misc. 206, 126 Supp. 607,
Ellis v. Chapman, 165 App.
Div. 79, 150 Supp. 673 ....
Engle v. Bonneau, 4 Super. Ct.
Rep. (2 Sandf.) G78, 8 Code
Rep. 204 115, 117,
Evans v. Parker, 20 Wend. 622,
Everall v. Stevens, 158 App.
Div. 723, 143 Supp. 874 ....
Eyre, Matter of v. Stubbert, 71

Mise. 147, 128 Supp. 4, 2

Civ. Pro. Rep. N. S. 136 ..
F

Falkenberg, Matter of  v.

Frank, 20 Misc. 692, 46 Supp.
675 197, 374, 421,
Fancher, Matter of, 58 Misc.
11, 110 Supp. 157
129, 256, 378,
Faneuil Hall Nat. Bank v. Bus-
sing, 147 N. Y. 665, 71 St.
Reps O00. ae ss eee
Farqueharson v. Kimball, 18
How. Pr. 33, 9 Abb. Pr. 385
(note) 111, 112,

408

283

417

300

281

438

119

23

118
117

130

461

447

117
XxVIL

PAGE

Fawcett v. New York, City ot,
112 App. Div. 155, 98 Supp.
286 303, 320, 339,

Feely v. Glennen, 2 N. Y. Law
Bull. WO veo ca cisisaiicas nae es

Feinberg v. Kutcosky, 147 App.
Div. 393, 132 Supp. 9

205, 217, 375,

Felt v. Dorr, 29 Hun, 14 ......

Fenner v. Sanborn, 37 Barb
610 ....... ibm ae ehaes®

Fenton v. Flagg, 24 How. Pr.
BOD oc cteavar g-auk-siauetar gig avers 114,

Fessenden v. Woods, 16 Super.
Ct. Rep. (3 Bosw.) 550 .

Finck v. Mannering, 46 Han
323, 12 St. Rep. 453 ........
Fine v. Robinauer, 49 Mise. 437,
99 Supp. 896 ............0.
Finnin v. Malloy, 33 Super. Ct.
Rep. (1 J. & 8.) 382
248, 249,
First Nat. Bank of Albany v.
Clark, 52 App. Div. 601, 65
Supp. 439 ......ee50 146,
First Nat. Bank of Auburn v.
Beardslee, 8 Week. Dig. 7 ..
First Nat. Bank of Canan-
daigua v. Martin, 49 Hun,
571, 18 St. Rep. 414, 15 Civ.
Pro. Rep. 324, 2 Supp. 315
274, 297,
First Nat. Bank of Earlville,
Matter of, 99 App. Div. 20,
90 Supp. 941 153,
First Nat. Bank of Newville,
Pa, v. Yates, 21 Misc. 373, 47
Supp. 484 ..............
First Nat. Bank of N. Y. v.
Gow, 189 App. Div. 576, 124
Supp. 449 .. 67, 68, 69, 170,
191, 221, 222,
First Nat. Bank of Plattsburgh
v. Fitz Patrick, 80 Hun, 75,
61 St. Rep. 766, 30 Supp. 15,

347

445

433

102

402

196

. 359

200

351

363

147

232

331

187

61

225

433

TABLE OF CASES CITED.

PAGE

First Nat. Bank of Rome v.
Dering, 8 Week. Dig. 261

99, 109, 115, 116,

First Nat. Bank of Rome v.

Wilson, 13 Hun, 232

65, 146,

First Nat. Bank of Rondout v.

Navarro, 43 St. Rep. 813, 17

Supp. 900 ...... aww a0
Fiss v. Haag, 75 App. Div. 241,
78 Supp. 1 ......-.---- eee

Fitchburgh Nat. Bank v. Bush-
wick Chemical Works, 13 Civ.
Pro. Rep. 155 ......+- 102,

Fitts v. Beardsley, 55 Hun, 603,
28 St. Rep. 658, 8 Supp. 567,

Fitzgibbons v. Smith, 41 St.
Rep. 678, 16 Supp. 410 .....

FitzPatrick v. Moses, 34 App.
Div. 242, 54 Supp. 426

326, 340,

Fleming v. Tourgee, 21 Civ.
Pro. Rep. 298, 40 St. Rep.
705, 16 Supp. 2... 153,

Fletcher v. Franckao, 21 Civ.
Pro. Rep. 34, 15 Supp. 674

Flynn, Matter of, 80 Mise. 79,
140 Supp. 799 2. ece ss 203,

Flynn, Matter of, 157 App. Div.
241, 141 Supp. 807 ......

Folwell v. Cambeis, 14 Week.
Digs VLG ws aeoseaas geen wes

Forbes v. Waller, 25 N. Y. 430

115,

Forbes v. Willard, 54 Barb. 520,
37 How. Pr. 193 ..........

Foster v. Prince, 18 How. Pr.
258, 8 Abb. 407 ..........

Foster v. Twigg, 18 Week. Dig.
BES) wamare eas cae ee Aeine oe

Foster v. Wilkinson, 37 Huw,
242. 222,

Fowler v. Lowenstein, 7 Lans-
ing, 167, 45 How, Pr. 142 ..

Loz.

162

147

351

268

152

353

399

341

385

174

287

287

133

117

223

269

461

409

194
TABLE OF CASES CITED.

PAGE

Fox v. Hodge, 17 Week. Dig.
412

Franey v. Smith, 88 Hun, 215,

68 St. Rep. 714, 34 Supp. 780
138, 149

Franklin v. Judson, 99 App.
Div. 323, 91 Supp. 100 ...... 410
Fraser v. Ward, 13 Daly, 431 .. 294

Frederick v. Decker, 18 How.
Pr. 96 94, 142

Fredericks v. Niver, 28 Hun.

AT eee sksheh ee daw ee aweaes 452
Frieder v. Adlerman, 95 Misc.
259, 159 Supp. 120 ........ 325

Friedman v. Gibbons, 101 Misc.
356, 167 Supp. 685 .... 48, 54
Friedman v. Newman, 120 St.
Rep. 735, 86 Supp. 735. .413, 439
Friedman v. Stein, 138 Supp.
928, 3 Civ. Pro. Rep. N.S. 21, 284
Fromme v. Jarecky, 19 Mise.
483, 43 Supp. 1081
Frost v. Craig, 18 Civ. Pro.
Rep. 296, 16 Daly, 107, 30 St.
Rep. 848, 9 Supp. 528 .. 75, 285
Furanz v. Tramontano, 177
App. Div. 52, 63 Supp. 700 .. 26

G

Gagnon, Matter of, 32 App. Div.
22, 52 Supp. 309
Gallagher v. O’Neill, 21 St. Rep.
161, 3 Supp. 126 .. 204, 283, 438
Galowitz v. Bumford, 54 Misc.
41, 104 Supp. 492 .... 249, 300
Galster v. Syracuse Savings
Bank, 29 Hun, 594 ........
Garcia, Matter of, v. Morris, 51
Mise. 592, 101 Supp. 253
146, 148
Gardner v. Lay, 2 Daly, 113
84, 193
Gardner vy. Smith, 29 Barb. 68, 359

XX1X

PAGE
Garfield Nat. Bank v. Bost-

wick, 39 St. Rep. 358, 14

Supp. 919 369
Gates v. Gates, 171 Supp. 1036, 25
Gates v. Young, 17 Week. Dig.

DOM 4.5 sieve With caie He 59, 63, 83
Gaylord v. Jones, 7 Hun, 480, 393
German Exchange Bank v.

Schlang, 92 Mise. 351, 155

Supp. 924 .... 162, 176, 256, 471
Germansky, Matter of v. Guter-

man, 136 App. Div. 581, 121

SUPP: V2. sae acne Betis 393
Gerregani v. Wheelwright, 3
Abb. N. 8. 264 .........00. 403

Gerton Carriage Co. v. Richardson,
6 Misc. 466, 27 Supp. 625
279, 407
Ghersin v. Thuor, 56 Mise. 465,

107 Supp. 195 ............ 286.
Gibbs v. Prindle, 9 App. Div.

29, 41 Supp. 132 .......... 384
Gibney v. Reilly, 26 Mise. 275,

56 Supp. 1055 ........ 238, 300
Gibson v. Haggerty, 37 N. Y.

550 semeagaseedede 68, 267, 291

Gifford v. Rising, 55 Hun, 61,

28 St. Rep. 310, 8 Supp. 279, 235:
Gilbert v. Frothingham, 13 Civ.

Pro. Rep. 288 ........ 181, 383
Gildersleeve v. Lester, 69 Hun,

344, 53 St. Rep. 316, 23 Supp.

BUM: i ginnteinys hare wane tae eeS 159
Gillespie v. Armstrong, 58 Mise.

310, 109 Supp. 672 ....... 381
Gillett v. Bate, 86 N. Y. 87, 10

Abb. N. C. 88 ........ 236, 282
Gillett v. Hilton, 11 Civ. Pro.

Rep. 108 ......... eee. 243, 405.
Gilroy v. Everson-Hickok Co.,

118 App. Div. 733, 103 Supp.

620
Glover v. Gargan, 10 App. Div.

527, 42 Supp. 74 ...... 197, 347
XXX

PAGE
Goddard v. Stiles, 90 N. Y.
TOD: fcc ew etki dee ember ena
Goldberger v. Tack, 142 St. Rep.
1047, 108 Supp. 1047 .. 243, 404
Goldreyer v. Shatz, 148 St. Rep.
339, 114 Supp. 339 ....268, 417
Goldsmiths & Silversmitns Co.
v. Haas, 76 Mise. 210, 134
Supp. 602 ........ 434, 440, 447
Gomprecht v. Scott, 27 Misc.
192, 57 Supp. 799, .... 286, 306
Goodall v. Demarest, 2 Hilt, 534
226, 257, 259
Gordon v. Feldberg, 149 App.
Div. 246, 133 Supp. 693 ..
Gould v. Moore, 51 How. Pr.
188, 112
Gould v. Torrance, 19 How. Pr.

GOO. isis akin ciara misters pacaneens ate ie 6 208
Grace v. Curtiss, 3 Misc. 558, 33
SUPP. 321. ssccaces tu game 305, 306

Graham v. Colburn, 14 How. Pr.
52, 13 Super. Ct. Rep. (6
Duer) 678

Graham v. Lawyer’s Title In-
surance Co., 20 App. Div.
440, 46 Supp. 1055 .... 331, 364

Grand Lodge Knights of Py-
thias v. Manhattan Savings
Inst. 12 Mise. 626, 34 Supp.
23) Gu SERS Sa7 HORS Lae e OES 297

Grassmuck v. Richards, 2 Abb. ~*
N. C. 359 271

Graves v. Lake, 12 How. Pr. 33, 214

Graves v. Scoville, 12 Civ. Pr.
Répy 165 -sicsades venta 61, 125

Gray v. Ashley, 24 Misc. 396, 53
Supp. 547 .. 105, 106, 265, 271

Green v. Hauser, 18 Civ. Pro.
Rep. 354, 31 St. Rep. 17, 9

226

Supp. 660 ..........--.04. 80
Greenhall v. Unger, 20 Misc.
412, 45 Supp. 1085 ........ 194

TABLE OF CASES CITED,

PAGE
Griffin v. Dominguez, 9 Super.

Ct. Rep. (2 Duer) 656, 11
Leg. Obs. 285 ........ 104, 396
Grinnell v. Sherman, 33 St.

Rep. 27, 11 Supp. 682, 19 Civ.
Pro. Rep. 13y
Grocer’s Bank v. Murphy, 60
How. Pr. 426 ... ........
Grocers’ Bank of New York
City v. Bayaud, 21 Hun, 203
257,
Groot v. Greeley, 5 Law. Bull,
69. idee versie: ag eeececee 300
Groshut v. Kinetophate Corp.,
93 Mise. 558, 157 Supp. 312,
102, 1253, 140, 380
Grossman v. Walters, 58 Hun,
603, 33 St. Rep. 921, 11 Supp.
471 :
Guggenhiemer v. Stephens, 17
Civ. Pro. Rep. 383, 26 St.
Rep. 245, 7 Supp. 263 ....
Gumpel v. Gurvich, 102 Mise.
536, 169 Supp. 135
413, 433, 434, 448

228

370

H
Haas v. Matheson, 1 Misc. 2. 20
Supp. 660 ................ 436
Hall v. Hess, 97 Misc. 331, 161
SUPP. 418) 2 sccev ieee 234, 398
Hall v. Knott, 69 Misc. 407,
125 Supp. 299 ............ 336
Hall v. McMahon, 10 Abb. Pr.
103. ors whee exe EON sahed se 270
Hall v. Senior, 54 Mise. 463,
106 Supps 29) vss ccaee cee 330

Hanbury v. Benedict, 160 App.
Div. G62, 146 Supp. 44.. 209, 374
Hancock v. Nears, 93 N.Y. 79,
4 Civ. Pro. Rep. 255 .. 248, 403
Hanson v. Tripler, 1 Code Rep.
N.S. 154, 5 Super. Ct. Rep.
(3 Sandf.) 733
TABLE OF CASES CITED.

PAGE

Happel v. Lippe, 48 Misc. 605,
95 Supp. 523 187,
Harrington, Matter of, 200 Fed.
1010, 29 Am. Bankr. Rep. 66
48,
Harris v. Weiss. 13! St. Rep.
8, 105 Supp. § .........06
Hart v. Johnson, 43 Hun, 505,
7 St. Rep. 133, 26 Week. Dig.
151 .. 178, 199, 220, 387, 388,
Harvey v. Arnold, 84 App. Div.
132, 82 Supp. 155 ..........
Hatch v. Weyburn, 8 How. Pr.
NOS. dys dis eaten qe Beaalee dy
Hatfield, Matter of, 17
Div. 430, 45 Supp. 270
131, 377,
Havens v. National City Bank
of Brooklyn, 4 Hun, 131, 6
DM, Mi Os BAC: spies. cage ee abe
Hawes v. Barr, 30 Super. Ct.
Rep. (7 Robt.) 452 .... 130,
Hawes v. Hawes, 154 App. Div.
922, 139 Supp. 639
Hayward v. Hayward, 178 App.
Div. 92, 164 Supp. 877 ....
Hazelwell v. Penman, 13 How.
Pr. 114, 2 Abb. Pr. 230 ....
Heatherington v. Martens, 73
Hun, 611, 57 St. Rep. 266, 26
Supp. 115
Heckman v. Bach, 20 Abb. N.
Cc. 401
Hedges v. Polhemus, 9 Misc.
680, 30 Supp. 556
Heller v. De Leon, 26 St. Rep.
102, 7 Supp. 97
Henderson v. Stone, 40 How.
Pr. 333, 2 Sweeny, 486 ....
Henry v. Furbish, 30 Mise. 822,
62 Supp. 247
Hentz v. McGehee, 1 N. Y. Law
Bull. 3
Heppenstall v. Bandouine, 73
Misc. 118, 132 Supp. 511 ....

200

51

165

446

237

135

335

13

106

73

349

155

176

306

264

13

XXX1

PAGE

Herman, Matter of v. Good-
son, 18 Misc. 604, 42 Supp.
ONG da austhin Maratea ee eG. as

Heroy v. Gibson, 23 Super. Ct.
Rep. (10 Bosw.) 591 ..

Hexter v. Pennsylvania R. Co.,
43 App. Div. 113, 59 Supp.

BOB) a scttiauaisse buatsea.2 24 Bates 270,
Heyl v. Taylor, 64 Misc. 31, 117
Suppe G16. ss sacsca cedeowss
Hickey v. Dixon, 42 Misc. 4, 85
Supp. 551 .sescssewee ees we
High Rock Knitting Co. v.
Bronner, 18 Mise. 631, 43
Supp: “684, 2sessccccecetaee

Higley v. Novark, 145 App. Div.
7, 129 Supp. 759 ..........
Hilbring v. Wisansky, 54 Misc.
149, 110 Supp. 184 .... 135,
Hildreth v. Seeback, 18 Misc.
387, 41 Supp. 653 ..........
Hlilton v. Patterson, 18 Abb.
Pr. 245 131, 375, 377,
Hirshfeld v. Kalischer, 81 Hun,
606, 30 Supp. 1027 ........
Hollender v. Friedenberg, 60
Mise. 566, 112 Supp. 467. .18,
Holmes v. O’Regan, 68 App.
Div. 318, 74 Supp. 10,
207, 414,
Holstein v. Rice, 15 Abb. Pr.
307, 24 How. Pr. 135 .. 429,
Holton, Matter of v. Robinson,
59 App. Div. 45, 69 Supp. 33,
366,
Homes v. Stietz, 6 Civ. Pro.
Reps 362: 2 wens eguinigeeidaes
Hone, Matter of, 153 N. Y. 522,
Hottenroth, Matter of v. Fla-
herty, 61 Mise. 108, 112 Supp.
1111
Hough v. Kohlin, 1 Code Rep.
N. S. 232 . 187,

201, :

286

331

231

115

181

167

196

440

418

466

459

2

365

142
XXXL

PAGE
Howe, Matter of v. Stuart, 68
Mise. 352, 123 Supp. 971
73, 222, 388, 457
Howell v. German Theater,
Ine. 64 Misc. 110, 117 Supp.
D124 y on severe eaauewa st ivaaew, T2
Hoyt v. Mann, 7 St. Rep. 420, 302
Hubbard v. Lewis Co., 128 App.
416, 112 Supp. 1050 ...... 323
Hubbard v. Weare, 79 Iowa,
678, 44 N. W. 915 .......... 28
Hubertus v. Reilly, 88 Misc.
143; 151 Supp. 775, 39, 41, 46
Hudson v. Plets, 11 Paige, 180
215, 218, 236, 253
Hughes v. McKenzie, 39 St.
Rep. 31, 14 Supp. 352 ...... 343
Hulsaver v. Wiles, 11 How. Pr.
BAG oe uctane wind ave weeeee. 454, 456
Humboldt Exploration Co. v.
Fritsch, 150 App. Div. 90,

134 Supp. 747 ............. 265
Hunter v. Hunter, 67 App. Div.
470, 73 Supp. 886 ......... 237

Hutson v. Weld, 38 Hun, 142,
136, 146, 456

Hyatt v. Dusenbury, 5 St. Rep.

846, 12 Civ. Pro. Rep. 152
314, 347, 348

I.

Importers & Traders’ Nat. Bank
v. Quackenbush, 143 N. Y.
567, 62 St. Rep. 781, 1 Ann.
Cas. 20) cascccesawds sas 81, 109
Ireland v. Smith, 3 How. Pr.
DAB csaigie lentes RY Saeeigles-ee 401
Irwin v. Charaban, 40 Buper, Ct.
Rep. (8 J. & S.) 482 ...... 251
Isaacs v. Calder, 42 App. Div.
152, 59 Supp. 21 .. 195, 205,
427, 439

TABLE OF CASES CITED,

J
PAGE
Jackson v. Murry, 25 App. Div,
140, 49 Supp. 195, 5 Ann.
Cas. 78
Jacobson v. Doty Plaster Mfg.
Co., 32 Hun, 436 ...... 159, 309
Jacobs v. Strumwasser, 84 Misc.

28, 145 Supp. 916 ...... 234, 398
Jaques v. Willett, 138 St. Rep.
500, 104 Supp. 500 .... 169, 378

Jennings v. Lancaster, 15 Mise.

444, 37 Supp. 196 .. 118,
140, 141, 379

Johns, Matter of, 1 N. Y. Law.
Bull. 75 168, 394

Johnson v. Martin, 1 T & C, 504
346

Johnson v. Tuttle, 17 2 Pr.
OUD sade segues ed , 229, 261

Jones v. ‘Aclesibureh oy App.

Div. 483, 98 Supp. 532 .. 321,

Jones v. Nicoll, 72 Misc. 483,

131 Supp. 341 ............ 27
Jones v. Porter, 6 How. Pr. 286,
LIS
Jones v. Ramsdell, 174 App.
Div. 13, 159 Supp. 209 .... 63
Jones v. Rettig, 98 Misc. 487,
164 Supp. 730 ............ 394
Jones v. Sherman, 18 Abb. N.
C. 461, 11 Civ. Pro. Rep. 416,
8 St. Rep. 344 ........ 61, 448
Joyce v. Holbrook, 7 Abb. Pr.
838) vee sne es ca pees ea gee ey 265.
Joyce v. Spafard, 9 Civ. Pro.
Rep. 342 .......... 60, 137, 207

Jurgenson v. Hamilton, 5 Abb.
N. C. 149 ............ 121, 253.

K

Kahn v. Coles, 149 St. Rep.
885, 115 Supp. 885 ........ 36
TABLE OF CASES CITED.

PAGE

Kain v. Larkin, 42 St. Rep.
671, 17 Supp. 223 ..........
Kantor Bros. v. Wild, 93 Misc.
438, 158 Supp. 115 276,
277, 414,

Kaphan v. Rogers Grocery Co.
Inc., 169 App. Div. 63, 154
DBUPPe TOD 6 86a ive nee eaten
Kasting Co. v. Whittle, 174
App. Div. 224, 159 Supp. 909,
Katz v. Kosower, 63 Misc. 25,
117 Supp. 316 ........ 138,
Kaufman v. Thrasher, 10 Hun,
438 217,
Kearney’s Case, 13 Abb. Pr. 459,
Kkeihen v. Shipherd, 16 Civ. Pro.
Rep. 183, 24 St. Rep. 739, 4
Supp. 339 229,
Keller v. Zeigler, 5 N. Y. Law
Bull. 15 ..... Sees Beiies 5g
Kelly v. Levy, 29 St. Rep. 659,
8 Supp. 849 ..............
Kelly v. McCormick, 28 N. Y.
B18 24 sate ce GeSens serosa ws
Kelly v. Mulcahy, 131 App.
Div. 639, 116 Supp. 61 ......
Kelsey v. Webb, 94 App. Div.
571, 88 Supp. 4........
Kelty v. Yerby, 31 How. Pr. 95,
169, 177.

Kemp v. Elliott, 19 Mise. 710,
43 Supp. 501
Kemp v. Gartenberg, 93 Misc.
313, 156 Supp. 883 94,
142,

Kendrick v. Wandall, 88 Hun,
518, 34 Supp. 976
Kennedy v. Carrick, 75 St. Rep.
444, 40 Supp. 1127
Kennedy v. Norecott, 54 How.
Pr. 87 456,
‘Kennedy v. Thorp, 51 N. Y.

LY 4- ae aas os dee a ees 319,
Kennedy v. Weed, 10 Abb. Pr.
62> dss veseeesseccen 184,

207, §

283, :

228

a

416

298

21

377

222

208

467

387

226

430

10

464

353

394

XXXill

PAGE

Kenney v. South Shore Natural
Gas & Fuel Co., 201 N. Y. 89,
Kepecs, Matter of, 157 St. Rep.
872, 123 Supp. 872 .... 399,
Kern v. Zuppa, 193 St. 76, 159
SUPP: TO ei au sisse PS speteetace Ore
Keve v. Columbia Kid Hair
Curlers, Mfg. Co., 161 App.
Div. 918, 145 Supp. 1072...
Kimball v. Burrell, 14 St. Rep.
B88 \ ousete esos Aneta Mens
King v. Burnett, 102 Mise. 161,
168 Supp. 405 94,
King v. Irving, 103 App. Div.
420, 92 Supp. 1094 ...... 9,
Klatzkie v. Kimpel, 206 St. Rep.
711, 172 Supp. 711 .... 316,
Knights of Pythias v. Manhat-
tan Savings Inst., 12 Misc.
626, 34 Supp. 253 ........
Knowles v. De Lazare, 3 How.
Pr. N. 8. 35 214,
Korpolinski, Matter of, 84 Misc.
96, 146 Supp. 859
Kreiser vy. Kitaoka, 36 Misc.
174; 73 Supp. 164. 22.056
Kress v. Morehouse, 8 St. Rep.
SOS Baits 84 dus 129, 132, 133,
Kriegman v. Dumphy, 66 Mise.
221, 122 Supp. 1116 5.2.4.
Krone v. Klotz, 3 App. Div.
587, 38 Supp. 225, 25 Civ.
Pro. Rep. 320, 3 Ann, Cas. 36,
Kroner v. Reilly, 49 App. Div.
41, 63 Supp. 527 233,
Kutcosky, Matter of, 153 App.
Diy. 526, 138 Supp. 263 ...

L

Laird v. Carton, 132 App. Div.
176, 116 Supp. 851
Laird v. Carton, 196 N. Y. 169
10, 16,

287

400

422

37

331

105

28

393

446

100

283

419

444

10
XXXIV

PAGE

Lansing, Matter of, 17 Week.
Dig 288:s 2x cause nies
‘Lansing v. Easton, 7 Paige, 364
385,

Lapham v. Marshall, 51 Hun,
36, 20 St. Rep. 795 ........
Lathrop v. Clapp, 40 N. Y. 328,
221,

Lauter v. Hirsch, 67 Misc. 165,
121 Supp. 651
Lawrence v. Pease, 66 Hun, 663,
50 St. Rep. 851, 21 Supp. 223,
Lawyers’ Title Ins. Co. v. Stan-
ton, 118 St. Rep. 468, 84
Supp. 468 sess cee ee ede eats
Lederer v. Ehrenfeld, 49 How.
Pr. 403 89,
Lee v. Delehanty, 25 Hun, 197,
Lee v. Heirberger, 1 Code Rep.

BS) scien 24s aleiteongena ae
Leggett v. Waller, 39 Misc. 408.
80 Supp. 13 ...... 250, 301,
Lehmaier v. Griswold, 46 Super.
Ct. Rep. (14 J. & 8.) 11
377,

Leo v. Joseph, 56 Hun, 644, 9
SUPP. G12. assess cana ccvenys
Leonard v. Bowman, 40 St. Rep.
135, 15 Supp. 822, 21 Civ.
Proy Reps (237 sos vases cess
Leonard v. Jacobson, 27 Misc.
325, 57 Supp. 818 .........

Leroy v. Halsey, 8 Super. Ct.
Rep. (1 Duer) 589, 1 Code
Rep. 275, 11 Leg. Obs. 252..

Lertora v. Reimann, 87 St. Rep.
921, 53 Supp. 921, 5 Ann.
Cas. 19 232,

Leslie, Matter of, 19 Misc. 667,
44 Supp. 1103

Lewis v. Beach, 146 St. Rep.
200, 112 Supp. 200 122,

159,

Lewis v. Pentield, 3!) How. Pr.

170, 178, :

402

227

409

232

158

100
292

151

321

445

S4

219

TABLE OF CASES CITED.

PAGE

Levey v. Rosett, 200 St. Rep.

1072, 166 Supp. 1072 .. 169,
176,
Levy v. Beacham, 64 Hun, 62,

18 Supp. 748
Levy v. Swick Piano Co., 17

Mise. 145, 39 Supp. 409,
201,
Lilliendhal v. Fellerman, 11

How. Pr. 528, 2 Abb. Pr. 155,
Lindsay v. Sherman, 5 How. Pr.
308, 1 Code Rep. N. 8. 25 ..
Lindsley v. Van Cortlandt, 67
Hun, 145, 22 Supp. 222 ....
Lingsweiler v. Lingsweiler, 18
Civ. Pro. Rep. 81, 57 Super.
Ct. Rep. (25 J. & 8.) 395, 9
Supp. 305 ............ 73,
Lippert v. Olejniezak, 19 St.
Rep. 463 vsiasierdseaacnas es.
Lippincott v. Westray, 6 Civ.
Pro: Repe WA) nase. calseeces
Lisner, Matter of v. Toplitz,

177 ON. Y. 559. all?g 86 App.
Diy. 1, 83 Supp. 423 .. 120,
188,

Livingston, Matter of, 27 Hun,
GUE aunyestwitesiaset ot aes
Livingston y. Cleveland, 5 How.
Pay. B06) inane apunglddve sees
Livingston v. Eaton, 90 App.

Div. 256, 85 Supp. 500 .... :

Livingston v. Livingston, 198
St. Rep. 419, 164 Supp. 419
185, 186.

Livingston v. Stoessel, 16
Super. St. Rep. (3 Bosw.) 19,
Locke v. Mabbett. 3 Abb. Ct.
App. Dec. 68, 2 Keyes 457,
Lockwood v. Sello, 17 Mise. $26,
o7 Supp. 816 152,
Lockwood v. Worstell, 25 Abb.
Pr. 1430 (note)

384

146

206

iL

130

193

190

443

309

19a

94

260

359

241
TABLE OF CASES CITED.

PAGE

Loft Holding Co. v. Eagle
Waist Co., Inc., 201 St. Rep.

567, 167 Supp. 567 ........ 389
Logan v. McCall Publishing
Co., 140 N. Y. 447, 55 St.
Rep. 794, 23 Civ. Pro. Rep.
BUS. Geiss asta dG. Ganeie aes Gate ot 103
Londheim v. White, 67 How.
Bri AG: aitaeaie ting oi eee 234, 282
Losee vy. Allen, 17 Mise. 275, 40
Sipp: 340 gacagecsaesasws 260
Loving v. Laub, 85 Mise. 336,
147 Supp. 304 ........ 237, 360
Lowber v. New York, City of, 5
Abb. Bre 268 soccer ns 63, 238
Lowry v. Smith, 9 Hun, 514... 352
Lowther v. Lowther, 110 App.
Div. 122, 97 Supp. 5, 19 Ann.
Cas, 165 .. 72, 151, 152, 213, 215
Ludeke, Matter of, 171 Fed.
292, 22 Am. Bankr. Rep. 467,
48, 50
Luedeke v. Coursen, 3 Misc.
559, 23 Supp. 314 ........ 438
Lutkins v. Lutkins, 85 Misc.
148, 148 Supp. 174 ........ 38
Lydecker v. Smith, 44 Hun, 454, 89
Lynch vy. Johnson, 48 N. Y. 27,
291, 292
Lynch v. Riley, 22 Week. Dig.

BOL siiseeea eee nena 127, 166, 191
Lynn v. Smith, 35 Hun, 275 .. 288
M

Maas .. McEntegart, 20 Misc.
676, 46 Supp. 534 ........ 285

Maguire v. Bean & Co. Inc., 177

St. Rep. 753, 143 Supp. 753,
284, 416

Maigille v. Leonard, 102 App.

Div. 367, 92 Supp. 656 .. 142,
398, 421, 437

Maloney v. Klein, 116 App.
Div. 790, 102 Supp. 43 ...... 117

XXXV
PAGE
Maltbie Matter of v. Lobsitz
Mills Co., 223 N. Y. 227,
90, 92
Mandeville v. Avery, 124 N. Y.
376, 36 St. Rep. 338 .. 334, 348
Manice v. Smith, 5 Week. Dig.
DOD: died G4 bb chp ad balance ¢. Laoag aN
Manken v. Pape, 65 How. Pr.
DOB! seis seston Sindee g COBRA AG Ogi 148

Manning v. Evans, 19 Hun, 500,

241, 242, 3:

Maples v. O’Brien, 150 St. Rep.

175, 116 Supp. 175 328,
350. 500

Marks v. Spaulding, 43 Hun,
365, 6 St. Rep. 530 ........ 224

Marshall vy. Link, 20 Civ. Pro.

Rep. 109, 36 St. Rep. 60, 13
SUPP. 22 cies ceacawad 251, 252
Martin v. Sheridan, 2 Hilt. 586 247

Martin v. Woodhall, 56 Super.
Ct. Rep. (24 J. & 8.) 439, 21
St. Rep. 465, 4 Supp. 539...

Marx vy. Spaulding, 35 Hun,
478, 8 Civ. Pro. Rep. 135, 16
Abb. N. C. 309

Mason v. Hackett, 35 Hun, 238,

Mason vy. Lee, How. Pr. 466,

Mass vy. Kuhn, 130 App. Div.
68, 114 Supp. 444 ..........

Masten vy. Amerman, 51 Hun,
244, 21 St. Rep. 222, 4 Supp.
681

Mayer v. Consolidated Ice Co.,
132 App. Div. 265, 116 Supp.
900 sexo mm eae Odes wes ais

Mayer Brewing Co. v. Rizzo, 13
Mise. 336, 34 Supp. 457

MeAlpin v. Stoddard, 54 Misc.
647, 105 Supp. 9 .. 186, 197,

255,

MeArthur vy. Lansburgh, 1 Code
Rep. N. 8. 211

MeCorkle v. Herrman, 117 N.
Y. 297, 27 St. Rep. 333 ....

29

Le

193

136

320
XXXV1

PAGE
McCormick v. Kehoe, 7 Leg.

ODS SE os coun sian uate he breed 271
McCoun y. ODorsheimer, 1
Clarke Ch. 144 ........ 59, 233
McEwan v. Burgess, 15 Abb.
Pry 4B8 cas aeevees 1 ee Paes 123
MeGill v. Weil, 19 Civ. Pro.
Rep. 43, 10 Supp. 246 .. 79,
380, 381
MeGivney v. Childs, 41 Hun,
607, 5 St. Rep. 251 .... 250, 403
McGuire v. Hudson, 41 St. Rep.
295, 16 Supp. 392 ........ 136
MeGuire vy. Schroeder, 31 Misc.
179, 63 Supp. 968 .......... 258
MeKinstry .. Atwood, 76 App.
Diy. 300, 79 Supp. 122 ..... 241
McShane v. Pinkham, 22 Civ.
Pro. Rep. 173, +6 St. Rep. 63,
LOSupp. 019 aacsusaueaiwes 278

MeSkimin v. Knowleton, 20 Civ.
Pro. Rep. 274, 14 Supp. 283, 244
Mechanics & Traders’ Bank v.

Healy, 14 Week. Dig. 120 .. 409
Mede v. Meyer, 55 Misc. 621,

105 Supp. 957 ...... 85, 86, 87
Mennen Chemical Co. v. Dress-

ner, 53 Mise. 370, 104 Supp.

TAD? shee ee gasnels caeBe NE Awe 82
Merchant v. Sessions, 5 Civ.

Pro. Rep. 24 ...... 96, 97, 144
Merrill v. Allen, 46 Hun, 623,

13 St. Rep. 20, 28 Week. Dig.

DON ob panting goats arin Ge iseas pA Gra ull 162

Merritt v. Judd, 18 Civ. Pro.
Rep. 159, 9 Supp. 491 ...... 137
Merry, Matter of, 11 App. Div.
597, 42 Supp. 617 .... 183, 458
Merry v. Wilcox, 92 Hun, 210,
72 St. Rep. 273, 36 Supp.
1050 325, 348
Metcalf v. Del Valle, 64 Hun,
245, 46 St. Rep. 105, 19 Supp.
LO: ein sa ees veoe S21, 320, 339

TABLE OF CASES CITED.

PAGE
Methodist Book Concern & Co.
y. Hudson, 1 How. Pr. N. 8.
DLT Sor aes ate warns 114, 175, 253
Meyer, Matter of v. Consoli-
dated Ice Co., 196 N. Y. 471, 177
Meyer v. Dreyspring, 3 Misc.
560, 23 Supp. 315 ...... 442, 443
Meyers v. Herbert, 64 Hun, 200,
45 St. Rep. 626, 19 Supp. 132,
22 Civ. Pro. Rep. 216 .. 390,
391, 469, 470
Midler v. Lese, 45 Mise. 637, 91

Supp DAS? jes adearg a eeiaes a esuaae 356
Milan v. Kerlanksy, 87 Misc.

15, 147 Supp. 1048 . ...... 86
Millar v. Weaver, 23 Misc. 254,

53 Supp. 259 ...... sie ta SEO

Miller v. Adams, 52 N. Y. 409,
152, 154, 425, 426

Miller v. Hooper, 19 Hun, 394, 244

Miller v. Levy, 46 Super. Ct.

Rep. (14 J. & 8.) 207 ..... 360
Miller v. Rossman, 15 How. Pr.
10) caoeGiavious bac eer ed ee 158
Milliken \. Thomson, 54 Super.
Ct. Rep. (22 J. & S.) 393, 8
St. Rep. 106, 12 Civ. Pro.
Reps TGS: sia vas asoeueen oe 127, 203
Millington v. Fox, 13 Supp.
BOS kinda tie Dora eee 401, 442
Minsky v. Stransky, 141 St.
Rep. 220, 107 Supp. 220,
78, 79

Mitchell v. Chicago, Rock Is-
land & Pacifie Ry. Co., 138
Towa, 283, 114 N. W. 622 .. 23

Mitchell v. Loderman, 131 St.

Rep. 1006, 97 Supp. 1006 .. 442
Moller v. Wells, 29 Hun, 587 .. 288
Monahan .. Fitzpatrick, 16

Mise, 508, 39 Supp. 857 2... 415

Monolithic Drain & Conduit Co.
vy. Dewsnap, 25 Civ. Pro. Rep.
380, 41 Supp. 224 .... 335, 337
TABLE OF CASES CITED.

PAGE

Monroe Grocer Co. v. J. A. Per-
due & Co., 123 La. 375, 48
South. 1002

Moore v. Duffy, 74 Hun, 78, 57
St. Rep. 746, 26 Supp. 340,

330,

Moore v. Empie, 17 App. Div.
218, 45 Supp. 539 ........

Moore v. Taylor, 2 How. Pr. N.
S. 343 83, 96,

Moran v. Darcy, 10 Mise. 789,
31 Supp. 1130

Morgan v. Potter, 17 Hun, 403,

239,

Morgan v. Von Kohnstamm, 60
How. Pr. 161 ......... 171,

Morrell v. Hey, 15 Abb. Pr. 430

Morrison, Matter of v. Stember,
49 Mise. 464, 98 Supp. 850,

217,

Morris Plan Co. of Buffalo v.
Miller, 102 Mise. 470, 169
Supp. Ok sasecuewane danas

Moschall v. Boor, 66 Hun, 557,
50 St. Rep. 236, 21 Supp. 683,
Moss, Matter of v. Lightfine,
60 Mise. 62, 111 Supp. 675,
240,

Moyer v. Moyer, 7 App. Div.
523, 40 Supp. 258 .. 114, 204,
274,

Muldoon v. Pierz, 1 Abb. N. C.
309
Mulford v. Gibbs, 9 App. Div.
490, 41 Supp. 273
Mulstein Co. v. New York, City
of, 213 N. Y. 308
Murphy v. Cram, 157 App. Div.
609, 142 Supp. 972 .. 62, 190,
260, 318, 319, 370,

Murray Matter of v.Kuhnle, 58
Mise. 313, 109 Supp. 669 ..
Mutual Film Corp. v. Davis,
210 St. Rep. 320, 176 Supp.
B20 ede e Mes take es 149,

331

308

189

244

315

306

226

431

17

200

321

416

381

245

326

472

244

190

XXXVi1

PAGE

Myers v. Moran, 113 App. Div.
427, 99 Supp. 269 ........
Myers Co. v. Reynolds, 200 St.
Rep. 654, 166 Supp. 654 .. 28,

Myres’ Case, 2 Abb. Pr. 476,
299,

N

Nathans v. Satterlee, 18 Abb.
N. CG, 310 280,
National Bank of Port Jervis v.
Hansee, 15 Abb. N. C. 488
83,

National Print Co. v. Patterson,
4 .N. Y. Law Bull. 64 ......
National Printing & Engraving
Co. v. Armstrong, 184 St.
Rep. 433, 150 Supp. 433 ....
National Wall-Paper Co. v.
Gerlach, 15 Misc. 640, 37
SUpp. 428 oc sawsacewe 315,
Nejez, Matter of, 54 Misc. 38,
104 Supp. 505 ............
Netzel v. Mulford, 59 How.
MOD. coc wate sain Mig ema mend ge
Neu v. Fox, 151 App. Div.
135 Supp. 208 .. 25, 26, 29.
31, 43,

Neuman v. Mortimer, 98 App.
Div. 64, 90 Supp. 524 .. 12,

32

300

283

191

liz

147

399

44

18, 27

Newell v. Cutler, 19 Hun, 74,
177,

New Jersey Foundry & Machine
Co. v. Siebert, 124 St. Rep.
468, 90 Supp. 468 ..........
N. Y. Loan & Improvement Co.
v. DeNavarro, 38 Misc. 436,
77 Supp. 1006, 11 Ann. Cas.
360 63,
Nichol v. Wilson, 175 App. Div.
667, 161 Supp. 870 .. 267,
397,

203

128

443
XXXVLil

PAGE

Nicoll v. Spowers, 105 N. Y. 4,
6 St. Rep. 547, 27 Week. Dig.
SO! Petree sous ied base Wanner

Norcross v. Hollingsworth, 83
Hun, 127, 64 St. Rep. 264, 31
Supp. 627 .........4., 233,

Norton v. Bielby, 86 Misc. 644,
149 Supp. 592 ........ 383,

0

Obergfoll, Matter of, 239 Fed.
850, 152 C. C. A. 636, 38 Am.
Bankr. Rep. 645

Obermeyer & Liebman v. Adi-
sky, 123 App. Div. 272, 107
Supp. 949 .... 434, 458, 459,

O’Brien v. Kelly, 134 App. Div.
562, 119 Supp. 613

Ochs v. Pohly, 87 App. Div. 92,
84 Supp. 1

©’Connor v. Mechanics’ Bank,
54 Hun, 272, 27 St. Rep. 1,
7 Supp. 380 306,

O’Neil v. Martin, 1 E. D. Smith,
404

Onetto, Matter of, 171 App.
Div. 211, 157 Supp. 170 ....

O’Reilly v. Adams, 163 App.
Div. 60, 148 Supp. 441 ....

Ormes v. Baker, 17 Week. Dig.
TOA Nae Saute Rite eae energie

Orr’s Case, 2 Abb. Pr. 457

95, 251,

Osterhoudt v. Stade, 133 App.
Div. 83, 117 Supp. 809 ....

Ostrom v. Ostrom, 38 Mise. 232,
77 Supp. 594 65, 77,

Owen v. Dupignac, 9 Abb. Pr.
180, 17 How. Pr. 512

Owen v. Ford, 68 Misc. 522, 124
Supp. 839 ........--+- 160,

318

399

51

460

57

364

355

193

200

355

355

470

34

409

65

165

LABLE OF CASES CITED.

P
PAGE
Palen v. Bushnell, 68 Hun, 554,
52 St. Rep. 556, 22 Supp. 1044
187,
Palmer y. Colville, 63 Hun, 536,
45 St. Rep. 706, 18 Supp. 509
: 111, 344,
Pardee v. Tilton, 58 How. Pr.
AIG) ow cacediad Pamaenion Sond
Parker v. Wakeman, 10 Paige,
ABD) vaciecraiay she psiai Grae ay Gee
Parkman, Matter of, 177 Supp.
589 25,
Pate v. Hoffman, 61 Hun, 386,
40 St. Rep. 915, 16 Supp. 74,
Patten v. Connah, 13 Abb. Pr.
418 ........ 294,
Patterson, Matter of, 12 App.
Diy. 123, 42 Supp. 495 .. 202,
Payne v. Becker, 87 N. Y. 153
207,
Peck v. Baldwin, 58 Hun, 308,
34 St. Rep. 511, 11 Supp. 792,
19 Civ. Pro. Rep. 403 . 161
Peck v. Disken, 41 Misc. 473, 84
Supp. 1094 .... 81, 109, 110,
Pendergast v. Dempsey, 18 Civ.
Pro. Rep. 198, 10 Supp. 938,
Pendleton v. Friedman, 135
App. Div. 420, 119 Supp. 994
342,
Pennsylvania Glass Co., Matter
of, 28 Mise. 130, 58 Supp.

200

345

95
396
eau aleiy ee 4 ages Soke 26
234
357

336

356

303

225

343

1067 eH 66S ad wantiee 322
Pennsylvania Glass Co. v. Foeh-
renbach, 27 Misc. 815, 57
Supp. 396 ...........-.... 196
People ex rel. Jacobs v. Ball, 37
AUN, 245 ces pee cas eae 214, 382

People ex rel. Duvall v. Cocks,
162 App. Div. 453, 147 Supp.
829

People v. Cowan, 146 N. Y. 348,

69 St. Rep. 185 ........... 88
TABLE OF CASES CITED.

PAGE

People ex rel. Brunett v. Dutch-
er, 3 Abb. N. S. 151
People ex rel. Blair v. Grant, 45
Mise. 505, 92 Supp. 742 ..
People ex rel. Cowan v. Hamil,
179 St. Rep. 400, 145 Supp.
BOO: Gedigcs ence line x's 208, 421,
People ex rel. Roach v. Han-
bury, 162 App. Div. 337, 147
Supp. 851
People ex rel. Williams v. Hul-
burt, 5 How. Pr. 446, 9 Leg.
Obs. 245, 1 Code Rep. N. 8S.
75 .. 108, 127, 283, 284, 318,
People ex rel. Day v. Jones, 1
Abb. N. C. 172, 52 How. Pr.
95 152,
People ex rel. Kearney v. Kelly,
22 How. Pr. 309, 13 Abb. Pr.
499). cea eases ess eeO He 375,
People ex rel. Pease v. King, 9
How. Pr. 97
People ex rel. Noel v. Kings-
land, 3 Abb. Ct. App. Dec.
526, 3 Keyes, 325 406,
People ex rel. Korotowsky v.
Leipzig, 52 How. Pr. 410 ..
People v. Marston, 18 Abb. Pr.
257 219, 222,
People ex rel. Aldhouse v. Mc-
Carthy, 41 Mise. 429, 84
Supp. 1062 79, 209,
People ex rel. Fitch v. Mead, 29
How. Pr. 360 61, 70,
People ex rel. Mace v. Oliver, 66
Barb. 570 87, 166,
People ex rel. Tuell v. Paine, 92
App. Div. 303, 86 Supp. 1109,
People v. Recorder of Albany, 6
Hill, 429
People ex rel. Morris v. Ran-
dall, 73 N. Y. 416
People ex rel. O’Connor v. Sick-
les, 36 St. Rep. 548, 13 Supp.
101

ee ee

248

433

223

319

379

431

283

442

216

409

394

472

380

428

155

XXXIX

PAGE
People ex rel. Grant v. Warner,
51 Hun, 53, 20 St. Rep. 573,
3 Supp. 768 .. 199, 202, 211,

215, 388
Perkins v. Kendall, 3 Civ. Pro.
Rep. 240i pisces cinta wider 376
Pester, Matter of, 2 Code Rep.
98> vse ddaaees yeawoe 58 wa 414
Peters v. Carr, 2 Dem. 22 .... 311
Peters v. Kerr, 22 How. Pr. 3 273
Pettibone v. Drakeford, 37 Hun,
O28) ica Nabe Goumurweces ene 361
Pickert v. Eaton, 81 App. Div.
423, 81 Supp. 50 ...... 318, 327
Picquet v. Swan, 4 Mason (U.
8S. Circuit) 443 ........... 3
Pierce v. Parish, 28 App. Div.
22, 50 Supp. 735 .. 147, 150,
153, 379
Pistchal v. Durant, 168 App.
Div. 100, 153 Supp. 785 .... 28
Pommerantz v. Bloom, 32 Misc.
754, 65 Supp. 671 ........ 267

Porter v. Williams, 9 N. Y. 142,
12 How. Pr. 107 .. 318, 334,
337, 348, 353
Poskanzer, Matter of, 101 Mise.
100, 166 Supp. 811 ........
Poskanzer, Matter of, 181 App.
Div. 915, 167 Supp. 1122 ..
Potter v. Low, 16 How. Pr. 549,
232, 276,
Potts v. Davidson, 1 How. Pr.
N. 8S. 216 99, 147
Powell v. Waldron, 89 N. Y.
328 234, 345
Pratt, Matter of, 158 App. Div.
695, 143 Supp. 1025 ........
Press Publishing Co. v. MeGill,
170 St. Rep. 177, 136 Supp.
177 80,
Price v. Creme De Mohr Co.,
78 Misc. 42, 137 Supp. 732,
409,

15

15

403

36
110

411
xl

PAGE

Price v. Price, 21 App. Div.
597, 47 Supp. 772 ..........
Price Bros. v. Cushing, 135
Iowa, 457, 110 N. W. 1030 ..
Prince v. Brett, 21 App. Div.
190, 47 Supp. 402
Protter v. Lovell, 91 Mise. 417,
155 Supp. 275 .. 397, 405,
406, 422,

Pruyn v. Black, 105 App. Div.
302, 93 Supp. 995
Putnam v. Anthony, 7 St. oe
580

rr

R

Rabbe v. Astor Trust Co., 61
Mise. 650, 114 Supp. 131, 1
Civ. Pro. Rep. N. 8. 122,

102, 340,

Rainey, Matter of, 5 Misc. 367,
26 Supp. 892

Rainsford v. Temple, 3 Misc.
294, 22 Supp. 937

Rallings v. Pitman, 49 Super.
Ct. Rep. (17 J. & 8.) 307,

258,

Rathers v. Kaplan, 3 Civ. Pro.
Rep. N. 8S. 21, 172 St. Rep.
1002, 158 Supp. 1002

Rawolle, Matter of v. Kalb-
fleisch, 47 Misc. 364, 94 Supp.
IG): cei eeeee eA Geee Seach

Redmond v. Goldsmith, 2 N. Y.
Law Bull. 19 ..............

Reibstein v. Stenz, 140 App.
Div. 519, 125 Supp. 508 .. 34,

Remmey v. Gedney, 57 How. Pr.
217 (note) ........ oe. 248,
Renaud v. O’Brien, 35 N. Y. 99
Renner v. Meyer, 22 Abb. N. C.
438, 6 Supp. 535 ..........
Reynolds v. Gilchrest, 9 Hun,
203

ae meee reer r reser aeee

23

245

443

363

. 389

342

362

403

259

171

336

218

42

279
345

461

TABLE OF CASES CITED.

PAGE

Reynolds v. Harlem Construc-
tion Co., 71 Misc. 446, 128
Supp. 642

Reynolds v. McElhone, 20 How.
Pr. 454 390,

Rhodes v. Linderman, 63 Hun,
626, 43 St. Rep. 520, 17 Supp.
628

Richards v. Allen,
Smith, 399

Richie v. Bedell, 22 Week. Dig.
563 290,

Ridabock & Co., Matter of v.
Scanlon, 71 Mise. 505, 170
Supp. 831 ........ Babies es

Ringe v. Mortimer, 116 App.
Div. 722, 101 Supp. 1110 ..

Rinschter v. Bell, 152 St. Rep.

3 E. D.

536, 118 Supp. 536 ...... 42,
Ritter v. Greason, 28 Misc. 656,
59 Supp. 1053 ........ 454,

Ritterband v. Baggett, 4 Abb.
N. C. 67, 42 Super Ct. Rep.
(10 J. & S.) 556... 234, 281,

Ritterband v. Maryatt, 12 Leg.
Obs. 158: 25 Gi Sew asc 8 ¥ Suess

Robens v. Sweet, 48 Hun, 436,
16 St. Rep. 334, 1 Supp. 839,
28 Week. Dig. 417 .... 464,

Robertson v. Hay, 12 Mise. 7,
33 Supp. 31 467,

Robinson v. Wood, 60 Hun, 583,
39. St. Rep. 466, 15 Supp.
169

Rockwell v. Merwin, 45 N. Y.
166

Rodman v. Henry, 17 N. Y. 482,

Roshand v. Waring, 1 Abb. N.
CO. S11, 4. shes eid wireweee

Rolt-Wheeler v. Rolt-Wheeler,
175 App. Div. 852, 162 Supp.
491

Romaine v. Chauncey, 129 N.Y.
566, 42 St. Rep. 267 .... 19,

ee eam creme eres essrcens

39

466

398

357

414

271

45

472

469

458

343
285

235
TABLE OF CASES CITED.

PAGE

Roome v. Swan, 15 Civ. Pro.
Rep. 344, 18 St. Rep. 286, 2
Supp. 214

Root v. Rich, 204 St. Rep. 871,
170 Supp. 871. .206, 438, 439,

Roscoe Lumber Co. v. Payne,
183 St. Rep. 331, 149 Supp.
331 190, 255,

Rose, Matter of, 87 App. Div.
240, 84 Supp. 276 ........

Rosen v. Wygand, 174 Supp.
GRE: Spock sRaacedeaeaoud est ane ad

Rosenstock v. New York, City
of, 97 App. Div. 377, 89
Supp: 948) wicscacecsswaaes

Ross v. Clussman, 5 Super. Ct.
Rep. (3 Sandf.) 676

94, 166, 400,

Ross v. La Cagnia, 68 Mise.

497, 124 Supp. 753. .436, 441,

448

470

123

47

38

444

448

Roth v. Light, 169 St. Rep. 601, -

135 Supp. 601 ............
Rothschild, Matter of, 84 App.
Div. 196, 82 Supp. 558 ....
Rourke v. Turrell, 172 St. Rep.
648, 138 Supp. 648. .264, 266,
Rouse v. Goodman, 58 St. Rep.
830, 28 Supp. 524 ..........
Rowland, Matter of, 21 App.
Div. 172, 47 Supp. 493 ....
Royal Bank of New York, Mat-
ter of, 140 App. Div. 480, 125
Supp: 822 ascccvesowes vaca
Rugg v. Spencer, 59 Barb. 383
Rupert v. Lee, 101 App. Div.
492, 92 Supp. 75 .. 199, 202,
Russel v. Somerville, 4 N. Y.
Law Bull. 3 .......... 96,
Rutaced Co., Matter of, 137
App. Div. 716, 122 Spup. 454
Ryan v. Wagner, 143 App. Div.
176, 127 Supp. 973 ... 299,

136

467

310

181

123

43

432

376

144

99

302

Ss

xli

PAGE

Sackett v. Newton, 10 How. Pr.
560 64, 108,
Saggese v. Virgilo, 140 St. Rep.
1100, 106 Supp. 1100 ......
Saks & Co. v. McDonald, 198
St. Rep. 756, 164 Supp. 756
Sale v. Lawson, 6 Super. Ct.
Rep. (4 Sandf.) 718
111, 112,
Sandford v. Carr, 2 Abb. Pr.
462 212,
Sandford v. Mosier, 13 How.
Pri ABT e435 ceisews a wesw: 270,
Sands v. Roberts, 8 Abb. Pr.
DAD cecvnR dong digdnd. wien cman evel Webud
Satterlee v. Mathewson, 2 Pet-
CFS; ISO" es daus.cen wer wasie-s ten
Saunders v. Hall, 2 Abb. Pr.
418 188,
Sayer v. MacDonald, 2 How. Pr.
N. 8. 119 133,
Sayles v. Best, 66 Hun, 628,
49 St. Rep. 460, 20 Supp.
OD i eceycretite gies anes sae 231,
Sayles v. Naylor, 5 St. Rep.
SIG wiciazedesdees aaekes
Schafer v. Tyroler, 94 Mise.
127, 158 Supp. 1090
243, 246,
Schanck v. Conover, 56 How.
Pr. 437 229,
Schenck v. Erwin, 63 Hun, 104,
43 St. Rep. 862, 17 Supp.
GAG! sAsidsjeteraretuases siete Syne 161,
Schneck v. 60 Hun,
361, 38 St. Rep. 603, 15
Supp. 55, 21 Civ. Pr. Rep.
96) wa eg satin n és -.. 140, 154,
Schermerhorn v. Owens, 29
Mise. 674, 62 Supp. 735, 7
Ann. Cas. 280 ...
Schmitzer v. Willner, 7 Misc.
497, 27 Supp. 970 ........

140

39

158

409

272

232

12

205

134

305

231

404

471

278

201

188
xlii

PAGE
Schneider v. Altman, 8 Civ.
Pro. Rep. 242, 2 How. Pr.
N. 8. 448, 16 Abb. N, C. 312 220
Schruth v. Dry Dock Savings

Bank, 86 N. Y. 390 ........ 292
Schwab v. Cohen, 13 St. Rep.

10D) sha spat ta ante SE Ties 212
Schwarmecke, Matter of v.

Glenny, 54 Mise. 36, 103

Supp. 499, 38 Civ. Pro. Rep.

BEES cate scie mea eeee sales, 256

Schwartz v. Sill, 85 Mise. 55,

146 Supp. 1068 ........... 438
Scialampo v. Ciolino, 128 Supp.

G28 ache wait sa et Man hee s 450
Scroggs v. Palmer, 66 Barb.

BOD 5. Seeds Sava cou Snate Sian d eiueverd lace 342
Seeley, Matter of v. Connors,

109 App. Div. 279, 95 Supp.

1109 .... 94, 135, 142, 245, 310
Seitz, Matter of, 56 Misc. 616,

107 Supp. 593 .... 391, 487, 444
Seligman v. Wallach, 67 How.

Pr, 514, 6 Civ. Pro. Rep. 232,

16 Abb. Pr. N. S. 317 .... 220
Sellig v. McIntyre, N. Y. Daily
Reg., July 28, 1883 ........ 252

Semmes v. Noel, 18 Civ. Pro.
Rep. 200 (note), 10 Supp.
939 (note)

Serven v. Lowerre, 3 Misc. 113,

23 Supp. 1052 .... 267, 273, 280

Seymour v. Wilson, 14 N. Y.
567, 15 How. Pr. 355 .. 348, 352

Shane Bros. & Wilson Co. v.
Henshaw, 174 App. Div. 606,

161 Supp. 115. .251, 377, 385, 445

Shannon, Matter of v. Steger,

75 App. Div. 279, 78 Supp.
16S ianieisst gee 108, 268, 283, 285

Shea v. Lynskey, 167 St. Rep.
477, 183 Supp. 477 .... 272, 288

Sheffield Farms Co. v. Burr, 11
Misc. 638, 32 Supp. 1149 .. 307

TABLE OF CASES CITED.

PAGE
Sherl v. Kurzman, 60 Mi-c. 332,

115 Supp. 288 138, 167
Sherwood v. Dolen, 14 Mun, 191, 413
Shorwitz \. Caminez, 152 App.

Div. 758, 137 Sapp. 545..411, 412
Shults v. Andrews, 54 How. Pr.

BIS ge ve awe 167, 376, 385, 446
Shults v. Andrews, 54 How. Pr.

380 “enema esenameaes 174, 254
Sickels v. Hanley, 4 Abb. N.

C. 231 172, 307, 376
Sickle, Matter of, 52 Hun, 527,

23 St. Rep. 585, 5 Supp. 703,

17 Civ. Pro. Rep. 188 ...... 223
Sickles v. Sullivian, 65 Hun,

620, 19 Supp. 749, 22 Civ.

Pro, Rep. 322 saieceinenes 327
Siegel, Matter of, 179 App. Div.
532, 166 Supp. 117 ..... oo. 28

Silberman Dairy Co. v. Econo-
poully, 177 App. Div. 97, 163
Supp. 824. cas sca san eas 412, 435

Silverman v. Henant, 40 How.

Pr. SS ne secrree ny ce ata ewes 118

Simms v. Fricr, 2 N.
Bulls OF se cds sao 136, 456

Simon v. Underwood, 61 Misc.
369, 115 Supp. 65, 1 Civ. Pro.
Rep. N. 8. 186 .... 78, 82, 168

Sims, Matter of, 176 Fed. 545,

23 Am. Bankr. Rep. 899..48, 50

Sinnott v. First Nat. Bank of
Hempstead, 34 App. Div. 161,

54 Supp. 417 ............. 462

Sistare, Matter of, 2 Con. 544,

27 Abb. N. C. 34, 15 Supp.

(OD > sais) Stele Gotti tiay a ens Alaa 363
Sloane v. Higgins, 1 N. Y. Law
Bull, 99» s.ccsiceecvsncey oe sees 381

Sloane v. Tiffany, 103 App. Div.
540, 93 Supp. 149 .... 9, 27, 28
Smethurst, Matter of, 4 Super.
Ct. Rep. (2 Sandf.) 724, 4
How. Pr. 369, 3 Code Rep.
5D is sess os ete 209, 421, 425
TABLE OF CASES CITED.

PAGE

Smith v. Barnum, 59 App. Div.
291, 69 Supp. 253
Smith v. Clarke, 1 Law Bull.
83
Smith v. Cowles, 114 App. Div.

295, 99 Supp. 747 ........
Smith v. Cutter, 64 App. Div.
412, 72 Supp. 99 ...... 70,

Smith v. Davis, 63 Hun, 100, 43
St. Rep. 504, 17 Supp. 614,
111,

Smith \. Haverty’s Stables, 157
App. Div. 777. 142 Supp. 764,
Smith v. MeNamara, 15 Jtun,
BAT ca gisoiits ease evant 8 Sid ee Ga
Smith v. McQuade, 59 Hun,
374, 36 St. Rep. 556, 13 Supp.
Re) 6 Gwe ete age aie RR eek WES
Smith v. Pierce, 45 App. Div.
628, 60 Supp. 1011 ........
Smith v. Tozer, 42 Hun, 22. 3
St. Rep. 363, 11 Civ. Pro.

Rep. 343, 25 Week. Dig. 252,
Smith v. . 4 Edw. Ch.
GOO uvededade dre seeaerres

Smith & Co. v. Josephson, 56
Mise. 120, 107 Supp. 221 .
Snell v. Paul, 20 How. Pr. 97..
Solomon v. Rosenfeld & Co., 148

St. Rep. 770, 114 Supp. 770,
1 Civ. Pro. Rep. N. S. ... 4,
Sonn v. Kenny, 63 Mise. 251,

116 Supp. 613 ........ 421,
Sorrentino y. Langlois, 144
App. Div. 271, 128 Supp.

MOOS oie Seoiies vaktonay meee
Sortorelli v. Ezagni, 64 Mise.
115, 118 Supp. 46 ..........
Soule v. Lookstein, 185 St. Rep.
67, 151 Supp. 67 ..........
Spafard v. Hogan, 22 Week.
PIs SOO: aiding. Rae Bad segues 8 oie
Spencer v. Berdell, 45 Hun,
TD) gecytea extern, 88,

339

253

151

112

147

279

281

326

351

xhil

PAGE

Sperling v. Levy, 10 Abb. Pr.
426, 1 Daly 95 .........05.
Staats v. Wemple, 2 How. Pr.
INE Ses DG cata oee aaa
Stafford, Matter of, 105 App.
Div. 46, 94 Supp. 194 ....
Stanley v. Lovett, 14 Hun, 412
391,
Stark v. Beckwith Special
Agency, 227 N. Y. 42 .. 33,
State Bank of Syracuse v. Gill,
23 Hun; 406 2s. ices nea see
Stearns v. Eaton, 43 St. Rep.
518, 17 Supp. 687 ..........
Steenberge v. Low, 46 Misc. 285,
92 Supp. 518 328,
Steinert vy. Van Aken, 165 App.
Div. 206, 150 Supp. 525,
319, 334, 337, 338,
Steinman, Matter of v. Conlon,
208 N. Y. 198
Steinmann, Matter of v. Conlon,
150 App. Div. 708, 135 Supp.
740 70,
Steinmann v. Hasier, 139 Supp.
863, 3 Civ. Pro. Rep. N. 8. 22,
68,
Stell, Matter of v. British Un-
ion & Nat. Ins. Co., 78 Misc.
40, 187 Supp. 703 ..........
Stephens vy. Meriden Britannia
Co., 160 N. Y. 178, 30 Civ.
Pro. Rep. 192 .... 349, 352,
Stephens v. Perrine, 143 N. Y.
476
Stevens v. Dewey, 13 App. Div.
312, 4 Ann. Cas. 40, 43 Supp.
1B! os cocae sea ees SaewR ek ehs
Stevens Co. v. Maus, 155 App.
Div. 249, 139 Supp. 1059. .66,
Stevenson v. Stevenson, 34 Hun,
157

368

286

330

525

208

194

73

379

358

. 349

403

110
xliv

PAGE

Stewart, Matter of, 8 Civ. Pro.
Rep. 354 ..cccsesae ceva ces
Stewart, Matter of, 39 Mise.
275, 79 Supp. 525 .........
Stewart, Matter of, 40 Mise.
32, 81 Supp. 209 ..........
Stewart v. Foster, 1 Hilt, 505,
279,
Stewart v. McMartin, 5 Barb.
AB sie b nce ahaa: 8 nese sielarnse gna
Stiefel v. Berlin, 20 Misc. 194,
45 Supp. 746
Stiefel v. Berlin, 28 App. Div.
103, 51 Supp. 147, 27 Civ.
Pro. Rep. 216 .... 339, 345,
Stimpson v. Foody, 133 St. Rep.
317, 99 Supp. 317 ........
Stoddard, Matter of, 128 App.
Div. 759, 113 Supp. 157,
90, 197,
Stoors v. Kelsey, 2 Paige, 418
Strauss v. Yorkville Bank, 32
Mise. 239, 65 Supp. 793
Streep, Matter of, 181 App. Div.
869, 168 Supp. 1026
Strong v. Epstein, 14 Abb. N. C.
322, 6 Civ. Pro. Rep. 36 ..
Stumpp, Matter of, 32 Misc. 41,
66 Supp. 172 ............
Sturm v. Parsons, 134 Supp.
DBE: cosigyléunas eR a ecad wens
Sudlow v. Mead, 21 St. Rep.
435, 3 Supp. 321 134,
Sullivan v. U. 8S. Gas Fixture
Co., 184 App. Div. 658, 119
Supp. 532 399,
Summerfield v. Goldstein, 59
Mise. 387, 112 Supp. 357 ..
Swalm v. Lyons, 59 Mise. 384,
112 Supp. 355 ..

Taylor v. Buser, 201 St. Rep.
887, 168 Supp. 887 .... 48,

83

106

283

231

340

350

356

297
116

. 171

159

305

134

401

259

418

64

192

56

TABLE OF CASES CITED.

PAGE

Teelon, Matter of, 87 Misc. 361,
150 Supp. 729 .... 246, 404,
Tefft v. Epstein, 17 Civ. Pro.
Rep. 168, 7 Supp. 897
Teller v. Randall, 26 How. Pr.
145, 40 Barb. 242, .
TenBroeck v. Sloo, 13 How. Pr.
28, 2 Abb. Pr. 234 .... 235,
Terry v. Bange, 24 St. Rep. 599,
5 Supp. 330 ............-.
Terry v. Hultz, 8 Abb. N. S.
109, 39 How. Pr. 169 ......
Thomas v. Kircher, 15 Abb. N.
i084 2) ais Ss avesanita ae ie 4
Thomas Co. v. Lowenthan, 147

St. Rep. 1092, 113 Supp. 1092, :

Thompson, Matter of, 31 Misc.
802, 62 Supp. 1033 .........
Thompson v, Nixon, 3 Edw. Ch.
ABT. | cate ta ee heataue ch: bs wenscouain os
Thompson, Matter of v. Sage,
47 Mise. 357, »4 Supp. 31
192,
Tillotson vy. Wolcott, 48 N. Y.
DSS) he Sp na aad ahd eae aan
Tinker v. Crooks, 22 Hun, 579

Tinkey v. Langdon, 60 How. Pr.
180 .. 195, 204, 206, 336, 380,
414,

Title Guarantee & Trust Co. v.
Brown, 136 App. Div. 843.

579,
273 26

442

. 454

406

236

367

427

121 Supp. 891 ............ 129
Tobias v. Walton, 150 St. Rep.
587, 116 Supp. 587 ........ 254

Todd y. Crooke, 6 Super. Ct.
Rep. (4 Sandf.) 694,

302, 305,

Tremain v. Richardson, 68 N.

Me Oli scene eee

Tribune Assn., Matter of, 13

Misc. 326, 34 Supp. 459 ....
TABLE OF CASES CITED.

PAGE

Trustees of Board of Publica-
tion and Sabbath School
Work, Matter of, 22 Misc.
645, 50 Supp. 171, 27 Civ.
Pro. Rep. 109 ........ 238,

Tuell v. Paine, 71 Supp. 1121,

Twelfth Ward Bank v. Colum-
bia Publishing Co., 51 Mise.
62, 99 Supp. 908 ..........

Twelfth Ward Bank v. Hamil-
ton, 58 Misc. 173, 109 Supp.
DU aie na anda Bk as ani ane nes

Twelfth Ward Bank v. Luckes,
129 Supps 227 cess desees

Tyler v. Whitney, 12 Abb. Pr.
AOD. edoriiyey Pike wtaanse veda Se hal

Tyler v. Willis, 33 Barb. 327,

12 Abb. Pr. 465 .. 114, 116,
U

Ullman v. Cameron, 186 N. Y.

DSO) cusakseenld soeG igs 242,

Ulner v. Doran, 167 App. Div.
259, 152 Supp. 665 47,
Underwood v. Sutcliffe, 10 Hun,
453. .312, 316, 344, 348, 466,
Ungrich, Matter of, 201 N. Y.
ALD: apices 2 25 hand d eiaeean Bane west
Union Bank of Troy v. Sar-
geant, 35 How. Pr. 87, 53
Barb. 422 201,
Union Surety & Guaranty Co.
v. Sire, 34 Misc. 221, 68 Supp.
943) eet de dane ae nee oe aatitiods
U. 8S. Land & Engineering Co.
v. Pike, 2 N.Y. Law Bull. 31,
Utica City Bank v. Buel, 17
How. Pr. 498, 9 Abb. Pr. 385,

Vv

Valentine v. Williams, Inc., 193
St. Rep. 815, 159 Supp. 815,
12,

240
446

362

247

428

115

311

368

49

470

12

206

15

xlv

PAGE

Valentine & Co. v. Mandel, 19
Civ. Pro. Rep. 155, 11 Supp.
TIS .kseeresau yess nadcaa as
Valiente v. Bryan, 3 Civ. Pro.
REP BOS. secon nea mds 2 ha aed
Van Buren, Matter of (D. C.,
N. Y.) 20 Am. Bankr. Rep.

896, 164 Fed. $83 .......... 53
Van Loan v. New York, City

of, 105 App. Div. 572, 94

BUPP. B2T joscaeae dscew wana BB
Van Ness, Matter of, 21 Misc.

249, 47 Supp. 702 .......... 246

Van Ness, Matter of, 17 App.
Div. 581, 45 Supp. 576..199, 200
Van Rensselaer v. Emery, 9

How. Pr. 135 ..........0... 364
Van Valkenburgh v. Bishop,

198 St. Rep. 86, 164 Supp.

SG. gta waa ee eaienens pee: 19, 40
Van Vechten v. Hall, 14 How.

Pr. 436 sess Ae Seek ea ys eG 246
Van Wie v. Delaware & Hudson

Co., 71 Mise. 25, 127 Supp.

TB Fe sence een RA aaa es 37
Verdi v. La Russo, 172 St. Rep.

568, 3 Civ. Pro. Rep. N. 8.

13, 158 Supp. 568 .... 418, 445
Vermont Marble Co. v. Wilkes,

30 Supp. 381 ........ 418, 442
Viburt v. Frost, 3 Abb. Pr. 119,

12 Super. Ct. Rep. (5 Duer)

G12! sanbekreed a cone oem 313, 346

Vingut v. Sire, 163 App. Div.
529, 148 Supp. 533 ........ 386

Vogel v. Ninmark, 62 Mise. 591,
116) Supps B29) soi isiadea onan

Vosper v. Monkash, 162 St. Rep.
624, 128 Supp. 624 .... 302, 411

WwW

Wainwright v. Tiffany, 13 Civ.

Pro. Rep. 222 225

eee eee ee owas
xlvi

PAGE

Waldheim v. Bender, 36 How.
Pre (8d say sev ees vce a¥s
Waldman y. O’Donnell, 57 How.
Pie BUD. si csscnpieuectne ao deees 105,
Walker, Matter of, 80 Mise.
389, 141 Supp. 265 ........
Walker v. Donovan, 6 Daly, 552,
53 How. Pr. 3 ...... 95, 96,
Walter y. Pecare, 32 St. Rep.
841, 11 Supp. 146 .... 395,
Ward v. Arenson, 23 Super. Ct.
Rep. (10 Bosw.) 589
Ward v. Baker, 186 App. Div.
652, 175 Supp. 66 .... 319,
Ward v. Beebe, 15 Abb. Pr.
SUD seoreeece cance aids oa cesenete eas
Ward v. Petrie, 157 N. Y. 301,
346,
Ward v. Stoddard, 144 App.
Div. 143, 128 Supp. 846, 2
Civ. Pro. Rep. N. S. 875
176, 382, 430,

Wardell v. Leavenworth, 3
Edw. Ch. 244 ............
Wasserman (Co. y. Vaudeville

Comedy Club, 160 Supp. 1047,
Waters v. Miller, 3 N. Y. Law
Bull, 10d wsawaveneuleaeay
Watrous v. Lathrop, 6 Super.
Ct. Rep. (4 Sandf.) 700 ..
Watson y. Fitzimmons, 12 Su-

per. Ct. Rep. (5 Duer) 629
89, 414,

Weaver v. Brydges, 85 Hun,
503, 33 Supp. 1382 ..... 202,

Webb v. Dill, 18 Abb. Pr. 264,
Webb v. Osborne, 15 Daly, 406,
27 St. Rep. 792, 7 Supp. 762,
Webb v. Overmann, 6 Abb. Pr.
OA shax en4 0% eos dewenus sd
Webber v. Hobbie, 13 How. Pr.
382 158, 170,
Weber v. Weber, 93 App. Div.
149, 87 Supp. 519
Wegman v. Childs, 44 Barb. 403,

292

248

70

143

402

425

328

267

353

471

336

375

443

235

301

454

89
354

TABLE OF CASES CITED.

PAGE

Weisel v. Old Dominion Steam-

ship Cu., 99 App. Div. 568, 91
Supp. 140
Weiss v. Ashman, 11 Misc. 377,
32 Supp. 161, 24 Civ. Pro.
Rep. 268, 1 Ann. Cas. 314 ..
Weld v. Sage, 34 App. Div. 71,
54 Supp. 253 ......... eae es
Westervelt v. Shapiro,
Supp. 338). aces ees oer 224,
West Side Bank v. Pugsley, 47
N. Y. 368, 12 Abb. N. S. 28,
67,
White v. Griffenhagen, 95 Mise,
84, 160 Supp. 187
Whitlock’s Case,
320

Whyte v. Denike, 53 App. Div.
425, 65 Supp. 1081 .... 331, 348

Wicker v. Dresser, 14 How. Pr.

252

275

444

283

1 Abb. Pr.

465 siccecues 219, 408, 430, 985
Wilcox v. Harris, 59 How. Pr.
262 ..cceeeeeeeee- 216, 375, 447

Wilder v. Clark, 33 St. Rep.
143, 11 Supp. 683 ........
Wilds, Matter of, 6 Abb. N. C.
OT © arsadisicaaialectisg tem seers stndvecd
Wilhelm v. Hayman, 160 St.
Rep. 374, 126 Supp. 374
196,
Williams v. Carrol, 2 Hilt. 438,
Wilson \. Bracken, 150 App.
Div. 577, 135 Supp. 435,
213, 469,
Wilson Bros. Woodenware &
Toy Co. v. Daggett, 9 Civ.
Pro. Rep. 408
Winter y. MeCarthy, 2 Abb. N.
COB OW ceasitnamon ds Die aen eae
Witte, Matter of, 45 Mise. 336,
90 Supp. 444 ....... 22.000.
Wolf v. Buttner, 6 Misc. 119,
26. Supp. 52) ancscawasexvede
Woodman v. Goodenough, 18
Abb. Pr. 265 233,

305
219

472
TABLE OF CASES CITED. xlvil

PAGE

Woolf v. Jacobs, 36 Super. Ct.
Rep. (4 J. & 8.) 408,
390, 400,
World Co. v. Brooks, 7 Abb.
Na Se BLD) i ins. beet keeles 4
Wright v. Nostrand, 94 N. Y.
1 anaes aera 344, 352,
Wyman, Matter of, 76 App.
Div. 292, 78 Supp. 546, 178,
‘Wynkoop v. Myers, 28 St. Rep.
81,7 Supp. 898 ........ 401,

468

467

245

443

Y
PAGE
Youngs v. Klunder, 27 St. Rep.
25, 7 Supp. 408 csacacaaee'cs O20

Z
Zelie v. Vroman, 22 Misc. 486,

50 Supp. 836 .. 132, 138, 140,
141, 169
STATUTES CITED

Bankruptcy Act,

See.
Uh sae eesd ens Meson Ceewee Kees 48
67£ .... 47, 50, 51, 54, 55, 189, 527

Code of Procedure.

292 cis Niece teewidee Satis eees wee 08

DOZ=SOZ. -siere dvaidierd.c'9 acne <s. ale ~. 58

294 ieee OR Oe wee HE Rew 153

BODE caviavagesck eiaiesa: crseeaig Saw goayesess 58
Code of Civil Procedure.

DL 5 esstanoas ss tvecone 7a Bane siege arate 435

i Pee ain eurkcs 0% Guuayerd auateaiauds a eka. 4 109

26 .... 163, 176, 186, 308, 381,
430, 471

De «sax Kexe 163, 176, 308, 309, 313
838, subd. 4 ................ 175
BE sas sakee Stade ss bweed 175
BSS: cahGies cGenage deaminase fanaa 82

SUDd: Ai: satacco awed dated 60
414, subd. 4 ................ 82
BBD <x cteavits acshabetea acs ataynen eroenee ns ee 177
433 4indves tiene edee heey ween’ 174
436) sascnloreaieaeunnt dees & 76, 132
ADU we ssrdrgce St shaneinesanee ae sews “he
458, subd. 2 .............-... 123
488. is Sosaee gatewe eens 346, 347
AQ8. 3: Msiowedeldseries cigs ce wesheaid 347
OP) siaeeess ens eas eee esos 38
586° 240ck808 be doe eaen gene ss 277
BBO: «+5 ecaraual eae austin SARE Ee ees 277
TOE eateseed a Begeaorsne 4 79, 433
TDD cata cduscte reg withas ane artistas Wie Mate, Be 433
2D: Srciert eieetieials bie anewre Say 79, 433
75D s< sews ti eeG ctu eee es wees 431

AND CONSTRUED

PAGE
700. Seanad Shen. eae weve 340
POD \cseinstersan yokes 255, 434, 465
TMs ae wan bdr aciaeture ds tally 176, 187
SUS nat dace tube sage ced eaty 280
OOF Lika oredr As wae aaa 461
CIB ect ehs Ptah eataactaes 2265
BIBS ated Wish oaae seadt 409, 222
G5 aa ced tlre reeweee 214, 215
BSB ncaa ha Pia eden elnies gov . 428
TOG It \Arsiedencbsica atudteed eas shes 8
TDG Oe cath taht drip esos a cen 10s
TOTO san cetnsdhen gh< vce eee Dil
PEI es careconsee tesa nhc 202, 203
TBAB wae eancicaneder aon aeeioon 199
TA re ecuierh aceon eon Goes 199
ELS WM tensciteralgastawicn eeebem nea 169
UBT’ i liateca see winnie Menke vad 102
STO oh ant eedederinant a nd 136
ee ee ene eee 110, 136
TBND. Sctuihe atic ena adatoan * 4 239
1391 .. 5.9, 10, 12, 13, 14, 15,

16, 17, 18, 22, 24, 25, 20. 27,
30, 31, 32, 33, 34, 35. 26, 37,
39, 40, 41, 42, 43. 44. 45. 47,

48, 49, 52, 54, 56, 250, B21
DA QM niente on, ack kaa 239
TOO? Gaalossarkclndnaseee ashes 326
DIY GteekGwaewanae Powe onelen 329
VAAN och deen atau tet eke 329
TAG RO i Relea trtcediet Sakaeaplets eed 329
V7 SE ihe Satie Oe a 103
VBQGY 2 ASulomreccderseaacgintns aad 101
VST ot ack ne acer oniseaes armani 304
TISTON Se esnertoduan me toami cacao 343
BTN. LA cdatihe wate wipe atte er .. 304
TOD ee eiteeeuparte saa seas ve ... 104
1 STATUTES CITED AND CONSTRUED.

PAGE
DOSE sas: caueiscaass see. 104, 239
DOA ip bsdeala Vawpraeti es -. 104, 239
QI esempearocwseea een aaates 209
DAS De a i sicoravs eee ag te eas 58, 77, 263
2433 - 60, 61, 165, 185, 18%,

187, 199, 200, 201, 202, 381,

448, 453, 461, 471
subd. 1 .......... 185, 198, 465
subd. 2 .......... 198, 201, 202

DADE oe sui sian 157, 159, 160, 267

2435 .. 66, 77, 80, 81, 93, 98,
109, 110, 118, 136, 142, 144,

164, 303, 377

2436 .. 64, 65, 77, 98, 110, 145,

147, 164, 189

DIB T insets eater x ei ba 1D

2438 20... hes Yetiamesee TE

2439 oo. cece eee er 14

P4AQ Ps Sits 4 cn caidhe ee egies 74, 424

2441 .. 66, 73, 81, 99, 104, 105,

148, 153, 164, 272

Wade wn osioues cee sense ars 104; 180

AAR ik. Sale td lately 180, 215

2444 ...... 102, 173, 210, 214, 216

ML is testa cyanea an 211

DANG ade atm 262, 266, 290

2447 .. 108, 222, 262, 263, 264,
265, 266, 268, 269, 271, 275,
276, 277, 280, 284, 285, 286,

287, 288, 416, 417

DAAS 4.5 séyacad Mars aeee gerund OM

BY AG 67 axcind  palicon hte etn weve 204

2450 ..... eM A in acwee a saeenie g 264

DAD IS becd aces cada 165, 170, 171

DADO Aiccrre Di miedo 173, 177, 388

DABS tet xin Pe nA a chats 3 173

2454 oe. eee eees es 256, 463, 465

DABS <-o.5s ausiee swine 453, 454 456

2456 oe. ee eee 453, 455, 456, 457

2457 .. 223, 372, 386, 408, 411,

429, 430

2458 .. 66, 76, 107, 122, 132,

148, 154, 196
subd. 1 Kees Sauee' ae- ee
bd, > acsedies cob acwtares 113, 140
subd. 3 ........ See argpeere., Le

PAGE
G450) ovawienceavawe aveles MBL, 325
PAGO. so eripaye, cio erevehes . 222, 224, 227
QAGL cececececeees+ 104, 176, 239
LC A eee ees ee eee 163, 308
2463 .. 102, 239, 241, 242, 243,
244, 245, 246, 247, 263, 404,
419, 442
2464 .. 196, 296, 298, 304, 305,
306, 305
QAOS 4s eeeen a dwn Sieee gee dow 304
ZAG ve cccccceessceesses 368, 369
QPABT veeeeeeaee 314, 315, 323, 415
2468 ., 274, 316, 318, 320, 332,
358, 415, 418
subd:; 2 v..descamew teaches « 328
2469 .. 291, 320, 322, 323, 324, 358
aba, Di aieocniee ace ieeawns BIB, B25
2470 SNe COG ae eneiza ees a0;
2471 .......... 309, 332, 366, 369
2A00 seus aes oe Siaralaas eeseneeges APS
2538; Subd..'3) ciseceawseacecen 0D
BOLT acdsee ooawive ss Lab, 2A
B02T: eeeawd nes daeeks aay : 26
3247 4. le aickimee Stas eemene 20%.
SLTD: © vesere srareseugin veya ieoeee van OF
DOUG Gentessee eben eveuseg es 182
Boal <wex ved adhe s~ Ree 365, 366

52

112
134
261

Debtor and Creditor Law.
N50: caine sings base Gdewle eis: DEY se

Domestic Relations Law.

aoe ecercce rs ceee rer serece

General Corporation Law.

Cree rer eeene eoeceses
Pee ewer reece eee r ere ereee

Sere e eer eersrccccsen
ey eee ececees

333, 335,

234

130

, 421

336
STATUTES CITED AND CONSTRUED. h

PAGE
TS: crardSiereiaidia wicks a esSteinue eaters a's 338
19) ciieeesonediiaeecess 180,18)
Judiciary Law.
QOL. aaiwis ois ceaiiete eaegiore Niet me . 313
TDOK \intiecots oie Aree ar8'.3 whe «. 373
subds. 1, 3, 4, 5. .......... 374
Subd: 5 snide cadewdacswese 223
TB1 .ceeceeees. 420, 437, 443, 449
TOD tahbislepie: wanes oinneeats «+, 482, 435
753 subds. 1, 3, 4,5 .......... 373
subd. 8 .......... veemvoney 21d
TDD, seldud'sdtacslete siieisia's tae eee 420
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Laws New York.

PAGE
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Municipal Court Act.

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Stock Corporation Law.

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United States.

3 U. S. Complied Stat. 1916, sec.
1540
(A)
(B)
(C)
(D)
(E)
(F)
(G)

(H)
(1)

GARNISHEE EXECUTION

CHAPTER I

Definition and Scope of Treatment, 2.
Origin and History of Statute, 5.
Constitutionality, 9.
Exclusiveness of Remedy, 12.
Bar of Remedy, 13.
Necessity of Judgment, 14.
On What Judgments Proceedings Lie, 15.
(1) Must Be Money Judgment, 15.
(2) What Courts Judgment Rendered In, 15.
(3) Time of Recovery, 16.
(4) Amount Due Under, 16.
Necessity of Return of Property Execution, 17.
Place of Employment, 17

{J) What Constitutes “Wages, Debts, Earnings, Salary, Income from

(K)
(L)

(M

~~

(N)
(0)

Trust Funds or Profits Due or to Become Due,” 17.
(1) “Wages,” 17.
(2) “Debts,” 18.
(3) “Earnings,” 21.
(4) “Salary,” 22.
(5) “Income from Trust Funds,” 23.
(6) “Profits,” 23.
Percentage of Wages, etc., Reachable, 24.
Application for Garnishee Execution, 24..
(1) To What Judge, 24.
(2) Place of Application, 26.
(3) Necessity of Notice, 27.
(4) Affidavits—Requisites and Sufficiency, 29,
(5) Order—Form and Requisites, 30.
(6) Issuance of Execution—Form, 31.
Presentation of Execution, 32.
(1) Who Presents, 33.
(2) Mode of Presentation, 33.
(3) To Whom Presented, 33.
Protection of Employer, 35.
Remedies for Failure to Honor Execution, 35.
(1) Statutory Provisions, 35,
Garnishee—l.
2 GARNISHEE EXECUTION

(O) Remedies for Failure to Honor Execution—continued.
(2) Availability of Contempt Proceedings, 36.
(3) Right to Order Compelling Honoring of Execution, 36.
(4) By Action, 36.
(a) What Court, 37.
(b) Parties, 37.
(c) Pleading—Complaint, 38.
(d) Prima Facie Case, 39.
(e) Defenses Available, 39.
(P) Modification or Vacation of Execution, 41.
(1) Statutory Provision, 41. *
(2) Grounds Available, 41.
(3) How Application Made, 42,
(4) Who May Apply, 43.
(5) To What Court or Judge, 44.
(6) Notice, 44.
(7) Sufficiency of Moving Papers, 45.
(Q) When Garnishee Execution Becomes Inoperative, 45.
(1) Statute, 45.
(2) By Payment, 45.
(3) By Reduction of Salary, etc., below Statutory Amount, 46.
(4) Upon Termination of Employment, 47.
(5) By Discharge in Bankruptcy, 47.
(R) Review of Orders, 56.
(1) Statutory Provisions, 56.
(2) Waiver of Right to Appeal, 56.

(A) Definition and Scope of Treatment

Garnishment is correctly defined to be a proceeding in the na-
ture of an attachment or execution, by means of which credits,
property, or effects of a debtor in the hands of a third person
may be subjected to the payment of the claims of the creditors
of such debtor.

Words and Phrases, New Series Vol. 2, p. 701 (citing Davis
Bros. v. Choctow, O. & G. R. Co., 73 Ark. 120, 83 S. W. 318).

In the early days, there was a practice known as the Custom
of London in operation in London and a few neighboring cities,
and sometimes known as Foreign Attachment. In this proceed-
ing the goods and credits of a debtor in the hands of a third
person were attached and later applied to the payment of the
creditor’s claim.
GARNISHEE EXECUTION 3

This custom is said by Locke on Foreign Attachment to have
been based on Roman law.

The proceeding in question arose to protect the merchants of
London from unscrupulous foreign purchasers of goods.

It cannot be said that garnishment proceedings in this coun-
try are founded upon the common law as it ever existed in the
United States. Here it is based wholly upon statute.

In this country various statutes were enacted in the colonies
and states in the seventeenth and eighteenth centuries authoriz-
ing the garnishment by attachment proceedings of the property
of a nonresident debtor.

Thus, there was enacted in Massachusetts in 1794 a law
known as the Trustee Process. It provided that any creditor
entitled to an action against his debtor having any goods,
effects or credits intrusted or deposited in the hands of others,
which could not be attached by the ordinary process of law,
might cause such goods, effects or credits to be attached by orig-
inal writ under which the debtor and the supposed trustee were
summoned to appear and answer the suit in the manner pre-
scribed by the act.

The construction of that statute was involved in Picquet v.
Swan, 4 Mason (U.S. Cireuit) 443. In that case the principal
had not yet appeared, but the persons sued as trustees appeared
pursuant to the statute and contested the right of the creditor to
reach such property.

Judge Cooley, who wrote the opinion of the Court, stated
that it was an extraordinary process and from its very nature
could be but a very imperfect administration of rights and
remedies as to litigant parties. He further said that the remedy
ought to be limited to cases where goods and effects, such as are
liable to execution in ordinary cases, and are tangible, corporal
property, were in the hands and possession of the supposed
trustee, who did not substantially dispute the right of the credi-
tor to thus reach the same. On account of the vigorous protest
of the alleged trustee and the fact that intricate and involved
4 GARNISHEE EXECUTION

equitable principles were involved the court denied relief in
that case.

The word “garnishee” is borrowed from the French language
and is derived from garnishment or from “garnir” meaning
to warn, to give notice to the debtor not to pay his indebtedness,
but to answer the writ served. While the word “garnishee” is
derived from the French, the proceedings in garnishment
are derived from English jurisprudence, which confers on
the garnishee the same right in defense which he could plead
in a direct action, if one were brought against him on a claim
for which he had been garnished.

Words & Phrases, New Series, Vol. 2, p. 701 (quoting from
Monroe Grocer Co. v. J. A. Perdue & Co., 123 La. 375, 48
South. 1002).

The Century Dictionary defines “Garnishee” as follows: To
stop in the hands of a third person, by legal process, money due
or property belonging to the plaintiff’s debtor, in order to re-
quire it to be paid over to plaintiff in satisfaction of his de-
mand; as to garnishee the wages of a debtor or his bank
account.

It is thus seen that the word “Garnishee” is now used as a
noun to denote the person garnished and also as a verb as shown
in the Century Dictionary definition above. It has also come
to mean, particularly in this State, the proceeding itself, as
when we say garnishee proceedings.

In the State of New York we have the remedy of attachment,
which is a form of garnishment, laid down in our Code of Civil
Procedure, whereby property of a debtor who has absconded;
is keeping himself concealed, or is a nonresident, may be at-
tached in the hands of a third person. As there prescribed,
however, this remedy is not a separate action or proceeding but
is an incident of the action brought by the creditor against the
debtor to recover a money judgment. In our state, however,
we are not accustomed to refer to this remedy as garnishment.

Strictly speaking the remedy of garnishment, or garnishee,
GARNISHEE EXECUTION 5

as we term it in this state, is regarded as that given by our
See. 1391 of the Code of Civil Procedure wherein a garnishee
execution is issued against the wages, debts, earnings, salary,
income from trust funds or profits of a judgment debtor, due or
to become due.

This work is limited to the remedy given under Sec. 1391
of the Code of Civil Procedure.

(B) Origin and History of Statute

The garnishee execution was unknown in this State until) the
enactment of Law 1903, Chap. 461, amending Sec. 1391, Code
of Civil Procedure. That law provided that in cases of judg-
ments solely for necessaries sold or services rendered, a garnishee
execution against the wages, debts, earnings, salary, income
from trust funds or profits of the judgment debtor might issue
in case such wages, etc., exceeded the sum of $20 per week, and
also provided that any person or corporation employing: the
judgment debtor and to whom such execution was presented
must honor the same. This statute also provided that such
execution could not be issued while there was a similar execu-
tion unsatisfied and outstanding.

Sec. 1891 of the Code was further amended by Law 1905,
Chap. 175, so as to permit the reaching of the wages or salary
of an employee of a municipal corporation, it having been
held by the courts that the term “corporation” in the previous
statute did not include a municipal corporation.

In 1908 another statute was enacted, known as Law 1908,
Chap. 148. This allowed a garnishee execution on all judg-
ments where the judgment debtor’s wages, etc., amounted to $12
or more per week. This law also required that no other similar
execution be outstanding. Manifestly this was the first time
‘that this remedy was of much practical value to judgment
creditors, as the previous statutes upon the subject were too re-
stricted.
6 GARNISHEE EXECUTION

Later, Law 1910, Chap. 317 was passed amending Sec. 2-a
of the State Finance Law so as to subject the salary and wages
of all officers and employees of the state to the provisions of
Sec. 1891, Code of Civil Procedure, so that a garnishee execu-
tion might be issued against their salary or wages.

Law 1911, Chap. 489, provided that this remedy should be
available under the same circumstances as mentioned in the
statute. of 1908 and removed the restriction that no other
garnishee execution must be outstanding, and further provided
that the application for this execution need not be on notice
to the judgment debtor.

In the same year, Law 1911, Chap. 532 further amended
Sec. 1391, Code Civil Procedure by adding the provision that
such section, so far as it related to wages and salary due and
owing or to become due and owing to the judgment debtor,
should ‘not apply to judgments recovered more than ten years
prior to Sept. ist, 1908, and that any execution theretofore is-
sued upon such judgments pursuant to an order theretofore
granted under such section should, when that act took effect,
cease to be a lien and continuing levy upon wages and salary
thereafter to become due and owing to the judgment debtor.

Law 1914, Chap. 352 further amended this section of the
Code of Civil Procedure by providing that it should not apply
to judgments heretofore or hereafter recovered on judgments
originally rendered more than ten years prior to Sept. 1st, 1908.

The provisions of Sec. 1391, Code of Civil Procedure appli-
cable to garnishee executions as they now stand are as follows:
Where a judgment has been recovered and where an execu-
tion issued upon said judgment has been returned wholly or
partly unsatisfied, and where any wages, debts, earnings, salary,
income from trust funds or profits are due and owing to the
judgment debtor or shall thereafter become due and owing to
him, to the amount of twelve dollars or more per week, the judg-
ment creditor may apply to the court in which said judg-
ment was recovered or the court having jurisdiction of the
GARNISHEE EXECUTION e

same without notice to the judgment debtor and upon satisfac-
tory proof of such facts by affidavits or otherwise, the court,
if a court not of record, a judge or justice thereof, must issue
or if a court of record, a judge or justice, must grant an order
directing that an execution issue against the wages, debt, earn-
ings, salary, income from trust funds or profits of said judg-
ment debtor, and on presentation of such execution by the officer
to whom delivered for collection to the person or persons from
whom such wages, debts, earnings, salary, income from trust
funds or profits are due and owing, or may thereafter become
due and owing to the judgment debtor, said execution shall be-
come a lien and a continuing levy upon the wages, earnings,
debts, salary, income from trust funds or profits due or to
become due to said judgment debtor to the amount specified
therein which shall not exceed ten per centum thereof, and
said levy shall be a continuing levy until said execution and
the expenses thereof are fully satisfied and paid until modified
as hereinafter provided, but only one execution against the
wages, debts, earnings, salary, income from trust funds or
profits of said judgment debtor shall be satisfied at one time
and where more than one execution has been issued or shall
be issued pursuant to the provisions of this section against the
same judgment debtor, they shall be satisfied in the order of
priority in which such executions are presented to the person
or persons from whom such wages, debts, earnings, salary, in-
come from trust funds or profits are due and owing. It shall
be the duty of any person or corporation, municipal or other-
wise, to whom said execution shall be presented, and who shall
at such time be indebted to the judgment debtor named in such
execution, or who shall become indebted to such judgment
debtor in the future, and while said execution shall remain
a lien upon said indebtedness to pay over to the officer present-
ing the same, such amount of such indebtedness as such execu-
tion shall prescribe until said execution shall be wholly satis-
fied and such payment shall be a bar to any action therefor by
8 GARNISHEE EXECUTION

any such judgment debtor. If such person or corporation,
municipal or otherwise, to whom said execution shall be pre-
sented shall fail, or refuse to pay over to said officer presenting
said execution, the percentage of said indebtedness, he shall be
liable to an action therefor by the judgment creditor named
in such execution, and the amount so recovered by such judg-
ment creditor shall be applied towards the payment of said
execution. Either party may apply at any time to the court
from which such execution shall issue, or to any judge or justice
issuing the same, or to the county judge of the county, and in
any county where there is no county judge, to any justice of the
city court upon such notice to the other party as such court,
judge, or justice shall direct for a modification of said execu-
tion, and upon such hearing the said court, judge or justice
may make such modification of said execution as shall be deemed
just, and such execution as so modified shall continue in full
force and effect until fully paid and satisfied, or until further
modified as herein provided. This section, so far as it relates
to wages and salary, due and owing or to become due and owing
to the judgment debtor, shall not apply to judgments recovered
more than ten years prior to September first nineteen hundred
and eight, nor to judgments heretofore or hereafter recovered
upon such judgments, and any execution heretofore issued
upon such judgments pursuant to an order heretofore granted
under this section shall, when this act takes effect, cease to be a
lien and continuing levy upon wages and salary thereafter to
become due and owing to the judgment debtor. No execution
under this section shall be hereafter issued upon a judgment
against an officer or employee of any city or any county of the
state or of the board of education of any such city, unless it
shall contain the name of the judgment debtor in full, his title
or position, and the bureau, office, department or subdivision
thereof in which he is employed; and if a person so employed
shall resign or be dismissed while an execution issued pursuant
to the provisions of this section is wholly or partly unsatisfied,
GARNISHEE EXECUTION 9

and he be reinstated or re-employed, such execution shall lapse
and no further deduction shall be made thereon unless such re-
instatement or re-employment occur within ninety days after
such resignation or dismissal. All executions filed in any de-
partment against the wages, debts, earnings and salary of officers
or employees of any city or of any county of the state, or of
the board of education of any such city within five days prior
to the date on which payment of wages, debts, earnings and
salary are paid shall not become a lien against the wages, debts,
earnings and salary that are payable on the said payroll but
shall become a lien upon the wages, debts, earnings and salary
which shall become due or owing to the judgment debtor there-
after.

(C) Constitutionality

At first it was held in the lower courts that if Sec. 1391 of
the Code were intended to affect rights acquired under trusts
created and in operation before its enactment, it would be un-
constitutional.

King v. Irving, 103 App. Div. 420, 92 Supp. 1094; Sloane
v. Tiffany, 103 App. Div. 540, 93 Supp. 149; Ringe v. Mort-
imer, 116 App. Div. 722, 101 Supp. 1110; Demuth v. Kemp,
180 App. Div. 546, 115 Supp. 28.

This position was taken on the ground that if the statute
were applied to trusts created and in force prior to its enact-
ment it would destroy existing property rights, and that the
legislature did not have the power to do.

These cases, however, held that the statute was not retroac-
tive and had no application to trusts effective before the law
went into force.

The rule that this statute was not retroactive was also applied
to judgments rendered before it went into effect, and it was
held that a garnishee execution could not issue on such judg-
ments.
10 GARNISHEE EXECUTION

Laird v. Carton, 182 App. Div. 176, 116 Supp. 851; Kelly
v. Mulcahy, 131 App. Div. 639, 116 Supp. 61.

Some of the lower court cases, however, did not agree with
that construction, but held that not only did the statute in
question operate retroactively, but that when so applied it was
constitutional and valid, as it impaired no contractual or prop-
erty rights of the judgment debtor.

Myers v. Moran, 113 App. Div. 427, 99 Supp. 269; Bayliss
v. Ryan, 64 Mise. 146, 117 Supp. 1022.

The Court of Appeals, in Laird v. Carton, 196 N. Y. 169,
settled the dispute as to the application and construction of
this statute, and held that it was retroactive in operation and
constitutional in all respects.

In discussing this question the court said at page 171: “An
execution is a remedy; it is a remedial process. Statutes regu-
lating legal remedies are generally construed as operative upon
an existing condition of things as well as upon conditions to
arise after their enactment. Where a new statute deals with
procedure only, prima facie it applies to all actions—those
which have accrued or are pending and future actions (Suth-
erland on Statutory Construction, p. 6380). Section 1391 of
the Code of Civil Procedure, as amended in 1908, begins with
the words: ‘Where a judgment has been recovered,’ etc.”

“There is nothing in the language of the amendment to indi-
cate a legislative intention that the right to issue execution
against wages, earnings or salary shall be confined to cases in
which the judgments are hereafter to be recovered. It is
enough that a judgment ‘has been recovered’ when the execu-
tion is sought to be issued. se

“The amendment to section 1391, like the whole section as it
stood before the amendment, relates to proceedings in a law
suit, i. e., the execution or final process; hence it is a statute
dealing with a legal remedy. It applies to all cases which have
reached the intermediate stage between judgment and execu-
tion. As has been pointed out the phraseology of the amend-
GARNISHEE EXECUTION 11

ment does not require us to construe it as applicable only to
future judgments. It matters not that when the judgment
was recovered an execution could not issue thereon against
wages, earnings or salary; it is enough that such an execution
has subsequently been authorized. The statutory authoriza-
tion for its issuance does not impair the obligation of any con-
tract or affect any vested right; it merely furnished the judg-
ment creditor with a broader and more effective remedy than
the law gave him before. To this there is no constitutional
objection. Such an application of the statute is not so much
retroactive as active upon an existing condition of things, to
wit, existing judgments which are yet to be enforced by execu-
tion.”

Later, this same court, in Brearley School, Limited, v. Ward,
201 N. Y. 358, held that a garnishee execution was available
to reach a trust fund created by a will probated before the
enactment of the statute and said in the course of its opinion:
“The appellant concedes that section 1391 as thus amended is
applicable to the income from trusts previously created because
if so applied it would be unconstitutional as impairing the obli-
gation of a contract and as depriving the beneficiary of the
trust of a vested right. e

“The mere fact that a statute is retrospective or retroactive is
not a conclusive objection to its validity under the Federal
Constitution. ‘It is not all retrospective laws, however,’ says
Mr. Justice Miller, ‘that are forbidden by this clause (Art. I,
section 10) of the Constitution, but only such as impair the
obligation of a contract. Ex post facto laws are also forbidden
in the same clause, . . . but that term is only applied to
criminal laws and procedure and has no reference to contracts.
There is a large class of retrospective legislation which is con-
stitutonal, not inconsistent with the principles above laid down,
and sometimes necessary and proper, relating to rights not de-
pendent upon contract or affecting the individual by increasing
his liability to a criminal prosecution.’ (Miller on the Consti-
12 GARNISHEE EXECUTION

tution of the United States, 536; Satterlee v. Mutthewson, 2
Peters, 380.)”

Since then Sec. 1391 of the Code has been amended so as to
provide that the same so far as it relates to wages and salary,
due and owing or to become due and owing to the judgment
debtor, shall not apply to judgments recovered more than ten
years prior to September 1, 1908, nor to judgments heretofore
or hereafter recovered upon such judgments.

This clears up the situation in reference to the retroactive
effect of this statute as to judgments where it is sought to
garnishee the wages and salary of judgment debtors, but does
not touch the question as to judgments upon which it is sought
to garnishee the income from a trust fund or debts or profits of
the judgment debtor. As to those judgments it would appear,
under the Court of Appeals decisions, that the retroactive effect
of the statute is not limited to ten years prior to Sept. 1, 1908.

It is plain that the constitutionality of the statute is now
beyond dispute.

(D) Exclusiveness of Remedy

The remedy of special execution under Sec. 1391, Code of
Civil Procedure to reach the income of a trust fund is not ex-
clusive, but an action in equity will lie to impound the surplus
beyond the requirements of the beneficiary for his support.

Ungrich, Matter of, 201 N. Y. 415; Neuman v. Mortimer,
98 App. Div. 64, 90 Supp. 524; Demuth v. Kemp, 79 Mise.
516, 140 Supp. 152.

In Valentine v. Williams, Inc., 193 St. Rep. 815, 159 Supp.
815, the court sustained a demurrer to a complaint in a judg-
ment creditor’s action brought by the wife to reach the salary
of her defendant husband, where such complaint merely alleged
that the husband’s weekly salary of $45, paid him by the de-
fendant corporation was more than sufficient for his support,
for which it was alleged $22.50 a week was suflicient, but
there was no allegation that any salary was then due and un-
GARNISHEE EXECUTION 13

paid to the defendant, the theory of the complaint being that
a case was made out sufficient to support a judgment for a con-
tinuing lien upon the salary as it accrued.

In this case, the court held that the action in question was
not necessary as upon docketing the decree for alimony an
execution under Sec. 1391, Code of Civil Procedure was avail-
able.

Furthermore, notwithstanding Sec. 1391 authorizing garn-
ishee execution to reach the income from a trust fund, an action
still lies under Sec. 98 Real Property Law to reach the sur-
plus income of such trust, as the two remedies are not neces-
sarily inconsistent.

Heppenstall v. Baudouine, 73 Misc. 118, 132 Supp. 511.

The court said, in the case last cited, that this was especially
true where it appears that the remedy by execution is inade-
quate as applicable to the particular case. In that case, because
of the size of the judgment, it would have required over twelve
years to obtain satisfaction thereof by garnishee execution.

But the only way a judgment creditor can reach an accru-
ing salary is by garnishee execution under Sec. 1391 of the
Code. He cannot levy on such salary under an ordinary prop-
erty execution.

Hayward v. Hayward, 178 App. Div. 92, 164 Supp. 877.

(E) Bar of Remedy

An adjudication in an action brought to reach the surplus
income from a trust fund that such income was no more than
sufficient for the support of the judgment debtor and his fam-
ily is a bar to an application for a special execution against
such income.

Neuman v. Mortimer, 98 App. Div. 64, 90 Supp. 524.

The facts in the above mentioned case were peculiar and for
that reason it may be questioned whether the gencral proposi-
tion there laid down can be said to be a positive authority to
14 GARNISHEE EXECUTION

the effect that a judgment in an action between the parties
brought to reach the surplus income of a trust fund in which
the court determines there is really no surplus of income, is a
bar, in every case, to an application under Sec. 1391 of the
Code to garnishee such trust income.

In that case, the judgment debtor’s mother, by will, created
a trust in his favor, and appointed a trustee to pay over to him
income from the principal of the trust fund during his life-
time, and upon his death to his lawful issue, with a right, how-
ever, to the defendant to dispose of the same by an instrument
in the nature of a will. After the recovery of their judgment,
the judgment creditors brought an action to have declared and
applied upon the judgment a surplus from the income of this
trust. It was found upon the trial that the income was no more
than sufficient for the support of the defendant and his family,
and the complaint was dismissed. Later the judgment credi-
tors applied for a garnishee execution which the court denied as
stated.

There were other reasons why the court was required to re-
fuse the garnishee in that case, one of them being want of notice
of the application and another the insufficiency of the moving
papers, and it is not certain that the court would have denied
the application in question solely because of the application of
the doctrine of res adjudicata.

(F) Necessity of Judgment

In view of Sec. 1391 of the Code providing that where a
judgment has been recovered and where execution upon such
judgment has been returned wholly or partly unsatisfied, ete.,
garnishee execution may issue under the conditions therein
named, it would seem, at first instance, that the obtaining of
a judgment is absolutely necessary before such special execu-
tion is available.

However, an exception has been made by the courts in the

~
GARNISHEE EXECUTION 15

case of the bankruptcy of the judgment debtor. Thus, it has
been held that under the Bankruptcy Act, providing that
trustees of bankrupts “as to all property not in the custody of
the bankruptcy court, shall be deemed vested with all the rights,
remedies and powers of a judgment creditor holding an execu-
tion duly returned unsatisfied,” a trustee of a bankrupt may
apply for an execution against the income of a trust fund in
the bankrupt’s favor under Sec. 1391 of the Code, without
having first obtained a judgment against the bankrupt and
debtor.

Poskanzer, Matter of, 101 Mise. 100, 166 Supp. 811. Af-
firmed, 181 App. Div. 915, 167 Supp. 1122.

(G) On What Judgments Proceedings Lie
(1) Must Be Money Judgment

It is, of course, necessary that the judgment upon which gar-
nishee proceedings are based, be one for money only. A judg-
ment granting equitable relief solely could not be so enforced,
as Sec. 1391 of the Code plainly presupposes the collection
only of money.

Upon docketing a decree for accrued alimony an execution
against the husband’s salary is available under Sec. 13891, Code
of Civil Procedure.

Valentine v. Williams, Inc., 193 St. Rep. 815, 159 Supp.
815.

(2) What Courts Judgment Rendered In

A judgment in this proceeding may have been recovered in
any court of the State, whether of record or not of record.

This is plain from Sec. 1391 of the Code, which, while not
expressly so stating, provides that the judgment creditor may
apply to the court in which said judgment was recovered or the
16 GARNISHEE EXECUTION

court having jurisdiction of the same without notice to the
judgment debtor, and upon satisfactory proof of such facts by
affidavits or otherwise, the court, if a court not of record, a
judge or justice thereof, must issue or if a court of record, a
judge or justice, must grant an order directing that an execu-
tion issue against the wages, ete.

(3) Time of Recovery

Under a recent amendment of Sec. 1391, Code of Civil Pro-
cedure it is provided that this section, so far as it relates to
wages and salary, due and owing or to become due and owing
to the judgment debtor, shall not apply to judgments recovered
more than ten years prior to September 1, 1908, nor to judg-
ments heretofore or hereafter recovered upon such, so in those
eases it is plain that this remedy is not now available, but as
to judgments upon which it is sought to obtain garnishee ex-
ecution against the debt, income from trust funds or profits of
the debtor, it would appear that such restriction as to time does
not apply, since the Court of Appeals has held that this section
operates retroactively i. e. applies to judgments recovered prior
to the date the statute became in force.

Laird v. Carton, 196 N. Y. 169; Brearley School, Limited
v. Ward, 201 N. Y. 358.

(4) Amount Due Under

Section 1391 of the Code provides that where a judgment
has been recovered and where an execution issued upon such
judgment has been returned wholly or partly unsatisfied, a
garnishee execution may issue under the conditions thereinafter
named.

Thus, it is seen that this execution is available if there is
any sum whatsoever due upon the judgment.
GARNISHEE EXECUTION af

(H) Necessity of Return of Property Execution

The statute provides that a property execution must have
been returned, wholly or partly unsatisfied, before a garnishee
execution can issue.

Section 1391, Code of Civil Procedure.

(I) Place of Employment

Ordinarily a garnishee execution is presented to the employer
having his place of business in the same town or city in which
the judgment debtor resides, but occasionally the place of em-
ployment is outside the territorial jurisdiction of the court
granting the garnishee execution, although the employer re-
sides therein, and hence it becomes important to know if such
execution is valid and effective. This question arose in the
action of Morris Plan Co. of Buffalo v. Miller, 102 Misc. 470,
169 Supp. 37. There the court held that notwithstanding the
fact that the judgment debtor resided in Pennsylvania and was
employed in a New York corporation’s factory there, his wages
could be garnished in this state, since the situs of the contract
for employment was in New York. In the case last mentioned,
the judgment debtor was a resident of Pennsylvania, where he
was employed by the Welch Grape Juice Co., a New York cor-
poration, having a factory in Pennsylvania, where the debtor
worked, and also had a factory in the State of New York. The
judgment debtor contended that Pennsylvania was the situs of
the employment contract, and that the money due and to be-
come due was beyond the reach of the courts of this state, but
this contention was over-ruled by the Court.

(J) What Constitutes “Wages, Debts, Earnings, Salary, Income
from Trust Funds or Profits Due or to Become Due”

(1) “Wages”

The distinction between wages, debts, earnings and salary is
Garnishee—2.,
18 GARNISHEE EXECUTION

sometimes difficult to determine, and no clear demarcation has
been pointed out by the courts.

It is very plain that while wages and salary are used indis-
criminately we have come to regard the term “wages” as ex-
pressing the compensation paid an ordinary working man and
the term “salary” to designate the compensation paid a public
officer or person occupying a position of responsibility in a pri-
vate concern. “Earnings” embraces both of these terms and is
broader then either. It can include almost any source of in-
come,

It is by no means clear in every case what constitutes
“wages.” Thus, it has been held that the compensation paid
a salesman employed under a contract by which he is to receive
certain commissions on his sales; is advanced a certain sum
each month in advance of the rendition of his services, and at
the end of the-fiscal year, if it is found that the sales by him
entitle him to commissions in excess of the amount paid him, he
is paid the additional commissions, and if he has been over-
paid the excess is charged against his future commissions, must
be regarded as employed under a contract for the payment of
wages in advance, and his wages are due and owing him when
he receives them and the same, when above the amount named
in the statute, are subject to garnishee proceedings.

Laird v. Carton, 196 N. Y. 169.

Under a similar contract, where a salesman was employed
on a commission basis of 74 per cent on all sales made by him,
with a drawing account of $60 per week, for his living ex-
penses to be deducted from his commissions later, it was held
that such compensation was to be regarded as “earnings” un-
der Sec. 1391, Code of Civil Procedure.

Hollender v. Friedenberg, 60 Mise. 566, 112 Supp. 467.

(2) “Debts”

A nice question frequently arises as to what are. “debts”
GARNISHEE EXECUTION 19

within the meaning of the statute, although that term is sup-
posed to be clear.

Attempts have been made to reach accrued alimony due a
wife under a decree of divorce but the position has been taken
by the courts that such alimony is not to be regarded as a
“debt” within the meaning of this statute.

Van Valkenburgh v. Bishop, 198 St. Rep. 86, 164 Supp. 86.

In reaching this conclusion the court quoted from Romaine
yv. Chauncey, 129 N. Y. 566, as follows:

“Alimony as we all understand, is an allowance for support
and maintenance having no other purpose and provided for
no other object. Like the alimentum of the civil law, from
which the word was evidently derived, it respects a provision
for food, clothing and a habitation, or the necessary support of
the wife after the marriage bond has been severed; and since
what is thus necessary has more or less relation to the condi-
tion, habit of life and social position of the individual, it is
graded in the judgment of a court of equity somewhat by re-
gard for these circumstances, but never loses its distinctive
character. . . . The prevailing rule in this country is
said to be that where the wife has sufficient means to support
herself in the rank of life to which she belongs, no alimony will
be allowed (1 Am. & Eng. Enc. of Law 485), and where the
parties are living apart under an agreement of separation by
the terms of which the husband has provided adequate means
of support, no temporary alimony will be given (Collins v.
Collins, 80 N. Y. 1). And, when awarded, it is not so much in
the nature of a payment of a debt as in that of a performance
of a duty. During the marriage the husband owes to the wife
the duty of support and maintenance although owing her no
debt in the legal sense of the word; but under the modern stat-
utes he does not owe to her the duty of paying her debts con-
tracted before the marriage or thereafter if they are solely hers
and not at all his. The divorce with its incidental allowance of
alimony simply continues his duty beyond the decree and com-
20 GARNISHEE EXECUTION

pels him to perform it, but does not change its nature. The
divorce and consequent separation are wholly his own fault
and do not relieve him from the continued performance of the
marital obligation of support. The form and measure of the
duty are indeed changed, but its substance remains unchanged.
The allowance becomes a debt only in the sense that the general
duty over which the husband has a discretionary control has
been changed into a specific duty over which, not he, but the
court, presides. The authorities, therefore, cited to the effect
that alimony is not strictly a debt due to the wife, but rather a
general duty of support made specific and measured by the
court seem to me to be well founded. . . . And so it follows
that, as during the marriage, the husband, while bound to sup-
port the wife, was not bound to pay her pre-existing or separate
debts, so, after the divorce, he must continue the support, but is
not required to pay out of his means furnished for that pur-
pose the wife’s antecedent debt. The decree cannot logically
work the miracle of transforming the duty which he does owe
into one which he does not, and never did owe; and yet that
result is inevitable if the antecedent creditor is at liberty to
swoop down upon the provision and carry it away for his own
use. .That result accomplishes another thing. It preverts and
nullifies the decree of the court, and leaves the judgment sepcifi-
cally made for one purpose to operate wholly for another, and
so obstruct and destroy the humane intent of the law.”

Moreover, the fact that a husband voluntarily pays to his
wife the sum of $100 a month for her support while they are
living apart does not render such sum subject to a garnishee
execution, since such voluntary payment cannot be regarded as
a “debt,” for while a husband is liable for his wife’s support he
is not in the absence of a decree or an agreement, indebted to
her in any sum whatever, nor can the same be regarded as
“profits” which is the advantage or gain resulting from the
investment of capital, or the acquisition of moneys beyond the
amount expended, or a pecuniary gain.
GARNISHEE EXECUTION 21

Brooks Bros. v. Cassebeer, 157 App. Div. 683, 142 Supp.
781,

(3) “Earnings”

“Earnings” is a more comprehensive term than the word
“wages.” Its signification is sufficiently extensive to include,
not only the monthly wages paid a judgment debtor, but also
any other pecuniary benefit to him resulting from the contract
of employment.

Kasting Co. v. Whittle, 174 App. Div. 224, 159 Supp. 909.

Again, “earnings” embrace a larger class of credits than the
term “wages.”” This term covers all compensation for services,
and may even include expenditures as well as labor.

Burns v. Maurer, 72 Mise. 481, 181 Supp. 344.

“Earnings” mean the reward of labor or the price of per-
sonal services performed. They mean the gains of a person
derived from his services or labor without the aid of capital.
“Earnings” imply more than labor. One has relation more
particularly to mental effort, and the other to physical en-
deavor.

Jones v. Nicoll, 72 Misc. 483, 131 Supp. 341.

Thus, where an employee received wages of $49 per month
and was permitted by his employer to live in a house of rental
value of $20 per month but under the condition that he should
furnish his dependent sister with fuel, lights and food,.a, garn-
ishee can only issue in case it is shown that the surplus in the
rental value of the house over the judgment debtor’s expendi-
ture on account of his sister, together with the $49 per month
mentioned reaches the sum of more than $12 per week; ||,

Kasting Co. v. Whittle, 174 App. Div. 224, 159.Supp..909.

Likewise, where a judgment debtor was working: under: an
arrangement whereby he received $45 in cash per month and
his board, which latter it was shown was worth at least $3.50
22 GARNISHEE EXECUTION

per week, it was held that the combined sums in question were
to be regarded as “earnings” under the statute.

Burns v. Maurer, 72 Mise. 481, 131 Supp. 344.

In another case, where a salesman was employed on a com-
mission basis of 74 per cent on all sales made by him with a
drawing account of $60 per week, for his living expenses, to be
deducted from his commissions later, it was held that such
compensation was to be regarded as “earnings” under Sec.
1391, Code of Civil Procedure.

Hollender v. Friedenberg, 60 Misc. 566, 112 Supp. 467.

The compensation paid a lecturer by the board of education
is subject to a garnishee execution under Sec. 1391, Code of
Civil Procedure, as such sum constitutes “earnings” within the
meaning of such Code section.

Rolt-Wheeler v. Rolt-Wheeler, 175 App. Div. 852, 162
Supp. 491.

(4) “Salary”

The term “salary” is of more restricted meaning than “earn-
ings,” and is generally confined to the compensation of public
officers, professional men and other persons employed in a
higher capacity than those whose compensation is denominated
wages.

A salary is a periodical allowance made as compensation to
a person for his official or professional services, or for his regu-
lar work. (Standard Dictionary.)

Or, a salary is defined to be a fixed compensation for regular
work,

Board of County Com’rs of Teller Co. v. Trowbridge, 42
Colo. 449, 95 Pac. 554.

No decisions have been found in this State defining the scope
and meaning of the term “Salary’” as used in the section of the
Code authorizing garnishee proceedings.
GARNISHEE EXECUTION 28

(5) “Income from Trust Funds”

In order to justify the issuance of a garnishee execution
against the income of a trust fund it must be clearly established
that there is income due and owing within the meaning of the
statute. And leave to issue such execution will be denied where
it appears that the judgment debtor, to whom property was
given in trust for life to apply the income to the support and
maintenance of himself and children, on condition that, should
any other person devise property in trust to apply the income
to the support of the debtor, it should be first applied to his
support and to the support of his children, and that if the in-
come, together with the income of any other property given
in trust, should be more than sufficient for his support, the re-
mainder should go to certain other persons, as it cannot be held
that such debtor has an income, “due and owing” which can
be reached by garnishee execution.

Ellis v. Chapman, 165 App. Div. 79, 150 Supp. 673.

(6) “Profits”

Profits represent the net gain made from an investment or
from the prosecution of some business.

Words and Phrases, New Series, Vol. 3 p. 1251 (quoting
from Mitchell v. Chicago, Rock Island & Pacific Ry. Co., 188
Towa, 283, 114 N. W. 622).

Again the word “profits” as ordinarily used and understood,
must be taken to mean the excess of receipts over expenditures ;
that is, net earnings from the work in hand.

Price Bros. v. Cushing, 185 Iowa, 457, 110 N. W. 1030
(citing Hubbard v. Weare, 79 Iowa, 678, 44 N. W. 915;
Connolly v. Davidson, 15 Minn. 519).

“Profits,” in the sense in which here used, is the advantage
or gain resulting from the investment of capital, or the acquisi-
tion of money beyond the amount expended; a pecuniary gain.
24 GARNISHEE EXECUTION

Brooks Bros. v. Cassebeer, 157 App. Div. 683, 142 Supp.
781.

The sum of $100 a month voluntarily paid to his wife by a
husband for her support while they are living apart cannot be
regarded as “profits” so as to be reached by a garnishee execu-
tion upon a judgment against the wife.

Brooks Bros. v. Cassebeer, 157 App. Div. 638, 142 Supp.
781.

(K) Percentage of Wages, etc., Reachable

The precentage of the judgment debtor’s wages, debts, earn-
ings, salary, income from trust fund or profits which may be
collected by garnishee execution cannot exceed 10 per cent.

Section 1391, Code of Civil Procedure.

While it is usual for such executions to provide for taking the
full 10 per cent, it is within the discretion of the judge grant-
ing the execution to direct the application of a smaller per-
centage if he deem the full ten per cent an excessive proportion,
considering the circumstances of the judgment debtor.

(L) Application for Garnishee Execution

(1) To What Judge

Under Sec. 1891, Code of Civil Procedure, the usual and
orderly practice, in case the judgment upon which the execution
to be issued was obtained in a court not of record, is to apply
to the judge or justice rendering such judgment for the gar-
uishee execution thereon. In that case, the judge or justice him-
self signs the the execution. In case the judgment upon which
the garnishee execution is desired was rendered in a court of
record a judge or justice of that court grants an order directing
the issuance of the garnishee execution, and where the judg-
ment was rendered in the supreme court, it has been the cus-
tom for a justice of such court, at Chambers, to grant the order,
GARNISHEE EXECUTION 25

but in many cases, the county judge or special county judge of
the county, has granted the order, under Sec. 241 of the Code,
providing that a county judge within the county, possesses, and
upon proper application must, exercise the power conferred by
law in general language upon an officer authorized to perform
the duties of a justice of the Supreme Court at Chambers or
out of court. However, a recent Special Term decision in
Monroe county, has been recently handed down by Justice Rod-
enbeck entitled Parkman, Alatter of, 177 Supp. 589, in which
he holds that a special county judge or county judge cannot
grant such an order in a supreme court action. Discussing this
question he says at page 590: ‘“‘The Code of Civil Procedure
provides by whom the execution (meaning order for the execu-
tion) shall be issued. Section 1391. That section provides that
the application shall be made to the court, and it may be issued
in a court of record by a judge or justice thereof. This language
has been construed to require the execution to be issued by the
court in the case of a judgment in the Supreme Court (Neu v.
Fox, 151 App. Div. 17, 185 N. Y. Supp. 208); but even if
it be construed to authorize a justice of the Supreme Court at
Chambers to issue the execution, the language would not confer
power upon a county judge or a special county judge to do so.
There is no provision of the Code of Civil Procedure which
confers upon a county judge or special county judge the power
exercised by a Supreme Court justice at Chambers in all cases.
Sections 241, 772. The special county judge had no power
to issue the execution in this case, since it is a power expressly
conferred upon the Supreme Court or a justice thereof. The
question is one of jurisdiction and power, and it is not a mat-
ter for construction, but one for clear legislative expression.
Gates v. Gates, 171 Supp. 1036.

Tn view of this decision, and until the matter is passed upon
by the appellate courts, application for an order for a garnishee
execution in a supreme court action should not be made to a
county judge or special county judge.
26 GARNISHEE EXECUTION

Tt will also be noticed that in the case of Parkman, Matter of,
cited above, some doubt is thrown upon the power of a justice
of the Supreme Court to grant such order, as a judge’s order,
in a Supreme Court action. Neu v. Fox, 151 App. Div. 17,
135 Supp. 208, referred to in the Parkman Case, as sustaining
this contention, only holds that Sec. 1391 of the Code author-
izes the court to grant the order. Not that it must be so grant-
ed. As a matter of fact the court, in that case, seems to have
treated the order there, as in effect, having been granted by a
judge instead of the court.

In view of the general custom and practice of the justices of
the Supreme Court to grant such orders as judges’ orders, it
cannot be said that the weight of authority is in favor of the
contention that in case of supreme court judgments, such
orders must be granted by the court alone.

Where the judgment was rendered in a court not of record
and a transcript filed in the county clerk’s office, the proper
course is to make application to the county judge, or special
county judge, if there be one in the county, for this order.

Notwithstanding the provision of Sec. 3027, Code of Civil
Procedure authorizing a justice of the peace to renew an execu-
tion after his term has expired, he is not authorized or empow-
ered to issue a subsequent execution against the wages of the
judgment debtor under section 1391, since the issuing of the
latter execution requires the performance of a judicial act, while
the power conferred under section 3027 is merely ministerial.

Furanz v. Tramontano, 177 App. Div. 52, 63 Supp. 700.

(2) Place of Application

Undoubtedly, where the judgment upon which garnishee pro-
ceedings are sought was rendered in a court of limited terri-
torial jurisdiction the application must be made within the
territorial bounds of that jurisdiction, but where such judg-
ment was rendered in the Supreme Court some uncertainty will
arise as to the place of application.
GARNISHEE EXECUTION 27

It has been held, however, that it is improper and against
orderly practice for a judgment creditor to apply for an order
directing the issuance of a garnishee execution in any other
judicial district than that in which the judgment debtor resides.

Brodie v. Hogan, 172 St. Rep. 871, 188 Supp. 71.

(3) Necessity of Notice

When Section 1391 of the Code was amended in 19038 so as.
to authorize garnishee proceedings the statute was silent upon
the question of necessity of notice of the application, but it was
held that the judgment debtor should receive such notice, and
that an ex parte application was improper.

Neuman v. Mortimer, 98 App. Div. 64, 90 Supp. 524; Sloane
v. Tiffany, 103 App. Div. 540, 93 Supp. 149.

While Sec. 1391, Code of Civil Procedure now provides that
the judgment creditor may apply for an order directing the is-
suance of a garnishee execution without notice to the judgment
debtor, yet the court may properly refuse to grant such an order
without notice to the judgment debtor, particularly where the
latter has not been examined in supplementary proceedings.

Brodie v. Maher, 78 Mise. 92, 188 Supp. 872.

In this case, the court said, in answer. to the contention of
the judgment creditor that notice to the judgment debtor was
not required. “I do not think the Legislature ever intended
to prohibit a justice of the court from directing that notice be
given to any litigant or person against whom a remedy is in-
voked. If it did the prohibition is of no effect. The power,
if not the duty of a justice of the court in a proper case to
direct that notice shall be given to parties affected by orders
which he is called upon to make, cannot be limited or curtailed.
There are cases where notice is not necessary or practicable,
or where notice might defeat the application; but none of
these situations is presented here. Every canon of fair dealing
and equity would call for such notice on an application such
as the one now before the court.”
28 GARNISHEE EXECUTION

The court in this case referred to an alleged instance when
application was made for a similar order in this class of cases
in which Justice Andrews declined to sign the order unless
notice was given.

The decisions in this State are uniform, however, in hold-
ing that in case of an application for garnishee execution
against the income of a trust fund notice must be given to the
trustee.

Sloane v. Tiffany, 103 App. Div. 540, 93 Supp. 149; Aing
v. Irving, 103 App. Div. 420, 92 Supp. 1094; Pistchal v. Dur-
ant, 168 App Div. 100, 153 Supp. 735; Myers Co. v. Reynolds,
200 St. Rep. 654, 166 Supp. 654.

The position that a trustee of a trust fund, the income of
which is payable to a judgment debtor, should receive notice
of the application for a garnishee execution is based upon the
principle that it would not be fair to him to subject a portion
of the income of the trust in his hands without giving him an
opportunity to be heard.

King v. Irving, 103 App. Div. 420, 92 Supp. 1094.

But where such trustee has accepted garnishee orders against
himself, and paid on the judgment against the beneficiary with-
out questioning it, it-will be held that he has waived the require-
ment of notice to himself before granting the garnishee execu-
tion; and it has been held that where a garnishee order was
granted against a trustee July 27, 1915, and he did not move
to set it aside for lack of notice to himself until after the bank-
ruptey of the beneficiary, April 2, 1917, he had waived such
notice.

Myers Co. v. Reynolds, 200 St. Rep. 654, 166 Supp. 654.

Notice of application for garnishee execution need not be
given to the judgment debtor’s employer, it being held that
since payment under such an execution discharges his indebted-
ness, it is wholly immaterial to whom he makes payment.

Siegel, Matter of, 179 App. Div. 532, 166 Supp. 117.
GARNISHEE EXECUTION 29

(4) Affidavits—Requisites and Sufficiency

Section 1391 of the Code provides: “Upon satisfactory
proof of such fact by affidavits or otherwise” an order must be
granted directing the issuance of an execution against wages,
ete.

While this provision would indicate that proof of the requi-
site facts may be presented to the judge or justice in some form
other than by affidavit, it is uniformally the practice to make
the application upon affidavits. Usually only one affidavit is
required and that may be made by the attorney if he is famil-
iar with the facts. The judgment creditor may make the affida-
vit, of course, but that is not customary. No doubt, an agent con-
versant with the facts may make the affidavit also.

If the judgment upon which the garnishee. proceedings
sought to be instituted was rendered in a court not of record
and the judgment has not been transcripted to the County
Court the application is entitled in that action, but if a tran-
script has been filed in the County Clerk’s office the garnishee
proceedings should be entitled in the County Court. If the
judgment was obtained in a court of record the proceedings
are entitled in that court, and the application is made to a
judge or justice of that court. Under New v. Fox, 151 App.
Div. 17, 135 Supp. 208, previously referred to, in case of a
Supreme Court judgment, application may be made to the Court
at Special Term. This, however, is not the custom.

The affidavit should set forth the fact that a judgment was
rendered in favor of the judgment creditor and against the
judgment debtor; its date and amount should be specified, with
the further allegation that such judgment was duly rendered
upon personal service of the summons or upon appearance in
court of the judgment debtor, and that a property execution was
issued on such judgment on a day named and that said execu-
tion has been returned wholly or partially unsatisfied. If it
has been partially satisfied the sum remaining due thereon
should be given.
30 GARNISHEE EXECUTION

The affidavit should further recite that wages, debts, earn-
ings, salary, income from trust funds, or profits are due and
owing to the judgment debtor, and will thereafter become due
and owing to him to the amount of $12 a week or over, from a
named employer, trustee or other person. The grounds of the
deponent’s knowledge as to such employment, income from
trust fund, ete., should be set forth in some detail,—as, for
instance, that deponent has been informed by the cashier of the
employer that the judgment debtor is regularly employed by
such employer at a named weekly wage or salary.

Formerly the affidavit was required to state that no execution
provided for in Sec. 1391 of the Code was unsatisfied and out-
standing against the judgment debtor, but that is no longer
necessary.

Forms for such affidavits are given in the list of Garnishee
forms at the end of this work.

(5) Order—Form and Requisites

If the garnishee proceedings are instituted in a court not
of record there is no order for the execution, and the execution
itself is signed by the judge or justice of the court. Where,
however, the proceedings are in a court of record Sec. 1391
of the Code provides for the granting of an order directing the
issuance of the garnishee execution.

The order is of course entitled in the same manner as the
affidavit and the obtaining of the judgment is recited and the
jurisdictional facts as alleged in the affidavit are repeated. The
order then provides for the issuance of the execution against
the judgment debtor’s wages, etc., which cannot exceed ten per
cent thereof. This percentage, however, covers accumulated
wages, etc., as well as those to accrue in the future. It is cus-
tomary for the order to provide for the full ten per cent, al-
though the judge may if he deem that proportion excessive, on
account of the judgment debtor’s circumstances, provide for a
smaller percentage.
GARNISHEE EXECUTION 31

This order is signed by a judge or justice of the court in
which the application is made, but, in case of an application on
a Supreme Court judgment, in which it seems that, under Neu
v. Fox, 151 App. Div. 17, 135 Supp. 208, application may be
made to the court, instead of a judge thereof, the order, if
granted by the court, is signed or initialed by the judge, and its
entry directed by him and the signature of the clerk is usually
added.

An order directing the issuance of a garnishee execution
should not contain the provision that a specified or any sum
disbursed since obtaining the judgment be paid in addition to
the amount of the judgment and the expenses thereof provided
by Sec. 1391 of the Code, as such additional allowance is un-
authorized.

Brodie v. Hogan, 172 St. Rep. 871, 188 Supp. 871.

Forms for this order are given in the list of Garnishee forms
at the end of this work.

(6) Issuance of Execution—Form

As previously stated, there is no order for garnishee execu-
tion in courts not of record, but the judge or justice issues and
signs the execution himself. In a court of record the execution
is attested in the name of the judge granting the order or an-
other judge of that court and the execution is signed by the
County Clerk.

In the usual form, the execution, whether in court of record
or not of record is not entitled in the action as in the case of the
affidavit and order granted in a court of record, but runs in the
name of the people of the State of New York and is directed
to a Constable or Sheriff of the city, town or county.

Tt recites the rendering of the judgment, states the amount
thereof and alleges the issuance and return wholly or partly
unsatisfied of a property execution. It then recites the fact
that the judgment debtor has wages, etc. due and to become
32 GARNISHEE EXECUTION

due to him to the amount of $12 a week or over, and then
directs the officer to whom the execution is delivered to collect
from the employer, or other person indebted to the judgment
debtor, an amount not exceeding ten per cent of such wages,
ete. due and to become due to the judgment creditor, together
with a direction that he shall thereafter return such execution
with his proceedings thereon to the court or clerk of the county
where the judgment roll was filed.

Under the 1919 amendment of Sec. 1391, in case the judg-
ment debtor is an officer or employee of any city, county, or
of the board of education of any such city, the execution shall
set forth the name of the judgment debtor in full, his title or
position, and the bureau, office, department or subdivision
thereof in which he is employed.

The requirement of Sec. 24, Code of Civil Procedure, provid-
ing that a writ or other process, subscribed or endorsed by the
Judge, is not void or voidable by reason of having no seal or
a wrong seal thereon, or by any mistake or omission in the
teste or in the name of the clerk, unless it was issued by special
order of the Court, renders a garnishee execution improperly
attested effective and in force.

Myers Co. v. Reynolds, 200 St. Rep. 654, 166 Supp. 654.

In the case last mentioned the execution was attested as fol-
lows: “Hon. J. Adding, one of the acting judges of this
court.” Addington at that time was not justice of the Supreme
Court of New York, in which Court said judgment on which
the execution was procured was issued, but on the contrary was
the County Judge of Albany County, N. Y.

Forms of garnishee executions are included in the list of
garnishee forms at the end of this book.

(M) Presentation of Execution

Section 1391 of the Code provides that on presentation of
such execution by the officer to whom delivered for collection
GARNISHEE EXECUTION 33

to the person or persons from whom such wages, etc. are due
and owing, said execution shall become a lien and a continuing
levy upon the wages, etc., due or to become due to the judg-
ment debtor. ,

(1) Who Presents

Where the execution was issued by a judge or justice of a
court not of record, the execution is presented by a constable
or similar officer having authority to execute process in that
city or town, and where the execution is issued out of a court
of record it is presented. by a sheriff or deputy sheriff of that
county.

(2) Mode of Presentation

Sec. 1391 of the Code is silent upon the mode of presenta-
tion of garnishee execution but it is undoubtedly intended that
a copy of such execution be personally served in the same
manner as a summons is served upon a defendant. Prob-
ably the courts would be inclined to be liberal in respect to
the manner of presentation or service of this execution, but it
is plain that personal service is required.

This is borne out by a recent case in the court of appeals, in
which it was held that presentation implies some formality, and
that personal service of a garnishee execution is contemplated by
the statute.

Stark v. Beckwith Special Agency, 227 N.. Y. 42.

(3) To Whom Presented

A garnishee execution may be presented to an individual or
corporation, municipal or otherwise.

Section 1391, Code of Civil Procedure.

It may also be presented to the State.

Section 2—a State Finance Law.
Garnishee—3.
34 GARNISHEE EXECUTION

Section 1391 of the Code is not specific on the subject of
presentation of a garnishee execution, but the custom is to
serve a copy thereof personally upon the employer, if an in-
dividual and readily accessible. In case such individual is
not readily accessible, such copy is delivered to his manager,
cashier or other person having authority over the employer’s
business. However, it is plain from the case of Stark v. Beck-
with Special Agency, 227 N. Y. 42, that personal service
upon the person to whom the execution is presented must be
made. ;

Under the 1919 amendment, it is prescribed that all execu-
tions filed in any department (of a city, county or board of
education) against the wages, ete. of an officer or employee
shall lapse under the circumstances therein named. This
would indicate that in the cases therein mentioned, service of
the garnishee execution may be made upon .any person in
charge of such department.

A garnishee execution, directed to a corporation employing
the judgment debtor, must be personally served on an executive
officer or some agent thereof whose ordinary duties are such that
notice to him will naturally insure knowledge of the process to
the corporation.

Stark v. Beckwith Special Agency, 227 N. Y. 42.

Previous to the enactment of Sec. 2-a State Finance Law it
was held that the provision in Sec. 1891 Code Civil Procedure
permitting the collection upon the execution issued thereunder
from the ‘“‘person or corporation, municipal or otherwise,” did
not warrant such proceedings against the State, as the latter
is neither a person, nor a corporation, as that term is ordinarily
used, and is certainly not a municipal corporation.

Osterhoudt v. Stade, 133 App. Div. 83, 117 Supp. 809.

A garnishee execution cannot be presented to a person go as
to charge him individually where he is merely acting as agent
of the employer.

- Reibstein v. Stenz, 140 App. Div. 519, 125 Supp. 508,
GARNISHEE EXECUTION 35

This rule was applied in the case last cited, where the judg-
ment debtor had a contract with certain silk mills by which he
acted as selling agent on a commission basis, and employed
sales agents on his own account. It was shown that the firm,
against which the garnishee proceedings were instituted and
which the court held to be merely agent was charged these
commissions and received the purchase price paid on the sales
made by the judgment debtor, and advanced the latter the sum
of $200 per month for expenses. After the deduction of its
own and the commissions of the judgment debtor the balance
was remitted by it to the mills.

(N) Protection of Employer

It is provided in Sec. 1391 of the Code, that payment under
a garnishee execution by an employer shall be a bar to any
action therefor by the judgment debtor.

Although an execution against wages was unauthorized un-
der Sec. 1391, Code of Civil Procedure, yet it appearing to be
regular on its face, the employer will be protected against any
claim for refund of money actually paid over to the judgment
creditor prior to a motion to vacate it.

Bloomingdale v. Richardson, 140 App. Div. 350, 125 Supp.
320.

(O) Remedies for Failure to Honor Execution

(1) Statutory Provisions

It is now provided in See. 1391 of the Code, that if a debtor
employed by a city, county or board of education of such a
city, shall resign or be dismissed while an execution issued
pursuant to the provisions of this section is wholly or partly
unsatisfied and he be reinstated or re-employed, such execution
shall lapse and no further deduction shall be made thereon
unless such reinstatement or re-employment occur within
36 GARNISHEE EXECUTION

ninety days after such resignation or dismissal. All executions
filed in any department against the wages, debts, earnings
and salary of officers or employees of any city or of any county
of the state, or of the board of education of any such city
within five days prior to the date on which payment of wages,
debts, earnings and salary are paid shall not become a lien
against the wages, debts, earnings and salary that are payable
on the said payroll but shall become a lien upon the wages,
debts, earnings and salary which shall become due or owing
to the judgment debtor thereafter.

(2) Availability of Contempt Proceedings

Contempt proceedings will not lie against an employer
for refusal to honor a garnishee execution. The only remedy
is by action as prescribed by Sec. 1391 of the Code of Civil
Procedure.

Kahn v. Coles, 149 St. Rep. 885, 115 Supp. 885.

(3) Right to Order Compelling Honoring of Execution

A judgment creditor cannot compel compliance with the
terms of his garnishee execution on the part of the person
indebted to the judgment debtor by obtaining an order direct-
ing the honoring thereof, since his remedy is by action under
Sec. 1391, Code of Civil Procedure.

Pratt, Matter of, 158 App. Div. 695, 143 Supp. 1025,

(4) By Action

It is provided in Sec. 1391 of the Code that if the person
or corporation, municipal or otherwise, to whom a garnishee ex-
ecution shall be presented shall fail, or refuse to pay over to said
officer presenting said execution, the percentage of said in-
debtedness, he shall be liable to an action therefor to the judg-
ment creditor named in such execution, and the amount so
GARNISHEE EXECUTION 37

recovered by such judgment creditor shall be applied towards
the payment of said execution.

The statute is silent as to the procedure or what court the
action is to be brought in, so we are obliged to resort to the
decisions of the courts as far as they have touched the sub-
ject to ascertain the rules applicable.

(a) What Court

An action of this nature may be brought in the Supreme
Court, although the original judgment against the judgment
debtor was rendered in the County Court.

Van Wie v. Delaware & Hudson Co., a1 Mise. 25, 127 Supp.
184.

Under Sec. 1, Subd. 6, Municipal Court Act (Laws 1902,
p. 1488 ce. 580) providing that the N. Y. Municipal Court
shall have jurisdiction of an action on a judgment rendered
in any court not being a court of record, it was held that an
action against an employer for failing to honor a garnishee
execution brought in the Municipal Court of N. Y. would not
lie where the original judgment against the judgment debtor
was rendered in the Supreme Court.

Weisel v. Old Dominion Steamship Co., 99 App. Div. 568,
91 Supp. 140; Keve v. Columbia Kid Hair Curlers Mfg. Co.,
161 App. Div. 918, 145 Supp. 1072.

(b) Parties

The judgment debtor need not be joined as a party defend-
ant in an action for the dishonor of an execution against wages.

Van Wie v. Delaware & Hudson Co., 71 Mise. 25, 127 Supp.
184.

A receiver in supplementary proceeding against the plain-
tiff is not a proper party defendant in an action by such plain-
tiff under Sec. 1391, Code of Civil Procedure for failure of a
trustee to pay to the creditor the percentage of the income up-
38 GARNISHEE EXECUTION

on the trust fund in his hands, since such receiver has no joint
interest with plaintiff in the result and has no connection with
the other defendants.

Demuth v. N. Y, Life Ins. & Trust Co., 165 App. Div. 77,
150 Supp. 981.

(c) Pleading—Complaint

Inasmuch as the remedy of garnishee to reach the wages,
salary, income of trust fund, etc., is purely statutory, the
complaint, in an action for failure of the party to whom such
execution is directed to honor the same, must set forth allega-
tions necessary to bring the case within the statute.

Rosenstock v. City of New York, 97 App. Div. 3877, 89
Supp. 948.

Thus, in the case last cited, the court held insufficient a
complaint against the city of New York for failure to pay the
percentage directed in a garnishee execution, which failed to
allege the nonexistence of a prior unsatisfied and outstanding
execution of the same kind (the law then providing that such
an execution should not be outstanding and unsatisfied).

A complaint, in an action under Sec. 1391, Code of Civil Pro-
cedure, to cover moneys payable pursuant to a garnishee
execution, which alleges that the order directing the issuance
thereof was duly made and entered, is sufficient, as it is not
necessary to allege the facts conferring jurisdiction, but it is
sufficient to state that the determination was “duly” made as
provided in See. 532, Code of Civil Procedure.

Lutkins v. Lutkins, 85 Mise. 148, 148 Supp. 174.

In the case last cited, the court also held that an objection
that the garnishee order on which the action for refusal to
honor the execution thereunder did not contain sufficient al-
legations of fact to give the court jurisdiction to make it,
must be raised by a denial contained in the answer and not by
a demurrer to the complaint for failure to allege that such
order stated facts conferring jurisdiction.
GARNISHEE EXECUTION 39

Form for complaint in these actions is given in the list of
Garnishee forms at the end of this book.

(d) Prima Facie Case

Where the judgment creditor, in an action of this nature
against the employer, shows compliance with Sec. 1391, Code of
Civil Procedure in reference to the issuance and presentation
to an employer of a garnishee execution, and also that the judg-
ment debtor in question receives over $12 a week, which execu-
tion the employer refuses to honor, a prima facie case is made
out and the court cannot dismiss the complaint.

Saks & Co. v. McDonald, 198 St. Rep. 756, 164 Supp. 756.

And in an action brought against an employer for refusal
to honor a garnishee execution, where it appears that a
garnishee execution is unsatisfied and outstanding, and that
the judgment debtor received more than $12 a week during
a portion of the time, it is an error for the court to direct
judgment for the defendant.

Hubertus v. Reilly 88 Mise. 143, 151 Supp. 775.

Where the complaint, in an action for failure to honor
a garnishee execution, alleged that execution against the wages
was “duly” issued and that the sheriff “duly” presented the
execution to the employer, who failed to make the payment,
and the answer admitted that execution was “duly” issued
and ‘duly’ presented to defendant, it was unnecessary for
the plaintiff to prove that a judgment had been recovered
against the defendant’s employee, or that an execution upon
said judgment had been returned wholly or partly satisfied.

Reynolds v. Harlem Construction Co., 71 Misc. 446, 128
Supp. 642.

(e) Defenses Available

A person whom it is claimed is indebted to the judgment
debtor may defend an action brought against him for failure
40 GARNISHEE EXECUTION

to honor a garnishee execution, since Sec. 1391, Code of Civil
Procedure authorizes the modification of an order for a
garnishee execution “by either party” at any time, and he is
not concluded from interposing a defense to the action by
reason of his failure to seek modification of the order, nor is
he concluded from so doing by reason of the fact that such
order was not appealed from or in any way modified. The
Court took the position in this case that a person standing in
the position of the defendant, may have an opportunity, not
only to apply for a modification of the execution, but also
for judgment declaring that he was not indebted to the person
against whom the execution was issued.

Van Valkenburgh v. Bishop, 198 St. Rep. 86, 164 Supp. 86.

It is a good defense to an action against an employer for
refusal to honor or pay a garnishee execution against his em-
ployee’s wages that the latter, after being informed of the
presentation to the employer of such garnishee execution, re-
fused to continue his employment if a deduction were made
under such execution, and thereafter he worked less time
than formerly and did not earn the sum of $12 per week, and
the contention upon the part of the plaintiff that as long as the
garnishee execution was unmodified the employer was bound
to honor the same will not be upheld, since the execution
ceased to be a lien on the judgment debtor’s wages when the
latter ceased to earn the sum of $12 or more per week, and
defendant properly, as was his duty to himself and to the
judgment debtor, refused to pay further sums under the execu-
tion.

Duffy v. Morrissey, 82 Misc. 149, 143 Supp. 780.

A further iliustration of the rule that where the wages of
the judgment debtor become less than $12 per week it is not
necessary for the employer, to whom such execution is directed,
to seek a modification of the same so as to release him from
further payment, but he may refuse to honor such execution
and successfully defend an action under Section 1391 of the
GARNISHEE EXECUTION 41

Code, is found in Hubertus v. Reilly, 88 Misc. 148, 151 Supp.
415.

(P) Modification or Vacation of Execution

(1) Statutory Provisions

It is provided in Section 1391 of the Code of Civil Pro-
cedure that either party may apply at any time to the court
from which such execution shall issue, or to any judge or
justice issuing the same, or to the county judge of the county,
and in any court where there is no county judge, to a justice
of the city court upon such notice to the other party as such
court, judge or justice shall direct for a modification of such
execution and upon such hearing the said court, or justice
may make such modification of such execution as shall be
deemed just. .

While the Statute quoted provides for the modification of
a garnishee execution, it is plain that authority is here con-
ferred to vacate or set aside, as well as modify, such execution.
In fact, in all of the cases arising in this State, so far as
reported, the execution has either been vacated or all relief

denied.

(2) Grounds Available

There are numerous grounds for modifying or vacating a
garnishee execution. In general, it may be said that the court
or judge will vacate a garnishee execution where it is clearly
made to appear that the same was granted without the existence
of the requisite jurisdictional facts.

It is also a ground for vacation of a garnishee execution
that subsequent facts have occurred rendering it inoperative.

An example of this is where the wages of an employee have
been reduced, in good faith, below the statutory sum of $12.00
per week.
42 GARNISHEE EXECUTION

Undoubtedly fraud is available as a ground for vacating
a garnishee execution, although no decisions upon that point
have been found.

On a motion to vacate a garnishee execution under Sec. 1391, -
Code Civil Procedure, the moving party must plainly set forth
allegations showing that there was not a compliance by the
judgment creditor with the statute in his application for the
execution. Mere general and indefinite allegations as to non-
compliance will not be sufficient.

Rinschler v. Bell, 152 St. Rep. 536, 118 Supp. 536.

Thus, in the case last cited, where an application was made
to vacate a garnishee execution when the law provided that the
judgment upon which such proceedings were based must be for
necessaries or for services, it was held that the mere allegation
in the moving papers that the judgment was not for neces-
saries, without any allegation as to the nature of the debt on
which it was founded, was not enough to entitle a debtor to
relief.

On a motion by the judgment debtor to set aside a garnishee
execution against his wages he may show that he is not in fact
employed by the person or firm alleged to be his employer,
and thereby obtain the vacation of such order.

Rerbstein v. Stenz, 140 App. Div. 519, 125 Supp. 508.

(3) How Application Made

Affidavits setting forth the grounds on which a garnishee
execution is attacked may be presented and used on the motion
to vacate such execution, and the court will weigh such af-
fidavits and those upon which the order directing the issuance
of the execution were based. The court may also consider, on
such a motion, the testimony of the judgment debtor and any
witnesses produced in supplementary proceedings instituted
on the judgment of the judgment creditor.

Reibstein v. Stenz, 140 App. Div. 519, 125 Supp. 508.
GARNISHEE EXECUTION 43

(4) Who May Apply

Section 1391 of the Code of Civil Procedure provides that
either party may apply at any time for a modification of a
garnishee execution.

A strict construction of this provision of the statute would in-
dicate that it applies only to the judgment creditor and the
judgment debtor, and that apparently, the employer or a junior
judgment creditor cannot move for a modification or vacation
of a garnishee execution under this section of the Code.

However, the courts have sustained the rights of a junior
judgment creditor, whose garnishee execution has not been
honored because of the existence of a prior garnishee execu-
tion issued at the instance of a prior judgment creditor, to
make an application to vacate the earlier execution on the
ground that it was improperly issued.

Neu v. Fox, 151 App. Div. 17, 185 Supp. 208; Matter of
Royal Bank of New York, 140 App. Div. 480, 125 Supp. 322.

Thus, it was held that a junior judgment creditor may at-
tack a prior garnishee execution and have an order making
his execution prior thereto, where the first execution was un-
warranted and voidable because issued when another such
execution was outstanding and unsatisfied.

While Sec. 1391 of the Code of Civil Procedure has since
been amended so that more than one garnishee execution may
be outstanding at once, yet this case shows that a junior judg-
ment creditor may attack a prior garnishee execution which
is illegal or otherwise unwarranted.

Royal Bank of N. Y., Matter of, 140 App. Div. 480, 125
Supp. 322.

In the case last cited, the court said: “It is urged that the
objection, while it would have been good if taken by the judg-
ment debtor, cannot be availed of by a junior judgment credi-
tor. This contention is untenable. The appellant is interested
in collecting his judgment as promptly as possible, for if he
44 GARNISHEE EXECUTION

be delayed his execution may become valueless. Crowell hav-
ing undertaken to issue his execution contrary to the provisions
of the statute, it cannot be upheld against anyone having an
interest in atacking it.”

In Neu v. Fox, 151 App. Div. 17, 185 Supp. 208, the
Court denied the application of the junior judgment creditor
to vacate a prior garnishee execution, because it was held that
the latter was properly issued, but the Court intimated that
the motion would have prevailed if the first garnishee execu-
tion had been illegally or otherwisé improperly issued.

(5) To What Court or Judge

Under Sec. 1391, Code of Civil Procedure, application for
modification or vacation of a garnishee execution may be made
to the court from which such execution shall have issued or to
any judge or justice issuing the same, or to the county judge
of the county, and in a county where there is no county judge
to a justice of the city court.

It would thus appear that irrespective of the court in which
the Judgment upon which the garnishee proceedings are insti-
tuted was rendered, the application may be made to a county
judge of that county or in the city of New York, to a justice
of the city court, but it is plain that a judge or justice of a
court not of record cannot hear the application, except where the
garnishee execution was issued by him or by another judge of
his court. .

(6) Notice

There is no prescribed period of notice required in the
statute.

Sec. 1391 of the Code of Civil Procedure provides that the
application shall be made upon such notice to the other party as
the court, judge or justice shall direct.

Undoubtedly the applicant should obtain directions from
GARNISHEE EXECUTION 45

the judge or court to whom the application is to be made as to
what notice should be given. It would seem, however, that
the regular 8 days’ notice of motion would ordinarily be ap-
proved of by the judge or court.

(7) Sufficiency of Moving Papers

The party moving for the modification or vacation of a
garnishee execution must plainly set forth in his affidavits al-
legations showing that there was not a compliance by the judg-
ment creditor with the statute in his application for the execu-
tion. It will not suffice to set forth merely general and inde-
finite allegations as to the noncompliance.

Rinschler v. Bell, 152 St. Rep. 536, 118 Supp. 536.

As previously stated there are many grounds for the modi-
fication or vacation of a garnishee execution, and the attorney
will therefore have different facts to set forth in nearly every
case, but the forms for affidavits, notice of motion and order in
the list of forms at the end of this book may be of assistance.

(Q) When Garnishee Execution Becomes Inoperative

(1) Statute

Sec. 1391 of the Code contains a provision that if the per-
son employed by a city, county, or board of education of such a
city, shall resign or be dismissed while an execution issued
pursuant to the provisions of this section is wholly or partly
unsatisfied and he be reinstated or re-employed, such execution
shall lapse and no further deduction shall be made thereon
unless such reinstatement or re-employment occur within
ninety days after such resignation or dismissal.

(2) By Payment

Tt is of course self-evident that a garnishee execution be-
comes inoperative when the employer or other person indebted
46 GARNISHEE EXECUTION

to the judgment debtor pays over to the officer presenting the
garnishee execution the full amount of the judgment creditor’s
judgment and expenses thereof.

(8) By Reduction of Salary, etc., below Statutory Amount

If, after the presentation to an employer of a garnishee
execution while the judgment debtor is receiving wages or
salary of $12.00 a week or over, the latter works a reduced
number of hours so that his wages are below $12.00 a week,
the garnishee execution will not be enforceable.

Duffy v. Morrissey, 82 Mise. 149, 143 Supp. 780; Hubertus
v. Reilly, 88 Misc. 143, 151 Supp. 775.

Thus, where, after the presentation to an employer of a
judgment debtor of a garnishee execution against his wages,
the latter refused to continue the employment if 10 per cent
of his wages were deducted pursuant to such execution, and
thereafter the judgment debtor did not work the same number
of hours, and did not receive any longer the sum of $12.00 per
week, such garnishee execution becomes inoperative and of
no force.

Duffy v. Morrissey, 82 Mise. 149, 143 Supp. 780.

In the case in question, the good faith of the employer in
the transaction resulting in the reduction of the judgment
debtor’s wages to less than $12.00 per week was not attacked,
but it is evident that the courts would not permit a judgment
debtor and his employer to fraudulently enter into a conspiracy
to reduce the latter’s wages below the sum of $12.00 per week,
although no case exactly on that point appears to have been
reported in this state.

And the failure of the employer to secure the modification
of a garnishee execution secured under Sec. 1391 of the Code
of Civil Procedure does not prevent his resistance of payment
in an action brought by the judgment creditor against him,
where the debtor’s wages have become less than $12.00 a week.

Hubertus v. Reilly, 88 Mise. 148, 151 Supp. 775.
GARNISHEE EXECUTION 47

(4) Upon Termination of Employment

A garnishee execution may also be defeated by the judgment
debtor terminating his employment with his employer. In
that case, the only remedy of the judgment creditor is to
obtain a new execution where the judgment debtor again ob-
tains employment. The first execution obtained should be re-
turned wholly unsatisfied or partly satisfied according to the
facts. In an application for the second garnishee execution
the affidavit should undoubtedly recite the granting and return
unsatisfied or partly satisfied of the first execution.

(5) By Discharge in Bankruptcy

A great conflict has arisen in this State in the decisions of
the lower courts as to the effect of bankruptcy upon a garnishee
execution.

In considering this question Sec. 67f of the Bankruptcy
Act is important. That provides: “All levies, judgments,
attachments, or other liens obtained through legal proceedings
against a person who is insolvent at any time within four
months prior to the filing of a petition in bankruptcy against
him, shall be deemed null and void in case he is adjudged a
bankrupt, and the property affected by the levy, judgment,
attachment or other lien shall be deemed wholly discharged
and released from the same and shall pass to the trustee as a
part of the estate of the bankrupt.”

Some of the cases have held that notwithstanding this pro-
vision of the Federal Law, a garnishee execution continues to
be effective under Section 1391, Code of Civil Procedure
until modified by a direct proceeding taken for that purpose.

Ulmer v. Doran, 167 App. Div. 259, 152 Supp. 665; Brencr
v. Dahistron Metallic Door Co., 201 St. Rep. 860, 167 Supp.
860; Rosen v. Wygand, 174 Supp. 672.

And it has been held that the mere adjudication of bank-
ruptcy has no effect upon the operation of a garnishee execution
48 GARNISHEE EXECUTION

unless a stay of proceedings or collection is’ obtained under
Sec. 11 of the Bankruptcy Act.

Mass v. Kuhn, 180 App. Div. 68, 114 Supp. 444.

Some of the latter cases, however, have refused to follow this
rule and hold that the effect of Sec. 67f. of the Bankruptcy
Act providing that all levies, judgments, attachments or other
liens obtained through legal proceedings against a person who
is insolvent, at any time within four months prior to the filing
of a petition in bankruptcy against him, shall be deemed null
and void in case he is adjudged a bankrupt, is to render a
garnishee execution unavailable to the judgment creditor as
far as applicable to salary or wages accruing from the be-
ginning of the four months preceding the adjudication of bank-
ruptcy. :

Taylor v. Buser, 201 St. Rep. 887, 167 Supp. 887; Fried-
man v. Gibbons, 101 Misc. 356, 167 Supp. 685.

These cases are based upon decisions of the Federal Courts,
some of which are as follows:

LInudeke, Matter of, 171 Fed. 292, 92 Am. Bankr. Rep. 467;
Sims, Matter of, 176 Fed. 645, 23 Am. Bankr. Rep. 899;
Harrington, Matter of, 200 Fed. 1010, 29 Am. Bankr. Rep.
66; Obergfoll, Matter of, 239 Fed. 850, 152 C. C. A. 636,
38 Am. Bankr. Rep. 645; Beck, Matter of, 238 Fed. 653, 38
Am. Bankr. Rep. 797.

Undoubtedly the best reasoned and most logical decision
in this State upon the subject is Friedman v. Gibbons, 101
Mise. 356, 167 Supp. 685.

There, plaintiff on January 10, 1917, obtained a deficiency
judgment in foreclosure proceedings against defendant and
others, and on May 16, 1917, a garnishee order was issued un-
der Sec. 1391 Code of Civil Procedure, against her salary
as a teacher in New York City, and filed with the corporation
counsel, and thereafter and on June 1, 1917, she was adjudged
a voluntary bankrupt, the claim under the deficiency judg-
ment having been duly scheduled. Later an order was obtained
GARNISHEE EXECUTION 49

from the bankruptcy court restraining interference with her
salary under the garnishee order, and after her discharge in
bankruptcy on August 22nd, 1917, she moved to vacate the
garnishee order. The court held that the motion should be
granted and the city comptroller was directed to pay the judg-
ment debtor so much as was withheld since her adjudication as
a bankrupt, and further held that the trustee in bankruptcy
would be entitled, upon application therefor, to the amount
retained by the comptroller under the garnishee- execution
from its date to the time of the adjudication in bankruptcy.

In that case the court refused to follow Ulner v. Doran, 167
App. Div. 259, 152 Supp. 655, saying: “It is true that in
that case the Appellate Division passed directly upon the ques-
tion whether ‘Although the debt may have been discharged
(by bankruptcy) the execution continues in force and the levy
thereunder remains a continuing lien upon salary to be earned
after the discharge of the judgment. Though holding that
‘as to earnings which become due after the discharge in bank-
ruptcy there remains no indebtedness to be satisfied, and con-
sequently the order permitting the issue of what is sometimes
termed a garnishee execution should be modified,’ nevertheless
the Court said: ‘We think, however, that the execution re-
mained valid and enforceable until modified as contemplated
by Sec. 1391, supra, and that any moneys collected under it,
even after the date of the defendant’s discharge in bankruptcy,
are properly payable to the judgment creditor. It was the
evident intention of Sec. 1391 that such an execution should
remain in full force until satisfied by the moneys collected
thereunder or modified by the Court.’

“Tn other words, though the debt ceased to exist the remedy
for its enforcement remained. The Bankruptcy Act never
intended that a debtor should be thus harassed by a creditor
and the discharge in bankruptcy in effect postponed and the
purpose of the Bankduptcy Act nullified. Nor could such have
been the intent of the Legislature of the State of New York.

Garnishee—4,
50 GARNISHEE EXECUTION

Sec. 1391, supra, provides that the levy under the garnishee
order shall be a continuing levy until said execution and the
expenses thereof are fully satisfied and paid or until modified
as hereinafter provided, and, as shown by a later provision
of the section, the modification intended was such as shall be
deemed just. Certainly the Legislature was not contemplat-
ing intervention of bankruptcy, and bankruptcy having inter-
vened, the section cannot arbitrarily be construed literally.”

Justice Goff, who wrote this admirable opinion, placed great
stress upon the federal decisions referred to above, and in fact
based his decision thereon. He held that section 67f of the
Bankruptcy Act controlled over the New York State decisions.

In Luedke, Matter of, 171 Fed. 292, 22 Am. Bankr. Rep.
467, cited above, the court said: “The bankrupt was relieved
by his discharge in bankruptcy from all provable debts. The
judgment in question was apparently such a debt, and the lien
against his salary, it is believed, would not continue with re-
spect to any service not already rendered, and to which lien had
not specifically attached under the levy of the execution, at the
date of his adjudication in bankruptcy, inasmuch as the dis-
charge was granted. Under act July 1, 1898 (Chapter 541,
See. 67f, 30 Stat. 565, U. S. Comp. St. 1901 p. 3450 (U. S.
Comp. St. 1916, Sec. 9651), any amount of money so levied
upon within four months prior to the filing of the petition
passed to the trustee as a part of the estate of the bankrupt,
unless it has been paid over and had passed to the hands of an
innocent party. . . . The discharge in Bankruptey must
be held to have freed the bankrupt’s salary from the effect of
said execution in so far as payments subsequent to date of the
adjudication are concerned, inasmuch as the judgment under
which the execution was levied has been discharged, and inas-
much as the levy cannot be considered to have actually attached
until the salary accrued.”

In another case, Sims, Matter of, 176 Fed. 545, 23 Am.
Bankr. Rep. 899, the levy was more than four months old when
GARNISHEE EXECUTION 51

the bankruptcy petition was filed. On the question as to the
judgment creditor’s proceeding against salary earned after the
filing of the petition, Judge Hand said: “Should I allow the
creditors to levy on wages in fact earned in the future, they
would recover upon a past debt from property earned sub-
sequently. This contradicts the whole purpose of a discharge,
and I cannot permit it without violating the act. It is not
enough that in form the levy may be upon a single chose in ac-
tion consisting of the contract of employment. I cannot say
that this is so but the obligation is quite valueless till the bank-
rupt performs the condition of service to his employer. There-
fore, for the purposes of this act I shall decide that the wages,
which arise from services rendered after petition filed, is
covered by the discharge, and that the stay should continue as
to that.”

Again, in Harrington, Matter of, 200 Fed. 1010, 29 Am.
Bankr. Rep. 666, where the levy was made after the bankrupt’s
adjudication the court held that the execution and levy, if made
within four months of the filing of the petition would of course
fall, citing Sec. 67f. of the Bankruptey Act. To the objection
raised in Obergfoll, Matter of, 239 Fed. 850, 152 C. C. A.
636, 88 Am. Bankr. Rep. 645, that the U. S. District Court
had no power or right, upon the bankrupt’s discharge, to order
the person indebted to the judgment debtor for services to pay
over to the trustee in bankruptcy all moneys collected by him
under garnishee execution and in his hands, and direct that
the trustee pay over therefrom to the bankrupt all deductions
made since the date of the adjudication in bankruptcy, the
court said: “In support of his contention he calls attention
to the decisions of the Supreme Court of the United States,
declaring that when a court has taken into its custody property
of any kind, another court should not be permitted either to
oust the possession of the first court, or in any way to interfere
with its complete control and disposition of the property for
the purpose of the cause in which its action has been invoked.
52 GARNISHEE EXECUTION

That this principle has been laid down in a long line of cases
cannot be denied. . . . The principle which these cases
enunciate is fully recognized by this court, and will be un-
hesitatingly applied in all proper cases. The difficulty is that
the principle invoked has no application to such a case as that
now before us. The order which the petitioner seeks to have
reviewed was made under authority of section 67, subdivision
‘“? of the Bankruptcy Act, which reads as follows: (quoting

same, supra) . . . The order made by the New York
Supreme Court on February 18, 1915, became a lien on that
date... . . The adjudication in bankruptcy was made on

March 24, 1915, which was less than four months after the
lien was created. Therefore the lien became null and void
automatically by virtue of the provision of the Bankruptcy
Act above quoted. The making of the order which the peti-
tioner is here objecting to was no interference with the process
of the. ‘Supreme Court of New York, as such process had been
already annulled by the Bankruptcy Act, and there was nothing
to interfere with when the order was made. . . . If there
could be any doubt in such cases, the doubt has been ex-
tinguished by the decision of the Supreme Court in Chicago,
Burlington & Quincy R. R. v. Hall 229 U. S. 511, 516, 33
Sup. Ct. 885, 57 L. ed. 1306, 30 Am. B. R. 619, 1913, where
the Court, speaking of a levy in a garnishee proceeding in a
state court, declared that all levies, seizures, and liens, obtained
by legal proceedings within four months, that may or do inter-
fere with that possession are annulled.”

Justice Goff, in Friedman v. Gibbons, cited above, says:
“The true rule is made clear in Matter of Beck, 238 Fed. 653,
38 Am. Bankr. Rep. 79%.” In that case a motion was made to
vacate or modify an order staying garnishment proceedings
in the New York State Court under Sec. 1391, supra. The
judgment was obtained October 6, 1918. On October 21, 1913,
execution was obtained under Sec. 1391. On February 16,
1915, the petition in bankruptcy was filed. The city pay-
GARNISHEE EXECUTION 53

master had been retaining the proper portion of the debtor’s
wages in the meanwhile. Hough, C. J. presented the question
as follows: ‘To whom does the money uow in the hands of the
city paymaster belong? Clearly no one but the trustee in
bankruptcy can claim anything as against Bauer, the judg-
ment creditor, and that trustee can claim nothing back of the
four-month period which began October 16, 1914.

The moment any wages or salary became due to Beck the execu-
tion applied to the proper proportion thereof. Whatever was
retained by the city paymaster down to October 16, 1914, is
clearly applicable to the payment of Bauer’s judgment. What
was retained after October 16, 1914, was just so much money
practically in the hands of the sheriff under a levy made within
the four-month period, for there could be no levy upon Beck’s
salary until there was a salary to levy upon. Therefore the
date of levy is coincident with the date of accruing wage. To
such a situation Clarke v. Larremore, 188 U. 8. 486, 23 Sup.
Ct. 363, 47 L. ed. 555, . . . applies, and the trustee in
bankruptcy is entitled to whatever the city paymaster has in
his hands and retained from Beck’s wages between October 16,
1914, and February 16, 1915. Beck has not yet obtained a
discharge, nor does it appear whether he has applied for one;
therefore, until he is discharged, or his right to apply for a
discharge has expired, the doctrine of In re Van Buren (D. C.,
N. Y.) 20 Am. B. R. 896, 164 Fed. 883, applies, and the
city paymaster must continue to retain enough of Beck’s still
accruing salary, and retain it for the benefit of Bauer or Beck
as the case may be. That is, if Beck gets a discharge, the debt
is wiped out, and if he does not get a discharge, Bauer’s judg-
ment may be satisfied out of wages earned after adjudication
as. well as before the four-month period. Of course, under no
circumstances can the trustee claim anything accruing after
adjudication. The stay order will therefore be lifted to the
extent of authorizing the judgment creditor and the sheriff to
obtain and pay over whatever was retained by the city pay-
54 GARNISHEE EXECUTION

master prior to October 16, 1914. The trustee is instructed
to demand the amount retained between October 16, 1914, and
February 16, 1915. This will leave a deficiency upon Bauer’s
judgment, and the retention of wages must still continue until
it appears whether Beck gets his discharge or not.”

In view of Sec. 67f. of the Bankruptey Act and the decision
of Justice Goff in Friedman v. Gibbons, and the federal
decisions relied on by him to which latter reference has been
made, it would appear clear that notwithstanding the New
York decisions mentioned to the contrary, garnishee proceed-
ings on those judgments which are discharged in bankruptcy be-
come inoperative and unenforceable as to the creditor from
the date of the four-month period prior to the filing of the
bankruptcy petition, and all moneys retained out by the em-
ployer or other person indebted to the judgment debtor from
that time until the date of the adjudication in bankruptcy
belong and should be paid to the trustee in bankruptcy, but all
sums retained thereafter are to be returned to the judgment
debtor, and this notwithstanding the fact that the garnishee
execution was issued and presented to the employer more than
four months prior to the filing of the bankruptcy petition.

It was contended in Friedman v. Gibbons, 101 Misc. 356,
167 Supp. 685, that under Sec. 1391, Code of Civil Procedure
the judgment creditor was entitled to 10 per cent of the bank-
rupt’s salary down to the time that his judgment should be
cancelled pursuant to the provisions of Sec. 150 of the Debtor
and Creditor Law. That section providing in substance and
effect that at any time after one year has elapsed since the
bankrupt was discharged from his debts he may apply to the
court in which judgment was rendered against him for an
order directing the judgment to be cancelled and discharged
or record, but the court held that such contention could not be
sustained, as the provisions of the Bankruptey Act are para-
mount to state statutes. All proceedings relate to the time of the
adjudication and if the discharge is granted it relates back to
GARNISHEE EXECUTION 55

the adjudication and releases the bankrupt from liability up-
on such debts as are probable in bankruptcy and existed at
that time. As the discharge in bankruptcy of the judgment
debtor relates back to the adjudication and releases him from
all liability on the judgment in question, and the debt rep-
resented thereby, it is immaterial that under the provisions
of the statute of the State of New York, he cannot secure a
cancellation of record of such judgment until the expiration
of one year after the granting of such discharge. The creditor
cannot enforce it during that year against-after-acquired prop-
erty or wages earned after adjudication. The Congress of the
U.S. did not undertake to provide for the cancellation of judg-
ments entered in the state courts on the granting of a discharge;
but it was said, in substance that the debt represented by this
judgment is provable and dischargeable in bankruptcy, and
that the debt and judgment cannot be enforced against the
bankrupt or his property (taken) except in so far as it had been
made a lien thereon more than four months prior to the ad-
judication.

It may be said in summarizing the law on this subject, that
while, under Sec. 67f of the Bankruptey Act, the levy under
a garnishee execution is annulled, that fact does not prevent
the judgment creditor, in the absence of a stay under Sec. 11
of the Bankruptcy Act, from obtaining moneys from the
sheriff, collected by the latter from the employer or other person
indebted to the judgment debtor, and they may be credited on
the judgment. It is possible that this would not be so as to the
trustee in bankruptcy, but the vigilant attorney, carefully
watching his client’s interests, may well advise him to collect
all moneys posible under his execution notwithstanding the
institution of bankruptcy proceedings by or against the judg-
ment debtor.

As to those judgments which are not discharged by bank-
ruptey, of course the discharge has no effect upon a garnishee
56 GARNISHEE EXECUTION

execution, and the court will not vacate the same on motion
of the judgment debtor.
Taylor v. Buser, 201 St. Rep. 887, 167 Supp. 887.

(R) Review of Orders

(1) Statutory Provisions

In view of the provision in Sec. 1391, that either party
may apply at any time to the court from which a garnishee
execution shall issue, or to any judge or justice issuing the
same, or to the county judge of the county, and in any county
where there is no county judge, to any justice of the city court
upon such notice to the other party as such court, judge, or
justice shall direct, for a modification of said execution, and
upon such hearing the said court, judge, or justice may make
such modification of said execution as shall be deemed just,
it would appear plain that the remedy of a person aggrieved
is confined, in the first instance, to a motion to vacate or modify
the garnishee execution. An appeal, however, plainly lies
from the order of the court or judge made upon such motion,
on the ground that a substantial right has been affected.

_ See. 1347, Subd. 4, of the Code provides for such an ap-
peal when the order mentioned was granted by the supreme
court, and Sec. 1348 authorizes an appeal when the order was
granted by a justice thereof.

In case the order was made in an action in an inferior court,
or by a judge thereof, the appeal is authorized by Sec. 1342.

(2) Watver of Right to Appeal

Under See. 1391, Code of Civil Procedure as it stood in 1909,
providing that only one execution against wages, etc., could be
issued at a time, it was held that by obtaining a second gar-
nishee execution which had been served on the employer and
was then in force, the judgment creditor waived his right to
GARNISHEE EXECUTION 57

appeal from an order vacating the first execution, and such
appeal was consequently dismissed.

O’Brien v. Kelly, 184 App. Div. 562, 119 Supp. 613.

Since the amendment of this statute permitting the issuance
of more than one execution at a time, and providing that they
shall be satisfied in the order of the date of presentation to the
employer, it is difficult to determine what would be the effect
of the second execution upon the appeal in a case like that
above, but undoubtedly it would be held to be a waiver of such
right of appeal under the present statute.
SUPPLEMENTARY PROCEEDINGS
CHAPTER II

ORIGIN AND NATURE OF PROCEEDINGS

(A) Origin and Basis, 58.

(B) Nature of Proceedings, 60.
(1) In General, 60.
(2) As Special Proceedings, 60.
(3) Creation of Lien, 61.

(A) Origin and Basis

Supplementary proceedings are wholly statutory, but were
authorized by the Code of Procedure passed in 1851, and sub-
sequently continued in the Code of Civil Procedure adopted in
1876.

The sections of the Code of Procedure giving this remedy
were 292 to 302, inclusive. Many of the provisions now in
section 2432-2471 of our present Code of Civil Procedure ap-
peared in somewhat different form in the 1851, Code of Pro-
cedure, but there was no provision in the latter for the ap-
pointment of a receiver, and the remedy given therein was
otherwise more limited than in the present Code.

It is frequently stated that supplementary proceedings take
the place of the old Creditor’s Bill, whereby a discovery of the
property of a judgment debtor was permitted and the dis-
closed property reached in the action. That procedure was
long and cumbersome and the remedy of a creditor by supple-
mentary proceedings greatly shortened the time by which a
judgment creditor could discover and reach property of his
judgment debtor. It cannot be said that supplementary pro-

58
ORIGIN OF PROCEEDINGS 59

ceedings really superseded the old Creditor’s Bill or its sucessor
the creditor’s action in equity, as the creditor’s right to proceed
by action was not taken away by the statute authorizing supple-
mentary proceedings, and the two remedies still coexist. Even
to-day a judgment creditor may pursue an independent action
in equity to discover and reach property of his judgment debtor,
and in some instances he has a cause of action which cannot be
enforced by a receiver in supplementary proceedings. Where
applicable and adequate, the remedy by supplementary proceed-
ings is much more convenient and summary than by resort to
suit by the judgment creditor.

Upon the question of the concurrence of these remedies, it
has been held that, in the absence of facts set forth or peculiar
facts rendering it unfair to the judgment debtor, the judgment
creditor may prosecute supplementary proceedings and at the
same time institute and maintain an action to make his judg-
ment a lien upon the property in which the judgment debtor
has an equitable interest, as such remedies are concurrent.

Gates v. Young, 17 Week. Dig. 551.

It is stated in McCoun v. Dorsheimer, 1 Clarke Ch. 144,
that the foundation by statute, of the jurisdiction of Chancery
of those cases, which are commonly called creditor’s bills, was
2 Rev. Stat. old ed. p. 178, Sec. 38, which provided that when-
ever an execution against a defendant at law should have been
returned unsatisfied in whole or in part, the party suing out
such execution might file a bill in Chancery against such de-
fendant and any other person to compel discovery of any prop-
erty or thing in action belonging to the defendant, and of any
property, money or thing in action against such defendant and
any other person to compel the discovery of any property or
thing in action belonging to the defendant, and of any property,
money or other thing in action due to him or held in trust for
him, and to prevent the transfer of any such property, money
or thing in action, etc., and Sec. 39 of such statute gave the
60 SUPPLEMENTARY PROCEEDINGS

court power to compel a discovery, prevent a transfer and de-
cree satisfaction, ete.

(B) Nature of Proceedings

(1) In General

An order for the examination of a judgment debtor in sup-
plementary proceedings is not a mere process like the execution
to enforce satisfaction of the judgment. It is not based upon
the judgment alone but on a presentation of new facts which
the judgment creditor must prove to entitle him to the relief he
seeks.

Driggs v. Williams, 15 Abb. Pr. 477.

The object of the provisions of the Code of Civil Procedure
authorizing supplementary proceedings is to furnish a simple
and ready substitute for the old equity proceedings, in discoy-
ering and applying the property of a judgment debtor which
cannot otherwise be reached, to the payment of his debts.

Joyce v. Spafard, 9 Civ. Pro. Rep. 342.

(2) As Special Proceedings

While See. 2433 of the Code provides that supplementary
proceedings are “special proceedings,” yet they are not such in
every sense of the word, for it has been held that Sec. 338, subd.
4 of the Code, when providing that service of an order in an
action in the City Court in the City of New York might be
made without the City of New York, applied to an order
granted by a justice of that court for the examination of a judg-
ment debtor in supplementary proceedings.

Deane v. Sire, 48 Mise. 606, 95 Supp. 556.

Although supplementary proceedings are made distinct spe-
cial proceedings by Sec. 2433, Code of Civil Procedure, yet the
mode for reviewing orders made therein and the practice are
the same as if the orders had been made in an ordinary action.
ORIGIN OF PROCEEDINGS 61

Jones v. Sherman, 18 Abb. N. C. 461, 11 Civ. Pro. Rep.
416, 8 St. Rep. 344.

So it has been held that, strictly speaking, supplementary pro-
ceedings are not special proceedings in the original sense, but
constitute a special proceeding taken in the action in which
the judgment was obtained to enforce such judgment.

Graves vy. Scoville, 12 Civ. Pro. Rep. 165.

In deciding that a judgment creditor is not bound to give
security for costs the court held that such proceedings, though
made special proceedings by Sec. 2433 of the Code, are not
such within the meaning of Sec. 3279, declaring that the pro-
visions relating to security for costs shall apply to “a special
proceeding instituted in a Court of Record.”

First National Bank of Newville, Pa. v. Yates, 21 Mise.
373, 47 Supp. 484.

(3) Creation of Inen

The order of the judge instituting supplementary pro-
ceedings operates like the filing of the old creditor’s bill to at-
tach the equitable interest of the judgment debtor, but it does
not create any lien upon personal property. Such lien will not
be created until the order appointing a receiver is made. Until
then other creditors of the judgment debtor may levy upon any
of his personal property subject to execution and acquire a valid
lien thereon.

People ex rel. Fitch v. Mead, 29 How. Pr. 360.
CHAPTER III
REMEDIES AVAILABLE

(A) In General, 62.
(B) Examination before Return of Execution, 64.
(1) Statute, 64.
(2) Requisite Showing for Order, 64.
(3) Limitations, 65.
(C) Examination after Return of Execution, 66.
(1) Statute, 66.
(D) Third Party Order, 66.
(1) Statute, 66.
(2) In General, 67.
(3) Necessity of Examination of Judgment Debtor, 68.
(4) Requisites as to Property of Judgment Debtor or Indebted-
ness, 68.
(5) Effect of Receivership on Order, 69.
(6) Right to Order—Effect of Pendency of Action or Other Lega}
Proceeding, 72.
(7) Before Return of Execution—Effect of Subsequent Return, 73.
(8) Necessity of Payment of Witness Fees, 73.
(E) Warrant for Arrest of Judgment Debtor, 74.
(1) Statute, 74.
(2) To Whom Applicable, 75.
(3) Independant Proceeding, 75.

(A) In General

Every judgment creditor is entitled to at least one examina-
tion of his judgment debtor, and his right is not affected by
reason of the fact that he has been examined in proceedings
instituted by other judgment creditors.

Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

A judgment creditor cannot maintain supplementary pro-
ceedings and examine witnesses therein, solely for the purpose

62
REMEDIES AVAILABLE 63

of procuring evidence for use on the trial of another action, and
without any purpose to discover property.

Jones v. Ramsdell, 174 App. Div. 18, 159 Supp. 209.

The fact that a judgment creditor is prosecuting an action to
make his judgment a lien upon real estate in which the judg-
ment debtor has an equitable interest, is not ground for staying
the further prosecution of supplementary proceedings during
the pendency of such action, as a judgment creditor may prose-
cute either or both until satisfaction of his judgment, in the
absence of any plea of abuse against which the judgment debtor
requires protection.

Gates v. Young, 17 Week. Dig. 551.

An order for the examination of a judgment debtor in sup-
plementary proceedings will be granted, notwithstanding the
fact that an order has been granted staying proceedings of the
judgment creditor on the execution issued by him on the judg-
ment, where the latter order is by its terms limited to proceed-
ings “upon the execution,” since supplementary proceedings
cannot be regarded as proceedings upon the execution.

Lowber v. New York, City of, 5 Abb. Pr. 268.

Notwithstanding the fact that after the appointment of a
receiver in supplementary proceedings and the extension there-
of to other judgments, neither the original creditor nor those to
whose proceedings such extension had been made had taken any
further action during the period of twelve years, a junior judg-
ment creditor cannot have supplementary proceedings on his
judgment made prior to the first mentioned proceedings where
it appears that he is a relative of the judgment debtor and is
seeking to cut off the intervening judgment creditors, and get
the benefit of any property acquired by the judgment debtor,
and is proceeding on information derived from relationship,
rather than from investigation.

N. Y. Loan & Improvement Co. v. DeNavarro, 38 Mise.
436, 77 Supp. 1006, 11 Ann. Cas. 360.
64 SUPPLEMENTARY PROCEEDINGS

(B) Examination before Return of Execution.

(1) Statute

It is provided in Sec. 2436 of the Code that at any time
after the issuance of an execution against property, and before
the return thereof, the judgment creditor, may apply, upon
proof by affidavit, or other competent written evidence, that the
judgment debtor has property which he unjustly refuses to
apply towards the satisfaction of the judgment, for an order
requiring the judgment debtor to attend and be examined con-
cerning his property.

(2) Requisite Showing for Order

In order to obtain an order for the examination of a judg-
ment debtor before return of execution under Sec. 2486, Code
of Civil Procedure, it must be clearly shown that the judgment
debtor has property not subject to levy or which is so kept by
him that it cannot be identified and by exercise of rea-
sonable diligence reached by execution, but this is established
where it is shown that the judgment debtor has money deposit-
ed in a bank, as such deposit is not subject to levy, because the
bank does not keep specific money deposited but merely prom-
ises to pay out the same upon demand by depositor.

Summerfield v. Goldstem, 59 Mise. 387, 112 Supp. 357.

Supplementary proceedings will not lie against the judgment
debtor before the return of execution where it appears that he
is in possession of a farm, with stock and farming implements
thereon which he claims belongs to his wife, since, under such
circumstances the judgment creditor must first exhaust his
remedy by execution, and the necessary facts required by the
statute before supplementary proceedings before return of ex-
ecution may be instituted do not exist.

Sackett v. Newton, 10 How. Pr. 560.

In order to justify the granting of an order for the examina-
REMEDIES AVAILABLE 65

tion of a judgment debtor after the issuance and before the
return of execution, it must be clearly est-blished that the judg-
ment debtor has property which he unjustly refuses to apply
towards the satisfaction of the judgment sought to be enforced,
and it seems an order will not be granted if the evidence pre-
sented does not show that the judgment debtor has any prop-
erty free from claims of third persons, which he refuses to
apply to the payment of his debts.

Owen v. Dupignac, 9 Abb. Pr. 180, 17 How. Pr. 512.

An order cannot be granted for the examination of a hus-
band in supplementary proceedings before the return of execu-
tion on an order awarding his wife alimony pending an action
by him for divorce, by which it was required that he pay to
the wife the sum of $5.00 per week alimony, as there is nothing
in Sec. 2436 of the Code providing for supplementary pro-
ceedings upon orders, that right being granted only in Sec.
2435 authorizing supplementary proceedings after the return
of execution.

Ostrom v. Ostrom, 88 Misc. 232, 77 Supp. 594.

Before a judge is authorized to make an order before return
of execution requiring a judgment debtor, who is alleged to
have property which he unjustly refuses to apply to the pay-
ment of the judgment, to appear and be examined, it must be
shown that a demand has been made upon the judgment debtor
to apply his property to the satisfaction of the judgment and
that he has refused so to do.

First Nat. Bank of Rome v. Wilson, 18 Hun, 232.

(3) Limitations

Under Sec. 2436 of the Code, providing that at any time
after the issuance and before the return of an execution the
judgment creditor, on showing that the judgment debtor has
property which he unjustly refuses to apply toward the judg-
ment, may have an order directing him to be examined con-

Garnishee—5.
66 SUPPLEMENTARY PROCEEDINGS

cerning his property, it is clear that the period for this exam-
ination is not restricted to the ten years set forth in Sec. 2435,
as the order here obtained is auxilliary and not supplementary
to the execution.

Stevens Co. v. Maus, 155 App. Div. 249, 139 Supp. 1059.

(C) Examination after Return of Execution

(1) Statute

The statutory authority for examination of a judgment debt-
or after return of execution is found in Sec. 2435 of the Code.
That is as follows: “At any time within ten years after the
return, wholly or partly unsatisfied, of an execution against
property, issued upon a judgment, as prescribed in section 2458
of this act, or, in case of an order, issued in the same manner
so far as the provisions of said section can be applied in sub-
stance, the creditor under such judgment or order, upon proof
of the facts, by affidavit or other competent written evidence,
is entitled to an order, requiring the debtor under the judg-
ment or order, to attend and be examined concerning his prop-
erty, at a time and place specified in the order.”

The discussion of the right to institute proceedings under
this section of the Code appears under appropriate heads in
succeeding chapters of this work.

(D) Third Party Order

(1) Statute

Section 2441 of the Code authorizes the examination of a
third party under the following circumstances:

Upon proof, by affidavit, or other competent written evidence,
to the satisfaction of the judge, that an execution against prop-
erty has been issued, as prescribed in section 2458 of this act,
and either that it has been returned wholly or partly unsatis-
REMEDIES AVAILABLE 67

fied, or that it has not been returned; and also that any person
or corporation has personal property of the judgment debtor,
exceeding ten dollars in value, or is indebted to him in a sum
exceeding ten dollars; the judgment creditor is entitled to an
order, requiring that person or corporation to attend and be
examined concerning the debt, or other property, at a time and
place specified in the order. The judge may, in his discretion,
require notice of the subsequent proceedings to be given to the
judgment debtor, in such a manner as he deems just. But a
receiver shall not be appointed without such a notice, except as
otherwise prescribed in article second of this title.

It will be seen that under this section there must be presen-
tation of proof (usually in the form of an affidavit) of facts
sufficient to satisfy the judge showing the recovery of judg-
ment against the judgment debtor; the issuance of execution,
and the return thereof wholly or partly unsatisfied, or that such
execution has not yet been returned; that a third party, either
an individual or corporation, has property of the judgment
debtor, or is indebted to him in a sum exceeding ten dollars.
No notice of the application for such an order, either to the
judgment debtor or third party, is required, but it is provided
that the judge may, in his discretion, require notice of the
subsequent proceedings to be given to the judgment debtor.

(2) In General

There is no absolute right to an order for the examination
of a third party unless the property be such that if the claim of
the judgment creditor with respect thereto were conceded the
court could order the property delivered to a receiver or to the
sheriff, and unless such course be necessary for the protection
of the rights of the judgment creditor.

Ehrich v. Root, 184 App. Div. 432, 119 Supp. 395; West
Side Bank v. Pugsley, 47 N. Y. 368; First Nat. Bank v. Gow,
139 App. Div. 576, 124 Supp. 449,
68 SUPPLEMENTARY PROCEEDINGS

Moreover, it is contemplated that there must be a bona fide
claim by the judgment creditor that the third party has in his
possession some specific personal property of the judgment
debtor which is capable of delivery to warrant the court in
granting the order or permitting it to stand.

Ehrich v. Root, 184 App. Div. 482, 119 Supp. 395; Lerst
Nat. Bank v. Gow, 189 App. Div. 576, 124 Supp. 449.

Only those persons having in their possession personal prop-
erty of the judgment debtor or being indebted to him can be
examined under third party orders, and such an order will not
be granted where the alleged property of the judgment debtor
consists of a dower interest in real estate claimed to have been
fraudulently assigned.

Steinmann v. Hosier, 189 Supp. 863, 8 Civ. Pro. Rep. N.S.
22.

Notwithstanding the fact that a person not made a purty to
supplementary proceedings has a lien upon a fund held by a
third person sought to be reached therein, he has uo right to
intervene in the proceedings that he may assert his claim to
the property.

Corning v. Glenville Woolen Co. 14 Abb. Pr. 339.

(3) Necessity of Hxamination of Judgment Debtor

Third party order proceedings may be instituted independ-
ently of direct proceedings against the judgment debtor,
and the fact that the latter have not been instituted docs not
affect the third party proceedings.

Gibson v. Haggerty, 37 N. Y. 555,

(4) Requisites as to Property of Judgment! Deblor or
Indebledness

The mere fact that a third person against whom supple-
mentary proceedings are about to be instituted claims that he
has no property of the judgment debtor, or that he is the owner
REMEDIES AVAILABLE 69

of the property which is claimed belongs to the judgment debtor
will not defeat the right to an order for such third party’s
examination or constitute grounds for vacation of such order.

First Nat. Bank of N. Y. v. Gov, 139 App. Div. 576, 124
Supp. 449.

Upon this question the court said: “I think it is now the
accepted practice that ordinarily the examination of a third
party with respect to the property of the judgment debtor,
even though he claims title thereto, may be as thorough and
complete with respect to the basis of the claim of title as an
examination of the Judgment debtor with respect to his prop-
erty, and that, although the judge cannot, if the title be dis-
puted, direct that the property be applied on the execution, a
receiver may be appointed who may maintain an action to re-
cover the property or set aside any bill of sale or other assign-
ment thereof, made by the judgment debtor.”

Where, however, it clearly appears, upon a motion to vacate
a third party order, that at most, the claim of the judgment
creditor is that while the third party has no specific property
of the judgment debtor, the latter has an interest merely in a
firm, to which he is not now entitled to the possession, and in
no event will take title to any part thereof, except upon the
happening of a certain contingency, the motion to vacate will
be granted.

First Nat. Bank of N. Y. v. Gow, 189 App. Div. 576,
124 Supp. 449.

(5) Effect of Receivership on Order

_ A conflict has arisen in the decisions of this State as to
whether the appointment of a receiver in supplementary pro-
ceedings operates to prevent the judgment creditor from insti-
tuting third party order proceedings.

And it has been held that third party order proceedings can-
not be instituted where a receiver has been appointed in supple-
70 SUPPLEMENTARY PROCEEDINGS

mentary proceedings previously instituted by another judg-
ment creditor upon the latter’s judgment.

Walker, Matter of, 80 Misc. 389, 141 Supp. 265.

The latter case bases its holding upon Steinmann, Matter of
v. Conlon, 150 App. Div. 708, 135 Supp. 740, and Sorrentino
v. Langlois, 144 App. Div. 271, 128 Supp. 1003. In the first-
mentioned case the court vacated a subpeena for the examina-
tion of a witness in third party order proceedings, where a re-
ceiver had been appointed in supplementary proceedings at
the instance of another judgment creditor, holding that all the
property of the judgment debtor vested in such receiver, and,
therefore, third party order proceedings, at the instance of an-
other creditor, would be futile, citing Sorrentino v. Langlois,
mentioned above.

The better weight of authority, however, is that the fact that
a receiver has been appoined in supplementary proceedings,
will not prevent the latter from obtaining a subsequent order
for the examination of a third party concerning property in
his hands belonging to the judgment debtor.

Smith v. Cutter, 64 App. Div. 412, 72 Supp. 99; Denison
v. Jackson Bros. Realty Co., 158 App. Div. 475, 148 Supp.
586.

The case of Denison v. Jackson Bros. Realty Co., 158 App.
Div. 475, 143 Supp. 586, cited above, and which is later than
the Appellate Division case of Steinmann, Matter of v. Conlon,
holding a contrary doctrine, quoting from Smith v. Cutter cited
above, said: “If an order appointing a receiver terminated
the proceeding in which he was appointed, it would not prevent
the judgment creditor from pursuing another proceeding to
examine a third party having property of the judgment debtor.”
Then, quoting from People ex rel. Fitch v. Mead, 29 How. Pr.
360, the court further said: “It cannot be that he (the judg-
ment creditor) loses all right to discover . . . after the
appointment of such receiver,” and “that when an affidavit
stating the jurisdictional facts is presented the judgment credi-
REMEDIES AVAILABLE 71

tor is entitled to institute a proceeding for the examination
against a person who has property of the judgment debtor, in-
dependent of the fact that a proceeding for the examination of
the judgment debtor is pending or has resulted in the appoint-
ment of the receiver.”

Further discussing this question the court said, “It is the
purpose and object of the proceeding to discover property of
the judgment debtor, and this purpose would be entirely nulli-
fied if a receiver, by refusing to institute a proceeding against
a third party having property of the debtor in his possession,
could successfully contend that his appointment prevented the
judgment creditor from availing himself of the examination
and discovery secured to him by statute.”

In taking up the matter of the apparent contrary view in Sor-
rentino v. Langlois, cited above, the court held that the con-
tention that Smith v. Cutter, above mentioned, was overruled
by that case, said: ‘While it does seem that there is a con-
flict in the two decisions, there was no such intention. In the
Sorrentino Case the defendant unsuccessfully moved to vacate
an order for the examination of a third party, and the reversal
was necessary because the moving affidavit did not show that
the person to be examined had personal property of the defend-
ant exceeding $10.00 in value, or that she was indebted to him in
a sum exceeding $10.00 without reference to the fact that a re-
ceiver had been appointed, and this was the real ground for
the reversal. True, it was said that an examination of a third
party could not be had after the appointment of a receiver; but
this must be regarded as obiter.”

And the appointment of a temporary receiver of a foreign
corporation merely to prevent waste pending a suit by a stock-
holder against a corporation and some of its officers, does not
prevent a judgment creditor of such corporation from institut-
ing and carrying on supplementary proceedings for the exam-
ination of a third person, where the title to the corporate prop-
erty did not pass to the temporary receiver and he was only
72 SUPPLEMENTARY PROCEEDIN GS

authorized to take temporary possession of the assets of the
corporation. Howell v. German Theater, Inc., 64 Mise. 110,
117 Supp. 1124.

(6) Right to Order—Effect of Pendency of Action or Other
Legal Proceeding

It was held in two special term decisions that a judgment
creditor does not waive his right to obtain an order for the
examination of a third party by reason of the fact that he has
instituted and there is now pending a judgment creditor’s ac-
tion against the third party and others to set aside the convey-
ance of certain properties made by the judgment debtor to him, .-
as the two remedies are concurrent.

Albright, Matter of, 55 Misc. 324, 105 Supp. 486; Bachiller
De Ponce De Leon, Matter of, 103 St. Rep. 242, 69 Supp. 242.

And in a very early case in this State this same rule was laid
down.

Lockwood v. Worstell, 15 Abb. Pr. 430 (note).

But later, the Appellate Division held that a third party
order will not be granted where the judgment creditor has
brought and there is still pending and contested an action
against the grantee (the proposed third party) to set aside a
conveyance by the judgment debtor to the third party, since
the property in question cannot be reached in supplementary
proceedings while the action to set aside the conveyance is
pending.

Lowther v. Lowther, 110 App. Div. 122, 97 Supp. 5, 19
Ann. Cas. 165.

The fact that after the institution of supplementary proceed-
ings against a third party and while the same are pending an
attachment by another creditor has been issued against the
property of the judgment debtor as a nonresident, will not pre-
vent the continuation of such proceedings.

Hanson v. Tripler, 1 Code Rep. N. S. 154, 5 Super. Ct. Rep.
(8 Sandf.) 733.
REMEDIES AVAILABLE 73

A person who has been subpened to testify as a witness in
supplementary proceedings, cannot be examined as a third
party, under Sec. 2441 of the Code, until after his examination
as such witness.

Steinmann v. Hosier, 139 Supp. 863, 3 Civ. Pro. Rep. N.S.
22.

(7) Before Return of Execution—Effect of Subsequent
Return

The fact that after the institution of third party proceedings
against a person alleged to be indebted to the judgment debtor,
which proceedings were instituted before return of execution,
that execution has been actually subsequently returned, is no
ground for vacation of the order for the examination, since, in
order to warrant vacation of such order it is necessary to show
that since it was granted something has occurred which changes
the rights of the parties in requiring an order different than
that allowed, or which would call for another kind of disposition
of the matter finally. In the absence of a showing that the
execution has been returned wholly satisfied, the third party
proceedings should continue.

Lingsweiler v. Lingswetler, 18 Civ. Pro. Rep. 81, 57 Super.
Ct. Rep. (25 J. & S.) 895, 9 Supp. 305.

(8) Necessity of Payment of Witness Fees

A person upon whom a third party order in supplementary
proceedings is served is not entitled to a witness fee, but must
attend without the same. :

Heckman v. Bach, 20 Abb. N. C. 401; Depue, Matter of,
185 N. Y. 60; Howe v. Stuart, 68 Mise. 352, 123 Supp. 971.

This is on the ground that there is nothing in the sections
of the Code of Civil Procedure applicable requiring payment
of such witness fees.

Heckman v. Bach, 20 Abb. N. C. 101.
74 SUPPLEMENTARY PROCEEDINGS

(E) Warrant for Arrest of Judgment Debtor

(1) Statute

The provisions of the statute authorizing the issuance of a
warrant for the arrest of a judgment debtor, instead of the
usual order for his examination, is found in Sec. 2437 of the
Code. It provides: “Upon proof entitling a judgment credi-
tor to an order, under either of the last two sections; and also
proof, by affidavit, to the satisfaction of the judge, that there
is danger that the judgment debtor will leave the State, or con-
ceal himself, and that there is reason to believe that he has
property, which he unjustly refuses to apply to the payment of
the judgment; the judge may, instead of making an order, issue
a warrant under his hand, reciting the facts and requiring the
sheriff of any county, where the judgment debtor may be found,
to arrest him, and bring him before the same judge, or before
another judge, if the case is one where the warrant must be
returnable to another judge.”

Section 24388 of the Code, a new provision, also provides that
if the above mentioned facts as to danger of the judgment
debtor leaving the State, or concealing himself, when there is
reason to believe that he has property unjustly withheld from
application upon the execution, appear after the granting of
an order for his examination in supplementary proceedings,
and before the close of such examination, the judge may issue
a warrant for the arrest of the judgment debtor as prescribed
by the preceeding section.

Section 2439 provides that such warrant of arrest may be
vacated or modified as prescribed in the preceding section 2483,
relating to the vacation of orders in supplementary proceedings
generally.

By See. 2440 of the Code, provision is made for the giving
of a bond by the judgment debtor, to secure his continued pres-
ence in the State, where it appears to the judge, from the judg-
ment debtor’s examination or other proof, that there is danger
REMEDIES AVAILABLE 15

that he will leave the State or conceal himself, and that he has
property, which he has unjustly refused to apply to the satis-
faction of the judgment. This undertaking is to provide that
the judgment debtor will, from time to time, as the judge di-
rects, attend before the judge or referee, appointed to take his
examination, and that he will not, until discharged from ar-
rest, dispose of any of his property not exempt in supplement-
ary proceedings. And there is a further provision that if he
fail to comply with the order requiring such undertaking, that
he must forthwith, by warrant, be committed to prison until
the close of the examination, or the giving of the required un-
dertaking.

It is provided in Sec. 2453 of the Code that when the sheriff
arrests a judgment debtor by virtue of this warrant, he must
deliver to him a copy of the warrant and of the affidavit upon
which it was granted.

(2) To Whom Applicable
Tn view of the provisions of Sec. 2548, subd. 3, Code of Civil
Procedure, authorizing supplementary proceedings against a
nonresident judgment debtor, upon proof that such nonresi-
dent judgment debtor has property in the state and is about to
leave the same, a warrant of arrest may issue against him,
Denning v. Schieffelin, 26 St. Rep. 96, 7 Supp. 98.

(3) Independent Proceeding

A warrant for the arrest of a judgment debtor under Sec.
2437, Code of Civil Procedure, issued on the ground of danger
that he would leave the state, is a proceeding entirely separate
from the original order for the examination of the judgment
debtor, and the fact that the latter has been vacated does not
affect the warrant of arrest, as the proceedings are entirely in-
dependent of each other.

Frost v. Craig, 18 Civ. Pro. Rep. 296, 16 Daly, 107, 30
St. Rep. 848, 9 Supp. 528.

Further consideration of this subject is given in the subse-
quent chapters 9 and 11.
CHAPTER IV

ON WHAT JUDGMENTS, ORDERS, ETC. PROOEEDINGS LIE

(A) Statutes, Etc., 76.
(B) In General, 78.
(1) Misnomer of Judgment Debtor, 78.
(2) Effect of Pendency of Appeal from Judgment, 79.
(3) Limitations, 80.
(4) Irregular Judgments, 82.
(5) Upon Judgments Taken after Dissolution of Corporate Debtor,
82.
(6) Paid Judgments—Reservation of Rights, 83.
(7) Effect of Receivership of Judgment Debtor, 83.
(8) Effect of Pendency of Action to Make Judgment Lien on
Realty, 83.
(9) Judgments Discharged by Bankruptcy or Insolvency Pro-
ceedings, 84.
(10) Suspension During Imprisonment of Judgment Debtor, 84.
(C) Amount, 85.
(D) Judgment by Confession, 87.
(E) Personal Service or Appearance, 87,
(F) Upon Substituted Service, 88,
(G) Judgments for Costs, 88.
(H) On Orders, 89.
(I) On Taxes, 90.
(J) Fine in United States Courts, 91.
(K) Judgments for Alimony, 91.
(L) Judgments against Associations, 91.
(M) On Foreign Judgments, 92.

(A) Statutes, Etc.

The provision of Sec. 2458 of the Code setting forth what
judgments supplementary proceedings are available upon, pro-
vides that the same must have been rendered for a sum not less
than $25, either upon the judgment debtor’s appearance; the
personal service of the summons upon him, or substituted serv-
ice of the summons in accordance with section 486 of the Code.

76
ON WHAT JUDGMENTS PROCEEDINGS LIE 77

Section 436, mentioned above, provides for the service, pur-
suant to an order under the preceeding section, where personal
service cannot be made upon the defendant, by leaving the sum-
mons with a person of proper age, or if such person cannot be
found, by affixing the same to the outer door of the defendant’s
place of business or residence, and by depositing another copy
thereof, inclosed in a postpaid wrapper addressed to the de-
fendant at his place of business or residence, in the post office
at the place where he resides or has his place of business. Pro-
vision is further made, where proof by affidavit is made that no
such residence can be found, for service of the summons in
such manner as the court may direct.

Under Sec. 2435 of the Code these proceedings are also
available to collect moneys under an order as well as judgment.
While this later provision is in the section of the Code provid-
ing only for examination after return of execution, it would
naturally seem that it also applies to orders issued before re-
turn of execution and third party orders.

This is borne out by Sec. 2432 of the Code providing that the
party to whom costs are awarded in a special proceeding shall
be entitled to the same remedies under the Statute authorizing
supplementary proceedings, as near as may be, as a judgment
creditor.

It has been held, however, that an order cannot be granted
for the examination of a husband in supplementary proceed-
ings before the return of execution on an order awarding his
wife alimony pending an action by him for divorce, by which
it was required that he pay to the wife the sum of $5.00 per
week alimony, as there is nothing in Sec. 2436 of the Code
providing for supplementary proceedings upon orders, that
right being granted only in Sec. 2435 authorizing supplemen-
tary proceedings after the return of execution.

Ostrom v. Ostrom, 38 Mise. 232, 77 Supp. 594.

As will appear later, the proceedings are also available to
enforce orders granting costs in other cases; to enforce at-
78 SUPPLEMENTARY PROCEEDINGS

torney’s liens; certain taxes; certain fines imposed in United
States Courts, ete.

(B) In General

(1) Misnomer of Judgment Debtor

Where the real name of a judgment debtor is unknown the
proceedings may be instituted against him under a fictitious
Christian name, judgment having been recovered against him
under that name.

Smith & Co. v. Josephson, 56 Mise. 120, 107 Supp. 221;
Minsky v. Stransky, 141 St. Rep. 220, 107 Supp. 220; Simon
v. Underwood, 61 Misc. 369, 115 Supp. 65, 1 Civ. Pro. Rep.
N.S. 186.

And it has been held that it is not fatal to the examination
of a judgment debtor in supplementary proceedings that his
name therein is given as fictitious, if there is added a descrip-
tion identifying the person intended. As soon as the true name
of the judgment debtor is known, however, such supplementary
proceedings must be amended to set forth such true name.

Simon v. Underwood, 61 Misc. 369, 115 Supp. 65, 1 Civ.
Pro. Rep. N. 8. 186.

This holding is based upon Sec. 451, Code of Civil Procedure,
providing that where the plaintiff is ignorant of the name or
any part of the name of the defendant, he may designate that
defendant in the summons; and in any other process or pro-
ceeding in the action, by a fictitious name, or upon as much
of his name as is known, adding a description identifying the
person intended.

This rule has been applied so as to authorize supplementary
proceedings against a judgment debtor upon a judgment
against him, although his true Christian name is unknown. [f,
however, the parties agree on the true name, an order may be
granted providing that the proceedings be deemed amended
ON WHAT JUDGMENTS PROCEEDINGS LIE 79

and that all subsequent proceedings be taken under the true
name. Minsky v. Stransky, 141 St. Rep. 220, 107 Supp. 220.

So, supplementary proceedings may be instituted upon a
judgment rendered against the judgment debtor in the name
of Aldhouse although he claimed his right name was Oldhouse,
where it appears that he was known by both names interchange-
ably, through his own use of both forms of spelling.

People ex rel. Aldhouse v. McCarthy, 41 Misc. 429, 84 Supp.
1062.

Likewise, the fact that a judgment debtor, whose given name
was “Maryian” was sued by the name of “Mike” is not fatal to
the maintenance of supplementary proceedings on the judgment
rendered in the latter name, where he was known by both names
and gave his name as “Mike” to the judgment creditor and to
the person who served the order for his examination in supple-
mentary proceedings, since under Sec. 721 of the Code, it is
provided that any judgment of a Court of Record shall not be
impaired or affected for a mistake in the name of a party, and
See. 728 authorizes the court to amend any process by cor-
recting a mistake in the name of a party.

Korpolinski, Matter of, 84 Misc. 96, 146 Supp. 859.

But it has been held that supplementary proceedings will not
lie upon a judgment obtained by default in a justice’s court,
where the defendant was sued by a wrong name, and the jus-
tice, without jurisdiction, amended the summons so as to give
the defendant’s true name, and the judgment debtor need not
appear as directed in the order.

McGill v. Weil, 19 Civ. Pro. Rep. 48, 10 Supp. 246.

(2) Effect of Pendency of Appeal from Judgment

The fact that an appeal has been taken from the judgment
upon which supplementary proceedings are based but no stay
of proceedings obtained, does not operate to stay such supple-
mentary proceedings, and the mere fact that the judgment
80 SUPPLEMENTARY PROCEEDINGS

debtor served a notice of argument of the appeal has no effect
upon the supplementary proceedings.
Arnoux v. Homans, 832 How. Pr. 382.

(3) Limitations

The requirement that supplementary proceedings must be
instituted within ten years after return of the execution by
See. 2435 of the Code, is not applicable to proceedings before
return of execution, and in aid thereof under Sec. 2436, and
an order for such examination may be granted after the expira-
tion of such ten years, especially where a second execution has
been issued and returned unsatisfied under Sec. 1377.

Press Publishing Co. v. McGill, 170 St. Rep. 177, 186 Supp.
177.

Under Sec. 2435, providing that supplementary proceedings
may be instituted at any time within ten years after the return
of an execution unsatisfied, supplementary proceedings may be
maintained on a judgment rendered in a justice’s court at any
time within such 10 years, as the section of the Code men-
tioned must be held to apply to such a judgment.

Green v. Hauser, 18 Civ. Pro. Rep. 354, 31 St. Rep. 17, 9
Supp. 660; Bolt v. Hauser, 10 Supp. 397, 19 Civ. Pro. Rep.
7. Affirmed 11 Supp. 366, 19 Civ. Pro. Rep. 210, 33 St. Rep.
343.

The provisons of Sec. 2435, Code of Civil Procedure au-
thorizing supplementary proceedings any time within 10 years
from return of an execution on a judgment unsatisfied refers
to the return of the first execution issued on the judgment, and
the 10 years runs from that date.

Baumler v. Ackerman, 63 Hun, 40, 43 St. Rep. 87, 17 Supp.
436.

Supplementary proceedings must be instituted within 10
years from the return of an execution unsatisfied, although the
right to institute such proceedings accrued before the enact-
ON WHAT JUDGMENTS PROCEEDINGS LIE 81

ment of our present Code of Civil Procedure limiting such
remedy to 10 years.

Conyngham v. Duffy, 125 N. Y. 200, 34 St. Rep. 736.

While Sec. 2435 of the Code, provides that an order for the
examination of a judgment debtor may be granted any time
within ten years from the date of the return of the execution,
yet, in case of the issuance of execution by permission of the
court the ten-year period runs from that day, and in that case
the right to this remedy is not restricted to the period within
ten years from the issuance and return of execution in the
nsual way.

Buck v. MacDonald, 107 Misc. 338, 177 Supp. 684.

Supplementary proceedings will not lie when more than 10
years have expired since the rendition of the judgment, and
this notwithstanding the fact that an execution was issued on
such judgment within 10 years after the granting of an order
for the examination of the judgment debtor, since under Sec.
1251, Code of Civil Procedure, the lien of the judgment upon
the defendant’s real estate and chattels real ceased after 10
years and the execution was not effective to reach the debtor’s
property so as to exhaust the legal remedy.

Importers and Trader’s National Bank of New York v.
Quackenbush, 143 N. Y. 567, 62 St. Rep. 781, 1 Ann. Cas.
20.

The provision in Sec. 2435, Code of Civil Procedure that
supplementary proceedings may be instituted at any time with-
in 10 years from the return of an execution bars the institu-
tion of third party proceedings to reach personalty of a judg-
ment debtor in the hands of a third person.

Peck v. Disken, 41 Mise. 473, 84 Supp. 1094.

And third party order proceedings cannot be instituted when
more than ten years have elapsed since the issuance and return
unsatisfied of an execution, notwithstanding that Sec. 2441,
Code of Civil Procedure authorizing third party proceedings,

does not contain the 10 year limitation as does Sec. 2435 pro-
Garnishee—6.
82 SUPPLEMENTARY PROCEEDINGS

viding for the examination of the judgment debtor himself,
since Sec. 388, Code of Civil Procedure requires an action, the
limitation of which is not specifically prescribed, to be com-
menced within ten years after it accrues, and Sec. 414, subd.
4, Code of Civil Procedure, provides that the word “action”
shall be construed, when necessary, so as to include special pro-
ceedings.

Drake v. Barry, 73 Misc. 391, 131 Supp. 39.

The fact that a judgment debtor has been adjudicated a bank-
rupt does not operate to stay the institution of supplementary
proceedings, so as to suspend the running of the statute of limi-
tations against a judgment creditor’s right to maintain supple-
mentary proceedings.

Cleveland v. Johnson, 5 Misc. 484, 26 Supp. 734.

(4) Irregular Judgments

Supplementary proceedings will not lie on an irregular
judgment, since an execution cannot issue thereon.

Simon v. Underwood, 61 Misc. 369, 115 Supp. 65, 1 Civ.
Pro. Rep. N. 8. 186.

But, the objection that the judgment upon which sup-
plementary proceedings are based was not properly entered
is waived by the judgment debtor having submitted to examina-
tion and the same having been completed without any objec-
tion on his part.

Mennen Chemical Co. v. Dressner, 53 Mise. 370, 104 Supp.
749,

(5) Upon Judgment Taken after Dissolution of Corporate
Debtor

Supplementary proceedings ~ ill not lie against a third party
upon a judgment obtained against a corporation after its dis-
ON WHAT JUDGMENTS PROCEEDINGS LIE 838

solution in the state of its incorporation. Since, such judg-
ment was a nullity and of no effect whatsoever.
Stewart, Matter of, 39 Misc. 275, 79 Supp. 525.

(6) Paid Judgments—Reservation of Rights

The fact that a judgment has been paid by a person liable
as surety, where it was expressly understood at the time of
such payment that the judgment should remain in full force
as to the other judgment debtor, is not a bar to the institution
of supplementary proceedings against the latter.

National Bank of Port Jervis v. Hansee, 15 Abb. N. C. 488.

(7) Effect of Receivership of Judgment Debtor

Supplementary proceedings may not be instituted upon a
judgment, where a receiver has been appointed for the judg:
ment debtor after the rendition of such judgment and before
the institution of supplementary proceedings, unless permis-
sion of the court so to do has been obtained.

Moore v. Taylor, 2 How. Pr. N. 8. 3438.

(8) Effect of Pendency of Action to Make Judgment Eien
on Realty

The fact that a judgment creditor is prosecuting an action
to make his judgment a lien upon real estate in which the
judgment debtor has an equitable interest, is not ground for
staying the further prosecution of supplementary proceedings
during the pendency of such action, as the judgment creditor
may prosecute either or both until satisfaction of his judg-
ment, in the absence of any plea of abuse against which the
judgment debtor requires protection.

Gates v. Young, 17 Week. Dig. 551.
84 SUPPLEMENTARY PROCEEDINGS

(9) Judgments Discharged by Bankruptcy or Insolvency
Proceedings

Supplementary proceedings will not lie upon a judgment
discharged in composition proceedings in bankruptcy, not-
withstanding that the court had previously refused to grant
the judgment debtor a discharge because of fraud, and the
fact that the bankrupt failed to avail himself of Sec. 1268, Code
of Civil Procedure (now Sec. 150, Debtor and Creditor Law)
providing that a bankrupt may make a motion within two years
for his discharge from a judgment rendered against him does
not affect the rule.

‘Leo.v. Joseph, 56 Hun, 644, 9 Supp. 612.

While it is a general rule that on a motion to vacate sup-
plementary proceedings on the ground that the judgment has
been discharged in insolvency proceedings the court will not
decide upon the validity of the discharge, yet where it is a
question of whether the particular judgment in question was
discharged the court may properly determine that question and
obviate the necessity of an action on the judgment to deter-
mine that. same.

Gardner v. Lay, 2 Daly, 118.

(10) Supension During Imprisonment of Judgment Debtor

Supplementary proceedings cannot be instituted against a
judgment debtor who is being imprisoned under an execution
against his person issued in the action in which the sup-
plementary proceedings are sought, since all other remedies
against a judgment debtor are suspended while the imprison-
ment continues, Furthermore, where the judgment was
rendered against two members of a partnership upon a firm
debt the arrest under a body execution in the action of one of
the judgment debtors also precludes the maintenance of sup-
plementary procedings against the other judgment debtor who
was not arrested, and the latter cannot even be examined as
ON WHAT JUDGMENTS PROCEEDINGS LIE 85

to his individual property, as the extent of the latter cannot
be determined until after the partnership assets have been ex-
hausted or shown to be insufficient.

Everall vy. Stevens, 158 App. Div. 723, 143 Supp. 874.

(C) Amount

Inasmuch as supplementary proceedings are of statutory
origin, the court has only such jurisdiction as is conferred by
the statute creating the remedy, and to authorize a judgment
creditor to institute such proceedings the judgment must be
for a sum not less than that named in the statute.

Mede v. Meyer, 55 Misc. 621, 105 Supp. 957.

It is the general rule that the judgment must have been
originally for $25.00 or over, exclusive of costs, but, as will
appear, there are some exceptions.

And this rule that these proceedings are not available under
a judgment for less than $25.00, exclusive of costs, applies
to judgments recovered in the Municipal Court of the City
of Rochester (Now City Court of Rochester).

Mason v. Hackett, 35 Hun, 238.

Thus, supplementary proceedings will not lie upon a judg-
ment for $20.00 damages and $7.85 costs, amounting in all: to
$27.85 recovered in the Municipal Court of the City of
Rochester and transcript thereof filed in the county clerk’s
office, since such judgment is not a lien upon real estate under
the Code.

Mason v. Hackett, 35 Hun, 238.

Such is the rule also as to judgments recovered in the Muni-
cipal Court of the City of Syracuse.

Andrews v. Mastin, 22 Misc, 263, 49 Supp. 1118.

Supplementary proceedings will not lie upon a judgment
rendered in the City Court of the City of Poughkeepsie for.
the sum of $22.64, damages and $4.75 costs, amounting in all
to $27.39, since judgment, under Sec. 3043 of the Code, ap-
56 SUPPLEMENTARY PROCEEDINGS

plicable to City Courts by Law 1902, Chap. 35, is not a lien on
real estate.

Milan v. Kerlanksy, 87 Mise. 15, 147 Supp. 1048.

However, under New York Municipal Court Act Sec. 263,
providing that except as otherwise prescribed, a judgment for
$25.00 or more docketed in a county clerk’s office shall be a
charge upon the debtor’s real property and chattels real, it has
been held that such proceedings will lie on a judgment for
$25 including costs as the omission of the words “exclusive
of costs” clearly indicates that the judgment referred to in the
Act is the total judgment rendered, whether made up in part
of costs or not.

Mede v. Meyer, 55 Mise. 621, 105 Supp. 957.

Supplementary proceedings will lie upon a judgment under
which there is due interest and disbursements although the
principal sum due upon such judgment has been paid, since
as long as any part of the execution remains unsatisfied, the
judgment creditor is entitled to an order requiring the debtor
to appear and answer respecting his property.

Johnson v. Tuttle, 17 Abb. Pr. 315.

It is sufficient to warrant the granting of an order for the
examination of a judgment debtor in supplementary proceed-
ings if any sum whatsoever is shown to be unpaid upon the
judgment, and the order for such examination will not be
vacated on the ground of payment, where the proof as to the
latter rests, in part, on the right to offset a claim existing in
favor of the judgment debtor against the judgment creditor,
who was assignee of the original plaintiff. The remedy of the
judgment debtor is to make a motion to have the judgment de-
clared satisfied.

Austin v. Byrnes, 54 Super. Ct. Rep. (22 J. & S.) 552, 12
Civ. Pro. Rep. 332, 8 St. Rep. 88.

Where the affidavit shows that the judgment upon which
supplementary proceedings are sought to be institutetd was for
a named amount, exceeding $25.00, it will be presumed that
ON WHAT JUDGMENTS PROCEEDINGS LIE 87

it was for that amount, exclusive of costs, especially where a
recovery of the sum named would not have entitled the plain-
tiff to any costs under the statute.

Whitlock’s Case, 1 Abb. Pr. 320.

Where a judgment upon which a transcript is filed in the
county clerk’s office shows the docketing of a judgment for a
sum larger than $25.00 and the ordinary costs in a Justice’s
Court, it will be presumed that such judgment was for an
amount exceeding $25.00, exclusive of costs.

People ex rel. Mace v. Oliver, 66 Barb. 570.

Supplementary proceedings will not lie upon a Justice’s
judgment for less than $25.00 exclusive of costs, since under
Section 3043 of the Code of Civil Procedure, such a judg-
ment is not a lien upon real estate, and under sections 2432,
2435 and 2436 of the Code it is required that the execution
preliminary to the institution of supplementary proceedings
must have been issued against property, and “property” in
these sections must include realty as well as personalty.

Mede v. Meyer, 55 Misc. 621, 105 Supp. 957.

(D) Judgment by Confession

Tt follows as of course, that these proceedings are available
upon judgments entered on confession, as it must be held
that such judgments are rendered upon the appearance of the
judgment debtor.

(E) Personal Service or Appearance

The provisions of Sec. 2458 of the Code, providing that the
judgment upon which supplementary proceedings may be in-
stituted must have been rendered upon the judgment debtor’s
appearance or by personal service of the summons upon him,
does not preclude supplementary proceedings upon a judgment
entered upon a recognizance in the City of New York entered
88 SUPPLEMENTARY PROCEEDINGS

as an order of forfeiture pursuant to the terms of such reogni-
zance.

People v. Cowan, 146 N. Y. 348, 69 St. Rep. 185.

The word “appearance” mentioned in Sec. 2458 of the Code
is not to be given a restrictive meaning, but means the volun-
tary submission to the jurisdiction in whatever form mani-
fested, and not the mere narrow and technical meaning, well
enough in its place, indicated in Sec. 421.

People v. Cowan, 146 N. Y. 848, 69 St. Rep. 185.

It is sufficient appearance to warrant supplementary proceed-
ings within the contemplation of Sec. 2458, Code of Civil Pro-
cedure, when a summons in proper form, signed by the plain-
tiff or his attorney, has been served upon the defendant, and
supplementary proceedings may be instituted upon a Judgment
solely for costs obtained by the defendant against the plaintiff
after the service of such summons.

Davis v. Jones, 8 Civ. Pro. Rep. 43.

(F) Upon Substituted Service

Supplementary proceedings will lie upon a judgment re-
covered in the Municipal Court of the City of New York on
substituted service in the manner provided by Sec. 23 of the
“Municipal Court Act, and a transcript thereon docketed in the
county clerk’s office, since, under Sec. 2458 of the Code it is
provided that supplementary proceedings may be maintained
when the summons was served by substituted service in ac-
cordance with Sec. 436 of the Code, which latter is, in all
practical respects, similar to Sec. 23 Municipal Court Act.

Cotton, Matter of, 55 Misc. 321, 105 Supp. 347.

(G) Judgments for Costs

In addition to costs imposed in special proceedings men-
tioned in Sec. 2432 of the Code, heretofore referred to, sup-
ON WHAT JUDGMENTS PROCEEDINGS LIE 89

plementary proceedings may also be instituted on judgments
for costs in other cases.

Thus, it has been held that supplementary proceedings may
be instituted upon a judgment solely for costs against the
plaintiff in the action in which such judgment was obtained.

Davis v. Jones, 8 Civ. Pro. Rep. 48; Lederer v. Ehrenfeld,
49 How. Pr. 403; Watson v. FitzSimmons, 12 Super. Ct. Rep.
(5 Duer) 629; Burke v. Burke, 27 Misc. 684, 58 Supp. 676.

And this also applies to third party orders.

Davis v. Jones, 8 Civ. Pro. Rep. 43.

And the objection that there was no appearance on the part
of the judgment debtor, is not’ available, since appearance is
predicable of every party to an action who submits himself
to the jurisdiction of the court whether plaintiff or defendant,
and the plaintiff does this by commencing his action.

Davis v. Herrig, 65 How. Pr. 290.

(H) On Orders

Supplementary proceedings will lie upon an order directing
the purchaser at a sale in foreclosure to pay a specified sum as
the damages resulting from his failure to complete the same, as
such order is to be regarded as a judgment of the court within
the meaning and purport of the statute authorizing sup-
plementary proceedings.

Lydecker v. Smith, 44 Hun, 454.

Supplementary proceedings will not lie on an order for
support of the wife and children pending an action for divorce
or separation, as Sec. 779, Code of Civil Procedure authorizing
an execution for the enforcement of an order directing the pay-
ment of “costs of a motion or any other sum of money,” docs
not authorize an execution to enforce the order in question, and
hence an order for examination in supplementary proceedings
will not be granted.

Weber v. Weber, 93 App. Div. 149, 87 Supp. 519.
90 SUPPLEMENTARY PROCEEDINGS

Supplementary proceedings will not lie, under See, 2432 of
the Code of Civil Procedure, providing that the party to whom
costs ure awarded in a special proceeding shall be entitled to
the same remedy, and that the party taxed shall be decmed a
judgment debtor, where, upon an appeal from an order denying
a bill for particulars in an action, the same was reversed on
appeal with costs of $35.09, since the provisions of the Codec
in question give the remedy of supplementary proceedings to
a creditor for costs on a final order in special proceedings, but
not on costs interposed in an interlocutory order of this nature.

Stoddard, Matter of, 128 App. Div. 759, 118 Supp. 157.

But it has been held in Matter of Sirrett, 25 Misc. 89, 54
Supp. 666, that motion costs may be made a basis for the in-
stitution of supplementary proceedings under Sec. 2455 of the
Code, although Sec. 779, provides that such costs shall be
satisfied by execution only out of personalty. This decision,
however, was disapproved in Matter of Stoddard, previously
referred to

(1) On Taxes

Supplementary proceedings to collect an unpaid tax, au-
thorized by Sec. 299, Tax Law, should be, and are dependent
upon a tax against a resident taxpayer. Such proceedings will
not lie against a foreign corporation.

Maltbie, Matter of v. Lobsitz Mills Co., 223 N. Y. 227.

While supplementary proceedings may be instituted to col-
lect a tax against a corporation under the circumstances pro-
vided by Sec. 299 Tax Law, yet, in order to justify an order
therefor there must be a strict compliance with such statute,
and an order requiring a corporation to appear and be exumined
under oath concerning its invested capital is unauthorized
and will be set aside as not in compliance with the Code pro-
visions.

Malthie, Matter of v. Lobsitz Mills Co., 92% N. Y. 227,
ON WHAT JUDGMENTS PROCEEDINGS LIE 91

(J) Fine in United States Courts

It would appear that supplementary proceedings lie for the
collection of a fine imposed in the United States District or
Circuit Court under 3 U. S. Compiled Statutes 1916, Sec.
1540 (R. S. Sec. 916), providing that the party recovering a
judgment in any common-law cause in either of such courts.
shall be entitled to similar remedies upon the same, by execu-
tion or otherwise, to reach the property of the judgment debtor.
as are now provided in like causes by the laws of the state in
which such court is held, and such courts may, by general
rules, adopt such state laws, and it is shown that the court in
which such fine was imposed has adopted such a rule.

Berkman v. New York Produce Exchange Bank, 101 Mise.

252, 167 Supp. 441.

(K) Judgments for Alimony

Third party proceediugs may be instituted upon a judgment
recovered for alimony.

Bucki v. Bucki, 26 Misc. 69, 56 Supp. 439.

Supplementary proceedings will lie upon a judgment entered
upon motion in a separation action for accrued alimony, since
such a judgment was proper and the contention cannot be made
that such judgment was not rendered upon the judgment
debtor’s appearance or service of the summons, within the
meaning of Sec. 2458 of the Code, as the judgment in reality
was upon the service of the summons and complaint in the
original action, and therefore, there was a strict compliance

with such section.
Donovan, Matter of, 159 App. Div. 228, 144 Supp. 280.

(L) Judgments against Associations

Supplementary proceedings may be instituted upon a judg-
ment recovered against a joint stock association, and an officer
92 SUPPLEMENTARY PROCEEDINGS

thereof, or any other person having property of the association
in his hands, may be examined as a third party.

Courtois v. Harrison, 12 How. Pr. 359, 1 Hilt. 109, 3 Abb.
Pr. 96.

(M) On Foreign Judgments

Supplementary proceedings cannot be instituted upon a
foreign judgment or a judgment in rem. In order to warrant
such proceedings the judgment must be one by which the per-
son of the judgment debtor is bound.

Maltbie, Matter of v. Lobsitz Mills Co., 223 N. Y. 227.
CHAPTER V

WHO MAY INSTITUTE PROCEEDINGS

{A) Judgment Creditors, 93.

(B) Assignees of Judgment, 94.

(C) Executors and Administrators, 95.

(D) Attorneys Having Lien on Judgment, 96.
(E) Receivers and Assignees for Creditors, 97.

(A) Judgment Creditors

Sec. 2485 of the Code provides that the creditor under a
judgment or order, is, upon proof of the facts, entitled to an
order for the examination of the judgment debtor.

These proceedings, however, are not, according to the
decisions, confined to creditors in the usual sense, but ate
available to others acquiring rights under judgments. The
consideration of these different cases follows.

Supplementary proceedings are not available to a judgment
creditor who has proved his claim against the judgment debtor
in general assignment proceedings, as he thereby elected to
join in the assignment and must abide by such election. He
may, however, have an order to examine the judgment debtor
as to property acquired by him subsequent to the assignment.

Wilson Bros. Woodenware & Toy Co. v. Daggett, 9 Civ.
Pro. Rep. 408.

A judgment creditor cannot institute third party proceedings
against himself as executor, for while, for many purposes, a
person individually and the same person in a representative
capacity will be considered different legal persons, yet it is
impossible for a party to sue himself or enjoin himself, no

93
94 SUPPLEMENTARY PROCEEDINGS

matter in what capacity the proceeding is instituted or
defended.

Invingston, Matter of, 27 Hun, 607.

Supplementary proceedings may be instituted by the judg-
ment creditor upon a judgment against a beneficiary under a
will, and the executor thereunder may be examined therein as.
a third party.

King v. Burnett, 102 Misc. 161, 168 Supp. 405,

(B) Assignees of Judgment

Supplementary proceedings are available to an assignee of
a judgment, and he may proceed in the same manner as the
judgment creditor might have before the assignment.

Seeley, Matter of v. Connors, 109 App. Div. 279, 95 Supp.
1109; American Fidelity Co., Matter of, 122 App. Div. 93,
106 Supp. 7388; Frederick v. Decker, 18 How. Pr. 96; Ross v.
Clussman, 5 Super. Ct. Rep. (3 Sandf.) 676; Crill v. Korn-
meyer, 56 How. Pr. 276; Kemp v. Gartenberg, 93 Misc. 318,
156 Supp. 883.

Where an assignee of a judgment seeks to institute supple-
mentary proceedings upon the judgment he must show in his
affidavit that the judgment has not been paid and that he has.
the right to proceed upon the judgment for its collection.

Frederick v. Decker, 18 How. Pr. 96.

And the assignee may carry on supplementary proceedings.
in the name of the plaintiff of record.

Ross vy. Clussman, 5 Super. Ct. Rep. (3 Sandf.) 676; Crill
v. Kornmeyer, 56 How. Pr. 276.

But the affidavit of the attorney making the application must
show affirmatively that the judgment has been assigned, and it
must also appear therein that the attorney was authorized by
the assignee to institute the proceedings.

Kemp v. Gartenberg, 93 Misc. 318, 156 Supp. 883.

And these proceedings may be instituted by the assignee
WHO MAY INSTITUTE PROCEEDINGS 95

of a judgment, although the judgment was assigned to him
after the execution was returned unsatisfied.

Orr’s Case, 2 Abb. Pr. 457.

A judgment debtor cannot prevent the institution of sup-
plementary proceedings on a judgment against him which has
been assigned to a surety company which was also lable on the
claim, upon the ground that at the time the bond upon which
the claim was based was executed there was an understanding
and agreement with the agent of the surety company, that such
judgment debtor should not be liable to the surety company
for any amount which it should become chargeable with on
account of the bond, especially where the making of the agree-
ment was vigorously disputed by the surety company, and
also for the reason that such separate agreement, if made,
might be void as against public policy.

American Fidelity Co., Matter of, 122 App. Div. 93, 106
Supp. 738.

(C) Executors and Administrators

Supplementary proceedings may be instituted by the re-
presentatives of a deceased judgment creditor without reviv-
ing the action.

Pardee v. Tilton, 58 How. Pr. 476; Walker v. Donovan, 6
Daly, 552, 53 How. Pr. 3; Collier v. De Revere, 7 Hun, 61.

And it is not necessary that the death of the judgment credi-
tor or the appointment of the personal representative should
be made to appear by affidavit, but any evidence thereof satis-
factory to the judge is sufficient.

Collier v. De Revere, 7 Hun, 61.

So, supplementary proceedings are available to the personal
representative of a deceased judgment creditor where the execu-
tion was issued during the lifetime of the latter and returned
unsatisfied, and they present proof that letters testamentary
96 SUPPLEMENTARY PROCEEDINGS

or of administration have been issued to them, and it is not
necessary that the action in which such proceedings are taken
he revived and continued in their name.

Walker v. Donovan, 6 Daly, 552, 53 How. Pr. 3.

The death of a judgment creditor operates to terminate the
authority of the attorney who obtained the judgment, and he
cannot institute supplementary proceedings upon the judgment,
but the same must be taken upon direction of the personal re-
presentatives or successors in interest of the deceased judg-
ment creditor, and this rule applies although the attorney in
question makes an affidavit claiming to own one-half of the
judgment, and to represent the widow and children of the
deceased judgment creditor, and this although he produces on
the argument of the motion to vacate the supplementary pro-
ceedings a letter from the public administrator stating that
the latter has applied for letters upon the estate and directing
him to hold any property of the judgment creditor in his pos-
session.

Amore v. La Mothe, 5 Abb. N. OC. 146.

(D) Attorneys Having Lien on Judgment

An attorney having a lien for services upon a judgment for
costs may institute proceedings upon the judgment to enforce
such lien.

Russell v. Somerville, 4 N. Y. Law Bull. 8; Merchant v.
Sessions, 5 Civ. Pro. Rep. 24; Moore v. Taylor, 2 How. Pr.
N.S. 348.

In order that an attorney may institute supplementary pro-
ceedings upon a judgment on which he has a lien where a re-
ceiver has been appointed of the property of the judgment
debtor, he must show, in his affidavit, all the facts in relation
to his status and also that he has obtained leave of the court
to institute the proceedings.

Moore v. Taylor, 2 How. Pr. N.S. 343.
WHO MAY INSTITUTE PROCEEDINGS 97

Supplementary proceedings may be instituted upon a judg-
ment on which an attorney has a lien for his costs and fees, and
this although it appears that said judgment creditor has made
a general assignment for the benefit of his creditors, since the
attorney is not attempting to collect the judgment generally but
only to enforce his lien for costs and fees.

Merchants v. Sessions, 5 Civ. Pro. Rep. 24.

(E) Receivers and Assignees for Creditors

A receiver, to whom a judgment has passed, may institute
supplementary proceedings upon the judgment, but before so
doing must obtain leave of court.

Moore v. Laylor, 2 How. Pr. N.S. 348,

Garnishee—7,
(A)
(B)

(C)
(D)

(E)

CHAPTER VI

AGAINST WHOM PROCEEDINGS LIE

Extent of Application, 98.
Individuals, 99.
(1) In General, 99.
(2) Effect of Death of Judgment Debtor, 100.
Infants, 100.
Representatives, 100. :
(1) Attorneys in Fact—Lloyd’s Policy, 100.
(2) Executors and Administrators, 101.
(3) Assignees and Receivers, 102.
Domestic Corporations, 102.
Foreign Corporations, 102.
Partnerships, 103.
Joint Stock Associations, 103.
Foreign Consul, 104.
Third Persons, 104.
(1) Statute, 104.
(2) Executors and Administrators, 104.
(3) Public Fiscal Officers, 105.

(K) Effect of Death of Judgment Debtor, 106.

(L)

Supplementary proceedings are available not only against
judgment debtors generally, but also against debtors under

Effect of Dissolution of Corporate Debtor, 106.

(A) Extent of Application

orders.

The sections of the Code applicable vary in their terms in
describing those against whom these proceedings are available.
Thus, in Sec. 2436, providing for examination before return
of execution, it is stated that the judgment creditor is entitled
to an order requiring the judgment debtor to attend and be
examined concerning his property. Sec. 2435 provides that the
creditor under a judgment or order, is entitled to an order re-

98
AGAINST WHOM PROCEEDINGS LIE 99

quiring the debtor under the judgment or order, to attend and
be examined as to his property. Sec. 2441, providing for the
examination of third persons, only mentions the judgment
debtor, without specifying the person indebted under an order
or otherwise.

However, these proceedings have been held available, not
only against judgment debtors and those indebted under orders
in individual capacities, but they have been held applicable,
in some instances, against those succeeding judgment debtors
as executors, administrators, receivers, assignees for creditors,
ete. ; joint stock associations; corporations, ete.

(B) Individuals

(1) In General

Supplementary proceedings may be instituted against each
of the judgment debtors, and it is not necessary that only one
order be granted, although where this is possible it is probably
the better practice.

First National Bank of Rome v. Dering, 8 Week. Dig. 261.

Supplementary proceedings lie against a sheriff, who is a
judgment debtor.

Potts v. Davidson, 1 How. Pr. N. S. 216.

The fact that a judgment debtor has made a general assign-
ment for the benefit of creditors does not bar the institution of
supplementary proceedings, and does not prevent his examina-
tion therein.

Rutaced Co., Matter of, 137 App. Div. 716, 122 Supp. 454.

It was held in Snell v. Paul, 20 How. Pr. 97 that an order
for the examination of a judgment debtor in supplementary
proceedings, based upon a judgment obtained prior to his dis-
charge from his debts under the Two-Third Act will be set
aside upon application, and it was held that the judgment
creditor could not show that he was not included in the schedule
100 SUPPLEMENTARY PROCEEDINGS

of debts, received no notice of application, and did not receive
any dividend from the insolvent’s estate.

(2) Effect of Death of Judgment Debtor

Where, after the institution of supplementary proceedings
and pending the examination of the judgment debtor, but be-
fore the appointment of a receiver, he was granted an order
allowing him to come in and defend the action and directing
that the judgment, supplementary proceedings and injunction
stand as security, and pending the trial of such action the judg-
ment debtor died and the action was continued against his ad-
ministrator and resulted in a judgment in favor of the judg-
ment creditor, a surrogate’s court has no jurisdiction to grant
an order directing the application of moneys due upon a judg-
ment upon a claim of the judgment debtor upon which judg-
ment was recovered after his death, since, while undoubtedly
a lien upon such claim was acquired by the institution of sup-
plementary proceedings, yet its enforcement must be sought
in the supreme court in which the judgment creditor’s judg-
ment was recovered.

Stewart, Matter of, 8 Civ. Pro. Rep. 354.

(C) Infants

Supplementary proceedings may be instituted against an
infant judgment debtor.
Lederer vy. Ehrenfeld, 49 How. Pr. 403.

(D) Representatives
(1) Attorneys in Fact—Lloyd’s Policy

These proceedings cannot be maintained upon a judgment
on a Lloyd’s insurance policy against defendant as attorney
in fact for several individuals as underwriters.

Kriegman v. Dumphy, 66 Misc. 221, 122 Supp. 1116.
AGAINST WHOM PROCEEDINGS LIE, 101

(2) Executors and Administrators

Supplementary proceedings will not lie against an adminis-
trator or executor upon a judgment recovered against him in a
representative capacity, since thereby one judgment creditor
could obtain a preference over other creditors of the estate,
which is not allowed.

Collins v. Beebe, 54 Hun, 318, 27 St. Rep. 4, 7 Supp. 442;
Sortorellt v. Hzagni, 64 Misc. 115, 118 Supp. 46.

A further reason for this rule is stated in Collins v. Beebe,
cited above, as follows:

“But a still more substantial obstacle stood in the way of
the right of the plaintiff to examine the judgment debtors or
any other person having property belonging or indebted to
the estate. And that arises out of the fact that the defendants
were sued as executors, and a judgment has been recovered
against them alone in that capacity. It was not attended with
the ordinary right of the plaintiff to issue an execution upon
it, but its object was to secure the legal existence of a disputed
demand. . . . Upon recovery of the judgment no right was
vested in the plaintiff to issue an execution, or in any manner
to interfere with the property of the testator’s estate. But by
Section 1825 of the Code the Surrogate was authorized, upon
notice to the executors, to permit an execution to be issued
upon the judgment. Such an application was made and his
consent was secured for the issuing of the execution.

But neither this section of the Code, nor any other, sathosived
the plaintiff to proceed further than could be done under the
authority in this manner obtained from the Surrogate.

No authority has been provided for proceeding otherwise in
the way of sequestrating or appropriating the property of the
estate to the payment of the judgment, and the fact that the
law has made no provision for the judgment creditor taking
proceedings upon the judgment, or the execution, beyond the
power to-levy upon and sell the property of the estate, is a
102 SUPPLEMENTARY PROCEEDINGS

circumstance supporting the inference that it was not intended
that the plaintiff should possess any additional authority be-
yond that which was given in this manner.”

(8) Assignees and Receivers

Supplementary proceedings will lie upon a judgment ob-
tained against an assignee for the benefit of creditors, but in
order to authorize the institution thereof, it must be clearly
shown that the execution directed the sheriff to satisfy the
judgment out of the trust property held by the assignee, as
provided in Sec. 1871, Code of Civil Procedure.

Felt v. Dorr, 29 Hun, 14.

In an early case, it was held that a receiver of a judgment
debter cannot be examined in third party proceedings as to
property of the judgment debtor in his hands.

Fitchburgh Nat. Bank v. Bushwick Chemical Works, 18
Civ. Pro. Rep. 155.

(E) Domestic Corporations

Supplementary proceedings may now be instituted against
domestic corporations, this remedy being extended to them by
the 1908 amendment of Sec. 2463 of the Code.

Boucker Contracting Co., Matter of v. Callahan Contract-
ing Co., 218 N. Y. 321;Groshut v. Kinetophate Corp., 93 Mise.
558, 157 Supp. 312; Rabbe v. Astor Trust Co., 61 Misc. 650,
114 Supp. 131, 1 Civ. Pro. Rep. N. S. 122.

A receiver, however, cannot be appointed in such supple-
mentary proceedings against a domestic corporation.

Boucker Contracting Co., Matter of v. Callahan Contract-
ing Co., 218 N. Y. 321.

(F) Foreign Corporations

In view of Sec. 2444 of the Code of Civil Procedure pro-
viding that a corporation must attend and be examined under
AGAINST WHOM PROCEEDINGS LIE 103

oath by an officer thereof, and Sec. 2452 providing for service
on a corporation, it must be held that supplementary proceed-
ings will lie against a foreign corporation against which se-
questration proceedings cannot be instituted under Sec. 1784,
Code of Civil Procedure.

Mayer v. Consolidated Ice Co., 182 App. Div. 265, 116
Supp. 906.

And such proceedings may be instituted against a foreign
corporation having no agent and doing no business in this state
and a receiver of its property may be appointed here.

Logan v. McCall Publishing Co., 140 N. Y. 447, 55 St.
Rep. 794, 23 Civ. Pro. Rep. 246.

(G) Partnerships

Supplementary proceedings will lie against a partner not
served with summons, where the action against him and his
copartner was upon a partnership obligation and the judg-
ment was entered thereon against both parties jointly, thereby
binding the individual property of the partner served only,
and the execution was issued against the joint property of both
defendants and returned unsatisfied, as the judgment creditor
has sufficiently exhausted the remedy at law upon that judg-
ment, to entitle him to proceed with proceedings in search for
joint property.

Perkins v. Kendall, 3 Civ. Pro. Rep. 240.

(H) Joint Stock Associations

Supplementary proceedings may be instituted upon a judg-
ment recovered against a joint stock association, and an officer
thereof, or any other person having property of the association
in his hands, may be examined as a third party.

Courtois v. Harrison, 12 How. Pr. 359, 1 Hilt. 109, 3 Abb.
Pr. 96.

But these proceedings cannot be instituted against an in-
104 SUPPLEMENTARY PROCEEDINGS

corporated joint stock company where the action was brought
upon a check given on its bank account against three individu-
also with the title “trustees” following their names, since such
a judgment is not against the society, as suit against the latter
must be brought against the president or treasurer as provided
by Sec. 1919 of the Code.

Burns v. Kane, 12 Civ. Pro. Rep. 86.

(1) Foreign Consul

Supplementary proceedings will not lie upon a judgment
against a foreign consul as the court has no jurisdiction over
him.

Griffin v. Dominques, 9 Super. Ct. Rep. (2 Duer) 656, 11
Leg. Obs. 285.

(J) Third Persons

(1) Statute

It is provided in Sec. 2441 of the Code that third party
order proceedings may be taken against any person or corpora-
tion having personal property of the judgment debtor exceeding
$10 in value, or indebted to him in the like amount.

Under Section 2461 of the Code, a third person indebted
to, or having porperty belonging to a debtor not summoned in
the action, jointly with the defendants summoned, or with any
one of them, may be examined as to such debt or property,
where the execution has been issued as prescribed in section
1934 or 1941.

(2) Executors and Administrators

Tt was held in an early case that the fact that supplementary
proceedings are not available upon a judgment against an ad-
ministrator or executor in his representative capacity, also
AGAINST WHOM PROCEEDINGS LIE 105

defeats the right to the examination of a third party claimed
to be indebted to the estate.

Collins v. Beebe, 54 Hun, 318, 27 St. Rep. 4, 7 Supp. 442.

Recently, however, it has been held that a third party order
may be granted for the examination of executors under a will
in which the judgment debtor is given a legacy or distributive
share of the estate, and the contention that Sec. 2441 of the
Code was not’ intended to apply to executors and administrators
but that the provisions of the Surrogate’s Court Act, are ex-
clusive, and that the judgment creditor must obtain his remedy
thereunder, is not tenable, since there does not seem to be, in
the latter provisions, any remedy afforded for the judgment
creditor situated as this one is, or any procedure to be followed
by a judgment creditor of the legatee. Moreover, there may be
great danger of collusion between a judgment debtor and the
executors or administrators of an estate to have the settle-
ment thereof unnecessary delayed and the rights of the credi-
tors of a beneficiary thereunder hindered and prejudiced.

King v. Burnett, 102 Misc. 161, 168 Supp. 405.

In the case last mentioned, Collins v. Beebe, is distinguished
on the ground that there the judgment creditor was a credi-
tor of the estate itself, instead of being a creditor merely of
a beneficiary thereunder, as in the instant case.

(3) Public Fiscal Officers

A third party order for the examination of a city official
will not be granted for the purpose of examining the latter
in reference to salary or moneys due an employee of the city,
as such course is against public policy and not countenanced by
the courts.

Waldman v. O’Donnell, 57 How. Pr. 215; Gray v. Ashley,
24 Mise. 396, 53 Supp. 547; Anonymous, 1 Code Rep. N. S.
211.

And it may be said generally that third party order proceed-
106 SUPPLEMENTARY PROCEEDINGS

ings cannot be instituted against a public disbursing officer
for the purpose of reaching salary due a judgment debtor.

Gray v. Ashley, 24 Misc. 396, 53 Supp. 547.

And the rule applies to a captain of police, holding moneys
which he had collected with the salary of other officers in his
precinct, merely as a matter of convenience and as their agent.

Gray v. Ashley, 24 Misc. 396, 53 Supp. 547.

So a third party order is not available to reach surplus mon-
eys of the judgment debtor arising on a foreclosure sale and de-
posited in the hands of the chamberlain or clerk of the City of
New York, as such clerk or chamberlain is an “officer of the
court,” and not a person or corporation within the meaning
of the Code provisions.

Anonymous, 1 Code Rep. N. S. 211.

In the case last cited, the court said that the proper remedy
was a motion or petition in the foreclosure suit.

(K) Effect of Death of Judgment Debtor

A third party order should not be granted for the examina-
tion of a person claimed to have property of the judgment
debtor where the latter is dead. This is on the ground that if
the judgment debtor is dead the judge cannot give notice to
him, and he has no authority to make his personal rep-
resentatives parties to the proceeding. Moreover, the prop-
erty sought to be discovered ceases to be the property of the
judgment debtor on his death.

Hazelwell v. Penman, 18 How. Pr. 114, 2 Abb. Pr. 230.

(L) Effect of Dissolution of Corporate Debtor

A third party order to examine a person as to property of a
dissolved foreign insurance corporation against which the
judgment creditor has obtained a judgment after the dissolu-
tion will not be granted as such corporation in reality has no

corporate existence.
Stewart, Matter of, 40 Misc. 32, 81 Supp. 209.
CHAPTER VII

REQUISITES AS TO EXECUTION

(A) Statute, 107.
(B) In General, 108.
(C) Form of Execution, 108.
(D) Limitations, 109.
(E) Effect of Countermand of Execution, 111.
(F) Effect of Issuance of Second Execution on Proceedings, 111,
(G) Effect of Removal of Judgment Debtor from County, 112.
{H) To What County Execution Issued, 112.
(1) To County where Place of Business, 112.
(2) To County of Debtor’s Residence, 113.
(3) County in Case of Nonresidence of State, 113.
(4) To County of Residence of Judge, 113.
{I) Return of Execution, 114.
(1) General Rule, 114.
(2) Speeific Instances, 115.
(3) Waiver of Defects in Return, 120.

(A) Statute

The conditions precedent to the granting of an order for the
examination of a judgment debtor or third person in respect to
execution as set forth in Sec. 2458 of the Code, are as follows:
The execution (meaning property execution) must have been
issued out of a court of record; and either:

1. To the sheriff of the county where the judgment debtor
has, at the time of the commencement of the special proceed-
ings, a place for the regular transaction of business in person;
or,

2. If the judgment debtor is then a resident of the state, to
the sheriff of the county where he resides; or,

3. If he is not then a resident of the state, to the sheriff of
the county where the judgment roll is filed unless the execu-

107
108 SUPPLEMENTARY PROCEEDINGS

tion was issued out of a court other than that in which the
judgment was rendered, and, in that case, to the sheriff of the
county where the transcript of the judgment is filed.

(B) In General

A judgment creditor must, in all cases, first issue an execu-
tion against the property of the judgment debtor, although it.
is not necessary that such execution be returned before the in-
stitution of such proceedings in certain instances set out in the
Code.

Sackett v. Newton, 10 How. Pr. 560; People ex rel, Wil-
lams v. Hulburt, 5 How. Pr. 446, 9 Leg. Obs. 245, 1 Code
Rep. N. S. 75.

And if the affidavit for an order in supplementary proceed-
ings fails to show such fact, no jurisdiction is conferred upon
the judge.

People ex rel. Williams v. Hulburt, 5 How. Pr. 446, 9 Leg.
Obs. 245, 1 Code Rep. N. S. 75.

And in order to warrant supplementary proceedings the
execution on which they are based must be enforceable gener-
ally against all the property of the judgment debtor, and they
will not lie upon the issuance of an execution after the revival
of the lien against specific real property described in a notice
under Sec. 1252 of the Code.

Belfer v. Ludlow, 144 App. Div. 746, 129 Supp. 626.

(C) Form of Execution

Where the execution was not tested in the name of the proper:
judge, supplementary procedings cannot be based thereon, and
the objection is available to a third person directed to deliver
over certain property to the receiver under Sec. 2447 Code of
Civil Procedure.

Shannon, Matter of v. Steger, 75 App. Div. 279, 78 Supp.
163.
REQUISITES AS TO EXECUTION 109

Where, upon docketing a judgment in the county clerk’s
office after filing transcript from an inferior court, the plain-
tiff’s attorney issued an execution in due form except that it
was not signed, indorsed, or issued by the county clerk as re-
quired by statute, such irregularity will not defeat supplemen-
tary proceedings upon the judgment, and a judgment debtor
may be punished for contempt in disobeying the order there-
for.

Bareither v. Brosche, 19 Civ. Pro. Rep. 446, 18 Supp. 561.

This decision was based upon Sec. 24, Code of Civil Pro-
cedure, providing that a writ or decision or other process duly
subscribed or indorsed by the attorney for the party, or the
person at whose instance it was issued, is not void, or voidable
by reason of any mistakes in the test or in the name of the
clerk.

Separate executions may be issued against each of the judg-
ment debtors under a judgment, and independent supplemen-
tary proceedings may be prosecuted against each of them.

First National Bank of Rome v. Dering, 8 Week. Dig. 261.

(D) Limitations

The period for instituting supplementary proceedings under
Sec. 2435 of the Code, is ten years from the return of an execu-
tion unsatisfied.

Conyngham v. Duffy, 125 N. Y. 200, 34 St. Rep. 736;
Importers & Traders’ Nat. Bank v. Quackenbush, 143 N. Y.
567, 62 St. Rep. 781, 1 Ann. Cas. 20; Peck v. Disken, 41 Mise.
473, 84 Supp. 1094.

It was contended in Importers’ and Traders’ Nat. Bank. v.
Quackenbush, cited above, that the ten year period ran from
the date of the issuance of the last execution, and, therefore,
where a second execution had been issued supplementary pro-
ceedings could be instituted at any time within ten years there-
from, but the court held that the statute would not bear that
110 SUPPLEMENTARY PROCEEDINGS

construction, and that the true rule was that the ten years must
be computed from the first execution. Otherwise the court
said, by the issuance of successive executions, supplementary
proceedings might be instituted indefinitely, even after the ex-
piration of the life of the judgment.

And this rule is applicable to a third party order as well as
to the order for the examination of the judgment debtor him-
self,

Peck v. Disken, 41 Mise. 473, 84 Supp. 1094; Drake v.
Barry, 73 Mise. 391, 131 Supp. 39.

But the rule that supplementary proceedings must be insti-
tuted within ten years after the return of an execution does
not apply where the proceedings are instituted before return
of execution, and in aid thereof, and the latter may be main-
tained more than ten years after the return of a prior execution
unsatisfied, since Sec. 2486, under which the latter proceedings
lie, does not, as does Sec. 2435 applicable to proceedings
after return of execution, provide for a ten-year limitation,
and especially in view of Sec. 1377, permitting a second execu-
tion at any time during the life of the judgment.

Press Publishing Co. v. McGill, 170 St. Rep. 177, 186 Supp.
177; Stevens Co. v. Maus, 155 App. Div. 249, 189 Supp. 1059.

Supplementary proceedings will not lie where the execu-
tion on which they are based was issued more than five years
after the entry of the judgment without leave of court.

Aultman & Taylor Co. v. Syme, 87 Hun, 295, 6 St. Rep.
311, 34 Supp. 379.

In that case last cited only one day over the 5 years had
elapsed, but the court held that the general rule must be ap-
plied.

Of course this rule is not applicable where execution was
issued under Sec. 1877 of the Code, providing:

1. Where an execution was issued thereupon, within five
years after the entry of the judgment, and has been returned
wholly or partly unsatisfied or unexecuted.
REQUISITES AS TO EXECUTION 111

2. Where an order is made by the court, granting leave to
issue the execution.

It was held in an old case that the fact that the execution
upon which suplementary proceedings are based was issued
more than 5 years after the judgment was rendered without
leave of the court is not available to the judgment debtor to
defeat the proceedings, but the remedy lies in a direct proceed-
ing to set aside the execution.

U.S. Land & Engineering Co. v. Pike, 2 N. Y. Law Bull.
ol.

In view of the preceding case in Hun, this decision must be
deemed overruled.

(E) Effect of Countermand of Execution

It has been held that the fact that the execution issued on
a judgment upon which supplementary proceedings were is-
sued, is thereafter countermanded cannot be raised in an action
brought by the receiver appointed therein to reach property of
the judgment debtor, and which receivership was extended
to cover the judgment sought to be thereby satisfied.

Palmer v. Colville, 63 Hun, 536, 45 St. Rep. 706, 18 Supp.
509.

(F) Effect of Issuance of Second Execution on Proceedings

The fact that the judgment creditor issues a second execu-
tion upon the judgment will not defeat or operate as a waiver
of the right to carry on such proceedings.

Lilliendhal v. Fellerman, 11 How. Pr. 528, 2 Abb. Pr. 155;
Sale v. Lawson, 6 Super. Ct. Rep. (4 Sandf.) 718; Farque-
harson v. Kimball, 18 How. Pr. 33, 9 Abb. Pr. 385 (note) ;
Smith v. Davis, 68 Hun, 100, 438 St. Rep. 504 17 Supp. 614.

And this is particularly so, where the receiver appointed in
the proceedings never took possession of the debtor’s property
or made any demand therefor, as the two remedies are con-
112 SUPPLEMENTARY PROCEEDINGS

current, both having the same object in view—the collection of
the judgment.

Smith v. Davis, 63 Hun, 100, 48 St. Rep. 504, 17 Supp.
614.

And it is not sufficient ground for the vacation of an order
in supplementary proceedings that after the return of execu-
tion unsatisfied, another execution was issued and levied on
personal property, unless it is clearly shown that such levy
will result in the satisfaction of the judgment.

Sale v. Lawson, 6 Super. Ct. (4 Sandf.) 718.

The rule that the fact that a second execution has been is-
sued and a levy made upon property of the judgment debtor
does not necessarily operate to prevent the institution of sup-
plementary ‘proceedings based on the return of the first execu-
tion was upheld in Farqueharson v. Kimball, 18 How. Pr.
33, 9 Abb. Pr. 885 (note). The court, after commenting
upon the fact that the levy under the second execution in that
case was not only insufficient to satisfy the debt, but that a suit
was actually pending against the sheriff who made the levy
to determine the question of title to the property itself.

(G) Effect of Removal of Judgment Debtor from County ,

Where, after the issuance and return unsatisfied of an ex-
eution by the sheriff of the county in which the judgment
debtor then resided the judgment debtor removes to another
county, supplementary proceedings may be instituted in such
other county without the issuance and return of a second ex-
ecution by the sheriff of the latter county.

Gould v. Moore, 51 How. Pr. 188.

(H) To What County Execution Issued

(1) To County Where Place of Business

A discussion of what constitutes a “Place of Business” ap-
REQUISITES AS TO EXECUTION 1138

pears under the next Chapter treating of County of Examina-
tion.

(2) To County of Debtor's Residence

It is a sufficient compliance with Sec. 2458, subd. 2, Code of
Civil Procedure, providing that an execution must be issued to
the county where the debtor resides, if the execution is issued
to the county where the debtor resided at the time of its issu-
ance. The judgment debtor cannot defeat these proceedings
by changing his place of residence after the issuing and return
of the execution.

Bingham v. Disbrow, 14 Abb. Pr. 251, 37 Barb. 24.

The question of what constitutes “Residence” is treated in
the chapter immediately following this.

(3) County in Case of Nonresidence in State

In case of a nonresident judgment debtor, Sec. 2458, subd.
3 of the Code directs that the execution must have been issued
to the county in which the judgment roll is filed, unless the
execution was issued out of a court other than that in which
the judgment was rendered, and, in that case, to the county
where the transcript is filed.

This provision needs no explanation as it is plain.

(4) To County of Residence of Judge

There is no jurisdiction on the part of a county judge to
grant an order for the examination of a third person in sup-
plementary proceedings upon a judgment recovered in the
supreme court, where the execution was issued to an adjoining
county, as such execution must have been issued to the county
of such county judge.

Terry v. Hultz, 8 Abb. N. S. 109; 89 How. Pr. 169.

Garnishee—8.
114 SUPPLEMENTARY PROCEEDINGS

(1) Return of Execution

(1) General Rule

It is stated as a general rule that the judgment debtor can-
not impeach the return of the sheriff in supplementary pro-
ceedings, but he must attack the same by a direct motion to set
it aside.

Methodist Book Concern & Co. v. Hudson, 1 How. Pr. N. 8.
517; Tyler v. Willis, 38 Barb. 327, 12 Abb. Pr. 465; Fenton
v. Flagg, 24 How. Pr. 499.

This rule, however, in view of the decisions, must be re-
garded as applicable only when the defects in the return are
not jurisdictional.

In Moyer v. Moyer, 7 App. Div. 523, 40 Supp. 258, the
court says: “Respondent makes the further objection that
we are concluded by the sherifi’s return upon the execution
upon the question whether the defendant had property liable
to sale upon execution, and that it must be presumed that the
sheriff did his duty, and if the sheriff made a false return the
defendant had his remedy. . . . Though the sheriff has
returned the execution unsatisfied, the record in this case dis-
closes that such return was false, and we are not concluded by
it. More than that, there is strong evidence in the record that
the return of this officer was for the purpose of exonerating
one of the defendants in the judgment, and collecting the debt
out of the other defendant, by the direction of the plaintiff’s
attorney, through the means of supplementary proceedings.
The court will not refuse justice to an appellant because it
may be technically barred by the mistaken or conclusive acts
of one of its officers.”

Again it is said that the good faith and validity of the return
unsatisfied of an execution by a sheriff cannot be raised upon
a motion to vacate supplementary proceedings based thereon,
and the court will not go behind the sheriff’s return.
REQUISITES AS TO EXECUTION 115

Eleventh Ward Bank v. Heather, 22 Misc. 87, 48 Supp. 449,
5 Ann. Cas. 80, 27 Civ. Pro. Rep. 90.

An order for the examination of a judgment debtor will not
be set aside for an irregular return of the execution, not ap-
parent on the face of the return, where the motion does not
demand the setting aside of such return.

High Rock Knitting Co. v. Bronner, 18 Mise. 631, 48 Supp.
684,

(2) Specific Instances

It must be deemed the established rule, that whenever an
execution has been regularly issued and returned unsatisfied,
the judgment creditor may institute supplementary proceed-
ings under the Code, without regard to the time during which
the execution was in the hands of the sheriff.

Engle v. Bonneau, 4 Super. Ct. Rep. (2 Sandf.) 678, 3
Code Rep. 205; Tyler v. Whitney, 12 Abb. Pr. 465; Livings-
ton v. Cleaveland, 5 How. Pr. 396.

It is not necessary that the sheriff should wait 60 days be-
fore returning an execution, and supplementary proceedings
may be instituted although the return was made by the sheriff
almost immediately after its receipt by him, and the fact that
the judgment creditor requested the sheriff to return such
execution will not defeat that right. The court will not go
behind the return except on a direct motion to set. it aside.

Sperling v. Levy, 10 Abb. Pr. 426, 1 Daly, 95; High Roch:
Knitting Co. v. Bronner, 18 Mise. 631, 48 Supp. 684; First
Nat. Bank of Rome v. Dering, 8 Week. Dig. 261; Forbes v.
Waller, 25 N. Y. 430, 25 How. Pr. 166.

And this is the case where the return was at the request of
the judgment creditor’s attorney, but there was no collusion
between such attorney and the sheriff or intentional omission
to enforce the execution.

High Rock Knitting Co. v. Bronner, 18 Misc. 631, 48 Supp.
684,
116 SUPPLEMENTARY PROCEEDINGS

So, it is not objectionable or ground for attack of an order
in supplementary proceedings that the attorney for the judg-
ment creditor told the sheriff that if he were satisfied there
was nothing from which he could realize on the execution to
return it unsatisfied, which the sheriff did.

First National Bank of Rome v. Dering, 8 Week. Dig. 261.

Again it is said, that where there is no collusion or fraud
shown, and no intent proven on the part of the plaintiff or his
attorney to prevent a levy on the property of the judgment
debtor, there is no law that requires the sheriff to keep an exe-
cution sixty days. He may do so, and if he can find property
he ought to make the amount out of the property, even if he
requires sixty days for that purpose; but where the sheriff
knows the debtor to have nothing, or where he has on previous
executions exhausted all the property of the debtor and where
he has returned such executions unsatisfied, it would be idle
to require him to retain such process in his hands for two
months for no other purpose than to prevent the judgment
creditor from resorting to other means for collecting his debt.

Tyler v. Willis, 33 Barb. 327, 12 Abb. Pr. 465.

. And in an old Chancery case it was held that in the absence
of an allegation of fraud or collusion between the judgment
creditor and the sheriff, the return of an execution unsatisfied
is sufficient to authorize the filing of a judgment creditor’s
action, notwithstanding the fact that the sheriff was told that
the judgment debtor had some interest in property which
might be sold on execution. In case an execution is improperly
returned unsatisfied by the sheriff where there was property
of the defendant sufficient to pay the judgment, the remedy of
the judgment debtor is to set aside the return or institute suit
against the sheriff.

Stoors v. Kelsey, 2 Paige, 418.

An order in supplementary proceedings directing the exam-
ination of a judgment debtor will not be set aside on the
ground of the improper return of the execution unsatisfied,
REQUISITES AS TO EXECUTION 117

where the fact appears that after the sheriff had advertised the
land for sale under an execution it became evident to the
judgment creditor that he would realize nothing because of in-
cumbrances, and that, at his request, the sheriff abandoned the
sale and returned the execution unsatisfied.

Maloney v. Klein, 116 App. Div. 790, 102 Supp. 43.

In the case last cited, the court stated that the judgment
creditor was not obliged to resort to a sale that would probably
only result in an expense to him, and further said that the
return of the sheriff, until impeached, was conclusive.

The court will not set aside the return of nulla bona as false,
as the sheriff must be regarded as having made it on his own
responsibility and will be held liable therefor if it is untrue.

Evans v. Parker, 20 Wend. 622.

The case last mentioned was cited with approval in Forbes
v. Waller, 25 N. Y. 480, where the court said at page 438:
“The court will not set aside or interfere with the return of an
execution unless there be collusion between the plaintiff and the
sheriff to the prejudice of the debtor.

But supplementary proceedings are not justified where: the
sheriff acts manifestly upon the procurement of the judgment
creditor or his attorney, and it appears that he made no effort
to find property before making such return.

Farqueharson v. Kimball, 18 How. Pr. 83, 9 Abb. Pr. 385
(note).

A dictum appears in another case that if there. was collusion
or fraud in making the return, or in omitting to levy upon
property, the court would take care that the proceedings were
not made an instrument to carry the fraud into effect.

Engle v. Bonneau, 4 Super. Ct. Rep. (2 Sandf.) 678, 3 Code
Rep. 205.

It is not a sufficient return of execution to justify the grant-
ing of an order for the examination of a judgment debtor where
the return endorsed upon the execution of the sheriff was as
follows:
118 SUPPLEMENTARY PROCEEDINGS

“In pursuance of the demand of plaintiff’s attorneys, I make
the following return to the within execution. I have collected
nothing under, and have not found any personal property out
of which the said execution, or any part of the same, can be
made; but I have thereunder levied upon the real estate men-
tioned in the annexed notice of sale, and have advertised the
same for sale as in said notice provided. I have found no
other property out of which to satisfy the same.”

Marx v. Spaulding, 35 Hun, 478, 8 Civ. Pro. Rep. 135, 16
Abb. N. C. 809. Affirmed in 99 N. Y. 675.

Supplementary proceedings are not justified where it ap-
pears that an execution was issued in 1847, but no return ap-
pears to have been made by the sheriff upon such execution,
and thereafter in 1861, a second execution was issued without
leave of court and returned unsatisfied, as the judgment credi-
tor should have shown either that the first execution had been
returned unsatisfied, or that the second execution had been
issued by leave of the court, in order to create a foundation for
supplementary proceedings.

Belknap v. Hasbrouck, 138 Abb. Pr. 418 (note).

Where proceedings are instituted under Sec. 2435, Code of
Civil Procedure, it is absolutely necessary as a condition pre-
cedent to the institution of the proceedings, that execution be
returned wholly or partly unsatisfied, and if such was not the
case, the appearance and submission to examination by the
judgment debtor under the order will not operate as a waiver
of his right to raise the objection.

Jennings v. Lancaster, 15 Misc. 444, 37 Supp. 196.

So an order for the examination of a judgment debtor in sup-
plementary proceedings will be set aside where it is clearly
established by the judgment debtor that the sheriff did not re-
turn the execution until several days after the order for such
examination was made.

Engle v. Bonneau, 4 Super. Ct. Rep. (2 Sandf.) 678, 8 Code
Rep. 205.
REQUISITES AS TO EXECUTION 119

It was held in Silverman v. Henant, 40 How. Pr. 88, a case
in the N. Y. Common Pleas decided November 1870, that
supplementary proceedings could not be based upon an execu-
tion returned by a marshal, since the statute (then 292, Code
of Procedure) required the return of an execution to be made
by the sheriff, although it was provided under laws 1865, that
the return of a marshal upon an execution should have the
same force and effect as the return of a sheriff to process issued
out of a court of record. .

Where it is established that the execution had been issued to
the sheriff and that the latter had endorsed thereon his certi-
ficate of nulla bona and delivered the execution to a clerk to be
filed in the county clerk’s office but the latter did not so file
it until about 2 hours after the granting of an order for the
examination of the judgment debtor in supplementary pro-
ceedings, the court will not set aside the latter order, as it will
not regard fractions of a day in judicial proceedings, unless
not to do so would create injustice.

Jones v. Porter, 6 How. Pr. 286.

It was stated, in this case, that the defect in question might
be cured by an order directing the filing of the execution with
the return endorsed thereon, nunc pro tune.

If an execution has been duly issued and returned by the
sheriff unsatisfied in whole or in part, and the judgment credi-
tor has in no wise interfered, the latter may safely act upon
the return of the sheriff to institute supplementary proceed-
ings upon his judgment, and the question whether there was
property which the sheriff ought to have taken and sold for
the purpose of satisfying his judgment in whole or in part,
cannot be raised by the judgment debtor.

Eleventh Ward Bank v. Heather, 22 Mise. 87, 48 Supp. 449,
27 Civ. Pro. Rep. 90, 5 Ann. Cas. 80.

A junior judgment creditor cannot attack the return to an
execution issued precedent to an order for the examination of
the common judgment debtor, at the instance of a senior judg-
120 SUPPLEMENTARY PROCEEDINGS

ment creditor, where the order obtained by the latter showed,
to the satisfaction of the court, that the execution had been
duly issued and returned unsatisfied, and it further appeared
that after the examination of the judgment debtor under such
order, property was disclosed applicable to the payment of the
judgment, and a receiver was appointed in the procecding
without objection by the judgment debtor.

Iisner, Matter of v. Toplitz, 177 N. Y. 559, aff’g 86 App.
Div. 1, 83 Supp. 423.

(8) Waiver of Defects in Return

The fact that there are defects in the return of the execu-
tion by the sheriff is waived by the appearance and submission
to examination by the judgment debtor and the appointment
of a receiver without his objection, especially when it appears
by his examination that he has not been prejudiced by the
defect in question.

Baker v. Herkimer, 48 Hun, 86, 6 St. Rep. 581, 24 Week.
Dig. 573.
CHAPTER VIII

COUNTY OF EXAMINATION

(A) Statutory Provision, 121,

(B) In General, 121.

(C) What Constitutes Residence, 122.

(D) What Constitutes Place for Transaction of Business, 123.
(E) County in Case of Nonresidence of State, 125.

(A) Statutory Provision

Under Sec. 2459 of the Code a judgment debtor or other
person, if a resident of the state, cannot be compelled to appear
for examination in any county except that in which he resides
or has an office for the regular transaction of business in per-
son.

(B) In General

A resident judgment debtor cannot be examined in any coun-
ty of the state, except that in which he resides or has a place
for the transaction of business.

Jurgenson v. Hamilton, 5 Abb. N. C. 149.

A judgment debtor may attack the order for his examina-
tion on the ground that he was not a resident of the county at
the time of the institution of such proceedings.

Bassett v. Wheeler, 84 N. Y. 466.

While an order must require the judgment debtor’s appear-
ance in the county to which execution has been issued and in
which the judgment debtor resides, as far as the jurisdiction
of a justice of the supreme court to make the order is con-

121
122 SUPPLEMENTARY PROCEEDINGS

cerned, he may make the order in any part of the state, irre-
spective of the county in which the judgment debtor resides.

Bingham v. Disbrow, 387 Barb. 24, 14 Abb. Pr. 251.

Where supplementary proceedings were instituted in that
part of Westchester County which was annexed to New York
City it is proper to transfer the same to the Second Depart-
ment, though the order for the examination did not direct it to
be returnable to the Second Department.

Conklin, Matter of, N. Y. Law Jour. Aug. 3, 1897, 57 Supp.
844,

And this rule is applicable to an order made by a judge of
the supreme court of Kings County directing the appearance
of a judgment debtor, a nonresident of the state, having a
place of business in New York City, to appear before a referee
in that city, where it was held that such order must provide
that the subsequent proceedings be before a judge of the su-
preme court of the first judicial district.

Browning v. Hayes, 41 Hun, 382, 1 St. Rep. 502, 11 Civ.
Pro. Rep. 223, 25 Week. Dig. 26.

(C) What Constitutes Residence

A judgment debtor may be examined in the county in which
it is shown that his family resided at his residence in such
county where he frequently visited them; was a regularly regis-
tered voter in that county for the last five years, and had voted
at general elections therein for two years within the period,
although he claimed to have become a permanent resident of
another county, and was engaged in business elsewhere.

Lewis v. Beach, 146 St. Rep. 200, 112 Supp. 200.

A judgment debtor having lodgings in the City of New
York, hired from month to month, and occupied by him for
three or four years, may be regarded as a resident of the city
of New York within the meaning of Sec. 2458 of the Code,
COUNTY OF EXAMINATION 123

so as to justify the institution of supplementary proceedings
within the county of New York, notwithstanding the fact that
his permanent residence is in Hamilton County.

Rose, Matter of, 87 App. Div. 240, 84 Supp. 276.

And supplementary proceedings may be instituted against
a judgment debtor in the county of his summer residence, al-
though his permanent residence is in another county.

Rowland, Matter of, 21 App. Div. 172, 47 Supp. 493.

The residence of a domestic corporation, within the meaning
of Sec. 2458 subd. 2 of the Code, must be deemed to be in the
county where its principal office or place of business is situated.

Groshut v. Kinetophote Corp., 93 Misc. 558, 157 Supp. 312.

(D) What Constitutes Place for Transaction of Business

In order to warrant the institution of supplementary pro-
ceedings against a nonresident of the county, it must be shown
that the judgment debtor has within the county an office for
the regular transaction of business in person, and it is not
sufficient that such business is transacted wholly through
agents.

Brown v. Gump, 59 How. Pr. 507.

Supplementary proceedings may be instituted against the
judgment debtor in the county in which he has a desk and part
of an office for the transaction of business where he usually is
for about an hour each day, although his principal business is
carried on in a city in another county in which he has offices
therefor.

McEwan v. Burgess, 15 Abb. Pr. 473.

So a person who has been for the past six weeks and still is
an agent for an insurance company having its office in New
York City, in which he has desk and chair room must be
deemed having an office for the regular transaction of business
in the county of New York, within the meaning of the stat-
ute.
124 SUPPLEMENTARY PROCEEDINGS

Batcheldor v. Nugent, 23 Civ. Pro. Rep. 178, 24 Supp. 828.

Supplementary proceedings may be instituted in the county
in which a school-teacher attends to her duties regularly, al-
though she resides in another county, as it must be held that
she has a place for the regular transaction of business in the
county in which she teaches, within the meaning of Sec. 2455
subd. 1 of the Code of Civil Procedure.

Burke v. Burke, 27 Misc. 684, 58 Supp. 676.

But a judgment debtor, residing in another county, does not
have a place of business in New York County within the con-
templation of the statute, where it is shown that he was a
weigher, attached to the N. Y. Custom House, having a place
of business for the deposit of government tools used by him,
and desk room, where he received orders and communications,
but that his general duties were performed upon the docks of
New York City wherever the discharged vessels might lie.

Belknap v. Hasbrouck, 18 Abb. Pr. 418 (note).

An order for the examination of an actor is unwarranted, on
the ground that he does not have a place for the regular trans-
action of busines in person, within the meaning of Sec. 2458,
where it appears that he played an engagement at a theater in
the county of New York, attending the theater only during the
evening preformance and two weekly matinees, but was never
at the theater during the usual hours of business, except during
the matinees mentioned; that the part played by him required
several changes of costume, and when not on the stage he was
in his dressing room changing for the next act; that by the
rules of the theater no person was admitted behind the scenes
or at the stage entrance during the preformance, and no per-
son could see him on business at the theater, and he had not
transacted any business at the theater.

De Angelle v. Dixey, 101 Misc. 606, 167 Supp. 663.

A third party having his place of business in a county other
than that in which the judgment was recovered may be ex-
COUNTY OF EXAMINATION 12

Or

amined in supplementary proceedings in the county in which
his place of business is.

Graves v. Scoville, 12 Civ. Pro. Rep. 165.

In the case last cited, the judgment was obtained in the old
City Court of Brooklyn and the question was as to whether
that court had power to send its process for service in another
county. The court held that it had such power.

(E) County in Case of Nonresidence of State

It is the rule that a nonresident of the state can only be
examined in supplementary proceedings in the county in
which the judgment roll was filed, but if he have a place of
business within the state he may be examined in the county in
which it is carried on, providing a transcript of the judgment
has been filed therein and execution issued thereon.

Anway v. David, 9 Hun, 296.

Further decisions upon what constitutes a place of business
within the meaning of the Statute are given in the next chapter
treating of affidavits,
CHAPTER IX

AFFIDAVIT FOR ORDER OR WARRANT—REQUISITES

(A) Requirements in General, 127.
(1) Alleging Facts Affirmatively, 127,
(2) How Proceedings Entitled, 127.
(3) By Whom Affidavit Made, 128.
(4) Affidavit by Attorney—Sufficiency, 128.
(5) Affidavit, by Agent—Sufficiency, 129.
(6) Allegation as to No Previous Application, 130.
(7) Effect of Mistakes or Falsity in Affidavit, 131.
(8) Allegations in Alternative, 131.
(9) Allegations as to Judgment, 132.
(10) Allegations as to Execution, 136.
(11) Allegations as to Judgment Debtor Having Property, 137.
(12) Allegations as to Residence, 137.
(13) Allegations as to Place of Business, 139.
(14) Insufficient Affidavit—Waiver by Appearance, 140.
(15) Where Application Made by Assignee of Judgment, 142.
(16) Where Application Made by Representative of Deceased
Judgment Creditor, 143.
(17) Where Application Made by Attorney to Enforce Lie, 144.
(B) Upon Application to Examine Judgment Debtor after Return of
Execution, 144.
(1) Statutory Provisions, 144.
(C) Upon Application for Order to Examine Judgment Debtor before
Return of Execution, 145.
(1) Statutory Provisions, 145.
(2) Sufficiency in General, 145.
(3) Alleging Demand, 146.
(4) Allegations on Information and Belief, 147.
(D) Upon Application for a Third Party Order, 148.
(1) Statutory Provisions, 148.
(2) Allegations as to Residence of Debtor, 149.
(3) Allegations as to Indebtedness or Property—Sufficiency, 149.
(4) Allegations on Information and Belief, 152.
(5) Allegations as to Execution, 154.
(6) Showing Authority of Deponent, 154.
(E) Upon Application for Warrant of Arrest Instead of Order, 154.
(1) Statutory Provision, 154.
(2) Sufficiency of Affidavit, 155.

126
AFFIDAVIT FOR ORDER—REQUISITES = 127

(A) Requirements in General

(1) Alleging Facts Affirmatively

It is a general rule that the affidavit for an order to examine
a judgment debtor in supplementary proceedings must atfirm-
atively set forth all the jurisdictional facts required by the
statute.

People ex rel. Williams v. Hulburt, 5 How. Pr. 446, 9 Leg.
Obs. 245, 1 Code Rep. N. S. 75.

But such affidavit need not allege that the judge or justice
before whom the judgment was rendered had jurisdiction, but
it is sufficient if it show the facts conferring jurisdiction and
that the judgment was correctly given.

Conway v. Hitchins, 9 Barb. 378.

(2) How Proceedings Entitled

Supplementary proceedings should not be entitled in the
action but as special proceedings.

Milliken v. Thomson, 54 Super. Ct. Rep. (22 J. & S.) 393,
8 St. Rep. 106, 12 Civ. Pro. Rep. 168.

The fact that an affidavit for an order to examine a judg-
ment debtor in supplementary proceedings is entitled in the
city court of New York, where said judgment was recovered,
but transcript was filed in Westchester County, where the
judgment debtor resided, and to which county execution was
issued and returned unsatisfied, is not fatal, and the county
judge of Westchester County may make the order for such
examination. At most, such defect in the title of the action
is not jurisdictional, and the judgment debtor cannot have it
vacated. ;

Lynch v. Riley, 22 Week. Dig. 357.

A motion by a junior judgment creditor to make supple-
mentary proceedings instituted by another judgment creditor,
128 SUPPLEMENTARY PROCEEDINGS

in which a receiver has been appointed, subordinate to his own
proceedings may be entitled in either action.

N.Y. Loan & Improvement Co..v. DeNavarro, 38 Misc. 436,
77 Supp. 1006, 11 Ann. Cas. 360.

(3) By Whom Affidavit Made

An affidavit for an order for the examination of a judgment
debtor or third person in supplementary proceedings may be
made by the judgment creditor, or his attorney or other agent
duly authorized to institute the proceedings, and who has knowl-
edge of the facts.

It is not absolutely necessary that the judgment creditor or
his attorney make the affidavit, but the same may be made by
a clerk in the office of the attorneys for the judgment creditor,
and the fact that the latter nowhere states the source of his
knowledge or information is not fatal if there are allegations
of positive fact or conclusion.

Bridges v. Koppelman, 63 Mise. 27, 117 Supp. 306.

(4) Affidavit by Attorney—Sufficiency

An affidavit for an order for the examination of a judgment
debtor in supplementary proceedings made by an “attorney as-
sociated with” the attorneys for the judgment creditor is un-
warranted, where there is no other proof of authority of the
person making the affidavit, and the fact that the judgment
creditor thereafter adopted the affidavit as being signed with
authority is ineffective to make the order valid.

Beardsley v. Stone Valley Distilling Co., 122 Supp. 686.

An order in supplementary proceedings is not justified upon
an affidavit made by an attorney stating that he is connected
with the office of the judgment creditor’s attorney, but does
not allege that he has authority to institute the proceedings,
and the moving papers were not signed or endorsed by the
AFFIDAVIT FOR ORDER—REQUISITES 129

judgment creditor, as there is no sufficient showing of authority
in the deponent. .

Title Guarantee & Trust Co. v. Brown, 136 App. Div. 843,
121 Supp. 891.

An affidavit by an attorney for the examination of a judg-
ment debtor in supplementary proceedings which does not show
that he is authorized to institute the proceedings in behalf of
the judgment creditor is not sufficient. And where the attorney
making the affidavit says that another person is the attorney
for the judgment creditor ‘and that the latter is authorized to
commence proceedings supplementary to execution, such afii-
davit will not sustain an order granted thereon.

Brown v. Walker, 54 Hun, 639, 28 St. Rep. 36, 8 Supp. 59.

But it was held in an early case decided in 1877, that it is
not necessary that the preliminary affidavit in proceedings to
examine the judgment debtor should show authority in the at-
torney to institute proceedings, but if the judge, to whom the
application for the order is made, has doubts of the attorney’s
authority to act, he may require proof thereof, but the order
should not be set aside for such failure to allege authority.

Kress v. Morehouse, 8 St. Rep. 858.

In view of later decisions this case is of doubtful authority,

The fact that an affidavit, upon which an order for the exam-
ination of a judgment debtor in supplementary proceedings
made by one of the attorneys for the judgment creditors, was
sworn to before the deposing attorney’s law partner is, at most,
an irregularity and is not an excuse for failure to obey the
order in question.

Fancher, Matter of, 58 Misc. 11, 110 Supp. 157.

(5) Affidavit by Agent—Sufficiency

An affidavit for an order in supplementary proceedings made
by a person stating that he is agent for the judgment creditor,
must set forth facts showing that he is authorized to institute

the proceedings.
Garnishee—9.
130 SUPPLEMENTARY PROCEEDINGS

Hawes v. Barr, 30 Super Ct. Rep. (7 Robt.) 452; Lindsay v.
Sherman, 5 How. Pr. 308, 1 Code Rep. N. 8. 25; Lyre, Matter
of v. Stubbert, 71 Misc. 147, 128 Supp. 4, 2 Civ. Pro. Rep. N.
S. 136.

Such an affidavit must show that the person making the same
has some connection with the case or that he is interested, or
is agent, or makes the affidavit at the request of, or procurement
of the judgment creditor or his attorney.

Lindsay v. Sherman, 5 How. Pr. 308, 1 Code Rep. N. S.
25.

And the mere statement that he is agent for the judgment
creditor is not sufficient, the nature of that agency must be set
forth.

Hawes v. Barr, 30 Super. Ct. Rep. (7 Robt.) 452.

And a judgment debtor will not be punished for contempt,
where the affidavit in support of the motion was made by the
managing clerk of the attorney for the judgment creditor, in-
stead of by the judgment creditor or his attorney, unless the
deponent’s authority is shown and the reason why it is not
made by the judgment creditor or his attorney is set forth.

Eyre, Matter of v. Stubbert, 71 Misc. 147, 128 Supp. 4, 2
Civ. Pro. Rep. N. 8. 136.

(6) Allegation as to No Previous Application

The question as to whether affidavits for orders in supple-
mentary proceedings must contain an allegation of no previous
application for the order desired has been made is covered by
Rule 25 of the General Rules of Practice, which is as follows:
Whenever application is made ex parte on affidavit to a Judge
or court for an order, the affidavit shall state whether any
previous application has been made for such order, and, if made
to what court or Judge, and what order or decision was made
thereon, and what new facts, if any, are claimed to be shown.
For failure to comply with this rule, any order made on such
AFFIDAVIT FOR ORDER—REQUISITES °131

application may be revoked or set aside. This rule shall apply
to proceedings supplementary to execution, and to every appli-
eation for an order or judgment made in any action or special
proceeding.

This renders nugatory the early decisions in this State hold-
ing that no such statement of no previous application was
required.

(7) Effect of Mistakes or Falsity in Affidavit

It is not fatal that the moving affidavit wrongly states the
date’ of issuing the execution, as that is not a jurisdictional
defect.

Batcheldor v. Nugent, 23 Civ. Pro. Rep. 178, 24 Supp. 828.

The fact that the affidavit for the examination of a judgment
debtor erroneously states the day upon which the judgment
was entered is not fatal, and the judgment debtor disobeying
such order cannot excuse his contempt by raising such objec-
tion.

Hatfield, Matter of, 17 App. Div. 430, 45 Supp. 270.

The question as to the truth of the affidavit on which an order
for the examination of a judgment debtor is granted should be
raised by motion to set aside the same, and cannot first be raised
in opposition to a motion to punish the judgment debtor for
contempt.

Hilton v. Patterson, 18 Abb. Pr. 245,

(8) Allegations in Alternative

Allegation of jurisdictional facts in the alternative is gen-
erally held bad and insufficient to warrant the granting of
orders for examination of a judgment debtor or third person.

Thus, an affidavit is fatally defective which states that the
judgment debtor is a resident of, or has an office for the regular
transaction of business in person in the county to which the
execution was issned, as such alternative provisions neither
allege one nor the other fact necessary to obtain the order.
132 SUPPLEMENTARY PROCEEDINGS

Arnot v. Wright, 55 Hun, 561, 29 St. Rep. 425, 9 une 15;
Zelie vy. Vroman, 22 Mise. 486, 50 Supp. 836.

Under Sec. 2458, Code of Civil Procedure providing that
the execution must have been issued to the sheriff of the county
where the judgment debtor has a place for the transaction of
business in person, it is not sufficient where the affidavit for
such an order states that an execution has been issued to the
county “where said judgment debtor has a place for the regu-
lar transaction of business, in person or by agent, as deponent
is informed and believes,” since such alternative allegations
are bad.

Bank of Port Jefferson v. Darling, 102 App. Div. 431, 92
Supp. 483.

(9) Allegations as to Judgment

The objection that an affidavit does not disclose in whose
favor the judgment was rendered, is unavailable, where it ap-
pears therein that such judgment was rendered against the
defendant and that there were but two parties to the suit.

Kress v. Morehouse, 8 St. Rep. 858.

It is not a fatal objection to an affidavit for an order in sup-
plementary proceedings that it states that the judgment was
rendered upon service of a summons upon substitution under
Sec. 2458, Code of Civil Procedure, when in fact it was made
under Sec. 436, relating to substituted service, which section
is mentioned in Sec. 2458.

Bridges v. Koppelman, 63 Mise. 27, 117 Supp. 306.

_An order for the examination of a judgment debtor will not
be vacated on appeal for insufficient moving papers, where, al-
though the affidavit is defective in that it does not state in what
county the action was brought and judgment entered, or the
judgment roll filed, as required by Sec. 2458 of the Code, the
order was granted upon the affidavit and the judgment roll and
the latter is not among the papers on appeal so that the court
AFFIDAVIT FOR ORDER—REQUISITES 133

cannot say that the facts omitted in the affidavit were not sup-
plied by the judgment roll.

Binghanton Trust Co. v. Grant, 65 App. Div. 178, 72 Supp.
580.

An affidavit for an order for the examination of a judgment
debtor which alleges that judgment was rendered and execution
issued out of the Supreme Court, State of New York, County
of New York, sufficiently shows the recovery of judgment and
execution issued by the clerk of the Supreme Court, and will
not be set aside on motion by the judgment debtor.

Sherl v. Kurzman, 60 Mise. 332, 113 Supp. 288.

A judgment upon which supplementary proceedings are
based is sufficiently described in the affidavit therefor, which
states that such judgment was recovered in the justice’s court
of the town of Middletown, before F. C. Vitt, Justice of the
Peace.

Kress v. Morehouse, 8 St. Rep. 858.

Where the affidavit upon which an order for the examination
of a judgment debtor is granted states that a judgment was
recovered in favor of the judgment creditor against “Ira Weed
and Mary Weed,” the proceedings cannot be sustained if the
records show that the judgment was docketed against “Ira
Weed and Mrs. Weed.”

Kennedy v. Weed, 10 Abb. Pr. 62.

It was previously held that it was not necessary to allege in
the affidavit for an order to examine a judgment debtor in
supplementary proceedings that judgment was obtained upon
the personal service of the summons on the judgment debtor, or
upon his appearance.

Sayer v. MacDonald, 2 How. Pr. N.S. 119; Polweill v.
Cambeis, 14 Week. Dig. 115; Diosey v. West, 1 N. Y. Law
Bull. 23.

The later cases generally say that such an affidavit must
affirmatively allege all the jurisdictional facts, and accordingly
184 SUPPLEMENTARY PROCEEDINGS

the cases last cited must be deemed overruled, although no case
on those precise facts has been found.

An affidavit for the examination of a judgment debtor in
supplementary proceedings based upon a judgment obtained
in one county and issuance of execution thereon to another
county, where the judgment debtor resided, is sufficient if it
state that the judgment roll was filed in the first-mentioned
county, and a transcript filed and the judgment docketed in
the second county before the execution was issued, since it will
be presumed that the judgment roll having been filed in the first-
mentioned county the clerk of that county did his duty and
docketed the judgment therein.

Sudlow v. Mead, 21 St. Rep. 485, 3 Supp. 321.

Where supplementary proceedings are based upon a judg-
ment obtained in the Municipal Court of New York City, a
transcript of which was filed and the judgment docketed with
the clerk of New York County, and a transcript of the latter
judgment was filed and judgment docketed with the clerk of
Queens County, an affidavit for the examination of the judgment
debtor in the latter county, is sufficient, which alleges that a
certified transcript was filed and the judgment duly docketed
by the clerk of Queens County, since the judgment cannot be
duly docketed by the clerk of Queens County, on a transcript
other than of the judgment docketed in New York County.

‘Stumpp, Matter of, 32 Misc. 41, 66 Supp. 172.

Where the judgment upon which supplementary proceedings
was based was obtained in the City Court of New York, it was
held, in an old case, that an affidavit for the order to examine
the judgment debtor need not state that such court, is a court
of record, since the Code supplies such proof.

Sayer v. MacDonald, 2 How. Pr. N.S. 119.

An affidavit for the examination of a judgment debtor in sup-
plementary proceedings is not objectionable as not properly de-
scribing the judgment, where the judgment in that case, being
originally $148.09 was reduced on a motion for re-taxation of
AFFIDAVIT FOR ORDER—REQUISITES = 135

costs to $121.09, but the judgment was not formally amended,
which after properly describing said judgment, stated that it
was for $121.09, as the latter sum was really the amount due
thereunder.

Seeley, Matter of v. Connors, 109 App. Div. 279, 95 Supp.
1109.

Where the judgment upon which supplementary proceedings
are based was recovered in a court of inferior jurisdiction the
necessary jurisdictional facts must be alleged, notwithstanding
the fact that a transcript is filed and the judgment docketed in
a court of record.

Hilbring v. Wisansky, 59 Misc. 149, 110 Supp. 184.

To justify the granting of an order for the examination of
a judgment debtor in supplementary proceedings the affidavit
must state that the judgment has been docketed and that the
transcript was filed before the execution was issued if the judg-
ment was rendered in a court not of record.

Hawes v. Barr, 30 Super. Ct. Rep. (7 Robt.) 452.

The affidavit for an order in supplementary proceedings
based on a judgment of an inferior court need not set forth the
jurisdictional facts in detail, but may state that the judgment
was “duly recovered,” as such allegation is deemed equivalent
to “duly given or made” permitted under Sec. 532, Code of
Civil Procedure.

Hottenroth, Matter of v. Flaherty, 61 Misc. 108, 112 Supp.
1111.

An affidavit upon a judgment obtained in justice’s court and
transcript filed in the county clerk’s office which states the re-
covery of such judgment and that plaintiff had caused a tran-
script to be filed and an execution to be issued which had been
returned partly unsatisfied, and which names the amount of the
judgment but does not state the amount remaining unsatisfied
is insufficient and an order based thereon will be vacated.

Douglass v. Mainzer, 40 Hun, 75.

In the case last cited the court held that the affidavit was not
136 SUPPLEMENTARY PROCEEDINGS

so defective as to constitute a jurisdictional defect, yet it was
such an irregularity as necessitated the vacation of the order.

(10) Allegations as to Execution

The affidavit on which an order for the examination of a
judgment debtor in supplementary proceedings is based, must
show that the execution on the judgment was returned within
the 10 years prescribed by Sec. 2435, Code of Civil Procedure.

McGuire v. Hudson, 41 St. Rep. 295, 16 Supp. 392.

But is is not necessary that the affidavit for an order to ex-
amine the judgment debtor in supplementary proceedings
should describe the execution returned unsatisfied as one
“against property” as that is presumed.

McArthur v. Lansburgh, 1 Code Rep. N. 8. 211.

An affidavit for an order to examine a judgment debtor,
which fails to state that an execution has been issued out of the
court to which judgment was transcripted, is fatally defective.

Roth v. Light, 169 St. Rep. 601, 135 PO 601; Simms v.
Frier, 2 N. Y. Law Bull. 97.

An affidavit for an order for the examination of a judgment
debtor before the return of execution is defective if it fail to
show that the execution was issued within the 5 years allowed
by See. 1375, Code of Civil Procedure, or if after the expira-
tion of 5 years, after an execution had been issued in that time,
or that the present execution was issued by leave of court un-
der See. 1377.

Hutson v. Weld, 38 Hun, 142.

In view of Sec. 3017, Code of Civil Procedure, providing
that a judgment rendered in a justice’s court and docketed in
the county clerk’s office upon filing a transcript, shall be deemed
a judgment of the county court, except that an execution can
be issued thereupon only by the county clerk, an affidavit which
states that the execution was issued out of the county court is
insufficient to confer jurisdiction upon the judge to grant an
AFFIDAVIT FOR ORDER—REQUISITES = 187

order for the examination of the judgment debtor in supple-
mentary proceedings, as such an execution is unauthorized.

Merritt v. Judd, 18 Civ. Pro. Rep. 159, 9 Supp. 491.

Where the affidavit for the examination of a judgment
debtor in supplementary proceedings states that judgment was
recovered on March 8, 1879, and that a transcript of it was
filed in the county clerk’s office; that an execution upon the
judgment against the property of the judgment debtor was
issued to the sheriff of the county of his residence, and that
such execution had been returned wholly unsatisfied, it is
sufficient to warrant the granting of an order, although it is
not stated when the execution was returned. It being the
duty of the sheriff to return the execution at the expiration of
60 days, he would be presumed to have done his duty and to
have returned the execution at that time.

Bean v. Tonnelle, 24 Hun, 353, 1 Civ. Pro. Rep. 38.

The requirement that an affidavit shall show that the execu-
tion was issued out of a court of record is sufficiently shown by
the allegation that judgment was rendered and perfected in the
supreme court, and that an execution against the property of the
judgment debtor was duly issued upon said judgment and de-
livered to the sheriff of the County of Oneida.

Joyce v. Spafard, 9 Civ. Pro. Rep. 342.

(11) Allegations as to Judgment Debtor Having Property

Tt is not necessary, in the affidavit for the examination of
the judgment debtor, to state that the latter has property. It
is sufficient if there be a statement that the execution has been
returned unsatisfied.

Hough v. Kohlin, 1 Code Rep. N. S. 232; Hatch v. Wey-
burn, 8 How. Pr. 163.

(12) Allegations as to Residence

It is necessary, under Subd. 2 Sec. 2458 of the Code, to set
138 SUPPLEMENTARY PROCEEDINGS

forth in the affidavit for the examination of a judgment debtor
in supplementary proceedings, the residence of the judgment
debtor at the time of the commencement of the procecdings.

Lawyers’ Tille Ins. Co. v. Stanton, 118 St. Rep. 468, 84
Supp. 468; Hatz v. Kosower, 63 Mise. 25, 117 Supp. 316.

And the judge acquires no jurisdiction to grant an order for
the examination of a judgment debtor in supplementary pro-
ceedings, upon an affidavit, stating among other facts, that an
execution was, “on the 19th day of October, 1908, duly issued
out of the Supreme Court which is a court of record, by the
clerk thereof, to the sheriff of the County of New York where
the judgment debtor at the time of the commencement of this
special proceeding then resided and still resides,” which afii-
davit was sworn to and the order granted thereon served on the
19th day of December, 1908, as such order does not show that
the judgment debtor resided in New York County at the time
of the commencement of the proceedings as required by Sec.
2435, Code of Civil Procedure.

Katz v. Kosower, 63 Misc. 25, 117 Supp. 316.

Other cases hold that the affidavit must show the residence
of the judgment debtor or his place of business on the day of
the making of the affidavit, and at the time when the execution
was issued.

Zelie v. Vroman, 22 Misc. 486, 50 Supp. 836; Franey v.
Smith, 88 Hun, 215, 68 St. Rep. 714, 34 Supp. 780.

Thus, an affidavit is insufficient as a basis for the examination
of a judgment debtor in supplementary proceedings, which
alleges that judgment was recovered and the judgment roll
filed and docketed in a county other than that in which the
application is made, that the transcript was filed in such other
county, and execution issued thereon to the sheriff of the last-
named county, where the judgment debtor then resided, since
there is no showing where the residence of the judgment debtor
was at the time the affidavit was made.

Franey v. Smith, 88 Hun, 215, 68 St. Rep. 714, 34 Supp.
780.
AFFIDAVIT FOR ORDER—REQUISITES 139

(13) Allegations as to Place of Business

Supplementary proceedings will not lie upon an affidavit
setting forth the recovery of a judgment against the judgment
debtor, and stating that execution was duly issued on the 14th
day of October, 1905, to the sheriff of New York County
“where such judgment debtor at the time had its office and
place for the transaction of its business, it being a domestic
corporation.” And also avers “that such corporation never
had any place of business outside of New York County, and
has none now,” as such allegations are insufficient to confer
jurisdiction upon the court. The allegation that on the 14th
day of October 1905, the judgment debtor had a place for the
transaction of business in New York County, does not show
that the time of the commencement of the proceedings, to wit,
‘October 26, 1908, the judgment debtor had a place for the
regular transaction of business in New York County.

Solomon v. Rosenfeld & Co., 148 St. Rep. 770, 114 Supp.
770, 1 Civ. Pro. Rep. N. 8. 4.

But it has been held sufficient to authorize the granting of
an order for the examination of a domestic corporation, where
the affidavit therefor alleges that execution was issued to the
sheriff of the county where the judgment debtor at the time of
the commencement of the proceedings, maintained an office for
the transaction of business, and such allegation is sufficient to
support the conclusion of the judge granting the order that the
judgment debtor, at the time specified, maintained a “place
for the regular transaction of business in person,” as the term
“office” implies a place for the regular transaction of business,
within the meaning of the statute.

Bradley v. Certigue Mining & Dredging Co., 93 Misc. 519,
157 Supp. 275.

An affidavit for the examination of a domestic corporation in
supplementary proceedings is sufficient to warrant the granting
of an order therefur, where it is alleged therein that the execu-
140 SUPPLEMENTARY PROCEEDINGS

tion was issued to the sheriff of the county where such judg-
ment debtor than had its principal place of business and at the
time of the commencement of the proceedings still has its
principal place of business, since there ‘is sufficient compliance
with Sec. 2458, Subd. 2, providing that if the judgment debtor
is then a resident of the state, execution must have been issued
to the sheriff of the county where he resides, “the residence”
of a domestic corporation being in the county where its prin-
cipal office or place of business is situated.

Groshut v. Kinetophote Corp., 93 Mise. 558, 157 Supp. 312.

A judgment debtor cannot obtain the vacation of an order
for his examination in supplementary proceedings upon the
ground that the affidavit supporting the same does not show
that he had a place for the regular transaction of business in
person within the county at the time when the order was ob-
tained, where it appears from his own affidavit on motion to
vacate such order, that he has been for the past six weeks, and
still is an agent for an insurance company having an affice in
the City of New York and that he has desk and chair room in
that office, since such facts clearly establish an office for the
regular transaction of business within the meaning of the stat-
ute.

Batcheldor v. Nugent, 23 Civ. Pro. Rep. 178, 24 Supp. 828.

(14) Insufficient Affidavit—Waiver by Appearance

If the facts set forth in the affidavit of the judgment creditor
are such as not to make a case within the statute, the judge ac-
quires no jurisdiction over the subject-matter and the voluntary
appearance and submission to the examination by the judgment
debtor confers no jurisdiction.

Sackett v. Newton, 10 How. Pr. 560; Zelie v. Vroman, 29
Mise. 486, 50 Supp. 836; Jennings v. Lancaster, 15 Misc. 444,
37 Supp. 196; Schenck v. Irwin, 60 Hun, 361, 38 St. Rep.
603, 15 Supp. 55, 21 Civ. Pro. Rep. 96.
AFFIDAVIT FOR ORDER—REQUISITES 141

Thus, jurisdictional facts, such as the statement of the resi-
dence or place of business of the judgment debtor, in an affidavit
for the examination of a judgment debtor, are not waived or
cured by the appearance of the judgment debtor before the
referee without making any objection before the latter as to the
sufficiency of the affidavit.

Zelie v. Vroman, 22 Mise. 486, 50 Supp. 836.

Again, it is said that if the facts disclosed by the affidavit of
the judgment creditor are not such as to make a case within
the statute, the judge acquired no jurisdiction over the sub-
ject-matter, and the voluntary appearance of and submission
to examination by the judgment debtor does not operate as a
waiver of the right to attack the proceedings.

Sackett v. Newton, 10 How. Pr. 560.

The rule governing here is that while mere irregularities in
the affidavit for the order upon which supplementary proceed-
ings are instituted may be waived, yet where the defects are jur-
isdictional that rule does not apply. The distinction is this:
Where a fact material to the jurisdiction really exists, though
erroneously, or not all set forth in the proof, or where a tri-
bunal can have jurisdiction of a given subject-matter because
all the essential facts for that exist, although the order or pro-
cess bringing the same before it may be erroneous, such defect
may be waived by the adverse party, and is waived when he
fails to object on that ground at the first opportunity, but
submits to the direction of the officer who has, or assumes to
take charge of the proceeding. But, where a fact necessary to
give a tribunal jurisdiction—as, in this case, viz: The return
of an execution wholly or partly unsatisfied—does not exist,
the defect cannot be waived; for consent cannot confer juris-
diction not vested by law. The objection can be taken at any
time.

Jennings v. Lancaster, 15 Mise. 444, 37 Supp. 196.
142 SUPPLEMENTARY PROCEEDINGS

(15) Where Application Made by Assignee of Judgment

If the proceedings for the examination of a judgment debtor
in supplementary proceedings are instituted by an assignee of
the judgment, the affidavit for the order must sct forth the
fact of such assignment.

Hough v. Kohlin, 1 Code Rep. N. 8. 232.

So, the affidavit of an assignee of a judgment for an order
to examine the judgment debtor thereon, must show that such
judgment has not been paid and that he is entitled to proceed
upon the judgment for the collection thereof.

Frederick v. Decker, 18 How. Pr. 96.

An affidavit for an order in supplementary proceedings made
by an attorney for the assignee of the judgment is not objec-
tionable because entitled in the action in which the judgment
was rendered with the addition “George Allaire, assignee,” the
deponent describing himself as attorney for the above named
“George Allaire, judgment creditor in this proceeding,” and
further stating that the judgment had been duly assigned to
George Allaire, and such affidavit cannot be attacked on the
ground that it was not made by “the creditor,’ under such
judgment, as provided by Sec. 2435 Code of Civil Procedure.

Sealey, Matter of v. Connors, 109 App. Div. 279, 95 Supp.
1109.

But an affidavit for the examination of a judgment debtor
upon an assigned judgment is fatally defective, where the at-
torney making the same sets forth the assignment of the judg-
ment, but fails to show that he was authorized by the assignee
of the judgment to institute the proceedings.

Kemp v. Gartenberg, 93 Misc. 313, 156 Supp. 883.

An affidavit upon which an order for the examination of a
judgment debtor is granted which states that the judgment
had been duly assigned to George Allaire, sufficiently shows au-
thority to institute proceedings.

Seeley, Mutter of v. Connors, 109 App. Div. 279, 95 Supp.
1109.
AFFIDAVIT FOR ORDER—REQUISITES 1438

A judgment debtor cannot resist his punishment for con-
tempt in transferring property in violation of the restraining
clause in an order in supplementary proceedings on the ground
that the affidavit upon which the order was granted did not
disclose the assignment of the judgment or show that the pro-
ceedings were instituted by the assignee, where it was subse-
quently mide to appear by the affidavits that the person insti-
tuting the proceedings was the assignee of the judgment and
that the supplementary proceedings had really been instituted
in his behalf, although in the name of the judgment creditor.

Maigille v. Leonard, 102 App. Div. 367, 92 Supp. 656.

(16) Where Application Made by Representative of Deceased
Judgment Creditor

The affidavit upon which an order for the examination of a
judgment debtor in behalf of the representative of a deceased
judgment creditor is granted must set forth the recovery of
the judgment; that appellant is the sale executor or adminis-
trator of the judgment creditor; that an execution was issued
on the judgment with the date thereof; that it was returned
unsatisfied; that the judgment creditor is dead; that letters
testamentary or of administration were duly issued to him;
that he thereupon duly qualified, and has since acted as such ex-
ecutor or administrator.

Walker v. Donovan, 6 Daly, 552, 53 How. Pr. 3.

But upon the application of a representative of a deceased
judgment creditor for an order to examine the judgment
debtor in supplementary proceedings, the affidavit need not
positively allege the death of the judgment creditor or the
appointment of the personal representative, and those facts in-
stead of being by direct averment may be by other proof, and
if the judge issuing the order is satisfied that such facts exist
he may grant the order. In such case the judgment debtor
144 SUPPLEMENTARY PROCEEDINGS

must affirmatively controvert those facts in order to defeat the
further prosecution of the proceedings,
Collier v. DeRevere, 7 Hun, 61.

(17) Where Application Made by Attorney to Enforce Lien.

An attorney seeking to institute supplementary proceedings
upon a judgment for costs, to enforce his lien thereon, must, in
his affidavit, show his exact status in the case.

Russell v. Somerville, 4 N. Y. Law Bull. 3.

Upon an application by an attorney for an order to examine
a judgment debtor in supplementary proceedings instituted by
him for the purpose of collecting his costs and fees, the affidavit
is sufficient which, after setting forth the recovery of the judg-
ment and the other jurisdictional facts, contained the further
allegation that deponent was the attorney for the judgment
creditor in the action in which said judgment was recovered,
and by reason thereof, acquired a lien thereon for his costs and
fees, of the existence of which lien he had given the judgment
debtor due notice; that the amount of his costs was $19.47, and
the amount of his fees, by agreement with plaintiff, $147.15,
no part of which fees or costs has been paid; and that such pro-
ceedings are brought for the purpose of collecting said fees
and costs.

Merchant v. Sessions, 5 Civ. Pro. Rep. 24.

(B) Upon Application to Examine Judgment Debtor after
Return of Execution

(1) Statutory Provisions

Authority for an order to examine a judgment debtor after
return of execution is found in Sec. 2485 of the Code. The
only provision therein concerning the affidavit upon applica-
tion for such an order is that the creditor, upon proof of the
AFFIDAVIT FOR ORDER—REQUISITES = 145

facts, by affidavit or other written evidence, is entitled to the
order.

We must look to the decisions to determine the requisites of
an affidavit under this section.

These decisions are found under the head of “Require-
ments in General,” immediately preceding.

(C) Upon Application for Order to Examine Judgment Debtor
before Return of Execution

(1) Statutory Provisions

Under Sec. 2436 of the Code authorizing the examination
of a judgment debtor before return of execution, it is provided
that the judgment creditor, upon proof, by afiidavit or oter
competent written evidence, that the judgment debtor has
property which he unjustly refuses to apply toward the satis-
faction of the judgment, is entitled to an order, requiring the
judgment debtor to attend and be examined concerning his
property, at tne time and place specified in the order.

No further provisions, however, are given in the statute
as to the requisites of such an affidavit, and thereby resort
must be had to the decisions upon this subject to determine
just what is required to be stated in this affidavit.

(2) Sufficiency in General

‘Although an affidavit for an order for the examination of a
judgment debtor before the return of execution under Sec.
2436, Code of Civil Procedure, states, in the terms of the
statute, that the judgment debtor has property which he un-
justly refuses to apply towards the satisfaction of the judgment,
yet the judgment debtor is entitled to the vavation of the order
for his examination where he presents an affidavit on a motion
to set it aside alleging that the property, which he was alleged
to have had, had already been levied upon by the sheriff, and

Garnishee—10.
146 SUPPLEMENTARY PROCEEDINGS

this although the judgment creditor presents an answering af-
fidavit alleging that for some unexplained reasons the sheriff
refused to collect the judgment.

Carbonating Apparatus Co. v. Bennett, 56 Mise. 47, 105
Supp. 1052.

Before a judgment creditor may obtain an order for the
examination of his judgment debtor after the issuance but
before the return of execution, he must clearly establish to the
satisfaction of the judge, that the judgment debtor has prop-
erty not subject to levy or which is so kept by the debtor that
it cannot be clearly identified or with ordinary diligence
reached by an execution, and an affidavit for such an order
not setting forth such facts upon deponent’s own knowledge
must fully state the grounds of his belicf.

Garcia, Matter of v. Morris, 51 Mise. 592, 101 Supp. 253.

(8) Alleging Demand

The affidavit must allege a demand that the judgment debtor
apply his property to the payment of the judgment, as there
cannot be an unjust refusal under the statute without there
having been a demand.

Bowery Bank of New York v. Widmayer, 9 Supp. 629:
Hutson v. Weld, 88 Hun, 142; Levy v. Beachman, 64 Hun, 62,
First Nat. Bank of Rome v. Wilson, 18 Hun, 232; Hutson v.
Weld, 38 Hun, 142; Levy v. Beacham, 64 Hun, 62, 18 Supp.
784; First Nat. Bank of Albany v. Clark, 52 App. Div. 601,
65 Supp. 439.

Thus, a sufficient basis is not shown for an order to examine
a judgment debtor before return of execution by an allega-
tion in the affidavit therefor, stating generally, that the judg-
ment debtor has certain real estate which upon demand, he has
unjustly refused to apply to the satisfaction of the judgment,
as there must be a statement of the facts and circumstances
showing the refusal to be unjust.
AFFIDAVIT FOR ORDER—REQUISITES = 147

First Nat. Bank of Albany v. Clark, 52 App. Div. 601, 65
Supp. 439.

An affidavit for an order to obtain the examination of a
judgment debtor before the return of execution should more
than merely state, in the terms of the statute, that the judg-
ment debtor unjustly refuses to apply ecrtain property to the
payment of the judgment, but the facts from which such con-
clusion is reached should be stated, and in particular, it
should be alleged that a demand has been made of the judg-
ment debtor to apply this property to the satisfaction of the
judgment. These defects, however, are not jurisdictional, and
constitute merely an irregularity which may be waived or
amended.

First National Bank of Rome v. Wilson, 18 Hun, 232.

(4) Allegations on Information and Belief

An affidavit for an order to examine a judgment debtor in
supplementary proceedings before return of execution made
by the judgment creditor’s attorney, and based entirely upon
information and belief as to the jurisdictional fact that the
judgment debtor has property, is insufficient and the order
based thereon will be vacated.

National Printing & Engraving Co. v. Armstrong, 184 St.
Rep. 433, 150 Supp. 433; Smith v. Haverty’s Stables, 157
App. Div. 777, 142 Supp. 764.

Thus, an affidavit for the examination of a judgment debtor
in supplementary proceedings before return of execution, under
Sec. 2436 of the Code, is insufficient which alleges on in-
formation and belief that the judgment debtor has certain
designated property which it unjustly refuses to apply to the
satisfaction of the judgment, since the sources of the informa-
tion and belief should be disclosed.

Smith v. Haverty’s Stables, 157 App. Div. 777, 142 Supp.
764,
148 SUPPLEMENTARY PROCEEDINGS

And an affidavit for the examination of a judgment debtor
before return of execution is fatally defective which alleges
that the judgment debtor has property consisting of stock of
goods, principally cigars, tobacco and money, which he un-
justly refuses to apply to the satisfaction of said judgment,
as deponent is informed and believes, and then alleges that after
the issuing of the said execution a demand was made by said
sheriff upon said judgment debtor to apply said property to
the satisfaction of said judgment, and that he has neglected and
refused to do so, as the grounds of deponent’s belief and the
source of his information, must be alleged.

Garcia, Matter of v. Morris, 51 Mise. 592, 101 Supp. 253.

An allegation in an affidavit to obtain an order for the
examination of a judgment debtor before return of execution
“that as deponent is informed and believes the said defendant
has property which he unjustly refuses to applly towards the
satisfaction of the judgment” is insufficient to authorize the
order, as the affidavit should give the name of the informant
with his means of knowledge, and should describe the property
and also allege demand.

Manken v. Pape, 65 How. Pr. 453.

(D) Upon Application for a Third Party Order

(1) Statutory Provisions

Sec. 2441 of the Code authorizing third party orders states
that upon proof, by affidavit, or other competent written evi-
dence to the satisfaction of the judge, that an execution against
property has been issued, as prescribed in Sec. 2458, and
either that it has been returned wholly or partly unsatisfied,
or that it has not been returned, and also that any person or
corporation has personal property of the judgment debtor, ex-
ceeding $10.00 in value, or is indebted to him in a like sum;
the judgment creditor is entitled to an order for the examina-
AFFIDAVIT FOR ORDER—REQUISITES 149

tion of such person or corporation, concerning such debt, or
other property.

The detailed requisites of such an affidavit must be found
in the decisions upon the subject.

(2) Allegations as to Residence of Debtor

An affidavit for the examination of a third party is fatally
defective if it fail to state the residence of the judgment debtor.

Mutual Film Corp. v. Davis, 210 St. Rep. 320, 176 Supp.
820; Franey v. Smith, 88 Hun, 215, 63 St. Rep. 714, 34 Supp.
780; Gagnon, Matter of, 32 App. Div. 22, 52 Supp. 309.

Thus, an affidavit for a third party order in supplementary
proceedings alleging that the judgment was recovered and the
judgment roll filed and docketed in a specified county; that
a transcript of the judgment was filed in another named county
and execution issued thereon against the judgment debtor to
the sheriff of the last-named county, where the defendant then
resided, is not sufficient, as such affidavit fails to state the resi-
dence of the judgment debtor at the time it was made, which
is essential to confer jurisdiction.

Franey v. Smith, 88 Hun, 215, 68 St. Rep. 714, 34 Supp.
780.

(8) Allegations as to Indebtedness or Property—Sufficiency

The affidavit and order directing a third party to submit to
examination should set forth a description of the property be-
longing to the judgment debtor in the hands of the third party.

Potts v. Davidson, 1 How. Pr. N. 8. 216; Pierce v. Parish,
28 App. Div. 22, 50 Supp. 735.

Thus, an affidavit for a third party order is insufficient
which is as follows: ‘“Deponent further says upon informa-
tion and belief that Emma Parish of the Town of Canan-
daigua, N. Y. has personal property of the said judgment
debtor exceeding $10.00 in value, which has been fraudulently
150 SUPPLEMENTARY PROCEEDINGS

transferred to her by chattel mortgage and that no previous
application has been made herein for an order to examine said
third party. Said personal property consists in part of about
350 sheep and about 50 tons of hay, oats on 22 acres, barley,
grown on 20 acres, straw, corn, hay, scales, wagons farming
tools and a large quantity of other personal property.”

Pierce v. Parish, 28 App. Div. 22, 50 Supp. 735.

But an affidavit stating that a named person was indebted
to the judgment debtor “in a sum exceeding $10.00 for rent,
to wit, in the sum of $100.00,” gives the judge sufficient
grounds for the granting of a third party order against such

/ person.

Davis v. Jones, 8 Civ. Pro. Rep. 43.

And in another case, it was held that an affidavit for an
order to examine a third party made by the judgment credi-
tor’s attorney, which simply states that the third party has
property of the judgment debtor, without disclosing the sources
or means of knowledge is sufficient.

Bucki v. Buckt, 26 Misc. 69, 56 Supp. 439.

So it has been held that an affidavit made by the managing
clerk of the attorney for a judgment creditor which states
positively that said third party has personal property of the
judgment debtor, exceeding $10 in value, is sufficient, although
there may be some suspicion that he did not know the facts
stated of his own knowledge.

Bruen v. Nickels, 30 App. Div. 396, 51 Supp. 352, 5 Ann.
Cas. 381.

The fact that the affidavit for an order for the examination
of a third party shows that nothing is actually due from him
to the judgment debtor but that something will become due at
a future date, is not objectionable, since there is an indebted-
ness equally whether the debt is due or to become due.

Davis v. Herrig, 65 How. Pr. 290; Davis v. Jones, 8 Civ.
Pro. Rep. 43.

Thus, an affidavit for a third party order is sufficient which
AFFIDAVIT FOR ORDER—REQUISITES 151

alleges that the third party is indebted to the judgment debtor
in a sum exceeding $10.00 for rent, to wit: $100.00, and this,
notwithstanding that it appears that such rent will not become
due until a few days later, since a man is indebted equally
whether his debt is due or to become due, and consequently
there is a sutficient showing of indebtedness to the judgment
debtor to support the order.

Davis v. Jones, 8 Civ. Pro. Rep. 43.

Following the rule that alternative allegations in an affidavit
for an order to examine a judgment debtor in supplementary
proceedings are bad, it has been held that the allegations “has
property of the judgment debtor, or is indebted to him” are
fatally defective.

Lee v. Heirberger, 1 Code Rep. 38; Collins v. Bebee, 54
Hun, 318, 27 St. Rep. 4, 7 Supp. 442; Leonard v. Bowman,
40 St. Rep. 135, 15 Supp. 822, 21 Civ. Pro. Rep. 237; Smith
v. Cutter, 64 App. Div. 412, 72 Supp. 99; Lowther v. Lowther,
110 App. Div. 122, 97 Supp. 5.

The reason for this rule is that such alternative allegations
do not prove either statement, and will not, therefore, constitute
basis for an order for the examination.

Collins v. Beebe, 54 Hun, 318, 27 St. Rep. 4, 7 Supp. 442;
Lowther v. Lowther, 110 App. Div. 122, 97 Supp. 5.

And an affidavit for a third party order stating that an
execution has been issued to the sheriff of a certain county
where the judgment debtor then resided and yet resides and
has an office for the regular transaction of business in person,
and further states upon information and belief that the third
person has personal property of the judgment debtor exceed-
ing $10.00 in value or is indebted to him in the sum of $10.00,
is fatally defective by reason of the alternative allegations.

Leonard v. Bowman, 40 St. Rep. 135, 15 Supp. 822, 21 Civ.
Pro. Rep. 237.

Likewise, an affidavit for the examination of a third party
which states that the latter has property of the judgment
152 SUPPLEMENTARY PROCEEDINGS

debtor, either as receiver or individually exceeding $10.00 in
value, is fatally defective because of the alternative nature of
the allegations.

Pitchburgh Nat. Bank v. Bushwick Chemical Works, 13 Civ.
Pro. Rep. 155.

Moreover, an additional allegation that the source of dv-
ponent’s knowledge as to the alternative allegation is the
record of transfers of real property by the debtor and state-
ments of the latter under oath, without setting forth sucl
statements, will not cure the defect in the affidavit.

Lowther v. Lowther, 110 App. Div. 122, 97 Supp. 5.

It has been held, however, in an action for false imprison-
ment in causing the arrest of a third party in supplementary
proceedings for failure to obey an order for his examination,
that jurisdiction is acquired by the judge to grant the order, and
so the action will not lie, notwithstanding the fact that the af-
fidavit upon which such third party order was based contained
the allegation that such third party had property of the judg-
ment debtor in his hands, or was indebted to him as the deponent
was advised and believed.

Miller v. Adams, 52 N. Y. 409.

The latter case, although in the Court of Appeals, would
probably not be followed today, in view of the numerous later
decisions holding such allegations in the alternative insufficient.

(4) Allegations on Information and LDelicf

It may now be regarded as the scttled rule that an affidavit
for a third party order wholly upon information and _ belief,
without stating the sources of deponent’s information, is in-
sufficient to warrant the granting of the order.

Fleming v. Tourgee, 21 Civ. Pro. Rep. 207, 40 Si. Rep. 705,
16 Supp. 2; People ex rel. Day v. Jones, 1 Abb. N. U. 172, 52
How. Pr. 95; Leslie, Matter of, 19 Misc. 667, 44 Supp. 1103;
Lockwood v. Sello, 17 Mise. 826, 57 Supp. 816; Schermerhorn
AFFIDAVIT FOR ORDER—REQUISITES 153

v. Owens, 29 Mise. 674, 62 Supp. 735, 7 Ann. Cas. 280; Pierce
v. Parish, 25 App. Div. 22, 50 Supp. 735.

And this is expecially :» where the relation of the informant
to the third person is not disclosed.

Lockuood v. Sello, 27 Mise. $26, 57 Supp. $16.

There are some cases in this State, particularly Jfiller v.
-ldams, 52 N. Y. 407, holding to the contrary, but the latter
case has been distinguished on the ground that the language of
See. 294, Code of Procedure, then in force, and Sec. 2441,
Code of Civil Procedure, are not identical in their language,
the latter providing that a third party order may be granted
by proof by affidavit or other competent written evidence to
the satisfaction of the judge, which latter is not satisfied by
allegations merely upon information and belief.

It has been held, however, in an early case that while such
an affidavit is insufficient to support such an order the latter
is not void, and if the third person take no steps to have it
vacated, and refuse to appear, punishment for contempt is
proper.

Fleming v. Tourgee, 21 Civ. Pro. Rep. 297, 40 St. Rep.
705, 16 Supp. 2.

And an affidavit for an order for the examination of a bank
as a third party, alleging that the latter has personal property
of the judgment debtor in its custody exceeding $10.00 in value,
but without stating the source of deponent’s information, or
the grounds of his belief, and stating that the cashier of
the bank has made statements to deponent from which he
believes that the bank has such property, but not setting forth
what the cashier said, is insufficient to warrant the granting
of a third party order.

First Nat. Bonk of Earlville, Matter of, 99 App. Div.
20, 90 Supp. 941.

But an order for the examination for a third party order
will be sufficient to sustain such order, although the affidavit
as to the third person having property of the Judgment debtor
154 SUPPLEMENTARY PROCEEDINGS

exceeding $10.00 in value is largely on informaticn and belief,
where the source of information or grounds of belicf is fully
set forth. All that is required in such an affidavit is that suf-
ficient proof shall be presented to the judge that the third
party has property of the judgment debtor.

Carley v. Tod, 56 App. 170, 67 Supp. 640.

(5) Allegations as to EBvecution

Under Sec. 2458 of the Code of Civil Procedure, providing
that an execution must have been issued to the sheriff of the
county where the judgment debtor has, at the time of the com-
mencement of the proceedings, a place for the regular trans-
action of business in person, or if the judgment debtor is a
resident of the state to the county where he resides, an aftidavit
by a judgment creditor to obtain a third party order is fatally
defective if it fail to show that the execution was delivered to
the sheriff of the county where the judgment debtor resided
at the time the affidavit was made.

Schenck v. Irwin 60 Hun, 361, 38 St. Rep. 603, 15 Supp.
55, 21 Civ. Pro. Rep. 96.

(6) Showing Authority of Deponent

A third party order may be granted upon an affidavit of
the judgment creditor’s attorney although such affidavit does
not show the authority of the latter to act, as jurisdiction is
acquired without such allegation, although it is usual and the
judge may require proof of such authority if he see fit.

Miller v. Adams, 52 N. Y. 409.

(E) Upon Application for Warrant of Arrest Instead of Order
(1) Statutory Provision

Sec. 2487 of the Code provides, in effect, that upon proof en-
titling a judgment creditor to an order, either for an examina-
AFFIDAVIT FOR ORDER—-REQUISITES — 155

tion before return of execution, or after the return thercof;
also proof, by affidavit, to the satisfaction of the judge that
there is danger that the judgment debtor will leave the State,
or conceal himself, and that there is reason to believe that there
is property which he unjustly refuses to apply to the payment
of the judgment; the judge may, instead of making an order
(for his examination) issue a warrant for the arrest of the
judgment debtor to bring him before the judge.

(2) Sufficiency of Affidavit

It has been said in cases of arrest in ereditor’s bills that
“where the creditor may be his own witness for the purpose of
procuring a warrant and mav choose his own time for arresting
the debtor, it is not too much to require that he should, in
the first instance make out a plain case.”

People v. Recorder of Albany, 6 Hill, 429.

This rule was quoted with approval in Nelzel v. Mulford,
59 How. Pr. 452.

An affidavit which states that the judgment debtor is in
Philadelphia, is insufficient to establish the concealment re-
quired by the statute, as it is intended that the judgment
debtor, being in this State, is concealing himself.

Rohshand v. Waring, 1 Abb. N. C. 311.

An affidavit stating merely that there was, in the opinion
of the judgment creditor, danger that the judgment debtor
would leave the state of New York, and that there was reason
to believe that he had property which he unjustly refused to
apply to the payment of the judgment is sufficient to warrant
the arrest of the judgment debtor, who was a nonresident of
the State of New York.

Heller v. De Leon, 26 St. Rep. 102, 7 Supp. 97.

Under Sec. 2437, Code of Civil Procedure, providing that
before a judgment creditor is entitled to a warrant of arrest
against a judgment debtor he must establish to the satisfaction
156 SUPPLEMEN TARY PROCEEDINGS

of the judge, by affidavit that there is danger that the judgment
debtor will leave the state or conceal himself, and there is
reason to believe that he has property which he unjustly re-
fuses to apply to the payment of the judgment, there is not a
sufficient compliance with these requirements, where the al-
legations in the affidavit are stated upon information and
belief, and the fact of the defendant having property is a
mere matter of inference on the part of the judgment credi-
tor, based upon the fact that the judgment debtor is a man of
extravagant habits and lives in the best of hotels.

Netzel v. Mulford, 59 How. Pr. 452.

And an affidavit for the arrest of a judgment deltor in
which the allegations that the judgment debtor has property
which he unjustly refuses to apply to the payment of the judg-
ment and that he is about to leave the state are made upon
information and belief, viz., “as deponent has been informed
by the judgment creditor and verily believes to be true,” is in-
sufficient, since there is not a sufficient showing of the sources
of such information and belief, and is not sutlicient proof
thereof. .

Cohen v. Allen, 170 Supp. 892.

Forms for the affidavits considered in this chapter are given
in the list of forms appearing at the end of this work.

See A fidavits,
CHAPTER X

TO WHAT JUDGE APPLICATION FOR ORDER MADE

(A) Statute, 157.

(B) Constitutionality, 158.

(C) To Judge Not Court, 158.

(D) Supreme Court Justices, 159.

({E) County Judges, 161.

(F) Other Judges, 162.

(G) Upon Application for Revival of Order, 162.

(H) Effect of Resignation or Disability of Judge before Whom Order
Returnable, 163.

(A) Statute

The statute specifying what judges may grant an order for
the examination of a judgment debtor or third person in sup-
plementary proceedings, or warrant for the arrest of the judg-
ment debtor in place of an order for his examination, is Sec.
2434 of the Code.

Under this section, subject to subds. 4 and 5 below, such an
order or warrant may be granted by any one of the following
judges:

1. A judge of the court out of which the execution was is-
sued.

2, The county judge, the special county judge, or the special
surrogate of the county to which the execution was issued, and

3. Where the execution was issued out of a court other than
the supreme court, and it is shown by affidavit that each of
the judges before whoin the proceedings might be instituted, is
absent from the county, or for any reason unable or disquali-
fied to act, the order or warrant may be granted by a justice
of the Supreme Court. In the latter case, if such justice does

157
158 SUPPLEMENTARY PROCEEDINGS

not reside within the judicial distriet embracing the county to
which the execution was issued, the order or warrant made by
him must be returnable to a justice of the Supreme Court
residing in that district, or the county judge, or the special
county judge, or special surrogate, or that of an adjoining
county, as directed in the order or warrant.

+. Where the execution was issued to the City and County
of New York, from a court other than the city court of that
city, a justice of the supreme court for that city and county.

5. Where the judgment was recovered in a Municipal Court
of the city of New York, such orders and warrants must be
granted by a justice of the City Court of New York City.

(B) Constitutionality

The constitution is not violated by the power which is given
to a county judge, by the Code, to make an order for the
examination of a judgment debtor. Such an order is a substi-
tute for a creditor’s bill, and in its nature is an equitable pro-
ceeding. By the express words of the constitution equitable
powers may be vested in a County Court, and the county judge
is the court.

Sale v. Lawson, 6 Super. Ct. Rep. (4 Sandf.) 718.

(C) To Judge Not Court

The court, as such, is not authorized to entertain supple-
mentary proceedings at all. The order instituting these pro-
ceedings can be made only by a judge.

Miller v. Rossman, 15 How. Pr. 10; Bitting v. Vanden-
burgh, 17 How. Pr. 80; Webber v. Hobbie, 13 How. Pr. 382;
Douglass v. Mainzer, 40 Hun, 75.

And the county court has no jurisdiction, as a court, to make
orders in supplementary proceedings, since that power lies
wholly in the county judge, and therefore, that court cannot
TO WHAT JUDGE APPLICATION MADE 159

grant an order continuing supplementary proceedings where
the referee did not appear upon the return day.
Douglass v. Mainzer, 40 Hun, 75.

(D) Supreme Court Justices

Supplementary proceedings may be instituted before a jus-
tice of the Supreme Court in a judicial district other than that
in which the judgment was recovered.

Jacobson v. Doty Plaster Mfg. Co., 32 Hun, 436; Lewis v.
Beach, 146 St. Rep. 200, 112 Supp. 200; Gildersleeve y. Les-
ter, 69 Hun, 344, 53 St. Rep. 316, 23 Supp. 471.

Thus, under Sec. 234, Code of Civil Procedure authorizing
proceedings for examination of a judgment debtor to be insti-
tuted before a judge of the court out of which the execution
was issued, a justice of the Supreme Court in one judicial dis-
trict may grant an order requiring a judgment debtor under a
judgment of that ccurt to appear for examination in such
proceedings before a referee in a county in another judicial
district, to which county execution was issued and in which
the debtor resided.

Lewis v. Beach, 146 St. Rep. 200, 112 Supp. 200.

All proceedings subseqent to the examination, however,
must be before a judge of the district in which the debtor re-
sides.

Gildersleeve v. Lester, 69 Hun, 344, 53 St. Rep. 316, 23
Supp. 471.

In view of Sec. 131, Subd. 3, Municipal Court Code, pro-
viding that a judgment of the New York Municipal Court,
shall, on being docketed by the county clerk, be deemed a judg-
ment of the Supreme Court and may be enforced accordingly,
a judge of the Supreme Court may properly grant an order for
the examination of the judgment debtor upon such judgment.

Streep, Matter of, 181 App. Div. 869, 168 Supp. 1026.

This decision seems directly contrary to that provision of
160 SUPPLEMENTARY PROCEEDINGS

See. 2434 of the Code providing that where the judgment was
recovered in the New York Municipal Court, such an order must
he granted by a justice of the City Court of New York City.
The holding is, however, warranted under another provision of
the same section, providing that where the execution was issued
to the City and County of New York, a justice of the Supreme
Court may grant the order.

Notwithstanding Sec. 2434, Code of Civil Procedure, as it
existed in 1897, when it provided that where a judgment on
which execution issued was rendered “in a district court” of
the City of New York; supplementary proceedings should be
instituted before a justice of the said court, it was held that
said section did not deprive the Supreme Court of New York
County of jurisdiction in supplementary proceedings on a
judgment recovered in the Municipal Court in New York
City and transcript filed in the New York county clerk's office.

Owens v. Ford, 68 Misc. 522, 124 Supp. 839.

Where supplementary proceedings are pending pursuant to
an order of a county judge, it is improper for a judge of the
Supreme Court to direct a stay of such supplementary proceed-
ings for an indefinite and continuing period.

Bank of Genesee v. Spencer, 15 How. Pr. 14.

Under Sec. 2484, Code of Civil Procedure, providing that
supplementary proceedings may be instituted before a judge
of the court out of which the execution issued, and that where
the execution is issued out of a court other than the supreme
court, and the judges thereof are absent or disqualified the
proceedings may be instituted before a justice of the supreme
court, and further providing that in case the judge granting
the order does not reside within the judicial district embracing
the county to which the execution was issued, the order made
by him must be returnable to a justice of the Supreme Court
residing in that district, or the county judge, or the special
county judge, or special surrogate of that or an adjoining
county as provided in the order, it must be held that such pro-
TO WHAT JUDGE APPLICATION MADE 161

vision is not confined in its operation to proceedings instituted
before a justice of the Supreme Court where the execution has
been issued out of another court, and an order made by a jus-
tice of the supreme court for the examination of a judgment
debtor residing in another judicial district must be made re-
turnable before a justice of that district although the execu-
tion was issued out of the Supreme Court.

Peck v. Baldwin, 58 Hun, 308, 34 St. Rep 511, 11 Supp.
792, 19 Civ. Pro. Rep. 403.

(E) County Judges

A county judge may grant an order for the examination of a
judgment debtor upon a judgment recovered in the Supreme
Court where the judgment debtor resides or has a place of busi-
ness in the county, or where a transcript has been filed, when
the judgment was not recovered in such county.

Crill v. Kornmeyer, 56 How. Pr. 276.

The preceding proposition appears in the head note, but the
subject is not discussed in the opinion. The holding is good
law to-day, however, if it be presumed, as was doubtless intended
to be stated, that the execution was issued to such county.

Where a transcript from a justice’s judgment has been filed
in the county clerk’s office, and another transcript filed in the
county in which the judgment debtor resided, and supple-
mentary proceedings instituted against him there, a county
judge of the original county has no jurisdiction to order the
examination of a third person as to property of the judgment
debtor in his hands.

Schenck v. Erwin, 63 Hun, 104, 43 St. Rep. 862, 17 Supp.
616.

Application for a third party order should be made to a
judge in the county of the residence of the judgment debtor
and not in the county where the third person resides or carries
on business, and the provision of the statute that the person

proceeded against canot be required to go out of the county
Garnishee—11.
162 SUPPLEMENTARY PROCEEDINGS

of his residence to be examined is not controlling, as the judge
before whom the matter is pending can appoint a referee to
take his examination in a place to be named in the county of
his residence.

Merrill v. Allen, 46 Hun, 623, 13 St. Rep. 20, 28 Week.
Dig. 20.

The fact that an order was made for the examination of one
of the judgment debtors by a justice of the Supreme Court, will
not prevent the county judge from granting another order for
the examination of another judgment debtor and this is so, al-
though the first order provided that ‘all subsequent proceedings
shall be had before me.”

First National Bank of Rome v. Dering, 8 Week. Dig. 261.

(F) Other Judges

Under Laws 1849, Chap. 150, Sec. 10 as amended by laws
1872, Chap. 284, providing that the recorder of the City of
Albany should have power to perform all acts that might be
done and performed by a justice of the Supreme Court at
Chambers, including supplementary proceedings, it was held
that such recorder had no jurisdiction to grant an order in
supplementary proceedings to be executed outside the city of
Albany.

Carroll v. Langan, 63 Hun, 380, 44 St. Rep. 224, 18 Supp.
290.

(G) Upon Application for Revival of Order

Failure to serve an order for the examination of a judgment
debtor in supplementary proceedings before the return date
renders it void and inoperative, but revival thereof may be
effected by application to the judge who made the order and the
initialing of the same on the margin and changing the return
date.

German Exchange Bank v. Schlang, 92 Misc. 351, 155 Supp.
924,
TO WHAT JUDGE APPLICATION MADE ‘163

In another case, it was held that where the judgment credi-
tor was unable to serve an order in supplementary proceedings
granted by a justice of the City Court of New York before the
return day, the fact that the latter was changed and a new date
inserted and initialed in the margin by another judge of the
same court instead of by the judge granting the original order,
would not invalidate the extension.

Bridges v. Koppelman, 63 Misc. 27, 117 Supp. 306.

Under Sec. 26 of the Code, made applicable to supplementary
proceedings by Sec. 2462, such an order of revival can be
made in the first or second judicial districts by another judge,
and in case of disability, absence, etc., mentioned in See. 52
of the Code, also made applicable by Sec. 2462 to these pro-
ceedings, another judge of the same court in any part of the
State may undoubtedly make the order of revival.

(H) Effect of Resignation or Disability of Judge before Whom
Order Returnable

Under Sec. 26, Code of Civil Procedure, providing that in
the city of New York, a special proceeding instituted before
a judge of a court of record may be continued before another
judge of the same court, and Secs. 52 and 53 providing that, on
resignation of the judge before whom a special proceeding
has been instituted, it may be continued before his successors,
and Sec. 2462, Code of Civil Procedure providing that Secs.
26 and 52 apply to a special proceeding, the resignation of a
judge of the city court of New York who granted an order for
supplementary proceedings, will not defeat the same, and the’
judgment debtor must attend before the successor to the jus-
tice, sitting at the time and place designated in the order.

Dodge & Co. v. Albers, 54 Misc. 37, 104 Supp. 497, 39 Civ.

Pro. Rep. 89.
CHAPTER XI

FORM OF ORDER FOR EXAMINATION OR WAR-
RANT OF ARREST

(A) Order for Examination, 164.
(1) Provisions of Statute, 164.
(2) How Entitled, 165.
(3) Jurisdictional Allegations, 166,
(4) Irregularities in Order, 167.
(a) In General, 167.
(b) Specific Instances, 167.
(c) Effect of Misnomer of Judgment Debtor, 168.
(5) Statements in Alternative, 168.
(6) Allegations as to Execution, 169.
(7) Provision as to Return Day, 169.
(8) Appointment of Referee, 170.
(9) Injunction Clause, 170.
(10) Provision for Appearance before Judge after Examination,
171.
(B) Warrant of Arrest, 172.
(1) Statute, 172.
(2) General Requirements, 172.

(A) Order for Examination

(1) Provisions of Statute

The sections of the Code authorizing orders for the examina-
tion of judgment debtors, third persons and warrants for
arrest do not specify in detail the form which said orders are
to take, but it is provided in Secs. 2435 and 2436 that an order
for the examination of the judgment debtor shall require his
attendance and examination concerning his property, at a time
and place specified in the order, and Sec. 2441, authorizing
third party orders, has a similar provision. Sec. 2442 pro-
vides that the judgment debtor or third person may be required

164
FORM OF ORDER FOR EXAMINATION = 165

to attend, and be examined, either before the judge to whom the
order is returnable, or before a referee designated therein.
Section 2451 provides that the judge granting such an order
or warrant may make an injunction order restraining any per-
son or corporation, whether a party or not to the special pro-
ceeding, from making or suffering any transfer or other dispo-
sition of the property of the judgment debtor. The latter sec-
tion also provides that such injunction order may be made
simultaneously with the order or warrant, or afterwards,

(2) How Entitled

Supplementary proceedings, under Sec. 2433 Code of Civil
Procedure, constitute special proceedings and an order there-
for must be entitled as such.

Harris v. Weiss, 139 St. Rep. 8, 105 Supp. 8.

While supplementary proceedings constitute special provi-
sions, it is sufficient to entitle an order for the examination of
a third party “O, and other judgment creditors against F. and
Another, Judgment Debtors,” as that does not constitute an
entitling in an action.

Owens v. Ford, 68 Misc. 522, 124 Supp. 839.

Supplementary proceedings instituted before a county judge
upon a judgment recovered in the Supreme Court, should be
entitled in the latter court.

Ackerly & Gerard Co. v. Partz, 39 St. Rep. 17, 14 Supp.
466.

Where a judgment was obtained in a Justice’s Court and a
transcript thereof filed in the county clerk’s office, supplemen-
tary proceedings based thereon must be entitled in the county
court, but entitling them in the Justice’s Court is not such an
irregularity as to render the proceedings void. The remedy of
the judgment debtor is to appeal from the order refusing to
set aside the proceedings on account of such irregularity, and
166 SUPPLEMENTARY PROCEEDINGS

‘such attack cannot be made in the supplementary proceedings
themselves.

People ex rel. Mace v. Oliver, 66 Barb. 570.

Supplementary proceedings instituted by an assignee of the
judgment may be entitled in the same manner as the judgment
-upon which such proceedings are based, and the assignee insti-
tuting the same need not conduct them in his own name.

Ross v. Clussman, 5 Super. Ct. Rep. (3 Sandf.) 676.

Where supplementary proceedings are really instituted by
an order of a judge instead of the court, it is not a fatal objec-
tion to such order that the caption thereof reads as though the
order were granted by the county court instead of by the county
judge.

Lynch v. Riley, 22 Week. Dig. 357.

(3) Jurisdictional Allegations

Tt was stated in an early case that it is not necessary that
the order for he examination of a judgment debtor should re-
cite the facts necessary to confer jurisdiction; and the omission
of such recital does not impair the validity of the order if the
necessary jurisdictional facts are set out in the affidavit.

People ex rel. Mace v. Oliver, 66 Barb. 570.

This is not the rule to-day, however, and the courts generally
require that an order of this kind shall state all the jurisdic-
tional facts required to institute the proceedings, and it is not
sufficient to show those facts merely in the affidavit on which
the order is obtained, but the same must be set forth in the
order so as to give the court jurisdiction.

Day v. Brosnan, 6 Abb. N. C. 312.

But, undoubtedly an allegation in the order that the judg-
ment was duly rendered would be held sufficient, particularly
where the judgment upon which the proceedings are based was
recovered in a Court of Record.

This is the rule as to affidavits for such an order.
FORM OF ORDER FOR EXAMINATION © 167

Hilbring v. Wisansky, 54 Mise. 149, 110 Supp. 184; Sherl
v. Kurzman, 60 Mise. 332, 113 Supp. 288.

An order for the examination of a judgment debtor in sup-
plementary proceedings based on a judgment upon which a
transcript is filed in the county clerk’s office, must set forth
that such transcript was filed and judgment docketed with the
county clerk, together with the date of such filing and docket-
ing.

Day v. Brosnan, 6 Abb. N. C. 312.

(4) Irregularities in Order

(a) In General

Notwithstanding the fact that an order for the examination
of a judgment debtor is irregular and may be vacated therefor,
the judgment debtor must obey it until vacated.

Shults v. Andrews, 54 How. Pr. 378.

(b) Specific Instances

The failure to specify in an order for the examination of a
judgment debtor, the judge to whom the proceedings are re-
turnable is a mere irregularity, and does not deprive the court
of jurisdiction to grant the order, and this objection is especial-
ly unavailable to the judgment debtor where the latter did not
raise the same upon his appearance before the referee or in
his moving papers to set aside the order.

Lewis v. Beach, 146 St. Rep. 200, 112 Supp. 200.

And the fact that in an order for the examination of a judg-
ment debtor in supplementary proceedings the judgment debtor
is directed to appear before the judge signing it, or ‘one of the
justices of the court at special term thereof,’ does not make
it irregular, as requiring the debtor’s appearance before the
court, instead of before the judge signing the order.

Barringtion v. Watkins, 36 App. Div. 31, 55 Supp. 97.
168 SUPPLEMENTARY PROCEEDINGS.

So the incre fact that an order for the examination of a judg-
ment debtor provides that the appearance of the debtor shall
be before the judge granting the order (Naming him), “or one
of the other justices of said Supreme Court,” will not render it
fatally defective, especially where the judgment debtor ap-
peared before the justice first named on the return day, and an
order of reference was made without objection to any irregular-
ity in the order.

Dresser v. Van Pelt, 15 How. Pr. 19, 13 Super. Ct. Rep.
(6 Duer) 687.

The fact that the order for the examination of a judgment
debtor was not endorsed or subscribed with the name of the
plaintiff appearing in person, and his office and place of ad-
dress, is not fatal as, at most, such omission constituted a mere
irregularity, and was not ground for the vacation of the order.

Dorsey v. Cummings, 48 Hun, 76, 15 St. Rep. 459.

(c) Effect of Misnomer of Judgment Debtor

The appearance and submission to examination by a judg-
ment debtor operates as a waiver of his misnomer.

Johns, Matter of, 1 N. Y. Law Bull. 75.

An order for the examination of a judgment debtor in sup-
plementary proceedings although giving the name of the judg-
ment debtor wrongly, may be corrected as a matter of course
where the debtor appeared and submitted himself to the juris-
diction. .

Simon v. Underwood, 61 Misc. 369, 115 Supp. 65, 1 Civ.
Pro. Rep. N. S. 186.

(5) Statements in Alternative

It is a general rule that allegations in the alternative are
fatally defective, since such alternative statements neither allege
one nor the other fact necessary to be stated.

Arnot v. Wright, 55 Hun, 561, 29 St. Rep. 425, 9 Supp. 15;
FORM OF ORDER FOR EXAMINATION 169

Zelie v. Vroman, 22 Misc. 486, 50 Supp. 836; Bank of Port
Jefferson v. Darling, 102 App. Div. 431, 92 Supp. 483.

(6) Allegations as to Execution

In view of the Municipal Court Act governing the Municipal
Court of the City of New York and providing that after the
filing of a transcript of judgment an execution may be issued
by the county clerk, and also that after the filing of a transcript
and docketing of the judgment in the county clerk’s office it is
deemed a judgment of the Supreme Court and may be enforced
accordingly, and under Sec. 1364, Code of Civil Procedure,
providing that an execution is a process of the court out of
which it is issued, an order for the examination of a judgment
debtor in supplementary proceedings which alleges that the
execution was “issued out of the Supreme Court” is not objec-
tionable as being insufficient, where the other allegations of
the order are proper.

Jaques v. Willett, 188 St. Rep. 500, 104 Supp. 500.

(7) Provision as to Return Day

An order for the examination of a judgment debtor must not
only state the time at which he is to attend before the referee,
but also the place of such attendance and if it omit to specify
such place the judgment debtor need not appear.

Kelty v. Yerby, 31 How. Pr. 95.

And the order must name the return day at such a time in
advance as to give the judgment debtor a reasonable time to
reach the place designated for the examination. If this time
is too short he cannot be punished for contempt for failing to
appear.

Levey v. Rossett, 200 St. Rep. 1072, 166 Supp. 1072.

An order in supplementary proceedings returnable on Sun-
day is a nullity and it is not a contempt on the part of the
judgment debtor to neglect to appear as directed.

Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204.
170 SUPPLEMENTARY PROCEEDINGS

(8) Appointment of Referee

The order need not provide for the appointment of a referee,
but the judge granting the order may take the examination of
the judgment debtor himself.

Webber v. Hobbie, 138 How. Pr. 382.

As a mater of fact, in the first and second judicial districts,
a referee is seldom appointed, but the examination is taken
under the direction of the judge, although frequently not in
his immediate presence.

While it is usual, and the better practice, to have the order
appointing the referee incorporated with the order requiring
the debtor to appear, yet it has been held that they may be
separate orders.

Lewis v. Penfield, 39 How. Pr. 490.

(9) Injunction Clause

It is proper for an order for the examination of a third party
to contain a provision enjoining the latter from transferring or
disposing of any property of the judgment debtor, since Sec.
2451, Code of Civil Procedure, provides that the judge may
make an injunction order restraining any person or corpora-
tion, whether a party or not a party to the special proceeding,
from making or suffering any transfer or other disposition of,
or interference with, the property of the judgment debtor or
the property or debt, concerning which any person is required
to attend and be examined until further direction in the prem-
ises. Such section applies equally to an order for the examina-
tion of the judgment debtor himself, and that of a third party.

First Nat. Bank of N. Y. City v. Gow, 139 App. Div. 576,
124 Supp. 449.

The object of the injunction clause in a third party order
restraining the third person in possession of property of the
judgment debtor from transfering the same, is to preserve such
FORM OF ORDER FOR EXAMINATION — 171

property pending an order for its application to the payment
of the judgment.

Rathers v. Kaplan, 3 Civ. Pro. Rep. N. 8. 21, 172 St. Rep.
1002, 158 Supp. 1002.

But it is improper to include a restraining clause in an order
for the examination of a third person, where the judgment
debtor’s ownership of the property alleged to belong to him in
the possession of such third person is in dispute.

Rathers v. Kaplan, 3 Civ. Pro. Rep. N. S. 21, 172 St. Rep.
1002, 138 Supp. 1002.

The executors of a trust under a will cannot be enjoined from
applying the proceeds of the trust and directing them to pay

_the income of the trust fund to the judgment debtor during his
life time, as, at the most, nothing more than the surplus income
from such trust fund could be reached, and this only through
an equitable action.

Morgan v. Von Kohnstamm, 60 How. Pr. 161.

In view of Sec. 2451, Code of Civil Procedure, authorizing
the judge by whom an order in supplementary proceedings is
made, to restrain any person or corporation, whether a party
to the special proceedings or not, from making any transfer or
other disposition of the property of the judgment debtor or the
property concerning which any party is required to attend and
be examined, an order restraining a bank from paying out any
money deposited to the credit of the wife of the judgment debt-
or, which deposit it is alleged in reality belongs to the judgment
debtor, operates as a protection to the bank, and the refusal of
the latter to honor a check drawn by the wife does not give a
cause of action to her against the bank.

Strauss v. Yorkville Bank, 32 Mise. 239, 65 Supp. 793.

(10) Provision for Appearance before Judge after Hxamination

It is proper for an order for the examination of a judgment
debtor to provide for the appearance before the judge granting
172 SUPPLEMENTARY PROCEEDINGS

it of the judgment debtor on a day named following the close
of the examination.
Sickels v. Hanley, 4 Abb. N. C. 231.

(B) Warrant of Arrest

(1) Statute

It is provided in Sec. 2437 of the Code, authorizing the
issuance of a warrant in place of the order for the examination
of the judgment debtor, that where there is reason to believe
that he may leave the State, or conceal himself, and that he
has property which he unjustly refuses to apply to the pay-
ment of the judgment, the judge may issue a warrant under his
hand reciting the facts and requiring the sheriff of any county,
where the judgment debtor may be found, to arrest him and
bring him before the same judge, or another judge.

Nothing further appears in the statute as to the form of this
warrant, and, therefore, resort must be had to the decisions,

(2) General Requirements

Under Sec. 2487, Code of Civil Procedure, providing for a
warrant for the arrest of a judgment debtor upon proof enti-
tling him to institute supplementary proceedings, such warrant
should contain a recital of the facts conferring jurisdiction to
entertain the supplementary proceedings and it should also
state that the judgment debtor was brought before the court
for the purpose of examination concerning his property, and a
warrant is defective which permits the sheriff to hold the judg-
ment debtor in bail for the sum of $500, to be given by one or
more sureties, before his release according to Sec. 2490, Code
of Civil Procedure.

Barnett, Matter of v. Lewinsky, 66 Mise. 141, 121 Supp.
378, 2 Civ. Pro. Rep. N. S. 65.

Forms for orders and warrants of arrest are given in the
list of forms appearing at the end of this work,

See Orders and Warrants.
CHAPTER XII

SERVICE OF ORDERS FOR EXAMINATION, WARRANTS OF ARREST,
AND INJUNCTION ORDERS

(A) Statutory Provisions, 173.

(B) Exemption from Service, 174.

(C) Who May Serve, 174.

(D) Territorial Limits, 175.

(E) Period of Time before Return Day, 175.

(F) Exhibition of Original, 176.

(G) Service upon Corporation, 177.

(H) Effect of Mistakes or Omissions in Copy Served, 177.
(I) Want of Service—Waiver, 178.

(J) Proof of Service, 179.

(A) Statutory Provisions

Section 2452 of the Code is applicable here, and provides
that an injunction order, or an order requiring a person to
attend and be examined, must be served as follows:

1. The original order, under the hand of the judge making
it, must be exhibited to the person to be served.

2. A copy thereof, and of the affidavit upon which it was
made, must be delivered to him.

Service upon a corporation is sufficient if made upon an
officer, to whom a copy of a summons must be delivered, where
a summons is personally served upon the corporation; unless
the officer is specially designated by the judge, as prescribed
in section 2444.

The service of a warrant of arrest, issued instead of an order
for the examination of the debtor, or third person, is prescribed
by Sec. 2453 of the Code. This provides that the sheriff, when
he arrests a judgment debtor by virtue of a warrant, must

173
17+ SUPPLEMENTARY PROCEEDINGS

deliver to him a copy of the warrant, and of the affidavit upon
which it was granted.

(B) Exemption from Service

A judgment debtor while serving as a juror is not on that
account exempt from service of an order for his examination
in supplementary proceedings, but if such proceeding interferes
with his duties as a juror that would undoubtedly be ground
for continuation of the proceedings.

Brown v. Edinger, 61 Misc. 366, 114 Supp. 1116.

A resident judgment debtor cannot obtain the vacation of an
order for his examination in supplementary proceedings by
reason of the fact that service thereof was made upon him while
in attendance at court as a witness. There is no privilege froin
such service under those circumstances.

Fletcher v. Franko, 21 Civ. Pro. Rep. 34, 15 Supp. 674.

And a nonresident judgment debtor cannot object to service
of an order in supplementary proceedings upon him on the
ground that he came into the state to testify in another action,
where he continued in the state more than a reasonable time.

Shults v. Andrews, 54 How. Pr. 380.

An order for the examination of a judgment debtor in sup-
plementary proceedings cannot be vacated on the ground that
the judgment debtor, while in this state as a witness in other
actions, was arrested in another action in which the judgment
creditor was in no way connected, and that while under bail
was served with this order.

Shults v. Andrews, 54 How. Pr. 380.

(C) Who May Serve

Under Sec. 483 of the Code, relating to service of papers in
special proceedings, and which provides that the sections of the
Code relating to service of a summons shall be applicable, it is
plain that service of orders, for examination in supplementary
SERVICE OF ORDERS FOR EXAMINATION 175

proceedings, may be made by any one over the age of 21 years,
except the judgment creditor.
Dawes, Matter of, 108 App. Div. 174, 96 Supp. 52.

(D) Territorial Limits

An order in supplementary proceedings based upon a Su-
preme Court judgment may of course be served in any part
of the state, since the Supreme Court has jurisdiction through-
out the same.

Where the judgment was obtained in the county court or in
an inferior court and transcript filed in the county clerk’s
office, service of the order may also be made in any part of the
state, under Sec. 347 of the Code, providing that the county
court may send its process and other mandates into any county
in the state for service or execution.

An order made by a justice of the City Court of New York,
may, likewise be served in any part of the state, since it is
provided in Sec. 338, subd. 4, of the Code, that an order duly
made in an action, or special proceedings pending in that court,
may be served upon the person bound to obey the same, in any
part of the state.

In any event, a judgment debtor waives the right to object
to the jurisdiction of the court on the ground that the order in
supplementary proceedings was served upon him without the
territorial borders of the court by appearing upon the return
day, being sworn, and consenting to subsequent adjournments
of the proceedings.

Methodist Book Concern & Co. v. Hudson, 1 How. Pr. N. S.
517,

(E) Period of Time before Return Day

An order for the examination of a judgment debtor in sup-
plementary proceedings should be served a sufficient length of
time in advance to give him a reasonable time in which to
176 SUPPLEMENTARY PROCEEDINGS

comply therewith. The service of such an order only twenty
minutes before it is returnable is not adequate, especially
where it was physically impossible to appear at the examina-
tion within that time.

Levey v. Rosett, 200 St. Rep. 1072, 166 Supp. 1072.

The effect of the failure to serve an order for the examina-
tion of a judgment debtor before the return date, is to render
such order void and inoperative unless revived by the -judge
making it.

German Hachange-Bank v. Schlang, 92 Mise. 351, 155 Supp.
924; Henderson v. Stone, 40 How. Pr. 338, 2 Sweeny, 486.

And the objection may be raised at any stage in the proceed-
ing.

Henderson v. Stone, 40 How. Pr. 333, 2 Sweeny, 486.

Where it is impossible to serve an order for the examination
of a debtor in supplementary proceedings within the time pre-
scribed, the justice who signed the order can undoubtedly.
under section 772 of the Code of Civil Procedure, amend it
by altering the return day and change the place at which the
debtor is required to attend.

Ward y. Stoddard, 144 App. Div. 148, 128 Supp. 846, 2
Civ. Pro. Rep. N.S. 375.

Under See. 26 of the Code, made applicable to supplementary
proceedings by Sec. 2461, another judge in the first or second
judicial district may revive such an order, and under Sec. 52
of the Code, also made applicable to supplementary proceed-
ings generally by the same section, such an order may be re-
vived by another judge, in case of the disability, etc., of the
judge granting the original order.

(F) Exhibition of Original

The failure, upon service of an order for the examination of
a judgment debtor, to exhibit to him the original order under
the hand of the judge making it, is a mere irregularity, which
SERVICE OF ORDERS FOR EXAMINATION 177

is waived by the appearance and submission to the examination
by the judgment debtor without objection.

Newell v. Cutler, 19 Hun, 74; Billings v. Carver, 54 Barb.
40,

Failure to exhibit the original order is not such a service
as the person served is at liberty to disregard. He must appear
pursuant to the order, but may object to the service and have
it set aside upon appearance and taking of the objection. His
appearance and failure to so raise the objection operates as a
waiver,

Billings v. Carver, 54 Barb. 40.

(G) Service upon Corporation

An order in supplementary proceedings against a foreign cor-
poration cannot be served by delivery to a person designated
by the corporation as one upon whom a summons may be served
in accordance with the General Corporation Law and Sec. 432,
Code of Civil Procedure, but such service must be made upon
an officer of the corporation in accordance with Sec. 2452 of
the Code.

Myer, Matter of v. Consolidated Ice Co. 196 N. Y. 471.

(H) Effect of Mistakes or Omissions in Copy Served

Upon the service of an order for the examination of a judg-
ment debtor the copy of the affidavit annexed thereto and
served at the same time must contain the copy signatures of
the deponent and the officer taking the affidavit.

National Print Co. v. Patterson, 4 N. Y. Law Bull. 64.

An order for the examination of a judgment debtor served
upon him must: not only state the time at which he is to attend
before the referee, but also the place of such attendance and
if it omit to specify such place the judgment debtor need not
appear.

Kelty v. Yerby, 31 How. Pr. 95,

Garnishec—12.
178 SUPPLEMENTARY PROCEEDINGS

But the fact that the copy of an order for the examination
of a judgment debtor in supplementary proceedings fails to
follow the original as to specification of the day of appearance,
in that it gives the day and month but fails to specify the year,
is not fatal.

Barrington v. Watkins, 36 App. Div. 31, 55 Supp. 97.

Where the original order for the examination of a judgment
debtor in supplementary proceedings was granted on an order
reading “that said judgment was duly rendered upon service
of the summons,” but the copy of the affidavit served upon the
judgment debtor of the order read “that said judgment was
duly rendered upon said judgment debtor’s appearance or
personal service of the summons” the judgment debtor must
obey the order, as he could not have been mislead by the
variance.

Wyman, Matter of, 76 App. Div. 292, 78 Supp. 546.

The fact that the copy of the order served on the judgment
debtor required him to appear before the referee on the 4th
day of March 1862, instead of the same day in 1863, as pro-
vided in the original order, but the person who served the
order informed the judgment debtor of the date on which he
was required to appear, will not entitle the latter to disregard
said order and neglect to appear.

Lewts v. Penfield, 39 How. Pr. 490.

(I) Want of Service—Waiver

A third party by appearing and submitting to examination,
pursuant to the order, and having admitted upon the examina-
tion the service thereof, cannot thereafter raise the objection
of want of service as he thereby waived such objection.

Hart v. Johnson, 48 Hun, 505, 7 St. Rep. 133, 26 Week.
Dig. 151.
SERVICE OF ORDERS FOR EXAMINATION 179

(J) Proof of Service

A sheriff’s certificate of the service of an order for the
examination of a judgment debtor is not sutticient proof there-
of, but an affidavit must be made.

Utica City Bank v. Buel, 17 How. Pr. 498, 9 Abb. Pr. 385.

The irregularity or defect is cured, however, by the appear-
ance without objection of the judgment debtor, on the return
day.

Utica City Bank v. Buel, 17 How. Pr. 498, 9 Abb. Pr. 385.

For the form of this affidavit see list of forms at the end of
this book.

See Affidavits.
CHAPTER XIII

REFEREE

(A) Statute, 180.
(B) Qualifications, 180.
a (1) Statutory Provisions, 180.
: (2) Specifie Instances, 181.
(C) Fees of Referee, 182.
(1) Statutory Provisions, 182.
{D) Powers and Duties of Referee, 183.

(A) Statute

Section 2442 of the Code provides that a judgment debtor
or third person may be required in the order to attend and be
examined, either before the judge to whom the order is return-
able, or before the referee designated therein. It further pro-
vides that such referee must certify, to the judge to whom the
order is returnable, all the evidence and other proceedings
taken before him. It is also provided in Sec. 2443 of the
Code, that the judge to whom the order is returnable, may,
in his discretion, at any stage of the proceedings, make an
order, directing that any other examination, or testimony, be
taken by, or that a question arising, be referred to, a referee
designated in the order.

(B) Qualifications :

(1) Statutory Provisions

The qualifications of a referee in supplementary proceed-
ings are specified in Rule 79, General Rules of Practice, which
180
REFEREE 181

so far as applicable here, provides: that no person, unless he
is an attorney of the court in good standing, shall be appointed
sole referee for any purpose in any pending action or proceed-
ing. Nor shall any person be appointed a referee who is the
partner or clerk of the attorney, or counsel of the party in whose
behalf such application for such appointment is made, or who
is in any way connected in business with such attorney or
counsel, or who occupies the same office with such attorney or
counsel.

(2) Specific Instances

It is not proper for the judge to appoint a referee in supple-
mentary proceedings whose offices are connected with those of
the attorney for the judgment creditor.

Gilbert v. Frothingham, 13 Civ. Pro. Rep. 288; Rouse v.
Goodi.un, 58 St. Rep. 830, 28 Supp. 524.

But it has been held that where a judgment debtor appeared
at the examination and did not raise the question of the ap-
pointment of an attorney as referee who occupied the same
office with the attorney for the judgment creditor this operated
as a waiver of that objection.

Rouse v. Goodman, 58 St. Rep. 830, 28 Supp. 524.

It is apparent that it is not proper to appoint as referee an
attorney having an interest adverse to that of the judgment
debtor.

Thus, it has been held improper to name as referee in supple-
mentary proceedings an attorney who holds an unsatisfied judg-
ment against the judgment debtor, as this is a violation of the
spirit of rule 79 General Rules of Practice, defining who may
be appointed referee.

Higley v. Novark, 145 App. Div. 7, 129 Supp. 759.
182 SUPPLEMENTARY PROCEEDINGS

(C) Fees of Referee
(1) Statutory Provisions

The fees of a referee in supplementary proceedings are pro-
vided by Sec. 3296 of the Code. This section provides that a
referee, in an action or special proceeding brought in a court
of record, or in a special proceeding (supplementary proceed-
ings) is entitled to ten dollars for each day spent in the busi-
ness of the reference; unless at or before the commencement of
the trial or hearing, a different rate of compensation is fixed,
by the consent of the parties, other than those in default for
failure to appear or plead, manifested by an entry in the min-
utes of the referee, or otherwise in writing, or a smaller com-
pensation is fixed by the court or judge in the order appoint-
ing him.

A referee in supplementary proceedings cannot refuse to file
his report without payment of his fees, and in case of his re-
fusal so to do, the judgment creditor may obtain an order com-
pelling him to file it.

Brush v. Kelsey, 47 App. Div. 270, 62 Supp. 214.

A referee who took testimony on six different days and
made two adjournments, at which no testimony was taken,
but such adjournments were not made until the days appointed
for the hearings, is entitled to fees for eight days, and in addi-
tion thereto a reasonable number of days for time spent in pro-
curing the witnesses to sign and verify their examinations.

Brush v. Kelsey, 47 App. Div. 270, 62 Supp. 214.

The fact that upon motion to compel a referee to file his
report, which he had refused to do because of nonpayment of
fees, the judge making the order attached a memorandum there-
to fixing the amount of the referee’s fees, but on which no
order taxing the same was entered, does not operate as an adju-
dication of the amount to which such referee is entitled in an
action for such fees thereafter brought by the referee.

Brush v. Kelsey, 47 App. Div. 270, 62 Supp. 214.
REFEREE 183

A referee in supplementary proceedings appointed to de-
termine the amount necessary to satisfy the judgment under
which a receiver in supplementary proceedings was appointed
may have his fees thereon directed paid by the receiver, in
the order confirming such referee’s report.

Merry, Matter of, 11 App. Div. 597, 42 Supp. 617.

(D) Powers and Duties of Referee

This subject is taken up and considered under the Chapter
entitled “Proceedings on Examination.”
CHAPTER XIV

REVIEW OF ORDERS AND PROCEEDINGS

(A) Motions to Vacate, 185.

(1)
(2)
(3)
(4)
(5)
(6)
(7)

(8)
(9)
(10)
(11)

(B) Appeals, 198.

(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
‘(10
(11)
(12)
(13)
(14)
(C) Habeas

Statute, 185.
To What Judge Application Made, 185.
Application to Court, 186.
Who May Move to Vacate, 186.
Notice of Motion—Necessity, 187.
Specifying Notice of Defects, 187.
Grounds for Vacation, 188.

(a) In General, 188.

(b) Specific Instances, 188.

(c) Orders for Payment of Money or Delivery of Prop-

errty, 194.

(d) Contempt Orders, 195.

(e) Orders Appointing Receiver, 195.
Jurisdictional Defects—Waiver, 196.
Effect of Laches, 197.
Relief on Vacation—Refund of Payment, 197.
Entry of Vacating Order—Necessity, 197.
Statutory Provision and General Explanation, 198.
Application of Statute, 199. :
Appeals Covered by Sec. 2433, Subd. 1 Code, 199.
Appeals Covered by Sec. 2433, Subd. 2 Code, 201.
Appeals from Orders Made on Motions to Vacate Orders, 202.
Appeals Not Affecting Substantial Rights, 203,
Appealability—Default Orders, 204.
Appeal—Bar or Waiver, 204.
Appeal—Questions Reviewable, 205.
Appealability—Amount Involved, 206.
Appeal—Facts Presumed, 207.
Relief on Appeal, 207.
Appeals—Venue, 207.
Appeals to Court of Appeals, 208.
Corpus, 208.

(D) Writ of Prohibition, 209.
(E) Writ of Certiorari, 209.

184
REVIEW OF ORDERS AND PROCEEDINGS, 185

(A) Motions to Vacate

(1) Statute

Section 2433, subd. 1 of the Code, in reference to the re-
view of orders made in supplementary proceedings, provides
that an order made by a judge, out of court, may be vacated,
or modified by the judge who made it, as if it were made in an
action; or it, or the order of the judge vacating or modifying
it, may be vacated or modified, upon motion, by the court out
of which the execution was issued.

The effect of this provision of the statute is to give the right
to move to vacate or modify an order upon application.

1. To the judge making such order, or

2. To the court out of which the execution was issued.

Moreover, where a motion has been made to the judge grant-
ing an order for its vacation or modification, a motion may be
made to the court out of which the execution was issued to
vacate or modify the order made by such judge on the motion
first mentioned.

(2) To What Judge Application Made

In view of Sec, 2433 of the Code, only the judge who
granted an order for the examination of a judgment debtor in
supplementary proceedings may vacate it, and another judge
has no jurisdiction to grant such an order of vacation.

Livingston v. Livingston, 198 St. Rep. 419, 164 Supp. 419;

Bamberger-Stern Co. v. Paris, 193 St. Rep. 647, 159 Supp.
647.

Thus, it has been held that an order cannot be made vacating
an order for the examination of a judgment debtor in supple-
mentary proceedings and awarding costs to the judgment debtor
by any judge except the one who granted the original order.

Bamberger-Stern Co. v. Paris, 159 Supp. 647.

Under See. 2433, Code of Civil Procedure, providing that an
186 SUPPLEMENTARY PROCEEDINGS

order made by a judge out of court may be vacated or modi-
fied by the judge who made it, or the court out of which the
execution issued, and Sec. 26, Code of Civil Procedure, direct-
ing that in the City and County of New York a special proceed-
ing before a judge may be continued before one or more
judges in the same court with like effect, as if it had been com-
menced before the judge who last heard the same, an order
made by a judge of the city court of New York for the exam-
ination of a debtor under a judgment obtained in the Municipal
Court can be vacated or modified only by a judge of that court
or upon motion to the Supreme Court where the execution was
issued out of that court.

McAlpin v. Stoddard, 54 Misc. 647, 105 Supp. 9.

Under Sec. 2433 of the Code, providing that an order made
by a judge out of court may be vacated or modified by the judge
who made it, there is no authority for a judge of the Supreme
Court presiding at special term to vacate the order for the
examination of a judgment debtor made by another judge of
the same court.

Lnvingston v. Livingston, 198 St. Rep. 419, 164 Supp. 419.

(8) Application to Court

The court out of which an execution issued may vacate an
order of a judge of such court granting an order for the exam-
ination of a judgment debtor in supplementary proceedings,
and the objection is not available that thereby an attempt was
made by one judge to review the order of another judge.

Belfer v. Ludlow, 114 App. Div. 746, 129 Supp. 626.

(4) Who May Move to Vacate

A third party who is enjoined from paying over or deliver-
ing the judgment debtor’s property to him, and from interfer-
ing with such property is sufticiently interested to oppose the
REVIEW OF ORDERS AND PROCEEDINGS 187

proceeding and may move to vacate the order on the ground of
insufficiency of the affidavit.

First Nat. Bank of Earlville, Matter of, 99 App. Div. 20,
90 Supp. 941.

As a rule, any party who is affected by the order may move
to vacate or modify it, but a judgment debtor cannot, in all
cases, make such a motion where the order in question is direct-
ed to a third person.

(5) Notice of Motion—Necessity

Notice of application to vacate or modify an order in sup-
plementary proceedings must be given to the opposite party,
since the provisions of Sec. 772 of the Code, authorizing the
vacation, in particular instances of orders previously made by
the judge, on ex parte application, have no application to mo-
tions under Sec. 2433 of the Code.

Dorsey v. Cummings, 48 Hun, 76, 15 St. Rep. 459; Palen
v. Bushnell, 68 Hun, 554, 52 St. Rep. 556, 22 Supp. 1044;
Happel v. Lippe, 48 Misc. 605, 95 Supp. 523.

Thus, there is no power given to a judge to vacate or modify
an order in supplementary proceedings previously made by him
without notice to the judgment creditor.

Dorsey v. Cummings, 48 Hun, 76, 15 St. Rep. 459.

(6) Specifying Notice of Defects

The grounds of the motion to vacate or modify the order
assailed should be specified in the notice of motion.

This is expressly required as to irregularities by Rule 37,
General Rules of Practice.

Thus a motion to vacate an order for the examination of a
judgment debtor in supplementary proceedings based on irregu-
larity, in that the affidavit upon which the order was granted
was insufficient, will not be entertained if the judgment debtor
188 SUPPLEMENTARY PROCEEDINGS

fail to specify the irregularity in question, as required by rule
37, General Rules of Practice.
Schmitzer v. Willner, 7 Misc. 497, 27 Supp. 970.

(7) Grounds for Vacation

(a) In General

Where an order in supplementary proceedings is valid and
regular on its face, the question as to whether it should be
vacated, even if the facts could be litigated anew, rests in the
sound discretion of the court.

Insner, Matter of v. Toplitz, 86 App. Div. 1, 88 Supp. 423.

It is a general rule, that on motion to vacate an order for
examination in supplementary proceedings, the judgment upon
which such proceedings are based, cannot be attacked.

Saunders v. Hall, 2 Abb. Pr. 418; Courtois v. Harrison, 1
Hilt, 109, 3 Abb. Pr. 96, 12 How. Pr. 359.

Thus, irregularities in the recovery of a judgment in the
court below, a transcript of such judgment being filed and the
same docketed in the county clerk’s office, are not available to
vacate an order in supplementary proceedings based on such
judgment. The remedy of the judgment debtor is by motion
to the court or by appeal from the judgment.

Saunders v. Hall, 2 Abb. Pr. 418.

(b) Specific Instances

A judgment debtor may not move for the vacation of an order
for his examination in supplementary proceedings on the
ground that the referee who rendered the judgment in so doing
decided. issues without the case and therefore had no jurisdic-
tion to render such a judgment, especially where it is shown
that the judgment debtor appeared in the action in which such
REVIEW OF ORDERS AND PROCEEDINGS 1s

judgment was rendered, verified the answer and affidavit of
merits, and testified as a witness upon the trial.

Diossy v. West, 8 Daly, 298.

Supplementary proceedings cannot be instituted upon a judg:
ment where the same has passed to a receiver appointed over
the property of the judgment creditor, and a judgment debtor
may move to vacate the same.

Moore v. Taylor, 2 How. Pr. N.S. 348.

An order for the examination of a judgment debtor before
the return of execution will be set aside, where it appears that
the property, which it is claimed the judgment debtor unjustly
refuses to apply towards the satisfaction of a judgment, was
levied upon by the sheriff, but for some unexplained reason he
refused to collect the judgment, as the judgment debtor failed
to show a compliance with Sec. 2436 of the Code of Civil Pro-
cedure.

Carbonating Apparatus Co. v. Bennett, 56 Mise. 47, 105
Supp. 1052.

A judgment debtor being discharged from his judgment by
bankruptcy proceedings, may apply to have supplementary pro-
ceedings instituted thereon against him stayed on the ground
of his discharge.

World Co. v. Brooks, 7 Abb. N. S. 212.

And a judgment debtor is entitled to vacation of an order
for his examination in supplementary proceedings upon a judg-
ment recovered within four months after the institution of
bankruptcy proceedings against him, in view of Sec. 67f.
Bankruptey Law, providing: that all levies, judgments
against a person who is insolvent at any time within four
months prior to the filing of a petition in bankruptcy against
him shall be deemed null and void in case he is adjudged a
bankrupt, and the property affected by the levy, judgment, at-
tachment or other lien shall be deemed wholly discharged and
released from the same and passes to the trustee in bankruptcy.
190 SUPPLEMENTARY PROCEEDINGS

Roscoe Lumber Co. v. Payne, 183 St. Rep. 331, 149 Supp.
331.

It has been held that there may be doubt whether a judg-
ment debtor has a right to move to set aside the order for the
examination of a third party on the ground of the occurrence
of subsequent facts rendering such order improper, but that
point was not decided.

Lnngsweiler v. Lingsweiler, 18 Civ. Pro. Rep. 81, 57 Super.
Ct. Rep. (25 J. & S.) 395, 9 Supp. 305.

A judgment creditor, who has brought an action to set aside
a transfer of property by the judgment debtor to a third person,
is thereby barred from obtaining an order for the examination
of such third party in supplementary proceedings, and such an
order will be vacated.

Mutual Film Corp. v. Davis, 210 St. Rep. 320, 176 Supp.
320.

The fact that a receiver is appointed in supplementary pro-
ceedings does not terminate the proceedings, but the same con-
tinues for the purpose of setting aside fraudulent transfers made
by the judgment debtor, and the proceedings will not be vacated
by reason of the fact that regular adjournments have not been
made,

Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

Another judgment creditor cannot move to vacate an order
in supplementary proceedings which recites that it was shown
to the satisfaction of the judge that execution had been issued
and returned unsatisfied, on the ground that such execution had
not in fact been returned, since said recitals are conclusive upon
the moving party.

Lisner, Matter of v. Toplitz, 86 App. Div. 1, 83 Supp. 423.

And the fact that a third party presents an affidavit asserting
himself to be the owner of the property claimed to belong to the
judgment debtor and setting forth the circumstances under
which the transfer from the latter to the third party was made,
REVIEW OF ORDERS AND PROCEEDINGS 191

will not defeat the right to proceed with the examination, or
constitute grounds for vacating or modifying the order.

De Leon, Matter of, 68 App. Div. 41, 71 Supp. 380.

A third party order will not be set aside merely because the
person against whom it is directed claims that he has no prop-
erty of the judgment debtor, or that he is the owner of the
property alleged to belong to the judgment debtor, as such facts
will not defeat the right to an order for such third party’s ex-
amination.

First Nat. Bank of N. Y. v. Gow, 189 App. Div. 576, 124
Supp. 449.

The fact that in the caption of an order directing the exam-
ination of a judgment debtor in supplementary proceedings it
is recited as being made by the county court, when in fact it
was made by the county judge thereof, is not ground for the
vacation of such an order.

Lynch v. Riley, 22 Week. Dig. 357.

Because supplementary proceedings were instituted upon an
execution issued more than 5 years after the judgment was ob-
tained, without leave of court, will not warrant the vacation
of the order granting the same, where the merits have been
fully investigated and the judgment creditor acted in good
faith.

National Bank of Port Jervis v. Hansee, 15 Abb. N. C. 488.

An order for the examination of a judgment debtor in sup-
plementary proceedings based upon a judgment transcripted
and docketed in the county clerk’s office, will be set aside, where
the order for such examination fails to set forth such filing of
the transcript and docketing of the judgment.

Day v. Brosnan, 6 Abb. N. C. 312.

Following the rule that a third party cannot attack the valid-
ity of the judgment upon which supplementary proceedings
are based, it has been held that an attack of a judgment for
192 SUPPLEMENTARY PROCEEDINGS

alimony for an irregularity in directing the judgment can-
not be made.

Bucki vy. Bucki, 26 Misc. 69, 56 Supp. 439.

An order vacating supplementary proceedings and directing
a satisfaction of the judgment on the ground of payment of
the judgment upon which the proceedings were based, should
not be granted, where the judgment creditor opposes the mo-
tion on the ground that the payments made by the judgment
debtor were agreed to be otherwise applied, since the remedy
of the judgment debtor lies in an action to have the judgment
declared paid.

Union Surety & Guaranty Co. v. Sire, 34 Mise. 21, 68
Supp. 943.

A judgment debtor cannot have an order for his examination
in supplementary proceedings vacated on the ground of pay-
ment of the judgment, where it is admitted that the judgment
on which the proceedings were based was regular and unsatis-
fied of record, but it is claimed by him that the judgment had
in effect been discharged by an assignment of an interest in
another judgment, but there was no written assignment and
the judgment creditor denied that he had agreed to discon-
tinue the proceeding for the enforcement of his judgment.

Thompson, Matter of v. Sage, 47 Mise, 357, 94 Supp. 31.

It is proper to vacate a third party order where the judg-
ment debtor shows that pursuant to an agreement with the
judgment creditor he gave notes and checks, which, when paid
were to be applied on the latter’s judgment, and supplementary
proceedings then pending were to be thereupon discontinued,
since as long as the judgment debtor fulfills his obligation un-
der such agreement, supplementary proveedings cannot be main-
tained.

Swalm v. Lyons, 59 Misc. 384, 112 Supp. 355.

In the absence of a positive showing of bad faith in the in-
stitution of extradition proceedings, orders in supplementary
proceedings providing for the application of personal property
REVIEW OF ORDERS AND PROCEEDINGS 193

taken in possession of by the officer having the judgment debtor
in custody while on their way back to this country, will not be
vacated and set aside at the instance of the judgment debtor.

Martin v. Woodhall, 56 Super. Ct. Rep. (24 J. & 8.) 439,
21 St. Rep. 465, 4 Supp. 539.

It is not sufficient evidence of fraud to warrant the setting
aside of supplementary proceedings, that within ten days after
execution was issued on a judgment it was returned; that an
order in supplementary proceedings was immediately obtained ;
the examination of the debtor took place on that day, and at
the close of the examination a receiver was appointed, as those
facts in themselves are not illegal in the absence of fraudulent
intent on the part of the judgment debtor.

Lindsley v. Van Cortlandt, 67 Hun, 145, 22 Supp. 222.

The fact that a judgment was taken by default against a
judgment debtor in violation of an oral agreement that the
action should be discontinued without costs, is not available
as a ground for vacating the order in supplementary proceed-
ings instituted on such judgment, as the remedy of the judg-
ment debtor is by a motion to open the default.

Gardner v. Lay, 2 Daly, 118.

On a proceeding supplementary to execution, it is erroneous
to review the merits of the action in which the judgment was
recovered. Thus, a judgment debtor in such proceedings can-
not raise the objection that the judgment was not valid because
the court had no jurisdiction of the parties, when the papers
presented to the judge granting the order were regular, and as
far as they appear, he had jurisdiction.

O’Neil v. Martin, 1 E. D. Smith, 404.

The fact that an appeal has been taken from the judgment
upon which supplementary proceedings are based and the
usual undertaking to stay all proceedings given, does not con-
stitute ground for vacating such supplementary proceedings,
but they are stayed by the appeal and the giving of security.

Garnishee—13.
194 SUPPLEMENTARY PROCEEDINGS

Cowdrey v. Carpenter, 17 Abb. Pr. 107, 25 Super. Ct. Rep.
(2 Robt.) 601.

An order refusing to dismiss supplementary proceedings on
the ground that the summons in which a judgment by default
had been obtained was never served will be upheld, where the
evidence as to service was conflicting, and the judgment debtor
had never made a motion to vacate the judgment.

Greenhall v. Unger, 20 Misc. 412, 45 Supp. 1035.

A witness, subpoenaed to attend upon the examination of a
third party in supplementary proceeding, may have the sub-
peona vacated, where a receiver has already been appointed in
supplementary proceedings at the instance of another judg-
ment creditor, as such third party proceedings would be futile,
because the title to all of the judgment debtor’s property, held
either by him or a third person, had become vested in the re-
ceiver.

Steinmann v. Conlon, 150 App. Div. 708, 185 Supp. 740.

(c) Orders for Payment of Money or Delivery of Property

Where an attorney for a judgment creditor obtained an order
from a judge for the payment of money alleged to be due the
judgment debtor, without disclosing that the indebtedness up-
on which the same was claimed was disputed and that a suit
was then pending by another claimant against whom such order
was made, he imposes upon the court and those facts appearing,
together with the showing that such other claimant had later
obtained judgment determining that he was entitled to such
moneys, the order will be vacated and restoration of such mon-
eys be directed, notwithstanding the fact that such attorney
claims that he paid over this money to the judgment creditors,
(he being one of them).

Fowler v. Lowenstein, 7 Lansing, 167, 45 How. Pr. 142.

Where an order for the examination of a judgment debtor
in supplementary proceedings was set aside for insufficiency of
the papers on which it was granted, but the court directed that
REVIEW OF ORDERS AND PROCEEDINGS 1195

the amount of the judgment creditor’s judgment be retained
by the sheriff, who had moneys in his hands arising from the
collection of a judgment previously assigned for value to a
third person by the judgment debtor, until further order of the
court, such order is properly vacated and the sheriff will be
directed to pay over such moneys retained by him to the third
person mentioned, where the judgment debtor waited for more
than 7 weeks for the judgment creditor to proceed, he having
offered to submit to examination any time, as the judgment
creditor was guilty of inexcusable delay.

Heatherington v. Martens, 73 Hun, 611, 57 St. Rep. 266,
26 Supp. 115.

(d) Contempt Orders

Contempt proceedings for failure of a judgment debtor to
appear for examination will not be vacated by reason of the
fact that the judgment debtor, having made an application to
set aside the judgment, which motion was instituted by an or-
der to show cause, the latter contained a provision that in the
meantime and until further order of the court further proceed-
ings on the part of the plaintiff (judgment creditor) be stayed
which motion the record shows was later denied.

Isaacs v. Calder, 42 App. Div. 152, 59 Supp. 21.

A judgment debtor, having appealed from an order punish-
ing him for contempt in disobeying an order in supplementary
proceedings, cannot raise the irregularities raised in his SEpen
on a motion to vacate such order.

Tinkey v. Langdon, 60 Ilow. Pr. 180.

(e) Orders Appointing Receiver

A judgment creditor, who has instituted supplementary pro-
ceedings against a judgment debtor, cannot have vacated an
order appointing a receiver in supplementary proceedings in-
196 SUPPLEMENTARY PROCEEDINGS

stituted by another creditor thereafter, since he is only entitled
to have such receivership extended to his own judgment.

Pennsylvania Glass Co. v. Foehrenbach, 27 Mise. 815, 57
Supp. 396.

An order appointing a receiver in supplementary proceed-
ings will not be vacated on the ground that there was property
of the judgment debtor subject to levy and sale upon execution
and out of which the judgment might have been satisfied, where
the execution was duly issued and the sheriff properly returned
it without any interference by the judgment creditor.

Fenton v. Flagg, 24 How. Pr. 499.

Where a receiver in supplementary proceedings was appoint-
ed without complying with Sec. 2464 of the Code, in that no
notice was given to the judgment debtor, the judgment creditor
may apply for and be granted an order vacating the appoint-
ment; cancelling the receiver’s bond and releasing his sureties.

Wilhelm v. Hayman, 160 St. Rep. 374, 126 Supp. 374.

(8) Jurisdictional Defects—Waiver

Although a judgment debtor submitted to an examination
in supplementary proceedings he was not thereby precluded
from attacking the order for want of jurisdiction where there
was a substituted service and no appearance in the original
case, since the provision of Sec. 2458 of the Code of Civil Pro-
cedure, that supplementary proceedings may be instituted only
where the judgment was rendered on appearance or by per-
sonal service on a defendant is jurisdictional.

Hildreth v. Seeback, 18 Misc. 387, 41 Supp. 653.

This case would appear no longer applicable since the
amendment of Sec. 2458.

An order for the examination of a judgment debtor in sup-
plementary proceedings and the order appointing a receiver
therein will not be set aside on the ground that the judgment
lien had expired by limitation, where the judgment debtor ap-
peared for examination and submitted thereto and consented
REVIEW OF ORDERS AND PROCEEDINGS = 197

to the appointment of a receiver, since such acts operated as a
waiver of this objection.
Glover v. Gargan, 10 App. Div. 527, 42 Supp. 74.

(9) Effect of Laches

A judgment debtor who was committed to jail for contempt
in February 1895, and thereafter procured a writ of habeas
corpus which he abandoned and then paid the fine, cannot, in
January 1897, move to set aside the commitment, since he must
be deemed guilty of such laches as to defeat the motion.

Falkenberg v. Frank, 20 Misc. 692, 46 Supp. 675.

(10) Relief on Vacation—Refund of Payment

Where a judgment debtor, on being brought before a referee
in supplementary proceedings, sought an adjournment to pro-
cure counsel which was refused him until certain questions
were asked by the judgment creditor’s attorney, whereupon he
sought to pay the amount demanded under protest, which was
refused him, but he did however later pay the amount of the
judgment together with $35.00 imposed as costs, said judg-
ment debtor may, upon vacation of the order in supplementary
proceedings: as being void, have an order from the court direct-
ing the repayment of the total sum paid as the latter must be
deemed to have been paid under “duress.”

Stoddard, Matter of, 128 App. Div. 759, 113 Supp. 157.

(11) Entry of Vacating Order—Necessity

It is the duty of a judgment debtor having obtained the dis-
missal of an order for his examination in supplementary pro-
ceedings, to enter the same, and he cannot object to the grant-
ing of a second order for his examination if the order of vaca-

tion was not entered.
McAlpin v. Stoddard, 54 Mise. 647, 105 Supp. 9.
198 SUPPLEMENTARY PROCEEDINGS
(B) Appeals
(1) Statutory Provisions and General Explanation

It is provided in Sec. 2433, subd. 2, of the Code that
where the execution was issued out of a county court an appeal
from an order in the course of the proceedings may be taken
in like manner, as if the order were made in an action brought
in the same court.

-In addition to this, as will appear from cases cited in this
Chapter, an appeal also lies, in some instances, from an order
vacating or refusing to vacate an order made under subd. 1,
Sec. 2433 of the Code.

There is an apparent conflict in the decisions as to what
orders in supplementary proceedings may be appealed, but it
would appear that this confusion is largely due to the fact
that the court frequently omits to state whether the appeals
are from orders covered by Sec. 2433, subd. 1 of the Code, or
by the second subdivision of that section. In the former case,
the statute expressly states that the remedy is by motion to va-
cate the order, but the right of appeal is given by subd. 2, where
the execution was issued out of a county court.

On this account the decisions are divided, being, so far as
possible, grouped under these two subdivisions mentioned.

In addition to this, there are certain cases which hold that
See. 2433, as to review of orders in supplementary proceedings,
does not apply to certain cases therein passed upon. These
latter decisions are grouped under a still different head, i. e.,
“Application of Statute.”

Besides this, it has also been necessary to have another title
for those decisions on appeals from orders made under See.
2433, subd. 1, vacating or refusing to vacate orders. These
decisions are grouped under the head “Appeals from Orders
Made on Motions to Vacate Orders,”
REVIEW OF ORDERS AND PROCEEDINGS 199

(2) Application of Statute

Section 2438, Code of Civil Procedure, providing for review
of orders in supplementary proceedings, has no application to
an order punishing a witness for contempt in refusing to
answer questions, and an appeal lies therefrom under Sec.
1348.

People ex rel. Grant v. Warner, 51 Hun, 53, 20 St. Rep.
573, 3 Supp. 768.

A proceeding for contempt arising in supplementary pro-
ceedings constitutes a special proceeding and the appeal from
an order therein is governed by Sec. 1356 and 1357, Code of
Civil Procedure, and an appeal thereunder lies from an order
adjudging a third party in contempt for refusal to answer per-
tinent and material questions.

Hart v. Johnson, 43 Hun, 505, 7 St. Rep. 133, 26 Week.
Dig. 151.

An appeal lies from an order granting a motion to punish a
judgment debtor for contempt in failing to submit to examina-
tion as to his property pursuant to an order to that effect pre-
viously served upon him, unless he should appear and submit
to examination at a certain time, as this affects a substantial
right.

Rupert v. Lee, 101 App. Div. 492, 92 Supp. 75.

(3) Appeals Covered by Sec. 24383, Subd. 1 Code

An order adjudging a judgment debtor in contempt for
failing to pay over money as directed in a previous order, is
not reviewable on appeal. The remedy is by motion to vacate
the same.

Van Ness, Matter of, 17 App. Div. 581, 45 Supp. 576.

No appeal lies, under Sec. 1356 of the Code, giving a right
of appeal to the Appellate Division from an order affecting a
substantial right made in a special proceeding from an order ad-
judging a judgment debtor in contempt granted by a judge, as
200 SUPPLEMENTARY PROCEEDINGS

i judge’s order, since Sec. 2433 makes such section inap-
plicable to orders in supplementary proceedings and the course
to be taken is to move to vacate such order at special term and
to take an appeal from the order granted thereon.

Onetto, Matter of, 171 App. Div. 211, 157 Supp. 170.

So an appeal will not lie from an order of a county judge
adjudging a judgment creditor in contempt for disobeying
the order of such judge requiring him to submit to examination
in supplementary proceedings, where the execution was is-
sued out of the Supreme Court.

Finck v. Mannering, 46 Hun, 323, 12 St. Rep. 453.

An appeal will not lie from a ruling of the judge before
whom supplementary proceedings are instituted, excluding
certain testimony of the judgment debtor on the ground that
such evidence relates to transactions as to the judgment debtor’s
property which cannot be gone into upon the examination
under a second order in supplementary proceedings.

Carter v. Clarke, 30 Suzer. Ct. Rep. (7 Robt.) 490.

Likewise, an appeal will not lie from an order appointing
a receiver, since under Sec. 2433, Code of Civil Procedure,
it is provided that an order made in supplementary proceedings
can be reviewed only as therein stated, and that an order made
by a judge may be vacated or modified as though made in an
action, or it or the order of the judge vacating or modifying
it may be vacated or modified on motion, since under that pro-
vision the remedy is a motion to the judge who signed the
order or to the court to vacate such order and on denial to ap-
peal therefrom.

Happel v. Lippe, 48 Misc. 605, 95 Supp. 523; Palen v.
Bushnell, 68 Hun, 554, 52 St. Rep. 556, 22 Supp. 1044;Van
Ness, Matter of, 17 App. Div. 581, 45 Supp. 576; Moschall
v. Boor, 66 Hun, 557, 50 St. Rep. 236, 21 Supp. 683.

An appeal does not lie from an order appointing a referee
in supplementary proceedings, but the remedy is to apply
to the judge granting the order for its vacation.
REVIEW OF ORDERS AND PROCEEDINGS 201

Union Bank of Troy v. Sargeant, 35 How. Pr. 87, 53 Barb.
422,

An appeal may be taken from an order directing a third
party to pay over to the sheriff money of the judgment debtor
in its hands, notwithstanding Sec. 2433 of the Code providing
that an order made in such proceedings “by a judge out of
court may be vacated or modified by the judge who made it
as if it were made in an action or the order of the judge vacat-
ing it or modifying it, may be vacated or modified on motion
by the court out of which the execution was issued.”

Levy v. Swick Piano Co., 17 Mise. 145, 39 Supp. 409.

«An appeal may be taken from an order made in supplemen-
tary proceedings on the ground that the same was granted
without jurisdiction, although that objection was not raised
below.

Levy v. Swick Piano Co., 17 Mise. 145, 39 Supp. 409.

(4) Appeals Covered by Scc. 2433, Subd. 2 Code

Under Sec. 2433, subd. 2, an appeal will lie from an order
made by a county judge vacating an order for the examination
vf a third person in supplementary proceedings.

Schenck v. Irwin, 60 Hun, 361, 38 St. Rep. 608, 15 Supp.
55, 21 Civ. Pro. Rep. 96.

The refusal to grant a motion to set aside supplementary
proceedings on the ground of the discharge of the judgment
debtor in insolvency proceedings is appealable.

Robens v. Sweet, 48 Hun, 486, 16 St. Rep. 334, 1 Supp.
839, 28 Week. Dig. 417.

An appeal lies from an order refusing to appoint a receiver
in supplementary proceedings.

Dollard v. Taylor, 33 Super. Ct. Rep. (1 J. & 8.) 496;
Heroy v. Gibson, 23 Super. Ct. Rep. (10 Bosw.) 591.

An order made in supplementary proceedings upon a judg-
ment obtained in justice’s court and a transcript filed in the
202 SUPPLEMENTARY PROCEEDINGS

county clerk’s office, directing the judgment debtor to pay
money to the sheriff is appealable under Code Secs. 1342,
2433 and 3017, providing that appeals from orders affecting
substantial rights made by county courts in actions brought
therein or pending therein on appeal, may be taken to the
Appellate Division of the Supreme Court; that justice’s judg-
ments docketed in the county clerk’s office become judgments
of the county court; and that orders made by county courts in
proceedings supplementary to execution issued upon their
judgments are appealed in the same manner as orders in said
cases in said courts.

Billington v. Billington, 16 Civ. Pro. Rep. 56, 4 Supp. 504.

Likewise, an appeal may be taken under Sec. 2433, from
an order of a county judge adjudging a judgment debtor guilty
of contempt in refusing to appear for examination in supple-
mentary proceedings.

Weaver v. Brydges, 85 Hun, 503, 33 Supp. 182; Rupert v.
Lee, 101 App. Div. 492, 92 Supp. 75.

So, an appeal lies under Sec. 1348, Code of Civil Procedure,
from an order made by a county judge in supplementary pro-
ceedings punishing a witness for contempt in refusing to answer
the questions.

People ex rel. Grant v. Warner, 51 Hun, 58, 20 St. Rep.
573, 8 Supp. 768.

An order granted by a county judge giving leave to a re-
ceiver in supplementary proceedings to sell at auction a claim
of the judgment debtor in suit substantially affects the rights
of the judgment debtor and creditors opposing the application,
so that they are entitled to take an appeal therefrom under
Sec. 2483, Subd. 2, Code of Civil Procedure.

Patterson, Matter of, 12 App. Div. 123, 42 Supp. 495.

(5) Appeals from Orders Made on Motions to Vacate Orders
In view of Sec. 2438, subd. 1, of the Code, providing that
REVIEW OF ORDERS AND PROCEEDINGS 208

orders in supplementary proceedings made by a judge out of
court may be vacated or modified by him as if made in an ac-
tion and that the order of the judge vacating or modifying it
may be vacated or modified by the court out of which the execu-
tion was issued, an order directing a third person to turn over
securities to a receiver can be vacated or modified by the judge
miuking it, and an appeal taken from his order.
Flynn, Matter of, 80 Misc. 79, 140 Supp. 799.

(6) Appeals Not Affecting Substantial Rights

The judgment debtor cannot appeal from an order requir-
ing him to answer a question in supplementary proceedings,
where the answer affected no interest of his, except upon the
supposition that the disclosure of the name required might
lead to the making of an order requiring the application of the
balance of his property to the payment of the judgment.

Milliken v. Thomson, 54 Super. Ct. Rep. (22 J. & 8.) 393,
8 St. Rep. 106, 12 Civ. Pro. 168.

A judgment debtor in supplementary proceedings cannot ap-
peal from an order made in such proceedings directing a
third person indebted to the judgment debtor to pay over
such fund to a receiver appointed in the proceedings, although
he assigned such fund after the institution of the supplemen-
tary proceedings against him but before the appointment of
the receiver.

Dienst v. Gustaveson, 119 St. Rep. 371, 85 Supp. 371.

An order adjudging a judgment debtor in contempt in dis-
posing of property contrary to the terms of the injunction
vlause in the order instituting the proceedings involves a sub-
stantial right, and an appeal lies therefrom under Sec. 1342,
Code of Civil Procedure.

Newell v. Cutler, 19 Hun, 74.
204 SUPPLEMENTARY PROCEEDINGS

(7) Appealability—Default Orders

A judgment debtor may appeal from an order resettling a
previous order directing him to turn over certain property
to the receiver in supplementary proceedings, although he did
not oppose the original motion, where there is a stipulation in
the record showing that there was an argument on the motion
for resettlement of the original order.

Chestnut v. Greenberg, 162 Supp. 137.

It is questionable whether a judgment debtor can appeal
from an order adjudging him guilty of contempt which was
granted upon his default in appearing before the judge upon
the return of the order to show cause why he should not be
punished for contempt.

Tinkey v. Langdon, 60 How. Pr. 180.

Where an order in supplementary proceedings was made
giving the judgment debtor, or any person holding a subsequent
lien on the judgment debtor’s land, twenty days in which to
pay the judgment, and in case of default in such payment
provided that the receiver’s motion for transfer to him of the
debtor’s property should be granted, an ex parte order obtained
by the receiver thereafter, upon failure of such compliance,
directing the transfer mentioned, cannot be regarded as granted
on default, so as to preclude an appeal therefrom.

Moyer v. Moyer, 7 App. Div. 523, 40 Supp. 258.

(8) Appeal—Bar or Waiver

The fact that a judgment debtor who was imprisoned under
an order adjudging him in contempt for disobeying an order
in supplementary proceedings instituted against him, obtained
his discharge on habeas corpus, will not prevent his prosecu-
tion of an appeal from such order.

Gallagher v. O'Neil, 21 St. Rep. 161, 3 Supp. 126.
REVIEW OF ORDERS AND PROCEEDINGS 205

(9) Appeal—Questions Reviewable

The judgment upon which supplementary proceedings are
based cannot be attacked for irregularities in such supplemen-
tary proceedings, on appeal therefrom.

Saunders v. Hall, 2 Abb. Pr. 418; Feinberg v. Kutcosky,
147 App. Div. 393, 132 Supp. 9.

The fact that the court below has made an adjudication that
the contempt charged was prejudicial to the judgment credi-
tor’s rights is not binding on appeal where unaccompanied by
evidence supporting it.

Bernheimer v. Kelleher, 31 Misc. 464, 64 Supp. 409.

The Appellate Division has no power to reverse, as a matter
of law, an order of a county judge granted upon the return of
a habeas corpus proceeding brought for the discharge of a wit-
ness in supplementary proceedings imprisoned for his refusal
to appear and testify, where all the jurisdictional facts neces-
sary to support the order punishing the witness in question
were not admitted or conclusively established, but on the con-
trary, as found by the county judge, they were absent.

Depue, Matter of, 185 N. Y. 60, 37 Civ. Pro. Rep. 121.

Upon an appeal from a judge’s order at Chambers directing
a judgment debtor in supplementary proceedings to pay the
judgment out of moneys alleged to be in his hands, the whole
merits of the case are opened to review, yet the appellate court
will not reverse such order unless it very clearly appears that
the same was against the evidence.

Crouse v. Wheeler, 33 How. Pr. 387.

A judgment debtor, taking an appeal from an order ad-
judging him guilty of contempt in supplementary proceedings
instituted against him, cannot raise, upon such appeal, error
on the trial of the action in which the judgment upon which
the supplementary proceedings are based was obtained, al-
though his notice of appeal states that it is from the order ad-
judging him in contempt, and “all other proceedings herein.”

Isaacs v. Calder, 42 App. Div. 152, 59 Supp. 21,
206 SUPPLEMENTARY PROCEEDINGS '

A judgment debtor, appealing from an order adjudging him
in contempt for failure to appear for examination in supple-
mentary proceedings, cannot, where the order recites the neces-
sary jurisdictional facts, claim that the findings were not
based on proper affidavits, especially where he secured an
order disposing with the printing in the record of many of the
papers recited in the order, since the court has no right to
presume that the order was erroneous, or that, if the omitted
papers had been printed, they would not have supplied the
necessary proof.

Root v. Rich, 204 St. Rep. 871, 170 Supp. 871.

Objection to the affidavit upon which an order for the ex-
amination of a judgment debtor in supplementary proceed-
ings is based, which objections the record does not show were
raised before the judge granting the order, are not available
upon an appeal from an order appointing a receiver in such
proceeding.

Union Bank of Troy v. Sargeant, 53 Barb. 422, 35 How.
Pr. 87.

The objection that an order in supplementary proceedings
was made without jurisdiction, may be raised on appeal from
an order refusing to vacate the first-mentioned order, although
such objection was not raised below.

Levy v. Swick Piano Co., 17 Misc. 145, 39 Supp. 409.

A judgment debtor, claiming irregularities in the proceed-
ings leading up to his punishment for contempt, should raise
the same by motion to vacate the order punishing him for con-
tempt rather than by taking an appeal therefrom.

Tinkey v. Langdon, 60 How. Pr. 180.

(1) Appealability—Amount Involved

In an action by a receiver to reach property of the judgment
debtor the amount of the judgment upon which he was ap-
pointed governs in determining his right of appeal, where there
REVIEW OF ORDERS AND PROCEEDINGS 207

is a statutory restriction as to the amount of a judgment which
may be appealed.
Payne v. Becker, 87 N. Y. 153.

(11) Appeal—Facts Presumed

It will not be presumed on appeal from an order punishing
a judgment debtor for contempt, in the absence of evidence
thereof in the record, that an injunction restraining the trans-
fer of property was ever made, although such orders are usual.

Holmes vy. O’Regan, 68 App. Div. 318, 74 Supp. 10.

(12) Relef on Appeal

An order of the court imposing an excessive fine upon a
judgment debtor for contempt, should not be modified on ap-
peal by fixing the proper sum, but the order should be reversed
to enable the lower court to exercise its discretion as to the
sum to be imposed.

Eigenmacht v. Herter, 74 Mise. 405, 1382 Supp. 282.

An order appointing a receiver in supplementary proceed-
ings and directing the delivery to him of property by a third
person will be reversed on appeal, where it is shown that such
third person, in fact, has no property of the judgment debtor
applicable to the payment of his debts.

Kelsey v. Webb, 94 App. Div. 571, 88 Supp. 4.

Where the court has vacated a previous order setting aside
an order for the examination of a judgment debtor which was
duly served, it has power to direct a judgment debtor to appear
for examination under the original order on a later day named.

Joyce v. Spafard, 9 Civ. Pro. Rep. 342.

(13) Appeals—Venue

Where supplementary proceedings are instituted against a
judgment debtor residing in a county other than that in which
208 SUPPLEMENTARY PROCEEDINGS

the judgment was rendered, the order being made by a justice
of the judicial district in which the former county was situated,
an order by such justice refusing to vacate the proceedings
should be entered, and the appeal therefrom heard in the dis-
trict in which the judgment was rendered.

Gould v. Torrance, 19 How. Pr. 560.

(14) Appeal to Court of Appeals

Proceedings for contempt to punish for violation of orders
in supplementary proceedings must be regarded as merely in-
cidental steps in the proceedings and not as independent
special proceedings, and therefore appeals from orders direct-
ing such punishment will not lie, as a matter of right, to the
Court of Appeals, since they cannot be regarded as orders
finally determining such supplementary proceedings.

Steinman, Matter of v. Conlon, 208 N. Y. 198.

(C) Habeas Corpus

Habeas corpus proceedings are available for the discharge
of a person imprisoned under an order punishing him for con-
tempt in disobeying an order in supplementary proceedings.

Depue, Matter of, 185 N. Y. 60, 87 Civ. Pro. Rep. 121;
Kearney’s Case, 13 Abb. Pr. 459; People ex rel. Cowan v.
Hamil, 179 St. Rep. 400, 145 Supp. 400.

Thus, habeas corpus is available to review the legality of im-
prisonment for contempt in supplementary proceedings, but if
the court or officer had jurisdiction to pronounce the order for
judgment directing the imprisonment and if the contempt is
specific and plainly charged in the process, the prisoner must
be remanded. The justice or legality of the order or judgment
directing the imprisonment cannot be inquired into by habeas
corpus.

Kearney’s Case, 18 Abb. Pr. 459.

And the question whether the affidavit upon an attachment
REVIEW OF ORDERS AND PROCEEDINGS 209

for the arrest of a judgment debtor for contempt is sufficient
to warrant the issuing thereof cannot be reviewed on habeas
corpus.

Smethurst, Matter of, 4 Super. Ct. Rep. (2 Sandf.) 724, 4
How. Pr. 369, 3 Code Rep. 55.

(D) Writ of Prohibition

Undoubtedly a writ of prohibition is available to prevent the
making, entry, and enforcement of an order adjudging a judg-
ment debtor in contempt in supplementary proceedings, where
the court had no jurisdiction in the premises.

People ex rel. Aldhouse v. McCarthy, 41 Misc. 429, 84 Supp.
1062,

(E) Writ of Certiorari

Certiorari proceedings are not available to review a commit-
ment for criminal contempt in supplementary proceedings,
since such proceedings must be regarded as a civil or special
proceeding and not a criminal one, and thereby this remedy
will not lie, under Sec. 2121 of the Code, providing that
certiorari shall not issue to review any determination in a civil
action or civil proceeding.

Hanbury v. Benedict, 160 App. Div. 662, 146 Supp. 44.

Garnishee—14.
(A)
(B)
(C)

(D)
(E)
(F)
(G)

(oH

~~

(1)
(J)

Tt is provided in Sec. 2444 of the Code that each answer of
a party or witness examined must be under oath, a corporation
must attend by, and answer under the oath of an officer thereof ;
in his discretion, specify the officer.
Either party may be examined as a witness, in his own behalf,
and may produce and examine other witnesses, as upon the

and the judge may,

CHAPTER XV

PROCEEDINGS ON EXAMINATION

Statute, 210.
In General, 211.
Taking of Referee’s Oath, 211.
(1) Statute, 211.
(2) Waiver, 211.
Appearance of Parties, 212.
Procedure to Enforce Attendance of Witnesses, 213.
Swearing Parties and Witnesses, 215.
Powers and Duties of Referee, 216.
(1) In General, 216.
(2) Adjournments, 216.
(a) Statutory Provision, 216.
(b) In General, 216.
(ce) Specific Instances, 217.
The Examination, 218.
(1) Seope and Competency of Questions, 218.
(2) Signing Testimony, 224.
(3) Production of Books and Papers, 224.
(4) Right to Deposition, 226.
(5) On Second Order for Examination, 226.
)

227.

Defeat of Proceedings, 228.
Lapse of Proceedings, 228.

(A) Statute

trial of an action.

210

Admissibility of Testimony in Other Actions or Proceedings,
PROCEEDINGS ON EXAMINATION ‘211
(B) In General

A judgment debtor’s default in not appearing before the
referee should not be taken at once but a reasonable time af-
forded him for his appearance. In some jurisdictions at least.
it is usual to wait an hour. It has been held that taking a
judgment debtor’s default without waiting a half hour is in-
sufficient to warrant his punishment for contempt.

Crystal v. Crystal, 154 St. Rep. 50, 120 Supp. 50.

A referee in supplementary proceedings cannot proceed in
the matter until the order instituting the same has been properly
served on the judgment debtor, as he has not yet acquired
jurisdiction in the proceedings.

People ex rel. Grant v. Warner, 51 Hun, 58, 20 St. Rep.
573, 3 Supp. 768; Benjamin v. Myers, 3 St. Rep. 284.

And it has been held not proper to subpoena and examine
a witness in supplementary proceedings until the service of the
order instituting the same upon the judgment debtor.

Benjamin v. Myers, 3 St. Rep. 284.

(C) Taking of Referee’s Oath

(1) Statute

Under Sec. 2445 of the Code, the referee must take an oath
that he will faithfully and fairly discharge his duty upon the
reference and make a just and true report, but such oath is
not required where the parties expressly waive the same.

Form of this oath is given in the list of Forms at the end
of this work.

See Oaths.

(2) Watver

As a matter of fact, the referee’s oath is frequently waived
by express consent of the parties, and that procedure has a ten-
212 SUPPLEMENTARY PROCEEDINGS

dency to facilitate proceedings, and usually is in no way ob-
jectionable.

(D) Appearance of Parties

The personal appearance of the judgment debtor is of course
required, but he is entitled to counsel upon the examination,
and after his examination by the judgment creditor or the lat-
ter’s counsel, the counsel for judgment debtor may ask him such
questions as are pertinent and which put his testimony in the
best possible light.

A third party appearing for examination under a third
party order is entitled to the presence of counsel and the latter
may give advice and instruction in framing the answers, but
it is not proper for such third party to be cross-examined
by his counsel. At the most, he is entitled to add such explana-
tory statements as he or his counsel may deem necessary to
prevent any misapprehension of what he has said.

Corning v. Tooker, 5 How. Pr. 16.

It is generally held that a witness in supplementary pro-
ceedings is not entitled to counsel as a matter of right.

Corning v. Tooker, 5 How. Pr. 16; Sandford v. Carr, 2
Abb. Pr. 462; Schwab v. Cohen, 13 St. Rep. 709.

However, it has been held discretionary with the referee to
permit counsel for the witness to participate in an examination
where the rights of the parties seem to require aid. Such counsel
must not unnecessarily intermeddle with the proceeding and
must not delay it. It would be discreditable in the extreme
io imply that the aid of counsel, judiciously limited during
the course of the examination, would not tend in some degree
to a more intelligent consideration of the application, the
ereditor may make after the examination is concluded. It will
certainly tend to prevent abuse and undue advantage.

Schwab v. Cohen, 13 St. Rep. 709.
PROCEEDINGS ON EXAMINATION 213

(E) Procedure to Enforce Attendance of Witnesses

The usual witness fee in an action in a court of record must
be paid to a witness in supplementary proceedings before he ean
be compelled to attend. This consists of fifty cents for each
day’s attendance, and if the witness reside more than three
miles from the place of attendance, eight cents for each mile,
going to the place of attendance.

A subpoena for the examination of a witness in supplemen-
tary proceedings must be issued under the hand of the judge
or referee before whom the proceedings are pending.

Cowen v. Bernard, Inc., 80 Mise. 394, 141 Supp. 252;
Lowther v. Lowther, 115 App. Div. 307, 100 Supp. 965; Wel-
son v. Bracken, 150 App. Div. 577, 185 Supp. 435.

Such a subpoena cannot be issued under the hand of another
judge.

Wilson v. Bracken, 150 App. Div. 577, 185 Supp. 435.

In supplementary proceedings based on a judgment recovered
in the Supreme Court and instituted by an order of a justice
of that court, the attendance of a third person to testify as
a witness in the proceeding cannot be procured by a subpoena
issued by an attorney for the judgment creditor in the usual
form, subscribed by him; tested in the name of the justice
before whom the proceeding was pending and having appended
by such attorney the name of the clerk of the court, as such
subpoena is a nullity, since the subpoena should have been is-
sued by or under the hand of the judge or referee in the pro-
ceeding.

Lowther v. Lowther, 115 App. Div. 307, 100 Supp. 965.

And where supplementary proceedings are instituted and
examination directed to take place before the judge a subpoena
for the attendance of a witness must be issued under the hand
of such judge, and not in the usual form where witnesses are
desired to testify in an action.

Lowther vy. Lowther, 115 App. Div. 307, 100 Supp. 965,
214 SUPPLEMENTARY PROCEEDINGS

A subpoena for the examination of a witness in supplemen-
tary proceedings should be issued under the hand of the referee
before whom he is to testify and it should not be tested in the
name of the judge and county clerk as though issued in an ac-
tion,

People ex. rel. Jacobs v. Ball, 837 Hun, 245; Knowles v. De
Lazare, 8 How. Pr. N. S. 35.

This holding is based upon Sec. 854, Code of Civil Pro-
cedure, providing that where a referee is duly empowered by
law to hear, try, or determine a matter or to do any other act
in an official capacity, in relation to which proof may be taken,
or the attendance of witnesses may be required, the subpoena
may be issued by and under the hand of such referee.

And a witness will not be punished for contempt in failing
to obey a subpoena signed by the clerk with seal of the court
attached, as such a subpoena is unauthorized.

Knowles v. De Lazare, 3 How. Pr. N. 8. 35.

The subpoena should be issued out of the court in which the
judgment upon which the proceedings are based was rendered.
Thus, if supplementary proceedings upon a judgment recovered
upon a judgment in the Supreme Court are instituted before
a county judge, the subpoena for witnesses should be issued
out of the Supreme Court.

People ex rel. Brunett v. Dutcher, 3 Abb. N. S. 151.

A jud: ont ereditor may subpoena and examine witnesses
in supplementary proceedings without examining the judgment
debtor at all, as the whole object of the proceedings is to as-
certain whether the debtor has property not exempt from
execution, in the hands of himself or any other person due to
him; all of which facts a judgment creditor may be able to
establish by witnesses independent of the judgment debtor;
and the latter himself may be unworthy of credit as a witness.

Graves v. Lake, 12 How. Pr. 33.

Section 2444, Code of Civil Procedure, providing that either
party may summon in his own behalf and may produce and
PROCEEDINGS ON EXAMINATION 215

examine other witnesses as on the trial of an action, relates
to the manner in which the examination shall be conducted
and does not govern the manner of summoning such witnesses.
The latter is governed by Sec. 854, Code of Civil Procedure,
specifying that where a judge, referee or other person is au-
thorized to hear, try, or determine a matter in relation to
which the attendance of a person as a witness may be required,
a subpoena may be issued by or under the hand of the judge
or referee requiring the attendance of such person.

Lowther v. Lowther, 115 App. Div. 307, 100 Supp. 965.

A person sought to be examined in supplementary proceed-
ings merely as a witness cannot be compelled to appear and
give testimony by the service upon him of an order so directing,
but his attendance in such proceedings can only be enforced
upon the due service upon him of a subpoena as upon the tria'
ot an action.

Depue, Matter of, 185 N. Y. 60, 37 Civ. Pro. Rep. 121;
People ex rel. Grant v. Warner, 51 Hun, 53, 20 St. Rep. 573,
3 Supp. 768.

(F) Swearing Parties and Witnesses

It is provided in Sec. 2443 of the Code that each answer
of a party or witness must be under oath. The parties and
witnesses must therefore be sworn by the judge or referee
before they testify.

It was held in an examination of a judgment debtor under
the former creditor’s suit that when the judgment debtor had
once been sworn before the master, to answer as to his property,
it was not necessary or proper to swear him a second time upon
an adjourned examination.

Hudson v. Plets, 11 Paige, 180.

That rule plainly applies to our present supplementary pro-
ceedings.
216 SUPPLEMENTARY PROCEEDINGS
(G) Powers and Duties of Referee

(1) In General

A referee in supplementary proceedings cannot pass upon
the question of whether proper service of the order was made
upon the person to whom it is directed, but such matter should
be presented at once before the judge who granted the order.
Thus, the judgment creditor having proof of service sufficient
on its face, a third party directed to appear before a referee
for examination cannot avoid punishment for contempt in not
obeying the order by presentation of a counter-affidavit before
the referee in which proper service is denied.

Wilcox v. Harris, 59 How. Pr. 262.

A referee has no authority to take the examination out of
the hands of the judgment creditor, or his attorney, and instead
of acting the mere part of one before whom an examination
is conducted, take upon himself the part of dominus lites, or
prosecutor, and press questions suggested by his own motion
to an inquisitorial extent. In other words, the duty of a ref-
cree is to take, and not to make, the examination of the judg-
ment debtor, and if he attempts to do so in an officious manner,
and partisan spirit he transcends his duty.

People ex rel. Korotowsky v. Leipzig, 52 How. Pr. 410.

(2) Adjournments

(a) Statutory Provisions

Tt is provided by Sec. 2444 of the Code that the judge or
referee may adjourn supplementary proceedings, from time to
time, as he thinks proper.

(b) In General

Notwithstanding the fact that a judgment creditor is en-
titled to examine his judgment debtor fully to ascertain all
PROCEEDINGS ON EXAMINATION 217

that he can with reference to his property, he cannot have the
hearing adjourned from time to time merely to harass the
debtor.

Feinberg v. Kutcosky, 147 App. Div. 893, 182 Supp. 9.

Where supplementary proceedings are conducted before a
judge, it is within his discretion to deny a motion to adjourn
the examination.

Morrison, Matter of v. Stemher, 49 Misc. 464, 98 Supp. 850.

A referee in supplementary proceedings may adjourn the
same from time to time, even though the judgment debtor to
be examined refuses to consent thereto. However, the author-
ity to adjourn should not be abused or exercised except for
good cause.

Kaufman v. Thrasher, 10 Hun, 438.

Where a referee is appointed the question of the right to
adjournments is one to be determined by the referee and not
the judge granting the order.

Mason v. Lee, 23 How. Pr. 466.

(c) Specific Instances

An adjournment should be granted to a judgment debtor
where his ill health or extreme mental excitement would render
an examination improper and liable to produce injurious con-
sequences. As a general rule, a liberal indulgence should be
extended in the matter of adjournments especially should this
be the case where there is reasonable apprehension of danger
to the health of the party to be examined.

Mason v. Lee, 23 How. Pr. 466.

Under the practice in the former creditor’s suits, it was
held that the master had no right to adjourn the proceedings
indefinitely without the consent of the judgment debtor and
to summon him again before him at a future day, but that he
should require the examination to proceed with all reasonable
218 SUPPLEMENTARY PROCEEDINGS

diligence and to close the same so that the judgment debtor
might be discharged from further attendance.

Hudson y. Plets, 11 Paige, 180.

This rule would seem to be equally applicable to supple-
meutary proceedings as they now exist in this state.

A referee in supplementary proceedings may adjourn the
examination therein from the place named in the order to
another place in the same county.

Weaver v. Brydges, 85 Hun, 503, 33 Supp. 182.

A referee appointed in supplementary proceedings may fix
a date for the examination where the judge granting the order
omitted so to do, and merely directed the judgment debtor to
appear at such times and places as might be duly appointed by
the referee, and the latter may issue his summons for the debtor
to appear for examination and he may be punished for contempt
for failure to obey such summons.

Redmond v. Goldsmith, 2 N. Y. Law Bull. 19.

(H) The Examination

(1) Scope and Competency of Questions

A judgment debtor being examined in supplementary pro-
ceedings is not allowed to make evidence for himself by stating
matter not called for by the questions put to him, but he may
state, in his answer, such facts as are necessary to enable the
-court to understand the true position of the matter and thing
inquired of. He is, therefore, not always required to answer
simply yes or no, but may go into some detail to explain his
answers. Furthermore, he may be examined by his attorney
after his examination by the judgment creditor and answer
questions explaining his previous testimony and putting it in
its true light.

It is impossible to lay down any fixed rule on this subject
which will be universally applicable, further than this, that
PROCEEDINGS ON EXAMINATION 219

the whole examination must have for its single object to ascer-
tain whether there is any property of the debtor which ought
to be applied to the payment of the judgment creditor’s claim,
and the extent of the inquiry, in each particular case must be
left to the good sense of the officer under whose direction it
takes place, having in view this general object.

Leroy v. Halsey, 8 Super. Ct. Rep. (1 Duer) 581), 1 Code
Rep. 275, 11 Leg. Obs. 252.

A judgment debtor cannot be punisked for contempt in fail-
ing to answer questions as to incumbrances on his property six
months previous to the examination, where he states that he is
unable to give the information sought by the questions, since
the latter was not necessarily in his power to answer.

Wicker v. Dresser, 14 How. Pr. 465.

If it appear upon examination of a judgment debtor that
since the rendition of the judgment but before the serving of
the order upon him, he sold property for its full value, and re-
ceived the full consideration, any inquiry as to the name of the
purchaser is immaterial and will be excluded, but if the exam-
ination shows that full value was not paid, and there was an
agreement that upon re-payment of the consideration the judg-
ment debtor should have the property back, then a full exam-
ination of the particulars will be permitted and the name of
the purchaser must be given.

Williams v. Carroll, 2 Hilt. 438.

It appearing that the judgment debtor was a member of a
firm, his co-partner being examined in the proceedings as a
witness, cannot refuse to state the amount received by the judg-
ment debtor from the business and whether the partnership
books were within his control.

People v. Marston, 18 Abb. Pr. 257.

The examination of a judgment debtor in supplementary
proceedings who had made an assignment for the benefit of
creditors, should not be restricted to property acquired by him
since the assignment, but the examination may cover an in-
220 SUPPLEMENTARY PROCEEDINGS

quiry as to property transferred to another with the apparent
intent to hinder or delay creditors.

Seligman v. Wallach, 67 How. Pr. 514, 6 Civ. Pro. Rep.
232,16 Abb. N. C. 317; Schneider v. Altman, 8 Civ. Pro. Rep.
242, 2 How. Pr. N.S. 448, 16 Abb. N. C. 312.

A third party sought to be examined as to property of the
judgment debtor in his hands must answer anv question tend-
ing to show that he has such property and he may be punished
for contempt in refusing to answer the same.

Hart v. Johnson, 43 Hun, 505, 7 St. Rep. 183, 26 Week.
Dig. 151.

The examination of a witness claimed to have knowledge con-
cerning property of the judgment debtor may take a wide range,
as the proceedings are of a necessarily inquisitorial nature.

People ex rel. Roache v. Hanbury, 162 App. Div. 337, 147
Supp. 851.

An officer of a trust company, being examined as a witness
in supplementary proceedings, may be asked as to his knowl-
edge of a certain check drawn to the order of a person to whom
the judgment debtor had transferred considerable property
which such person had managed and sold under the judgment
debtor’s direction, where it appeared that some of the money
was deposited in the trust company in her name; that checks
on such deposits were signed by her in blank, to be filled out
by the judgment debtor, and the check first mentioned was in-
dorsed by the person mentioned, but collected by the judgment
debtor.

People ex rel. Roache v. Hanbury, 162 App. Div. 337, 147
Supp. 851.

Upon the examination of a trustee of the judgment debtor he
may be asked if a sale of the property held by him was not made
for less than it was worth, and also if he did not himself pay
the purchase price on said sale, instead of the alleged pur-
chaser.

Alillar vy. Weaver, 23 Mise. 254, 53 Supp. 259,
PROCEEDINGS ON EXAMINATION 221

The examination of a witness in supplementary proceedings
may be full and complete and it is not restricted to the scope
of the examination of witnesses before trial.

Furst Nat. Bank, N. Y. City v. Gow, 189 App. Div. 582, 124
Supp. 454.

A witness in supplementary proceedings to whom it appears
that the judgment debtor has transferred property, must answer
all questions affecting the transfer, and seeking for information
as to their bearing upon the question, with the view of show-
ing whether the transfer was for a good consideration and was
made in good faith, or whether it was fraudulent.

Lathrop v. Clapp, 40 N. Y. 328.

In Lathrop v. Clapp, cited above, the court held that a wit-
ness, under such circumstances, is bound to answer all ques-
tions touching the transfer and seeking for information as to
and bearing wpon the question whether such transfer was for
a good consideration or was honest or fraudulant, and upon re-
fusal to answer he may be punished for contempt.

A subpena for the examination of a witness in supplemen-
tary proceedings will not be vacated or modified by reason of the
fact that there is pending an action instituted by the judgment
debtor against the witness to recover an alleged interest of the
judgment debtor in a partnership composed of the latter and
such witness, since the judgment creditor has a right to exam-
ine to the fullest extent before a referee in supplementary pro-
‘ceedings a witness concerning property claimed by the judg-
ment creditor to belong to the judgment debtor, and contended
hy the witness to be his own.

First Nat. Bank, N. Y. City v. Gow, 189 App. Div. 582, 124
Supp. 45-4.

A witness in supplementary proceedings, who is a partner
of the judgment debtor, cannot refuse to answer a question as
to the amount received by the judgment debtor from the firm.
222 SUPPLEMENTARY PROCEEDINGS

and whether the witness has the control of the partnership
books so that they may be produced upon the hearing.

People v. Marston, 18 Abb. Pr. 257.

Section 835, Code of Civil Procedure, protecting attorneys
against certain disclosures, does not apply to management of
the client’s property, as that is an agent’s and not an attorney’s
function; and such attorney cannot refuse to answer questions
of that nature, upon an examination under a third party order
against such attorney.

Howe, Matter of v. Stuart, 68 Misc. 352, 123 Supp. 971.

An attorney, testifying as a witness in supplementary pro-
ceedings, cannot refuse to answer under Sec. 835 of the Code,
as to a transaction wherein a mortgage was given to him by a
person to whom the judgment debtors had conveyed real estate,
on the ground that he acted as attorney for the mortgagor,
since by becoming a party to the mortgage he lost his privilege
and was bound to testify in respect to its,execution and the
consideration upon which it was executed, the same as any wit-
ness.

Foster v. Wilkinson, 37 Hun, 242.

Under Sec. 2460, Code of Civil Procedure, providing that
a party or witness on examination is not excused from answer-
ing a question on the ground that he or another person claims
to be entitled to the property as against the judgment creditor,
a witness cannot excuse his refusal to answer on the ground
that he substantially disputes the rights of the debtor to the
property and under Sec. 2447, Code of Civil Procedure, an
order would not be made for the delivery thereof.

First Nat. Bank N. Y. City v. Gow, 139 App. Div. 582, 124
Supp. 454.

A judgment debtor may properly be required to answer fully
concerning the disposition he may have made of his property,
in whatever manner transferred, notwithstanding the fact that
his examination may show that he has been guilty of a crime
in doing it, and without any qualification or restriction as to
PROCEEDINGS ON EXAMINATION 223.

the nature and character of such crime. Furthermore, he may
be compelled to answer questions relating to the source from,
and the means by which he acquired property concerning which
it is claimed he has made fraudulent disposition.

Forbes v. Willard, 54 Barb. 520, 87 How. Pr. 193.

Where a witness claims that the answer to questions will
tend to criminate him, it is within the province of the court to
determine whether that will probably be the effect of the answer,
and when the court determines that such answer will not have
that effect the witness must answer.

Forbes v. Willard, 54 Barb. 520, 837 How. Pr. 193.

But a witness in supplementary proceedings, being charged
with criminal contempt, under Sec. 2457 of the Code, for re-
fusing to answer questions, has the right, under Sec. 750,
subd. 5, Judiciary Law authorizing the punishment of wit-
nesses for refusing to answer any legal question, to question
the pertinency of the questions asked, inasmuch as by reason
of the fact that he was not a party to the supplementary pro-
ceedings, he could not raise that question in those proceedings,
and otherwise he would be liable to punishment for contempt
without full opportunity to be heard, and his constitutional
rights of liberty and property would be infringed.

People ex rel. Roache v. Hanbury, 162 App. Div. 337, 147
Supp. 851. :

Upon the examination of the assignee of a judgment debtor
as a witness in supplementary proceedings, he cannot refuse to
answer questions as to the debtor’s disposition of his property
just before the assignment on the ground that the answer may
tend to show the assignment to be fraudulent, and this although
the judgment creditor has instituted a suit to set aside the
assignment.

Sickle, Matter of, 52 Hun, 527, 23 St. Rep. 585, 5 Supp.
703, 17 Civ. Pro. Rep. 138.

A witness cannot refuse to obey a subpoena for his attendance
in supplementary proceedings because there had been an irregu-
224 SUPPLEMENTARY PROCEEDINGS

larity in the adjournment of the proceedings, where such wit-

ness had appeared and demanded a reference on the question

whether the subpoena had been served upon him or not, and

considerable testimony was taken upon the reference without

objection to the regularity of the supplementary proceedings.
Westervelt v. Shapiro, 182 Supp. 338.

(2) Signing Testimony

As the examination is, in its nature and effect, an answer to
a complaint; and, as it is taken orally, great liberality should
be allowed in correcting errors and mistakes. The original
testimony should be left unaltered. But the party examined
should be permitted to make the desired correction by a sup-
plementary statement, and corrections may be made after the
first examination has been concluded and the testimony signed.

Corning v. Tooker, 5 How. Pr. 16.

Notwithstanding, Sec. 2460, Code of Civil Procedure, pro-
viding that a witness shall not be excused from answering a
question, on the ground that his examination will tend to con-
viet him of the commission of a fraud, or to prove that he has
been a party or privy, to, or knowing of, a conveyance, assign-
ment, transfer, or other disposition of property for any purpose,
a witness cannot be compelled to sign his testimony when his
so doing might in view of some authorities, subject him to legal
liability not otherwise existing, but under the Code Section
mentioned, he must, of course, testify as to those matters.

Marks v. Spaulding, 43 Hun, 365, 6 St. Rep. 530.

(8) Production of Books and Papers

A judgment creditor cannot obtain an inspection of books
and papers in the way allowed upon an examination before
trial in an action, but a witness may be compelled to produce
by a subpoena duces tecum books and papers and be required
to examine them to refresh his recollection and to enable him
PROCEEDINGS ON EXAMINATION 225

to make full disclosure in respect to the subject of the examina-
tion.

First Nat. Bank of New York City v. Gow, 189 App. Div.
582, 124 Supp. 454.

And the right to secure the production of books and papers
for use in supplementary proceedings by subpena duces tecum
exists against a corporation.

Pendergast v. Dempsey, 18 Civ. Pro. Rep. 198, 10 Supp.
938; Semmes v. Noel, 18 Civ. Pro. Rep. 200 (note), 10 Supp.
939 (note) ; Homes v. Stietz, 6 Civ. Pro. Rep. 362.

In Pendergast v. Dempsey, cited above, the subpoena was
served upon the secretary of the corporation, and undoubtedly
service may be made upon any officer of the corporation upon
whom summons may be served.

Books and papers may be produced upon the examination
of a domestic corporation as a third party by the service of a
subpoena duces tecum on an officer of the corporation having
power to comply with its mandates. The production of such
books, however, cannot be compelled by service of such subpoena
on a mere employee, having custody of the books as such, but
not being an officer, trustee, director, or stockholder of the
corporation.

Wainwright v. Tiffany, 13 Civ. Pro. Rep. 222.

It is a matter for the court to determine whether a witness
directed to produce certain papers need not do so because they
relate to private matters, but, where it appears that the witness
was formerly a partner of the judgment debtor, and alleged
to be a party to a fraudulent transfer, he will be directed to
produce checks and paid notes signed by him and the partner-
ship relating to the alleged fraudulent transfer, and if he fail
so to do may be fined for contempt.

Champlin v. Stoddart, 17 Week. Dig. 76.

While books and papers may be required to be produced up-
on an examination in supplementary proceedings the referee
cannot compel them to be left with him. When the examina-

Garnishee—15.
226 SUPPLEMENTARY PROCEEDINGS

tion is concluded or adjournment for the day the books may be
‘ taken away by the person examined and returned whenever
and as often as required for use on the examination, but there
is no power to compel the witness to leave the books with the
referee.

Barnes v. Levy, 23 Civ. Pro. Rep. 253, 29 Supp. 1076.

And a physician, being examined in supplementary proceed-
ings as judgment debtor, will not be required to turn over to
the receiver his original books of account, setting forth informa-
tion acquired in the treatment of his patients, and such order
will be denied since such disclosures are forbidden under Sec.
834 of the Code, especially where he has already furnished the
receiver with the list of the accounts.

Kelly v. Levy, 29 St. Rep. 659, 8 Supp. 849.

(4) Right to Deposition

A deposition to take the testimony of a witness without the
State in supplementary proceedings cannot be granted, as the
provisions of the Code in reference to depositions relate to ac-
tions only.

Champlin v. Stodart, 64 How. Pr. 3878; Morrell v. Hey, 15
Abb. Pr. 480; Graham v. Colburn, 14 How. Pr. 52, 18 Super.
Ct. Rep. (6 Duer) 678.

(5) On Second Order for Examination

Upon the second examination of a judgment debtor, a judg-
ment creditor can only question him as to whether he has ac-
quired any property, real or personal, since the date of his
examination under the former order.

Carter v. Clarke, 30 Super. Ct. Rep. (7 Robt.) 490; Goodall
v. Demarest, 2 Hilt. 534.
PROCEEDINGS ON EXAMINATION 227

(6) Admissibility of Testimony in Other .letions or Proceed-
ings

The testimony of a judgment debtor in supplementary pro-
ceedings is privileged from use in a subsequent criminal pro-
ceeding against him by Sec. 2460, Code of Civil Procedure,
and this applies as well to answers tending to show the com-
mission of a crime which a judgment debtor gives in response
to questions without claiming his privilege, as the true mean-
ing of the provisions of the statute is that the examination of
a witness in supplementary proceedings shall not be used
against him in any criminal proceedings, which means that it
shall not be used as evidence of any fact testified to by him on
such examination.

Barber v. People, 17 Hun, 366.

‘When Sec. 2460, Code of Civil Procedure provided that the
answer of a judgment debtor in supplementary proceedings
could not be used against him in a civil or criminal proceeding
thereafter instituted, it was held that the protection continued
so that such answers would be excluded in a subsequent civil
action, although, after the giving of such testimony in supple-
mentary proceedings, but before the trial in the later civil ac-
tion, the statute was amended so as to make the privilege ap-
plicable only to criminal proceedings.

Lapham v. Marshall, 51 Hun, 36, 20 St. Rep. 795.

While the testimony of a judgment debtor in supplementary
proceedings cannot be used in a subsequent criminal proceeding
against him, such testimony is admissible as an admission in a
civil action.

Dusenbury v. Dusenbury, 63 How. Pr. 349.

In an action of replevin to recover goods alleged to have been
cbtained by a judgment debtor by fraudulent pretenses, the
latter being examined as a witness for the plaintiff, may be
asked if the sworn statements made on his examination in sup-
plementary proceedings were true, to which he replied that
228 SUPPLEMENTARY PROCEEDINGS

the important and material portions thereof were true, as such
former testimony was not itself given in evidence.

Grossman v. Walters, 58 Hun, 603, 33 St. Rep. 921, 11
Supp. 471.

In a case where the testimony of a judgment debtor in sup-
plementary proceedings is admissible in a subsequent civil
action against him, it is proper to prove the same by the testi-
mony of a person present at the examination, as it has been
held that such testimony is not made by statute so far a record
as to make it primary proof in all other actions to the exclusion
of other proof.

Kain v. Larkin, 42 St. Rep. 571, 17 Supp. 2238.

(1) Defeat of Proceedings

It was held that the discharge of a judgment debtor under
the insolvency act, if produced upon the examination operates
to suspend the further proceedings under the order and the
validity of the discharge cannot be raised by the judgment
creditor.

Coursen v. Dearborn, 30 Super. Ct. Rep. (7 Robt.) 148.

The fact that a third person, sought to be examined under
a third party order, presents an affidavit before the referee as-
serting himself to be the owner of the property alleged to
belong to the judgment debtor, and setting forth the circum-
stance under which a transfer from the latter to the third party
was made, will not defeat the right of the judgment creditor
to proceed with the examination.

De Leon, Matter of, 63 App. Div. 41, 71 Supp. 380.

(J) Lapse of Proceedings

Where the referee is absent upon the return day of the order
the proceedings are not defeated, but the judge granting the
same may make another order continuing said proceedings and
PROCEEDINGS ON EXAMINATION 229

directing the judgment debtor to appear at a later date named
for examination.

Kethen v. Shipherd, 16 Civ. Pro. Rep. 183, 24 St. Rep. 739,
4 Supp. 339; Johnson v. Tuttle, 17 Abb. Pr. 315.

So, where supplementary proceedings have not been con-
tinued by adjournment from time to time, or the proceedings
thereunder have been abandoned, an order may be granted con-
tinuing such proceedings and the judgment debtor directed to
appear at a time and place indicated therein.

Schanck v. Conover, 56 How. Pr. 4387.

Or, the judgment creditor may elect to commence new pro-
ceedings by an order de novo, from the same or another judge,
and such election constitutes an abandonment of the former pro-
ceedings so as to render the new order valid.

Schanck v. Conover, 56 How. Pr. 437.

An order for the continuation of the examination of a judg-
ment debtor in supplementary proceedings is justified, where,
upon the return day of the first order, the judgment debtor
appeared, but the examination was suspended by reason of his
moving to vacate the proceedings for irregularity, and he also
appeared on the hearing of the latter motion, and on this being
denied, the examination was adjourned by the judge to a sub-
sequent day, of which notice was given only to his attorney,
but the judgment debtor not appearing on said adjourned day
the judgment creditor obtained the order of continuation requir-
ing him to appear in the original proceeding at a further day,
which order was served personally upon him.

Ammidon v. Walcott, 15 Abb. Pr. 314.
CHAPTER XVI

PROPERTY REACHABLE

(A) Real Estate and Interests Therein, 230.
(B) Personal Property, 232.
, (1) After-acquired Property, 232.
(2) Particular Instances, 233.
(3) Exemptions, 239.
(a) Statute, 239.
(b) In General, 240.
(c) Trust Funds, 240.
(d) Earnings, 242.
(e) Household Goods, Etc., 248.
(f) Proceeds of Exempt Property, 250.

(A) Real Estate and Interests Therein

Strictly speaking, the mere institution of supplementary pro-
ceedings by service of an order for examination on the judg-
ment debtor does not create an enforceable lien or charge on the
debtor’s real estate, but a so-called equitable lien is created,
which ripens into a bare legal title for the purpose of obtaining
satisfaction of the judgment creditor’s judgment upon the ap-
pointment of a receiver in the supplementary proceedings.

Under this right acquired, the receiver may collect the rents
from such realty to apply on the judgment but he cannot sell
the same. Resort to execution must be had for that purpose.

It is true that the judgment creditor does have a right to
bring an action to set aside a fraudulent conveyance of real estate
by the judgment debtor; and in some instances to sue to make
his judgment a lien on real estate, but this right does not arise
under the statute authorizing supplementary procecdings,

230
PROPERTY REACHABLE 231

However, a receiver in supplementary proceedings may, in
some instances, bring such an action, and in that respect this
remedy arises under such proceedings.

This matter is fully discussed under the subsequent chapter
entitled “Receiver.”

It is held that certain interests in real estate may be reached
in supplementary proceedings, and a consideration of those
cases follows under this head and the subsequent chapter on
Receivers. .

It was held that a right of dower before assignment is a
chose in action reachable under a creditor’s bill.

Stewart v. McMartin, 5 Barb. 438.

And this rule has been held applicable in supplementary pro-
ceedings.

Sayles v. Naylor, 5 St. Rep. 816.

A judgment creditor cannot recover judgment charging real
estate voluntarily improved by the judgment debtor out of his
own funds, where the latter made such improvements upon the
property of his infant child, of whom he was the natural guar-
dian.

Hickey v. Dixon, 42 Mise. 4, 85 Supp. 551.

There is no interest reachable in supplementary proceedings
where a devise was made to executors in trust to sell at such
time and on such terms as to them seemed best and to divide the
proceeds equally among testator’s heirs, since the beneficiaries
received no title to the land, and a judgment against one of
them, rendered before the sale, creates no lien thereon.

Sayles v. Best, 66 Hun, 628, 49 St. Rep. 460, 20 Supp. 951.

The interest of a judgment debtor who was a child of a dece-
dent, under whose will the residuary estate was devised, “in
trust,” for the widow during life, and upon her death it was
directed that the entire estate, or so much thereof as remained,
should be divided among the testator’s children in equal shares,
and, should any child die leaving issue such issue should take
the share of the parent, if living, cannot be reached, since the
232 SUPPLEMENTARY PROCEEDINGS

judgment debtor cannot be regarded as having a present interest
in the estate during the widow’s lifetime.
Lauter v. Hursch, 67 Misc. 165, 121 Supp. 651.

(B) Personal Property

(1) After-acquired Property

After-acquired property cannot be reached in supplementary
proceedings.

Columbian Institute v. Cregan, 11 Civ. Pro. Rep. 87, 3 St.
Rep. 287; Webb v. Dill, 18 Abb. Pr. 264; Potter v. Low, 16
How. Pr. 549; Albright v. Kempton, 4 Civ. Pro. Rep. 16;
People ex rel. Duvall v. Cocks, 162 App. Div. 453, 147 Supp.
829.

And it has been held that salary not due until the expiration
of the day on which the order in supplementary proceedings
was served could not be reached in supplementary proceedings
as such salary was not then due.

First National Bank of Auburn v. Beardslee, 8 Week. Dig. 7.

So, insurance moneys received by a judgment debtor after
the institution of supplementary proceedings against him upon
household furniture destroyed by fire, and which were exempt
from execution, cannot be reached, since the latter were not duc
~ and owing at the time of the institution of the proceedings.

Sands v. Roberts, 8 Abb. Pr. 343.

But rent accruing and collected under an existing lease can-
not be regarded as after-acquired property, within the rule as
to its exclusion from property reachable in supplementary pro-
ceedings.

Lerotora v. Revmann, 87 St. Rep. 921, 53 Supp. 921, 5 Ann.
Cas. 19.

And the rule that after-acquired property cannot be reached,
applies to money which a judgment debtor has earned but
which did not become due until after the service of the order
PROPERTY REACHABLE 233

for his examination. Thus, where a judgment debtor was em-
ployed as manager of a corporation and received for his serv-
ices $125.00 per month with certain commissions in addition
thereto, his salary for the month of June paid to him on July
10th, 5 days after the service of the order for his examination,
cannot be reached.

Albright v. Kempton, 4 Civ. Pro. Rep. 16.

As is apparent, the question of the exemption of such earn-
ings was not considered in the above case.

It was the old rule that salary to accrue in the future could
not be reached by creditor’s bill.

McCoun v. Dorsheimer, 1 Clarke, 144; Browning v. Bettis,
8 Paige, 568.

This is the rule under supplementary proceedings, irrespec-
tive of the question of the exemption of such salary, under Sec.
2463 of the Code.

Woodman v. Goodenough, 18 Abb. Pr. 265; Kroner v. Reilly,
49 App. Div. 41, 63 Supp. 527.

(2) Particular Instances

The liability on the bond given by an undersheriff to the
sheriff (the judgment debtor), cannot be reached in supple-
mentary proceedings unless the judgment debtor has made good
the undersheriff’s default, as the cause of action belongs to the
judgment debtor as sheriff and not as an individual.

Norcross v. Holinsworth, 838 Hun, 127, 64 St. Rep. 264, 31
Supp. 627.

The fact that a pledgee from the judgment debtor has pro-
cured a judgment for the amount of the debt against the judg-
ment debtor, and a receivership instituted by another judgment
creditor has been extended to his judgment, will not cut off
the lien of the pledge and the right to have the property sold
and the proceeds applied to the payment of the debt and will
not prevent the granting of leave to him to use the receiver and
others for foreclosure of his lien, and sale of the property.
234 SUPPLEMENTARY PROCEEDINGS

Pate v. Hoffman, 61 Hun, 386, 40 St. Rep. 915, 16 Supp.
74,

A seat in the New York Stock Exchange may be reached.

Londheim v. White, 67 How. Pr. 467; Powell v. Waldron,
89 N. Y. 328; Ritterband v. Baggett, 4 Abb. N. CO. 67, 42
Super. Ct. Rep. (10 J. & S.) 556; Grocer’s Bank v. Murphy,
60 How. Pr. 426.

While an ordinary insurance policy on the life of a judgment
debtor naming his wife beneficiary, cannot under Sec. 52, Do-
mestic Relations Law, be reached in supplementary proceed-
ings, yet where the interest of the beneficiary is not vested, but
the insured retains the right to change the beneficiary without
her consent, the same may be reached.

Jacobs v. Strumwasser, 84 Misc. 28, 145 Supp. 916; Hall v.
Hess, 97 Misc. 331, 161 Supp. 418; Clark v. Shaw, 91 Misc.
245, 154 Supp. 1101.

And the receiver in supplementary proceedings may have
such a policy surrendered and the surrender value applied in
payment of the judgment, since under Domestic Relations Law
Sec. 52, surrender is authorized.

Clark v. Shaw, 91 Mise. 245, 154 Supp. 1101.

A receiver in supplementary proceedings cannot reach any
property rights accruing under a policy of insurance upon the
judgment debtor’s life payable to his wife, although premiums
in excess of $500 annually have been paid out of the judg-
ment debtor’s property, and the statute (now Sec. 52, Domestic
Relations Law) provides that where the amount paid out of
the funds of a husband is over $500 the lien of a creditor at-
taches to the excess so paid. '

.. Masten v. Amerman, 51 Hun, 244, 21 St. Rep. 222, 4 Supp.
681.

The court, in the case last cited, stated that the judgment
debtor had no interest in such insurance which could be reached
by a receiver in supplementary proceedings, which proposition
is undoubtedly sound. It also held that the receiver was not a
PROPERTY REACHABLE 235

ereditor within the meaning of the statute limiting the exemp-
tion of insurance to cases where the premiums do not exceed
$500. It is hard to understand how such a holding can be sus-
tained, as the purpose of the statute in question seems to be
perverted thereby.

An annuity payable to the judgment debtor may be reached
in supplementary proceedings.

TenBroeck v. Sloo, 138 How. Pr. 28, 2 Abb. Pr. 234; Gifford
v. Rising, 55 Hun, 61, 28 St. Rep. 310, 8 Supp. 279.

And an annuity given under a will to a husband and wife
may be reached in supplementary proceedings against the hus-
band as such annuity belongs solely to the husband during
their joint life.

Gifford v. Rising, 55 Hun, 61, 28 St. Rep. 310, 8 Supp. 279.

Alimony awarded to a wife in a divorce action brought bv
her must be regarded as simply an allowance for her support
and maintenance and not such a debt as may be reached.

Romaine v. Chauncey, 129 N. Y. 566, 42 St. Rep. 267.

In another case, however, it has been held that where a judg-
ment had been recovered for a limited divorce by a wife against
her husband, by which he was required to pay for her support
and maintenance for life, a specified sum semiannually, the
same could be reached in supplementary proceedings and a re-
ceiver therein could collect the same.

Stevenson v. Stevenson, 34 Hun, 157.

A judgment creditor cannot reach property consisting of
movable chattels which the judgment debtor assigned for the
benefit of creditors while the execution was in full life in the
sheriff’s hands. The lien of the execution was spent when the
judgment creditor failed to levy upon such property.

Watrous v. Lathrop, 6 Super. Ct. Rep. (4 Sandf.) 700.

A patent right can be reached in supplementary proceedings,
and the court can, if necessary, direct an assignment thereof
by the judgment debtor to the receiver in such proceedings.

Clan Ranald v. Wykoff, 41 Super. Ct. Rep. (9 J. & S.) 527;
236 SUPPLEMENTARY PROCEEDINGS

Barnes v. Morgan, 3 Hun, 703, 6 T. & C. 105; Gillett v. Bate,
86 N. Y. 87, 10 Abb. N. C. 88.

An unliquidated claim for damages in favor of a judgment
debtor, to recover which an action by the judgment debtor is
pending, passes to a receiver in supplementary proceedings.

Bryant v. Grant, 87 Hun, 68, 67 St. Rep. 639, 33 Supp.
957.

While there may be some doubt as to whether a judgment
recovered in a tort action may be reached in supplementary pro-
ceedings, a judgment founded on a contract only and in which
nothing can be recovered except a precise sum, and nothing
punitive can be awarded, may be reached in supplementary
proceedings.

TenBroeck v. Sloo, 13 How. Pr. 28, 2 Abb. Pr. 234.

It was held under the old practice that a creditor’s bill
would not reach the right of action of a judgment debtor for
an injury to property exempt by statute from levy and sale
upon execution.

Hudson v. Plets, 11 Paige, 180.

This rule holds good to-day.

Andrews v. Roman, 28 How. Pr. 126.

Thus, .a judgment for the conversion of property exempt from
levy and sale under execution cannot be reached by a receiver
appointed in supplementary proceedings and it is immaterial
whether the action in which the judgment was rendered was
pending at the time of the appointment of the receiver, or judg-
ment had been recovered therein prior thereto.

Andrews v. Rowan, 28 How. Pr. 126.

Nor can the judgment creditor reach a judgment recovered
by the judgment debtor against another creditor for an unlaw-
ful levy upon, and sale of exempt property, since such judg-
ment represents the exempt property for the valve of which it

was obtained.
Tillotson v. Wolcott, 48 N. Y. 188.
PROPERTY REACHABLE 237

A bank deposit of the judgment debtor may be reached in
supplementary proceedings.

Berkman v. New York Produce Exchange Bank, 101 Mise.
282, 167 Supp. 441.

But, property in the hands of a bank as depositary of a
bankruptcy court cannot be reached in supplementary pro-
ceedings, as such fund, being in the hands of that court, must
be disposed of as it directs.

Havens v. National City Bank of Brooklyn, 4 Hun, 131,
6 T. & C. 346.

The interest of a judgment debtor in a partnership may be
reached in supplementary proceedings, and such interest con-
stitutes his share of the partnership effects or the proceeds there-
of after payment of the partnership debts and the adjustment
of the rights existing between the partners.

Lovins v. Laub, 85 Misc. 336, 147 Supp. 304.

But, interest of a partner in the firm property cannot be
reached in supplementary proceedings, and the appointment of
a receiver will be denied, where the judgment upon which the
proceedings were based having been recovered against the three
partners of the firm, the judgment as to the first mentioned
partner was released by an instrument, which recited that an
indebtedness existed and that the judgment creditor had re-
covered thereon a judgment against the firm and its individual
members, and that such firm had been dissolved and the judg-
ment creditor had agreed to compound or compromise her
claim against the debtor so released, and the judgment creditor
released and forever discharged him from all liability, etc.,
since by such release the judgment creditor had only a judg-
ment against the two remaining copartners, and the interest
of the released partner in the firm cannot be reached.

Hunter v. Hunter, 67 App. Div. 470, 73 Supp. 886.

The wife of a judgment debtor cannot claim the proceeds of
a note made by her and the judgment debtor jointly, and dis-
counted at a bank, since the whole of such proceeds belong to
238 SUPPLEMENTARY PROCEEDINGS

the judgment debtor and may be reached in supplementary pro-
ceedings against him.

Trustees of Board of Publication and Sabbath School Work,
Matter of, 22 Mise. 645, 50 Supp. 171, 27 Civ. Pro. Rep. 109.

Contingent fees which a judgment debtor has in cases which
have not been tried and judgment recovered in cannot be reached
in supplementary proceedings. /

Gibney v. Reilly, 26 Misc. 275, 56 Supp. 1055.

Action will not lie, at the instance of a receiver in supple-
mentary proceedings, against a wife of the judgment debtor
to recover the value of services rendered by the judgment
debtor in carrying on the separate business of his wife, where
the only proof as to such services consisted of the testi of
the wife in supplementary proceedings, wherein she stated
that she was engaged in the boat business, that she had never
made any arrangment with her husband about paying him for
carrying on this business, never paid him any salary, never
had any settlement with him, and all he had was board and
clothes.

Lynn v. Smith, 35 Hun, 275.

The court, in the case last cited, distinguished the case of
Kingman v. Frank, 338 Hun, 471, in which a judgment credi-
tor was allowed to recover for accrued salary due from the
wife of the judgment debtor, on the ground that it was shown
there that the judgment debtor was employed under an agree-
ment to manage and superintend the wife’s separate business
carried on by her, at the agreed price of $8.00 per week, where-
as, in the case then before the court, no agreement was shown
as to employment or wages.

Upon a judgment against a municipal corporation, moneys
raised by the latter by taxation for purposes of government,
and in the hands of its fiscal officer, cannot be reached, as such
funds cannot be regarded as property of the city within the
contemplation of the statute.

Lowber vy. New York, City of, 7 Abb. Pr. 248.
PROPERTY REACHABLE 239

A receiver in supplementary proceedings is entitled to judg-
ment vacating a conveyance by a judgment debtor of practic-
ally all his property to his wife and daughter on condition that
the wife discontinue a suit for a limited divorce then pending,
and that she shall thereafter live apart from him, as such con-
veyance is fraudulent and void as to existing creditors.

Morgan v. Potter, 17 Hun, 403.

A receiver in supplementary proceedings is entitled to a
certificate of membership of the judgment debtor in the funds
of an organization of licensed pilots, where it appears that such
certificate has a present substantial value and upon the per-
formance of certain acts by the judgment debtor he is en-
titled to the payment of a certain sum, and this notwithstand-
ing the fact that the certificate of membership provides that the
game is not transferable or divisible in any manner or shape
nor available to any other person than the member.

Dease v. Reese, 89 Misc. 657, 80 Supp. 590.

It is provided in Sec. 2461 of the Code, that where the execu-
tion was issued as prescribed by Section 1934 or 1941, a debt
due to or other personal property owned by, one or more of the
defendants not summoned, jointly with the defendants sum-
moned, or with any of them, may be reached in supplementary
proceedings.

(3) Exemptions

(a) Statute

Certain property is exempt, and not reachable in supplemen-
tary proceedings. The statutes upon this subject are found in
the Code.

In Sees. 1390-1404a, are set forth articles of personal prop-
erty, homestead, burying ground, military pay, etc., as being
exempt from execution. These provisions are made appli-
cable to supplementary proceedings by Sec. 2463 of the Code.
The latter section also exempts any money, thing in action or
240 SUPPLEMENTARY PROCEEDINGS

other property held in trust for a judgment debtor, where the
trust has been created by, or the fund so held in trust has pro-
ceeded from, a person other than the. judgment debtor; or the
earnings of the judgment debtor for his personal services, ren-
dered within sixty days next before the institution of the
special proceedings; when it is made to appear by his oath or
otherwise, that those earnings are necessary for the use of a
family, wholly or partly supported by his labor.

(b) In General

Our law of exemptions as to personal property of a judgment
debtor is applicable and applies to property of a judgment
debtor outside the state, and the same cannot be reached in
supplementary proceedings if such property would be exempt
within this state.

Bunn v. Fonda, 2 Code Rep. 70.

A judgment debtor cannot excuse his failure to deliver to a
recelver in supplementary proceedings property only quali-
fiedly exempt, unless he has claimed such exemption at the time
of the demand of the property by the receiver.

Moss, Matter of v. Inghtfine, 60 Misc. 62, 111 Supp. 675.

Judgment debtors in supplementary proceedings cannot be
directed to turn over to the receiver property which is exempt
from levy and sale under execution.

Bitting v. Vandenburgh, 17 How. Pr. 80.

The exemption of earnings in supplementary proceedings
against a judgment debtor, is equally available whether dis-
covery thereof is made in supplementary proceedings against
the judgment debtor or in third party proceedings.

Trustees of Board of Publication and Sabbath School Work,
Matter of, 22 Misc. 645, 50 Supp. 171, 27 Civ. Pro. Rep. 109.

(c) Trust Funds

Funds in the hands of a trustee which may be made appli-
PROPERTY REACHABLE 241
cable to the payment of a judgment against the cestui que
trust, can only be reached through a court of equity and not
vy means of suplementary proceedings.

Locke v. Mabbett, 3 Abb. Ct. App. Decs. 68, 2 Keyes 457.

Only that part of the income of a trust fund in excess of
that needed for the support of a judgment debtor can, in any
event be reached and the only way of reaching it is by direct
action therefor in equity.

Manning v. Evans, 19 Hun, 500.

A trust fund for the support and maintenance of a judgment
debtor, which is inadequate for that purpose, certainly cannot
be reached, even in an action. :

De Camp v. Dempsey, 10 Civ. Pro. Rep. 210.

In view of Sec. 2463 of the Code, providing that the statute
authorizing supplementary proceedings shall not apply or au-
thorize any interference with property held in trust for a judg-
ment debtor, where such trust was created by or proceeded
from a third person, the court cannot make an order authoriz-
ing the trustee to pay over such part of the trust fund to the
judgment debtor as may be necessary for the support of him-
self and wife, as it assumes that such surplus may be reached
in supplementary proceedings.

McKinstry v. Atwood, 76 App. Div. 300, 79 Supp. 122.

A judgment debtor who is the beneficiary under the will of
her father, by which will he devised to his trustees a house
and lot in trust to give to her “the free and unrestrained
use, occupation and possession thereof during the term of
her natural life only” and on her death to convey it to her
children in fee, and in which will the trustees were also
directed to pay to the decedent’s widow a specified sum out of
the income arising from certain personal securities, and to
divide any surplus of such income among his children, and
on the widow’s death, to pay each daughter then living the
income of a certain share of the estate during her life, cannot
be compelled to transfer any of such interest or property to

Garnishee—16.
242 SUPPLEMENTARY PROCEEDINGS

a receiver in supplementary proceedings, it being shown that
the widow is still living and in possession of the house and lot
in question, and there was no proof of any surplus income to
divide.

Manning v. Evans, 19 Hun, 500.

This case is of doubtful present application in view of the
provisions of Sec. 2463 of the Code.

A testamentary trust to pay to the husband of the testatrix
all of the income, and such part of the principal of the estate
as necessary for his support, and whenever he should “desire
to engage in any business or enterprise” to pay him, upon
notice, “the whole or any part of such principal,” is illegal as
to creditors, and the recovery of a judgment against the bene-
ficiary creates a lien upon the real estate covered by such trust,
and an action by the judgment creditor (and undoubtedly
the receiver in supplementary proceedings on the judgment)
may be maintained to set aside such trust and have the real
estate charged with the payment of the judgment.

Uliman v. Cameron, 186 N. Y. 339.

While a trust fund in favor of a judgment debtor which is
payable in installments, and not all of them due cannot be
reached in supplementary proceedings, yet where a trust has
been so far performed that the sum is payable directly to the
judgment debtor by the trustee, it may be reached in third
party order proceedings against the trustee, since title to the
fund has passed to the judgment debtor.

Lawrence v. Pease, 66 Hun, 633, 50 St. Rep. 851, 21 Supp.
223.

(d) Earnings

A judgment debtor, requiring moneys earned for his per-
sonal services to relieve the necessities of his family, may ap-
propriate the same therefor, although he has not claimed exemp-
tion, and it is sufficient for him to assert the requisite facts
disclosing such right of exemption when called upon to trans-
PROPERTY REACHABLE 243

fer the money to the sheriff or a receiver appointed in the pro-
ceedings.

Hancock v. Sears, 938 N. Y. 79, 4 Civ. Pro. Rep. 255.

But, it has been held that in order to be entitled to the exemp-
tion accorded by Sec. 2463 of the Code, and to justify the dis-
position of property after the service of the order with the usual
injunction clause contained therein, the testimony of the judg-
ment debtor must affirmatively show that the money was per-
sonal earnings.

Goldberger v. Tack, 142 St. Rep. 1047, 108 Supp. 1047.

But, a judgment debtor will not be punished for contempt
in disposing of property contrary to the injunction contained
in the order for his examination, where it appears that his
earnings are necessary for the use of his family, and he gave
his wife a part of his salary, received before the service of the
order, for household expenses, and paid another sum for board.

Sturm v. Parsons, 134 Supp. 584.

It has been held that a judgment debtor cannot pay a debt
with money received by him for commissions for personal
services rendered within sixty days, although such debt con-
stituted a loan for money obtained and used in the support of
the judgment debtor’s family, as the return of the money loaned
was the payment of an ordinary indebtedness not protected
by the statute.

Gillett v. Hilton, 11 Civ. Pro. Rep. 108.

It may be stated that the rule is well established that the
exemption of earnings of a judgment debtor under Sec. 2463
of the Code refers only to the earnings of the judgment debtor
for his personal services, and not to the proceeds of a business
conducted by the judgment debtor, except that the net proceeds
of a business may be exempt, where his services are the chief
factors in it.

Schafer v. Tyroler, 94 Misc. 127, 158 Supp. 1090.

Thus, the earnings of a judgment debtor will be held exempt
and not reachable in supplementary proceedings, although the
244 SUPPLEMENTARY PROCEEDINGS

judgment debtor did not perform all of the services. If he
superintended the work and performed all the labor he could
reasonably do considering his state of health, it is sufficient,
although he was aided by others in performing the work.

Moran v. Darcy, 10 Misc. 789, 31 Supp. 1130.

And the earnings of a photographer doing nearly all his own
work are exempt, and not reachable in supplementary proceed-
ings, where it appears that he is a married man having a family
to support, and that the moneys received by him were used
for the absolute needs of his family, as the term “personal
services” includes earnings derived from a business where
the services are the chief factor in it, although a part of the
work may be performed by others.

McSkimin v. Knowleton, 20 Civ. Pro. Rep. 274, 14 Supp.
288.

So, the earnings of a judgment debtor, consisting of tuition
fees paid him as proprietor of a school, quarterly in advance,
and who received such quarterly fees amounting to $600.00
on the day that supplementary proceedings were instituted,
are exempt and he will not be obliged to pay over the same to
a receiver appointed in such proceedings, where it appears
that he has no other source of revenue and depends entirely on
the profits of such business to support himself and family, con-
sisting of himself, wife and five children.

Miller v. Hooper, 19 Hun, 394.

Likewise, a judgment debtor will not be punished for con-
tempt for transferring property in violation of the injunction
clause, where the property disposed of consisted of money
received for work done under a contract for carpenter work,
the same being paid'to his employees working on the job with
him, and his only means of livehood being such contract, as
Sec. 2463 of the Code, granting a judgment debtor exemption
of earnings within 60 days, should be liberally construed in
favor of the judgment debtor.

Murray, Matter of v. Kuhnle, 58 Mise. 813, 109 Supp. 669.
PROPERTY REACHABLE 245

But, a judgment debtor, upon being shown to have in his
possession money received from the sale of milk produced on
his farm, and that the money was necessary to support his
family ; but did not show that he did any of the work connected
therewith, except hauling the milk to the condensary and
receiving a check therefor, cannot claim exemption of such
money, as he failed to show that the same was the result of his
personal services.

Wyman, Matter of, 76 App. Div. 292, 78 Supp. 546.

Likewise, it has been held that moneys due from customers
to a person engaged in the business of retailing ice in which he
employs two ice carts and several men, are reachable in sup-
plementary proceedings as such moneys are not “personal earn-
ings” within the meaning of the Code.

Mulford v. Gibbs, 9 App. Div. 490, 41 Supp. 273.

A judgment debtor, who is a saloonkeeper, cannot claim
exemption of money received by him in the conduct of his
business, as the latter cannot be regarded as earnings from his
personal services within the meaning of Sec. 2463 of the Code.

Prince v. Brett, 21 App. Div. 190, 47 Supp. 402.

A judgment debtor in supplementary proceedings cannot
successfully contend that certain earnings disclosed in supple-
mentary proceedings were necessary for the use of his family
and therefore exempt under Sec. 2463, Code of Civil Pro:
cedure, forbidding the taking of the earnings of a judgment
debtor for his personal services, rendered within 60 days,
where, while it does appear that he used some part of the
wages in support of his family, it is not shown “by his oath or
otherwise, that these earnings are necessary for the use of his
family.”

Seeley, Matter of v. Connors, 109 App. Div. 279, 95 Supp.
1109.

A sum of money received by a judgment debtor in excess of
the judgment, within two weeks after the service on him of
an order in supplementary proceedings, from his business as
246 SUPPLEMENTARY PROCEEDINGS

iron worker, in which he maintained a shop with forgers, drills,
electrical motors, machines, and other appliances; used a
truck in connection with the business, and employed three and
sometimes more workmen, is not exempt under Sec. 2463 of the
Code.

Schafer v. Tyroler, 94 Mise. 127; 158 Supp. 1090.

Where, on examination of the judgment debtor he stated
that he had $1000.00 in his possession at that time but did not
show when he earned it, the court may properly order that it
be applied on the judgment, as it will be presumed that it was
earned prior to the service of the order instituting the pro-
ceedings. .

Van Ness, Matter of, 21 Mise. 249, 47 Supp. 702.

The share of a tenant of a farm in the proceeds arising from
the sale of a calf and dairy products, on a dairy farm con-
sisting of fifty-five cows, where the assistance of two or more em-
ployees is required by him in carrying on the farm work, is not
exempt under Sec. 2463 of the Code as “earnings,” especially
where such moneys are used by the tenant (the judgment
debtor), in payment of an ordinary indebtedness, and not for
necessities for his family.

Teelon, Matter of, 87 Misc. 361, 150 Supp. 729.

A judgment debtor who hired a woman to keep house for
him, paying for her services, her board and the board of her
two children, also furnishing them clothing in part, cannot
claim exemption of moneys received by him from boarders,
although he testified upon his examination that he had no
means of support except his services; that he considered the
sums so obtained as necessary for the use of himself, his house-
keeper and her children, whom he claimed as a family, as
‘the section of the Code granting the exemption of earnings
cannot be regarded as applicable to a judgment debtor having
a household of the nature mentioned.

Van Vechten v. Hall, 14 How. Pr. 436.

While the Code provides that the earnings of a judgment,
PROPERTY REACHABLE 247

debtor for his services rendered within sixty days next before
the institution of supplementary proceedings are exempt if it
appear that the same are necessary for the use of his family,
yet such exemption cannot be claimed where it is shown that
the judgment debtor’s wife conducted a boarding house and
supported the family thereby, and this notwithstanding that
the judgment debtor testified that his family was dependent
upon him, but it did not appear that he contributed in any way
to its support.

Martin v. Sheridan, 2 Hilt. 586.

A sum of money realized from the purchase of a business of
the judgment debtor is not exempt, and may be reached in sup-
plementary proceedings, notwithstanding the fact that he ex-
pended the sum in the payment of rent for a place of business,
a part of which premises his family resided in, as the statute
does not offer him protection as to such moneys.

Aschemoor v. Emmvert, 5 N. Y. Law Bull. 80.

The mere showing that a judgment debtor’s monthly salary
was $233.33, and that he maintained a home in New York
City for a wife and two children, who were dependent upon
him, does not establish the right to claim the exemption there-
of under Sec. 2463 of the Code. There must be further
proof of facts to warrant such exemption.

Twelfth Ward Bank v. Hamilton, 58 Mise. 173, 109 Supp.
21.

A judgment debtor cannot claim exemption of earnings
under Sec. 2463 of the Code, where the same are used by him
in the support of his family, consisting of himself and two
orphan nieces, as the latter are not within the contemplation
of the statute in question.

Blake v. Bolte, 9 Misc. 714, 30 Supp. 209.

The salary of a judicial officer while in the hands of the
disbursing officer of a city cannot be reached in supplementary
proceedings. It is against the policy of the law to require a
municipal officer to be subject to the embarrassment and an-
248 SUPPLEMENTARY PROCEEDINGS

noyance of supplementary proceedings, and it would interfere
with the orderly administration of the municipal government.

Waldman v. O’Donnell, 57 How. Pr. 215; Remmey v. Ged-
ney, 57 How. Pr. 217 (note).

The salary of a public officer cannot be reached in supple-
mentary proceedings, and this rule prevents a receiver in such
proceedings from being entitled to take either the salary earned
after the judgment debtor had been reinstated after wrongful
discharge or a gratuity given him by the statute when a wrong-
ful discharge has been made, and an assignment thereof to the
receiver is invalid and not enforcible.

People ex rel. Blair v. Grant, 45 Mise. 505, 92 Supp. 742.

But it was held in an earlier case that the salary of a judge
which has been received and in his possession may be reached
in supplementary proceedings.

Blake v. Bolte, 10 Misc. 333, 63 St. Rep. 408, 31 Supp.
124, 24 Civ. Pro. Rep. 166, 1 Ann. Cas. 78.

And it was held that fees of public officers when earned by
piece or job, as the work was done, could be reached by credi-
tor’s bill even though the day of payment had not arrived.

Thompson v. Nixon, 38 Edw. Ch. 457; Smith v. 4
Edw. Ch. 653.

The fees earned by a juror while in attendance at a term of
court cannot be reached in supplementary proceedings, as he
is sufficiently a public official to render such fees exempt.

Brown vy. Edinger, 61 Mise. 366, 114 Supp. 1116.

 

(e) Household Goods, Ete.

A horse, or other animal used by a judgment debtor in carry-
ing on his business is a “working team” within the meaning
of the statute exempting the latter from execution.

Finnin v. Malloy, 33 Super. Ct. Rep. (1 J. & S.) 382.

A judgment debtor, conducting the business of cartman, has
a right to claim as exempt in supplementary proceedings a
PROPERTY REACHABLE 249

horse of the value of $250.00 used by him in such business, and
the fact that he has another horse and cart which is mortgaged
and the mortgage past due but possession of the horse has re-
mained in the judgment debtar and no foreclosure action in-
stituted, does not preclude the judgment debtor from claiming
the first horse as exempt, and the receiver in such proceedings,
taking the same against the protest of the judgment debtor
is.liable in conversion.

Finnin v. Malloy, 33 Super. Ct. Rep. (1 J. & S.) 382.

The property of a widow, who is engaged in the express
business and owns a desk, counter, two chairs, three wagons,
two sets of harness and a Dutch collar, and $7.47 in a bank,
is exempt from execution under Secs. 1890-1392 of the Code
exempting household furniture, working tools, ete., not exceed-
ing in value $250.00, especially in view of the testimony show-
ing that the income of the judgment debtor during the past three
months from the business mentioned ranged from nothing to
$14.00 per week, and that this, together with sums received
from renting out rooms does not give her more than a bare
living.

Galowitz v. Bumford, 54 Mise. 41, 104 Supp. 492.

A cheap watch and chain used by a clothing cutter is exempt
and cannot be reached in supplementary proceedings, as the
same must be regarded as a part of the tools and implements
necessary to his occupation.

Edlunds, Matter of, 35 Hun, 367.

But a valuable gold watch owned by a judgment debtor may
be reached in supplementary proceedings, unless it is contended
that the same was exempt as an article of property necessary
to the judgment debtor’s use in his vocation.

Deposit Nat. Bank v. Wickham, 44 How. Pr. 421.

However, where a watch is used by a judgment debtor in his
daily occupation, or where it is hung up for use in the house
of a family having no clock, it must be regarded as exempt,
250 SUPPLEMENTARY PROCEEDINGS

where the members of such family have such avocations as to-
render a timepiece indispensible.

Bitting v. Vandenburgh, 17 How. Pr. 80.

A seat in a Stock Exchange is not exempt, under Sec. 1291 of
the Code, as the same cannot be regarded as constituting the
working tools of the member.

Leggett v. Waller, 39 Misc. 408, 80 Supp. 13.

(f£) Proceeds of Exempt Property

Where a team owned by a judgment debtor was necessary
in his business and therefore exempt from execution, money
and a note acquired by him in the trade of one of the horses
for another horse is likewise exempt and cannot be reached in
supplementary proceedings.

McGtoney v. Childs, 41 Hun, 607, 5 St. Rep. 251.

Moneys received on a fire insurance policy which insured
‘exempt household furniture and clothing, cannot be reached
in supplementary proceedings, since if payment is made in
like property it is exempt, and if payment is made in money
the judgment debtor has a reasonable time within which to
invest it in household furniture and clothing.

Bayer v. Sack, 66 Mise. 536, 121 Supp. 1122.

But while moneys received under an insurance policy for the
destruction of exempt property of the judgment debtor is
exempt for a reasonable time, yet it would appear that such
exemption is lost after the expiration of such time.

Cooney v. Cooney, 65 Barb. 524.
CHAPTER XVII

SECOND ORDER—RIGHT TO

(A) Grounds for Order, 251.

(B) Necessity of Termination of First Proceeding, 254.
(C) Application—To What Judge, 257.

(D) Notice of Application—Necessity, 257.

(E) Affidavit for Order—Sufficiency, 257.

(F) Service of Second Order—Excuse, 261.

(A) Grounds for Order

A second examination will not be permitted unless the credi-
tor can show specifically that facts arising after the first
examination call for further examination.

Irwin v. Chamber, 40 Super. Ct. Rep. (8 J. & 8.) 482.

And where there is not a sufficient showing of reason for the
second examination of a judgment debtor, an order refusing
to vacate an order therefor will be reversed on appeal.

Shane Bros. & Wilson Co. v. Henshaw, 174 App. Div. 606,
161 Supp. 115.

And the rule that a judgment debtor will not be aad
to a second examination in supplementary proceedings unless
some good reason is shown, applies to the granting of an order
to the assignee of a judgment.

Orr’s Case, 2 Abb. Pr. 457.

But the rule that a second order for examination will be
granted only upon good reason being shown, is not jurisdiction-
al, the matter rests in discretion, the only jurisdictional facts
being the recovery of the judgment and the issue and return of
the execution.

Marshall v. Link, 20 Civ. Pro. Rep. 109, 36 St. Rep. 60,
13 Supp. 224.

251
252 SUPPLEMENTARY PROCEEDINGS

The mere fact that the proceedings under an order for the
examination of a judgment debtor were abandoned by the
parties is not ground for the granting of a second order, unless
facts are clearly shown calling for it.

Sellig v. McIntyre, N. Y. Daily Reg., July 28, 1883.

Where there had been a partial examination under an order
for supplementary proceedings, but the judgment debtor and
a witness refused to answer certain questions and the matter
of the contempt was presented to the judge it was held that
instead of inflicting punishment for the contempt he had the
power to direct a re-examination of the judgment debtor.

Kaufman v. Thrasher, 10 Hun, 438.

A judgment creditor will not be granted a second order for
the examination of the judgment debtor, where the latter has
abundant property within the creditor’s knowledge subject to
levy and sale on execution.

Ritterband v. Maryatt, 12 Leg. Obs. 158.

Upon an application to vacate a second order for the examina-
tion of a judgment debtor, the judgment creditor may present
further proof than upon his ex parte application. Thus, he
may show that the proceeding is not taken to harass the judg-
ment debtor but to reach subsequently acquired property.

Marshall v. Link, 20 Civ. Pro. Rep. 109, 36 St. Rep. 60, 13
Supp. 224.

The fact that supplementary proceedings were dismissed
by reason of the judgment creditor’s ‘failure to appear at an
adjourned hearing, and the court thereafter refused to rein-
state such proceedings, does not prevent the judgment credi-
tor from obtaining another order for the examination of the
judgment debtor.

Weiss v. Ashman, 11 Mise. 377, 32 Supp. 161, 24 Civ. Pro.
Rep. 268, 1 Ann. Cas. 314.

Where an order in supplementary proceedings was vacated
because of failure to return the execution and it does not appear
SECOND ORDER—RIGHT TO 258

that the examination of the debtor was completed, a second
order for his examination is properly granted.

Methodist Book Concern & Co. v. Hudson, 1 How. Pr. N. S.
517.

An order for the examination of a judgment debtor in sup-
plementary proceedings will not be set aside upon the affidavit
of the judgment debtor, who states that three years previously
he was exhaustively examined by the same attorney on a judg-
ment recovered by the plaintiff administratrix individually,
and further states that the judgment debtor is a poor man
and has only his salary of $1000.00 a year for the support of his
family, but it is not alleged that he has now no property which
should be applied in payment of the judgment.

Smith v. Cowles, 114 App. Div. 295, 99 Supp. 747.

A judgment creditor is not entitled to an unlimited number
of orders for the examination of third persons, and where it
appears that two such orders have been obtained and examina-
tions had thereunder show that either of the third parties
has sufficient property of the judgment debtor to settle the
judgment, an order for the examination of another person
claimed to be indebted to the judgment debtor, will not be
granted.

Crane v. Beecher, 26 St. Rep. 233, 6 Supp. 225.

Under an examination in a creditor’s suit it was held that
when there had been an examination of a judgment debtor
and property therein discovered had been turned over to a
yeceiver pursuant to an order and such property sold by the
receiver, the power of the master was spent, and he had no
authority to direct a subsequent examination of the judgment
debtor as to the title to such property.

Hudson v. Plets, 11 Paige, 180.

In order to obtain a second order for examination of a judg-
ment debtor it must be shown that he has acquired property
since the first examination, but this rule is not applied where
the first proceedings have gone down inadverently.

Jurgenson v. Hamilton, 5 Abb. N. C. 149.
4 SUPPLEMENTARY PROCEEDINGS

Lo
cr

(B) Necessity of Termination of First Proceeding

In order to warrant the granting of a second order for the
examination of a judgment debtor the proceedings under the
first order must have been finished or some order made by the
court to that effect.

Brockway v. Brien, 37 How. Pr. 270; Carter v. Clarke, 30
Super. Ct. Rep. (7 Robt.) 490; Tobias v. Walton, 150 St. Rep.
587, 116 Supp. 587.

And this is so although through an inadvertence in the matter
of making an adjournment of the first proceeding, the judgment
debtor’s default could not be taken, and no further proceedings
were taken therein.

Tobias v. Walton, 150 St. Rep. 587, 116 Supp. 587.

But it is no objection to the granting of a second order for
the examination of a judgment debtor that the prior proceed-
ings are still pending, where a motion to set aside the same was
granted at the instance of the judgment debtor, but he has
failed and neglected to enter such order.

Shults v. Andrews, 54 How. Pr. 380.

Although no order terminating the first proceeding for the
examination of a judgment debtor in supplementary proceed-
ings has been made, yet a second order may be granted where
it appears that the proceedings under the first order were
voluntarily withdrawn from the consideration of the judge,
and terminated in limine, by the joint consent and agreement
of the parties.

Carter v. Clarke, 30 Super. Ct. Rep. (7 Robt.) 490.

Benedict v. Meyer, 72 Misc. 156, 129 Supp. 772, in the
head note, says: “A judgment creditor who disclosed that his
debtor, since his last examination, under an order in supplemen-
tary proceedings, has come into the possession of personal
property and cash amounting to a substantial sum, is entitled
to a new order for the debtor’s examination to enable him to
reach the newly discovered property without first obtaining
an order to vacate the former order.”
SECOND ORDER—RIGHT TO 25

ye

In that case, however, the court, instead of granting a new
order for the examination of the judgment debtor made an
order that the old proceeding and the new be consolidated and
the judgment debtor was directed, in continuance of such first
order, to appear for examination at a time and place specified.

«\ second order for the examination of a judgment debtor
will not be vacated on the theory that proceedings under a prior
order had never been terminated, where, upon the return day
of the first order, the judgment creditor not appearing, the
following memorandum was made on the order: ‘The judg-
ment creditor having been duly called on April 4, 1911, and
not appearing, its default is hereby noted and the within pro-
ceeding dismissed,” as such endorsement constituted an order
within Sec. 767 of the Code, and the contention that such order
was not effective because not entered is unavailable, since it
was the duty of the judgment debtor to enter the order, if entry
was required.

Consolidated Agency Co. v. Townsley, 72 Mise. 155, 129
Supp. 773.

A judgment debtor cannot obtain the vacation of a second
order for his examination in supplementary proceedings be-
cause the order vacating the prior proceedings obtained on his
application was not entered, as it was his duty to enter the
same,

McAplin v. Stoddard, 54 Misc. 647, 105 Supp. 9.

An order for the examination of a judgment debtor in sup-
plementary proceedings will be set aside, where it appears that
two previous orders for the judgment debtor’s examination
had been granted, neither of which had been formally discon-
tinued upon order, and this although the proceedings under
such orders had been allowed to lapse.

Roscoe Lumber Co.. v. Payne, 183 St. Rep. 331, 149 Supp.
381.

But it has been held that although decisions have been made
dismissing two prior orders for the examination of the judg-
256 SUPPLEMENTARY PROCEEDINGS

ment debtor, a third order for his examination may be vacated
where there was a failure to enter the orders of dismissal upon
such decisions, since under Sec. 2454, Code of Civil Procedure
such proceedings can only be discontinued or dismissed by an
order.

Schwarmecke, Matter of v. Glenny, 54 Misc. 36, 103 Supp.
499, 38 Civ. Pro. Rep. 344.

An order for the second examination of a judgment debtor
should not be granted, where it appears that an order for
examination based upon a prior judgment between the same
parties was outstanding, and there was in the subsequent pro-
ceedings no reference to the existence of the prior order, and
no allegation as to subsequently acquired property.

Cromwell v. Spofford, 4 Civ. Pro. Rep. 273.

A second order for the examination of a judgment debtor
will not be set aside on the ground of the pendency of similar
proceedings under a prior order, without the vacation thereof,
where the judgment debtor did not appear pursuant to the
first order, and the proceedings were treated by the parties as
abandoned.

Fancher, Matter of, 58 Misc. 11, 110 Supp. 157.

Although Sec. 2454 of the Code provides that a special pro-
ceeding may be discontinued at any time upon such terms as
justice requires by the order of the judge making it upon ap-
plication by the judgment creditor, and that the judgment
debtor may have an order of discontinuance if the judgment
creditor unreasonably neglects to proceed on the judgment,
such section has no application to orders for the examination
of judgment debtors, which have never been served, as they
become void at the option of the judgment creditor and can
only be revived upon application to the judge granting them,
and therefore, new orders can be made. without the vacation
of the prior orders.

German Exchange Bank v. Schlang, 92 Mise. 351, 155 Supp.
924,
SECOND ORDER—RIGHT TO 257
(C) Application—To What Judge

Application for a second order may be made to any judge
having jurisdiction to entertain supplementary proceedings.
It is not necessary to apply to the judge who granted the first
order, although it is undoubtedly good practice so to do, as
the latter judge is better qualified to decide whether the facts
warrant the order.

Where an order for the examination of a third party has been
set aside a new order for his examination cannot be granted
by the special term.

Bird v. Wessels, 153 St. Rep. 329, 119 Supp. 329.

A second order for the examination of a judgment debtor,
granted by another judge, should be vacated, where the first
order had not been revoked or terminated, and it appears that
on the return day both parties appeared, but the referee was
absent.

Allen v. Starring, 26 How. Pr. 57.

(D) Notice of Application—Necessity

It has been held a serious question whether notice of
the application for an order for a second examination of the
judgment debtor should not be given to the latter.

Grocers’ Bank of New York City v. Bayaud, 21 Hun, 203.

But in another case it was held that notice of application for
a second examination of a judgment debtor need not be given
to the latter.

Goodall v. Demarest, 2 Hilt. 534.

This is probably the better rule, unless there be special cir-
cumstances making it unfair to the Judgment debtor to obtain
an ex parte order.

(E) Affidavit for Order—Sufficiency

Proceedings supplementary to execution were intended as
a substitute for creditor’s bills, and must be regarded to some

extent as in the nature of those suits of equity. As the judg-
Garnishee—17.
258 SUPPLEMENTARY PROCEEDINGS

ment creditor in both instances must have exhausted his rem-
edy at law in order to entitle him to equitable relief, so in
each, the ultimate decision of the court or judge must be con-
sidered res judicata upon the facts; and it follows that where
such adjudication has been made, an order for the second
examination of the debtor can only be granted, when the mov-
ing affidavit states that he has subsequently acquired property,
or that a second execution has been issued and returned nulla
bona, or that new facts, setting them forth, have come to the
knowledge of the applicant.

Carter v. Clarke, 30 Super. Ct. Rep. (7 Robt.) 490.

Again it is said, that a second order for the examination of
a judgment debtor in supplementary proceedings will not be
granted unless the moving affidavits show that he has subse-
quently acquired property or new facts have occurred which
made another examination proper.

Carter v. Clarke, 30 Super. Ct. Rep. (7 Robt.) 490.

And although the application for a second examination is
based upon another judgment held by the same creditor he
cannot procure an order therefor, unless some good reason be
given in his affidavit.

Canavan v. McAndrew, 20 Hun, 46.

Following the general rule that a judgment creditor cannot
have a second examination of the judgment debtor without
proof that he has since acquired property, it has been held
that an affidavit for such an order alleging that deponent verily
believes, “that the judgment debtor has acquired property
since the first examination,” but not stating the grounds of
such belief, is fatally defective.

McGuire v. Schroeder, 31 Misc. 179, 63 Supp. 968.

The affidavit for an order for the second examination of a
judgment debtor should disclose the fact that the previous
examination has been had, and show some reason for the
second examination, as the subsequent acquisition of property.

Rallings v. Pitinan, 49 Super. Ct. Rep. (17 J. & S.) 307,
SECOND ORDER—RIGHT TO 259

But an affidavit deficient in this respect may be cured and
rendered sufficient by presentation of those facts on the motion
made by the judgment debtor to vacate such order.

Goodall v. Demarest, 2 Hilt. 534.

And an affidavit stating that the judgment debtor had heen,
at divers times theretofore, examined under orders supplemen-
tary, previously granted, and no property discovered, but that
since the last examination the judgment debtor had become
possessed of certain personal property without stating what
the latter consisted of, or that it remained in possession of
the defendant, is not sufficient.

Rallings v. Pitman, 49 Super. Ct. Rep. (17 J. & 8.) 307.

Again, it is said that an affidavit for an order directing the
second examination of a judgment debtor should state the facts
concerning the first examination and allege facts which call
upon the court, in the exercise of its discretion, to allow another
examination to be had, and if such allegations are omitted the
order is properly set aside.

Grocers’ Bank of New York City v. Bayaud, 21 Hun, 203.

But, while the affidavit for a subsequent examination of a
judgment debtor should recite the granting of any previous
orders for his examination and the proceedings taken there-
under, yet such an affidavit will not be held insufficient which
states that no previous application has been made for the order,
except that an order was previously obtained, which was, by
stipulation, lapsed and abandoned without prejudice to a re-
newal, although as a matter of fact there was an earlier order
issued in violation of a stay, which, however, was never ex-
ecuted and was later set aside on motion, as the first order was
a nullity and need not be mentioned.

Sudlow v. Mead, 21 St. Rep. 435, 3 Supp. 321.

The question whether a judgment debtor should be examined
under a second order rests in the sound discretion of the judge,
and before such an order will be granted the affidavit therefor
should set forth facts by which it appears that the judgment
260 SUPPLEMENTARY PROCEEDINGS

debtor has acquired property since the last examination; that
the same remains in his possession or under his control, and is
applicable to the payment of the judgment, and that such
second order is not desired merely to harass the judgment
debtor, and this rule applies to the granting of a second order
upon a second judgment obtained by him against the judg-
ment debtor.

Livingston v. Livingston, 198 St. Rep. 419, 164 Supp. 419.

An affidavit is insufficient as a basis for the second examina-
tion of a judgment debtor in supplementary proceedings which
merely alleges that on the previous examination certain out-
standing contracts and subscriptions due from a certain publi-
cation in which the judgment debtor was interested were dis-
covered; that deponent has reason to believe that moneys
have come into the hands of the judgment debtor since such
examination on account of said contracts and subscriptions,
but does not state what publication the defendant was in-
terested in and what was his alleged interest, nor specify the
facts which induced affiant to believe that moneys had come
into defendant’s hands, so that the judge might find that reason
existed to justify a second examination.

Losee v. Allen, 17 Mise. 275, 40 Supp. 349.

Where a third party acquires property of a judgment debtor
subsequent to the former examination in supplementary pro-
ceedings under a third party order, a second order for his
cxamination may be granted, but in order to warrant the same
because of the right of a judgment creditor to but one examina-
tion as a right, the affidavit for such second order should set
forth the facts as to the former proceeding and the second
examination should be limited to the acquisition of property
subsequent to the first examination.

Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

It was held in the case last cited, however, that where it
is shown on the application to vacate the second order that
property of the judgment debtor has come into the hands of
SECOND ORDER—RIGHT TO 261

the third party since the institution of the first proceedings,
the irregular practice in not showing the facts of the first
cxamination must be regarded as abandoned, and no longer
operates as material error.

(F) Service of Second Order—Excuse

In order to acquire jurisdiction the second order must
usually be personally served upon the judgment debtor, but
this is not always the case.

Thus, where the referee was absent upon the return day speci-
fied in an order for a judgment debtor’s examination, and on an
application by the latter to vacate such order it was denied
with the direction that a second order issue directing such
examination at a later date, it was held that the latter order
need not be personally served on the judgment debtor.

Johnson v. Tuttle, 17 Abb. Pr. 315.
CHAPTER XVIII

ORDERS DIRECTING PAYMENT OF MONEY OR DELIVERY OF
PROPERTY

(A) Statutory Provisions, 262.
(B) In General, 264.
(C) Who May Apply for Order, 266.
(D) Notice of Application—Necessity, 266.
(E) To What Judge Application for Order Made, 267.
(F) When Order Granted, 269.
(1) Permissive Order, 269.
(2) Mandatory Order, 270.
(a) General Requisites, 270.
(b) Property Subject, 274.
(1) Real Estate, 274.
(2) Money, 275.
(3) Chattels, 280.
(4) Stock Exchange Seat, 281.
(5) Patent Rights, 282.
; (6) Assigned Property, 282.
(ec) Denial—Substantial Dispute, 283.
(G) Attack of Order, 288.
(H) Indemnity to Person Ordered, 289.
(I) Compliance with Order—Excuse, 289.
(J) Protection to Person Obeying Order, 290.
(1) What Constructive Notice, 290.
(2) Particular Instances, 291.
(K) Action on Order to Pay Money, 294. ey
(L) Unwarranted Order—Directing Restoration, 294.

(A) Statutory Provisions

Sections 2446 and 2447 of the Code provide for the granting
of orders directing the payment of money or delivery of prop-
erty of the judgment debtor to the sheriff or receiver in sup-

plementary proceedings.
Section 2446, is permissive in its nature, and applies only
262
ORDERS DIRECTING PAYMENT OF MONEY 265

to persons indebted to or having property of the judgment
debtor. It provides that at any time after the commencement
of a special proceeding, authorized by this article (Secs. 2432-
2463) and before the appointment of a receiver therein, or the
extension of a receivership thereto, the judge, by whom the
order or warrant was granted, or to whom it is returnable, may,
in his discretion, upon proof, by affidavit, to his satisfaction,
that a person or corporation is indebted to the judgment debt-
or, and upon such a notice, given to such persons, as he deems
just, or without notice, make an order, permitting the person or
corporation to pay to a sheriff, designated in the order, a sum,
on account of the alleged indebtedness, not exceeding the sum
which will satisfy the execution. A payment thus made is, to
the extent thereof, a discharge of the indebtedness, except as
against a transferee from the judgment debtor, in good faith
and for a valuable consideration, of whose rights the person or
corporation had actual or constructive notice, when the payment
was made.

Section 2447 is mandatory in its nature, and applies both
to the judgment debtor and third persons indebted to or having
property of the judgment debtor. This section provides, that
where it appears, from the examination or testimony taken in
a special proceeding authorized by this article (Secs. 24382—
2463) that the judgment debtor has, in his possession or under
his control, money or other personal property, belonging to him ;
or that one or more articles of personal property, capable of
delivery, his right to the possession whereof is not substantially
disputed, are in the possession or under the control of another
person; the judge, by whom the order or warrant was granted,
or to whom it is returnable, may, in his discretion, and upon
such a notice, given to such persons, as he deems just, or with-
out notice, make an order, directing the judgment debtor, or
other person, immediately to pay the money, or deliver the arti-
cles of personal property, to a sheriff, designated in the order,
unless a receiver has been appointed, or a receivership has been
264 SUPPLEMENTARY PROCEEDINGS

extended to the special proceeding, and in that case to the re-
ceiver,

Sections 2448, 2449 and 2450 of the Code specify the duties
of the sheriff when money or property is paid or delivered to
him pursuant to an order under the two sections mentioned ;
his application thereof upon the judgment, and the disposition
which he must make of any surplus, if any there be.

(B) In General

The power of the court to order the delivery over of property
in the hands of a third person belonging to a judgment debtor
seems to be confined to cases where supplementary proceedings
have been instituted.

Hentz v. McGehee, 1 N. Y. Law Bull. 3; Rourke v. Turrell,
172 St. Rep. 648, 138 Supp. 648; Benjamin v. Myers, 3 St.
Rep. 284.

Thus, there is no authority, under Sec. 2447 of the Code,
for the granting of an order directing a judgment debtor to
deliver property to a receiver appointed in supplementary pro-
ceedings, where the examination mentioned in said section has
never taken place and no order to deliver the property was re-
quested.

Rourke v. Turrell, 172 St. Rep. 648, 188 Supp. 648.

So, the court has no jurisdiction to direct a judgment debtor
to transfer property to a receiver, where the order for the judg-
ment debtor’s examination was not served upon him, and the
examination of a witness took place before the return day of
the order for the judgment debtor’s examination.

Benjamin v. Myers, 3 St. Rep. 284.

It was held under the old Code of Procedure that a third
party could not be directed to pay over money alleged to belong
to the judgment debtor, and in the hands of such third party,
if no examination of the third party had taken place.

Woodman v. Goodenough, 18 Abb. Pr. 265.
ORDERS DIRECTING PAYMENT OF MONEY 265

Under Sec. 2447, of the Code as it now stands, it would ap-
pear that such an order for the payment over of money could
be made although there has. been no third party order granted
and examination thereunder, as this section provides that where
it appears, from the examination taken in a special procced-
ing authorized by the sections of the Code relating to sup-
plementary proceedings, that a third person has money or
other personal property belonging to the judgment debtor, and
there is no substantial dispute as to the title thereto, an order
for the delivery thereof may be made.

It is wholly discretionary with the judge whether or not he
will make an order directing the payment or application of
property towards the satisfaction of the judgment.

Joyce v. Holbrook, 7 Abb. Pr. 338.

There is no authority for an order directing a third person
to pay money of the judgment debtor over to the attorney for
the judgment creditor. Such an order must provide for pay-
ment to the sheriff or to a receiver in the proceedings.

Gray v. Ashley, 24 Misc. 396, 53 Supp. 547.

It has been held that the refusal of the court to require
the delivery of property over in supplementary proceedings is
not conclusive as to the title thereof, and that the same may be
contested in another action to recover such property.

Humboldt Exploration Co. v. Fritsch, 150 App. Div. 90, 134
Supp. 747.

Where rents alleged to be due a judgment debtor were at-
tached by two judgment creditors upon the same day and one
of the attaching judgment creditors thereafter instituted sup-
plementary proceedings and obtained an order directing the
payment of such rents to the sheriff to be applied upon its jude-
ment, and thereafter a subsequent judgment creditor obtained
the appointment of a receiver in supplementary proceedings,
and the latter served a demand upon the firm owing such rent
to pay the same over to him, none of the judgment creditors
266 SUPPLEMENTARY PROCEEDINGS

established a prior right to such rent but the same should be
directed paid to the receiver to await the order of the court.

Columbia Bank v. Ingersoll, 21 Abb. N. C. 241.

There is no authority, under Sec. 2447 of the Code, to direct
a judgment debtor to execute a conveyance or assignment of all
his property to the receiver appointed in supplementary pro-
ceedings, since such property has already vested in the receiver
upon his appointment and compliance with the statutory provi-
sions, and therefore, no conveyance is necessary or proper.

Rourke v. Turrell, 172 St. Rep. 648, 138 Supp. 648.

(C) Who May Apply for Order

Nothing is said in the statute about who may apply for the
order compelling a judgment debtor or third person to pay over
money, or deliver property to the sheriff or receiver, but it seems
plain that in all cases application may be made by the judgment
creditor, and the only decision upon that subject found indi-
cates this. Where a receiver has been appointed it is undoubt-
edly good practice for him to make the application.

In the decision referred to it was held that the objection that
a judgment creditor cannot himself apply for an order direct-
ing a judgment debtor to deliver over property where a receiver
has been appointed in the proceedings, is untenable, since Sec.
2447 of the Code gives him that right.

Clark v. Shaw, 91 Mise. 245, 154 Supp. 1101.

(D) Notice of Application—Necessity

The wording of Sections 2446 and 2447 of the Code author-
izing these orders, being practically the same as respects notice,
the decisions upon this subject following apply to both sections,
although they seem to have been made in cases arising under
Section 2447 alone.

Section 2447, Code of Civil Procedure provides that an order
for the delivery over of property may be made by the judge
ORDERS DIRECTING PAYMENT OF MONEY 267

before whom the proceeding is pending, upon such notice as
he deems just, or without notice and, therefore, if the judge
deems such notice unecessary he may dispense with the same.

Serven v. Lowerre, 3 Mise. 113, 23 Supp. 1052; Gibson v.
Hlaggerty, 37 N. Y. 555.

But such an order made without notice to the judgment
debror will undoubtedly be vacated if an injustice has been
done thereby.

{t was so held under the old Code of Procedure.

Ward v. Beebe, 15 Abb. Pr. 372.

It being within the discretion of the judge to direct payment
of money owing to the judgment debtor to apply on the judg-
ment without notice to the latter, the fact that such notice is
omitted does not affect the protection granted the third person
in making such payment.

(ribson v. Haggerty, 87 N. Y. 555.

And unless there has been an abuse of this diserction, the
court will not interfere.

Pommerantz v. Bloom, 32 Mise. 754, 65 Supp. 671.

A third party corporation directed to pay the amount of its
debt to the judgment debtor to the sheriff, cannot excuse its
failure so to do by showing that such order was made without
notice, where it moved to vacate such order and upon that ap-
plication facts were shown as to its payment of such debt to
the judgment debtor’s wife, in violation of the restraining
clause in the order for its examination as such third party, and
such motion to vacate the order was denied, as such third party
iiu-t be regarded as having had a hearing on the merits.

Nichol y. Wilson, 175 App. Div. 667, 161 Supp. 870.

(E) To What Judge Application for Order Made

Under Sec. 2434, Code of Civil Procedure, specifying the
judge who may make the order in supplementary proceedings,
unless certain conditions exist, when it may be made by another
268 SUPPLEMENTARY PROCEEDINGS

judge, and See. 2447, providing for granting by the judge by
whom such order was granted, or to whom it is returnable, of
an order for the delivery of property to the receiver in supple-
mentary proceedings, such order cannot be made by another
judge unless the conditions mentioned are shown to exist.

Shannon, Matter of v. Steger, 75 App. Div. 279, 78 Supp.
163.

An order granted under Sec. 2447 of the Code, directing the
delivery of property to a sheriff or receiver, must be made by
the judge granting the order for examination, or the judge to
. whom it was returnable, and cannot be made by the court, as
the latter has no inherent jurisdiction in the premises.

Chestnut v. Greenberg, 162 Supp. 187; Fiss v. Haag, 75
App. Div. 241, 78 Supp. 1.

Thus, in supplementary proceedings instituted upon a judg-
ment recovered in the Supreme Court, there is no authority for
an order by the County Court directing the judgment debtor
to pay over a certain sum to a receiver in the proceedings.

Fiss v. Haag, 75 App. Div. 241, 78 Supp. 1.

But the fact that an order directing a judgment debtor to
turn over property to a receiver in supplementary proceedings
is in form a court order, instead of a judge’s order, is not avail-
able on appeal from a subsequent order adjudging the judg-
ment debtor guilty of contempt for failure to turn over such
property.

Goldreyer v. Shatz, 148 St. Rep. 339, 114 Supp. 339.

A county judge of Bronx County, who granted an order for
the examination of a judgment debtor in supplementary pro-
ceedings may make an order directing the judgment debtor to
turn over his property to a receiver appointed by the City
Court under another judgment, where the receivership has
been extended to the judgment on which such supplementary
proceedings are based.

Clark v. Shaw, 91 Mise. 245, 154 Supp. 1101.

The fact that an order has been made by a county judge ap-
ORDERS DIRECTING PAYMENT OF MONEY 269

pointing a receiver in supplementary proceedings does not
operate to terminate such proceedings, and does not affect the
power of the Supreme Court in which the judgment was recov-
ered, to make an order, on motion of the judgment creditor,
for the delivery of property of the judgment debtor to the
receiver.

Crane, Matter of, 81 Hun, 96, 62 St. Rep. 549, 30 Supp.
616, 1 Ann. Cas. 148.

It was further held in the case last cited, that this remedy
was not barred by the fact that the receiver had brought an
action to recover possession of other property of the judgment
debtor.

Where an execution has been issued to the county where the
judgment debtor resides and has been returned unsatisfied, a
justice of the Supreme Court of another county may grant an
order directing a bank situated in the latter county to pay over
money in its hands belonging to the judgment debtor to the
satisfaction of the judgment.

Foster v. Prince, 18 How. Pr. 258, 8 Abb. Pr. 407.

There is no authority, under Sec. 26 of the Code, providing
for a continuance of a proceeding before another judge, for
the court to resettle a judge’s order directing a third person to
deliver property over to a sheriff or receiver in supplementary
proceedings under Sec. 2447, as the latter expressly provides
that such an order must be made by a judge.

Chestnut v. Greenberg, 162 Supp. 137.

(F) When Order Granted

(1) Permissive Order

No authority lies for the granting of an order permitting a
third party indebted to the judgment debtor upon a judgment,
where such judgment was assigned by the judgment debtor prior
to the service of a third party order upon the first mentioned
270 SUPPLEMENTARY PROCEEDINGS

debtor, since, by such assignment, the court lost jurisdiction
in the third party order proceedings.

Hexter v. Pennsylvania R. Co., 43 App. Div. 118, 59 Supp.
453.

(2) Mandatory Order

(a) General Requisites

It must be an extremely clear case and one free from any
doubt as to the ownership of the property before an order
should be granted directing a third person to pay over money
to satisfy a judgment.

Alexander v. Richardson, 30 Super. Ct. Rep. (7 Robt.) 63;
Hall v. McMahon, 10 Abb. Pr. 103; Sandford v. Moshier, 13
How. Pr. 137.

And an order directing a third person to pay money alleged
to be due from him to the judgment debtor will not be granted
where the amount of such indebtedness is uncertain, or there
is any doubt as to the pecuniary ability of the third person to
pay.

Alexander v. Richardson, 30 Super Ct. Rep. (7 Robt.) 63.

If it appear upon the examination of a third party that it
is doubtful whether the latter really owes the judgment debtor
an order should not be made directing the payment of such debi
to the judgment creditor, but instead, a receiver should be ap-
pointed to enable the judgment creditor to pursue the claim by
action.

Corning v. Tooker, 5 How. Pr. 16. ‘

An order appointing a receiver in supplementary proceedings
and directing a third person alleged to have property of the
judgment debtor to deliver the same to the receiver, will be re-
versed on appeal, where it is shown that such person does not,
in fact, have any property of the judgment debtor applicable
to the payment of his debt.

Kelsey v. Webb, 94 App. Div. 571, 88 Supp. 4.
ORDERS DIRECTING PAYMENT OF MONEY 271

An order directing a third person, who testified that he had
a sum of money in his hands belonging to the judgment debtor,
but gave no evidence as to whether such money was due or
earned by the judgment debtor at the commencement of the
supplementary proceedings, to pay over such money is not justi-
fied, since the statute authorizing supplementary proceedings
contemplates the jurisdictional facts must be proved by direct
evidence of the person examined.

Gray v. Ashley, 24 Misc. 396, 53 Supp. 547.

Nor will an order be made directing a third party to pay over
money alleged to be due a judgment debtor where such third
party, in good faith, claims an offset as to at least a part of the
claim.

Grassmuck v. Richards, 2 Abb. N. C. 359.

It is not proper to make an order requiring a third person
to pay over moneys in satisfaction of the judgment where the
money is not actually due the judgment debtor, but is to be-
come due on a contingency or on an executory contract not yet
performed.

McCormick v. Kehoe, 7 Leg. Obs. 184.

Where a husband and wife entered into and executed in
good faith an agreement that the wife should receive $5.00
per week while she did her own house work without the assist-
ance of a servant, the wife will not be directed to pay over the
sums she has so received, as such moneys cannot be regarded as
within Sec. 2447, Code of Civil Procedure.

Broderick v. Archibald, 61 App. Div. 473, 70 Supp. 617.

An order requiring a third person to deliver over to the
receiver, property of the judgment debtor in his hands, can
only be made as to property in his possession at the time of the
institution of the third party proceedings, and property after-
wards received by such third person cannot be directed to be
turned over to the receiver.

Ridabock & Co., Matler of v. Scanlon, 71 Mise. 505, 170
Supp. 831.
272 SUPPLEMENTARY PROCEEDINGS

The ruling was based upon the wording of Sec. 2441, Code

of Civil Procedure, providing that “Upon proof by affidavit

. to the satisfaction of the judge, that any person
has personal property of the judgment debtor, exceeding ten
dollars in value, or is indebted to him in a sum exceeding
ten dollars, the judgment creditor is entitled to an order re-
quiring that person . . . to attend and be examined con-
cerning the debt or other property at a time and place speci-
fied in the order . . . ,” the position being taken by the
court that such provision has reference only to property in
the hands of a third person at the time of the institution of
the proceedings.

To warrant an order directing a judgment debtor to pay
over moneys to the satisfaction of the judgment, there must
be clear proof that he has the alleged funds in his hands under
his control, and such an order will be refused where the jude-
ment debtor states in his examination that he has received vari-
cus sums; that he has made numerous payments and that other
payments have been made, which he cannot recollect particu-
larly, and that he has paid out all the money he has received,
though such testimony as to the payments is unsatisfactory, and
there may be suspicion as to the truth of his statements.

Sandford v. Moshier, 18 How. Pr. 187.

The fact that a judgment debtor made a mortgage on prop-
erty in May, 1910, does not conclusively establish his owner-
ship of the property in Sept. 1911, so that an order may be
made in supplementary proceedings instituted on the latter
date, directing him to deliver over such property to a receiver
appointed in the proceedings.

Shea v. Lynskey, 167 St. Rep. 477, 183 Supp. 477.

There is sufficient proof of ownership to property in a judg-
ment debtor to warrant an order directing its delivery over to
the sheriff, where the judgment debtor testified that he leased
a certain farm in his own name, and had never assigned it;
that there was on the place certain specified articles of per-
ORDERS DIRECTING PAYMENT OF MONEY 278

sonal property, and that he had given no mortgage or bill of
sale thereon.

Serven v. Lowerre, 3 Misc. 113, 23 Supp. 1052.

The failure of a judgment debtor to obey an order directing
him to satisfy a judgment from means alleged to be in his
hands will not warrant his punishment for contempt, unless it
plainly appear that the specific property or sum of money was
at tue time of the service of the order for his examination in
his possession or under his control.

Tinker v. Crooks, 22 Hun, 579.

The mere fact that a judgment debtor’s statements on his
examination may be very unsatisfactory to the judgment credi-
tor, and create a suspicion that he may be concealing money
or property does not of itself warrant the making of an order
directing the payment or delivery of the same. The proof must
be clear that he actually has such money or property in his
hands.

Peters v. Kerr, 22 How. Pr. 3.

If there be serious question as to whether the property is not
exempt from execution it is not proper to grant an order direct-
ing the judgment debtor to turn over such property to the
judgment creditor, but the question of the ownership should be
determined in an ordinary action.

Dickinson v. Onderdonk, 18 Hun, 479.

Where the evidence seems to disclose a very bold and mani-
fest attempt to conceal and convey out of reach property which
has been very clearly shown to have been in the judgment debt-
or’s possession, or entirely within his control at the time of his
examination, an order directing him to pay the judgment is
very properly granted.

Crouse v. Wheeler, 33 How. Pr. 337.

A judge, before whom a judgment debtor appeared for ex-
amination in supplementary proceedings, and stated that he
had in his possession money and property sufficient to pay the
judgment, and requested an adjournment to apply the same

Garnishee—18,
274 SUPPLEMENTARY PROCEEDINGS

upon the judgment, is not authorized to make an order recit-
ing such facts and giving the judgment debtor until a specitied
day to pay the judgment with interest, and a stated sum for
costs, with the provision that in default of such payment he be
adjudged guilty of a willful contempt, and that in case such
payment be not made a fine in the amount of the judgment, to-
gether with such interest and costs, with alternative imprison-
ment, be imposed upon him, since the judge had no right tu
summarily declare the consequences of a disobedience of the
order mentioned.
Tinker v. Crooks, 22 Hun, 579.

(b) Property Subject

(1) Real Estate

There is no necessity or justification for an order directing a
judgment debtor to convey his real estate to the receiver in sup-
plementary proceedings, as the latter acquires title thereto with-
out such conveyance upon compliance with Sec. 2468 of the
Code.

Moyer v. Moyer, 7 App. Div. 523, 40 Supp. 258.

A judgment debtor cannot be directed to deliver up the pov
session of his real property, as the power of the judge to order
the delivery over of property is confined to money or other
personal property.

First National Bank of Canandaigua v. Martin, 49 Hun,
571, 18 St. Rep. 414, 15 Civ. Pro. Rep. 324, 2 Supp. 315;
Albany City Nat. Bank v. Gaynor, 67 How. Pr. 421.

The remedy of the judgment creditor is to sell the same on
execution.

Albany City Nat. Bank v. Gaynor, 67 How. Py. 421.

Notwithstanding that when a receiver was appointed jn
supplementary proceedings the order of appointment con-
tained a provision that the judgment debtor should execute and
ORDERS DIRECTING PAYMENT OF MONEY 275

deliver to the receiver a proper assignment and conveyance of
all his land and real estate wherever situated, the judge has no
authority to direct the judgment debtor to execute a convey-
ance of lands outside of the State of New York and punish him
for disobedience, since Sec. 2447, Code of Civil Procedure does
not authorize the judge to order the delivery or transfer to the
receiver for such purpose of any other than personal property.

Smith v. Tozer, 42 Hun, 22, 3 St. Rep. 363, 11 Civ. Pro.
Rep. 343, 25 Week. Dig. 252.

(2) Money

A judgment debtor will not be compelled by an order to pay.
over money owed him for services rendered in a foreign state,
and to obtain which he is required to go to the latter.

Buchanan v. Hunt, 98 N. Y. 560.

An order directing the judgment debtor to pay over to a
receiver in supplementary proceedings a deposit in a bank be-
longing to him, which he kept in the name of his wife and
managed under a power of attorney, but used the money as his
own and did not account to his wife therefor, may properly be
granted.

Weld v. Sage, 34 App. Div. 471, 54 Supp. 253.

So, a like order is properly granted where the judgment
debtor was an insurance broker and deposited several thousand
dollars of his own money and in the same account moneys re-
ceived by him for premiums, and out of the combined fund
paid his household and other personal expenses and moneys dne
the insurance companies, as such deposit must be regarded for
all practical purposes as his own.

Weld v. Sage, 34 App. Div. 471, 54 Supp. 253.

An order will not be granted in supplementary proceedings
for the peremptory payment of a debt alleged to have been paid
to the judgment debtor and in his hands and not fully account-
ed for, where the facts do not clearly show, and the proof is not
276 SUPPLEMENTARY PROCEEDINGS

clear, that the judgment debtor actually had any definite sum
of money from said fund remaining in his hands at the time of
the service of the injunction.

Winter v. McCarthy, 2 Abb. N. C. 357; Potter v. Low, 16
How. Pr. 549.

An order cannot be granted requiring a judgment debtor
against whom supplementary proceedings have been instituted
to pay over to the receiver appointed in such proceedings a por-
tion of his salary as public officer, as such salary cannot be
reached in such proceedings.

Columbian Institute v. Cregan, 11 Civ. Pro. Rep. 87, 3 St.
Rep. 287.

_ So money earned’ by a judgment debtor before institution of
supplementary proceedings but not payable until after cannot
be reached in that manner.

Albright v. Kempton, 4 Civ. Pro. Rep. 16.

And it has been held that the granting of an order directing
a judgment debtor to pay over money acquired by him after
the commencement of the proceedings, and which he had al-
ready paid out to another creditor, is improper.

Caton v. Southwell, 18 Barb. 335.

There is no authority, under Sec. 2447 of the Code, to make
an order directing a third person alleged to have money on de-
posit of the judgment debtor, to pay over the same to the sheriff
or receiver in supplementary proceedings, as such section speci-
fies only articles of personal property as subject to such an
order. Only the judgment debtor himself can be required to
pay over money.

Kantor Bros. v. Wild, 98 Misc. 488, 158 Supp. 115; Knights
of Pythias v. Manhatten Savings Inst., 12 Mise. 626, 34 Supp.
2538.

In such cases, only a permissive order under the preceding
action is warranted.

Knights of Pythias v. Manhattan Savings Inst., 12 Mise.
ORDERS DIRECTING PAYMENT OF MONEY 277

626, 34 Supp. 253; Kantor Bros. v. Wild, 93 Mise. 438, 158
Supp. 115.

The decisions show that numerous mandatory orders direct-
ing third persons to pay over money have been made, but, it
would appear that strictly speaking, such orders cannot be made
if the want of power is raised. Undoubtedly such orders were
generally made through inadvertence on the part of the judge,
and without his attention being called to the fact that only per-
missive orders can be granted in such instances.

These decisions are here given as they may prove of some aid.
Moreover, where the money has been deposited with the third
person and allowed to remain intact, there is a serious question
whether an order cannot be made directing the delivery over
of that specific sum, on the ground that such sum of money
constitutes an article of personal property within the meaning
of Sec. 2447 of the Code.

A judgment creditor is entitled to an order directing the
application upon his judgment of a sum of money deposited
with a sheriff by the judgment debtor to avoid his arrest for
alleged contempt in the proceedings, although such deposit
really belonged to a third person from whom the judgment
debtor borrowed it, since there being no written direction di-
recting the payment of such deposit to the third person, under
Sec. 586 of the Code, such deposit became applicable to the
payment of the claims of creditors under the common law.

Elite Distributing Co. v. Schrul, 69 Mise. 206, 126 Supp.
607.

But in an earlier case, it was held that notwithstanding Sec.
589, Code of Criminal Procedure, under which cash deposited
by a third person in lieu of bail for a defendant in a criminal
action becomes the property of the defendant to the extent that
it is liable for any fine and costs adjudged against him, the same
cannot be directed to be paid over to satisfy the judgment
creditor’s judgment, since such money is not subject to levy
on execution in a civil action.
278 SUPPLEMENTARY PROCEEDINGS

McShane v. Pinkham, 22 Civ. Pro. Rep. 178, 46 St. Rep.
65, 19 Supp. 919.

An order cannot be made directing the payment to a judg-
ment creditor in supplementary proceedings of a deposit made
with the sheriff as bail in attachment proccedings against the
judgment debtor, since such bail money was not released until
the termination of the attachment proceedings, which fact was
not shown.

Alexander v. Creamer, 46 App. Div. 211, 61 Supp. 539.

Where the members of a society to which a judgment debtor
belongs, gave an entertainment for his benefit and thereby
raised a considerable fund, out of which it was directed that
the sum of $30 per week be paid to the judgment debtor to
relieve his necessities, such payments are to be regarded merely
as a charity and not property of the judgment debtor within
the ordinary meaning and the same cannot be directed to be
paid over to the judgment creditor.

Wilder v. Clark, 33 St. Rep. 143, 11 Supp. 683.

An order directing a third person to deiiver over a sum of
money, is not warranted where it was not shown that the money
in his hands belonged to the judgment debtor, and while it may
be that he owed the defendant a proportion of his legacy, or
had in his hands a mortgage from which, at some future time,
he would have the means to pay the ligacy, that is not sufficient.

Schenck v. Erwin, 63 Hun, 104, 43 St. Rep. 862, 17 Supp.
616.

And an order cannot be granted compelling insurance com-
panies to pay to the receiver in supplementary proceedings pro-
ceeds of insurance policies upon excmpt property of the judg-
ment debtor, and the fact that the latter at one time consented
to such application will not estop him from thereafter objecting
thereto.

Bliss v. Raynor, 91 Hun, 250, 72 St. Rep. 57, 36 Supp. 156.

The courts are not inclined to direct the receiver of a foreign
corporation to pay over moneys to a judgment debtor, as it has
ORDERS DIRECTING PAYMENT OF MONEY 279

been held that such course would tend to great embarrassment
and perplexity if property of a corporation, which is held by
a receiver should be allowed to be diverted and distributed
through the agency of supplementary proceedings.

Smith vy. McNamara, 15 Hun, 447.

A third person to whom a judgment debtor paid $1000.00
under an agreement that he and his wife should be boarded for
two years, may be compelled to pay a sufficient amount of the
same to satisfy the judgment, since such conveyance or pay-
ment was fraudulent and illegal as to creditors.

Davis v. Briggs, 24 St. Rep. 896, 5 Supp. 323.

Where a will provides that a legatee, who is also made ex-
ecutor, shall receive his support from the income of the estate;
that he may use the principal for that purpose, if necessary, and
no accounting has been had by him as executor, and no separa-
tion of the parts necessary for his support, he cannot be direct-
ed to turn over any part of his interest in such estate.

Gerton Carriage Co. v. Richardson, 6 Misc. 466, 27 Supp.
625.

The court has no power to direct a trustee to apply future
income towards the satisfaction of a judgment against the cestui
que trust, but if an examination discloses that the judgment
debtor is the beneficiary of the income from the trust fund a
receiver should be appointed to bring a suit to compel the
application of such income towards the payment of the judg-
ment and the trustee should be enjoined from transferring the
income during the pendency of the action.

Stewart v. Foster, 1 Hilt. 505.

An order will not be granted requiring the disbursing officer
ofa city to pay over money due a judgment debtor for his sal-
ary, as such moneys having been raised for general taxation can-
not be regarded as property of the city subject to being diverted
for such purposes. :

Remmey v. Gedney, 57 How. Pr. 217 (note).

Money deposited by a person in the name of a judgment
280 SUPVLEMENTARY PROCEEDINGS

debtor solely for the purpose of obtaining a city contract, and
with the express agreement that the same should be restored to
such first-named person if-the contract were awarded to the
judgment debtor, cannot be directed to be paid over to the
sheriff to be applied on the judgment, since such money never
became the property of the judgment debtor.

Nathans v. Satterlee, 18 Abb. N. C. 310.

(3) Chattels

The provisions of Sec. 2447, Code of Civil Procedure pro-
viding for the granting of an order to turn over personal prop-
erty belonging to the judgment debtor apply to any tangible
personal property, such as products raised on a farm and a gold
watch.

Serven v. Lowerre, 3 Mise. 113, 23 Supp. 1052.

It is not within the power of a judge to grant on order in
‘supplementary proceedings directing the judgment debtor to
deliver over a horse of a specified value in satisfaction of the
judgment, as the property should be sold under an execution
or by a receiver appointed in the proceedings.

Dickinson v. Onderdonk, 18 Hun, 479.

Although Sec. 2447, Code of Civil Procedure provides for
the delivery over to the receiver of property of the judgment
debtor in the possession of a third person where such posses-
sion is not substantially disputed, the court has no power to
compel a safe deposit company to permit the receiver to open
a box in the vault of the company standing in the joint names
of the judgment debtor and another, particularly where there
is no evidence as to the contents of the box.

Ehrich, Matter of v. Root, 134 App. Div. 432, 119 Supp.
395.

And such power is not given by Sec. 818, Code of Civil Pro-
cedure authorizing the court to compel a party to an action
ORDERS DIRECTING PAYMENT OF MONEY 281

pending therein to discover a book, document or other property
in his possession or under his control.

Ehrich, Matter of v. Root, 134 App. Div. 432, 119 Supp.
395.

A judgment debtor cannot be directed to deliver property
belonging to him consisting of certain enumerated chattels and
a quantity of hay, oats and corn, but the amount thereof not
being specified, to the receiver’s office at a considerable dis-
trance away from his home, as the court has no power to compel
the judgment debtor to transport the property to the receiver’s
oflice. Moreover, the order is objectionable for its indefinite
form.

Smith v. McQuade, 59 Hun, 374, 36 St. Rep. 556, 13 Supp.
62.

(4) Stock Hachange Seat

A membership in the New York Cotton Exchange which is
transferable subject to the purchaser becoming a member, is
property that passes to a receiver. He may, therefore, obtain an
order to compel the judgment debtor to convey such membership
to a member, or person becoming a member, with whom the
receiver may contract for its sale,

Rilterband v. Baggett, 4 Abb. N. C. 67, 42 Super. Ct. Rep.
(10 J. & 8.) 556.

And a judgment debtor owning a seat in the Consolidated
Stock and Petroleum Exchange of New York, which latter re-
quires a member resigning his membership and selling his seat
to consent to the transfer, may be compelled to sign a consent
that the person to whom the receiver in supplementary proceed-
ings had sold such seat may have the privileges thereof.

Roome v. Swan, 15 Civ. Pro. Rep. 344, 18 St. Rep. 286,
2 Supp. 214.

Notwithstanding the fact that the rules of the New York
Stock Exchange provide that a person not a member cannot
take an assignment of a seat therein, the court has power to
282 SUPPLEMENTARY PROCEEDINGS

direct an assignment to a person other than a receiver in sup-
plementary proceedings, qualified under such rules to hold it,
and such Stock Exchange is not a necessary party to the pro-
veeding.

Londheim v. White, 67 How. Pr. 467.

(5) Patent Rights

A receiver in supplementary proceedings is entitled to an
order compelling the judgment debtor to execute an assignment
of letters patent to him.

Clan Ranald v. Wykoff, 41 Super. Ct. Rep. (9 J. & 8.) 527;
Barnes v. Morgan, 3 Hun, 703, 6 T. & C. 10D; Gillett v. Bate,
86 N. Y. 87, 10 Abb. N. C. 88.

(6) Assigned Property

Where it is shown upon an application to punish a judgment
debtor for failure to pay over money directed by him, that
prior to the granting of the order instituting the supplementary
proceedings, he had assigned all his interest in the claim.
such order for payment will be vacated, as the question of good
faith of the transfer cannot be raised upon such a motion.

Beebe v. Kenyon, 3 Hun, 73.

A judgment debtor cannot be directed to assign a judgment
recovered by him upon an insurance policy in force at the time
of the institution of supplementary proceedings in which a re-
ceiver was appointed, where such judgment debtor had assigned
the judgment to a third person in conformity with an agree-
ment at the time the action against the insurance company was
commenced, since such assignee has the right to be heard in
support of his claim.

Thomas Co. v. Lowenthan, 147 St. Rep. 1092, 113 Supp.
1092.

If it appear that the assignee under a general assignment has
not requested the payment over of the property of the judgment
ORDERS DIRECTING PAYMENT OF MONEY 283

debtor, but it has remained in the latter’s possession and con-
trol, with the apparent assent of the assignee, an order may be
made directing its payment in satisfaction of the judgment.

Eastern Nat. Bank v. Hulshizer, 2 St. Rep. 115.

An assignee for the benefit of creditors cannot be compelled
to pay a judgment against the debtor, where the assignment
was made after the issuance and return unsatisfied of execution,
and supplementary proceedings were thereafter instituted by
the judgment creditor, since no lien was acquired under the
execution.

Abeel v. Anderson, 29 Hun, 514, 3 How. Pr. 489.

An assignee of a judgment who gave no notice of assignment
thereof to a judgment creditor, cannot object to the payment of
the same by the debtor under an order made in supplementary
proceedings.

Bishop v. Gracia, 14 Abb. N.S. 69.

(c) Denial—Substantial Dispute

Where there is a substantial dispute as to the ownership of
the fund, its payment or delivery cannot be directed.

People ex rel. Williams v. Hulburt, 5 How. Pr. 446, 9 Leg.
Obs. 245, 1 Code Rep. N. S. 75; Crouse v. Whipple, 38 How.
Pr. 333; Kennedy v. Carrick, 75 St. Rep. 444, 40 Supp. 1127;
Stewart v. Foster, 1 Hilt, 505; Nathans v. Satterlee, 18 Abb.
N. C. 310; Shea v. Lynskey, 167 St. Rep. 477, 133 Supp. 477;
Manice v. Smith, 5 Week. Dig. 255; Shannon v. Steger, 75
App. Div. 279, 78 Supp. 163; Krone v. Klotz, 3 App. Div.
587, 88 Supp. 225, 25 Civ. Pro. Rep. 320, 3 Ann. Cas. 36;
West Side Bank v. Pugsley, 47 N. Y. 368, 12 Abb. N. S. 28;
People ex rel. Pease v. King, 9 How. Pr. 97; Gallagher v.
O'Neil, 21 St. Rep. 161, 3 Supp. 126.

It is proper, however, in such case to make an order forbid-
ding the transfer or other disposition of the property until a
284 SUPPLEMENTARY PROCEEDINGS

sufficient opportunity is given to a receiver appointed in the
proceedings to commence an action.

People ex rel. Williams v. Llulburt, 5 How. Pr. 446, 9 Leg.
Obs. 245, 1 Code Rep. N. 8. 75; Manice v. Smith, 5 Weck.
Dig. 255,

Thus, an order directing a third person indebted to the judg-
ment debtor to pay the amount of the judgment upon whieh
supplementary proceedings are based, is unwarranted where
there are conflicting claimants of the property involved.

Kennedy v. Carrick, 75 St. Rep. 444, 40 Supp. 1127.

An order will not be granted in supplementary proceedings
based on a judgment against a defendant for costs, directing
the judgment debtor to turn over a sum of moncy deposited by
the judgment creditor to keep good a tender made in the action
in which the defendant therein finally succeeded in obtaininy
judgment for costs, where the attorney for the judginent ecredi-
tor claimed a lien thereon, and objected to the snmmnary adjudi-
cation of his lien without notice, since the judginent debtor's
right to the possession of the money is substantially disputed
within the meaning of Sec. 2447.

Bernstein v. Traverso, 82 Mise, 411, 148 Supp. 1091.

There is a substantial dispute to the ownership of property,
within the meaning of Sec. 2447 of the Code, where a third
person holds the same pursuant to the terms of an overdue chat-
tel mortgage.

Maguire v. Bean & Co. Inc., 177 St. Rep. 753, 143 Supp.
753.

The remedy of a receiver in supplementary proceedings
where property alleged to belong to the judgment debtor is
claimed by a third person, who substantially disputes the ordey
thereof, is not by order under Sce. 2447 of the Code, but au
action by him to determine the title.

Friedman v. Stein, 188 Supp. 928, 3 Civ. Pro. Rep. N. 8.
21.
ORDERS DIRECTING PAYMENT OF MONEY 285

An illustration of the rule that an order cannot be granted
directing the payment over or delivery of property in supple-
mentary proceedings where there is a substantial dispute as to
its ownership, appears where the testimony of the judgment
debtor shows that he is in possession, avowedly as an agent for
a third person, of property claimed to be owned by such third
person under a paper title apparently good.

Rodman v. Henry, 17 N. Y. 482.

-\nd this rule holds even though the rival claimants consent
to an adjudication of ownership in the proceedings.

Maas v. McEntegart, 20 Mise. 676, 46 Supp. 534.

And where the judgment debtor testified to the ownership of
property stored in his name, but on which he had given a bill
of sale to a third person as collateral security, an ex parte order
for delivery of the property cannot be made.

Shannon, Matler of v. Steger, 75 App. Div. 279, 78 Supp.
163.

Within the meaning of Sec. 2447, Code of Civil Procedure,
the right to the possession of property is “substantially disput-
ed” where a judgment debtor has assigned to a third person
certain personal property for an alleged indebtedness, although
there is no definite statement showing an actual indebtedness,
and the order made in the proceeding should be, not that the
debtor deliver the property to the receiver, but that he assign
to him his rights and interests therein.

Frost v. Craig, 18 Civ. Pro. Rep. 296, 16 Daly, 107, 30 St.
Rep. 848, 9 Supp. 528.

Where a judgment debtor sold real estate under an agree-
ment with the purchaser that a part of the purchase money
should be deposited with ‘trustees as security for payment of
the liens on the premises, and one of the trustees, not a party
to the proceedings, vigorously contests the judgment debtor’s
ownership of the fund, an order directing its payment over to
the receiver will be denied on the ground that the right thereto,
286 SUPPLEMENTARY PROCEEDINGS

is “substantially disputed,” and the remedy is an action by the
receiver testing the ownership of the property.

Ghersin v. Thuor, 56 Mise. 465, 107 Supp. 195.

But a third party claiming to own property alleged to belong
to the judgment debtor who petitions the court to determine the
ownership thereof and to present proof of his claim, thereby
waives his right to claim loss of jurisdiction by reason of dis-
puted ownership and he cannot raise the point on appeal.

Gomprecht v. Scott, 27 Misc. 192, 57 Supp. 799.

Likewise, a motion will not be granted to compel a judgment
debtor to pay over money to a receiver in supplementary pro-
ceedings where questions as to the validity of an assignment of
the property by the judgment debtor, and of the right to exemp-
tion of part of the money are involved, as such questions should
not be decided in such a summary manner.

Stearns v. Eaton, 48 St. Rep. 518, 17 Supp. 687.

The comptroller of the city of New York, holding a sum of
money deposited by a judgment debtor in lieu of bail, which
had been forfeited, but later an order was granted vacating such
forfetiure and directing such comptroller to pay the judgment
debtor sueh sum, two assignments of which fund had been
filed with the comptroller prior to the appointment of a re-
ceiver in supplementary proceedings, cannot be directed, under
Sec. 2447 of the Code, to pay over such money to the receiver,
as a substantial dispute to the ownership of such fund arose
upon the filing of the assignments mentioned.

Burn v. Sandfort, 206 St. Rep. 820, 172 Supp. 820.

There is no power in the court, where disputes arise as to
the ownership of a judgment obtained by a judgment debtor
which judgment had been assigned by the judgment debtor
mentioned to two different parties, to make an order referring
the matter swnmarily to a referee to detcrmine the respective
rights of the claimants.

Hexter v. Pennsylvania R. Co., 43 App. Div. 113, 59 Supp.
453.
ORDERS DIRECTING PAYMENT OF MONEY 257

Following the rule that a third party cannot be directed to
turn over property belonging to the judgment debtor in his
hands where there is a substantial dispute to the title thereof,
such an order was denied where the third party claimed an
interest in the equities of the securities so sought to be recov-
ered, by reason of certain facts which were shown by the mo-
tion papers and by the testimony of witnesses who testified in
the supplementary proceedings.

Flynn, Matter of, 80 Mise. 79, 140 Supp. 799.

An order may be made directing the pledgee of a third per-
son, to whom the judgment debtor had loaned personal prop-
erty, with authority to pledge it for the third person’s individual
indebtedness, which the latter did with property of his own
to one who was also a judgment creditor of the judgment debtor,
to deliver over such property to the receiver in supplementary
proceedings, upon payment or tender of the indebtedness due
from the third person, as the title to such property is not sub-
stantially disputed, within the meaning of Sec. 2447 of the
Code.

Flynn, Matter of, 157 App. Div. 241, 141 Supp. 807.

It is not proper for an order to be granted directing a re-
ceiver appointed in a foreclosure action to pay over surplus
moneys to the judgment creditor unless the judgment debtor’s
right to such money is undisputed. And where the question
as to whether there is a surplus applicable to such payment is
controverted, and that fact has not been determined at the
end of the foreclosure suit, such an order cannot be granted,
especially where the judgment creditor is litigating the validity
of the mortgage and prior judgments.

Kenney v. South Shore Natural Gas & Fuel Co., 201 N. Y.
89.

A judgment debtor will not be directed to assign a liquor
license to the receiver in supplementary proceedings, where it
is shown that he had, for a valuable consideration, mortgaged
and assigned the same to a brewery.

Mayer Brewing Co. v. Rizzo, 13 Mise. 336, 34 Supp. 457.
288 SUPPLEMENTARY PROCEEDINGS

It is not proper to make an order directing payment by the
treasurer of a county and the treasurer and tax receiver of a
city therein, to pay over moneys to apply towards the satisfac-
tion of a judgment against a judgment debtor, where such
inoneys constituted a surplus resulting from the sale for taxes
of real property of the judgment debtor, and it appears that the
lands sold were subject to the liens of certain mortgages given
prior to the recovery of the judgment creditor’s judgment, aud
that the holders of such mortgages claim to be entitled to the
surplus mentioned, since the right to the money in question was
“substantially disputed” within the meaning of Sec. 2147, Code
of Civil Procedure.

Moller v. Wells, 29 Hun, 587.

And the fact that a third party has admitted an indchtedness
to the judgment debtor for the crection of a house will not war-
rant the granting of an order directing him to pay over such
sum where she has just been given notice of a mechanic’s lien
claimed by subcontractors of the judgment debtor for labor per-
formed on the same house, as the whole matter should be held
in abeyance to await the result of the trial of the lien cases.

Clark v. Gallagher, 21 St. Rep. 314, 3 Supp. 312.

But an order may be made directing a third person to de-
liver property to the sheriff or a receiver in supplementary pro-
ceedings, where the facts as to ownership are undisputed, and
a question of law therefore arose as to the ownership, since, in
that case, the court may make such an order, if it determines
from such undisputed facts, that title to the property is in the
judgment debtor.

Duffy v. Dawson, 2 Mise. 401, 21 Supp. 978.

(G) Attack of Order

A judgment debtor cannot move to vacate an order made in
supplementary proceedings against a third party indebted to
him to pay the money towards the satisfaction of the judgment,
ORDERS DIRECTING PAYMENT OF MONEY 289

znd he cannot raise the objection that the judgment is in form
‘quasi in rem instead of in personam.

Chandler v. City of Fon du Lac, 56 How. Pr. 449.

A third person being ordered to pay over money belonging
to the judginent debtor in his hands, cannot, in proceedings to
enforce compliance therewith, attack the affidavit upon which
the third party order was granted. Any defects in such aff-
dayit cannot be thus collaterally raised.

Cooman vy. Board of Education of Rochester, 37 Hun, 96.

An order directing a third person to pay over to the sheriff
moneys of the judgment debtor is irregular, where the appoint-
ment of a receiver in the supplementary proceedings was con-
cealed, and this notwithstanding the fact that the judgment
debtor consented to such payment before the order was made,
and the order will be vacated on motion of such third person.

Columbia Bank v. Ingersoll, 21 Abb. XN. C. 241,

(H) Indemnity to Person Ordered

The court has uo power to direct a receiver in supplementary
proceedings to indemnify a bank, which had paid over a deposit
standing in the name of the judgment debtor and his wife pur-
suant to an order of a judge in the supplementary proceedings,
against all costs, damages and expenses to which it may become
liable in an action pending by the wife against the bank to re-
cover such deposit as her property.

Galster vy. Syracuse Savings Bank, 29 Hun, 594.

(1) Compliance with Order—Excuse

And although a third person may have agreed to deliver over
certain property to the judgment debtor, upon demand, yet he
will not be required to turn the same over to a receiver in sup-
plementary proceedings, where subsequent events have taken
place by which such agreement became abrogated and the third
party was no longer obliged to comply therewith.

Bauer v. Betz, + St. Rep. 92.

Garnishee—19.
290 SUPPLEMENTARY PROCEEDINGS

Although, upon the examination of a third party, he testi-
fies that he had belonging to the judgment debtor a quantity of
liquors and about 300 cigars on hand, which latter were then
evidently in the original boxes, he will not be required, in turn-
ing over such liquors and cigars, to also deliver over the boxes
in which such cigars were contained, where it does not appear
that at the time of the service of the order directing him so to
do that he was still in possession of such boxes.

Richie v. Bedell, 22 Week. Dig. 563.

(J) Protection to Person Obeying Order

(1) What Constructive Notice

Constructive notice, within the meaning of Sec. 2446 of the
Code, has been defined as follows: “By a constructive notice
we ordinarily mean that a person should be held to have knowl-
edge of a certain fact because he knows other facts from which
it is concluded that he either did in fact know, or ought to have
known, the fact in question.”

Boyd v. Buffalo Steam Roller Co., 87 Misc. 20, 149 Supp.
1050.

A person indebted to a judgment debtor, paying money to the
sheriff pursuant to an order granted under Sec. 2446 of the
Code, is protected, notwithstanding the fact that the judgment
evidencing such debt was previously assigned by the judgment
debtor, in good faith and for a valuable consideration, which as-
signment was recorded in the county clerk’s office, as required
by See. 1270, since such recording would not give “constructive
notice” of the assignment within the meaning of the those words
as used in the first-mentioned section, as an assignment of a
judgment is not within the protection of the Recording Act.

Boyd v. Buffalo Steam Roller Co., 87 Mise. 20, 149 Supp.
1050. ‘
ORDERS DIRECTING PAYMENT OF MONEY 291

(2) Particulay Inslances

The fact that an order for the payment over by a depository
of money of the judgment debtor “directs” instead of “permits”
such payment will not protect the third person so paying the
money over, where such fund had been assigned by the judg-
ment debtor before the institution of the supplementary pro-
ceedings and the granting of the order for payment and notice
thereof given to the depository.

Grand Lodge Knights of Pythias v. Manhattan Savings Inst.,
12 Mise. 626, 34 Supp. 2538.

The fact that a judgment debtor has assigned his right to
moneys owing to him by a third person, but notice of the assign-
ment is not given to the latter, does not affect the protection to
the third person in making payment under an order of the
judge in supplementary proceedings.

Gibson v. Haggerty, 37 N. Y. 555; Lynch v. Johnson, 48 N.
x. 8%

The assignee of a fund in the hands of a third person belong-
ing to a judgment debtor is not affected by an order made with-
out notice to him, directing payment thereof by the person in-
debted to a receiver appointed in supplementary proceedings
against the judgment debtor and assignor, if such assignee can
show that he comes under the exception in Sec. 2469 of the
Code, protecting a bona fide assignee, where the assignment was
made pending the institution of supplementary proceedings and
the appointment of a receiver therein. ,

Dienst v. Gustaveson, 119 St. Rep. 371, 85 Supp. 371.

If a debtor of a judgment debtor pays his debt or becomes
liable to pay the same to the judgment creditor, in pursuance
of an order of a judge having jurisdiction, he is protected, and
may successfully defend a suit brought by either the judgment
debtor or by the latter’s assignee, who is not shown to be a bona
fide purchaser for value of the claim prior to the service of the
order instituting the supplementary proceedings, by virtue of
292 SUPPLEMENTARY PROCEEDINGS

which a lien upon the equitable assets of the judgment debtor
was acquired.

Lynch v. Johnson, 48 N. Y. 27.

An order in supplementary proceedings directing the pay-
ment of a part of a judgment, in good faith and for value
theretofore assigned to another person, and under which order
such payment was made to apply on a judgment against the
judgment creditor will not protect the person making such pay-
ment, as under the assignment mentioned title to such judgment
passed to the assignee.

Lee v. Delehanty, 25 Hun, 197.

And a defendant sued in an action to recover a specified sum
of money cannot interpose the defense that he has paid such
fund to a judgment creditor of the plaintiff under an order
granted in supplementary proceedings against the plaintiff,
where such supplementary proceedings were not instituted until
after the service of the summons upon the defendant, and with-
out any notice to the plaintiff.

Waldheim v. Bender, 36 How. Pr. 181.

Where the wife of a judgment debtor, deposited her own
funds in a bank and thereafter supplementary proceedings were
instituted against the judgment debtor, and third party pro-
ceedings were commenced against the bank and wife, and
examination had thereunder, an order made without notice to
her, directing the bank to pay over such deposit to the judg-
ment creditor is unauthorized, and payment thereunder by the
bank will not protect the latter and operate as a defense to an
action brought to recover the deposit from the bank.

Schrauth v. Dry Dock Savings Bank, 86 N. Y. 390.

In supplementary proceedings upon a judgment against the
Board of Education of the City of Rochester, in which no order
for the examination as a third party of either the City of Roch-
ester or the Board of Education was made, but an order for
the examination of the Superintendant of the Board of Eduea-
tion was granted, but not against him as an officer thereof, and
ORDERS DIRECTING PAYMENT OF MONEY 293

his examination took place thereunder, a payment of moneys
due the judgment debtor under an order reciting that it ap-
peared that the City of Rochester was indebted to the judg-
ment debtor in a sum named; that a check therefor was in the
hands of such Superintendent and directing it to be delivered
to the judgment creditor, will not operate as protection, as
neither the City nor the Board of Education being ordered to
appear for examination, the judge had no authority to make
the order for payment.

Cooman v. Board of Education of Rochester, 37 Hun, 96.

A bank, paying the deposit of a person convicted of a felony
in a United States Court and in addition to imprisonment
being fined a specific sum, to a United States Marshal de-
manding the same, is not protected in so doing as against
the judgment debtor, where no order permitting or directing
such payment was made in supplementary proceedings an-
thorized to be taken in such case by 3 U. S. Compiled Statutes
1916, Sec. 1540 (R. S. Sec. 916), providing that the party
recovering a judgment in any common law cause in the Cirenit
Court or District Court shall be entitled to similar remedies
upon the same, by execution or otherwise, to reach the property
of the judgment debtor, as are now provided in like causes by
the laws of the state in which such court is held, and such
courts, may by general rules adopt state laws, and it is shown
that the court in which such fine was imposed had adopted such
a rule.

Berkman v. New York Produce Exchange Bank, 101 Mise.
282, 167 Supp. 441.

There is no protection to a third party paying money under
an order in supplementary proceedings where there is an
honest dispute as to the ownership thereof, and an action will
lie for the recovery of such money by a person establishing
ownership thereto in an action brought therefor.

Barnard v. Kobbe, 54 N. Y. 516,
294 SUPPLEMENTARY PROCEEDINGS

(K) Action on Order to Pay Money

An action will not lie by a judgment creditor upon an order
made in supplementary proceedings directing a third party
to pay money due to the judgment debtor to the satisfaction
of the judgment, but which was not enforced because of the
third party’s inability to pay, as the remedy is the appoint-
ment of a receiver and the bringing of an action by him.

Patten v. Connah, 13 Abb. Pr. 418.

(L) Unwarranted Order—Directing Restoration

Where there was no basis for an order directing the pay-
ment over of money to the judgment creditor the court may
properly, upon proof of the facts, direct restoration thereof.

Fraser v. Ward, 13 Daly, 481.

In the case last cited, the attorney for the judgment debtor
had deposited his own funds as security for costs in another
action brought by the judgment debtor against the judgment
creditor. Shortly thereafter an order was made directing the
turning over of such money to the judgment creditor in supple-
mentary proceedings in another action, but the action in which
such moneys were paid in court as security for costs, having
been decided in favor of the judgment debtor, it was held that
such moneys should be restored to the attorney in question.
CHAPTER XIX

RECEIVER

(A) Appointment of Receiver, 296.
(1) Statutory Provisions, 296.
(2) In General, 297.
(3) Grounds for Appointment, 299.
(4) Limitations, 303.
(5) Application—Moving Papers, 303.
(6) Notice of Application, 304.
+ (a) Statute, 304.
(b) To Judgment Debtor, 304.
(c) To Other Judgment Creditors, 307.
(d) Service of Notice, 308.
(7) What Judge Makes Appointment, 308.
(8) Order—Form and Sufficiency, 310.
(9) Appointment—Attack—Grounds, 311.
(B) Qualifying—Requisite Acts, 313.
(1) Statutory Provisions, 313.
(2) Bond and Order of Appointment, 314.
(C) Receiver’s Title to Property, 316.
(1) Statutory Provisions, 316.
(2) In General, 318.
(3) Personalty, 319.
(a) In General, 319.
(b) Specific Articles, 320.
(c) Relating Back of Title, 322,
(d) Priority, 326.
(4) Realty and Interests Therein, 328,
(D) Powers and Duties of Receiver, 332.
(1) Statutory Provisions, 332.
(2) Receiver—Whom Represents, 333.
(3) Taking Possession of Property, 334,
(4) Sale of Property, 335.
(5) Disposition of Funds, 337.
(6) Actions by Receiver, 338.
(a) In General, 338.
(b) Leave to Sue, 338.
(c) Security for Costs, 338.

295
296 SUPPLEMENTARY PROCEEDINGS

(6) Actions by Receiver—continued.
(d) Parties, 339.
(1) Parties Defendant, 339.
(2) Substitution of Parties, 340.
(e) Complaint—Sufficiency, 342.
(f) Defenses Available, 344.
(g) Particular Actions, 348.
(1) Attack of Fraudulent Conveyances, 348.
(2) To Reach Funds of Property of Debtor, 354.
(3) Conversion, 358.
(4) Action to Redeem, 359.
(5) To Compel an Accounting, 360.
(6) Partition, 360.
(7) Replevin, 361.
(8) To Determine Priorities, 361.
(9) Trespass, 361.
(h) Right to Compel Judgment Creditor to Refund Pay-
ment, 362.
(i) Right to Compel Accounting in Surrogate’s Court,
362.
(E) Actions against Receiver, 363.
(F) Receiver—Liability to Refund, 364.
(G) Fees of Receiver, 365.
(H) Discharge of Receiver, 366.
(I) Exelusion of Actions by Judgment Creditor, 367.
(J) Receivership—Extension to Other Judgments, 368.
(1) Statute, 368.
(2) Notice of Application, 369.
(3) When Extension Granted, 369.
(4) Rights Acquired, 369.

(A) Appointment of Receiver

(1) Statutory Provisions

The statute authorizing the appointment of a recceiver in
supplementary proceedings constitutes Sec. 2464 of the Code.
This provides that at any time after making an order, requiring
the judgment debtor, or any other person to attend and be
examined, or issuing a warrant, as prescribed in article first
of this title, the judge to whom the order or warrant is return-
able may make an order, appointing a receiver of the property
of the judgment debtor.
RECEIVER 297

Under Sec. 2470 of the Code, the county clerk is required to
keep a book for indexing, filing and recording all orders ap-
pointing receivers of a judgment debtor and must furnish,
upon request, any party or person interested, one or more certi-
fied copies. It is further provided in such section that the
county clerk shall forfeit, to the party aggrieved, $250.00, in
addition to all damages sustained, for his omission to comply
with such provisions.

(2) In General

A receiver in supplementary proceedings may be appointed
either before or after the return of the execution, and this
although the only proceedings instituted consist of a third
party order, in the examination under which, property belong-
ing to the judgment debtor was disclosed.

De Vivier v. Smith, 6 Civ. Pro. Rep. 394.

A receiver cannot be appointed of particular debts or of a
specified part of the judgment debtor’s property. Such re
ceivership must extend to all of his property.

Andrews v. Glenville Woolen Co., 11 Abb. N. 8. 78; Stod-
dard, Matter of, 128 App. Div. 759, 1138 Supp. 157.

Thus, a receiver cannot be appointed in supplementary pro-
ceedings for personal property only.

Stoddard, Matter of, 128 App. Div. 759, 113 Supp. 157.

A receiver cannot be appointed in supplementary proceedings
until the judgment creditor has exhausted his remedy by execu-
tion, and a receiver will not be appointed where it appears that
the judgment debtor has real estate which could be levied upon
and sold to satisfy the judgment.

First National Bank of Canandaigua v. Martin, 49 Hun,
571, 18 St. Rep. 414, 15 Civ. Pro. Rep. 324, 2 Supp. 315.

Before a receiver in supplementary proceedings can be ap-
pointed, it is necessary that there should have been a previous
order for his examination, or-a warrant must have been issued
298 SUPPLEMENTARY PROCEEDINGS

in the proceedings as provided by Sec. 2464, Code of Civil Pro-
cedure.

Bank of Port Jefferson v. Darling, 102 App. Div. 481, 92
Supp. $85.

Notwithstanding the provisions of the statute providing that
only one receiver of a judgment debtor shall be appointed, the
appointment of a receiver in place of another receiver resign-
ing will not be invalidated by the prior appointment of a re-
ceiver in another county, where the original appointment took
place before the appointment in the other county and the judg-
ment debtor did not raise the objection or bring the fact to the
attention of the court on the hearing of the motion.

Clark v. Clark, 11 Abb. N. C. 333.

The court may, in its discretion, upon a motion by one judg-
ment creditor to set aside supplementary proceedings instituted
by another creditor, upon the ground of collusion, appoint a
new receiver and direct that the receiver previously appointed
in such supplementary proceedings hand over to him the prop-
crty received.

Connolly v. Kretz, 78 N. Y. 620.

There is no authority for the making in supplementary pro-
ecedings for the examination of a third party, of an order de-
claring the latter a receiver for the benefit of judgment creditors
of the judgment debtor who had sold goods in bulk to the per-
son first mentioned, in violation of Sec. 44 of the Personal
Property Law, requiring performance of certain conditions
precedent before making the sale, and providing that the pur-
chaser may be declared such a receiver.

Kaphan v. Rogers Grocery Co. Inc., 169 App. Div. 63, 154
Supp. 753.

It is questionable whether a receiver of a joint stock company
can be appointed in supplementary proceedings.

Bruns v. Kane, 12 Civ. Rep. 86.

While supplementary proceedings may now be instituted
against domestic corporations, there still remains no authority
RECEIVER 299

for the appointment of a receiver therein, for if this were so
a creditor of an insolvent corporation could obtain a preference
over other creditors, which is contrary to the policy of our law
and the express provisions of Sec. 306, General Corporation
Law.

Boucker Contracting Co., Matter of v. Callahan Contracting
Co., 218 N.Y. 321.

-\s held in the case last cited, this decision is based on the
policy of this state as disclosed in its legislation for many years
favoring a pro rata distribution of the assets in case of in-
solvency. This is manifested in Sections 112, 134 and 261
of the General Corporation Law, and Section 66 of the Stock
Corporation Law. A receiver appointed under the General
Corporation Law acts for the benetit of all the creditors of the
corporation, who are thus assured that no one will acquire a
preference over any other in the distribution of its assets:
whereas, a receiver in supplementary proceedings represents
only the creditor who procured his appointment and such
others as may have caused the receivership to be extended to
their claims, each becoming entitled to payment in full in
the order of his diligence.

(3) Grounds for Appointment

The general rule is laid down that a receiver may be appoint-
ed although no property is disclosed on the examination.

Dease v. Reese, 39 Mise. 657, 80 Supp. 590; Ryan v. Wag-
ner, 148 App. Div. 176, 127 Supp. 973; De Camp v. Dempsey.
‘10 Civ. Pro. Rep. 210; Myres’ Case, 2 Abb. Pr. +76.

Yet there should be no appointment where the proof is that
the judgment debtor has no property applicable to the lien of
the judgment, and where it may result in harassing him with-
out any benefit accruing therefrom to the judgment creditor.

Stafford, Matter of, 105 App. Div. 46, 94 Supp. 194.

The appointment of a receiver is not necessarily denied
because the judgment debtor apparently has no property which
300 SUPPLEMENTARY PROCEEDINGS

may be applied to the payment of the judgment, but where it
is disclosed upon the examination of the judgment debtor that
the only property possessed by the latter consists of a trust
fund in her favor which cannot be reached in supplementary
proceedings, and she has offered to off set against the judgment,
judgments in her favor against the judgment creditors, which
offer the latter refused to accept, the appointment will be
denied.

De Camp v. Dempsey, 10 Civ. Pro. Rep. 210.

And the appointment of a receiver was denied where the
only property disclosed upon the examination of the judgment
debtor consisted of his earnings derived from moneys received
in his business, which earnings were wholly required for the
support of himself and family.

Cummings v. Timberman, 49 How. Pr. 236; Galowitz v.
Bumford, 54 Mise. 41,104 Supp. 492.

In another case, the rule was laid down that a judgment
debtor cannot defeat the appointment of a receiver simply
on the ground that his examination had not disclosed that he
was the owner of any property, but the court held that the
judgment debtor would be at liberty to thereafter apply for
costs if the judgment ereditor obtained nothing in the proceed-
ings.

Myres’ Case, 2 Abb. Pr. 476.

A receiver will not be appointed when the only property dis-
closed upon the examination consists of contingent fees, which
the judgment debtor has in untried actions in which judgment
has not been recovered, as there is, as yet, nothing to receive.

Gibney v. Really, 26 Misc. 275, 56 Supp. 1055.

So, it has been held that a receiver ought not be appointed
where all the property disclosed upon the examination of a
judgment debtor consists of a watch necessary in his occupation.
This was on the ground that there was nothing to receive and
no occasion for a receiver.

Edlunds, Matter of, 85 Hun, 367.
RECEIVER 301

It is proper to refuse to appoint a receiver in supplementary
proceedings where the judgment debtor testified on his examina-
tion that he had made a general assignment of all his property
for the benefit of creditors, but stated his belief that there
ought to be assets belonging to him in the hands of assignees
atter all claims against the estate were settled, unless the prop-
erty were sacrificed, as it is clear that there is no tangible
property of the judgment debtor to pass to a receiver and
hence there was nothing for a receiver to receive. The mere
possibility of there being a surplus over the debts is not suf- .
ficient to warrant the appointment of a receiver.

Dollard v. Taylor, 38 Super. Ct. Rep. (1 J. & 8.) 496.

An order appointing a receiver will not be denied where
the judgment debtor’s examination discloses the possession of
chcses in action or the existence of a partnership relation,
which render it probable that he may have assets, although the
judgment debtor denies that the property disclosed has any
value.

Webb v. Overmann, 6 Abb. Pr. 92.

A judgment creditor is entitled to the appointment of a
receiver, notwithstanding the fact that the examination shows
that the judgment debtor holds the legal title to heavily encum-
bered real estate and out of which it is improbable that the
execution could have been collected in whole or in part.

Baker v. Herkimer, 43 Hun, 86, 6 St. Rep. 581, 25 Week.
Dig. 573.

It is proper to appoint a receiver in supplementary proceed-
ings, where the property disclosed consists of a seat in the
Stock Exchange, as the same passes to a receiver in such pro-
ceedings, subject to the rules and regulations of the Stock Ex:
change and any prior claims thereto.

Leggett v. Waller, 39 Misc. 408, C0 Supp. 13.

A receiver in supplementary proceedings is properly ap-
pointed, where the judgment debtor testified that he had some
machines, but owed a balance on the purchase price, and under
302 SUPPLEMENTARY PROCEEDINGS

the contract of sale the vendor could take the machines for
the unpaid balance, as it is probable that the judgment debtor
has some interest in the property mentioned.

Vosper v. Monkash, 162 St. Rep. 624, 128 Supp. 624.

A receiver will be appointed in supplementary proceedings,
where the books of a certain company showed that certain shares
of the stock stood in the name of the judgment debtor, althougli
he denied that he owned them, and stated that he had pre-
viously sold such stock, as the judgment creditor was not
concluded by the judgment debtor’s statement and had a right
to have a receiver appointed to contest the fact as to whether
the judgment debtor had actually disposed of his interest in
the stock, and the company in question was not prejudiced
in any way by such appointment and could not oppose it.

Hoyt v. Mann, 7 St. Rep. 420.

It is a proper case for the appointment of a receiver in sup-
plementary proceedings, where the title to property in the
hands of a third person is contested.

Thompson, Matter of v. Sage, 47 Mise. 357, 94 Supp. 31.

The appointment of a receiver in supplementary proceedings
cannot be prevented by showing that the judgment debtor has
real estate which may be sold on execution.

Heroy v. Gibson, 23 Super. Ct. Rep. (10 Bosw.) 591; Todd
v. Crooke, 6 Super. Ct. Rep. (4 Sandf.) 694; Batley v. Lane.
15 Abb. Pr. 873 (note).

The fact that the judgment debtor has an equity of redemp-
tion in real estate which may be sold upon execution, and which
he has always been willing to have so sold, will not defeat the
judgment creditor’s right to the appointment of a receiver.

Bailey v. Lane, 15 Abb. Pr. 373 (note).

It was held proper to appoint a receiver where the rights
of the parties depended upon the determination of the question
whether the judgment debtor had a vested estate or present
interest in the estate of his deceased father.

Ryan v. Wagner, 143 App. Div. 176, 127 Supp. 973.
RECEIVER 803

(4) Limitations

A receiver may be appointed in supplementary proccedings
after the expiration of ten years from the docketing of the judg-
ment, provided the proceedings are instituted within ten years
after the return of the execution unsatisfied, and in the absence
of a contrary allegation, it will be presumed that the supple-
mentary proceedings were begun within ten years after the
return of the execution as required by Sec. 2435, Code of Civil
Procedure.

Fawcett v. New York, City of, 112 App. Div. 155, 98 Supp.
286.

A receiver cannot be appointed in third party proceedings
which were instituted after more than ten years from the return
of an execution against the property of the judgment debtor.

Peck v. Disken, 41 Misc. 473, 84 Supp. 1094.

(5) Application—Moving Papers

The provisions of the Code applicable to receivers in sup-
plementary proceedings do not specify the requisite facts to be
presented to the judge before whom application for the appoint-
ment of a receiver is made. It would appear that no new aliii-
davit is required, but that the application may be made upon the
original affidavit and order for examination in the supplemen-
tary proceedings; the proof of service thereof on the judgment
debtor, and the testimony and proceedings had upon the exami-
nation. It is certainly good practice to present with the last-
mentioned papers an affidavit by the judgment creditor’s at-
torney briefly setting forth the institution of the supplementary
proceedings; the proceedings had thereon, and the result of the
examination in reference to the disclosure of property of the
judgment debtor. There should also be proof as to whether a
judgment creditor’s action is pending, or whether a receiver
has been appointed in other supplementary proceedings, so as
to determine who should receive notice. In case of the ap-
304 SUPPLEMENTARY PROCEEDINGS

pointment of a receiver before the examination of the judg-
ment debtor, or after the issuance of a warrant for his arrest,
as authorized in Sec. 2464 of the Code, the affidavit should set
forth the preliminary proceedings there had.

(6) Notice of Application

(a) Statute

Section 2464 of the Code provides that at least two days’
notice of the application for the order appointing a receiver,
must be given personally to the judgment debtor, unless the
judge is satisfied that he cannot, with reasonable diligence, be
found within the state; in which case, the order must recite
that fact, and may dispense with notice, or may direct notice
to be given in any manner which the judge thinks proper. But
where the order to attend and be examined, or the warrant, has
been served upon the judgment debtor, a receiver may be ap-
pointed upon the return day thereof, or at the close of the ex-
amination, without further notice to him.

In addition to this, notice to other creditors is required under
the circumstances mentioned in Sec. 2465, which provides that
the judge must ascertain, if practicable, by the oath of the
judgment debtor, or otherwise, whether a judgment creditor's
action, specified in Secs. 1871-1879, or a special proceeding
(supplementary proceedings) is pending against the judgment
debtor. If either is pending, and a receiver has not been ap-
pointed therein, notice of the application for the appointment
of a receiver, and of all the subsequent proceedings respecting
the receivership, must be given, in such manner as the judge
directs, to the judgment creditor prosecuting it.

(b) To Judgment Debtor

Where the judgment debtor is not without the state he must
RECEIVER 305

be given notice of the application for the appointment of a re-
celver.

Wilhelm v. Hayman, 160 St. Rep. 374, 126 Supp. 374.

Undoubtedly, a judgment debtor whose examination takes
place before a judge, is not entitled to formal notice of the
appointment of a receiver where such appointment is made
immediately at the close of the examination.

Ashley v. Turner, 22 Hun, 226; Groot v. Greeley, 5 Law
Bull. 69.

But the provisions of Sec. 2464 of the Code, providing that
a receiver rnay be appointed on the return day or at the close of
the exarnination without further notice, apply only to cases
where the examination takes place before a judge, and not
where the examination is had before a referee. In the latter
instance the regular two days’ notice must be given.

Strong v. Epstein, 14 Abb. N. C. 322, 6 Civ. Pro. Rep. 36;
Todd v. Crooke, 6 Super. Ct. Rep. (4 Sandf.) 694; Ashley v.
Turner, 22 Hun, 226.

And a judgment debtor is entitled to a written notice of
application for the appointment of a receiver where his examin-
ation takes place before a referee, and a verbal notice that such
application will be made, given at the close of the examination,
will not suffice.

Ashley v. Turner, 22 Tun, 226.

Where there is an omission.to give the notice prescribed by
Sec. 2464 of the application for the appointment of a receiver,
an order making such appointment is absolutely void.

Sayles v. Best, 66 Hun, 628, 49 St. Rep. 460, 20 Supp. 951;
Grace v. Curtiss, 3 Misc. 558, 33 Sup. 321.

And an order appointing a receiver in supplementary pro-
ceedings, made without notice of the application, is void and
will be set aside, although it recites that no notice could with
“reasonable diligence” be given, since there is nothing to show

Garnishee—20.
306 SUPPLEMENTARY PROCEEDINGS

that the judgment debtor could not be found within the state
as required by Sec. 2464 of the Code.

Grace v. Curtiss, 3 Mise. 558, 33 Supp. 321.

But the omission to give the judgment debtor the statutory
notice of an application for the appointment of a receiver can-
not be collaterally raised.

Gomprecht v. Scott, 27 Mise. 192, 57 Supp. 799.

Notwithstanding Sec. 2464 of the Code providing for the
appointment of a receiver on two days’ personal notice to the
judgment debtor, unless the judge is satisfied that he cannot
be found with reasonable diligence in the state, the appoint-
ment of a receiver without notice is not justified solely upon an
affidavit by the attorney for the judgment creditor stating that
deponent has made a search for the judgment debtor, and
cannot find him, and that another person has informed him that
the judgment debtor is out of the state, but no basis is shown
for such belief, and nothing is disclosed as to what the deponent
has done to find the judgment debtor.

Henry v. Furbish, 30 Mise. 822, 62 Supp. 247.

But an order appointing a receiver in supplementary pro-
ceedings is regular although no notice of the application is
given to the judgment debtor, where it appears that the latter
resided in Washington Territory, and the order contained a
recital that it was brought to the attention of the judge that
the judgment debtor was a resident of a distant territory.

O’Connor v. Mechantes’ Bank, 54 Hun, 272, 27 St. Rep. 1,
7 Supp. 380.

Although a receiver may be appointed where only third
party proceedings have been instituted, under Sec. 2464, Code
of Civil Procedure, notice of the application therefor must be
given to the judgment debtor.

Morgan v. Von Kohnstann, 60 How. Pr. 161.

A receiver in supplementary proceedings may be appointed
on a day specified for the appearance of the judgment debtor
RECEIVER 307

after the close of the examination, and the judgment debtor
is entitled to no other or further notice of such appointment.

Sickels v. Hanley, 4 Abb. N. C. 231.

Where the judgment debtor makes a motion to set aside the
appointment of a receiver because of want of notice to him and
other irregularities it is proper for the judgment creditor to
serve a notice that in the event of the vacation of the original
order on the hearing of the motion, a motion will be made on
behalf of the judgment creditor for the appointment of another
receiver, and an order appointing a second receiver upon vacat-
ing the appointment of the first, is proper. And the fact that
the judgment debtor’s motion was by order to show cause con-
taining a stay of proceedings will not defeat the relief granted,
when this objection was not taken on the hearing of the motion.

Clark v. Clark, 11 Abb. N. C. 333.

(c) To Other Judgment Creditors

A prior judgment creditor who has instituted supplementary
proceedings upon his judgment and which are still pending
must be given notice of an application for the appointment of
a receiver in subsequently instituted proceedings upon another
judgment.

Sheffield Farms Co. v. Burr, 11 Mise. 638, 32 Supp. 1149.

While other judgment creditors who have instituted supple-
mentary proceedings should be given notice of an application
for the appointment of a receiver, they are not entitled to the
service upon them of a copy of the examinations on which the
application is founded.

Todd v. Crooke, 6 Super. Ct. Rep. (4 Sandf.) 694.

The general requirement that other judgment creditors are
entitled to notice of the apointment of a receiver in supplemen-
tary proceedings is not applicable, because of waiver, where a
judgment creditor, having examined the judgment debtor in
supplementary proceedings and caused the proceedings to be
308 SUPPLEMENTARY PROCEEDINGS

indefinitely adjourned, suggested to the judgment creditor later
instituting supplementary proceedings and having the receiver
appointed, that there was a possibility of recovering certain
moneys,. and asked why he did not have a receiver appointed
an his judgment.

.; Barnett v.. Moore, 20 Misc. 518, 46 Supp. 668.

(d) Service of Notice

‘The appointment of a receiver in supplementary proceed-
ings ‘is not justified upon the service of notice of application
therefor on the attorneys of record of the judgment debtor,
the latter not having appeared on the motion, and waived per-
sonal service of the notice.

Catholic University of America v. Conrad, 27 Misc. 326,
57 Supp. 820.

But it has been held that a judgment debtor is not entitled
to personal service of a written notice of application for the
appointment of a receiver, where at the close of the examination
the: judgment creditor’s attorney gave oral notice of such ap-
plication to be made forthwith, and his attorney, who appeared
for and represented the judgment debtor on such examination,
agreed to the appointment of a certain person as receiver and
appeared later pursuant to agreement with the judgment credi-
tor’s attorney before the county judge, and consented to the
order appointing the person agreed as receiver, since this
amounted to a waiver of personal service of notice.

Moore vy. Empie, 17 App. Div. 218, 45 Supp. 539,

(7) What Judge Makes Appointment

Tt is provided in Sec. 2464 of the Code that the appointment
of a’ receiver in supplementary proceedings shall be made by
the judge to whom the order or warrant in the supplementary
proceedings is returnable.

‘Sec. 2462 of the Code makes Secs. 26 and 52 applicable to
RECEIVER 309

supplementary proceedings, and provides that the judge before
whom they are continued as prescribed in either of those sec-
tions, shall be deemed to be the judge to whom an order or
warrant is returnable.

Under this provision, it is apparent that in the counties with-
in the first and second judicial districts, to which Sec. 26 ap-
plies, application for the appointment of a receiver may be
made, not only to the judge to whom the original order in sup-
plementary proceedings was returnable, but also to any other
judge of the same court. In the other counties of the state, and
also in those first mentioned, to all of which Sec. 52 is applica-
ble, in case of the death, sickness, resignation, removal from
office, absence from the county, or other disability of the judge
to whom the original order in supplementary proceedings was
returnable, the application may be made to that judge’s succes-
sor, or any other officer residing in the same county, before
whom the supplementary proceedings might have been origi-
nally instituted.

An order appointing a receiver in supplementary proceed-
ings should be made by the judge at Chambers and not by the
court.

Ball v. Goodenough, 37 How. Pr. 479. ;

Supplementary proceedings may be instituted before a jus:
tice of the Supreme Court in another judicial district than that
in which the judgment was recovered, and an order appoint-
ing a receiver may be made by him. .

Jacobson v. Doty Plaster Mfg. Co., 832 Hun, 486..

Where a receiver in supplementary proceedings has resigned
and applied to the court to be relieved from his position,. the
application for the appointment of another receiver is properly
made to the court and not to a judge thereof.

Lippincott v. Westray, 6 Civ. Pro. Rep, 74. Fahy

Notwithstanding Sec. 2471, providing that a receiver in
supplementary proceedings is subject to the direction and..con-
trol of the court out of which the execution was issued, it :is
510 SUPPLEMENTARY PROCEEDINGS

proper for the Supreme Court to appoint a receiver in place
of a prior receiver in supplementary proceedings who had
died, to be substituted as plaintiff in place of the former re-
velver and authorized to carry on an action pending in the
Supreme Court to reach certain property of the judgment
debtor, under direction of that court, although the order ap-
pointing the first receiver was made by a county judge, since on
the death of the receiver the trust vested in the Supreme Court,
and that court in consequence had jurisdiction to appoint
another receiver to represent it in executing the trust.

Smith v. Barnum, 59 App. Div. 291, 69 Supp. 253.

(8) Order—Form and Sufficiency

The form which an order appointing a receiver in these
proceedings should take is given in the list of forms at the end
of this work.

See Orders.

It is not proper for the judge appointing a receiver in sup-
plementary proccedings to direct an assignment or transfer. of
personal property by the judgment debtor to the receiver. Such
judge can only enjoin the transfer of debts owing to the judg-
ment debtor, until such time as the receiver may bring action
for the collection thereof.

Ball v. Goodenough, 37 How. Pr. 479.

An order appointing a receiver in supplementary proceedings
containing merely technical defects or insufliciencies may be
amended by the filing of an affidavit nunc pro tunc, pursuant
to order of the court.

Rourke v. Turrell, 172 St. Rep. 648, 138 Supp. 648.

An order appointing a receiver in supplementary proceed-
ings is not fatally defective and void because it makes no
provisions for exempt property under the statute, as at most,
the order is irregular.

Seeley, Matter of v. Connors, 109 App. Div. 279, 95 Supp.
1109.
RECEIVER dll

(9) Appotntment—Attack—Grounds

Irregularities in the appointment of a receiver in supple-
mentary proceedings are available only to the judgment debtor
and not to others.

Baker v. Brundage, 79 Hun, 382, 61 St. Rep. 498, 29 Supp.
792; Palmer v. Colville, 45 St. Rep. 706, 18 Supp. 509;
Darrow v. Riley, 5 Mise. 363, 26 Supp. 91.

And other judgment creditors seeking to obtain the appoint-
ment of a receiver upon their judgments, cannot raise this
objection.

Darrow v. Riley, 5 Mise. 363, 26 Supp. 91.

So, the validity of an order appointing a receiver in supple-
mentary proceedings cannot be assailed on an accounting in
surrogate’s court by an administratrix of the judgment debtor’s
estate,

Peters v. Carr, 2 Dem. 22.

A judgment creditor, who has instituted supplementary pro-
ceedings against the judgment debtor, cannot have the appoint-

“ment of a receiver in prior supplementary proceedings insti-
tuted by another judgment creditor vacated on the ground that
the execution upon the latter’s judgment was not in fact
returned unsatisfied as stated in the affidavit upon which the
first proceeding was based.

Baker v. Brundage, 79 Hun, 382, 61 St. Rep. 498, 29 Supp.
792.

Consent to the appointment of a receiver in supplementary
proceedings precludes the right of the judgment debtor te
dispute the regularity thereof.

Tyler v. Willis, 33 Barb. 327, 12 Abb. Pr. 465.

Upon this subject the court above held that when the judg-
ment debtor consents that a receiver be appointed to take pos-
session of his property, for the purpose of paying claims
against him, it does not lie in his mouth to dispute the regu-
larity of that appointment. Also that if there had been a want
312 SUPPLEMENTARY PROCEEDINGS

of jurisdiction on the part of the court or officer making the
appointment, the objection might perhaps be available, but
not so as to an irregularity in the proceedings. The party
against whom such proceedings are taken may waive all such
irregularities and if he does, no other person can take the ob-
jection.

A judgment debtor cannot object to the appointment of a
receiver by reason of irregularity in the proceedings where he
has submitted to an examination therein without objection.

Bingham v. Disbrow, 14 Abb. Pr. 251, 87 Barb. 24; Baker
v. Herkimer, 43 Hun, 86, 6 St. Rep. 581, 25 Week. Dig. 573.

Thus, it is too late to attack an order appointing a receiver
in supplementary proceedings on the ground that the sheriff’s
return of execution was defective, where it is shown that such
judgment debtor appeared and submitted to his examination
and to the appointment of the receiver without objection,
especially where it appears by his examination that he was not
prejudiced by the defect in question.

Baker v. Herkimer, 43 Hun, 86, 6 St. Rep. 581, 25 Weck.
Dig. 573.

And irregularity in the appointment of a receiver in supple-
mentary proceedings is waived where the attorney for the
judgment debtor appears before the judge in obedience to a
notice of motion to show cause why a receiver should not be
appointed, and made no objection thereto.

Underwood v. Sutcliffe, 10 Hun, 453.

It constitutes a waiver of the right to attack an order appoint-
ing a receiver in supplementary proceedings, where the judg-
ment debtor and his attorney were present when such receiver
was appointed and made no objections thereto, especially where
two years have elapsed since the order was made, and the
proceedings are now barred by the statute of limitations.

Bolt v. Hauser, 10 Supp..397, 19 Civ. Pro. Rep. 7, affirmed
11 Supp. 366, 19 Civ. Pro. Rep. 210, 33 St. Rep. 343.

So, a judgment debtor cannot object to the appointment of a
RECEIVER 313

receiver in supplementary proceedings, where he submitted
without objection to examination, and omitted to appeal from
the subsequent order appointing a receiver.

Viburt v. Frost, 3 Abb. Pr. 119, 12 Super. Ct. Rep. (5
Duer) 672.

The fact that owing to the absence of the judge before whom
application for the appointment of a receiver was made, the
appointment was not made until the return of the judge the
following day is a mere irregularity, which only the judgment
debtor may take advantage of. It is not available to another
judgment creditor seeking to obtain the prior appointment of a
receiver.

Darrow v. Riley, 5 Misc. 363, 26 Supp. 91.

In the case last cited, it was contended under Sec. 52 of the
Code, providing that in case of the absence from the county or
other disability of an officer before whom a special proceed-
ing has been instituted, where no express provision is made by
law for the continuance thereof, it may be continued before
another officer of the county, strictly speaking, prevented the
application for the appointment to the judge before whom it
was returnable on a subsequent day. The court, however, held
that such section of the Code was not mandatory and did not
render the order in question void.

(B) Qualifying—Requisite Acts
(1) Statutory Provisions

A person appointed receiver in supplementary proceedings,
must, under Sec. 2469, subd. 5 of the Code, be a resident of
the state. It is also provided in Sec. 251, Judiciary Law that
no person holding the office of clerk, deputy clerk, special
deputy clerk, assistant deputy clerk, or assistant in the clerk’s
office, of a court of record within the first and second judicial
districts or territory comprising the same, shall be appointed
a receiver.
314 SUPPLEMENTARY PROCEEDINGS

Beyond this, there are no special qualifications required in
a person appointed a receiver in supplementary proceedings.
Such a person need not be an attorney, but it is apparent that
no one will be apointed who does not have reasonable business
qualifications.

Section 2467 of the Code amended in 1917, now leaves it
optional with the judge whether a receiver shall give a bond for
the faithful performance of his duties, but such a bond is gener-
ally, if not invariably, required, particularly if any property
is certain to come into the hands of the receiver. Of course a
person appointed receiver should be required to take an oath
of office.

Section 2467 of the Code provides that an order appointing a
receiver or extending a receivership, and the bond, if any be
required, must be filed in the office of the clerk of the county,
wherein the judgment-roll in the action is filed; or, if the
special proceeding is founded upon an execution issued out
of a court, other than that in which the judgment was rendered,
in the office of the clerk of the county, wherein the transcript
of the judgment is filed.

(2) Bond and Order of Appointment

The fact that there was an irregularity in the filing of a
receiver’s bond cannot be attacked collaterally, and the objection
is not available to defendants sued by the receiver.

Boynton v. Sprague, 100 App. Div. 448, 91 Supp. 839.

The fact that seals are omitted on a receiver's bond is merely
an irregularity and not fatal. The sureties are liable on the
instrument and the rights of no party are prejudiced by such
-omission.

Hyatt v. Dusenbury, 5 St. Rep. 846, 12 Civ. Pro. Rep. 152.

The omission to affix a seal to the undertaking filed by a
receiver in supplementary proceedings, is merely an irregu-
RECEIVER 315

larity which only the judgment debtor can take advantages
of.

Morgan v. Potter, 17 Hun, 403.

In view of See. 723 of the Code of Civil Procedure, au-
thorizing amendments at any stage in furtherance of justice,
the court, may, in an action by a receiver in supplementary
proceedings, amend nunc pro tunc the order appointing the
receiver, so as to require the filing of his bond with the clerk
of the city court with whom it was intended to be filed, and,
in fact, was actually filed, changing a provision of such bond
requiring the filing thereof with the county clerk.

Boynton v. Sprague, 100 App. Div. 443, 91 Supp. 839.

The appointment of a receiver in supplementary proceed.
~ ings cannot be regarded as complete until his bond is filed in
the office of the clerk of the county, wherein the judgment ro!!
in the action is filed, as provided by Sec. 2467, Code of Civil
Procedure.

National Wall-Paper Co. v. Gerlach, 15 Mise. 640, 37 Supp.
428.

It is questionable whether a receiver has any authority to act
where he did not file any bond upon his appointment, but an
order may be entered by consent providing that the receiver’s
bond filed in another action against the same defendant should
be deemed sufficient and that no other be required.

Conger v. Sands, 19 How. Pr. 8.

The order appointing a receiver in supplementary proceed-
ings should be filed with the clerk of the county in which the
order was made, and it is only from the time the receiver re-
ceives a copy of such order that he has any power to act at all.

Ball v. Goodenough, 37 How. Pr. 479.

Where a receiver, upon his appointment in supplementary
proceedings, gave the required security, and being appointed
receiver in other supplementary proceedings against’ the same
judgment debtor was required to give further security in some
of them, and in others no additional security was required,
316 SUPPLEMENTARY PROCEEDINGS

does not thereby lose his right to act in those proceedings in
which he gave no security, and he has a right to assert the hen
of the judgment creditors in the latter proccedings.

Banks v. Potter, 21 How. Pr. 469.

A receiver who fails to file the order of his appointment in
the office of the clerk of the county where the transcript of the
judgment was filed, has not qualified and is not authorized
to act. The fact that he has filed his order of appointment in
the office of the clerk of another county where the appointment
was made is not sufficient.

Klatzkie v. Kimpel, 206 St. Rep. 711, 172 Supp. 711.

The fact that a receiver’s bond in supplementary proceedings
is dated several days before the order appointing the receiver
was made is not fatal, where it appears that the bond was not
received or acted upon until after the appointment of the
receiver. At such time it became operative against the parties
to it, and they are estopped from disputing its validity.

Underwood v. Sutcliffe, 10 Hun, 453.

(C) Receiver’s Title to Property
(1) Statutory Provisions

It is provided in Sec. 2468 of the Code that the property
of the judgment debtor is vested in a receiver, who has duly
qualified, from the time of filing the order appointing him or
extending his receivership, as the case may be; subject to the
following exceptions:

1. Real property is vested in the receiver, only from the
time when the order, or a certified copy thereof, as the case
may be, is filed with the clerk of the county where it is situated.

2. Where the judgment debtor, at the time when the order is
filed, resides in another county of the state, his personal prop-
erty is vested in the receiver, only from the time when a copy
of the order, certified by the clerk in whose office it is recorded,
is filed with the clerk of the county where he resides.
RECEIVER 317

In addition to this, Sec. 2469 makes certain provisions as io
the title of the receiver to personalty relating back.

The material provisions of this section provide, that where
the receiver’s title to personal property has become vested, as
prescribed in the last section, it also extends back, by relation,
for the benefit of the judgment creditor in whose behalf the
special proceeding was instituted as follows:

1. Where an order, requiring the judgment debtor to attend
and be examined, or a warrant, requiring the sheriff to arrest
him and bring him before the judge, has been served, before
the appointment of the receiver, or the extension of the receiver-
ship, the receiver’s title extends back, so as to include the per-
sonal property of the judgment debtor, at the time of the
service of the order or warrant.

2. Where an order or warrant has not been served, as speci-
fied in the foregoing subdivision, but an order has been made,
requiring a person to attend and be examined, concerning
property belonging, or a debt due, to the judgment debtor,
the receiver’s title extends to the personal property belong-
ing to the judgment debtor, which was in the hands, or under
the control, of the person or corporation thus required to attend,
at the time of the service of the order; and to a debt then due
to him from that person or corporation.

3. In every other case, where notice of the application for
the appointment of the receiver was given to the judgment
debtor, the receiver’s title extends to the personal property
cf the judgment debtor, at the time when the notice was
served, either personally or by complying with the require-
ments of an order, prescribing a substitute for personal service.

4. Where the case is within two or more of the foregoing
subdivisions of this section, the rule most favorable to the
judgment creditor must be adopted.

But this section does not affect the title of a purchaser in
good faith, without notice, and for a valuable consideration; or
the payment of a debt in good faith; and without notice.
318 SUPPLEMENTARY PROCEEDINGS

(2) In General

A receiver in supplementary proceedings upon compliance
with the statutory requirements, acequires title to all of the
judgment debtor’s property and it is not necessary or proper
for an order to be made directing the judgment debtor to assign
any of his property to the receiver.

People ex rel. Williams v. Hulburt, 5 How. Pr. 446, 9
Leg. Obs. 245, 1 Code Rep. N. S. 75; Porter v. Williams,
9 N. Y. 142, 12 How. Pr. 107; Spencer v. Berdell, 45 Hun,
179; Cooney v. Cooney, 65 Barb. 524.

In view of Sec. 2468 of the Code, property of the judgment
debtor vests in the receiver appointed in supplementary pro-
ceedings only from the time when a certified copy of the order
is filed with the clerk of the county where the judgment debtor
resides if that county is not the one in which the order appoint-
ing the receiver was filed.

Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

A receiver in supplementary proceedings does not take title
to property transfered by the judgment debtor in fraud of his
creditors.

Bostwick v. Menck, 40 N. Y. 383.

In view of Sec. 2468 of the Code, providing that the prop-
erty of the judgment debtor is vested in a receiver from the
time of filing the order of his appointment, the fact, that be-
cause of extend litigation in which a mortgagor claimed the
mortgage was paid and in consequence of which it was a long
time before the receiver was able to obtain his judgment in
foreclosure, will not affect the vesting of title to the mortgage
as of the day of the filing of the order appointing the re-
ceiver.

Pickert v. Eaton, 81 App. Div. 423, 81 Supp. 50.

A receiver does not take title to after-acquired property.

Norcross v. Hollingsworth, 83 Hun, 127, 64 St. Rep. 264. 31
Supp. 627; Murphy v. Cram, 157 App. Div. 609, 142 Supp.
972.
RECEIVER 319

And the only way the same may be reached is by an ex-
tension of his receivership to another judgment.
Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

(3) Personalty

(a) In General

The title to personal property immediately vests in a re-
ceiver in supplementary proceedings upon his appointment,
and the jndge having jurisdiction in the supplementary pro-
ceedings, cannot order an assignment of such property from the
judgment debtor to the receiver.

People ex. rel. Williams v. Hulburt, 5 How. Pr. 446, 9
Leg. Obs. 245, 1 Code Rep. N. 8. 75.

A receiver in supplementary proceedings takes the legal
title to the personal property of the judgment debtor for the
benefit of the judgment creditors for whom he was appointed,
and of other judgment creditors to whose judgments the re-
ceivership has been extended.

Kennedy v. Thorp, 51 N. Y. 174; Murphy v. Cram, 157
App. Div. 609, 142 Supp. 972; Stumert v. Van Aken, 165 App.
Div. 206, 150 Supp. 525; Ward v. Baker, 186 App. Div. 652,
175 Supp. 66.

Before a receiver appointed in supplementary proceedings
can obtain an order directing the judgment debtor who is a
resident of a county other than that in which the judgment roll
is filed to deliver his personal property to him, a copy of the
order appointing him must be filed in the first named county.

Staats v. Wemple, 2 How. Pr. N.S. 161.

A receiver takes no title to exempt property.

Cooney v. Cooney, 66 Barb. 524; Crane v. Beecher, 26 St.
Rep. 233, 6 Supp. 225.

But while a receiver does not take title to property acquired
after the appointment, yet where there was property due the
320 SUPVLEMENTARY PROCEEDINGS

judgment debtor by the terms of a will which had been probated

prior to the receiver’s appointment, such property must be

deemed to have been acquired before such appointment.
Crane v. Beecher, 26 St. Rep. 233, 6 Supp. 225.

(b) Specific Articles

Under Secs. 2468 and 2469 of the Code, the commencement
of supplementary proceedings gives a judgment creditor an
equitable lien on a debt owing to the judgment debtor, which,
on the appointment of a receiver, ripens into a legal title in
him as of the date of the institution of the supplementary
proceedings.

McCorkle v. Herrman, 117 N. Y. 297, 27 St. Rep. 333.

A receiver is entitled to an award made by the City of New
York for taking property of the judgment debtor for public
use where he was appointed before the award was made.

Fawcett v. New York, City of, 112 App. Div. 155, 98 Supp.
286.

The statutory liability of the directors of a corporation for
its debts by reason of failure to file an annual report passes
as an incident to the debt passing to a receiver appointed in
supplementary proceedings, and the latter may bring an ac-
tion to enforce the same.

Boynton v. Sprague, 100 App. Div. 448, 91 Supp. 839.

A receiver in supplementary proceedings takes title to a debt
owing by a contractor to the judgment debtor, although sub-
sequent to the appointment of the receiver but after the in-
stitution of the supplementary proceedings in which such ap-
pointment took place, a mechanic’s lien was filed upon the
property for the indebtedness in question, as the claim or lien of
the receiver took precedence.

McCorkle v. Herrman, 117 N. Y. 297, 27 St. Rep. 333.

A seat in the New York Stock Exchange, subject to the
rules and regulations of the Exchange, passes to a receiver in
RECEIVER 321

supplementary proceedings, and the judgment debtor cannot
claim exemption thereof as working tools, under Sec. 1391
of the Code.

Leggett v. Waller, 39 Misc. 408, 80 Supp. 13.

A receiver in supplementary proceedings does not, by virtue
of his appointment and filing of the order therefor, acquire the
legal title to life insurance policies fraudulently transferred by
the judgment debtor.

Metcalf v. Del Valle, 64 Hun, 245, 46 St. Rep. 105, 19
Supp. 16.

Notwithstanding the fact that a judgment debtor had given
a chattel mortgage upon certain property which was past due
he is bound-to surrender the same upon demand by a receiver
in supplementary proceedings, since such default in payment
of the mortgage did not make the mortgagee the sole and un-
conditional owner of the property, but the judgment debtor
still has what might be designated a leviable interest in the
property, subject to the claim of the mortgage.

Moss, Matter of v. Lightfine, 60 Mise. 62, 111 Supp. 675.

A receiver in supplementary proceedings is entitled to
moneys earned by a judgment debtor upon a contract, and
also the agreed percentage to be paid him at the end of the
vear, although at the time of the appointment and the vesting
of title in him such contract was only partially performed, as
the receiver took whatever title the judgment debtor possessed
to the contract, and not merely the title to moneys actually
due at the time of the institution of the supplementary pro-
ceedings.

Boynton v. Seibert, 33 Misc. 310, 68 Supp. 562.

It has been held that where a receiver was appointed upon
a judgment against certain persons as executors under a will,
he cannot bring an action against a bank to recover a deposit
therein belonging to the estate of the decedent, as such re-
ceiver took no title to such property.

Jones v. Arkenburgh, 112 App. Div. 483, 98 Supp. 532.

Garnishee—21,
322 SUPPLEMENTARY PROCEEDINGS

A receiver in supplementary proceedings has a right to share
in the distribution of moneys acquired from the sale of property
of the judgment debtor pledged as collateral for a specific debt,
although upon the foreclosure of a mortgage upon real estate
given by the common debtor as security for the general debts
owing to such creditor, a deficiency judgment resulted, as the
creditor mentioned can only take, upon sale of the property
pledged for a specific debt, the amount of the latter from the
proceeds of the sale, and cannot apply any of such residuc
upon such deficiency judgment, especially where he has issued
no execution upon that judgment, or taken any steps to en-
force it against the debtor’s personal property pledged to him.

Armstrong v. McLean, 153 N. Y. 490.

(c) Relating Back of Title

The assignee of a fund due the judgment debtor, which
was assigned to him after the institution of supplementary
proceedings, but before the order appointing a receiver, may,
under See. 2469, be protected, providing the facts surround-
ing such assignment come under the exception in Sec. 2469
of the Code.

Dienst v. Gustaveson, 119 St. Rep. 371, 85 Supp. 371.

In view of Sec. 2469, subd. 1, providing that the appoint:
ment of a receiver in supplementary proceedings shall operate
to extend the receiver’s title to property of the judgment debtor
back as of the date of the institution of the proceedings, priority
is established by the appointment of a receiver, although the
judgment creditor failed to notify another judgment creditor
of his application for the appointment of the receiver, where
notice was thereafter given such creditor to show cause why the
receiver should not be continued, although it resulted in the
vacation of the order of appointment and a new receiver being
appointed.

Pennsylvania Glass Co., Maller of, 28 Mise. 180, 58 Supp.
1067.
RECEIVER 323

A receiver’s title to property of a judgment debtor takes pre-
cedence to that of a trustee in bankruptcy, where the institu-
tion of the supplementary proceedings took place more than
four months prior to the trustee’s appointment, since under
Sec. 2467 of the Code the receiver’s title related back to the
commencement of the supplementary proceedings.

Arnold v. Green Gold-Silver Co., 68 Misc. 449, 125 Supp.
29.

Under Sec. 2469 of the Code, providing that a receiver’s title
shall relate back to the day of the institution of the supple-
meutary proceedings, but the title of a purchaser in good faith
without notice and for a valuable consideration, or the payment
of a debt in good faith and without notice, is not affected by
the receivership, a debtor of the judgment debtor making
payments to his other creditors under orders made by him, will
be protected, although the debtor making such payments was
aware.that the judgment debtor was indebted or that judgments
had been obtained against him, unless it is shown that such pay-
ments were made to defeat some right of the judgment debtor’s
creditors to the particular claim which the latter had acquired,
and of which the person paying had notice.

Hubbard vy. Lewis Co., 128 App. Div. 416, 112 Supp. 1050.

The provision of Sec. 2469 of the Code, providing that the
title of a reeciver entitled to property of the judgment debtor
shall relate back to the day of the institution of the supple-
mentary proceedings, does not apply to judgments upon which
the receivership has been extended, but title as to the latter
date only from the day of the institution of their supplementary
proceedings.

Hubbard v. Lewis Co., 128 App. Div. 416, 112 Supp. 1050.

A junior judgment creditor obtaining judgment in a court
not of record and levying upon and selling property of the
judgment debtor, must be regarded as a “purchaser in good
faith without notice,” within the meaning of Sec. 2469 of the
Code, and a receiver in supplementary proceedings upon a
324 SUPPLEMENTARY PROCEEDINGS

judgment obtained prior to the first mentioned judgment and
which supplementary proceedings were also instituted prior
thereto, but said appointment took place thereafter, cannot
reach such property, especially since Sec. 1408 of the Code pro-
vides that an execution out of a court not of record, actually
levied has preference over another execution out of any court,
not previously served.

Droege v. Baxter, 69 App. Diy. 58, 74 Supp. 585, 32 Civ.
Pro. Rep. 354.

A receiver in supplementary proceedings having possession
of a promisory note will not be ordered to deliver the same over
to a purchaser of property including such note from a trustee
in bankruptey of the judgment debtor, where such trustee’s ap-
pointment took place more than four months after the institu-
tion of the supplementary proceedings in which the receiver was
appointed, and such purchaser standing in the shoes of the
bankrupt merely, is only entitled to the possession of such note
upon paying the amount of the judgment and expense of the
supplementary proceedings had thereon.

Arnold v. Green Gold-Silver Co., 68 Mise. 449, 125 Supp.
29.

A receiver in supplementary proceedings cannot claim per-
onal property of the judgment debtor which passed by a gen-
eral assignment for creditors, where he failed to file a copy
of the order of his appointment in the county where the jude-
ment debtor resided until after the making of such general
assignment and the filing thereof in the county prescribed by
the statute, and the doctrine of relation back of a receiver’s title
to the date of the institution of the supplementary proceedings,
under Sec. 2469 of the Code, does not help the receiver, al-
though the general asignment made before the institution of
such proceedings was not filed in the proper county, since when
the latter was done, it took by relation from the time of the de-
livery of the assignment, and must be held to have passed the
RECEIVER 325

title to the property before the vesting of the receiver’s title
thereto.

Nicoll v. Spowers, 105 N. Y. 1, 6 St. Rep. 547, 27 Week.
Dig. 80.

And the exception to the relating back of the title of a re-
ceiver in supplementary proceedings where a bona fide sale or
transfer has been made, applies to the assignment of a judgment
made in consideration of services, both in obtaining the judg-
ment and in a prior action, such assignee being a bona fide pur-
chaser within the meaning of the statute. (Sec. 2469, subd. 5,
Code).

Frieder v. Adlerman, 95 Mise. 259, 159 Supp. 120.

And the protection accorded by Sec. 2459 of the Code to a
bona fide purchaser without notice of property of the judgment
debtor, applies to a bona fide purchaser of property sold by
a chattel mortgagee, although the mortgage was not filed, as
provided by statute, and the same was therefore void as to credi-
tors.

Merry v. Wilcox, 92 Hun, 210, 72 St. Rep. 273, 36 Supp.
1050.

The doctrine of the law merchant that a person taking past
due paper is not a bona fide purchaser thereof is not applicable
to the provisions of Sec. 2469 of the Code in determining
whether the purchaser of a promissory note of a third party
from a judgment debtor has good title thereto to the extent of
the purchase money, within the protection of that section, wher«
there is no evidence or circumstance tending to show that the
purchaser knew or even suspected that the judgment debtor was
embarrased or in debt.

Clover, Matter of, 154 N. Y. 448.

In view of the Code provisions relating to the vesting of title
in a receiver in supplementary proceedings, the latter may
reach a cause of action accuring after the date of the institu-
tion of the supplementary proceedings and he is entitled to be
substituted as plaintiff in place of the judgment debtor in the
326 SUPPLEMENTARY PROCEEDINGS

latter’s action pending to recover certain claims belonging to
him, as the defendant in such action cannot be regarded as a
purchaser in good faith without notice, and for a valuable con-
sideration within the meaning of Sec. 2469 subd. 4 of the Code,
FitzPatrick v. Moses, 34 App. Div. 242, 54 Supp. 426.

(d) Priority

A receiver, to whom an attorney, having possession of shares
of stock as security for legal services to the judgment debtor in
another action, delivers over the stock in question pursuant to
written demand, at the same time serving upon the receiver
notice that he has a lien thereon for his services, takes title to
such stock subservent to the lien and rights of the attorney, and
the latter is entitled to be paid the amount of his lien from the
proceeds of the latter subsequently sold by the receiver.

Corey v. Harte, 21 Week. Dig. 247.

A receiver in supplementary proceedings takes title to a sum
due under a building contract, in preference to the claim of one
furnishing material to such contractor, but for which he did
not file a mechanic’s lien until after the appointment of the
receiver.

Smith v. Pierce, 45 App. Div. 628, 60 Supp. 1011; Mul-
stein Co. v. New York, City of, 2138 N. Y. 308.

The lien acquired by a judgment creditor by bringing an
action to set aside a fraudulent transfer of personal property is
not defeated by a similar action thereafter brought by a re-
ceiver appointed in supplementary proceedings upon another
judgment, as the receiver is entitled to no perference in such
case.

Metcalf v. Del Valle, 64 Hun, 245, 46 St. Rep. 105, 19 Supp.
16.

Section 1409 of the Code, providing that personal property
of a judgment debtor is bound by an execution from the time
of the delivery thereof to the sheriff, applies to the equity of a
RECEIVER 327

judgment debtor in pledged chattels, and where such chattels
are thereafter sold by the pledgee, the execution attaches to the
surplus, and the sheriff, under such execution, takes the same
in preference to a receiver subsequently appointed, at the in-
stance of another judgment creditor, in aid of the latter’s execu-
tion.

Sickles v. Sullivan, 65 Hun, 620, 19 Supp. 749, 22 Civ. Pro.
Rep. 322.

Notwithstanding the federal statute relating to bankruptcy
(subd. £. U. S. Comp. St. 1901 p. 3450) that “all levies, judg-
ments, attachments or other liens obtained through legal pro-
ceedings” against any insolvent “at any time within four months
prior to the filing of the petition in bankruptcy against him,
shall be null and void,” the claim of a receiver in supplemen-
tary proceedings to personal property is not affected by bank-
ruptey proceedings against the judgment debtor, where the re-
ceiver was appointed more than four months before the filing of
the petition in bankruptcy.

Pickert v. Eaton, 81 App. Div. 423, 81 Supp. 50.

The provisions of Sec. 1268 of the Code (now See. 150
Debtor & Creditor Law), providing that at any time after two
years (now one year) have elapsed since a bankrupt was dis-
charged from his debts in bankruptey, he may apply for an
order cancelling a judgment of record, was not intended to
affect the right or lien of a receiver in supplementary proceed-
ings appointed more than four months before the filing of the
petition in bankruptcy, and the order cancelling the judgment
should provide that such cancellation shall not impair any right
or liens of the receiver.

Pickert v. Eaton, 81 App. Div. 423, 81 Supp. 50.

Where supplementary proceedings have been instituted by
several judgment creditors and a receiver appointed at the in-
stance of one of them, and such receivership later extended to
the other judgment creditors, property reached by the receiver
must be applied to the payment of such judgments in the order
328 SUPPLEMENTARY PROCEEDINGS

of the dates of the institution of their supplementary proceed-
ings.
Ward v. Baker, 186 App. Div. 652, 175 Supp. 66.

(4) Realty and Interests Therein

Notwithstanding that the provisions of Sec. 2468, subd. 2
of the Code, according to ordinary construction, would indicate
that a receiver in supplementary proceedings, upon compliance
with the terms thereof, acquires title to the judgent debtor’s
real estate with the usual powers accruing from ownership, the
decisions of this state hold that the receiver does not in fact take
the absolute legal title to the judgment debtor’s realty and he
cannot sell and convey the sale.

Steenberge v. Low, 46 Misc. 285, 92 Supp. 518; Damer v.
Sternberger, 52 Misc. 532, 102 Supp. 740, 38 Civ. Pro. Rep.
362; Maples v. O’Brien, 116 Supp. 175; Chadeayne v. Gwyer,
83 App. Div. 403, 82 Supp. 198; Faneuil Hall Nat. Bank v.
Bussing, 147 N. Y. 665, 71 St. Rep. 269; Bartkowatk v. Samp-
son, 73 Mise. 446, 182 Supp. 401.

Discussing this question, the court said in Faneuil Hall Nat.
Bank v. Bussing, 147 N. Y. at p. 670, “It is true the Code of
Civil Procedure (§ 2468) provides that on filing the order
appointing the receiver or a certified copy, in the county where
the property is situated, the real property is vested in the re-
ceiver. This section, however, is to be read and construed in
connection with the other provisions of the statute and cannot
be taken literally.

It must be constantly kept in mind that the receiver is ap-
pointed in proceedings supplementary to the execution and
takes no such absolute title to real estate as would enable him
to sell it when it is subject to the lien of judgments and can be
sold under executions issued thereon in the manner pointed out
by statute and subject to all rights of redemption. The re-
ceiver’s title to the real estate is a qualified one in the nature
RECEIVER 329

of a security for the plaintiff in the judgment; it does not divest
the debtor of the legal title, but the latter’s conveyance of the
premises would be subject to the claim of the receiver.”

In discussing this question the court, in Chadeayne v. Gwyer,
38 App. Div. 403, 82 Supp. 198, says: “The receiver is the
receiver of the property of the judgment debtor, and the real
property of the judgment debtor vests in him upon the order
appointing him being filed in the office of the clerk of the
county in which such real estate is situated. The order appoint-
ing the receiver, however, is an order of a judge, not of the
court, although the court of which he is judge has no jurisdic-
tion to determine questions relating to real property, or to
make any judgment affecting its title. It could hardly be sup-
posed that the legislature, by its general provisions, could have
intended, if it had the power, to transfer the title to‘real prop-
erty from a judgment debtor to a receiver. Courts of equity
having general jurisdiction in actions relating to real prop-
erty have power to appoint officers to convey the title of the
property which is the subject of the action, and there are ex-
press provisions of law by which a conveyance made by a referee
thus authorized is sufficient to transfer the title of the parties
to the action; and provision is made for the sale by a sheriff un-
der an execution against the real property of the judgment
debtor, and for the application of such real property to the pay-
ment of the judgment. The provisions for the sale of real prop-
erty under an execution are found in Sections 1430 to 1478 of
the Code, inclusive; but by a sale under these sections the
judgment debtor is not divested of the title to the property
until the expiration of the period within which it can be re-
deemed, and the subsequent execution of the sheriff’s deed, and
during that period the owner of the property is, by Section
1441 of the Code, entitled to the possession of the property.
These provisions for enforcing the application of real property
to the payment of a judgment would be quite unnecessary if
the real property of the judgment debtor vested in a receiver
330 SUPPLEMENTARY PROCEEDINGS

appointed in supplementary proceedings, which he could sell,
and of which he could convey a good title. These various pro-
visions are entirely consistent, if the effect of the appointment
of the reeciver were to vest in him the right of possession that
the owner had, subject to its being divested by a sale under an
execution.”

As a matter of fact, the receiver takes only the right of pos-
session to such realty for the purpose of securing satisfaction
of the judgment out of the rents and profits.

Afaples v. O’Brien, 150 St. Rep. 175, 116 Supp. 175; Hall
v. Senior, 54 Mise. 463, 106 Supp. 29; Moore v. Duffy, 74
Hun, 78, 57 St. Rep. 746, 26 Supp. 340; Bartkowatk v. Samp-
son, 73 Mise. 446, 183 Supp. 401.

Such right of the receiver may be terminated by the sale of
the property under execution in another action, or upon the
expiration of the ten years in which the judgment was a
lien on the property.

Hall v. Senior, 54 Mise. 463, 106 Supp. 29.

Following the rule that title to the real estate of a judgment
debtor does not actually pass to the receiver appointed in sup-
plementary proceedings, it has been held that the debtor’s land
held by him as tenant by the entirety, being subject to execu-
tion so as to entitle the judgment debtor to redeem and enjoy
the exemption of one year’s occupation does not vest in the
receiver in supplementary proceedings, and he cannot maintain
an action of partition.

Steenberge v. Low, 46 Misc. 285, 92 Supp. 518.

Notwithstanding the general rule that a receiver in supple-
mentary proceedings, upon compliance with the Code provi-
sions, does not acquire the absolute title to the judgment debtor’s
real estate but only holds the same as security for the judg-
ment represented by him, this is not the case where the jude-
ment debtor executes a conveyance thereof to the receiver pur-
suant to order of the court, as in that case he becomes invested
with the absolute title.
RECEIVER 831

Graham v. Lawyer's Title Insurance Co., 20 App. Div. 440,
46 Supp. 1055.

The fact that a receiver in supplementary proceedings is ap-
pointed after the sale of real estate of the judgment debtor up-
on execution on another judgment does not preclude the grantee
from the purchaser on such execution sale, who has received a
deed from the judgment debtor after the appointment of the
receiver, from redeeming from such execution sale, as the re-
ceiver’s title to real estate is qualified and not absolute.

Moore v. Duffy, 74 Hun, 78, 57 St. Rep. 746, 26 Supp. 340.

A receiver in supplementary proceedings does not acquire,
by reason of his appointment, title to real estate where the same
had been previously fraudulently transferred by the judgment
debtor to his wife, as such conveyance was good except as to
creditors and the title was not in the judgment debtor at the
time of such appointment.

Whyte v. Denike, 53 App. Div. 425, 65 Supp. 1081.

And title to both realty and personalty vests in the receiver
upon compliance with the terms mentioned in such section, and
no conveyance of the realty is necessary.

‘Therefore, a judgment debtor cannot be compelled to execute
a conveyance of his realty to the receiver.

Manning v. Evans, 19 Hun, 500; First National Bank of
Canandaigua v. Martin, 49 Hun, 571, 18 St. Rep. 414, 15 Civ.
Pro. Rep. 324, 2 Supp. 315; Aumball v. Burrell, 14 St. Rep.
536,

.And there is no power in the court to make an order directing
a judgment debtor to convey real property situated without the
state to a receiver in supplementary proceedings. This is on
the ground that supplementary proceedings are creations of
statute and only those steps can be taken therein which are ex-
pressly authorized by the statute.

Heyl v. Taylor, 64 Mise. 31, 117 Supp. 916.

Where a receivership in supplementary procecdings is ex-
tended to other judgments, title to the judgment debtor’s realty
382 SUPPLEMENTARY PROCEEDINGS

under Sec. 2468 of the Code, vests in the receiver as of the day
of his filing for record in the county clerk’s office the order ex-
tending the receivership, and this although the order of ap-
pointment was not so filed.

Webb v. Osborne, 15 Daly, 406, 27 St. Rep. 792, 7 Supp.
762.

A receiver in supplementary proceedings is entitled to an
award, made for the taking of real property of the judgment
debtor in condemnation proceedings, since such award takes
the place of the land and remains subject to judgment liens
against the land.

Van Loan vy. New York, City of, 105 App. Div. 572, 94
Supp. 221.

A husband’s estate as tenant by the curtesy may be reached
in supplementary proceedings and passes to a receiver therein.
In such case the receiver may recover the rent due the debtor
at the time of his appointment, as well as that accruing after-
wards.

Beamish v. Hoyt, 25 Super. Ct. Rep. (2 Robt.) 307.

(D) Powers and Duties of Receiver

(1) Statutory Provisions

It is provided in Sec. 2471 of the Code that a receiver in
supplementary proceedings is subject to the direction and con-
trol of the court out of which the execution was issued, except
where a receiver is appointed in the City Court of New York
City, or by a County Court, or a justice of said courts, he is sub-
ject to the direction and control of the said court or justice.
Where there has been an extension of a receivership to a sub-
sequent supplementary proceeding, the control over and diree-
tion of, the receiver with respect to that judgment remains in
that court or justice to whose control and direction he was orig-
inally subject.

Section 2471 of the Code provides that a receiver shall keep
RECEIVER 333

accounts of his receivership and vouchers for all moneys paid
out. An interested party may appear by serving upon the re-
ceiver and filing in the court a written notice. Provision is also
made in such section for the filing by a receiver of his account
und permitting him to move either for the intermediate or final
judicial settlement thereof. In the event that the receiver fails
to file an account and apply for settlement thereof within a rea-
sonable time, an interested party may compel such accounting.
This section also specifies that such account must be verified by
the receiver in a form therein prescribed. All vouchers must
be numbered and classified and a summary of the totals, to-
gether with the total payment made or due to each person, shall
accompany the account. The court may direct the receiver
to attend and be examined concerning the account, the dis-
charge of his duties, ete. He may be allowed without a voucher,
any proper item for postage, affidavit or acknowledgements, or
other item, not exceeding $5.00; but the total of such items
shall not exceed $100.00. Interested parties may contest the
account after appearing by filing a written objection thereto,
and serving a copy thereof upon the receiver or his attorney.
The court is empowered to limit the time within which the ac-
count may be contested. It is provided that the contest shall
be confined to those matters or items objected to. The account
may be settled subject to such objections. The court is given
power to allow or reject any item of the account and decree
either an intermediate or final settlement, which shall be con-
clusive upon all parties appearing therein, or who have been
served with notice of the filing of such account.

See also Rule 77, General Rules of Practice as to powers and
duties of receivers generally.

(2) Receiver—Whom Represents

A receiver in supplementary proceedings represents only the
judgment debtor and the creditor at whose instance he was ap-
384 SUPPLEMENTARY PROCEEDINGS

pointed, or the receivership extended. He does not represent
other creditors.

Berliner v. Kutiner, 85 Mise. 461, 147 Supp. 308; Steinert
v. Van Aken, 165 App. Div. 206, 150 Supp. 525; Mandeville
v. Avery, 124 N. Y. 376, 36 St. Rep. 338.

Representing such creditors, he may assert the right of the
latter by prosecuting actions, to set aside fraudulent transfers
by the judgment debtor.

Mandeville v. Avery, 124 N. Y. 376, 36 St. Rep. 338; Port-
er v. Williams, 9 N. Y. 142, 12 How. Pr. 107.

(8) Taking Possession of Property

A receiver in supplementary proceedings, seeking to take pos-
session of property of the judgment debtor, should not resort to
force or any measures tending to produce violence.

Dickerson v. Van Tine, 3 Super. Ct. Rep. (1 Sandf.) 724;
Dewey v. Finn, 18 Week. Dig. 558.

And he is not justified in taking forcible possession of prop-
erty in the hands of a third person who claims to own it.

Dewey v. Finn, 18 Week. Dig. 558.

While a receiver in supplementary proceedings takes title to
all the property of a judgment debtor he is not obliged to take
possession of any greater amount thereof then necessary to
satisfy the claims of the creditors he represents and costs, and
the court has power to stay him from taking possession of more
than sufficient property for that purpose.

Steinert v. Van Aken, 165 App. Div. 206, 150 Supp. 525.

A receiver in supplementary proceedings should not be or-
dered, at the instance of one of the lessees under a lease of prem-
ises held by the judgment debtor, to collect rent due from a
subtenant, where it appears that the rights of the judgment debt-
or’s estate may suffer by reason of the acceptance of such rent.

Witte, Maller of, 45 Mise. 336, 90 Supp. 444.
RECEIVER 335

(4) Sale of Property

A receiver in supplementary proceedings, under Rule 77,
General Rules of Practice, can undoubtedly sell at private sale
the personal property of the judgment debtor without special
order of the court, unless otherwise restricted in the order of
his appointment. Provision is made in such rule for the sale,
by leave of the court, of desperate debts and all other doubtful
claims to personal property at public auction, giving at least
ten days public notice of the time and place of such sale.

The order directing a receiver to sell property of a judgment
debtor should direct the sale of the judgment debtor’s right,
title, and interest therein.

Hawes v. Hawes, 154 App. Div. 922, 189 Supp. 639.

A receiver in supplementary proceedings should not sell an
unliquidated claim for damages in favor of the judgment debtor,
and upon which a suit brought by the latter is pending, but such
receiver should prosecute the action to judgment.

Bryant v. Grant, 87 Hun, 68, 67 St. Rep. 639, 33 Supp. 957.

A receiver in supplementary proceedings cannot be author-
ized to sell a vested interest in real estate, as the same must be
sold under execution, the judgment creditor being obliged to
exhaust his remedy at law before resorting to supplementary
proceedings.

Monolithic Drain & Conduit Co. v. Dewsnap, 25 Civ. Pro.
Rep. 380, 41 Supp. 224; Damers, falter of v. Sternberger, 52
Mise. 532, 102 Supp. 740; Bartkowaik v. Sampson, 73 Mise.
446, 133 Supp. 401.

But, although the rule exists that a judgment creditor should
sell the land of a judgment debtor on execution rather than to
resort to supplementary proceedings for the purpose of saving
the judgment debtor’s right of redemption, yet he cannot coni-
plain, where he consented to such receivership, and an order
thereafter made directing tenants of the judgment debtor’s real
336 SUPPLEMENTARY PROCEEDINGS

estate to attorn and pay rent to the receiver, cannot be vacated
at the instance of the judgment debtor.

Tinkey v. Langdon, 60 How. Pr. 180.

It is improper for a receiver in supplementary proceedings to
sell the property of the judgment debtor alleged to be worth
$60,000.00, where the judgments upon which the supplemen-
tary proceedings are based, amount in the aggregate, to only
about $1000.00, and such an attempted sale will be restrained
by the court.

Wardell v. Leavenworth, 3 Edw. Ch. 244.

A sale by a receiver of a quantity of grapes raised upon real
estate of which the judgment debtor had a life estate, which
were made for a sum less than half the value thereof, under a
misapprehension of the receiver as to the value thereof, will not
be confirmed.

Hall v. Knott, 69 Mise. 407, 125 Supp. 299.

The sale of an interest in a contingent remainder, by a re-
cciver will be set aside, where notice of the sale was not pub-
lished for ten days as required by Rule 77, General Rules of
Practice, and such notice did not state what was to be sold,
or the extent of the interest, and the price received was grossly
inadequate.

Rawolle, Matter of v. Kalbfleisch, 47 Misc. 364, 94 Supp.
16.

It is improper to grant an order giving leave to a receiver in
supplementary proceedings to sell at auction a claim of the
judgment debtor in suit, where the recovery is doubtful, and
other creditors would have liens on the judgment, if recovered,
and they opposed the granting of the order.

Patterson, Matter of, 12 App. Div. 128, 42 Supp. 495.

If a receiver has instituted action to set aside a fraudulent
conveyance of the judgment debtor, and procured the desired
relief, he may sell the property involved, under the direction of
RECEIVER 337

the court, and apply the proceeds in satisfaction of the debts of
the judgment debtor.

Porter v. Williams, 9 N. Y. 142, 12 How. Pr. 107.

Upon showing that personal property of the judgment debtor
coming into the hands of a receiver may be sold more advan-
tageously at private sale than by auction, the court may allow
the receiver to sell by private sale.

Monolithic Drain & Conduit Co. v. Dewsnap, 25 Civ. Pro.
Rep. 380, 41 Supp. 224.

(5) Disposition of Funds

Although a receiver in supplementary proceedings takes title
to all the property of a judgment debtor, he is not a general
receiver for the benefit of all creditors, and he holds any surplus
not required to satisfy the judgment of the creditor, at whose
instance he was appointed, and any other judgments to which
the receivership has been extended, as trustee for the benefit of
the judgment debtor, and he must account to the latter therefor.

Steinert v. Van Aken, 165 App. Div. 206, 150 Supp. 525.

There is no authority for the making of an order without per-
sonal notice to the judgment debtor, directing a receiver in sup-
plementary proceedings to apply a portion of the funds coming
into his hands in payment of judgments other than that under
which he was appointed or those to which his receivership was
extended.

Goddard v. Stiles, 90 N. Y. 199.

A receiver in supplementary proceedings, who was substi-
tuted as plaintiff in place of the judgment debtor in actions
brought by the latter, upon condition that the judgment debtor’s
attorney in those actions should be paid a certain agreed sum in
satisfaction of his lien for fccs and charges in the actions, can-
not justify a payment made in accordance with such arrange-
ment, where the judgment debtor was not made a party to the
arrangement and had no notice thereof.

Goddard v. Stiles, 90 N. Y. 199.

Garnishee—22.
338 SUPPLEMENTARY PROCEEDINGS
(6) Actions by Recetver

(a) In General

It is not irregular or improper for a receiver in supplemen-
tary proceedings to employ the attorney for the judgment credi-
tor to institute an action by the receiver, since such receiver
represents not only the judgment debtor but also the judgment
creditor.

Baker v. VanE pps, 22 Hun, 460, 60 How. Pr. 79.

This case overrules Branch v. Harrington, 49 How. Pr. 196,
and also Cumming v. Egerton, 22 Super. Ct. Rep. (9 Bosw.)
684.

(b) Leave to Sue

Provision for application by a receiver for leave to bring an
action appears in Rule 78 of the General Rules of Practice,
in which it is provided that such leave may be granted, under
certain conditions and restrictions respecting consent of the
judgment creditor, or the giving of security in certain cases
therein specified.

No power lies in the court, upon granting leave to a receiver
to bring an action to set aside a transfer of property by the
judgment debtor, to authorize the receiver to employ any par-
ticular attorney.

First Nat. Bank of Rondout v. Navarro, 43 St. Rep. 813, 17
Supp. 900.

(c) Security for Costs

Rule 78, General Rules of Practice, requires a receiver seek-
ing permission to bring an action to present and file with his
application the written request of the judgment creditor in
whose behalf he was appointed, that such action be brought;
or else he shall give a bond with sufficient security, to the per-
RECEIVER ‘339

son against whom the action is to be brought, conditioned for
the payment of any costs which may be recovered against such
receiver. In all other cases where application by a receiver is
made for leave to sue, he must show that he has sufficient prop-
erty in his actual possession to secure the person against whom
the action is to be brought for any costs which may be recovered
against such receiver; otherwise the court may require the re-
ceiver to give a bond for costs.

It is proper to require a receiver, bringing an action to reach
assets of the judgment debtor, to give security for costs, where
the defendants have recovered judgments against the judgment
debtor, and their executions issued thereon remain unsatisfied.

Smith v. Clarke, 1 Law Bull. 88.

(d) Parties

(1) Parties Defendant

A judgment debtor is not a necessary party in an action
brought by the receiver appointed in supplementary proceed-
ings to recover an award made by the City of New York for the
taking of property of the judgment debtor for public use.

Fawcett v. New York, City of, 112 App. Div. 155, 98 Supp.
286.

In an action brought by a receiver in supplementary proceed-
ings to set aside a fraudulent transfer of personal property, a
judgment creditor who has instituted and has pending a similar
action previously brought by him, is not a necessary party.

Metcalf v. Del Valle, 64 Hun, 245, 46 St. Rep. 105, 19
Supp. 16.

A receiver in supplementary proceedings, suing to set aside
an alleged fraudulent conveyance by the judgment debtor, need
not make other judgment creditors parties defendant in the
action.

Stiefel v. Berlin, 28 App. Div. 103, 51 Supp. 147, 27 Civ.
Pro. Rep. 216.
340 SUPPLEMENTARY PROCEEDINGS

In an action by a receiver of a judgment debtor corporation
to reach money deposited in the defendant bank to the corpora-
tion’s credit, it is not necessary to make the corporation a party
defendant, as the title to its property was vested in the receiver.

Rabbe v. Astor Trust Co., 61 Misc. 650, 114 Supp. 131, 1
Civ, Pro. Rep. N. 8. 122.

A receiver in supplementary proceedings may sue to set
aside an illegal transfer by a limited partnership in violation of
1 Rev. St. p. 766, Sec. 20 (now Sec. 40, Partnership Law), and
he may join as defendants all the creditors of such partnership.

Stiefel v. Berlin, 20 Misc. 194, 45 Supp. 746.

(2) Substitution of Parties

A receiver in supplementary proceedings may prosecute an
action pending by the judgment debtor to recover damages on
an unliquidated claim, as such claim passed to the receiver up-
on his appointment, and he may be substituted as party plain-
tiff therein.

Bryant v. Grant, 87 Hun, 68, 67 St. Rep. 639, 33 Supp.
957; Wilds, Matter of, 6 Abb. N. C. 807; FitzPatrick v.
Moses, 34 App. Div. 242, 54 Supp. 426.

While it is proper, as a general rule, to substitute a receiver
in place of the judgment debtor, where the latter has instituted
and has pending an action brought by him, yet if the receiver’s
security is not sufficient, the court may direct the increase there-
of before entry of the order of substitution; the court may like-
wise in its discretion, direct that the substitution take place
without change of the attorney of record for the plaintiff, unless
a satisfactory cause therefor is later shown.

Wilds, Matter of, 6 Abb. N. C. 307.

Although under Sec. 756 of the Code the substitution of a
receiver in supplementary proceedings in place of the judgment
debtor in an action pending in the latter’s name, is made dis-
cretionary, yet where the substitution was denied, on the ground
RECEIVER 341

that the receiver had no claim to the property in suit, the order
may be reviewed on appeal.

FitzPatrick v. Moses, 34 App. Div. 242, 54 Supp. 426.

A receiver in supplementary proceedings seeking substitu-
tion as plaintiff in place of the judgment debtor, need not give
notice of his application therefor to the judgment debtor’s as-
signee of the claim in suit, as the receiver merely stands in the
judgment debtor’s place.

FitzPatrick v. Moses, 34 App. Div. 242, 54 Supp. 426.

There is no authority for the substitution of a receiver in
supplementary proceedings in place of the judgment debtor
suing to enforce a claim which the latter had assigned to a third
person before the institution of the supplementary proceedings
in which the receiver was appointed, since such claim would
not constitute an asset of the receivership.

Charlier v. Saginaw Steel Steamship Co., 7 App. Div. 609,
40 Supp. 278.

A receiver in supplementary proceedings upon a judgment
against one of the members of a partnership should not be sub-
stituted in place of a previously appointed receiver in an action
brought by one of such partners against the other for dissolution
of the partnership, where there is nothing to show that the first
receivership has been, or will be used, to delay or defraud the
firm’s creditors, but it is proper upon denial of such motion to
provide that the action for dissolution shall not be discontinued,
cr the receiver therein discharged, except upon notice to the
receiver in supplementary proceedings.

Price v. Price, 21 App. Div. 597, 47 Supp. 772.

A receiver in supplementary proceedings cannot, as a matter
of right, be substituted for his judgment debtor in an action
which the latter had commenced before the institution of the
supplementary proceedings to recover certain dower rights in
lands. The matter of substitution is one of sound discretion of
the court. ,

Lansing, Matter of, 17 Week. Dig. 288.
b4u SUPPLEMENTARY PROCEEDINGS

(e) Complaint—Snufficiency

The complaint in an action by a receiver in supplementary
proceedings based on a judgment recovered in an inferior court
must set forth all the facts necessary to give such court juris-
diction to render the judgment, and a complaint not containing
such allegations is fatally defective.

Pendleton v. Friedman, 135 App. Div. 420, 119 Supp. 994.

This rule, however, in view of the decisions in this state,
must be regarded as only applicable as to the judgment debtor.
It being the generally recognized rule that third parties cannot
attack the judgment upon which the receiver was appointed.
Thus, it has been held that, in an action by a receiver to reach
moneys deposited to the credit of the judgment debtor corpora-
tion, the defendant bank cannot attack the complaint for fail-
ure to allege that the judgment upon which supplementary pro-
ceedings were based was duly recovered, since a third party
cannot, in a collateral proceeding, raise an issue as tc the regu-
larity of the proceedings previously taken by the creditor
against the debtor.

Rabbe v. Astor Trust Co., 61 Misc. 650, 114 Supp. 131, 1
Civ. Pro. Rep. N. S. 122.

A complaint, in an action by a receiver to recover a debt al-
leged to be due to the judgment debtor, is not. demurrable on
the ground that it fails to state that the order appointing the
receiver was filed as prescribed by the statute, where there
are allegations in detail, showing jurisdiction in the judge to
make the order of appointment and it is stated therein that the
receiver’s bond was approved and filed, since full compliance
with the statute in reference to such filing will be inferred from
the latter allegation.

Scroggs v. Palmer, 66 Barb. 505.

And a complaint, in an action brought by a receiver in sup-
plementary proceedings, to recover for service rendered by the
judgment debtor, which alleges that the plaintiff was duly ap-
RECEIVER 343

pointed upon the application of the judgment creditor, is suffi-
cient to authorize the admission of evidence of the jurisdiction-
al facts leading up to the appointment of the receiver.

Rockwell v. Merwin, 45 N. Y. 166.

A complaint in an action by a receiver to reach real estate of
the judgment debtor must set forth all the necessary facts re-
quired to vest title to real estate in him.

DuBois v. Cassidy, 75 N. Y. 298.

And the complaint, in an action by a receiver in supplemen-
tary proceedings, to restrain the judgment debtor from dispos-
ing of a fund held by him in trust until his interest in it could
be ascertained and subjected to the judgment, is insufficient if
it fail to set forth the amount of the judgment upon which the
receivership is based.

Hughes v. McKenzie, 39 St. Rep. 31, 14 Supp. 352.

In view of Sec. 1872 of the Code, providing that to entitle
a Judgment creditor to maintain an action to discover property
held in trust for the judgment debtor, the execution must have
been issued to the sheriff of the county where the judgment
debtor resides, if a resident of the state, and, if not, to the
sheriff of the county in which he has an office for the transaction
of business, a complaint, in an action to set aside a fraudulent
conveyance by the judgment debtor, alleging that execution was
issued to the sheriff of the county where the judgment debtor
had a place of business, but containing no allegation that he
resided without the state, is fatally defective, where the debtor
lid not reside in the last mentioned county.

Pendleton v. Friedman, 185 App. Div. 420, 119 Supp. 994.

The fact that the receivership of a receiver in supplementary
proceedings was extended to other judgments by another court,
does not make the complaint, in an action brought by him to
determine the priorities of conflicting claims to property of the
judgment debtor, demurrable on the ground of misjoinder of
parties plaintiff.

Bamberger v. Fulebrown, 12 Mise. 328, 33 Supp. 614.
344 SUPPLEMENTARY PROCEEDINGS

(f) Defenses Available

Tt may be stated as a general rule that the production and
proof of an order made in supplementary proceedings reciting
the facts necessary to give jurisdiction to the judge making it,
furnishes conclusive proof of its regularity when questioned
collaterally.

Palmer v. Colville, 68 Hun, 5386, 45 St. Rep. 706, 18 Supp.
509.

The regularity of the proceedings resulting in the appoint-
ment of the receiver is presumed, and cannot be collaterally at-
tacked by the defendants. If there are jurisdictional defects
in such proceedings, direct proceedings to review or vacate the
same must be taken.

Wright v. Nostrand, 94 N. Y. 31.

Only the judgment debtor may attack the regularity of the
proceedings leading up to the appointment of a receiver, and
a defendant who is sued by a receiver to set aside a fraudulent
conveyance by the judgment debtor to him cannot raise such
an issue.

Underwood v. Sutcliffe, 10 Hun, 453.

So, the defendants in an action by a receiver in supplemen-
tary proceedings to set aside alleged fraudulent conveyances can-
not attack the execution issued upon the judgment upon which
the supplementary proceedings were based, although the latter
be defective, and subject to vacation on motion, especially where
the defects are amendable, or where all the essential facts neces-
sary for the direction and protection of the sheriff are either
stated in the execution, or plainly inferable therefrom.

Wright v. Nostrand, 94 N. Y. 31.

Likewise, a person holding a certificate for a seat in the New
York Cotton Exchange as collateral security for a loan, being
sued by a receiver in supplementary proceedings to recover such
certificate upon payment of the amount of the loan, cannot at-
tack the proceedings leading up to the appointment of the
RECEIVER 345

receiver, especially where it appears that all irregularities were
waived by consent of the debtor to such appointment.

Powell v. Waldron, 89 N. Y. 328;, Ritterband v. Baggett, 4
Abb. N. C. 67, 42 Super. Ct. Rep. (10 J. & S.) 556.

In Renaud v. O’Brien, 35 N. Y. 99, it is said in the course
of the opinion, at page 102: “The return of the execution is
also a proceeding in the original action, and upon its return it
becomes, like the judgment-roll, a part of the record proceed-
ings in the case which cannot be attacked collaterally in another
suit, but must be the subject of an original motion.”

The validity of the appointment of a receiver in supplemen-
tary proceedings cannot be raised by the defendant in an action
by such receiver to procure satisfaction of an alleged equitable
lien impressed upon a lease of property, on the ground that the
execution issued upon the judgment was countermanded after
such appointment, and this although the receivership was ex-
tended to the judgment thus sought to be satisfied.

Palmer v. Colville, 63 Hun, 536, 45 St. Rep. 706, 18 Supp.
509.

The fact that there were irregularities in the proceedings
leading up to the appointment of a receiver is not available as
a defense to an action brought by the receiver, where the judg-
ment debtor appeared and submitted to an examination with-
out objection.

Bingham v. Disbrow, 14 Abb. Pr. 251, 37 Barb. 24.

And persons sued by a receiver to set aside transfers to them
by the judgment debtor cannot interpose the defense that the
judgment creditor’s remedy at law had not been exhausted be-
cause a proper execution had not been issued upon his judgment.

Stiefel v. Berlin, 28 App. Div. 103, 51 Supp. 147, 27 Civ.
Pro. Rep. 216.

And it has been held that defendants in a foreclosure suit
brought by a receiver in supplementary proceedings cannot in-
terpose the defense of the absence of a certificate showing that
346 SUPPLEMENTARY PROCEEDINGS

the notary who took the acknowledgment of the execution of the
receiver’s bond was in fact such.

Lnvingston v. Haton, 90 App. Div. 256, 85 Supp. 500.

But in another case, it was held that an action brought by a
receiver to set aside a transfer of property by the judgment
debtor could be defeated by the defendants showing the failure
of the receiver to comply with the terms of the order appointing
him requiring the execution of a bond with sureties, in that he
only filed an instrument in the form of a bond, not sealed, and
signed by only one surety, since he was not authorized to act.

Johnson v. Martin, 1 T. & C. 504.

Section 488 of the Code of Civil Procedure, providing that
a demurrer may be interposed on the ground that the plaintiff
has not legal capacity to sue, is not applicable to a receiver duly
appointed in supplementary proceedings, and the fact that a
demurrer is not taken upon that ground, does not preclude the
raising by the defendant of the question that the receiver can-
not maintain the action by reason of the nature of the relief
sought.

Ward v. Petrie, 157 N. Y. 301.

In an action by a receiver to set aside a certain assignment of
property from the judgment debtor for fraud, the judgment
«lebtor cannot raise the objection that the judge appointing the
receiver did not have jurisdiction so to do, by a demurrer on the
ground that the complaint does not state facts sufficient to con-
stitute an action, as such objection can only be raised upon a
«lemurrer, specifying as its ground, that the plaintiff was not
legally competent to sue.

Viburt v. Frost, 3 Abb. Pr. 119, 12 Super. Ct. Rep. (5 Duer)
672,

In the case last cited, the objection was that the order for
the examination of the judge debtor was made returnable before
‘one of the justices of the court,” and not before the judge mak-
ing the appointment, which fact it was claimed rendered the
judge without jurisdiction to appoint the receiver. This was
RECEIVER 347

overruled by the court which took the position that it was com-
petent for the judgment debtor to waive the same, and by subh-
mitting to examination and failing to appeal from the order
appointing the receiver he did effectually waive it.

Under Sees. 48& and 498, Code of Civil Procedure, a defect
in a complaint arising from the failure to join a necessary
party, appearing on the face thereof, necessitates the objection
being taken by demurrer or there is a waiver.

Fawcett v. New York, City of, 112 App. Div. 155, 98 Supp.
286.

The defendants, in an action brought by a receiver to enforce
a claim of the judgment debtor, may interpose any defenses to
the claim which they had against the judgment debtor at the
date of the vesting of the receiver’s title to the property of the
judgment debtor.

Steinert v. Van Aken, 165 App. Div. 206, 150 Supp. 525.

A person to whom a judgment creditor conveys real estate,
and which conveyance is attacked in an action by a receiver in
supplementary proceedings, may interpose the defense that the
supplementary proceedings were instituted after the judgment
Jien had expired by limitation, and therefore no jurisdiction was
obtained therein.

Glover v. Gargan, 10 App. Div. 527, 42 Supp. 74.

It is a good defense to an action brought by a receiver in sup-
plementary proceedings to set aside a conveyance made by a
judgment debtor, on the ground of fraud, if it be made to ap-
pear that such judgment debtor against whom an execution had
been returned unsatisfied had ample means to pay the judgment,
or that he was solvent, as the court would, under those circum-
stances, dismiss the receiver’s action and leave the judgment
creditor to his remedy of issuing a new execution. Such de-
fense, however, must be pleaded by the judgment debtor,
and the receiver is not bound to prove the insolvency of the
judgment debtor in any way.

Hyatt v. Dusenbury, 5 St. Rep. 846, 12 Civ. Pro. Rep. 152.
348 . SUPPLEMENTARY PROCEEDINGS
(g) Particular Actions

(1) Attack of Fraudulent Conveyances.

A receiver in supplementary proceedings is an officer of the
court and must take proceedings to carry out his trust. He may
bring an action to avoid a fraudulent conveyance by his judg-
ment debtor, but he has no power to issue an execution against
the other defendants in the judgment.

Hyati v. Dusenbury, 5 St. Rep. 846, 12 Civ. Pro. Rep. 152.

A receiver in supplementary proceedings may maintain an
action to set aside a fraudulent transfer made by the judgment
debtor in fraud of creditors.

Seymour v. Wilson, 14 N. Y. 567, 15 How. Pr. 355; Bost-
wick vy. Menck, 40 N. Y. 883; Porter v. Williams, 9 N. Y. 142,
12 How. Pr. 107; Whyte v. Dentke, 53 App. Div. 425, 65
Supp. 1081; Underwood v. Sutcliffe, 10 Hun, 453.

And in order to institute such suit no assignment of such
property by the judgment debtor is necessary.

Porter v. Williams, 9 N. Y. 142, 12 How. Pr. 107.

This right also extends to an action to set aside a fraudulent
transfer of real estate made by the judgment debtor previous to
the receiver’s appointment.

Whyte v. Denike, 58 App. Div. 425, 65 Supp. 1081; Under-
wood v. Sutcliffe, 10 Hun, 453.

A receiver in supplementary proceedings may bring an action
to set aside fraudulent chattel mortgages executed by the judg-
ment debtor, and follow the proceeds of the sale thereof by the
mortgagee in the possession of any person not a bona fide owner
or holder.

Mandeville v. Avery, 124 N. Y. 376, 36 St. Rep. 338.

So, in such an action, he may compel the mortgagee to ac-
count for the proceeds arising upon the sale by him of the mort-
gaged property.

Merry v. Wilcox, 92 Hun, 210, 72 St. Rep. 273, 36 Supp.
1050,
RECEIVER 349

Such an action lies to attack a chattel mortgage executed by
the judgment debtor, where such mortgage was not filed as pro-
vided by statute, and such receiver may maintain an action
against the mortgagee, who has taken possession of and sold the
mortgaged property to recover the same or the value thereof.

Stephens v. Perrine, 143 N. Y. 476.

Likewise, a receiver may institute an action to set aside a
chattel mortgage given by the judgment debtor but not filed un-
til after the institution of such proceedings, although before the
appointment of the receiver, as the title to the latter relates back
to the time of the service of the order.

Clark v. Gilbert, 10 Daly, 316, 14 Week. Dig. 241.

And a receiver in supplementary proceedings may bring an
action to set aside a chattel mortgage made by the judgment
debtor on the ground that it was not filed in the proper county,
as such an action must be regarded as one in equity over which
the court has jurisdiction.

Brunnemer v. Cook & Bernheimer Co., 89 App. Div. 406, 85
Supp. 954.

So, a receiver in supplementary proceedings may maintain
an action to avoid a chattel mortgage, under which there was a
reservation in the mortgagor to use some of the chattels mort-
gaged, which use involved the consumption of the things, as the
latter was void as against creditors, and this, alshough, in the
meantime, the mortgagee took possession of the chattels under
the mortgage, and sold them in satisfaction of the debt.

Hedges v. Polhemus, 9 Misc. 680, 30 Supp. 556.

But a receiver in supplementary proceedings cannot attack
an unfiled chattel mortgage, where the same was given before
the recovery of judgment and institution of the supplementary
proceedings, as such mortgage was good between the parties
thereto, and as against creditors at large.

Stephens v. Meriden Britannia Co., 160 N.Y. 178, 30 Civ:
Pro. Rep. 192.

In an action by a receiver to set aside transfers by a judgment
350 SUPPLEMENTARY PROCEEDINGS

debtor to the defendants on the ground that they constituted an
illegal preference, it is sufficient to establish an intent to give a
preference on the part of the judgment debtor, and such intent
on the part of the defendants receiving it need not be shown.

Strefel v. Berlin, 28 App. Div. 103, 51 Supp. 147, 27 Civ.
Pro. Rep. 216.

A receiver, suing to set aside fraudulent transfers and re-
covering judgment, is entitled to no more of the proceeds of the
fraudulent transfer than equals the judgment upon which he
was appointed receiver, together with the expense of the refer-
ence.

Strefel v. Berlin, 28 App. Div. 103, 51 Supp. 147, 27 Civ.
Pro. Rep. 216.

So it is held, that while a receiver in supplementary proceed-
ings may maintain an action to set aside a fraudulent transfer
of the judgment debtor, he can avoid and set aside the same
only so far as is necessary to satisfy his debt and costs. If he
is appointed receiver in several proceedings for various judg-
ment creditors, he may recover only so much of the funds re-
alized in the action sufficient to satisfy the combined claims of
the creditors whom he represents.

Bostwick v. Menck, 40 N. Y. 383.

A receiver in supplementary proceedings having received a
conveyance from the judgment debtor and his wife of an equi-
table interest in certain real property, and having brought an
action against the person having the legal title to such property
for having wrongly conveyed it to an innocent party, cannot
follow the land into the hands of such purchaser, and his ye-
covery is limited to judgment against the defendant grantor
for the difference between the latter’s claims against the judg-
ment debtor with interest, and the proceeds of the sale.

Maples v. O’Brien, 150 St. Rep. 176, 116 Supp. 176.

Tn an action brought by a receiver to recover from au alleged
fraudulent assignee certain judgments which the latter had
recovered on claims assigned to him by a judgment debtor, it
RECEIVER 351

is proper for the court to grant an injunction restraining the
defendant assignee from collecting or issuing execution on such
judgments pending the determination of the validity of such
assignments in the receiver’s action.

Fime v. Robinauer, 49 Mise. 437, 99 Supp. 896.

A receiver in supplementary proceedings, who, after waiting
two years from the date of the commencement of an action by
another judgment creditor, against the common judgment debt-
or to set aside an assignment for fraud is not entitled to an
order restraining the prosecution of such action, since such de-
lay would render such relief improper.

First Nat. Bank of Rondout v. Navarro, 43 St. Rep. 813, 17
Supp. 900.

.\ receiver cannot reach property alleged to have been fraudu-
lently conveyed by the judgment debtor where a lis pendens and
the complaint in an action affecting the title to the property
were filed and the action commenced against the claimant before
the appointment of the receiver, and a judgment was there-
after rendered in which it was decided that such defendant was
the owner of the premises in question, as such judgment is con-
clusive upon the receiver, he being an incumbrancer within
the meaning of the statute relating to lis pendens.

Spencer v. Berdell, 45 Hun, 179.

A conveyance of real estate by a husband to his wife is not
fraudulent as to judgment creditors of the husband so as to
entitle a receiver appointed in supplementary proceedings to
have the same set aside, where it appears that the father of the
wife had agreed to give her the land but at a time when he was
expecting to die, conveyed the same to the husband upon the
payment of $600.00 by him upon his agreeing to convey the
property to the wife as soon as this amount was repaid to hin
by her, but she was not present at the time of the conveyance
and did not know that the deed was taken in the name of her
husband for more than a year thereafter, as such arrangement
imposed upon the husband, if not a legal, at least a moral obliga-
352 SUPPLEMENTARY PROCEEDINGS

tion to convey the property to the wife, and his conveyance
thereof to her could not be attacked by the receiver.

Lowry v. Smith, 9 Hun, 514.

A receiver in supplementary proceedings having brought an
action attacking a transaction between the judgment debtor and
a third party in which only legal relief is sought, and the action
is tried and determined on that theory, cannot thereafter main-
tain any claim that the evidence is sufficient to support an
equitable action, and he cannot so maintain in the Court of Ap-
peals.

Stephens v. Meriden Britannia Co., 160 N. Y. 178, 30 Civ.
Pro. Rep. 192.

In an action by a receiver in supplementary proceedings to
set aside an alleged fraudulent conveyance, the testimony of
the judgment debtor on his examination in such proceedings, is
properly admissible, where the judgment debtor was called as
a witness for the defendants and gave material evidence, since
such evidence is competent as against the judgment debtor as
an admission and also as against all of the defendants for the
purpose of affecting the credibility of the judgment debtor.

Wright v. Nostrand, 94 N. Y. 31.

In an action to set aside a fraudulent transfer made by the
judgment debtor of his property, the judgment debtor being
called by the plaintiff 4s a witness, may be asked on cross-exam-
ination by his counsel whether in making the assignment he
had any intent to defraud his creditors.

Seymour v. Wilson, 14 N. Y. 567, 15 How. Pr. 355.

Although a conveyance by a husband to his wife may be set
aside by a receiver in supplementary proceedings by reason of
fraud, yet the judgment must provide that the land affected be
sold subject to the wife’s inchoate right of dower, and the court
cannot direct payment to the wife of the estimated yalue of her
dower interest therein in lieu thereof.

Lowry v. Smith, 9 Hun, 514.

Where it appears that shortly before making an assignment
RECEIVER 353

for the benefit of creditors the assignor bought goods largely,
representing himself to be solvent, the assignment will be set
aside in a suit brought by a receiver appointed in supplemen-
tary proceedings. Furthermore, the receiver is not estopped
from showing the fraud by treason of the fact that the judgment
creditor, at whose instance he was appointed, waived the fraud
by bringing an action for goods sold.

Kennedy v. Thorp, 3 Abb. N. 8. 181.

A receiver cannot attack an assignment by his judgment
debtor as fraudulent, where he has previously taken a personal
judgment against the assignee, since the latter act constituted
an election of remedies.

Fitts v. Beardsley, 55 Hun, 603, 28 St. Rep. 658, 8 Supp.
567.

A judgment having been obtained by a receiver in supple-
mentary proceedings setting aside a transfer of the judgment
debtor as in fraud of judgment creditors, the judgment may
direct a sale of the property involved and an application of
the proceeds to the satisfaction of the judgment creditor’s judg-
ment.

Porter v. Williams, 9 N. Y. 142, 12 How. Pr. 107.

An action will not lie by a receiver in supplementary pro-
ceedings to recover damages from the judgment debtor and a
third person for a fraudulent conspiracy to prevent the collec-
tion of the debt by the execution of a fraudulent chattel mort-
gage, where such transaction took place before the entry of
judgment and the institution of the proceedings in which the.
appointment of the receiver took place.

Ward v. Petrie, 157 N. Y. 301.

The court took the position, in the case last cited, that the
maintenance of such an action is not within the powers con-
ferred by the Code upon receivers in supplementary proceed-
ings or any other statute, and it was held that such action, if
maintainable at all, must be instituted by the judgment credi-

tor.
Garnishee—25.
354 SUPPLEMENTARY PROCEEDINGS

It would seem that where, after the commencement of an
action by a receiver to set aside a fraudulent transfer by the
judgment debtor, he is appointed receiver upon another judg-
ment, he must bring a new action attacking the conveyance in
question to obtain satisfaction of tle last-mentioned judgment.

Bostwick v. Menck, 40 N. Y. 383.

It is stated in Wegman v. Childs, 44 Barb. 403, that a re-
ceiver in supplementary proceedings suing to set aside a fraud-
ulent conveyance of property by the judgment debtor must show
not only the judgment upon which he was appointed, but also
an execution from a court having the right to issue it, and that
such execution was delivered to the sheriff of the proper county,
and by him returned unsatisfied.

(2) To Reach Funds or Property of Debtor

Surplus moneys arising upon the sale of property under a
chattel mortgage thereon and not paid over to the judgment
debtor may be reached by a receiver appointed in supplemen-
tary proceedings. Likewise, surplus moneys received upon the
sale of property of the judgment debtor on the execution and
not paid over to the sheriff may be recovered by the receiver.

Davenport v. McChesney, 86 N. Y. 242.

An action will not lie by a receiver for the collection of
debts due the judgment debtor where the same have been at-
tached in the action in which the judgment upon which the
receiver was appointed was obtained. Such action lies only
by the sheriff to whom the attachment was issued.

Andrews v. Glenville Woolen Co., 11 Abb. N. S. 78.

A receiver appointed in supplementary proccedings upon a
judgment against persons as executors under the will of a
decedent, cannot bring an action against a bank having on
deposit, money belonging to the estate, as such property would
not vest in the receiver, and cannot be reached in such an
action.

Jones v. Arkenburgh, 112 App. Div. 488, 98 Supp. 532.
RECEIVER 855

But such an action lies to recover from a bank the amount
of a deposit therein belonging to the judgment debtor, and
title to which vested in the receiver upon his appointment,
where the evidence was that the bank paid such deposit to
the debtor’s wife, without any regard to the true ownership
thereof.

O’ Reilly v. Adams, 163 App. Div. 60, 148 Supp. 441.

And the testimony of the wife in supplementary proceedings
instituted against her by another judgment creditor, received
in evidence in such action, is not ground for reversal of a
judgment in the receiver’s favor, where the objection to the
omission thereof was general, in favor of all the defendants,
since such evidence was competent against the administrator
of the deceased wife, who was also a party to the action.

O’Reilly v. Adams, 163 App. Div. 60, 148 Supp. 441.

An action lies against a bank for a judgment debtor’s share
in a fund deposited by an executor to the credit of the estate,
where the receiver sent to the bank a written notice of his
appointment, together with a demand of the judgment debtor’s
share of the deposit, and alleging that the amount was due
the latter and that a check had been drawn therefor by the
executor in his favor and sent to him, which notice the bank
disregarded and paid the check to the judgment debtor.

O’Connor v. Mechanics’ Bank, 54 Hun, 272, 27 St. Rep. 1,
7 Supp. 380.

And a receiver may bring an action to recover a sum of money
deposited in a bank to the credit of the judgment debtor and
which prima facie belonged to him, notwithstanding the fact
that his wife testified that the same belonged to her.

Ormes v. Baker, 17 Week. Dig. 104.

A receiver in supplementary proceedings cannot maintain
an action to recover a certificate of stock deposited with the
trustees of the corporation employing the judgment debtor,
under the condition that the same should belong to him if he
remained in the service of the company until a specitied day,
356 SUPPLEMENTARY PROCEEDINGS

where the receiver’s demand for such stock was made before
the expiration of such period, since, at that time, the judgment
debtor was not entitled to the certificate.

Delehunty v. Hake, 10 App. Div. 230, 41 Supp. 896.

So, a receiver is not entitled to recover the amount of a note
given by a third person to the judgment debtor, where the
evidence shows that the defendant, transferee and holder of
the note, who was a brother of the judgment debtor, took the
same in part payment of a bona fide indebtedness theretofore
existing prior to the recovery of the judgment upon which the
plaintiff was appointed receiver, and evidence that several]
months after the transfer, such brother said that the judgment
debtor owed him nothing, does not affect the case, since the
latter statement, at best, only showed that he had determined
to consider his brother’s debt as paid, or, in other words to
release his brother from paying the balance.

Stimpson v. Foody, 1383 St. Rep. 317, 99 Supp. 317.

An action by a receiver lies for moneys equitably due on a
contract, although the latter has not been fully performed by
the judgment debtor, and the interest of the receiver is not
limited to that of the creditor, but he succeeds to the rights
of the debtor and may recover all that is equitably due him.

Fox v. Hodge, 17 Week. Dig. 412.

A receiver in supplementary proceedings cannot succeed in an
action to recover certain money alleged to belong to the judg-
ment debtor, where he fails to show the recovery of a judgment
by the judgment creditor, in whose behalf he was appointed,
and produces no evidence that he ever qualified as such, or
entered upon the duties of receiver. :

Midler v. Lese, 45 Mise. 637, 91 Supp. 148.

A receiver in supplementary proceedings may bring an
action for the admeasurement of the dower of a judgment
debtor who has conveyed such dower interest to him, pursuant
to order of the court, and such action may be brought in his
own name as receiver.

Payne v. Becker, 87 N. Y. 1538.
RECEIVER 357
"A temporary injunction will not be granted to a receiver in
supplementary proceedings restraining the negotiation of a
check received by the wife of the judgment debtor upon settle-
ment of an action on a note given in part payment by the
purchaser at a chattel mortgage sale, under a mortgage given
by such debtor’s wife, upon property which formerly belonged
to the judgment debtor, where the original sale of the property
previously made by the judgment debtor was not objected to by
the judgment creditor.

Brockway v. Miller, 144 App. Div. 239, 128 Supp. 1079.

Where a judgment creditor obtained an order that required
a third person to pay to him money due the judgment debtor,
which the third person failed to comply with, the remedy of
the judgment creditor is not by an action against the third
person to recover the sum so directed to be paid, but he should
obtain the appointment of a receiver in the supplementary
proceedings, and such receiver may bring the action.

Patten v. Connah, 18 Abb. Pr. 418.

A sale of property under a dormant execution to the judg-
ment ereditor therein, does not give the receiver in supplemen-
tary proceedings upon another judgment against the judgment
debtor, and on which the later judgment execution had then been
issued, the right to institute suit for recovery from the pur-
chaser of the value of the property, where, instead of moving
to have the moneys so realized applied on his execution, the
judgment creditor instituted supplementary proceedings and
had a receiver appointed, and the judgment debtor assigned
all his property to him.

Richards v. Allen, 3 E. D. Smith, 399.

In an action brought by a receiver in supplementary pro-
ceedings to enforce a claim in favor of the judgment debtor,
the title of the receiver to the judgment debtor’s property
must be deemed to have accrued as of the date of his appoint-
ment, where he fails to show the date on which the order in
supplementary proceedings was served or when the warrant,
358 SUPPLEMENTARY PROCEEDINGS

if any requiring the arrest of the judgment debtor was served,
so as to cause the relating back of the receiver’s title to those
dates, as provided by Sec. 2469 of the Code.

Steinert v. Van Aken, 165 App. Div. 206, 150 Supp. 525.

(8) Conversion

An action at law will not lie by a receiver in supplementary
proceedings to recover the proceeds obtained by a chattel mort-
gagee on the sale of the mortgaged property, as for conversion,
where the mortgage, although not filed as required by statute
was:given and the taking of the property and the sale thereof
were consummated before the recovery of the judgment on which
the receiver was appointed, as such mortgage was good as
between the parties and general creditors at large.

Stephens v. Meriden Britannia Co., 160 N. Y. 178, 30 Civ.
Pro. Rep. 192.

And a receiver in supplementary proceedings cannot main-
tain an action for conversion against a chattel mortgagee for
taking chattels thereunder, on the ground that such chattel
mortgage was fraudulent and void as to creditors, since the
receiver stands in the shoes of the judgment debtor and no
title to such chattels passed to the receiver by virtue of his
appointment under Sec. 2468 of the Code, or under Sec. 19
Personal Property Law, setting forth the powers of receivers.
The remedy of the receiver is by execution or resort to an action
in equity to set aside the fraudulent conveyance.

Berliner v. Kuttner, 85 Misc. 461, 147 Supp. 308.

An action in conversion lies by a receiver in supplementary
proceedings against a judgment debtor, where the property was
converted by him after the title thereto became vested in the
receiver, but such action will not lie where the property con-
sists of personal property upon which the judgment debtor had
given a chattel mortgage to the former owner to secure the pur-
chase price, where the receiver allowed the same to become
RECEIVER 359

overdue, and title to the property thereby vested in the mort-
gagee, although possession thereof was allowed to remain in
the judgment debtor, and the fact that there was not a com-
pliance with the statute as to the refiling of the mortgage does
not change the situation, as such mortgage remained good be-
tween the parties and was not void as to the receiver.

Gardner v. Smith, 29 Barb. 68.

The fact that a receiver in supplementary proceedings allows
personal property formerly belonging to the judgment debtor,
and which was assigned to the receiver by order of the court,
to remain in the possession of the judgment debtor for ten
months, and down to the time of the levy thereon by a sub-
sequent judgment creditor does not operate to prevent the
recovery by the receiver of the value of the property so levied
on and sold by the creditor last mentioned, where it is not
shown that the property was left in the judgment debtor’s
possession by collusion with or by the consent of the judgment
creditor, upon whose judgment the receiver was appointed.

Fessenden v. Woods, 16 Super. Ct. Rep. [8 Bosw.] 550.

In an action by a receiver in supplementary proceedings for
conversion of property of the judgment debtor alleged to be
wrongfully detained, the claim cannot be made on the trial
by a third person claiming to own the property that the demand
of the receiver for such property was insufficient because the
receiver did not exhibit at the time, the evidence of his ap-
pointment as receiver, where the refusal to deliver was not
based on that ground.

Livingston v. Stoessel, 16 Super. Ct. Rep. (3 Bosw.) 19.

(4) Action to Redeem

A receiver in supplementary proceedings may bring an action
to redeem a watch which was delivered by a judgment debtor
to another creditor under a written agreement that he would
give up all claim to the watch if he did not pay all claims of
360 SUPPLEMENTARY PROCEEDINGS

said creditor by a certain date, which agreement, however, he
defaulted in.
Bunacleugh v. Poolman, 3 Daly, 236.

(5) To Compel an Accounting

A receiver in supplementary proceedings can maintain an
action in equity to compel another creditor to account for funds
realized by the latter upon sale of property pledged as col-
lateral security, the whole of which he is not entitled to, and to
compel such creditor to pay and deliver over to the receiver
his share thereof.

Armstrong v. McLean, 153 N. Y. 490.

A receiver in supplementary proceedings may sue to recover
the share of a judgment debtor in a partnership as his appoint-
ment operates as a termination, ipso facto, of the partnership
of the judgment debtor and a third person, and the receiver
is entitled to an adjustment and division of the partnership
assets, and to an accounting to establish the amount of the
recovery.

Lovins v. Laub, 85 Misc. 336, 147 Supp. 304.

(6) Partition

It is questionable whether a receiver in supplementary pro-
ceedings acquires such a title to the judgment debtor’s real
estate as to maintain an action for the partition thereof.

DuBois v. Cassidy, 75 N. Y. 298.

And it has been held doubtful whether a receiver may main-
tain an action for the partition of real estate in which the
judgment debtor has an interest, although the latter had con-
veyed the same to the receiver.

Miller v. Levy, 46 Super. Ct. Rep. (14 J. & S.) 207,
RECEIVER 361

(7) Replevin

A receiver in supplementary proceedings cannot bring an
action of replevin to recover chattels, where possession thereof
had been previously delivered unconditionally by the judgment
debtor to his vendee, on the ground that the condition on which
the property was sold had not been complied with, since the
relief, if any, is an action in equity for a rescission of the
contract.

Gilroy v. Everson-Hickok Co., 118 App. Div. 733, 103 Supp.
620.

So, such an action will not lie to recover chattels upon which
the judgment debtor had fraudulently given a chattel mort-
gage, where the latter was foreclosed and the property purchased
and taken into possession by the chattel mortgagee before the
appointment of the receiver.

Pettibone v. Drakeford, 37 Hun, 628.

The court intimated, in the case above, that an action in
equity might lie by a receiver to set aside or remove the fraudu-
lent mortgage.

(8) To Determine Priorities

A receiver in supplementary proceedings may bring an
action to determine the priority of conflicting claims to prop-
erty of the judgment debtor.

Bamberger v. Fillebrown, 12 Mise. 328, 33 Supp. 614.

(9) Trespass

A receiver in supplementary proceedings may maintain an
action for trespass on lands of the judgment debtor, as all
causes of action for injuries to property rights survive to
personal representatives and are therefore assignable.

Bennett v. Wolfolk, 80 Hun, 390, 62 St. Rep. 55, 30 Supp.
328..
362 SUPPLEMENTARY PROCEEDINGS

(h) Right to Compel Judgment Creditor to Refund Payment

An order directing a judgment creditor to refund moneys
paid to him by a receiver in supplementary proceedings, which
moneys were received on the sale of goods replevied by the
receiver, which action of replevin resulted in judgment in the
receiver’s favor but was afterwards reversed on appeal, will be
denied where the claim of the receiver that the judgment credi-
tor had agreed to refund such money, if necessary, was
disputed by the latter, since such question of fact can be settled
only in an action.

Twelfth Ward Bank v. Columbia Publishing Co., 51 Mise.
62, 99 Supp. 908.

(i) Right to Compel Accounting in Surrogate’s Court

A receiver appointed upon a judgment against one of the
administrators of an estate, the latter also being one of the next
of kin thereof, may compel an accounting by such adminis-
trator and his coadministrator, and has a right to object to
improper disbursements by them.

Ramey, Matter of, 5 Misc. 367, 26 Supp. 892.

So, a receiver may be granted an order compelling execu-
tors of an estate, in which the judgment debtor is the bene
ficiary of a trust fund, to account, although such executors
had accounted to other legatees for the testators’ personalty,
as they were not thereby relieved from accounting to such
receiver for the proceeds of the real estate, even though the
latter was held under certain trusts which had not been execut-
ed.

Beecher, Matter of, 47 St. Rep. 415, 19 Supp. 971.

A receiver in supplementary proceedings has no standing to
compel the accounting in Surrogate’s Court of a trustee under
a will, under which the judgment debtor was a beneficiary,
where it is shown that such judgment debtor had, prior to the
appointment of a receiver, assigned for value all his interest
RECEIVER

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in the estate, since, under Sec. 2469 of the Code providing
that a receiver shall not take title to property purchased in
the meantime in good faith, without notice and for a valuable
consideration, the assignee took title in preference to the re-
ceiver.

Sistare, Matter of, 2 Con. 544, 27 Abb. N. C. 34, 15 Supp.
709.

The issue as to whether a receiver in supplementary pro-
ceedings was legally appointed is raised in a proceeding insti-
tuted by him in Surrogate’s Court to compel executors of a trust
fund of which the judgment debtor is one of the beneficiaries to
account, where he alleges in his petition that he was appointed
receiver in the supplementary proceedings, and the executors
deny in their answer such appointment.

Beecher, Matter of, 47 St. Rep. 415, 19 Supp. 971.

(E) Actions against Receiver

It has been a long-established rule in this state that leave
to sue a receiver should be obtained before bringing suit.

The commencement of an action against a receiver without
leave does not affect the jurisdiction of the court, however.
Suing without such permission is purely a question of con-
tempt.

Hirshfeld v. Kalischer, 81 Hun, 606, 30 Supp. 1027; Chau-
tauqua County Bank v. Risley, 19 N. Y. 369; Pruyn v. Black,
105 App. Div. 302, 93 Supp. 955.

The question whether there will be punishment for such
contempt is considered under the chapter entitled “Contempt.”

A receiver in supplementary proceedings will be held liable
in conversion for interfering with the property of the judgment
debtor which is exempt from levy and sale under execution,
and the judgment debtor is not bound to seek the court for
a modification of the order appointing the receiver expressly
exeepting such property from the receivership.

Finnin v. Malloy, 33 Super. Ct. Rep. (1 J. & 8.) 382.
B04 SUPPLEMENTARY PROCEEDINGS

A receiver sued in foreclosure of a mortgage held upon the
judgment debtor’s real estate cannot claim he is not concluded
by the judgment therein, in his representative capacity, because
the action was brought against him in his individual name
followed by the word “receiver” only, as so naming him is
sufficient to charge him as receiver.

Graham v. Lawyer's Title Insurance Co., 20 App. Div. 440,
46 Supp. 1055.

A receiver in supplementary proceedings is not liable in
conversion for the proceeds received from him upon surrender
of a liquor tax certificate voluntarily delivered by the judgment
debtor to him without knowledge on the part of the receiver
of the claim of ownership of a third person by reason of his
having advanced the money paid therefor, where such receiver
made his report disposing of the proceeds of such certificate,
and such report was confirmed by the court without any notice
of the claimant’s claim.

Ochs v. Pohly, 87 App. Div. 92, 84 Supp. 1.

A receiver in supplementary proceedings appointed upon a
judgment against a copartnership cannot be enjoined from
taking possession of the firm property in a suit brought by the
assignee of one of the members of the firm of all the latter’s
interest in the partnership then being dissolved, as to enjoin
a receiver under such circumstances is but to restrain the court
from making a proper disposition of the funds going into the
receiver’s hands. The remedy in such case is to apply to the
court for instructions.

Van Rensselaer v. Emery, 9 How. Pr. 135.

(F) Receiver—Liability to Refund

A receiver in supplementary proceedings receiving payment
from a third person of money legally due the assignee of such
fund, on notice of the assignment thereof from the judgment
debtor, cannot resist a motion compelling him to refund the
RECEIVER 365

same to the latter, although, acting in good faith, he applied it
upon the judgment under which he was appointed, as it was
his duty to take the advice and direction of the court before
making such disposition of funds in his hands. |

Hone, Matter of, 153 N. Y. 522.

Likewise, where.a receiver has retained out of a fund coming
into his hands moneys legally due a third person, under a
valid assignment of a part of such fund, after notice of such
assignment, the court, upon motion of such third party, will
set aside the order passing the accounts of and discharging the
veceiver, and direct the opening of said account, and the ad-
justment of the contestant’s claim to the funds in the hands of
the receiver, and the fact that the receiver acted in good faith,
will not affect the situation, as he should have applied to the
court for advice.

Barnes v. Courtright, 37 Misc. 60, 74 Supp. 2038.

The assignee of a liquor-tax certificate, receiving the assign-
ment thereof before the recovery of judgment upon which
supplementary proceedings are instituted, is entitled to an order
directing the receiver, who had taken possession of such certifi-
cate, to surrender it to the applicant, as such receiver had no
right to collaterally attack the assignment.

Herman, Matter of v. Goodson, 18 Misc. 604, 42 Supp. 696.

(G) Fees of Receiver

Under Sec. 3320 of the Code, a receiver in supplementary
proceedings, having successfully maintained a suit to set aside
a fraudulent transfer of property by the judgment debtor, may
be allowed $100.00 for his services in lieu of commissions,
when the latter do not amount to that sum, and the judgment
debtor cannot: resist the payment thereof or divest the court
of its jurisdiction to order payment thereof, by reason of the
fact that he paid the judgment to the sheriff before an error of
366 SUPPLEMENTARY PROCEEDINGS

the receiver in filing the order of his appointment in the wrong
county was corrected.

Holton, Matler of v. Robinson, 59 App. Div. 45, 69 Supp.
33.

The provisions of Sec. 3320 of the Code applicable to re-
ceivers in supplementary proceedings, provide that he is en-
titled, in addition to his necessary expenses, to such com-
missions, not exceeding five per centum upon the sums received
and disbursed by him, as the court by which, or the judge by
whom, he is appointed allows. But if in any case the com-
missions of a temporary or permanent recciver, so computed,
shall not amount to $100.00, said court or judge may, in its or
his diseretion, allow said receiver such a sum, not exceeding
$100.00, for his commissions as shall be commensurate with
the services rendered by said receiver. Any receiver
required by law to give a bond as such may include, as a salt
of his necessary expenses, such reasonable sum, not exceeding
one per centum per annum upon the amount of such bond paid
his surety thereon, as such court or judge allows.

(H) Discharge of Receiver

It is provided in Sec. 2471 of the Code that a receiver in
supplementary proceedings is subject to the direction and con-
trol of the court out of which the execution was issued, except
where a receiver is appointed by the City Court of N. Y. City
or by a County Court, or a justice of said courts, he is subject to
the direction and control of said court or justice.

Such a receiver may, of course, be discharged or removed
by such courts or judges.

Provision is made in the same section for the settlement of
the receiver’s accounts and his discharge may consequently
follow.

An order will not be granted removing a receiver in sup-
plementary proceedings because not legally appointed, where
RECEIVER 307

the order appointing him was made in October, 1862, and in the
following year he commenced action against the judgment
debtor and another for the recovery of property alleged to
have been transferred by the judgment debtor in fraud of credi-
tors, which action was tried before a referee, who found all the
facts in favor of the receiver and among other things found
in favor of his appointment, since the regularity of the appoint-
ment is satisfactorily established.

Terry v. Bange, 24 St. Rep. 599, 5 Supp. 330.

The fact that a judgment debtor later paid the judgment
upon which supplementary proceedings were based, will not
defeat the right of the receiver appointed therein to retain prop-
erty of the judgment debtor in his hands for expenses and he
may require payment of the same before such property can be
taken out of his posession.

Crooks v. Findley, 3 N. Y. Law Bull. 26.

(1) Exclusion of Actions by Judgment Creditor

A judgment creditor is not obliged to institute supplementary
proceedings and have a receiver appointed therein to bring ac-
tion to set aside a fraudulent transfer of property by the judg-
ment debtor. He may, upon the return of the execution un-
satisfied, proceed in his own name, by a creditor’s suit to reach
the property of the debtor which he alleges to have been fraudu-
lently transferred.

Dollard v. Taylor, 33 Super. Ct. Rep. (1 J. & 8.) 496.

And the fact that supplementary proceedings have been in-
stituted but the same abandoned without the appointment of a
receiver will not defeat an action by the judgment creditor to
set aside alleged fraudulent conveyances by the judgment
debtor, and the latter cannot raise the objection that a receiver
should have been appointed in such supplementary proceedings
and the action brought by him.

Bennett v. McGuire, 58 Barb. 625.
368 SUPPLEMENTARY PROCEEDINGS

The fact that a judgment creditor has instituted supplemen-
tary proceedings upon the judgment and had a receiver ap-
pointed therein, does not preclude him from bringing an action
in his own name to reach certain shares of mining stock, alleged
to belong to the judgment debtor, but which are standing on
the books of the company in the name of his wife, and obtain-
ing the appointment of a temporary receiver in such action to
prevent the removal of such stock beyond the jurisdiction of
the court.

State Bank of Syracuse v. Gill, 23 Hun, 406.

So, the fact that a receiver in supplementary proceedings
has been appointed, will not defeat the right of the judgment
ereditor to bring an action to set aside an illegal trust, and
declare the judgment a lien upon the real estate affected by
the attempted trust, since such lien of the judgment was not
transferred to the receiver, and by having him appointed re-
ceiver the judgment was not assigned to him, nor did he thereby
estop himself from enforcing it.

Ullman v. Cameron, 186 N. Y. 339.

(J) Receivership—Extension to Other Judgments

(1) Statute

It is provided in Sec. 2466 of the Code that only one
receiver shall be appointed, and where a receiver has already
been appointed, the judge must make an order extending the
receivership to the special proceeding before him. It is fur-
ther provided that such an order gives to the judgment creditor
the same rights as if a receiver were then appointed upon his
application; including the right to apply to the court to control,
direct, or remove the receiver or to subordinate the proeeedings
in or by which the receiver was appointed to those taken under
his judgment.
RECEIVER 369

(2) Notice of Application

A judgment debtor is entitled to notice of application for an
order extending the receivership in another proceeding to the
proceeding against him, and where his examination was taken
and closed and three days thereafter an order was entered ex-
tending a receivership without notice to him, such order will be
vacated.

Benjamin v. Myers, 3 St. Rep. 284.

(3) When Extension Granted

An order extending a receivership to another judgment can-
not be made where it appears that the judgment debtor has
died, as after this event the judgment creditor must take his
place along with the other judgment creditors.

Tribune Assn., Matter of, 18 Misc. 326, 34 Supp. 459.

It is error, after the granting of an order by a judge of the
City Court of New York extending to another judgment a
receivership in supplementary proceedings where the original
receiver was appointed in the Supreme Court, for another judge
of the City Court to vacate such order of extension and appoint
another receiver, as Sec. 2466 of the Code provides that only
one receiver of the property of a judgment debtor shall be ap-
pointed, and where a receiver thereof has already been
appointed, the judge must make an order extending the receiver-
ship to the special proceeding before him instead of appointing
a new receiver, and Sec. 2471 provides that when an order
of extension is made the control over the receiver remains
in the court to whose control and direction he was originally
subject.

Garfield Nat. Bank v. Bostwick, 39 St. Rep. 358, 14 Supp.
919.

(4) Rights Acquired

A judgment creditor to whose judgment a receivership in
Garnishee—24.
370 SUPPLEMENTARY PROCEEDINGS

another proceeding is extended, has the same rights as if another
receiver had been appointed in his proceedings.

Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

A senior judgment creditor is entitled to a prior right to
surplus moneys realized from the sale of the judgment debtor’s
incumbered lands where a receiver in supplementary proceed-
ings was appointed upon the judgment of a junior judgment
creditor, but such receivership was extended to the first named
judgment creditor, since the title of the receiver related back
to the date of the recovery of the first judgment under the
Code, and this, although both judgments had been recovered
more than ten years ago and the liens thereof had terminated.

Guggenhermer v. Stephens, 17 Civ. Pro. Rep. 383, 26 St.
Rep. 245, 7 Supp. 263.

And this rule of priority of a senior judgment to which a
receivership has been extended, applies where an order for the
examination of the judgment debtor having been grantd on the
senior judgment and served upon the judgment debtor, but
before the return day thereof the junior creditor procured the
voluntary appearance and examination without order of the
judgment debtor, and the appointment of a receiver, as the re-
lating back of the receiver’s title to the institution of the first
supplementary proceedings applied.

Youngs v. Klunder, 27 St. Rep. 32, 7 Supp. 498.
CHAPTER XX

CONTEMPT

(A) Statutory Provisions, 372.
(B) Kinds of Contempt, 374.
(C) Excuse, 375.
(1) In General, 375.
(2) Defects and Irregularities in Proceedings, 376.
(3) Unfair or Disqualified Referee, 382.
(4) Discharge in Insolvency Proceedings, 383.
(5) Insufficient Time for Compliance, 383.
(6) Advice of Counsel, 384.
(7) Defects and Omissions in Service of Papers, 386.
(8) Lapse or Abandonment of Proceedings, 389.
(9) Unfair or Inconsistent Conduct of Judgment Creditor, 391.
(10) Misnomer, 393.
(11) Absence of Formal Order of Direction to Appear, 394.
(12) Invalid Second Order, 395.
(13) Privileged Persons, 395.
(a) Foreign Consul, 395.
(b) Attorneys, 396.
(D) Violation of Injunction, 396.
(1) Acts Constituting, 396.
(2) Excuse or Defense, 402.
(a) After-acquired Property, 402.
(b) Exempt Property, 403.
(ce) Disputed Ownership, 405.
(d) No Restraining Clause, 407.
(E) Misconduct of Persons Testifying, 408.
(1) Refusal to Answer, 408.
(2) Evasive Answers, 410.
(3) False Testimony, 412.
(4) Failure to Produce Books, 413.
(5) Refusal to Sign Testimony, 413.
(F) Disobedience of Order to Pay Money or Deliver Property, 413.
(1) Particular Instances, 413.
(2) Excuse, 416.
(a) Substantial Dispute, 416.
(b) Inconsistent Conduct of Judgment Creditor, 417.

371
372 SUPPLEMENTARY PROCEEDINGS

(G) Interference with or Resistance to Receiver, 418.
(H) Suing Receiver without Leave, 419.
(I) Procedure to Punish, 420.
(1) Modes of Procedure, 420.
(a) Statutory Provisions, 420.
(b) Decisions Governing, 421.
(2) Writ of Attachment, 422.
(a) Statutory Provisions, 422.
(b) Practice, 424.
(ce) Liability for False Arrest, 425.
(3) Order to Show Cause, 425.
(a) Statutory Provisions, 425.
(b) Affidavit—Necessity and Sufficiency, 426.
(c) Procedure on Default, 426.
(d) Irregularities—Waiver, 427.
(e) Service of Affidavit and Order to Show Cause, 427.
(4) Taking Depositions, 428.
(5) Judge or Court Punishing for Contempt, 429,
(a) Statute, 429.
(b) Particular Instances, 429.
(6) Final Order Punishing for Contempt, 431.
(a) Statutory Provisions, 431.
(b) Requisites of Order, 432,
(J) Amount of Fine, 437.
(1) Statute, 437.
(2) When No Actual Damages, 437.
(3) Where Actual Damages, 441.
(3) Amount of Judgment, 443.
(5) Extenuating Circumstances, 446.
(6) Costs Allowable, 447.
(7) Excessive Fine—Effect, 448,
(K) Stay of Punishment, 448.
(L) Period of Imprisonment, 449.
(M) Discharge from Imprisonment, 450.
(1) Statute, 450.
(2) Grounds, 450.

(A) Statutory Provisions

Proceedings to punish for contempt arising in supplementary
proceedings are authorized by Sec. 2457 of the Code. This
section provides that a person who refuses, or without sufficient
excuse, neglects, to obey any order of a judge or referee, made
pursuant to the preceding two sections, or to any other provision
CONTEMPT 373

of the statute relating to supplementary proceedings, and duly
served upon him, or an oral direction given directly to him by
a judge or referee, in the course of the special proceedings; or
to attend before a judge or referee, according to the command
of a subpoena, duly served upon him, may be punished by the
judge of or by the court out of which the execution was issued,
by the county judge, the special county judge, or the special
surrogate of the county to which the execution was issued,
or by the City Court of the City of New York or a justice
thereof, if the proceeding were instituted before such court or
any justice thereof, as for a contempt.

Section 750 of the Judiciary Law also plainly authorizes
punishment for criminal contempt arising in these proceedings.

Under subd. 1, there may be punishment for disorderly,
contemptuous, or insolent behavior, committed during the sit-
ting of the court, and this would undoubtedly cover such
conduct before a referee in supplementary proceedings. Under
subd. 3 there may be punishment for willful disobedience to the
lawful mandate of the court. Subd. 4 provides for such punish-
ment for resistance willfully offered to a lawful mandate. And
subd. 5 provides that contumacious and unlawful refusal to
be sworn as a witness, or, after being sworn to answer any
legal and proper interrogatory may be likewise punished.

Furthermore, punishment as for civil contempt will un-
doubtedly also lie under certain provisions of Sec. 753 of the
Judiciary Law. Subd. 1, of this section provides for the pun-
ishment civilly of disobedience to a lawful mandate of the court,
or of a judge thereof, or of an officer authorized to perform the
duties of such a judge. Subd. 5 provides that a person sub-
poened as a witness may be so punished for refusing or
neglecting to obey the subpoena, or to attend, or to be sworn,
or to answer as a witness. Finally, it is provided in subd. 8
for such punishment in any other case, where an attachment or
any other proceeding to punish for a contempt, has been usualiy
adopted and practiced in a Court of Record, to enforce a civil
B74 SUPPLEMENTARY PROCEEDINGS

remedy of a party to an action or special proceeding in that
court, or to protect the right of a party.

The procedure governing punishment for contempt in sup-
plementary proceedings is governed by the Judiciary Law.
The sections involved will be taken up and discussed in this
chapter under their proper heads.

(B) Kinds of Contempt

Misconduct arising in supplementary proceedings may be
either civil or criminal contempt according to the circum-
stances.

Civil contempt has to do in part with recompensing the
person injured by the contumacious conduct complained of.

Hanbury v. Benedict, 160 App. Div. 662, 146 Supp. 44.

“Criminal contempt,” as used in the statutes, has to do with
vindicating the dignity of»the court which has been defied.

Hanbury v. Benedict, 160 App. Div. 662, 146 Supp. 44.

As applied to supplementary proceedings, criminal contempt
consists in either disorderly or insolent and contemptuous con-
duct in the presence of the court or referee; the willful
disobedience of its lawful mandate; or contumacious and
unlawful refusal to be sworn as a witness, or, after being
sworn to answer any legal and proper interrogatory.

Section 750, subds. 1, 3, 4, 5, Judiciary Law.

Criminal contempt may arise in supplementary proceedings
where the offense is committed in the immediate view and
presence of the court.

Hanbury v. Benedict, 160 App. Div. 662, 146 Supp. 44;
Falkenberg, Matter of v. Frank, 20 Mise. 692, 46 Supp. 675.

Whether certain misconduct arising in supplementary pro-
ceedings is civil or criminal contempt is not by any means
clear, but it may safely be said that if the misconduct is com-
mitted willfully or in the immediate presence of the court there
may be punishment as for criminal contempt. Other offenses
inay be classified as a general rule, as civil contempt.
CONTEMPT 375

The question of whether a contempt committed by a
witness in supplementary proceedings in refusing to answer
questions, should be regarded as a civil or criminal contempt
is for the determination of the judge or court directing the
answer, and uot for the appellate court.

People ex rel. Roache v. Hanbury, 162 App. Div. 337,
147 Supp. 851.

Failure to appear before the referee in supplementary pro-
ceedings constitutes a civil and not a criminal contempt.

Feinberg v. Kutcosky, 147 App. Div. 398, 132 Supp. 9.

(C) Excuse

(1) In General

The accidental and unintentional violation of an order for
the examination of a judgment debtor will not be punished as
for contempt, particularly where the rights of the judgment
creditor are in no way impaired.

Wasserman Co. v. Vaudeville Comedy Club, 160 Supp. 1047.

Where the order for the examination of a judgment debtor
is apparently valid the judgment debtor must obey it or at once
move to set it aside, he cannot disobey it and raise the objection
of the invalidity of the proceedings on motion to punish him
for contempt.

Hilton v. Patterson, 18 Abb. Pr. 245; Wilcox v. Harris,
59 How. Pr. 262.

The fact that imprisonment for the nonpayment of costs
generally has been abolished does not prevent the imprisonment
of a judgment debtor in contempt for not paying a judgment
and costs under a previously granted order in supplementary
proceedings.

People ex rel. Kearney v. Kelly, 22 How. Pr. 309, 18 Abb.
Pr. 459.

It is doubtful whether a judgment debtor can be punished
376 SUPPLEMENTARY PROCEEDINGS

for contempt in procuring by deceit, from a judge, an order
vacating a prior order made by him in supplementary pro-
ceedings forbidding a debtor of the judgment debtor to pay
over money deposited by him with it (a bank), and also for
having by means of that order, by deceit and abuse of process,
persuaded said bank to pay him the money so deposited, es-
pecially where the judgment creditor was not really prejudiced
by the order in question.

De Comeau v. People, 30 Super. Ct. Rep. (7 Robt.) 498.

Where a judgment is obtained upon a partnership obligation
in an action against both partners but only one of them is
served with a summons, and an execution is issued and returned
unsatisfied as to the partnership’s property, supplementary
proceedings will lie against the partner not served for his
examination as to joint property, and if he fail to obey the
order for his examination he may be punished for contempt.

Perkins v. Kendall, 3 Civ. Pro. Rep. 240.

A judgment debtor may be punished for contempt where
the order instituting the supplementary proceedings against
him provided that he should appear before the judge at a
specified date succeeding the close of his examination, but he
neglected to do so.

Sickels v. Hanley, 4 Abb. N. C. 231,

(2) Defects and Irregularities in Proceedings

Irregularities in an order for the examination of a judg-
ment debtor in supplementary proceedings which only make it
voidable, are not grounds for the disobedience thereof by the
judgment debtor, but he is obliged to appear, and, if so advised
move to set aside the order.

Rupert v. Lee, 101 App. Div. 492, 92 Supp. 75; Shults v.
Andrews, 54 How. Pr. 378.

A judgment debtor sought to be punished for contempt in
transferring property in violation of the injunction in the order
CONTEMPT 377

for his examination, cannot excuse the same by asserting in-
formalities in the affidavit upon which the proceedings were
based, nor by claiming that jurisdiction was never obtained by
reason of such defects.

Lehmuer vy. Griswold, 46 Super. Ct. Rep. (14 J. & 8.) 11.

A judgment debtor disobeying an order for his examination
in supplementary proceedings cannot successfully resist his
punishment for contempt on the ground that the jurisdictional
allegations in the affidavit upon which the order was granted
are false. He must obey the order or move at once for its
vacation.

Hilton v. Patterson, 18 Abb. Pr. 245.

So, the fact that the affidavit upon which an order for the
second examination of a judgment debtor is defective, but not
to such an extent as to affect the jurisdiction, will not justify
the judgment debtor in disregarding the order, even upon
advice of his counsel.

Shane Bros. & Wilson Co. v. Henshaw, 174 App. Div. 606,
161 Supp. 115.

A judgment debtor cannot excuse his disobedience of an
order for his examination in supplementary proceedings by
showing that the affidavit upon which such order was based,
erroneously stated the date upon which the judgment was en-
tered, as such fact did not deprive the judge of jurisdiction.

Hatfield, Matter of, 17 App. Div. 430, 45 Supp. 270.

But a judgment debtor will not be punished for contempt
in disobeying an order for his examination in supplementary
proceedings where the affidavit upon which the same was
granted did not show that he resided in that county at the
time of the commencement of the proceedings, as required by
Sec. 2485, Code of Civil Procedure.

Katz v. Kosower, 63 Misc. 25, 117 Supp. 316.

A judgment debtor will not be punished for contempt in
failing to appear pursuant to an order for his examination,
where it appears by the affidavit upon which the order was
378 SUPPLEMENTARY PROCEEDINGS

based that the judgment had been assigned, but the attorney
making such affidavit failed to show that he was authorized
to institute the proceedings by the assignee of the judgment,
since jurisdiction was not obtained over the judgment debtor in
the proceedings.

Kemp v. Gartenberg, 93 Mise. 313, 156 Supp. 883.

So, it is not an excuse upon proceedings for the punishment
of a judgment debtor for contempt that the affidavit upon which
the same was based, made by one of the attorneys for the
judgment creditors, was sworn to before his law partner, as at
most, such defect was an irregularity not available to excuse
the contempt.

Fancher, Matter of 58 Misc. 11, 110 Supp. 157.

So, the fact that an order for the examination of a judgment
debtor in supplementary proceedings is erroneous is not ground
for its disobedience by the judgment debtor. He should appear
upon the return day and raise his objections.

Arctte Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204.

A judgment debtor in supplementary proceedings cannot
excuse his disobedience of an order for his examination on the
ground that the latter is defective in that it states that the
execution was issued out of the Supreme Court, where the
judgment was obtained in the Municipal Court of the City of
New York and transcript filed in the county clerk’s office, as
under the provisions of the Municipal Court Act said judg-
ment, after the filing of transcript, is “deemed a judgment of
the Supreme Court and may be enforced accordingly.”

Jaques v. Willett, 138 St. Rep. 500, 104 Supp. 500.

Where the judge had no jurisdiction to grant an order for
the examination of a judgment debtor in supplementary pro-
ceedings by reason of the fact that the execution had not been
returned wholly or partly unsatisfied, it constitutes a jurisdic-
tional. defect which the appearance and submission of the judg-
ment debtor to examination under the order does not operate
to waive, and the judgment debtor cannot be punished for
CONTEMPT 379

contempt for disposing of his property in violation of the in-
junction contained therein.

Jennings v. Lancaster, 15 Misc. 444, 87 Supp. 196.

An order directing a third person to appear for examination
concerning the judgment debtor’s property in his possession,
and forbidding any transfer thereof, which is based upon a
defective affidavit, by reason of failure to state the grounds
of deponent’s knowledge, is undoubtedly effective until set
aside, and the third party must obey it until vacated.

Pierce v. Parish, 28 App. Div. 22, 50 Supp. 735.

In another case, however, it was held that a third party
would not be punished for contempt in failing to obey an order
for his examination where the affidavit in reference to his
having property of the judgment debtor was upon information
and belief, the court holding that the examination of a third
party without any reason whatever was a hardship and should
be discountenanced.

People ex rel. Day v. Jones, 1 Abb. N. C. 172, 52 How. Pr.
95.

The president of a corporation sought to be examined under
a third party order, concerning property of the judgment debtor,
whose motion to vacate the same was denied with the condition
that the judgment creditor have leave to file an additional
affidavit to supply defects in the original affidavit, but which
additional affidavit was never filed, cannot be punished for
refusing to answer questions on such examination, since the
order of the judge was, in effect a holding that the original
motion papers were insufficient, so that the order for the
examination must be deemed to have been granted only upon
the filing of the additional affidavit, and the latter not being
filed, the judgment creditor could not proceed with the examina-
tion.

Stell, Matter of v. British Union & Nat. Ins. Co., 78 Misc.
40, 187 Supp. 703.

The fact that the transcript of a judgment obtained in a court
380 SUPPLEMENTARY PROCEEDINGS

not of record was not properly filed in the county clerk’s office
cannot be raised in supplementary proceedings on such judg-
ment, but the judgment debtor must move in the County Court
for relief.

People ea rel. Mace v. Oliver, 66 Barb. 570.

Although a judgment debtor does not appear upon the return
of an order to show cause why he should not be punished for
contempt, he has nevertheless the right to move to set aside the
order made thereon for irregularities.

Tinkey v. Langdon, 60 How. Pr. 180.

A judgment debtor cannot be punished for contempt in dis-
obeying an order for his examination in supplementary pro-
ceedings, where the judgment upon which the same was based
was rendered without jurisdiction of the court.

McGill v. Weil, 19 Civ. Pro. Rep. 43, 10 Supp. 246.

And a judgment debtor cannot be punished for contempt in
failing to obey an injunction clause in an order for his examina-
tion where the latter was granted without jurisdiction of the
judge.

Blanchard v. Reilly, 11 Civ. Pro. Rep. 278.

A judgment debtor willfully disregarding an order for his
examination in supplementary proceedings, on the ground that
the order was void, without making any motion to vacate it,
must be punished for his contempt, unless the original order
was absolutely void.

Groshut v. Kinetophote Corp., 93 Mise. 558, 157 Supp. 312.

It has been held that a default judgment taken in the Munici-
pal Court of New York City on a judgment of the City Court,
may be attacked in supplementary proceedings, since under
Sec. 1, subd. 6 of the Municipal Act, the Municipal Court
has no jurisdiction in an action on a City Court judgment, and
the failure of the defendant to appear or otherwise contest
the action below did not operate as a waiver of his right to
CONTEMPT 361

oppose supplementary proceedings, and move for an order to
vacate the same.

Gillespie v. Armstrong, 58 Misc. 310, 109 Supp. 672.

A third party will not be punished for contempt in disobey-
ing an order for his examination in supplementary proceedings
where he shows that execution had not been returned unsatis-
fied before the institution of such proceedings.

Sloane v. Higgins, 1 N. Y. Law Bull. 59.

«\ judgment debtor, sued under a wrong name and judgment
taken by default, may defeat a motion to punish him for con-
tempt in supplementary proceedings by raising the question of
jurisdiction.

Muldoon v. Prerz, 1 Abb. N. C. 309; MeGill v. Weil, 19
Civ. Pro. Rep. 48, 10 Supp. 246.

And the fact that he has taken an appeal from such judg-
ment will not defeat such right.

McGill v. Weil, 19 Civ. Pro. Rep. 48, 10 Supp. 246.

Where an order for the examination of a judgment debtor
in supplementary proceedings was not served until after the
return day originally named therein, but another judge of the
same court struck out the original date and substituted
therefor, a later one and on the margin of the order opposite
such title wrote his initials with title of his office, and this
order was thereafter served upon the judgment debtor, the
latter cannot be punished for contempt in failing to appear
for examination, since, under Section 26 of the Code of Civil
Procedure, providing that in the counties within the first and
second judicial districts, special proceedings instituted before
a judge of a Court of Record may be continued from time to
time before another judge of the same court, and Sec. 2433 of
the Code, providing that an order may be made by the judge
who made it vacating or modifying it, or it, or the order of the
judge vacating or modifying it, may be vacated by the court
out of which the execution was issued, it is contemplated that
the continuance must be made by a new order duly signed.
382 SUPPLEMENTARY PROCEEDINGS

Ward v. Stoddard, 144 App. Div. 148, 128 Supp. 846, 2
Civ. Pro. Rep. N. 8. 375; Vogel v. Nimark, 62 Misc. 591, 116
Supp. 825.

It will not relieve a judgment debtor from punishment for
contempt in failing to obey an order for his examination in
supplementary proceedings that the order was returnable before
one of the justices of the Supreme Court, instead of the justice
making the order, where he neglected to object to the order on
that account on the return day and his examination was sus-
pended pending his motion to vacate the proceedings for another
irregularity in which he was defeated, but took no appeal, as
he must be deemed to have waived the objection or acquiesced.
in the decision against him. —

Amidon v. Walcott, 15 Abb. Pr. 314.

A witness directed to appear before a referee in supplemen-
tary proceedings will not be punished for contempt in disobey-
ing the same, where the subpeena served upon him was tested in
the name of the judge and county clerk instead of being issued
under the hand of the referee.

People ex rel. Jacobs v. Ball, 37 Hun, 245,

(8) Unfair or Disqualified Referee

The fact that the judgment debtor charges that the referee
appointed in proceedings for his examination was his bitter
enemy and that he, therefore, did not want to be examined
before him, must be regarded as frivolous, as if he desired
a change of referee, he should have applied to the judge making
the order for the relief desired.

Tremain v. Richardson, 68 N. Y. 617.

But a judgment debtor failing to obey an order for his
examination in supplementary proceedings will not be punished
for contempt where the referee appointed to take his examina-
tion occupied an office connected with that of the attorney for
CONTEMPT 885

his judgment creditor, as such person cannot be so appointed
under the General Rules of Practice.
Gilbert v. Frothingham, 18 Civ. Pro. Rep. 288.

(4) Discharge in Insolvency Proceedings

If, upon the hearing of a motion to punish a judgment
debtor for contempt in disobeying an order for his examination
the judge asks him to appear and submit to an examination,
and he complies therewith, he is entitled, upon procuring his
discharge under the Insolvent Act, to an order suspending the
proceedings so as to compel the judgment creditor disputing
the effect of such discharge to sue upon the judgment or other-
wise test the validity of the discharge.

Coursen v. Dearborn, 30 Super. Ct. Rep. (7 Robt.) 1438.

The fact that a judgment debtor has been discharged under
the Insolvent Act will not justify his disobedience of an order
for his examination in supplementary proceedings, but he
should appear and produce his discharge on the return day.
If instead of doing this he puts himself in hostility to the order,
he may be adjudged to be in contempt, and notwithstanding
such discharge, the judge has a right to punish him, or to ex-
cuse him absolutely or conditionally.

Coursen v. Dearborn, 30 Super. Ct. Rep. (7 Robt.) 143.

A judgment debtor cannot excuse his failure to appear pur-
suant to an order for his examination in supplementary pro-
ceedings, by reason of the fact that he has filed a voluntary
petition in bankruptcy since the service of such order, and
was adjudged a bankrupt prior to the return day, as he must
either obey such order or move to set it aside.

Norton v. Bielby, 86 Misc. 644, 149 Supp. 592.

(5) Insufficient Time for Compliance

A judgment debtor will not be punished for contempt in
failing to appear for examination, where it was physically
384 SUPPLEMENTARY PROCEEDINGS

impossible for him to do so, because of the short time between
the service of the order and the return hour.

Levy v. Losett, 200 St. Rep. 1072, 166 Supp. 1072; Gibbs
v. Prindle, 9 App. Div. 29, 41 Supp. 132.

Thus, a judgment debtor failing to appear in obedience to
an order for her examination in supplementary proceedings
will not be punished for contempt, where the order was served
upon her only three and one-half hours before the time desig-
nated for the examination, and the service of the order took
place at her home in the country three miles from the place at
which the examination was to be held; she had no conveyance
to reach the same, and her health was not such that she could
walk the distance.

Gibbs v. Prindle, 9 App. Div. 29, 41 Supp. 132.

(6) Advice of Counsel

It cannot be said thaat there is any rule or practice which
absolutely protects a person from punishment for violation of
an order committed upon the advice of counsel, yet substantial
justice, and the wise exercise of discretion vested in the court
requires the latter to relieve the party in contempt where the
effect of his counsel’s mistake may be to keep him in jail in-
definitely by reason of his inability to pay the fine.

Billings v. Carver, 54 Barb. 40.

In the case last cited, the order of the court was that the
judgment debtor be adjudged guilty of the contempt charged
and be fined a stated amount, unless he appear and submit to
examination under the original order on a day to be specified
and upon his making an affidavit that he had made no transfer
of his property since the granting of the order for his examina-
tion.

While the advice of counsel will not purge a judgment debtor
of his contempt in disobeying an order for his examination, yet
it will be considered upon the imposition of fine, and where
CONTEMPT 385

such disobedience was not willful or defiant, and the judgment
creditor has suffered no loss, the fine may be limited to a sum
sufticient to reimburse the creditor for the costs and expense of
the application. :

Shane Bros & Wilson Co. v. Henshaw, 174 App. Div. 606,
161 Supp. 115.

A judgment debtor, failing to obey an order for his examina-
tion in supplementary proceedings, cannot successfully resist
the motion to punish him for contempt by showing that he gave
the papers to his attorney, and trusted entirely to the success
of the latter to have the order set aside, and the fact that such
order was actually vacated later by the efforts of his attorney,
will not avail him to escape punishment.

Shults v. Andrews, 54 How. Pr. 378.

So, the fact that an attorney advises a person served with an
order for his examination in supplementary proceedings, that
the supporting affidavit is insufficient, is not a sufficient excuse
to warrant the disobedience of such order.

Fleming v. Tourgee, 21 Civ. Pro. Rep. 297, 40 St. Rep. 705,
16 Supp. 2.

A judgment debtor served with an order for his examination
in supplementary proceedings must appear and obey the same,
notwithstanding the fact that the order exceeded two folios and
was not folioed, and for that reason, acting in good faith and
on advice of counsel, he returned the papers with notice of omis-
sion to folio, but it is proper, instead of punishing him for con-
tempt, to direct that he appear for examination on a specified
day.

Spafard v. Hogan, 22 Week. Dig. 519.

The fact that a judgment debtor makes a transfer of prop-
erty upon the erroneous advice of his attorney will not prevent
a fine for contempt to the extent of the property transferred, but
such advice may prevent further punishment.

Lansing v. Easton, 7 Paige, 364.

Garnishee—25.
386 SUPPLEMENTARY PROCEEDINGS

This case arose under a creditor’s bill, but the principle
would seem to be applicable to supplementary proceedings.

(7) Defects and Omissions in Service of Papers

A judgment debtor cannot be punished for contempt in re-
fusing to obey an order for his examination, where the only
proof of the service thereof was an affidavit by the attorney for
the judgment creditor that such service was personally made
by the sheriff, as the latter is not due service thereof so as to
authorize the punishment of the judgment debtor.

DeWitt v. Dennis, 30 How. Pr. 131.

So, there will not be punishment for contempt, under Sec.
2457 of the Code, for failing to appear and submit to exami-
nation pursuant to an order of a judge in supplementary pro-
ceedings, where the order to show cause why he should not be
punished for such contempt was not personally served upon the
judgment debtor, but the same was served upon the attorney
who took an appeal in his behalf from an order extending the
receivership, as the signing of notice of such appeal was not
equivalent to a general appearance in the proceeding, and more-
over, such order to show cause must have been personally served
upon him, as this is required by Sec. 2457 of the Code.

Vingut v. Sire, 163 App. Div. 529, 148 Supp. 533.

A judgment debtor cannot be punished for contempt for re-
fusing to appear for his examination pursuant to an order,
where some of the papers upon which the order to show cause
why he should not be punished was based, were not served upon
him, although they were recited and referred to in the affidavit
of the attorney for the judgment creditor obtaining the order
to show cause, since Sec. 2457 of the Code provides that a per-
son may be punished for neglect for refusal to obey “an order

duly served upon him,” plainly indicating that service
of such papers is made a prerequisite to punishment.
CONTEMPT 387

Aborn v. Herbert, Robertson & Co. Inc., 94 Mise. 687, 158
Supp. 565.

A judgment debtor cannot excuse his failure to appear and
submit to examination in supplementary proceedings on the
ground that service of the summons in the original action was
not made upon him. His remedy is to move to set aside the
judgment and-to have a stay of the supplementary proceedings
in the meantime.

Keller v. Zeigler, 5 N. Y. Law Bull. 15.

A judgment debtor will not be punished for contempt in
failing to appear before the referee for examination if the
copy of the order served upon him fail to name the place of such
appearance.

Kelty v. Yerby, 31 How. Pr. 95.

But there may be such punishment, notwithstanding the fact
that the copy of the order served upon him directed his exam-
ination on a date a year earlier than that specified in the orig-
inal order, where the person serving it advised the judgment
debtor of the date on which the examination was to take place,
which latter corresponded to the date given in the original
order.

Lewis v. Penfield, 39 How. Pr. 490.

A third party having appeared and submitted to examination
under a third party order, and having admitted the service of
the order upon him in his testimony, cannot thereafter raise the
objection in proceedings to punish him for contempt in refus-
ing to answer questions as to property claimed to belong to the
judgment debtor, that he was not properly served with such
order.

Hart v. Johnson, 43 Hun, 505, 7 St. Rep. 133, 26 Week.
Dig. 161.

It is no excuse to a third person upon whom a third party
order has been served to refuse to appear upon an adjourned
date because he was not personally served with the order deny-
388 SUPPLEMENTARY PROCEEDINGS

ing his motion to vacate the proceedings and fixing the later
date for his examination.

Howe, Matter of v. Stuart, 68 Mise. 352, 123 Supp. 971.

A judgment debtor will not be punished for contempt in dis-
posing of $166.66 received as wages, as being in violation of the
injunction clause in the order for his examination, where it
appears that such order was not served upon him, but learning
thereof, he voluntarily submitted himself for examination, but
the judgment creditor’s attorney was not present, and the lat-
ter afterwards obtained an order punishing him for contempt
in disposing of such property, since the order containing the
injunction not having been served, there was no contempt and,
moreover, stich wages were exempt in supplementary proceed-
ings.
Corde v. Laughlin, 120 St. Rep. 795, 86 Supp. 795.

The fact that an order in supplementary proceedings was not
served upon the judgment debtor in accordance with Sec. 2452,
Code of Civil Procedure is available to a witness in defense of
contempt proceedings against him for refusal to testify, as the
referee did not acquire jurisdiction of the proceedings.

People ex rel. Grant v. Warner, 51 Hun, 53, 20 St. Rep.
573, 3 Supp. 768.

A third party being adjudicated in contempt for refusing
to answer questions, cannot: raise the objection that the order
to show cause was not served upon him personally, where serv-
ice was made upon his attorney and the latter appeared for him
on the return day and procured an adjournment of the pro-
ceedings.

Hart v. Johnson, 43 Hun, 505, 7 St. Rep. 153, 26 Week.
Dig. 151.

In supplementary proceedings instituted against a corpora-
tion, a person served with the order and named as the presi-
dent thereof, but who was in fact not such officer, will not be
punished for contempt for refusal to be examined, where he
appeared before the presiding judge and stated that he was not.
CONTEMPT 389

an officer of the judgment debtor, whereupon the judge stated
that if he was not such officer he had a right to walk out of the
court room, but if it were determined that he was such officer
he could be punished for contempt, and the judge thereupon
stated that he would make no direction in the premises, but
suggested that he consult with his attorney and act upon his
advice, and thereafter, at the instance of the attorney for the
judgment creditor, he was sworn and stated that he was not an
officer of the judgment debtor.

Loft Holding Co. v. Eagle Waist Co. Inc., 201 St. Rep. 567,
167 Supp. 567.

A judgment debtor will not be punished for contempt in fail-
ing to turn over property to a receiver, pursuant to the latter’s
demand, where the order of appointment, although shown to
him by the receiver, was not served upon him or left with him,
since such acts did not constitute a foundation for contempt
proceedings.

Dowling v. Twombly, 147 St. Rep. 970, 113 Supp. 970.

(8) Lapse or Abandonment of Proceedings

A judgment debtor, who, having failed to appear on an ad-
journed day, was ordered to pay the sum of $12.00, referee
fees, and appear for examination at a time stated, cannot, on
appeal, obtain the reversal of such order, because the original
proceedings to punish him for contempt, instituted by order
to show cause, were allowed to become dormant and a new
order of the same nature obtained over a year thereafter, upon
the return of which the order in question was made, as the
proceedings must be deemed still in force.

Putnam v. Anthony, 7 St. Rep. 580.

A judgment debtor will not be punished for contempt for vio-
lation of the injunction contained in an order for her examina-
tion in supplementary proceedings on the ground of the aban-
donment of the latter, where her examination was completed
390 SUPPLEMENTARY PROCEEDINGS

and an adjournment taken to a day not fixed, and nothing fur-
ther was done until the expiration of over three years, when a
second order for the Judgment debtor’s examination was pro-
cured, and the proceedings to punish her for contempt in dis-
posing of certain articles of personal property were taken on the
ground that she had violated the first order, especially when it
appears that the judgment debtor obtained the advice of a lead-
ing attorney, and was informed by him that the injunction order
was no longer in force, and the judgment debtor’s husband had
abandoned her without support and the sale of property, con-
sisting of jewelry, was made to meet her urgent necessities.

Meyers v. Herbert, 64 Hun, 200, 45 St. Rep. 626, 19 Supp.

132, 22 Civ. Pro. Rep. 216.
_ It, is no defense to proceedings to punish a judgment debtor
for transferring his property in violation of the injunction
clause in an order for his examination in supplementary pro-
ceedings, that while the proceedings stood adjourned to a cer-
tain day, the judgment debtor obtained an order to show cause
why they should not be set aside with a stay of proceedings,
which motion was thereafter granted but the order entered
thereon was subsequently reversed on appeal, and this although
further adjournment of the proceedings was not had.

Woolf v. Jacobs, 36 Super. Ct. Rep. (4 J. & 8.) 408.

A judgment debtor cannot relieve himself from contempt in
transferring property in violation of the injunction contained
in the order for his examination in supplementary proceedings,
by claiming a lapse or abatement of the proceedings due to the
fact that the judge to whom the order was returnable was not
present at the appointed hour but did appear there before the
expiration of the hour.

Reynolds v. McElhone, 20 How. Pr. 454.

A judgment debtor will not be punished for contempt in dis-
posing of property contrary to the injunction clause contained
in the order for examination, where no steps were taken in the
matter of the examination from Nov. 1887 until April, 1891,
CONTEMPT 391

when a new order for the examination of the judgment debtor
was obtained, as it must be held that the proceedings under the
tirst order were abandoned.

Meyers v. Herbert, 64 Hun, 200, 45 St. Rep. 626, 19 Supp.
132, 22 Civ. Pro. Rep. 216.

A judgment debtor cannot excuse his contempt for refusing
to answer questions upon his examination, by reason of the fact
that the first examination took place May 14th, at which time
he was partially examined, but refusing to answer certain
questions the proceedings were adjourned to the 21st of the same
month, at which time the judgment debtor did not appear, al-
though the judgment creditor was present, and the motion to
punish the judgment debtor for contempt was not made until
the 7th of November following, as the interval between the last
adjournment and the time of the making of the motion to pun-
ish for contempt was not unreasonable and did not constitute
an abandonment of the proceedings.

Stanley v. Lovett, 14 Hun, 412.

(9) Unfair or Inconsistent Conduct of Judgment Creditor

A judgment debtor cannot be punished for contempt in dis-
obeying an order for his examination, where the attorney for
the judgment creditor informed him over the telephone that he
would hold the matter for thirty days, as he had promised, in
order to give him an opportunity to arrange his matters so as
to pay the judgment.

Seitz, Matter of, 56 Misc. 616, 107 Supp. 593.

A judgment debtor will not be punished for contempt in fail-
ing to appear for examination, at an adjourned date, where it
appears that he attended at court at least six times for examina-
tion, and on each occasion the proceedings were adjourned, at
the request of the judgment creditor; that he was examined at
length and signed his deposition, that at the time of his exam-
ination he requested that the same be closed, and was told by
392 SUPPLEMENTARY PROCEEDINGS

the attorney for the judgment creditor that he had no further
questions to ask, but desired to adjourn the proceedings to
examine other witnesses, and it appeared that the judgment
debtor’s counsel stated that he would appear for examination
at any time designated, which offer was not accepted.

Bernstein v. McCahill, 56 Mise. 460, 107 Supp. 161.

So, a judgment debtor cannot be punished for contempt in
failing to appear for examination at an adjourned hearing,
where he was a foreigner and had but slight knowledge of the
English language and testified in a foreign language, which
testimony was translated by the judgment creditor’s attorney
into English and written down by him, and after his examina-
tion on two different days he signed a consent for further ad-
journment on a day named, but in so doing supposed he signed
his testimony and did not understand that an adjournment had
been agreed upon, and as soon as he learned of the adjournment
immediately communicated with the judgment creditor’s attor-
ney and offered to appear for further examination, but such
offer was refused, especially where it is disclosed that the judg-
ment debtor earns but $8.00 per week, has a wife and four
children, and has no property liable to execution, as it cannot
be held that his acts were calculated to and did defeat any rem-
edy of the judgment creditor.

Amendola v. Zema, 93 Misc. 525, 157 Supp. 273.

A judgment debtor will not be punished for contempt for
failure to appear for examination, where he claimed that he
appeared at the hour named in the order and waited half an
hour, but no one appeared, but it appears that his default was
thereafter noted, and either before or directly after the default
was entered, he entered into an agreement with the judgment
creditor to pay the judgment in installments, which he there-
after carried out in part, especially where it appears that on
the day of such alleged default the attorney for the judgment
creditor sent a letter to the judgment debtor saying that he was
advised by his client that a settlement had been made, and
CONTEMPT 393

while the judgment debtor’s default was noted no advantage
would be taken of it.

Germansky, Matter of v. Guterman, 136 App. Div. 581, 121
Supp. 121.

And it has been held that the obtaining of a second order for
the examination of a judgment debtor prevents his punishment
for contempt in transferring property contrary to the injunc-
tion clause in the first order, as the obtaining of the second
order supersedes the first.

Gaylord v. Jones, 7 Hun, 480.

A judgment debtor will not be punished for contempt for
violating the injunction clause in the order for his examination,
where, after the institution of such proceedings he settled the
judgment with the assignee thereof prior to the service of the
papers in the motion for his punishment, notwithstanding the
fact that the judgment creditor had assigned the judgment
without allowing anything to his attorney, whom he had agreed
to pay one half of the judgment.

Avery v. Ackart, 20 Misc. 631, 46 Supp. 1085.

(10) Misnomer

The fact that the judgment upon which supplementary pro-
ceedings were based was rendered against a judgment debtor,
whose real name was ‘“‘Maryian,” in the name of “Mike,” will
not excuse his disobedience of such order on the ground of want
of jurisdiction in the court to render the judgment, where he is
known by both names; was registered at a hospital in the name
of “Mike” and told the judgment creditor and the person who
served the order that his name was “Mike,” since under such
circumstances he could have been sued by either name.

Korpoluskt, Matter of, 84 Misc. 96, 146 Supp. 859.

A judgment debtor cannot excuse his failure to appear for
examination pursuant to an order in supplementary proceedings
against him, on the ground that he was sued and the judgment
394 SUPPLEMENTARY PROCEEDINGS

was rendered in the name of ‘“Aldhouse” instead of his real
name “Oldhouse,” where it is shown that he was known by both
names interchangeably, through his own use of both forms of
spelling.

People ex rel. Aldhouse v. McCarthy, 41 Mise. 429, 84 Supp.
1062.

The fact that the judgment debtor’s name is wrongly stated
will not relieve him from contempt where he appeared and sub-
mitted to examination under said order.

Johns, Matter of, 1 N. Y. Law Bull. 75.

But a judgment debtor will not be punished for contempt in
refusing to obey an order for his examination in supplementary
proceedings, where the affidavit upon which the order was grant-
ed, stated that the Judgment was recovered against “Ira Weed
and Mary Weed” when in fact the transcript docketed in the
county clerk’s office was of a judgment against “Ira Weed and
Mrs. Weed.”

Kennedy v. Weed, 10 Abb. Pr. 62.

(11) Absence of Formal Order of Direction to Appear

A judgment debtor, failing to appear for examination at an.
adjourned day, cannot be punished for contempt, where it ap-
pears that on the return day of the order the judgment debtor
appeared, and, without being sworn, the proceedings were ad-
journed at his request to a certain day; that on the day before
such adjourned hearing he appeared at the office of the attorney
for the judgment creditor, signed a stipulation whereby the pro-
ceedings were to-be adjourned to a subsequent day named and
stated that he waived the direction of the referee to appear,
and agreed to appear at the newly adjourned day in person,
since there cannot be punishment for a contempt in supple-
mentary proceedings except upon violation of a specific direc-
tion of a judge or referee, personally delivered to the judgment
debtor.

Jones v. Rettig, 98 Mise. 487, 164 Supp. 730.
CONTEMPT B90

(12) Invalid Second Order

Where, on a motion to punish a judgment debtor for failure
to appear, the same was denied because the judgment. debtor’s
default was entered without waiting a half hour and the judg-
ment creditor was given leave to obtain another order for the
judgment debtor’s examination, which he did, and the judg-
ment debtor again defaulted, he will not be punished for con-
tempt, since the first proceeding was not discontinued, and
hence the second order was invalid because of the pendency of
the first proceeding.

Crystal v. Crystal, 154 St. Rep. 50, 120 Supp. 50.

But in another case it was held that a judgment debtor might
be punished for contempt in transferring property in violation
of the injunction clause in the order for his examination, not-
withstanding the fact that the judgment creditor had thereafter
obtained a second order for the examination of the judgment
debtor.

Walter v. Pecare, 32 St. Rep. 841, 11 Supp. 146.

A judgment debtor cannot excuse his refusal to obey an order
for his examination in supplementary proceedings because made
in continuation of an earlier order, proceedings under which
had been suspended by reason of his making a motion to vacate
the first order, which was denied and an adjournment of the
proceeding made, notice of which, however, was given only to
his attorney.

Amidon v. Walcott, 15 Abb. Pr. 314.

(13) Privileged Persons
(a) Foreign Consul

A foreign consul cannot be punished for contempt in failing
to appear pursuant to an order for his examination in supple-
mentary proceedings, since the courts of this state have no juris-
diction over him,
306 SUPPLEMENTARY PROCEEDINGS

Griffin v. Dominguez, 9 Super. Ct. Rep. (2 Duer) 656, 11
Leg. Obs. 285.

(b) Attorneys

An attorney will not be fined for contempt merely by reason
of the fact that he has evidenced mistaken zeal not combined
with deceit or other misconduct.

Bird v. Wessels, 153 St. Rep. 329, 119 Supp. 329.

An attorney, acting for a trustee of a judgment debtor, is
not guilty of contempt in procuring an order for the payment
of certain funds of the judgment debtor in the hands of a third
person, notwithstanding the fact that to his knowledge a pre-
vious order had been made in supplementary proceedings
against the judgment debtor mentioned and the person owing
said fund was restrained in a third party order from disposing
of property in his possession belonging to the judgment debtor
until further notice in the premises, where subsequent thereto,
an order was made in supplementary proceedings appointing a
receiver therein, as such latter order was an order in the pro-
ceedings, and any restraint thereafter desired should have been
inserted in that order.

People ex rel. Morris v. Randall, 73 N. Y. 416.

(D) Violation of Injunction

(1) Acts Constituting

The fact that a judgment debtor proceeds to judgment on x
claim in his favor, notwithstanding the fact that another judg-
ment creditor has instituted and has now pending a creditor's
bill with injunction forbidding the transfer of property by the
judgment debtor, does not constitute contempt.

Parker v. Wakeman, 10 Paige, 485.

A third person indebted to a judgment debtor, who deliber-
ately paid the debt to the judgment debtor’s wife, in violation
CONTEMPT 397

of the restraining order, after his examination under a third
party order, is guilty of a contempt and will be fined the
amount so paid.

Nichol v. Wilson, 175 App. Div. 667, 161 Supp. 870.

A judgment debtor who uses money to his credit on deposit
in a bank violates the injunction clause in the order for his
examination, and will be punished for contempt, where it ap-
pears that he had a verbal agreement with his mother by which
he was to conduct a business in her name, pursuant to which he
ordered goods as an agent and opened an account in the bank
in his name as agent, and on his mother’s death carried on the
same arrangement with the trustee of her property, and during
that time accumulated considerable property; carried on many
transactions in his own name; deposited money in the bank
arising from his personal business dealings, and mingled the
proceeds with those resulting from his business as agent, as he
must be regarded as the real owner of such deposits.

Harvey v. Arnold, 84 App. Div. 1382, 82 Supp. 155.

Where the alleged contempt of a judgment debtor consisted
in the payment of small sums of money, but it is not shown that
he had such money when the order was served upon him, he will
not be committed for contempt.

Protter v. Lovell, 91 Misc. 417, 155 Supp. 275.

A judgment debtor cannot be punished for contempt in vio-
lating the injunction clause in the order for his examination
where the disobedient act charged consisted in procuring a chat-
tel mortgage upon a diamond ring owned by him in place of a
previous chattel mortgage thereon to another person for a
smaller amount,—the latter person insisting that he must have
his money,—as the interest of the judgment debtor in the prop-
erty in question was not diminished or lessened.

Duffus v. Cole, 39 St. Rep. 838, 15 Supp. 370.

A judgment debtor will not be punished for contempt on the
ground that he has violated the injunction clause by disposing
of property, where the latter consisted of an insurance policy
398 SUPPLEMENTARY PROCEEDINGS

which he had assigned prior to the institution of the supplemen-
tary proceedings, and the alleged disobedient act consisted of
collecting the money on the insurance policy and paying it over
to the assigriee, since the title to the property had passed out of
the debtor before the service of the order upon him.

Rhodes v. Linderman, 63 Hun, 626, 43 St. Rep. 520, 17
Supp. 628.

So, a judgment debtor will not be punished for contempt for
disposing of property contrary to the injunction clause con-
tained in the order for his examination, where, having procured
a loan on an insurance policy upon his life, payable to his wife,
which policy was already pledged for more than its value, he
used the moneys so obtained in repaying loans upon such policy,
acting in so doing, simply as agent for the lender.

Hall v. Hess, 97 Misc. 331, 161 Supp. 418.

And a judgment debtor will not be punished for contempt in
disposing of the proceeds of a loan obtained upon a policy of
insurance upon his life payable to his wife, on the theory that
by reason of the terms of the policy the beneficiary could be
changed without the consent of his wife, and therefore the policy
could be reached in supplementary proceedings, where the only
evidence of such a provision in the policy was the statement
of an agent of the insurance company without purporting to
be a quotation from the policy, that the latter was payable to
the judgment debtor’s wife, with right in the insured to change
the beneficiary without his wife’s consent.

Jacobs v. Strumwasser, 84 Misc. 28, 145 Supp. 916.

A judgment debtor, who, after the service of an order in sup-
plementary proceedings restraining him from transferring his
property, pays out of his bank account a sum in excess of the
amount of the fine imposed on him for contempt, may be prop-
erly adjudged guilty of contempt, and a fine will stand.

Magille v. Leonard, 102 App. Div. 367, 92 Supp. 656.

A judgment debtor cannot be punished for contempt for vio-
CONTEMPT 399

lating the injunction clause contained in the order for his ex-
amination by reason of his failure to stop payment on checks
given before the institution of the supplementary proceedings,
but on which payment was not made until thereafter. Such
checks, having been given to pay a valid indebtedness it would
be a fraud for the judgment debtor to stop payment thereof.

Fitzgibbons v. Smith, 41 St. Rep. 678, 16 Supp. 410.

A third party, holding a bond and mortgage as security for a
debt owed to it by a judgment debtor, and upon whom a third
party order is served with a restraining clause, is not guilty of
contempt for transferring such bond and mortgage to secure
payment of its debt.

Sullivan v. U. 8. Gas Fiature Co., 184 App. Div. 658, 119
Supp. 532.

A judgment debtor is guilty of disobedience of the injunction
contained in an order for his examination in supplementary
proceedings, where, after the service of the same he made a
general assignment of his property to creditors.

National Wall-Paper Co. v. Gerlach, 15 Misc. 640, 37 Supp.
428; Canda v. Gollner, 73 Hun, 498, 56 St. Rep. 153, 26 Supp.
449.

But a judgment debtor cannot be punished for contempt for
filing a petition in bankruptcy after the institution of supple-
mentary proceedings against him.

Norton v. Bielby, 86 Misc. 644, 149 Supp. 592; Kepecs,
Matter of, 157 St. Rep. 872, 123 Supp. 872.

He has a legal right to take advantage of the Bankruptcy Act,
and this cannot be regarded as a violation of the injunction
clause contained in the order for his examination, since the
transfer of his property to a trustee in bankruptcy was by opera-
tion of law.

Kepecs, Matter of, 157 St. Rep. 872, 123 Supp. 872.

And an attorney cannot be punished for contempt in advising
his client, undergoing an examination in supplementary pro-
400 SUPPLEMENTARY PROCEEDINGS

ceedings, to file a petition in bankruptcy, or because he actually
did file such a petition for his client.

Kepecs, Matter of, 157 St. Rep. 872, 123 Supp. 872.

While the mere confession of judgment will not constitute a
violation of the injunction clause of an order in supplementary
proceedings, yet if accompanied by other acts showing an intent
to defraud a prior judgment creditor, the transaction consti-
tutes a violation of the injunction contained in the latter’s order,
and the judgment debtor will be punished for contempt.

Ross v. Clussman, 5 Super. Ct. Rep. (3 Sandf.) 676.

A judgment debtor will be held guilty of contempt in trans-
ferring property in violation of the injunction contained in an
order for his examination in supplementary proceedings where
he executes a conveyance of real estate which stood in his name,
notwithstanding the fact that such real estate was purchased
with money of his wife advanced for that purpose.

Wool v. Jacobs, 36 Super. Ct. Rep. (4 J. & S.) 408.

A judgment debtor, who had leased premises and subrented
the same, will be punished for contempt, where she directed
her subtenant to pay rent due to her to the owner of the prem-
ises, it not appearing that such payment was made by the sub-
tenant to the owner on such subtenant’s own behalf, or for the
protection of the latter’s possession but merely in obedience to
the directions of the judgment debtor.

Browning v. Chadwick, 30 Misc. 420, 62 Supp. 476.

A judgment debtor will be punished for contempt in trans-
ferring personal property contrary to the terms of the injunc-
tion clause in the order for his examination served upon him,
notwithstanding the fact that he delivered the same as a retainer
fee to his attorney, who refused to do anything for him unless
such property was delivered to him.

Deposit Nat. Bank v. Wickham, 44 How. Pr. 421.

A widow disposing of the proceeds of an insurance policy on
the life of her husband, and disposing of mortgaged chattels in
her possession with the consent of the mortgagee, who released
CONTEMPT 401

them from the lien of the mortgage, is guilty of contempt, as
being in violation of the injunction clause contained in the
order for her examination in supplementary proceedings.

Millington v. Fox, 13 Supp. 334.

«\ person cannot be punished for contempt in disposing of
property in violation of an injunction obtained at the com-
mencement of a creditor’s suit, who, before the commencement
of the suit, procured an advance on money due him from a
third person, and gave a draft on the person owing him to pay
it when due, which was received by such person, but there was
a necessary indorsement to be made by the judgment debtor on
a check before such money could be paid, which indorsement the
judgment debtor made after the service of the injunction, as
such indorsement cannot be regarded as even a constructive vio-
lation of the injunction.

Ireland v. Smith, 3 How. Pr. 244.

A judgment debtor will not be punished for contempt in pay-
ing a loan from his wife, where the payment was made on the
same day that the order for his examination was served upon
him, but earlier in the day.

Sturm v. Parsons, 134 Supp. 584.

A judgment debtor is punishable for contempt in violating
an order restraining his transfer of property “until further
order of the court,’ where it appeared upon his examination,
that he had obtained letters of administration on his son’s estate
and had brought action against a railroad company for the
negligent killing of such son, and after such examination he
assigned all his interest in the estate of such deceased son, as
the necessary effect of the transfer was to impair and prejudice
the remedies of the judgment creditor.

Wynkoop v. Myers, 28 St. Rep. 81, 7 Supp. 898.

A judgment debtor is properly fined for contempt in trans-
ferring his property in violation of the injunction clause in an
order for his examination in supplementary proceedings, where

he testified on the examination that in 1887 he became entitled
Garnishee—26.
402 SUPPLEMENTARY PROCEEDINGS

to the sum of $713.00 upon an insurance upon the life of his
brother; that he received a check for that insurance on Septem-
ber 7th of the same year, and used the money obtained upon
the check in payment of other debts than that owing to the
plaintiff, and in his affidavit made in opposition to the motion
to punish him for contempt in using the insurance money in
such manner, he stated that he had assigned the amount on or
before the Ist day of July, 1887, to Morris Mayer, an attorney
at law, who was his friend, and that this assignment was made
to pay Bayer $500.00 previously borrowed from him and
$175.00 to pay Charles H. Dyatt his attorney in this proceed-
ings, and that the amount actually received by himself would
not exceed the sum of about $20.00, since such affidavit, in view
of the testimony mentioned, was unreliable and not worthy of
belief.

Walter v. Pecare, 32 St. Rep. 841, 11 Supp. 146.

In the absence of positive showing of bad faith, a judgment
debtor may undoubtedly confess judgment in favor of another
creditor, and the latter may levy on property of the judgment
debtor before a receiver is appointed under a ereditor’s bill
prosecuted by another creditor.

Lansing v. Easton, 7 Paige, 364.

But it was held that it constitutes a violation of the injunction
clause in an order in supplementary proceedings for a judg-
ment debtor to confess a judgment in a foreign state where he
has real estate and upon which the judgment becomes a lien.

Fenner v. Sanborn, 37 Barb. 610.

(2) Excuse or Defense

(a) After-acquired Property

A judgment debtor cannot be punished for contempt in dis-
posing of property acquired after the service of the order con-
taining an injunction clause.
CONTEMPT 403

Rawsford v. Temple, 3 Mise. 294, 22 Supp. 937; McGivney
v. Childs, 41 Hun, 607, 5 St. Rep. 251; Potter v. Low, 16
How. Pr. 549.

In order to warrant the punishment of a judgment debtor for
disposing of property earned, it must be affirmatively shown
that such money had been earned or was due him when the
order containing the injunction clause was served upon him.

Gerregant v. Wheelwright, 3 Abb. N. 8. 264; Potter v. Low,
16 How. Pr. 549.

A judgment debtor will be regarded as guilty of contempt
in violating the injunction clause in the order for his examina-
tion, where he collects rent from his tenant under an existing
lease and disposes thereof, as the rent cannot be regarded as
after-acquired property, but an incident growing out of the lease
belonging to him at the time of the granting of the order.

Stevens v. Dewey, 18 App. Div. 312, 4 Ann. Cas. 40, 43
Supp. 130; Lertora v. Reimann, 87 St. Rep. 921, 53 Supp. 921,
5 Ann. Cas. 19.

And this is so whether the lease is for a term or only from
month to month.

Lertora v. Reimann, 87 St. Rep. 921, 53 Supp. 921, 5 Ann.
Cas. 19.

(b) Exempt Property

A judgment debtor will not be punished for contempt in dis-
posing of his earnings by reason of the fact that he did not
claim the same upon his examination, as he is not obliged to
bring the facts constituting the exemption to the attention of
the court or judge before applying his earnings to relieve the
necessities of his family. It is enough that he justifies their
appropriation when called upon to transfer the money to the
sheriff or receiver.

Hancock v. Sears, 98 N. Y. 79, 4 Civ. Pro. Rep. 255.

A judgment debtor disposing of property after service of an
order for his examination with the usual injunction clause, in
404 SUPPLEMENTARY PROCEEDINGS

order to escape punishment for contempt, must show on his
examination that such moneys were earned for personal serv-
ices and come within the protection of Sec. 2463, Code of Civil
Procedure.

Goldberger v. Tack, 142 St. Rep. 1047, 108 Supp. 1047.

It is doubtful if this case is good law, in view of the preceding
Court of Appeals case.

A judgment debtor will be punished for contempt, who, after
the service of an order in supplementary proceedings upon him,
disposed of a sum of money in excess of the judgment in pay-
ment of wages, household expenses and other personal and
business. expenses, where he received such money from his
business as iron worker, in which he had a shop, numerous ap-
pliances and a motor truck, and employed three and some times
more workmen, as such money cannot be regarded as consti-
tuting earnings within the meaning of Sec. 2463 of the Code.

Schafer v. Tyroler, 94 Misc. 127, 158 Supp. 1090.

So, a judgment debtor in supplementary proceedings cannot
excuse his payment of a sum obtained by him from the proceeds
of a business, although he paid out the same for rent of a place
of business, a part of which was used by his family as a resi-
dence, as the statute in no wise exempts such moneys.

Aschemoor v. Emmvert, 5 N. Y. Law Bull. 80.

Likewise, a judgment debtor cannot justify the disposition
by him of the proceeds of the sale of a calf and the receipts of
a dairy consisting of fifty-five cows, being his share of such
products as tenant of a farm, where he required the assistance
of two or more employees in carrying on the farm work, and the
expenditure of such moneys for an ordinary debt will render him
liable for punishment for contempt for violating the injunction
clause contained in the order for his examination, as such prop-
erty cannot be regarded as “earnings for personal services”
within the meaning of Sec. 2463 of the Code.

Teelon, Matter of, 87 Misc. 361, 150 Supp. 729.

A judgment debtor paying a debt constituting a loan for
CONTEMPT 405

moneys borrowed by him and used in the support of his family,
cannot escape punishment for contempt on the ground that the
money so paid was a part of his earnings within sixty days, and
therefore exempt, as the return of the moneys loaned was the
payment of an ordinary indebtedness, which was prohibited by
the injunction order.

Gillett v. Hilton, 11 Civ. Pro. Rep. 108.

An order imposing a fine on a judgment debtor for expending
moneys in violation of the injunction clause in the order for
his examination in supplementary proceedings, and providing
that as to the balance of the amount disclosed by the examina-
tion to have been paid out, the application is denied, indicates
that such excess must have been expended for necessaries ex-
empt in the proceedings, and therefore such order will be sus-
tained on appeal.

Kemp v. Elliott, 19 Mise. 710, 43 Supp. 501,

(c) Disputed Ownership

In order to justify the punishment of a judgment debtor for
contempt in transferring property it must be clearly established
that such property belonged to him.

Dean v. Hyatt, 5 Week. Dig. 67; Protter v. Lovell, 91 Mise.
417, 155 Supp. 275.

In the first-mentioned case, the judgment debtor had drawn a
check at the request of his wife upon a bank account standing
in her name to pay her debt and it was shown that such bank
account actually belonged to her. It was held that he was not
liable to punishment for contempt.

And where the title to the property which he is charged with
having disposed of, is contested, there can be no contempt, as
the remedy of the judgment creditor is to bring an action to
determine the ownership of the property.

Protter v. Lovell, 91 Mise. 417, 155 Supp. 275.

It is not proper for an order to be granted punishing a judg-
406 SUPPLEMENTARY PROCEEDINGS

ment debtor for contempt in disposing of property, where it
appears that subsequent to the service of the order for his
examination in supplementary proceedings he conveyed by bill
of sale personal property owned by him to a creditor claiming
to be a bona fide purchaser for value, as the judge cannot deter-
mine such disputed ownership in such a proceeding.

Teller v. Randall, 26 How. Pr. 145, 40 Barb. 242.

So, where it appears that the ownership of money alleged to
belong to a judgment debtor, and disposed of after service of
an order for his examination, is claimed by a third person, the
judge has no right to determine the controversy as to title, and
adjudge the judgment debtor guilty of contempt.

Becker, Matter of, 36 Misc. 822, 73 Supp. 577.

.,A. judgment debtor who had a deposit in a bank in his own
name “in trust” for another will be held in contempt for
drawing the same out and expending it, notwithstanding the
fact that it may be that the equitable title to the propery was
not in him, since he was invested with the legal title to the
money when the order was served upon him and when it was
drawn out he must be regarded as guilty of contempt in violat-
ing the restraining clause of the order for his examination.

People ex rel. Noel v. Kingsland, 3 Abb. Ct. App. Dec. 526,
& Keyes, 325; Jackson v. Murray, 25 App. Div. 140, 49 Supp.
195, 5 Ann. Cas. 78.

A judgment debtor will :ot be punished for contempt in giv-
ing a chattel mortgage upon property alleged to be owned by
him, where the same was given by him and his wife in place
of a former mortgage, which had become invalid as to creditors
because not renewed after the expiration of one year, since
such conveyance is good as against the receiver until set aside,
and this is especially the case, where there is a substantial dis-
pute as to whether the judgment debtor owned such property.

Protter v. Lovell, 91 Mise. 417, 155 Supp. 275.

In view of the fact that a judgment debtor will not be directed
CONTEMPT 407

to turn over property, the possession or title to ,which is dis-
puted, he cannot be punished for contempt in disposing of
property which came into his hands while acting as executor,
notwithstanding the fact that some of this property may belong
to him, but an accounting has not been made by him to disclose
that fact.

Gerton Carriage Co. v. Richardson, 6 Misc. 466, 27 Supp.
625,

Before a third party in supplementary proceedings can be
punished for contempt in disposing of property in his hands
alleged to belong to the judgment debtor there must be clear
proof that such money actually belongs to the judgment debtor.

Duryea, Matier of, 17 App. Div. 540, 45 Supp. 703.

Thus, an attorney will not be punished for contempt’ in
disposing of money in his hands, where he testified in third
party proceedings that he held money to the credit of an action
in which he was attorney for the judgment debtor, who was
plaintiff in such action, but he did not state that the money
belonged to the judgment debtor, and the only evidence as to
the ownership of such money was that the judgment debtor
and his wife after the examination, assigned the money to the
person to whom the attorney paid it, and the judgment debtor
had assigned his interest in the action to his wife.

Duryea, Matter of, 17 App. Div. 540, 45 Supp. 708.

(d) No Restraining Clause

A judgment debtor cannot be punished for contempt in dis-
posing of property, notwithstanding the fact that a receiver
in supplementary proceedings of his property has been ap-
pointed, of which appointment he had notice, where there was
no restraining clause in such order of appointment.

Eckert v. Truman, 163 App. Div. 17, 148 Supp. 48.
408 SUPPLEMENTARY PROCEEDINGS

(E) Misconduct of Persons Testifying

(1) Refusal to Answer

A judgment debtor may be punished for contempt in refus-
ing to answer questions pursuant to oral direction of the referee,
since Sec. 2457 of the Code provides that any person who
refuses or neglects to obey an order of a judge or referee, or
an oral direction given directly to him by a judge or referee
in supplementary proceedings, may be punished as for a con-
tempt.

Kendrick v. Wandall, 88 Hun, 518, 34 Supp. 976.

A judgment debtor will not be punished for contempt in
refusing to answer questions, where no referee having been
appointed, he was sworn by the judge and his examination
took place in an adjoining room not in the presence of the court,
and he was further so examined on several subsequent days,
to which the proceedings were adjourned; thereafter the
parties went before the judge, when the judgment creditor’s
attorney complained that the judgment debtor refused to answer
questions, upon which the judge instructed him that all ques-
tions must be answered; the judgment debtor swore that he
answered all questions and the record showed no objection
to the answers made, and there was no showing that the judg-
ment debtor was directed by the judge to answer any specific
question.

Last River Bank v. De Lacy, 37 Mise. 765, 76 Supp. 9927.

A judgment debtor will not be punished for contempt in
refusing to answer questions as to incumbrances upon his prop-
erty some time before the examination, where he replies that
he is unable to give the information and there is no evidence
of bad faith upon his part.

Wicker v. Dresser, 14 How. Pr. 465.

There is no warrant for the institution of supplementary
proceedings before the return of execution upon an order
CONTEMPT 409

granted during the pendency of a divorce action requiring the
husband to pay the wife a stated sum weekly, and the husband
will not be punished for contempt in refusing to answer ques-
tions upon the examination under such order.

Ostrom v. Ostrom, 38 Misc. 232, 77 Supp. 594.

An attorney, upon refusing to answer certain questions as
to the consideration and circumstances attending the execution
of a mortgage given to him by the grantee of real estate con-
veyed by the judgment debtors, on the ground of privilege
under Sec. 835 of the Code, cannot defeat contempt proceedings
since a claim of such privilege by reason of the witness being
the attorney for the mortgagor was lost by the witness becoming
a party to the transaction in taking such mortgage in his own
name.

Foster v. Wilkinson, 37 Hun, 242.

A witness in supplementary proceedings cannot refuse to
answer questions concerning property, which he claims he pur-
chased or obtained from the judgment debtor. The mere fact
that he claims ownership of the property will not defeat his
examination as to the particulars of the transaction.

Sanford v. Carr, 2 Abb. Pr. 462; Lathrop v. Clapp, 40 N. Y.
328; Mechanics’ & Traders’ Bank v. Healy, 14 Week. Dig. 120.

A witness examined in supplementary proceedings, cannot,
on the appeal from an order punishing him for contempt in fail-
ing to answer questions, interpose for the first time the objec-
tion that the execution on which the proceedings was founded
was not sufficient.

People v. Martson, 18 Abb. Pr. 257.

A witness in supplementary proceedings may refuse to an-
swer questions propounded to him which he considers improper,
until such time as the court shall direct him to answer.

Price v. Creme De Mohr Co., 78 Misc. 42, 137 Supp. 732.

A witness will not be punished for contempt in refusing to
answer a question as to entries in a book under specified dates,
where the court has previously determined in the same pro-
410 SUPPLEMENTARY PROCEEDINGS

ceedings that the judgment creditor is not entitled to an in-
spection of such book.

Franklin v. Judson, 99 App. Div. 323, 91 Supp. 100.

A witness in supplementary proceedings cannot excuse his
refusal to answer questions propounded to him in such pro-
ceedings, on the ground that there was no written order re-
quiring him to answer each specific question, where it appears,
that on his refusal to answer certain questions not in the
presence of the judge granting the order, the parties appeared
before the judge, to whom the attorney for the judgment credi-
tor and receiver stated that the witness had refused to answer
certain questions, whereupon, after argument, the judge
directed that he disclose the facts about the transaction in
‘question, after which the witness was asked the same questions
and declined to answer in like manner as before, and again
being taken before the judge the latter stated that the only
relief he could grant was to direct the witness to answer and
if he failed to commit him for contempt, and the witness again
refusing, was brought before the court by writ of attachment,
upon which he answered to written interrogatories acknowledg-
ing the accuracy of the record setting forth the facts mentioned.

People ex rel. Roache v. Hanbury, 162 App. Div. 337, 147
Supp. 851.

(2) Evasive Answer

A witness in supplementary proceedings will not be punished
for contempt because of denial of knowledge as to where the
judgment debtor was located; and any knowledge as to its
property and accounts, where he testified to the place of
business of the latter until it went out of business; furnished
a statement of its property, and produced its books, which dis-
closed that there were no outstanding accounts, especially where
he answered all questions put to him in the actual presence of
the court, and the misconduct charged took place during the
court’s absence.
CONTEMPT 411

Price v. Creme De Mohr Co., 78 Mise. 42, 187 Supp. 782.

Although the answers of a judgment debtor upon his ex-
amination in supplementary proceedings, were evasive and
contradictory, his punishment for contempt is properly denied,
where it is shown that he was unable to read and to understand
the questions.

Vosper v. Monkash, 162 St. Rep. 624, 128 Supp. 624.

A judgment debtor will be punished for contempt where his
conduct upon the examination is insolent and audacious; he
evades the questions, and denies knowledge of facts, which he
must have known; he admits having purposely refrained from
.keeping records of his transactions because he knew that they
were to be inquired about in supplementary proceedings, and
he stated that he had destroyed numerous checks drawn by
him since the judgment was rendered, as a clear case of con-
tempt is made out, authorizing punishment under Sec. 770,
Judicary Law. .

Becker, Matter of v. Gerlich, 72 Mise. 157, 129 Supp. 614.

Although a judgment debtor upon his examination in sup-
plementary proceedings gives evasive answers, he cannot be
punished therefor, under Sec. 2457 of the Code, where the judg-
ment creditor made no objection to the answers at the time they
were given and did not request the court, before whom the ex-
amination was held, to direct the judgment debtor to make
more specific answers.

Shorwitz v. Caminez, 152 App. Div. 758, 187 Supp. 545.

Punishment as for civil contempt under Sec. 758, subd. 8
Judiciary Law, authorizing punishment where any proceeding
for contempt has been usually adopted to enforce a civil remedy,
is not proper, where the misconduct charged consists of evasive
answers by the judgment debtor, and his refusal to answer other
questions, where the questions not answered related to matters
not necessarily within his knowledge or were immaterial, and at
the time of such examination the judgment creditor made no
412 SUPPLEMENTARY PROCEEDINGS

objection to the answers and gave no evidence of his dissatisfac-

tion therewith.
Shorwitz v. Caminez, 152 App. Div. 758, 187 Supp. 545.

(8) False Testimony

A judgment debtor cannot be punished for contempt, where
he answers all questions propounded to him without evasion,
although he may not have answered all of the questions truth-
fully.

Silberman Dairy Co. v. Econopoully, 177 App. Div. 97, 163
Supp. 824. :

A judgment debtor will not be punished for contempt for
answering falsely upon his examination in supplementary pro-
ceedings, where he testified thereon that he owned no real
estate, but it was shown that subsequent to the giving of such
testimony he conveyed certain real estate situated in New
Jersey, but it appears that he really then had no interest in
the property, the deed in question being executed merely as an
accommodation to the person to whom the property had been
sold before the institution of the supplementary proceedings.

Alese v. Markowitz, 156 App. Div. 906, 141 Supp. 4.

A judgment debtor cannot be punished for contempt in testi-
fying upon his examination that he had never transferred anv
property to his brother, when, as a matter of fact he had given
him a bill of sale of a saloon two weeks prior thereto, since
such false swearing interposed no obstacle to any proceedings
against the brother therefor and cannot be said to have defeated,
impaired, impeded, or prejudiced any remedy the judgment
creditor may have had against the assigned property, which was
essential in order to warrant punishment for contempt.

Bernheimer v. Kelleher, 31 Mise. 464, 64 Supp. 409.

The mere fact that a judgment debtor commits perjury on his
examination in supplementary proceedings, will not warrant his
punishment for either civil or criminal contempt, especially
CONTEMPT 413

where it is not shown that any rights of the judgment creditor
have been impaired, impeded or defeated.
Saggese v. Virgilo, 140 St. Rep. 1100, 106 Supp. 1100.

(4) Failure to Produce Books

A judgment debtor subpoened to produce books on his ex-
amination in supplementary proceedings will be punished for
contempt in refusing so to do, where he gives no valid reason
for such refusal.

Friedman v. Newman, 120 St. Rep. 735, 86 Supp. 735.

A witness will be punished for contempt in refusing to
produce papers alleged to relate to a fraudulent transfer be-
tween him and the judgment debtor as directed by a subpoena
duces tecum served upon him.

Champlin v. Stoddart, 17 Week. Dig. 76.

(5) Refusal to Sign Testimony

A judgment debtor, refusing to sign, or swear to his testi-
mony given upon his examination in supplementary proceed-
ings, may be punished for contempt.

Gumpel v. Gurvitch, 102 Mise. 536, 169 Supp. 135.

But if, upon the examination of a witness in supplementary
proceedings, the testimony actually given has been erroneously
taken down the witness will not be punished for contempt in
refusing to subscribe the referee’s minutes even though the
falsity be shown by a supplementary entry in the minutes.

Sherwood v. Dolen, 14 Hun, 191.

(F) Disobedience of Order to Pay Money or Deliver Property

(1) Particular Inslances

Contempt proceedings will not lie against a judgment debtor
for his failure to deliver property on demand to the receiver,
414 SUPPLEMENTARY PROCEEDINGS

where such demand was accompanied merely by the service of
the order appointing the receiver, but no order directing such
delivery was obtained.

Fromme v. Jarecky, 19 Mise. 48, 48 Supp. 1081; Tunkey
v. Langdon, 60 How. Pr. 180; Watson v. Fitzsimmons, 12
Super. Ct. Rep. (5 Duer) 629.

And it is not proper to punish a judgment debtor for con-
tempt in collecting and retaining money which the receiver
claims, without there having been an order granted requiring
the delivery of such property.

Holmes v. O’Regan, 68 App. Div. 318, 74 Supp. 10.

A person directed to deliver property alleged to belong to the
judgment debtor pursuant to an order under Sec. 2447 of the
Code must either obey the same or make application for modifi-
cation thereof.

Kantor Bros. v. Wild, 98 Misc. 438, 158 Supp. 115.

If the judge determines that a judgment debtor has property
that should be applied towards the payment of the judgment,
he may punish him for refusal so to apply it, notwithstanding
the fact that he swears upon his examination that he has no
interest in the property in question.

Pester, Matter of, 2 Code Rep. 98.

A third party having a certain quantity of liquors and cigars
of the judgment debtor, presumably being in the first instance
in the original boxes, will not be punished for contempt in not
delivering over such boxes with the liquors and cigars, where
it is not shown that at the time of the service of the order for
such delivery he was still in possession of the boxes.

Richie v. Bedell, 22 Week. Dig. 563.

A judgment debtor will not be punished for contempt in
refusing to comply with the demand of a receiver in supplemen-
tary proceedings to pay a sum for the expenses of the receiver-
ship, where the receiver had presented a claim to the executor
under a will giving the judgment debtor a legacy, for the
amount due up to the time of the receiver’s appointment, and
CONTEMPT 415

also the expenses of the receivership to be paid out of such
legacy, but the surrogate made a decree denying the item for
expenses and directed that the executor pay the amount due
at the time of the appointment to the receiver and pay the
balance of the legacy to the judgment debtor, which allowance
the executor accepted and gave a satisfaction of the decree, as
the remedy of the receiver was to appeal from the decree of
the surrogate.

Monahan v. Fitzpatrick, 16 Misc. 508, 39 Supp. 857.

The order appointing a receiver in supplementary proceed-
ings must be filed as required by Secs. 2467 and 2468 of the
Code, and if that is not done the judgment debtor cannot be
punished for contempt in disobeying the provisions of the order
appointing the receiver in respect to paying over money to the
latter.

Bareither v. Brosche, 19 Civ. Pro. Rep. 446, 18 Supp. 561.

And a judgment debtor refusing to turn over property to a
receiver in supplementary proceedings, pursuant to an order of
a judge, will not be punished for contempt, where the receiver
had failed to file the order of his appointment in the county
where the transcript of the judgment was filed, as provided
by See. 2467 of the Code, since by failing so to do the receiver
had never qualified and could not act.

Klatzkie v. Kimpel, 206 St. Rep. 711, 172 Supp. 711.

Punishment of a judgment debtor for refusal to convey prop-
erty to a receiver in supplementary proceedings, pursuant to
an order of the court, will be reversed on appeal, where the
moving affidavit by the receiver recited his appointment; that
he had duly qualified and had ever since been the duly ap-
pointed, qualified and acting receiver of the judgment debtor,
and the papers on the appeal contain a statement that a certi-
fied copy of the order appointing the receiver was served, but
nothing appears to show by whom the order was made or from
what source the certified copy came, as there is not a sufficient
showing that the order, or a certified copy thereof, was filed
416 SUPPLEMENTARY PROCEEDINGS

in the office of the clerk of the county where the judgment roll
in the action has been filed, as directed by Sec. 2468 of the
Code.

Moyer v. Moyer, 7 App. Div. 528, 40 Supp. 258.

A judgment debtor, ordered to deliver over a certain ring to
the 1eceiver appointed in supplementary proceedings, who
practiced a deceit upon the court by delivering a worthless
ring in pretended compliance with the order, will be punished
for contempt, and may properly be ordered to deliver the orig-
inal ring or pay $50.00, the value thereof, with motion costs,
or in default, to be committed to prison.

Blumenthal, Matter of, 22 Misc. 704, 50 Supp. 49.

A third person, directed by an order under Sec. 2447 of the
Code to pay over money alleged to belong to the judgment
debtor, will not be punished for contempt for disobedience
thereof, where he applied for modification of the order, and
secured it.

Kantor Bros. v. Wild, 98 Mise. 438, 158 Supp. 115.

(2) Hxcuse

(a) Substantial Dispute

A personal holding property under the terms of an overdue
chattel mortgage from a judgment debtor cannot be punished
for contempt for failing to turn over the property to the re-
ceiver in supplementary proceedings, as there is a substantial
dispute as to ownership, within the meaning of Sec. 2447 of
the Code.

Maguire v. Bean & Co, Inc., 177 St. Rep. 753, 143 Supp.
753.

Where, upon the hearing of a motion to punish a judgment
debtor for refusing to turn over certain property to a receiver,
a third person, claiming to own the property, contested said
motion, being represented by the same attorney who appeared
CONTEMPT 417

for the judgment debtor, but there was no written claim or
documentary proofs of ownership in such third person, the
judge cannot make an order adjudging the judgment debtor in
contempt and directing him to turn over the property, unless,
within a certain time, the claimant should establish before a
referee that he is the legal owner of the property, as there is
no “substantial dispute” within the meaning of Sec. 2447, Code
of Civil Procedure.

Durkee & Co. v. Bonnell, 159 St. Rep. 790, 125 Supp. 790.

After the making of a default order adjudging a judgment
debtor guilty of contempt in refusing to turn over property
as directed in a previous order, granted upon notice to the
judgment debtor, the latter cannot raise the question of title
in him to the property, since such order for delivery is con-
clusive upon that point until set aside.

Goldreyer v. Shatz, 148 St. Rep. 339, 114 Supp. 339.

There is no authority for the making of an order requiring
a judgment debtor and her attorney to deliver up the possession
of a stock certificate, where the same has been transferred by
the judgment debtor to her son, even though such transfer was
colorable.

Eckert v. Truman, 163 App. Div. 17, 148 Supp. 48.

(b) Inconsistent Conduct of Judgment Creditor

A pledgee of a bond and mortgage holding the same as
security for a debt owing it by the judgment debtor, and di-
rected by an order in supplementary proceedings to turn over
the same to the receiver appointed in the proceedings, upon
payment by the latter of the amount due it, cannot be punished
for contempt, where it delivered such bond and mortgage to
its attorney, who held them for two weeks during which time
he expressed his willingness to comply with the order, but was
informed by the attorney for the judgment creditor that he
did not intend to take any further steps in the matter, where-

Garnishee—27.
418 SUPPLEMENTARY PROCEEDINGS

upon the bond and mortgage were transferred to a third person
for value.

Sullivan v. U. 8. Gas Fixture Co., 184 App. Div. 658, 119
Supp. 532.

(G) Interference with or Resistance to Receiver

Judgment debtors, knowing that chattels in the hands of
a receiver appointed in supplementary proceedings were
claimed by him, who were present and assumed control of such
property after an auctioneer had taken the same from the re-
ceiver, will be fined for contempt, since thereby they were
guilty of an overt act justifying their punishment.

Verdi v. La Russo, 172 St. Rep. 568, 3 Civ. Pro. Rep. N.
S. 18, 188 Supp. 568.

A judgment debtor will not be punished for contempt for
collecting and retaining money under a contract, where all the
direct evidence tends to show that he was then and had been
for years simply acting as agent for his wife and the latter
strongly maintains that she is the owner of such money, as
the title to the property cannot be determined in such summary
proceedings.

Holmes v. O’Regan, 68 App. Div. 318, 74 Supp. 10.

In view of Sec. 2468, Code of Civil Procedure, providing
that upon the filing of the order appointing a receiver in sup-
plementary proceedings in the county where real estate is
situated, the receiver becomes vested with title thereto, it is a
contempt for the judgment debtor to interfere with the collec-
tion of rents from premises not occupied by him, by forbidding
the tenants from paying such rent to the receiver and forcibly
preventing the latter from ascending the stairs of one of the
houses by pushing him away with one of his hands.

Vermont Marble Co. v. Wilkes, 30 Supp. 381.
CONTEMPT 419

A judgment debtor, directed in the order appointing a re-
ceiver, to deliver to the latter, all property in his possession or
under his control belonging to him, and not exempt under Sec.
2463 of the Code, will be adjudged guilty of contempt in
refusing to surrender to the receiver posscssion of a store
leased by him, and in which he had considerable stock of his
own, and he cannot urge in justification of such resistance that
other goods consigned to him for sale and not owned by him
were commingled with his own goods.

Camerick, Matter of, 34 App. Div. 31, 53 Supp. 1084.

(H) Suing Receiver without Leave

A person not made a party to supplementary proceedings
will not be punished for contempt in suing the receiver therein
without leave of court for taking from him property which he
honestly claims to own.

Brien v. Light, 36 Misc. 112, 72 Supp. 1087.

Likewise, a person, from whom a receiver in supplementary
proceedings takes forcible possession of property, upon his
protestations of ownership, is not guilty of contempt in suing
for the recovery thereof and obtaining a judgment against
him without first having obtained leave of court to bring the
action.

Dewey v. Finn, 18 Week. Dig. 558.

While a judgment debtor may be punished for contempt for
suing a receiver appointed in proceedings supplementary to
execution, where the court had jurisdiction to make an order
directing the application of property, yet he will not be pun-
ished for contempt in suing for exempt wages wrongfully col-
lected by such receiver as the court had no jurisdiction over
such earnings.

Kroner v. Reilly, 49 App. Div. 41, 63 Supp. 527.
+20 SUPPLEMENTARY PROCEEDINGS
(1) Procedure to Punish
(1) Modes of Procedure

(a) Statutory Provisions

The procedure to punish for misconduct in supplementary
proceedings, whether the same constitute criminal or civil con-
tempt, is governed by the Judiciary Law.

In case the contempt is criminal and is committed in the im-
mediate view and presence of the court, it may be punished
summarily, but if not so committed, the party charged must
be notified of the accusation and have a reasonable time to
make a defense.

Section 751, Judiciary Law.

Where the misconduct constitutes civil contempt, it cannot,
under Sec. 755, Judiciary Law, be summarily punished, unless
committed in the immediate view of the judge.

It is provided in Sec. 756 of the Judiciary Law that where
the offense consists of refusal to obey an order, requiring the
payment of costs, or of a specified sum of money, and the court
is satisfied by proof, by affidavit, that a personal demand there-
of has been made and that payment thereof has been refused or
neglected; it may issue without notice, a warrant to commit
the offender to prison until the costs or other sum of money,
and the costs and expenses of the proceeding are paid, or until
he is discharged according to law.

Under Sec. 757, the court or judge, may also in its or his
discretion, in the last two instances, and must in all other
cases of civil contempt, upon being satisfied, by affidavit, of the
commission of the offense either

1. Make an order, requiring the accused to show cause
before it, or him, at a time and place therein specified, why he
should not be punished for contempt; or

2. Issue a warrant of attachment, directed to the sheriff of
a particular county, or, generally to the sheriff of any county
CONTEMPT 421

where the accused may be found, commanding him to arrest
the latter and bring him before the court or judge, either forth-
with, or at a time and place therein specified, to answer for
the alleged offense.

(b) Decisions Governing

The decisions also hold that a judgment debtor alleged to be
in contempt for disobeying an order in supplementary pro-
ceedings, may be proceeded against either by writ of attachment
or by order to show cause under the provisions of the statute
governing.

Sonn v. Kenny, 68 Mise. 251, 116 Supp. 613; Maigille v.
Leonard, 102 App. Div. 367, 92 Supp. 656; Smethurst, Matter
of, 4 Super. Ct. Rep. (2 Sandf.) 724, 4 How. Pr. 369, 3 Code
Rep. 55; Watson v. Fitzsimmons, 12 Super. Ct. Rep. (5 Duer)
629,

And, it is not proper to institute proceedings for the punish-
ment of a judgment debtor by reason of his disobedience of the
order by notice of motion. The objection, however, is waived
where not taken in the court in which the motion was made.

Maigille v. Leonard, 102 App. Div. 367, 92 Supp. 656.

In view of Sec. 757, Judiciary Law, an application to punish
a judgment debtor for contempt must be brought on by order
to show cause or warrant of attachment, and the provisions
of See. 780, Code of Civil Procedure, and rule 37, General
Rules of Practice, as to notice of motion generally are not
applicable.

Becker, Matter of v. Gerlich, 72 Misc. 157, 129 Supp. 614.

Where however, the offense was committed in the immediate
presence of the court, punishment for contempt may be sum-
marily inflicted, without resort to attachment or order to show
cause.

People ex rel. Cowan v. Hamil, 179 St. Rep. 400, 145 Supp.
400; Falkenberg v. Frank, 20 Misc. 692, 46 Supp. 675.
422 SUPPLEMENTARY PROCEEDINGS

This is also in accordance with the present Judiciary Law.
In view of this rule, there is no authority for an order
adjudging a judgment debtor in supplementary proceedings
in contempt for disposing of property in violation of the injunc-
tion clause in the order for his examination, made immediately
upon conclusion of his examination, without the previous
granting of an order to show cause or warrant of arrest, if the
offense charged was not committed in the presence of the court.

Kern v. Zuppa, 193 St. Rep. 76, 159 Supp. 76.

A judgment debtor, charged with civil contempt in violating
the provisions of an order in supplementary proceedings, must
be proceeded against either by warrant of attachment or by
order to show cause, and he cannot be punished simply upon
the appearance of the parties and the production of the affidavit
and order in supplementary proceedings, the testimony of the
judgment debtor, and the report of the referee, where the
offensed charged was not committed in the immediate presence
of the judge.

Protter v. Lovell, 91 Mise. 417, 155 Supp. 275.

(2) Writ of Attachment

(a) Statutory Provisions

A warrant of attachment is defined in Sec. 761, Judiciary
Law as a mandate whereby an original special proceeding is
instituted against the accused in behalf of the people upon the
relation of the complainant.

It is provided in Sec. 763, Judiciary Law that a copy of the
warrant, and of the affidavit upon which it is issued, must be
served upon the accused, when he is arrested by virtue thereof.

The judge granting the warrant, may, under Sec. 764, Judie-
iary Law, indorse thereon the sum, in which the accused may
give an undertaking for his appearance to answer.

Upon giving such undertaking, the accused is permitted, un-
CONTEMPT 423

der Sec. 766, to his release, but must appear before the judge
or court upon the return day of the warrant.

If no such undertaking be given, Sec. 769, provides that he
shall be kept in custody by the sheriff, but need not be confined
in prison, or otherwise restrained of his liberty, except as far
as it is necessary so to do, in order to secure his personal at-
tendance.

It is provided under See. 769 of the Judiciary Law that when
the accused, is produced under the warrant of attachment, or
appears pursuant thereto, the court or judge, must, unless he
admit the offense charged, cause interrogatories to be filed
specifying the facts and circumstances of the offense charged.
That the accused must make written answers thereto under
oath, within such reasonable time as may be prescribed; and
either party may produce affidavits, or other proofs, contra-
ilicting or corroborating any answer. The court or judge must
then determine whether the accused has committed the offense,
upon the original affidavits, the answer and subsequent proofs.

Section 770, Judiciary Law provides that if it be determined
that the accused has committed the offense charged; and that it
was calculated to, or actually did, defeat, impair, impede, or
prejudice the rights or remedies of a party to an action or
special proceeding, brought in the court, or before the judge or
referee; the court, or judge, must make a final order according-
ly, and directing that he be punished by fine or imprisonment
or both, as the nature of the case requires. A warrant of com-
mitment must issue accordingly.

Section 767, Judiciary Law provides that in case the person
charged with contempt, is already in custody, by virtue of an
execution against his person, or by virtue of a mandate for
any other contempt or misconduct, or a commitment on a crim-
inal charge, a warrant of attachment cannot be issued. In that
case, provision is made for the issuance of a writ of habeas
corpus, directed to the officer having the accused in custody,
424 SUPPLEMENTARY PROCEEDINGS

requiring such officer to bring the accused before the court, to
answer for the offense charged.

Section 771, provides for the punishment of a person so
brought before the court on habeas corpus, if determined guilty
of contempt. In that case his imprisonment is not to commence
until after his discharge under the previous mandate.

(b) Practice

If for any reason the judgment debtor, when arrested, can-
not be brought before one of the judges of the court within a few
hours it is customary to release him upon giving an undertak-
ing. The security provided by Sec. 2440, Code of Civil Pro-.
cedure, is not to be given until after his examination or other
proof.

Barnett, Matter of v. Lewinsky, 66 Misc. 141, 121 Supp.
378, 2 Civ. Pro. Rep. N. S. 65.

Before a judgment Jebtor can be punished for contempt upon
attachment proceedings, interrogatories should be propounded
to him and written answers taken, unless the judgment debtor
admit his contempt.

DeWitt v. Dennis, 30 How. Pr. 131.

This is in accordance with Sec. 769, Judiciary Law, previous-
ly referred to.

A judgment debtor having been brought before the judge by
attachment proceedings for disobedience of an order in supple-
mentary proceedings, upon his refusal to answer interrogatories
touching such contempt propounded to him, should not be pun-
ished for disobedience of the original order, but his contempt in
refusing to answer such interrogatories may be punished then
and there by the judge, and imprisonment directed until he
answer.

DeWitt v. Dennis, 30 How. Pr. 181.

And where the procedure by attachment is taken the affidavit
upon which the application is founded should be served upon the
CONTEMPT 425

judgment debtor with the attachment, but it is not absolutely
necessary to give notice of the application for the a uaCEmnEn
although that is the usual procedure.

Smethurst, Matter of, 4 Super. Ct. Rep. (2 Sandf.) 724, 4
How. Pr. 369, 3 Code Rep. 55.

Where a judgment debtor is sought to be punished for con-
tempt by attachment of his person, he must have been served
with a copy of the affidavits upon which the attachment was
based, a reasonable time before the return of the attachment,
so that he may have opportunity to prepare his defense.

Ward v. Arenson, 23 Super. Ct. Rep. (10 Bosw.) 589; De-
Witt v. Dennis, 30 How. Pr. 131.

Where a third party order is returnable before the judge
granting it, and such party fails to appear as directed in the
order, an affidavit of such failure to appear is not required in
order to warrant punishment for contempt in attachment pro-
ceedings as the judge has judicial knowledge of the fact.

Miller v. Adams, 52 N. Y. 409.

This case must now be regarded as doubtful authority under
Sec. 763, Judiciary Law.

(c) Liability for False Arrest

A judgment creditor, who obtained the arrest on attachment
of a third person claimed to be indebted to the judgment debtor
for his failure to appear under a third party order, is liable
for false arrest, where the attachment is void for want of juris-
diction in the judge, or for any other cause.

Miller v. Adams, 52 N. Y. 409.

(3) Order to Show Cause

(a) Statutory Provisions

Section 761, Judiciary Law defines an order to show cause
as being equivalent to a notice of motion, and states that the
426 SUPPLEMENTARY PROCEEDINGS

subsequent proceedings thereon are taken in the action or spe-
cial pruceeding, as upon a motion made therein.

It is-provided in Sec. 772, Judiciary Law that upon the re-
turn of an order to show cause the questions which arise must
be determined as upon any other motion, and if it be determined
that the accused has committed the contempt charged, and that
it was calculated to, or actually did, defeat, impair, impede, or
prejudice the rights or remedies of a party to the special pro-
ceeding, a final order must be made directing that he be punished
accordingly. Upon a certified copy of the order so made, the
offender may be committed, without further process.

(b) Affidavit—Necessity and Sufliciency

Under Sec. 757, Judiciary Law, before an order to show
cause is granted, an affidavit must be made and presented to the
court or judge satisfying it or him of the requisite facts.

Where, in the order for an examination of a third person, the
latter is directed to appear before the county judge granting the
order for the examination in such proceedings, but said third
person neglects to appear, it is not necessary that the judgment
creditor applying for an order to punish such third person for
contempt show in the affidavit that such failure to appear oc-
curred, as the judge in question has judicial knowledge of that
fact, and such affidavit may be made by the attorney for the
judgment creditor, and the latter need not make proof of his
authority, in order to confer jurisdiction upon the judge to
issue the attachment.

Muller v. Adams, 52 N. Y. 409.

Form for such an affidavit appears in the list of forms at the
end of this work.

See Affidavits.

(c) Procedure on Default

Notwithstanding the fact that a judgment debtor does not
CONTEMPT 427

appear upon the return of an order to show cause why he should
not be punished for contempt, the judgment creditor must make
a case for the granting of an order punishing for contempt, the
same as if the judgment debtor had appeared and objected to
the proceedings.

Tinkey v. Langdon, 60 How. Pr. 180.

The fact that contempt proceedings for disobedience of
orders in supplementary proceedings are instituted by order to
show cause, does not require that the judge, upon failure of
the accused party to appear upon the return day, to forthwith
grant an order committing for the contempt charged, as the
court can afford the judgment debtor an opportunity to purge
himself of the contempt.

Sonn v. Kenny, 63 Misc. 251, 116 Supp. 613; Nejez, Matter
of, 54 Misc. 38, 104 Supp. 505.

(d) Irregularities—Waiver

The fact that an order to show cause why a judgment debtor
should not be punished for contempt is defective in not setting
forth the acts constituting the contempt is waived by the gen-
eral appearance of the judgment debtor without raising the ob-
jection.

Becker, Matter of v. Gerlich, 72 Misc. 157, 129 Supp. 614.

(e) Service of Affidavit and Order to Show Cause

Service of an order to show cause why a judgment debtor
should not be punished for contempt in refusing to appear for
uxamination may be made upon his attorney, where the latter
had appeared for the judgment debtor in the action, and also
appeared for her upon the return of the order to show cause.

Isaacs v. Calder, 42 App. Div. 152, 59 Supp. 21.

And, in view of Sec. 761, Judiciary Law, providing that an
order to show cause is equivalent to a notice of motion, service
of an affidavit and order to show cause why a judgment debtor
428 SUPPLEMENTARY PROCEEDINGS

should not be punished for contempt in disobeying the injunc-
tion clause, may be made upon the attorney theretofore appear-
ing for the judgment debtor in the proceedings, and this, al-
though there was an interval of more than one year from the
close of the examination of the judgment debtor to the granting
of the order to show cause mentioned, as the appearance of an
attorney in such case presumptively continues until the proceed-
ings are teriminated.

Twelfth Ward Bank v. Luckes, 129 Supp. 227.

If the order to show cause why a judgment debtor should not
be punished for contempt direct that service thereof shall be
sufficient if made on or before a specified date, but the copy
served upon the judgment debtor provides for service on an
earlier date, and one before that on which the service was actual-
lv made, such fact may have been sufficient to require the vacat-
ing of the service upon the application of the judgment debtor
appearing specially therefor, but if he appear generally upon
the return date and answer to the merits, he will be regarded as
having waived the objection.

Becker, Matter of v. Gerlich, 72 Mise. 157, 129 Supp. 614.

(4) Taking Depositions

In proceedings to punish a judgment debtor for contempt in
supplementary proceedings, where such contempt is denied by
the judgment debtor upon his hearing, there is provision, under
Sec. 2280 of the Code (now Sec. 769 Judiciary Law), for the
production of affidavits or other proof, and therefore it is proper
to deny a motion on the part of the judgment creditor to take
the deposition of a person having knowledge as to the contempt,
under Sec. 885 of the Code permitting deposition to be taken on
the hearing of motions.

People ex rel. Tuell v. Paine, 92 App. Div. 303, 86 Supp.
1109.
CONTEMPT 429

(5) Judge or Court Punishing for Contempt

(a) Statute

Under Sec. 2457 of the Code, contempt, arising in supple-
mentary proceedings, may be punished by the judge of, or by
the court out of which the execution was issued, by the county
judge, the special county judge, or the special surrogate of the
county to which the execution was issued, or by the City Court
of New York City, or a justice thereof, if the proceedings were
instituted before such court or any justice thereof.

(b) Particular Instances

Proceedings for the punishment of a judgment debtor for
failure to appear in supplementary proceedings as directed,
may be inflicted by the judge succeeding in office the judge
who made an earlier order looking towards the punishment of
the judgment debtor, especially where the former judge made
an order transferring the unfinished business before him to his
successor.

Holstein v. Rice, 15 Abb. Pr. 307, 24 How. Pr. 135.

A special surrogate who granted an order for the exami-
nation of a judgment debtor in supplementary proceedings has
power to punish him for contempt in disposing of property
in violation of the injunction clause in the order, under Sec.
2457, Code Civil Procedure, providing that a person who dis-
obeys an order of a judge or referee in supplementary proceed-
ings may be punished by the judge or the court out of which
the execution was issued.

Aldrich v. Davis, 46 St. Rep. 587, 19 Supp. 765.

A judge of the City Court of New York may hear an appli-
cation to punish a judgment debtor for contempt in disobeying
an order made in supplementary proceedings pending in said
court, and recourse should not be had to the Supreme Court,
and this, notwithstanding the fact that a transcript of the judg-
430 . SUPPLEMENTARY PROCEEDINGS

ment recovered in the Municipal Court of the City of New
York was filed in the county clerk’s office.

Buchsbaum v. Laue, 63 Misc. 374, 1 Civ. Pro. Rep. N. 8.
378, 118 Supp. 419; Bridges v. Koppelman, 63 Mise. 27, 117
Supp. 306.

A justice of the Supreme Court of New York County can-
not grant an order for punishment for contempt for refusal
to submit to examination, where although the judgment upon
which the proceedings were based was rendered in the Supreme
Court of New York County, a transcript was filed in Rensselaer
County and proceedings supplementary to execution were in-
stituted thereon under an order made by the county judge of
Rensselaer County where the order was returnable and where
the judgment debtor resided, but such contempt proceedings
should be made returnable before the Rensselaer County Judge.

Backus, Matter of, 91 App. Div. 266, 86 Supp. 638.

It is irregular, for the attachment issued for a contempt in
supplementary proceedings to be made returnable before a judge
not issuing it, but it should be returnable before the latter. The
irregularity does not render the attachment void but the defect
may be cured by amendment.

Kelly v. McCormick, 29 N. Y. 318.

Punishment for disobedience of an order in supplementary
proceedings granted by a judge out of court, should be ad-
ministered by such judge, and on the papers read on the motion.
Such an order is therefore not properly returnable “before a
justice of the court at special term thereof, to be held at,” ete.

Wicker v. Dresser, 14 How. Pr. 465.

In view of Sections 26 and 2457 of the Code of Civil Pro-
cedure, proceedings to punish a judgment debtor for contempt
in failing to appear for examination may be instituted before
another judge or justice.

Ward v. Stoddard, 144 App. Div. 148, 128 Supp. 846, 2 Civ.
Pro. Rep. N. S. 375.

It is not absolutely necessary that an attachment for dis-
CONTEMPT 431

obedience of an order in supplementary proceedings should be
issued by the same judge who made the order disobeyed but
it may be issued by another judge or by the court instead.

People ex rel. Kearney v. Kelly, 22 How. Pr. 309, 13 Abb.
Pr. 459.

The fact that after the denial of an order to vacate a default
in supplementary proceedings the same judge granted an order
to show cause why such default should not be opened and such
order to show cause was made returnable “before me or one of
the justices of this court, at a Special Term Chambers thereof”
does not affect the validity of the proceedings, as the words “one
of the justices of this court,” ete., may be regarded as surplus-
age.

Morrison, Matter of v. Stember, 49 Mise. 464, 98 Supp. 850.

Although an order for examination in supplementary pro-
ceedings is made by one judge in the City Court of New York,
and the default of the judgment debtor taken by another judge
in that court, such later judge has the power after his denial
to open said default to entertain a reargument and nullify his
previous determination,

Morrison, Matter of v. Stember, 49 Misc. 464, 98 Supp. 850.

(6) Final Order Punishing for Contempt

(a2) Statutory Provisions

Under Secs. 770 and 772, Judiciary Law the final order di-
recting punishment for civil contempt, must determine that the
offense was calculated to, and actually did, defeat, impair, im-
pede, or prejudice the rights or remedies of a party to the spe-
cial proceeding.

Under Sec. 774 such an order must also specify the act or
duty to be performed, and the sum to be paid. And this order
must also set forth the facts constituting the contempt.

Where summary punishment is imposed, Sec. 755 provides
432 SUPPLEMENTARY PROCEEDINGS

that an order must be made by the court or judge stating the
facts which constitute the offense, and plainly and specifically
prescribing the punishment to be inflicted therefor.

The commitment for criminal contempt, under Sec. 752, Ju-
diciary Law, must set forth the particular circumstances of the
offense.

(b) Requisites of Order

An order punishing a judgment debtor for contempt in dis-
posing of property and not appearing for examination upon an
adjourned day, is fatally defective, where it does not appear in
such order that the property disposed of was applicable towards
the payment of the judgment, or that the examination of the
judgment debtor already had, was inadequate for the mainte-
nance and preservation of the judgment creditor’s right or rem-
edy, and this defect is not remedied by the specific determina-
tion in the order that the judgment debtor had disposed of his
property.

Wolf v. Buttner, 6 Mise. 119, 26 Supp. 52.

It is sufficient compliance with the statute if the order pun-

ishing for contempt recite that such misconduct and contempt
-were calculated to and did actually impair, impede, defeat and
prejudice the rights of the judgment creditor, and he was ad-
judged in such order guilty of the contempt and ordered to pay
a fine, which latter, it was expressly stated in the order was im-
posed to indemnify the plaintiff in the action, not only for his
costs and disbursements in the proceeding, but also “for the
damage and loss sustained by said contempt in the defeat of
said proceedings.”

Rugg v. Spencer, 59 Barb. 383.

Where an order for the examination of a judgment debtor
recites, that it having been made to appear before the judge
granting the order, by the affidavit of one of the attorneys of
the judgment creditor that judgment had been recovered in the
action; that execution thereon against the property of the judg-
CONTEMPT 438

ment debtor therein had been duly issued; and that said judg-
ment remained wholly unpaid, it is sufficient, prima facie, to
raise the presumption that such proof had been made by regular
affidavit.

Rugg v. Spencer, 59 Barb. 383.

An order imposing a fine for contempt in supplementary pro-
ceedings may direct the same to be paid in installments.

Gumpel v. Gurvitch, 102 Misc. 536, 169 Supp. 135.

A judgment debtor having been adjudged in contempt for
failing to pay money to a receiver as directed by an order, and
required to pay a certain sum of money to the receiver, or to
stand committed, cannot be punished unless another order is
made after his noncompliance with the first, committing him
for such misconduct.

First Nat. Bank of Plattsburgh v. Fitzpatrick, 80 Hun, 75,
§1 St. Rep. 766, 30 Supp. 15.

An order adjudging a judgment debtor in contempt for re-
fusal to answer questions upon his examination cannot be
sustained, where it does not determine that the offense charged
was calculated to defeat or impair the rights or remedies of the
judgment creditor, and this defect cannot be cured by amend-
ment under Secs. 721, 722 or 723 of the Code.

People ex rel. Cowan v. Hamil, 179 St. Rep. 400, 145 Supp.
400; Blake v. Bolte, 10 Misc. 333, 31 Supp. 124, 24 Civ. Pro.
Rep. 166, 1 Ann. Cas. 78; Feinberg v. Kutcosky, 147 App. Div.
393, 182 Supp. 9; Wolf v. Buttner, 6 Misc. 119, 26 Supp. 52.

And an order will be reversed where it does not contain an
adjudication that the judgment creditor has been injured or
prejudiced by the misconduct mentioned.

Blake v. Bolte, 10 Misc. 333, 63 St. Rep. 408, 31 Supp. 124,
24 Civ. Pro. Rep. 166, 1 Ann. Cas. 78.

An order punishing a judgment debtor for contempt in fail-
ing to appear for examination, must, under Sec. 770, Judiciary
Law, set forth that the judgment debtor’s act was calculated to
defeat or prejudice the judgment creditor’s rights, notwith-

Garnishee—28,
434 SUPPLEMENTARY PROCEEDINGS

standing Sec. 767 of the Code providing for a short form order,
and an order not containing such recital will be set aside.

Goldsmiths & Silversmiths Co. v. Haas, 76 Misc. 210, 134
Supp. 602.

An attorney cannot be punished for contempt for failing to
obey an order to personally pay costs in supplementary proceed-
ing, where there has been no adjudication that his failure was
calculated to or did defeat, impair, impede, or prejudice the
rights or remedy of the complaining party.

Obermeyer & Liebman v. Adisky, 123 App. Div. 272, 107
Supp. 949.

The fact that the order adjudging a judgment debtor guilty
of contempt in supplementary proceedings served upon him was
not certified, but was an ordinary copy, will not affect the juris-
diction of the court to issue the commitment thereon.

Gumpel v. Gurvitch, 102 Mise. 536, 169 Supp. 135.

An order adjudging a third party guilty of contempt in re-
fusing to answer pertinent questions concerning property of the
judgment debtor in his hands is not objectionable because of an
adjudication by the judge that such misconduct did actually de-
feat, impair, impede and prejudice the rights and remedies of
the judgment creditor as such refusal to answer pertinent ques-
tions did necessarily tend to defeat, impair, impede and preju-
dice the rights of the judgment creditor.

Hart v. Johnson, 43 Hun, 505, 7 St. Rep. 1383, 26 Week.
Dig. 151.

The fact that the order adjudging a judgment debtor guilty
of contempt was general and indefinite in its terms, will not
invalidate the order of commitment issued thereon

Gumpel v. Gurvitch, 102 Mise. 536, 169 Supp. 135.

An order adjudging a judgment debtor guilty of contempt
and imposing a fine with imprisonment, in case of nonpayment,
is fatally defective as failing to contain an adjudication of the
specific facts constituting the contempt, where it merely recites
that it appears to the judge making the order that the testi-
CONTEMPT 435

mony of the judgment debtor on his examination in the pro-
ceedings, as to knowledge of certain matters showed a willful
attempt to frustrate the purposes of the examination, and to pre-
vent the ascertainment of the truth, and it appears that such
judgment debtor was willfully evading the questions by a dis-
claimer of knowledge or recollection of matters concerning
which it is incredible that he should have wholly forgotten of
the personal transactions and facts that must have been within
his knowledge, and it appearing to the satisfaction of such judge
that such testimony was calculated to and did impair, impede,
prejudice, delay and defeat the rights and remedies of the judg-
ment creditors in the proceeding.

Gordon v. Feldberg, 149 App. Div. 246, 133 Supp. 693.

So, an order punishing a judgment debtor for contempt will
be vacated for failure of adjudication of the specific facts show-
ing the contempt, where it recited the issuance of the order to
show cause why he should not be punished for contempt for hav-
ing willfully and intentionally withheld testimony, and for his
evasive conduct in testifying, and stated that it appeared to the
satisfaction of the court that the judgment debtor had commit-
ted the contempt of court hereinbefore mentioned, as this is not
enough.

Silberman Dairy Co. v. Econopoully, 177 App. Div. 97, 163
Supp. 824.

There is no warrant for an order committing a person for
contempt in failing to appear as a witness in supplementary
proceedings on a day named or on other days and times not
named, as the particular circumstances of the offeuse are not
sufficiently set forth within the requirements of Sec. 11, Code
of Civil Procedure. (Now See. 752, Judiciary Law.)

Depue, Matter of, 185 N. Y. 60, 37 Civ. Pro. Rep. 121.

An order adjudging a judgment debtor guilty of contempt
and fining him the sum of $339.39, the amount of the judgment
upon which the supplementary proceedings were based, is un-
warranted where there is no proof that the misconduct caused
436 SUPPLEMENTARY PROCEEDINGS

any actual loss or injury to the judgment creditor, although the
order contains a recital that such damage was suffered,

Ross v. LaCagnina, 68 Misc. 497, 124 Supp. 753.

The fact that an order adjudging the judgment debtor in
supplementary proceedings guilty of contempt in disposing of
a sum of money in violation of the injunction clause, provides
that he shall have the opportunity to produce a certain witness
to show that such money was not his, which if he does not
do, the order to punish him for contempt will be granted, is
not fatally defective because of its form.

Haas v. Matheson, 1 Misc. 2, 20 Supp. 660. .

An order is not fatally defective because of alternate pro-
visions, which decrees. that the judgment debtor has been guilty
of contempt in willfully substituting a worthless ring upon
pretended compliance with an order directing him to deliver
a ring to the receiver in supplementary proceedings, and ad-
judges the judgment debtor guilty of contempt and orders him,
either to deliver the ring or $50.00, its value, with motion costs,
or, in default, to be committed to prison.

Blumenthal, Matter of, 22 Misc. 704, 50 Supp. 49.

An order committing a judgment debtor for contempt in
failing to appear for examination, and directing that he be
imprisoned until a specified fine, together with costs, expenses,
and sheriff’s fees be paid, or that should he appear on a desig-
nated day for examination and pay a certain fine for his mis-
conduct and stipulate that he would not bring any action
against the judgment creditor because of the proceedings, he
should be discharged, is perhaps unwarranted as to the alter-
native provisions, yet as it caused no harm to the judgment
debtor, since he could relieve himself from imprisonment by
paying the fine first imposed it is, therefore, not objectionable.

People ex rel. O’Connor v. Sickles, 36 St. Rep. 548, 18
Supp. 101.

An order fining a judgment debtor a certain sum for his
violation of the injunction clause in an order in supplementary
CONTEMPT 437

proceedings, and further providing for his commitment unless
he pay such fine, together with the fees of the sheriff of Kings
County, is erroneous in so far as providing for the judgment
debtor’s commitment unless he pay the fees, as the amount of
the latter should have been fixed. The court, however, has the
power to modify the order by striking out the provisions relat-
ing to the fees of said sheriff.
Maigille vy. Leonard, 102 App. Div. 367, 92 Supp. 656.

(J) Amount of Fine

(1) Statute

Under See. 733, Judiciary Law, civil contempt arising in
supplementary proceedings may, in case of actual loss result-
ing therefrom, be punished by a fine sufficient to indemnify
the aggrieved party for such loss or injury.

Where it is not shown that such an actual loss or injury has
resulted, a fine must be imposed not exceeding the amount of
the complainant’s costs and expenses, and $250.00 in addition
thereto.

In case of criminal contempt, the fine cannot, under Scc.
751, Judiciary Law, exceed $250.00, or imprisonment not over
thirty days or both, in the discretion of the court or judge.

(2) When No Actual Damages

A judgment debtor may be fined for contempt in disobeying
an order in supplementary proceedings although there be no
proof of actual damages sustained by the judgment debtor.

Seitz, Matter of, 56 Misc. 616, 107 Supp. 593.

Where no proof of loss is made, the fine, under Sec. 2284
of the Code (now Sec. 773, Judiciary Law) cannot exceed
$250.00 and costs.
438 SUPPLEMENTARY PROCEEDINGS

Gallagher v. O'Neil, 21 St. Rep. 161, 3 Supp. 126; -Lmen-
dola v. Zema, 93 Mise. 525, 157 Supp. 273; Root v. Rich, 204
St. Rep. 871, 170 Supp. $71.

Therefore a fine of $326.58, under such circumstances, is
unwarranted.

Imedeke v. Coursen, 38 Mise. 559, 23 Supp. 314.

So, under those circumstances a fine of $410.00 is not justi-
fied, upon the theory that during the forty-one weeks betweeu
the date of an order for the examination and order punishing
for contempt, the debtor had been receiving a weekly salary of
$100.00 and that if such fact had been disclosed upon the ex-
amination the judgment creditor might have procured a gar-
nishee order for 10 per cent of such salary, amounting to such
sum of $410.00, since it cannot be said that the obtaining of the
garnishee execution was a necessary result of the examination.

Schwartz v. Sill, 85 Misc. 55, 146 Supp. 1068.

Discussing this question the court, in the case last cited,
said: “It is not enough that the loss might possibly or that it
may probably result. The loss or injury contemplated must be
such as necessarily results from the misconduet in order that
the latter may be said to be its proximate cost.”

A fine of $448.18 imposed upon a judgment debtor for dis-
obedience of an order in supplementary proceedings is not
warranted upon an adjudication by the judge imposing the
fine that the judgment debtor was guilty of a contempt of
court, and that his misconduct was calculated to and did defeat,
impair, and prejudice the rights and remedies of the judgment
creditor to his actual loss and damages in the sum of $448.15,
where there is no evidence in the record to support the finding
that the judgment creditor suffered any actual loss or damages.

Eigenmacht v. Herter, 74 Misc. 405, 182 Supp. 282.

A judgment debtor, refusing to appear for examination pm-
suant to an order in supplementary proceedings, may, under
sec. 773, Judiciary Law, be fined the sum of $170.00, being
CONTEMPT 439

about equivalent to the judgment, without proof of actual dam-
ages.

Isaacs v. Calder, 42 App. Div. 152, 59 Supp. 21.

A judgment debtor, in contempt for violation of an order
in supplementary proccedings, may be fined the sum of $350.00,
such sum being made up of $250.00 and $100.00 costs, and
expenses, although no actual damage is shown by the judgment
creditor.

Root v. Rich, 204 St. Rep. 871, 170 Supp. 871.

A fine of $388.90, being the amount of the judgment, costs
and disbursements, for refusal of a judgment debtor to produce
bouks under a subpoena duces tecum, is excessive where there
is no evidence of actual loss but merely a claim that the books
might have disclosed assets, and the order will be modified by
reducing the fine to $100.00 to be credited upon the judgment.

Friedman v. Newman, 120 St. Rep. 735, 86 Supp. 735.

Likewise, a fine of $371.15 for the contempt of a judgment
debtor in failing to appear for examination, is excessive and
will be set aside, where there is no evidence that his misconduct
caused actual loss or injury to the judgment creditor beyond
the costs and expenses of the proceeding for contempt.

Devereaux v. Clifford, 11 App. Div. 401, 42 Supp. 687.

A judgment debtor, willfully refusing to appear for examina-
tion in supplementary proceedings, may be fined the sum of
$250.00 and costs, where the order of commitment describes
the conduct constituting the contempt, as being, “for willfully
(disobeying the order requiring him to appear on June 14, 1904
for examination,” and the objection cannot be urged that such
words are merely discriptive of the order and do not sufficiently
set forth the act or omission of which the judgment debtor was
adjudged guilty, since the words “require him to appear for
examination” are amply sufficient to apprise him that his dis-
obedience constituted in not appearing.

New Jersey Foundry & Machine Co. v. Stebert, 124 St. Rep.
468, 90 Supp. 468. yee 4
440 SUPPLEMENTARY PROCEEDINGS

A fine of $10.00 imposed upon a third party for disobedience
of an order for his examination in supplementary proceedings,
is unwarranted, as if such party were guilty of contempt, and
the proceedings to punish him were regularly conducted, he
should have suffered more than a nominal fine, if there were no
contempt, or the proceedings were irregular he should not have
been punished at all.

Bird v. Wessels, 153 St. Rep. 329, 119 Supp. 329.

A fine of $200.00 imposed upon a judgment debtor for his
contempt in refusing to submit to examination is proper where
the judgment debtor, upon being arrested and brought before
the court and after informally raising some objections, was
admonished that it would be the better way to submit to an
examination at once; and that in the event of his complying,
the terms which the court would impose upon him would be
light, but instead of following such suggestion he refused, and
put the judgment creditor to considerable expense in prosecut-
ing the proceeding for contempt, while the judgment creditor
was seeking only his remedy by an examination in the original
proceedings, which was his right.

Hilton v. Patterson, 18 Abb. Pr. 245.

The fact that a judgment creditor has not suffered actual
loss by reason of the judgment debtor’s failure to appear for
examination, will not preclude the imposition of a fine upon
the latter under Sec. 773, Judicial Law, where it is determined
that such default was calculated to prejudice the rights of the
judgment creditor, and a fine of $50.00 and costs of the motion
is proper.

Goldsmiths & Silversmiths Co. v. Haas, 76 Mise. 210, 134
Supp. 602.

In the absence of evidence showing that a judgment debtor’s
failure to appear for examination in supplementary proceed-
ings, resulted in money loss to the judgment creditor, the fine
CONTEMPT 441

should be limited to such sum as will pay the attorney for the
judgment creditor for his costs and expenses.

Leonard v. Jacobson, 27 Misc. 325, 57 Supp. 818.

In the above-entitled action a fine of $40.00 was imposed
upon the judgment debtor.

There may be a fine of $250.00 and costs, although no
damages are shown. If actual damages are claimed the judg-
ment creditor seeking them must prove that they were actually
sustained.

Becker, Matter of, 36 Misc. 322, 73 Supp. 577.

(3) Where Actual Damages

In contempt proceedings against a judgment debtor, he can-
not be fined a sum as indemnity to the judgment creditor
without proof of actual loss or injury.

Bernstein v. McCahill, 56 Misc. 460, 107 Supp. 161.

Section 733, Judiciary Law, authorizes a fine for violation of
an order in supplementary proceedings sufficient to indemnify
the aggrieved party, if an actual loss has been produced by the
misconduct of the offender, and this is not limited to $250.00
and costs.

Amendola v. Zema, 93 Mise. 525, 157 Supp. 273; Ross v.
La Cagnina, 68 Misc. 497, 124 Supp. 753.

A fine imposed upon a judgment debtor for contempt in
supplementary proceedings, may, under Sec. 773, Judiciary
Law, where there is an actual loss or injury to the judgment
creditor by the misconduct, include the poundage fees of the
sheriff, where he arrested the judgment debtor under a warrant
in the proceedings.

White v. Griffenhagen, 95 Mise. 84, 160 Supp. 187.

A judgment debtor, forbidding his tenants of property not
occupied by himself to pay rent to a receiver appointed in sup-
plementary proceedings, and forcibly pushing the latter down
stairs, which he was ascending to obtain rent from one of the
442 SUPPLEMENTARY PROCEEDINGS

tenants, is guilty of contempt and will be fined $100.00 and
directed to be committed until the same is paid.

Vermont Marble Co. v. Wilkes, 30 Supp. 381.

A judgment debtor, disposing of $885.00 realized from the
sale of her property, in violation of the injunction clause con-
tained in the order for her examination, is properly fined the
sum of $200.00 (the amount of the judgment being $171.90),
and this although she is a widow with minor children.

Millington v. Fox, 18 Supp. 334.

A judgment debtor having made an assignment in violation
of the injunction clause in the order for his examination, can-
not be compelled to obtain a reassignment of such property,
but he should be fined the amount thereof.

Meyer v. Dreyspring, 3 Mise. 560, 23 Supp. 315.

A fine of $400.00 is not unreasonable where the contempt
of the judgment debtor consisted in drawing out and expending
(6350.00 deposited in a bank to his credit.

People ex rel. Noel v. Kingsland, 3 Abb. Ct. App. Dec. 526,
3 Keyes, 325.

A judgment debtor, disposing of money amounting to $130.00
realized from the sale of dairy products on a farm leased by
him, which are not “earnings” within the meaning of Sec. 2463
_ of the Code, in violation of the injunction clause contained in
the order for his examination in supplementary proceedings,
will be fined the amount of such expenditures with ten dollars
costs of the proceeding.

Teelon, Matter of, 87 Misc. 361, 150 Supp. 729.

A nominal fine for contempt arising out of supplementary
proceedings is unwarranted, where the proceedings have been
regular and the fine bears no relation to the injury done the
judgment creditor.

Mitchell v. Loderman, 131 St. Rep. 1006, 97 Supp. 1006.

A fine of $103.39 is properly imposed upon a third party
who is indebted in that amount to the judgment debtor who, in
direct violation of the restraining order contained in the third
CONTEMPT 445

party order, deliberately paid such sum to the judgment debtor's
wife.

Nichol v. Wilson, 175 App. Div. 667, 161 Supp. 870.

A judgment debtor transferring property in violation of the
injunction granted in supplementary proceedings, the amount
of which property is contingent and uncertain, is properly
tined the sum of $250.00 and costs under Sec. 2284, Code of
Civil Procedure (now Sec. 773, Judiciary Law).

Wynkoop v. Myers, 28 St. Rep. 81, 7 Supp. 898.

A fine of $500.00 for refusal of a judgment debtor to appear
for examination is not excessive, where the judgment upon
which the proceedings are based amounts to $2600.00

Waters v. Miller, 3 N. Y. Law Bull. 101.

(4) Amount of Judgment

A judgment debtor disposing of property in excess of the
judgment in violation of the injunction contained in the order
for his examination, is properly fined the amount of the judg-
ment.

Lippert v. Olejniezak, 19 St. Rep. 463; Meyer v. Dreyspring,
3 Mise. 560, 23 Supp. 315.

Where the judgment debtor is proceeded against as for
criminal contempt he cannot be fined the amount of the judg-
ment and costs, as provided by Sec. 773, Judiciary Law, in case
of civil contempts, since he can be fined not to exceed $250.00,
under Sec. 751, applicable to criminal contempts.

Protter v. Lovell, 91 Mise. 417, 155 Supp. 275.

An order imposing a fine upon judgment debtors for dispos-
ing of property in violation of the injunction clause in an order
for their examination, for $77.12, the amount of the judgment
together with $30.00 attorney’s fees, $20.00 referee’s fees for
two days, $10.00 for stenographer’s fees for two days, $5.00
to the stenographer for preparing papers on the application,
$5.00 to the stenographer for transcript of minutes, $2.00 for
444 SUPPLEMENTARY PROCEEDINGS

service of papers, and $10.00 for the attorney upon the applica-
tion, is excessive and unwarranted, and it appearing that the
judgment debtors, being husband and wife, were very poor hard
working foreigners without property and did not understand
the nature of the proceedings, and the moneys so disposed of
were expended for necessities for the family, the order will be
reversed upon the law and the facts with costs.

Kutcosky, Matter of, 153 App. Div. 526, 188 Supp. 263.

Where it appears that the property of a judgment debtor
disposed of in violation of the injunction clause in an order
in supplementary proceedings, was sufficient to pay the judg-
ment creditor’s judgment and costs, it is proper to impose a
fine upon the judgment debtor equal to the amount of the
judgment with interest, together with the judgment creditor’s
costs in supplementary proceedings and of the application to
punish for contempt.

Ross v. Clussman, 5 Super. Ct. Rep. (3 Sandf.) 676.

The mere face that the fine imposed for contempt in supple-
mentary proceedings equals the amount of the judgment upon
which the proceedings are based and the costs thereof, is not
ground for reversing such order, where the fine is below the
amount provided by the statute.

Seitz, Matter of, 56 Mise. 616, 107 Supp. 593.

A witness in supplementary proceedings in contempt for
refusal to obey a subpoena, may, under Sec. 773, Judiciary Law,
be fined a sum, which includes the costs and expenses of the
aggrieved party, including a reasonable counsel fee, but there
is no authority, in the absence of sufficient evidence showing
that amount of loss, to fine such witness the amount of the
judgment.

Westervelt v. Shapiro, 182 Supp. 338.

Where judgment debtors, in a high handed manner, took
possession of chattels in the possession of a receiver in sup-
plementary proceedings instituted against them, after an auc-
tioneer had taken the same from the receiver, and their acts
CONTEMPT 445

clearly indicated that their conduct was in flagrant contempt
of the receiver and court, they are properly fined the full.
amount of the judgment, with $30.00 costs, with the provision
that if the property taken from the receiver be returned to him
in the same condition as when taken away, the fine will be
remitted.

Verdi v. La Russo, 172 St. Rep. 568, 3 Civ. Pro. Rep. N. S$.
15, 1388 Supp. 568.

The amount of the fine imposed upon a person for disposing
of property is regulated by the amount of property disposed of
and not the amount of the judgment, where the latter is in
excess of the property disposed of.

Feeley v. Glennen, 2 N. Y. Law Bull. 19.

It is improper to fine a judgment debtor for disobedience of
a second order for his examination in supplementary proceed-
ings, the amount of the judgment, where he acted under advice
of counsel in disobeying the order, and his misconduct was not
willful or defiant, and the judgment creditor has suffered no
Joss, since in such case, the fine should be limited to a sum suffi-
cient to reimburse the judgment creditor for the costs and ex-
penses of the application.

Shane Bros. & Wilson Co. v. Henshaw, 174 App. Div. 606,
161 Supp. 115.

And a judgment debtor is not properly fined the amount of
the judgment by reason of his transfer of property in violation
of the injunction contained in the order for his examination,
where the neglect of the judgment creditor contributed to the
disposition of such property, but he may be fined the sum of
$250.00.

Lehmaier v. Griswold, 46 Super. Ct. Rep. (14 J. & S.) 11.

A judgment debtor, deliberately refusing to obey an order for
his examination, may, under Sec. 2284 of the Code (now See.
773, Judiciary Law), be fined the amount of the judgment,
where it does not exceed $250.00, although it is not shown
+46 SUPPLEMENTARY PROCEEDINGS

that there has been any actual loss or injury from the judgment
debtor’s contempt.

Hatfield, Matter of, 17 App. Div. 430, 45 Supp. 270.

A third person directed by an order to appear before a
referce and testify as a witness cannot be fined the amount of
the judgment upon which the supplementary proceedings are
based, since a witness cannot be brought before the referee in
that way. The procedure to obtain the attendanee of such a
witness is by a subpoena such as is used to procure the at-
tendance of witnesses in an ordinary case.

Depue, Matter of, 185 N. Y. 60, 37 Civ. Pro. Rep. 121.

(5) Hatenuating Circumstances

Where a judgment debtor furnishes a legal excuse for not
appearing on the return day of the order for his examination,
the court may properly deny the motion to punish him for
contempt upon his submitting to the required examination and
paying the disbursements incurred by reason of the default.

Tuell v. Paine, 71 Supp. 1121.

Where it appears that the violation of an order for the
examination of a judgment debtor was not flagrant and willful,
but under the impression of the judgment debtor that the order
was irregular and subject to vacation, a fine of $10.00 is suf-
ficient.

Shults v. Andrews, 54 How. Pr. 378.

Where a judgment debtor fails to appear on an adjourned
day, under the mistaken impression that the proceeding had
been stayed by an order of the Bankruptcy Court, and no pecun-
iary loss is shown to the judgment creditor, a fine of $250.01)
and $50.00 costs, as for a willful contempt, will be set aside
as excessive, unless the judgment creditor stipulate to reduce
the amount of the fine to $50.00 with $10.00 costs.

Kreiser v. Kitaoka, 36 Mise. 174, 73 Supp. 164.

A judgment debtor failing to appear for examination pur-
CONTEMPT 447

suant to an order in supplementary proccedings, who presents
an affidavit explaining her absence; and offers to appear at any
time for her examination, shows that she can be easily served
at her residence, and it is plainly shown that she did not attempt
to conceal herself, cannot be fined $250.00, as the same is ex-
cessive and a fine of $50.00 in addition to the costs and expenses
of the motion is sufficient.

Goldsmiths & Silversmiths Co. v. Haas, 76 Misc. 210, 154
Supp. 602.

The court may properly fine a judgment debtor $15.00 for his
disobedience of an order for his examination in supplementary
proceedings where he has since submitted to an examination
and it appears from the affidavit filed that the disobedience was
a matter of inadvertence on his part, and the affidavit submitted
by the attorneys for the judgment creditors state they are or
will become liable to expend $15.00 for preparing the original
papers and the fees of the referee.

Fancher, Matter of, 58 Misc. 11, 110 Supp. 157.

Where the judgment debtor excuses his default, the order
should impose such a moderate sum as will pay the attorney
for the judgment creditor for his costs and expenses, and he
should be directed to appear for examination pursuant to the
original order. In such ease, a fine in the amount of the jude-
ment is unwarranted.

Reynolds v. Gilchrest, 9 Hun, 203.

The courts are inclined to inflict only a slight penalty where
an order in supplementary proceedings has been disobeyed
through a misconception of the proper practice in such cases.

’ Wileox y. Harris, 59 How. Pr. 262.

(6) Cost Allowable

Tn an order adjudging a judgment debtor in contempt in sup-
plementary proceedings, the costs allowable are limited to $10.00
and disbursements, as although these proceedings are made
448 SUPPLEMENTARY PROCEEDINGS

special proceedings by Sec. 2433 of the Code of Civil Procedure,
yet the mode of reviewing orders made therein and the practice
relating thereto are the same as if the orders had been made in
an ordinary action.

Jones v. Sherman, 18 Abb. N. C. 461, 11 Civ. Pro. Rep.
416, 8 St. Rep. 344.

In determining the actual loss which a judgment creditor
has sustained by reason of the judgment debtor’s contempt in
supplementary proceeding, the costs and expenses must be as-
certained by the rate of compensation fixed by statute, and the
amount of his actual loss must be determined upon proof of the
damages sustained, according to the rules of law applying in
an action for such damages. The court cannot summarily fix
a gross sum in its discretion.

Ross v. La Cagnina, 68 Mise. 497, 124 Supp. 753.

An order adjudging a judgment dehtor guilty of contempt
is erroneous, although not void, if it include the motion costs.

Gumpel v. Gurvitch, 102 Misc. 5386, 169 Supp. 135.

An allowance of $100.00 for costs and expenses in contempt
proceedings may be allowed where that sum would seem to
represent fairly the amount of the creditor’s costs and expenses.

Root v. Rich, 204 St. Rep. 871, 170 Supp. 871.

(7) Excessive Fine—Effect

The fact that the fine imposed upon a judgment debtor for
contempt in supplementary proceedings is excessive under the
Judiciary Law, will not render the order imposing it void, and
will not justify an order releasing the judgment debtor from
imprisonment. The remedy is a motion to modify the order
by reducing the fine.

Gumpel v. Gurvitch, 102 Mise. 536, 169 Supp. 135.

(K) Stay of Punishment

A judgment debtor cannot have a stay pending his appeal,
CONTEMPT 449

of execution of his commitment for contempt for failure to
appear for examination, where, upon such failure to appear,
an order to show cause why he should not be punished for con-
tempt was made and served upon him, and upon his default on
this application an order was granted directing the issuance of
an attachment, returnable forthwith, and where, after the grant-
ing of the last-mentioned order, he obtained an order to show
cause why his default should not be opened and he be allowed
to come in and defend the motion on the merits, which latter
motion was denied, and on his appeal therefrom that order was
affirmed, since he had his day in court as to the merits of the
contempt charged, and he is further precluded from claiming
that the fine imposed for his contempt was illegal, by reason
of his having given a bond on his first appeal conditioned that
if the order were affirmed he would pay the fine.
Soule v. Lookstein, 185 St. Rep. 67, 151 Supp. 67.

(L) Period of Imprisonment

_ In ease of criminal contempt, See. 751, Judiciary Law pro-
vides, that where the offender is committed to jail for the non-
payment of a fine imposed, he must be discharged at the expira-
tion of thirty days; but where he is also committed for a definite
time, the thirty days runs from the expiration of the definite
time.

Section 774, Judiciary Law provides that where the miscon-
duct consists of an omission to perform an act or duty, which is
yet in the offender’s power to perform, the imprisonment shall
only continue until he has performed it and paid the fine im-
posed. In every other case, where special provision is not other-
wise made by law, the offender may be imprisoned for a
reasonable time not exceeding six months. The warrant of com-
mitment, if one be issued, must specify the amount of the fine,
and the duration of the imprisonment.

Garnishee—29.,
450 SUPPLEMENTARY PROCEEDINGS

(M) Discharge from Imprisonment

(1) Statute

Under Sec. 775, Judiciary Law it is provided that where
the offender being imprisoned, is unable to endure the imprison-
ment or to pay the sum or to perform the act or duty required
to be paid or performed in order to entitle him to be released,
the court or judge, or the court out of which the execution was
issued, may, in its or his discretion, and upon such terms as
justice requires, make an order directing him to be discharged
from the imprisonment.

(2) Grounds

A judgment debtor seeking to be released from imprisonment
for contempt in supplementary proceedings, must make his
application under Sec. 2286 of the Code (now Sec. 775, Judi-
ciary Law), and must show facts required thereby, and there
is no authority for his release in any other way.

Valentine & Co. v. Mandel, 19 Civ. Pro. Rep. 155; 11 Supp.
718.

An order directing the discharge of a judgment debtor im-
prisoned for disobedience of an order in supplementary proceed-
ings, is unwarranted under Sec. 775, Judiciary Law, on the
theory of his inability to pay the sum imposed, where the ap-
plieation was made two days after his imprisonment and the
affidavits, though repicte with allegations of the judgment
debtor’s lack of funds and money and earnings do not show
that he is unable to pay. It should definitely appear from the
affidavits that the judgment debtor has not any property of any
nature whatsoever, and no source of income.

Sctalampo v. Ciolino, 128 Supp. 623.

In order to justify the discharge from imprisonment of a
judgment debtor on the ground that he is unable to pay. the
fine under former Sec. 2286, Code of Civil Procedure (now
CONTEMPT 451

Sec. 775, Judiciary Law), there must be more than an uncor-
roborated affidavit that he is unable to pay the fine. The court
has no inherent power to release a defendant merely as a matter
of grace or mercy.

Canakos, Matter of, 60 Misc. 68, 111 Supp. 601.
CHAPTER XXI

Costs

(A) In General, 452.
(B) Judge Granting Order, 453.
(C) Judgment Creditor, 453.
(1) Statute, 453.
(2) Instances, 453.
(D) To Judgment Debtor, 455.
(1) Statute, 455.
(2) Instances, 455.
(E) To Third Persons, 457.
(1) Statute, 457.
(2) Instances, 457,
(F) Against Attorney, 457.
(G) To and against Receiver, 458.
(H) How Costs Collected, 459.

(A) In General

The court has no authority to make an order granting costs
against a judgment creditor, as being the person beneficially
interested in the recovery, under Sec. 3247 of the Code, in an
unsuccessful action brought by a receiver in supplementary
proceedings to have certain real and personal property adjudged
to be subject to the judgment of the judgment creditor, where
costs have not yet been awarded to the defendant in such action.

Fredericks v. Niver, 28 Hun, 417. ,

Where a receiver caused himself to be interpleaded in an
action, in which he sought to reach property of the judgment
debtor, but was defeated, the costs incurred by the receiver in
such action are properly charged against the judgment credi-
tor, where it is shown that all the steps taken by the receiver
were at the request of the attorney for the judgment creditor.

Bourdon v. Martin, 84 Hun, 179, 65 St. Rep. 716, 32 Supp.
441,

452
COSTS 453

(B) Judge Granting Order

Sections 2455 and 2456 of the Code, authorizing an allowance
of costs in supplementary proceedings, provide for the order
therefor being made by “the Judge.”

Undoubtedly, this refers to the judge granting the original
order for the examination of the judgment debtor or third
person, but may possibly refer to any judge who may entertain
supplementary proceedings, as specified in Sec. 2434 of the
Code. It is unfortunate that the statute is not clearer in this
respect.

Under Sec. 2433 of the Code, only the judge who granted
an order for the examination of a judgment debtor in supple-
mentary proceedings may vacate the same, and consequently an
order by another judge vacating such an order with costs to the
judgment debtor is unauthorized and will be reversed on appeal.

Bamberger-Stern Co. v. Parts, 159 Supp. 647.

(C) To Judgment Creditor

(1) Statute

It is provided in Sec. 2455 of the Code that the judge may
- make an order allowing to the judgment creditor a fixed sum, as
costs, consisting of his witnesses’ fees and other disbursements,
and of a sum in addition thereto, not exceeding thirty dollars:
and directing the payment thereof out of any money which has
come or may come to the hands of the receiver or of the sheriff ;
or, within a time specified in the order, by the judgment debtor,
or other person against whom the special proceeding is insti-
tuted.

(2) Instances

A judgment creditor in supplementary proceedings may be
allowed a fixed sum as costs not exceeding $30.00, together
with witness fees and disbursements.
454 SUPPLEMENTARY PROCEEDINGS

Webber v. Hobbie, 138 How. Pr. 382; Hulsaver v. Wiles, 11
How. Pr. 446.

Costs may be awarded in favor of a judgment creditor and
against the judgment debtor in third party order proceedings
as well as in direct proceedings against the judgment debtor,
since Sec. 2455, Code of Civil Procedure provides for this,
whether the proceedings be instituted ‘against a judgment debtor
or other person.

Grinnell v. Sherman, 33 St. Rep. 27, 11 Supp. 682, 19 Civ.
Pro. Rep. 139; Tefft v.. Epstein, 17 Civ. Pro. Rep. 168, 7
Supp. 897.

A judgment creditor will not be granted costs in supple-
mentary proceedings where the examination of the judgment
debtor took place and an adjournment was taken to a subse-
quent day upon consent of the parties, but the judgment debtor
understood and believed that such adjournment was solely for
the purpose of examining witnesses and did not require his
attendance, and his attorney stated on a motion for contempt
for failing to appear on the adjourned day, that he was
willing to produce him and his wife who had been served tc
attend under an invalid subpoena, and the judgment creditor
expressly waived the contempt, and asked for the costs in
question.

Knowles v. De Lazare, 8 Civ. Pro. Rep. 386.

Supplementary proceedings must be held to be abandoned
so as to defeat a motion for costs therein, where, after the
institution thereof, the judgment creditor issued a new execu-
tion on which the judgment was collected in full.

Ritter v. Greason, 28 Misc. 656, 59 Supp. 1053.

Costs may be allowed to a judgment creditor under Sec. 2455,
Code of Civil Procedure, although before any examination
the judgment debtor had paid the balance due on the judgment.

Colne v. Girard, 19 Abb. N. C. 288.

An allowance of $15.00 costs was granted to a judgment
COSTS 455

creditor, although the judgment debtor had paid the balance
due on the judgment without examination.
Colne v. Girard, 19 Abb. N. C. 288.

(D) To Judgment Debtor

(1) Statute

Section 2456 of the Code authorizes costs to the judgment
debtor, against whom supplementary proceedings have been in-
stituted, where he has been examined therein, and property
applicable to the payment of the judgment has not been dis-
covered in the course of the proceeding. Such judgment debtor
may be allowed the same sum as costs as provided in the pre-
vious section, viz.: witnesses’ fees and other disbursements, and
a sum in addition thereto not exceeding thirty dollars. The
payment of such sum shall be directed, within a time specified
in the order, by the judgment creditor; except where it is al-
lowed to the judgment debtor out of any money which has come
or may come, to the hands of the receiver or of the sheriff.

(2) Instances

It is proper to award costs to a judgment debtor where no
property has been discovered, unless the judgment creditor can
show some good reason for his having required the judgment
debtor to submit to the examination.

Anonymous, 5 Super. Ct. Rep. (38 Sandf.) 725, 1 Code Rep.
N. 8. 118.

While there may be instances where costs should be granted
against a judgment creditor, yet if he has not been guilty of
bad faith, he should not be compelled to pay money to his judg-
ment debtor. If costs are granted against him they should be
deducted from the judgment.

Kress v. Morehouse, 8 St. Rep. 858.

It is not proper for a judgment debtor to obtain an order
456 SUPPLEMENTARY PROCEEDINGS

discontinuing with costs, supplementary proceedings instituted
against him before the referee’s report has been made, and no-
tice of the application given to the judgment creditor.

Kennedy v. Norcott, 54 How. Pr. 87.

Sections 2455 and 2456, Code of Civil Procedure, providing
that costs cannot be awarded to the judgment debtor unless he -
has been examined and no property discovered, does not pre-
vent the imposition of costs against a judgment creditor on the
dismissal of the proceedings at the instance of the judgment
debtor, as such provisions relate to costs of the proceeding and
have no relation whatever to the costs of a motion to dismiss.

Hutson v. Weld, 38 Hun, 142.

Where supplementary proceedings are instituted against a
judgment debtor, and upon a reference to determine if a certain
transfer was invalid and whether there was an indebtedness to
the judgment debtor, the latter succeeded and no property was
discovered on the examination, costs may be properly awarded
against the judgment creditor, but it is improper to include in
the order that the judgment debtor pay the fees of the stenog-
rapher, referee and his witnesses upon the reference and be
credited the same on the judgment. Instead there should be
inserted a provision that the judgment creditor pay such items.

Boelger v. Swivel, 1 How. Pr. N. 8. 372.

Where no examination has been had, the fact that the pro-
ceedings have been dismissed at the instance of the judgment
debtor because the affidavit on which the order was based was
defective, will not warrant the imposition of costs against the
judgment creditor, as there is no provision under See, 2456,
Code of Civil Procedure, for costs in such a case.

Simms v. Frier, 2 N. Y. Law Bull. 97.

An order allowing a judgment debtor $30.00 for counsel fee,
and $4.00 witnesses’ fees is not objectionable as not conforming
to Secs. 2455 and 2456 of the Code, since it may be inferred
that the item of $30.00 “for counsel fee” was intended as costs.

Hulsaver v. Wiles. 11 How. Pr. 446.
COSTS 45

caf

(E) To Third Persons

(1) Statute

Section 2456 of the Code provides for an allowance of costs,
consisting of disbursements and a sum in addition thereto, not
exceeding thirty dollars, to a third person where he has been
examined, in third party proceedings instituted against him,
and property applicable to the payment of the judgment has
not been discovered in the course of the proceeding. Payment
of the sum so allowed shall be directed within a time specified
in the order by the judgment creditor.

(2) Instances

The person against whom a third party order in supplemen-
tary proceedings is obtained, becomes a party to the special pro-
eceding, and may become entitled to costs under Sections 2432
and 2456 of the Code of Civil Procedure.

Howe, Matter of v. Stuart, 68 Misc. 352, 123 Supp. 971.

Costs may be awarded to a third party where, from the be-
ginning, he has denied having any property of the judgment
debtor in his hands or under his control, and after several days’
attendance and a long and searching examination it is decided
that his denial was true.

Anonymous, 11 Abb. Pr. 108.

(F) Against Attorney

Costs upon a motion in supplementary proceedings are dis-
cretionary but they cannot be imposed upon the attorney, ex-
cept in the form of a fine, and no basis for the imposition of a
fine upon him lies in the fact of mistaken zeal not combined
with deceit or other improper conduct.

Bird v. Wessels, 153 St. Rep. 329, 119 Supp. 329.

Costs imposed on vacation of an order for the examination
458 SUPPLEMENTARY PROCEEDINGS

of a judgment debtor, may be imposed upon the judgment cred-
itor’s attorney for misconduct and unfair practice.

Obermeyer & Liebman v. Adisky, 123 App. Div. 272, 107
Supp. 949.

(G) To and against Receiver

Although a receiver in supplementary proceedings is defeated
in his action to set aside a mortgage given by the judgment
debtor on the ground that the purchaser bought in good faith,
and was therefore entitled to protection, he may be allowed the
costs, out of moneys received by him, on his appeal in such
action.

Merry, Matter of, 11 App. Div. 597, 42 Supp. 617.

A receiver in supplementary proceedings who is made a party
defendant by the judgment debtor in his action to reach an in-
terest in an estate, is not entitled to costs therein, where he
merely answered in the action, asking payment of the judgment
under which he was appointed receiver; took no active steps in
the action, and allowed the plaintiff to conduct it by his own
counsel and at his own expense, as it would be inequitable to
deprive a judgment debtor (the plaintiff) of his costs, and the
defendant, against whom recovery was had, ought not to be com-
pelled to pay two bills of costs.

Arthur v. Dalton, 14 App. Div. 108, 43 Supp. 583.

A receiver in supplementary proceedings who procures him-
self to be illegally appointed receiver before recovery of judg-
ment, and takes possession of real estate pursuant to an unau-
thorized order of the court and does other illegal acts, will, in
an action brought by the rightful owner of the premises to re-
restrain the receiver from unlawful interference with the plain-
tiffs possession and the enjoyment thereof, be personally
charged with costs.

Robinson v. Wood, 60 Hun, 583, 39 St. Rep. 466, 15 Supp.
169,
COSTS 459
(H) How Costs Collected

The refusal of a judgment debtor to pay costs of supplemen-
tary proceedings awarded against him may be punished for
contempt, under Sec. 2268 of the Code (now Sec. 756, Judi-
ciary Law).

Holton, Matter of v. Robinson, 59 App. Div. 45, 69 Supp.
ID.

But a judgment debtor cannot be punished for contempt in
failing to pay an allowance of $30.00 costs to the judgment
creditor’s attorney out of the proceeds of property recovered in
such proceedings, as the latter alone are available for that pur-
pose.

Thompson, Matter of, 31 Misc. 802, 62 Supp. 1033.

Costs imposed against an attorney personally upon the vaca-
tion of order for the examination of a judgment debtor in
supplementary proceedings, can only be enforced by execution,
and contempt proceedings to enforce the same will not lie.

Obermeyer & Liebman v. Adisky, 123 App. Div. 272, 107
Supp. 949.

The court has power to direct a judgment debtor to turn
over a sufficient amount of personal property fraudulently
transferred by him and which the receiver in supplementary
proceedings has become vested with as the result of a suit
brought by him to set aside such transfer, to pay the costs of
the proceedings awarded therein.

Holton, Matter of v. Robinson, 59 App. Div. 45, 69 Supp. 33.

The $30.00 costs which may be granted under the Code of
Civil Procedure to a judgment creditor cannot be regarded as
motion costs, but the final costs of the proceedings, payable out
of any property discovered therein, or they may be directed to
he paid by the judgment debtor, but an execution will not lie
to collect the same.

Valiente v. Bryan, 3 Civ. Pro. Rep. 358.
460 SUPPLEMENTARY PROCEEDINGS

Where an attorney was directed to pay costs personally on
the vacation of orders in supplementary proceedings, such order
will not be enforced, where subsequently the judgment debtor
paid the judgment, and by agreement a reduction was made to
cover the costs which the attorney was directed to pay, since
such acts must be regarded as a payment thereof.

Obermeyer & Liebman v. Adisky, 123 App. Div. 272, 107
Supp. 949.
CHAPTER XXII

FILING PAPERS—NECESSITY

Under Sec. 2433, Code of Civil Procedure, stating that sup-
plementary proceedings are special proceedings and Section
825, Code of Civil Procedure, providing that a return or other
paper in a special proceeding, where other disposition is not pre-
scribed by law, must be filed . . . with the clerk of the
county in which the special proceeding is taken, etc., the depo-
sitions of witnesses in supplementary proceedings must be filed
with the county clerk, and the fact that the same were not used
on the appointment of a receiver, and were taken down and
written by a stenographer paid by the attorney for the judg-
ment creditor will not change the rule.

Foster v. Twigg, 18 Week. Dig. 563.

A judgment creditor may be compelled to file the examin-
ation taken in supplementary proceedings, as such examination
constitutes a court record, and must be filed under Sec. 825 of
the Code.

Renner v. Meyer, 22 Abb. N. O. 438, 6 Supp. 535.

So, a judgment debtor is entitled to an order compelling the
judgment creditor to file an incomplete examination of himself
and wife in supplementary proceedings instituted by the judg-
inent creditor, where it appears that the judgment debtor was
fined for contempt committed in such proceedings in the pres-
ence of the court, which fine he paid and the proceedings were
then and there dropped, since under Sec. 825 of the Code, it
is provided that a return or other paper in a special proceeding,
where no other disposition thereof is prescribed by law, niust
be filed.

Falkenberg v. Frank, 20 Misc. 692, 46 Supp. 675.

461
462 SUPPLEMENTARY PROCEEDINGS

Likewise, a judgment creditor may be compelled, at the in-
stance of the judgment debtor, to file his deposition and that
of a witness subpeened therein by the judgment creditor, and
he cannot defeat such order by showing that no adjournment of
the proceedings had been taken after the examination of the
judgment debtor, where such witness appeared and submitted
to examination without objection, since such facts defeated the
right of the judgment creditor to claim that the proceedings
were no longer pending because of failure of adjournment.

Cowen v. Bernard, Inc., 80 Misc. 394, 141 Supp. 252.

While a judgment debtor is not entitled as a matter of right,
to notice of the institution of supplementary proceedings
against a third party indebted to him, he may, however, move
in the proceedings and may require the judgment creditor to
file the order obtained by him discontinuing the proceedings,
and this although the statute may not require it to be filed.

Sinnott, v. First Nat. Bank of Hempstead, 34 App. Div. 161,
54 Supp. 417.

A referee in supplementary proceedings cannot refuse to file
his report until payment of his fees. If he refuse so to do the
judgment creditor may obtain an order compelling him to file
his report.

Brush v. Kelsey, 47 App. Div. 270, 62 Supp. 214.
CHAPTER XXIII

DISCONTINUANCE OR TERMINATION OF PROCEEDINGS

(A) By Order, 463.
(1) Statute, 463.
(2) When Order Granted, 464.
(3) Judge Granting Order, 465.
(4) Form of Order, 465.
(B) Abatement or Lapse of Proceedings, 465.
(1) Absence of Judge or Referee, 465.
(2) Failure to Adjourn or Continue, 467.
(3) Effect of Invalid Revival Order, 470.
(4) Order Not Served before Return Day, 471.
(C) By Estoppel or Election, 471.
(D) Effect of Appointment of Receiver, 472.

(A) By Order

(1) Statute

Under Sec. 2454 of the Code, supplementary proceedings
may be discontinued at any time upon such terms as justice
requires, by an order of the judge, made upon the application
of the judgment creditor. Where the judgment creditor un-
reasonably neglects or delays to proceed, or where it appears
that the judgment has been satisfied, proceedings may be dis-
missed, upon like terms, by a like order, made upon the appli-
cation of the judgment debtor, or of the plaintiff in a judgment
creditor’s action against the debtor, or of another judgment
creditor who has instituted like proceedings. Where an order
appointing a receiver has been made in the proceeding, notice
of the application for an order specified in this section, must be
given in such a manner as the judge deems proper, to all persons
interested in the receivership, as far as they can conveniently be
ascertained,

463
464 SUPPLEMENTARY PROCEEDINGS
(2) When Order Granled

Supplementary proceedings will be vacated where it is shown
that the judgment has been satisfied and there is nothing due
thereunder, since it is provided in Sec. 2454 that where it ap-
pears that a judgment has been satisfied, the judgment cred-
itor’s supplementary proceedings may be dismissed.

Cobb v. Edson, 118 St. Rep. 916, 84 Supp. 916.

In the case last cited, the judgment creditor claimed that the
judgment had been compromised by a collection agency, in
whose hands he had placed the judgment for collection, without
authority from him, but the court held this position untenable,
since it appeared that the judgment creditor, learning of the
compromise, demanded payment from the agency of the sum in
its hands derived from the settlement, as such act on his part
operated as a ratification of the same.

Where an appeal has been taken from the judgment upon
which supplementary proceedings have been instituted and secu-
rity given as required by the statute, this operates as a stay of
such supplementary proceedings, but there is no aythority for
the dismissal thereof on account of such appeal.

Cowdrey v. Carpenter, 17 Abb. Pr. 107, 25 Super. Ct. Rep.
(2 Robt.) 601.

Where it appears that the judgment debtor was discharged
in insolvency, and there is no defect appearing on the face of
such discharge, the latter is conclusive on a motion to set aside
the supplementary proceedings, and the judge cannot try the
validity of the discharge.

Robens v. Sweet, 48 Hun, 436, 16 St. Rep. 334, 1 Supp.
839, 28 Week. Dig. 417.

An ex parte order discontinuing supplementary proceedings
before the filing of the referee’s report is unwarranted.

Kennedy v. Norcott, 54 How. Pr. 87.
DISCONTINUANCE OF PROCEEDINGS = 465

(8) Judge Granting Order

Section 2454 of the Code, providing for the dismissal of sup-
plementary proceedings, states that the order of dismissal is to
be made by the judge, but does not specify what judge. Under
these circumstances, it is plain that Sec. 2433, subd. 1, of the
Code applies. This provides that an order, made by a judge,
out of court, may be vacated or modified by the judge who made
it, or it, or the order of the judge vacating or modifying it,
may be vacated or modified, by the court out of which the exe-
cution was issued.

It has been held that, under Sec. 2433 of the Code, an order
vacating an order for the examination of a judgment debtor in
supplementary proceedings made by a judge other than the one
who granted the original order, is without authority and will
be vacated.

Bamberger-Stein Co. v. Parts, 193 St. Rep. 647, 159 Supp.
647.

(4) Form of Order

In view of Sec. 767 of the Code of Civil Procedure stating
that a written direction of a court or judge not contained in a
judgment constitutes an order, an endorsement upon an order
for the examination of a judgment debtor as follows: ‘Proceed-
ing dismissed upon objection made by judgment debtor,” is
sufficient.

McAlpin v. Stoddard, 54 Mise. 647, 105 Supp. 9.

A form for this order is given in the list of Forms.

See Orders.

(B) Abatement or Lapse of Proceedings

(1) Absence of Judge or Referee

Supplementary proceedings are in the nature of an action,

and do not terminate by the failure of the judgment creditor
Garnishee—30.
466 SUPPLEMENTARY PROCEEDINGS

to appear on a day to which they had been adjourned, either
by the judge or referee, and the jurisdiction of the officer con-
tinues until the judgment is satisfied, or the proceedings
terminated by order of the judge or of a competent court.

Underwood v. Sutcliffe, 10 Hun. 453.

There is not loss of jurisdiction by reason of the fact that
the judge before whom an order in supplementary proceedings
was returnable was absent at the return hour named in the or-
der, and finding the office unoccupied, the judgment debtors,
after waiting some time left and returned home, but later, and
before the expiration of an hour, the judge did appear and the
counsel for the judgment creditor also appearing, the judge
made an order, in the absence of the judgment debtors, refer-
ring it to a referee to take testimony and to examine the judg-
ment debtors at an appointed time and place.

Reynolds v. McElhone, 20 How. Pr. 454.

Supplementary proceedings do not lapse, although the judge
granting the order for the commencement thereof is no longer
in office by reason of expiration of his term, but while in office
made an order transferring the unfinished business to his suc-
cessor, and the latter may make any necessary orders to continue
or carry on such proceedings.

Holstein v. Rice, 15 Abb. Pr. 307, 24 How. Pr. 185.

The fact that the referee does not appear upon the return day
named in an order in supplementary proceedings, although
both parties are present at such time, is not fatal to the pro-
ceedings, but the judge granting the original order may appoint
another referee, or direct a hearing before the same referee at
a later date. It was also stated by the court that it might have
been within the power of the referee to himself appoint a date
for a new hearing.

Allen v. Starring, 26 How. Pr. 57.

Again, it is said that the absence of the referee upon the
return day of the order in supplementary proceedings does not
operate as a termination of the proceedings, and the judge
DISCONTINUANCE OF PROCEEDINGS — 467

‘granting the order may make another order continuing the pro-
ceeding and directing the judgment debtor to appear for ex-
amination.

Kethen v. Shipherd, 16 Civ. Pro. Rep. 183, 24 St. Rep. 739,
4 Supp. 339.

In the case last cited, the referee had, before the application
to the judge for the order continuing the proceeding, himself
made an order directing the judgment debtor to appear, but the
court did not pass upon the question whether the referee had
that power.

(2) Fatlure to Adjourn or Continue

The fact that a receiver in supplementary proceedings is not
appointed until nearly three years after the examination, and
there is no showing that the proceedings were adjourned from
{ime to time, does not create a presumption of loss of jurisdic-
tion by the court. It is the necessary deduction from the char-
acter of the jurisdiction which the court and officers have in
these proceedings that they do not abate by failure to make reg-
ular adjournments.

Wright v. Nostrand, 94 N. Y. 31.

And the mere adjournment of supplementary proceedings to
a time thereafter to be fixed does not operate as an abandon-
ment of the proceedings.

Rothschild, Matter of, 84 App. Div. 196, 82 Supp. 558.

And in another case, it was held that the omission in the rec-
ord to show a regular adjournment does not raise a presumption
of loss of jurisdiction.

Robertson v. Hay, 12 Misc. 7, 38 Supp. 31.

It does not constitute an abandonment of supplementary pro-
ceedings so as to defeat a motion to punish a judgment debtor
for contempt, where, after partial examination on May 14th,
at which time the judgment debtor refused to answer certain
questions, an adjournment was taken until May 21st, but the
468 SUPPLEMENTARY PROCEEDINGS

judgment creditor did not make a motion to punish the judg-
ment debtor for contempt until the following 7th of November.

Stanley v. Lovett, 14 Wun, 412.

Tt does not constitute loss of jurisdiction or termination of
supplementary proceedings, where, while the latter were ad-
journed to a certain day, the judgment debtor obtained an order
to show cause why the proceedings should not be set aside with
stay of proceedings until the motion should be decided, which
motion came on for hearing and was decided in favor of the
judgment debtor, but was subsequently reversed on appeal, and
this although no further adjournment of the supplementary pro-
ceedings was made.

Woolf v. Jacobs, 36 Super. Ct. Rep. (4 J. & S.) 408.

But where a judgment debtor has been examined in supple-
mentary proceedings, and the latter are not adjourned for ex-
amination of other witnesses, a third party need not obey
a subpeena for his examination as a witness at a later date, un-
less the proceedings have been revived or reinstated on notice,
but if such witness appear and submit to examination without
objection, the question of lapse of the proceedings cannot be
raised. :

Cowen v. Bernard, Inc., 80 Mise. 394, 141 Supp. 252.

And while undoubtedly the failure to adjourn supplementary
proceedings does not operate as a termination thereof, yet the
judgment debtor cannot compel the appearance and examina-
tion of a witness therein without notice to the judgment debtor,
where he has failed to continue the adjournments.

Thomas v. Kircher, 15 Abb. N. S. 342.

Supplementary proceedings must be deemed lapsed and in-
effective so as to defeat the right of the judgment creditor to
procure the attendance of witnesses to testify in the proceeding,
where the judge granting the order for the examination, de-
clined to pass upon a motion for the appointment of a receiver,
and the judgment debtor, on an adjourned day of the exami-
nation, appeared and signed, and swore to his testimony, but
DISCONTINUANCE OF PROCEEDINGS = 469

nothing further was done at that time and no formal adjourn-
ment was taken, or proceedings had, except that another judge
issued a subpena for such witness to appear and submit to ex-
amination. .

Wilson v. Bracken, 150 App. Div. 577, 185 Supp. 435.

Where the last hearing upon an examination in supplemen-
tary proceedings was completed in November 1887 and an ad-
journment taken to a day not fixed, and nothing further was
done until April 1891, when a second order for examination
was obtained, it must be held that the proceedings under the
first order were abandoned, and the injunction clause contained
therein must be deemed no longer in force.

Afeyers v. Herbert, 64 Hun, 200, 45 St. Rep. 626, 19 Supp.
132, 22 Civ. Pro. Rep. 216.

The fact that a judgment debtor voluntarily attends and sub-
mits to examination under the order and without objection
operates as a waiver of any irregularity in the adjournment of
the proceedings.

Robertson v. Hay, 12 Mise. 7, 33 Supp. 31.

Supplementary proceedings must be regarded as still pend-
ing so as to necessitate notice to the judgment creditor of an
application by another creditor for the appointment of a receiv-
er in supplementary proceedings instituted by the latter, where
the judgment debtor having been examined and an adjournment
taken to a certain day for further examination if desired, notice
of which was to be given the judgment debtor, but no such
notice was given, and on the adjourned day nothing was done
except that the referee was requested by the attorney for the
judgment creditor to adjourn the proceedings.

Barnett v. Moore, 20 Misc. 518, 46 Supp. 668.

Supplementary proceedings must be regarded as abandoned
and not in force, where the examination thereunder was com-
pleted and an adjournment taken to a day not fixed, and nothing
further was done thereunder until more that three years had
expired, when a uew order for the judgment debtor’s exami-
470 SUPPLEMENTARY PROCEEDINGS

nation was obtained, and proceedings taken to punish the judg-
ment debtor for contempt in disposing of certain articles of
personal property, as being in violation of the injunction order
contained in the first order.

Meyers v. Herbert, 64 Hun, 200, 45 St. Rep. 626, 19 Supp.
182, 22 Civ. Pro. Rep. 216.

Supplementary proceedings do not abate by want of prosecu-
tion, and they are not actually terminated until an order dis-
continuing them has been made pursuant to Sec. 2454 of the
Code.

Roscoe Lumber Co. v. Payne, 183 St. Rep. 331, 149 Supp.
33l.

While jurisdiction of a judge before whom supplementary
proceedings are instituted is not lost by failure of a judgment
creditor to appear on an adjourned day, it is irregular to there-
after proceed upon the original order after such failure to ap-
pear, and the proceedings would be set aside on motion or on
appeal.

Underwood v. Sutcliffe, 10 Hun. 453.

Where the examination of a judgment debtor in supplemen-
tary proceedings is completed, it will not be reopened except
upon special order therefor and upon good grounds being shown.
Furthermore, the application must be made upon proper affida-
vits and notice to the judgment debtor.

Orr’s Case, 2 Abb. Pr. 457,

(3) Effect of Invalid Revival Order

Where the order directing the examination of a judgment
debtor, not being served before the return day, was changed by
another justice of the same court by substituting a later date,
the order not being signed by the second justice but his initials
being written in the margin opposite the alteration, it must be
held that such order ceased to be the order of any justice, and,
DISCONTINUANCE OF PROCEEDINGS 471

having been served after the original date for appearance, was
not operative.

Vogel v. Ninmark, 62 Misc. 591, 116 Supp. 825.

Under Sections 26 and 2483, Code of Civil Procedure, an
order in supplementary proceedings may be continued by an-
other judge of the same court, but such continuance cannot be
made by the judge merely striking out the original return day,
inserting a later date and putting his initials and title of office
upon the margin opposite, as the sections of the Code mentioned
contemplate the making of a new order duly signed.

Ward v. Stoddard, 144 App. Div. 148, 128 Supp. 846, 2
Civ. Pro. Rep. N. 8. 375.

(4) Order Not Served before Return Day

Orders in supplementary proceedings which are not served
before the return date becomes void and inoperative unless re-
vived by the judge granting them.

German Exchange Bank v. Schlang, 92 Mise. 351, 155 Supp.
924,

(C) By Estoppel or Election

The obtaining of a second order for the examination of a
judgment debtor, after failure to continue the first proceedings
by adjournment from time to time, operates as an election to
abandon the first proceedings.

Schanck v. Conover, 56 How. Pr. 487.

Supplementary proceedings are not discontinued within the
meaning of the statute, where a motion having been made to
punish the judgment debtor for failure to appear, the same was
denied with a provision that the judgment creditor have the
right to obtain a second order for the judgment debtor’s exam-
ination, which he did, as such second order would not operate
as a discontinuance of the first proceedings.

Crystal v. Crystal, 154 St. Rep. 50, 120 Supp. 50.
472 SUPPLEMENTARY PROCEEDINGS

The question as to whether a judgment creditor will be
estopped from continuing supplementary proceedings by the
acceptance of money and notes in payment of the judgment,
arose in Wilson v. Bracken, 150 App. Div. 577, 185 Supp. 435,
but was not decided.

It has been held that where, after the institution of supple-
mentary proceedings, the judgment creditor issued a second
execution on which the judgment was collected in full, such
proceedings abated, so that the judgment creditor could not be
allowed costs therein.

ilter v. Greason, 28 Mise. 656, 59 Supp. 1053.

(D) Effect of Appointment of Receiver

The mere fact that a receiver in supplementary proceedings
has been appointed does not operate to terminate the proceed-
ings, although regular adjournments thereof are not taken,
since such proceedings must be deemed pending for the purpose
of enabling the receiver to reach any assets of the judgment
debtor.

Murphy v. Cram, 157 App. Div. 609, 142 Supp. 972.

The fact that a receiver is appointed before the completion
of the judgment debtor’s examination does not operate to divest
the judge of jurisdiction of the proceedings so that he cannot
punish the judgment debtor for refusal to answer questions on
his further examination.

People ex rel. Fitch v. Mead, 29 How. Pr. 360.
CHAPTER XXIV

FORMS

GARNISHEE EXECUTION.

NO. 1.

 

Joun Dog,

Plaintiff, Affidavit for Garnishee
Execution—Court Not
vs. of Record.

Ricuarp Roz, (Sec. 1891 Code)
Defendant.

 

 

State or New York, }

Coping of os iakwae wate ae

PeaGe GaGa meee emacs (atlorney, agent or plaintiff) of
the! si gawweeeenins (City, or town) Of ... cece cece eee eee ;
N. Y., being duly sworn, says that upon the .......... day
DL wis ocwias aes we , 19...., Judgment was duly recovered,

rendered, entered and perfected in the above-entitled action
: 473
ATL SUPPLEMENTARY PROCEEDINGS

WPUNe se cRey hc Veeseawars Coutior the nageieeee sox (City
DE TU): WE eee salen ee ,N. Y., before c..ceceseaee
pos eae kis wae (Judge or Frustles of he Peace) of the said
court, in favor of said John Doe, plaintiff, and against the said
Richard Roe, defendant therein, for the sum of ..........
Dollas and 1444. see00n Cents (Seine ewer xwenese ), dam-
ages and costs; that said judgment was duly rendered upon
the appearance of (or personal service of the summons upon)
said judgment debtor; that an execution against the property
of the said judgment debtor was'thereafter and on the ........
Cay Ob fu sane tie. Geese , 19...., duly issued by said court
upon said judgment, and delivered to ...........0.05- , a
constable (or marshal) of said town (or city) and said con-
stable (or marshal) has duly returned said execution to the
said court, wholly (or partly) unsatisfied, and said judgment
remains wholly (or partly) unsatisfied, and in full force and
not impaired, annulled or satisfied, and no execution is out-
standing thereon.

That the amount of said judgment now remaining unpaid

and unsatisfied is .............-.. Dollars and ..........
Cents (8s c.ctece eee sn ves ), with interest thereon from the
Msi irenssvesare day 08 ..y tigeetaee yaieieg LOG iis

That wages, debts, earnings, salary, income from trust funds,
profits (omit inapplicable words), are due and owing to said
Richard Roe, the judgment debtor, and will hereafter become
due and owing to him to the amount of ................
Dollars ($12.00 or over) per week, as follows: (Here state fact
of employment, or existence of trust fund, debts or profits,
with name and address of person or corporation from whom
same due, together with the sources of deponent’s knowledge).

That deponent is the ................ (attorney or agent
of or said judgment creditor) and duly authorized to make
this application.

That deponent hereby applies for the issuance of an execution
against said wages, debts, earnings, salary, income and trust
FORMS 475

funds, profits (omit inapplicable words), under Section 1391
of the Code of Civil Procedure.

Sworn to before me this ..........
day of .....6..40085 gl O icine

Garnishee Execution—Court Not of Record.
(Sec. 1391 Code)
State or New York,
County of .........66. bss
Tue ProrLe or THE State or New Yor«
To any Constable (or Marshal) of said County (or City of
Wuerseas, Judgment was duly rendered by ..............

(Name of Judge or Justice of the Peace, with title of office)
against Richard Roe, defendant, in favor of John Doe, plain-

tiff, on the ............ GaYOL aces vanes nes AO cao
for the sum of ..........6-5. Dollavs and ..............
Cente (Rese ec cen nea ae aes ), recovery.

Awp wueEREsS, There is now actually due upon the said
judgment, at this date, the sum of .............. Dollars
ANE oes bee eee Cents: (Gieciccsgawesamews ), with inter-
est thereon from the .......... GAY Of ewe sin ewe ves oe

1D acess
476 SUPPLEMENTARY PROCEEDINGS

Anp wHeEreas, Satisfactory proof has been made to me by
affidavit of the foregoing facts, and also that an execution
duly issued upon said judgment against the property of said
judgment debtor has been heretofore returned wholly (or
partly) unsatisfied, and there remains unpaid thereon the
amount aforesaid.

That there are wages, debts, earnings, salary, income from
trust funds, profits (omit inapplicable words) due and owing
to the judgment debtor and to become due and owing to him
to the amount of .............. Dollars ($12.00 or over) per
week from ........0.002000. (name of employer or trustee).

You arp, THEREFORE, Required to satisfy said judgment
out of said wages, debts, earnings, salary, income from trust
funds, profits (omit inapplicable words) of said Richard Roe,
the said judgment debtor, as follows: You will collect from
said wages, debts, earnings, salary, income from trust funds,
profits (omté inapplicable words) now due, ........... (state
percentage, not exceeding 10%) and ............ (slate per-
centage, not exceeding 10%) from said wages, debts, earnings,
salary, income from trust funds, profits (omit inapplicable
words) as the same shall become due, until the said judgment
and this execution, and the expenses thereof, are fully satisfied
and paid, and to bring the money before me (or said court) to be
rendered by me (or it) to the party who recovered said judg-
ment.

Dated at the said .......... Of cvstewseeensesey Ny Vo,
DIS: ais tasea cea Gay OL 46 sa weiss teks eels se Ores
Debt, - $.. 2... eee
Costs, Dccucnisesenns

Judgement, $.ss002<ses

a Redes SRR Ry Oia (Signature of Judge)

Roa aias vrstxaeeeewa (Lele of Offtee)
FORMS ATT

 

NO. 3.
Saiaenbien ek are areas Count, Couniy OW 6 eabeek see ies vss
Joun Dos,
pe Affidavit for Order for
a § Garnishee Execution.

RicuarD Ror (See. 1391 Code)

Defendant.

 

 

State or New York,
SS. ¢

Conity OL sasasuavewed

CREW EM A ER Ewen eile hae ees (attorney, agent or plaintiff), of
the ewe ieee ees (erty or town) Of oscwsan evens ees ;
N. Y., being duly sworn, says that upon the ........... day
OF iiaanada eae ees , 19...., Judgment was duly recovered,
yendered, entered and perfected in the above-entitled action
I THO? say saga dod amtin ges Count OF gcca teenie seekes in
favor of John Doe, plaintiff, and against the said Richard Roe,
defendant therein, for the sum of .............02. Dollars
Q0G. oscewuiee ieee Cents, damages and ..............-
Dollars and .....-..-...000- Cents, costs, amounting in all
10 Bis cies Gains sweet ; that said judgment was duly rendered

upon personal service of the summons upon the said judgment
dcbtor (or upon the appearance of said judgment debtor),
and said judgment was duly docketed and the judgment roll
filed on that day.
478 SUPPLEMENTARY PROCEEDINGS

(That a transcript of the original docket of the said judg-
ment was filed, and the said judgment was duly docketed in

the office of the Clerk of the County of ..........20-004- on
PRO oie ace ee ae sts GAY OP niiwseieatn aia eee pleas)

That an execution against the property of said judgment
debtor was thereafter and on the .......... day of ........
we Ried Beccles , 19...., duly issued out of a court of record, viz.,
the anrias ce eee Court aawe ae ewee upon said judgment,
and delivered to the Sheriff of ................. County,

where said judgment debtor, Richard Roe, then resided and yet
resides.

That said Sheriff has duly returned said execution to the
eee ee County Clerk’s office wholly (or partly)
unsatisfied, and that said judgment remains wholly (or partly)
unsatisfied and in full force and not impaired, annulled or satis-
fied.

That the amount of said judgment now remaining unpaid

and unsatisfied is ............. Dollars and ...........-.
Cents (Ssivieverevse wees ), and interest thereon from the
Bromine’ ¢ day Of os. esas ceva sl ecy AD:

That wages, debts, earnings, salary, income from trust funds,
profits (omit inapplicable words) are due and owing to said
Richard Roe, the judgment debtor, and will hereafter become
due and owing to him to the amount of ............. Dollars
($12.00 or over) per week, as follows: (Here state fact of em-
ployment or existence of trust fund, debts, or profits, with
name and address of person or corporation from whom same
due, together with the sources of deponent’s knowledge. )

That no previous application for the order applied for on
this affidavit has been made to any court or judge.

That deponent is the ................ (attorney or agent
of, or said judgment creditor) and duly authorized to make:
this application.

That application is hereby made for an order directing the
issuance of an execution against said wages, debts, earnings, sal-
FORMS 479

ary, income from trust funds, profits (omit inapplicable words)
under Section 1391 of the Code of Civil Procedure.

Sworn to before me, this..........
day OL os desi cgpees y AD eave

i

 

 

NO. 4
Wola ac aha Werte ev eho auaecteant Court, CoUNTY OF ...cceceecec weer’
Joun Dos,
Pet, Order for Garnishee Exe-
Hg L cution,
Ricuarp Roz, (Sec. 1891 Code)
Defendant.
J

 

On the pleadings, proceedings, judgment, execution and
return thereof in this action, and on reading and filing the
affidavit Of ........ cee ee eens verified the

ebier eebdebanana day
OL ee ciwds ee , 19...., and it appearing to my
satisfaction therefrom that on the ......... Pkeee day of

donee eoeeeceeeseee, 19...., Judgment was duly recovered,
480 SUPPLEMENTARY PROCEEDINGS

rendered, entered and perfected in the above-entitled action in

The Sie lawun exes Courts souoreresiekwess in favor of
John Doe, plaintiff, and against Richard Roe, defendant therein,
for the suit Of «0. cae ee 6 ee Dollars and ..............
Cette (Di seman aaa Je

That said judgment was duly rendered upon personal serv-
ice of the summons upon said judgment debtor (or upon his
appearance).

(That a transcript of the original docket of the said judgq-
ment was filed, and the said judgment was duly docheted in
the office of the Clerk of the County of ..........eeeeeee on
LRGs coarse dara CON OF sigs eee gees ip Dieses)

That an execution against the property of said Richard
Roe, the judgment debtor, has been duly issued to the Sheriff
of the proper County upon the aforesaid judgment, and that
said execution has been returned by the said Sheriff wholly
(or partly) unsatisfied, and that said judgment still remains
wholly (or partly) unsatisfied, and that the amount now due

on said judgment is ............ Dollars and ............
Cents ($........6. .ees..-), and interest thereon from the
wa Raa day Of sccsews seea case cg AQee ai

That wages, debts, earnings, salary, income from trust funds,
profits (omit inapplicable words) are due and owing to said
Richard Roe, the judgment debtor, and will hereafter become
due and owing to him to the amount of ................
Dollars ($12.00 or over) per week, as follows: From (here state
name and address of employer, trustee or other person, with
fact of employment or existence of trust fund, etc.).

Now, on motion of ...........eeeee , Esq., attorney for
said John Doe, the judgment creditor

Orperep, That an execution issue for the collection of the
said amount of said judgment now unpaid against the said
wages, debts, earnings, salary, income from trust funds, profits
(omit inapplicable words) of said Richard Roe, the judgment
debtor, directing .................. , the person (or corpora-
FORMS 481

tion) from whom such wages, debts, earnings, salary, income
from trust funds, profits (omit inapplicable words) are due and
owing and will hereafter become due and owing to the said
Richard Roe, the judgment debtor, to pay over to the officer pre-
senting said execution ........... (not exceeding 10%) from
said wages, debts, earnings, salary, income from trust funds,
profits (omit inapplicable words) now due, and ..........-..
(not exceeding 10% thereof) as the same shall become due until
said execution shall be wholly satisfied.

DRissseuBeseoies every (Signature of Judge)

eT er Tee Tene eee (Title of Office)

NO. 5.

(Garnishee Execution—Court of Record.)
(Sec. 1891 Code)
Tue PropLe or THE StTaTE or New York
To the Sheriff of the County of ......... 0.00008:

Wuereas, Judgment was rendered in the ..............
Court waaiwesewueeees of the State of New York, in an action
wherein John Doe was plaintiff, and Richard Roe was defend-
ant, in favor of the said John Doe, and against the said Richard
Roe, on the .......... Nae. escesesauwewss es 5 1D es

for the sum of .........--00- Dollars and ..............
Garnishee—8l.
482 SUPPLEMENTARY PROCEEDINGS

Cents, ($...... Maehuvsem ); the Judgment Roll in which
said action was on that day filed, and Judgment then dockcted
in said court. (That a transcript of the said judgment was
duly filed and said judgment was duly docketed in the County

Clerk’s office of your County, on the .........4.. day of
aeainuraaiace aba s , 19....); and whereas there is now actually
due on the said judgment the sum of ...........4-. Dollars
ANA cheneoins BGs ae Cents ($.........005 ), with interest
thereon from the .......... GAY OF cain germs cia p19 555

Awp wuereas, An execution duly issued out of a court of
record to the Sheriff of the proper county upon said judgment,
against the property of said judgment debtor, has been hereto-
fore returned by the said Sheriff wholly (or partly) unsatis-
fied, and there still remains unpaid thereon the amount afore-
said.

Anp wurreas, There are wages, debts, earnings, salary, in-
come from trust funds, profits (omit inapplicable words) due
and owing to the judgment debtor, and to become due and

owing to him, to the amount of .............4.. Dollars
($12.00 or over) per week from ...... nese eee ae (name and
address of employer or trustee).

Awp wHeEreEas, An order has been duly granted by Hon. ....
ice Gatto wielcele bas (Judge or Justice) of the ............066-

Court, upon satisfactory proof to him by affidavits and other-
wise, of said facts hereinbefore stated, directing that an execu-
tion issue for the collection of the said amount of said judg-
ment unpaid and unsatisfied, against the said wages, debts,
earnings, salary, income from trust funds, profits (omit in-
applicable words) of said Richard Roe, the judgment debtor,
and directing ..............6.. the person (or corporation)
from whom said wages, debts, earnings, salary, income from
trust funds, profits (omit inapplicable words) are due and owing
and will hereafter become due and owing to the said Richard
Roe, the judgment debtor, to pay over to the officer presenting
such execution ........0-8-. (state percentage, not exceeding
FORMS 483

10%) from said wages, debts, earnings, salary, income from
trust funds, profits (omit inapplicable words) now due and
Eve beelikesonhe (state percentage, not exceeding 10%) as the
same shall become due until said execution shall be wholly
satisfied.

You ARE, THEREFORE, Required to satisfy said judgment out
of said wages, debts, earnings, salary, income from trust funds,
profits (omit inapplicable words) of said Richard Roe, the
said judgment debtor as follows: You will collect from said
wages, debts, earnings, salary, income from trust funds, profits
(omit inapplicable words) now due .........seeeeeee (state
same percentage as above), ANd ..... see eee ee eee (state same
percentage as above) from said wages, debts, earnings, salary,
income from trust funds, profits (omit inapplicable words) as
the same shall become due until the said judgment and this
execution, and the expenses thereof, are fully satisfied and paid.

And to return this execution, with your proceedings thereon,
to the Clerk of the County of ......... seeeeesy Where said
Judgment Roll is filed as aforesaid.

Wrrwness, Hon. ........04-: ee eT , one of the Judges
(or Justices) of said Court, this ........ day Of ocaves ss 4
Tossa

Clerk.
484 SUPPLEMENTARY PROCEEDINGS

 

NO. 6
ee eee ee ee COURT: sieiwxesu eds vee vee ae
Joun Doz,

Plaintiff, Complaint in Action

vs. : against Employer.

. 1891
Ricuarp Ror, (Sec. 1391 Code)
Defendant.

 

 

The plaintiff above named, for his complaint herein, al-
leges:

1. That the defendant herein resides in the .........+..6-
(City or Town) of 2... cece cece cece eee ees , County of
(ieeeivaseerewee , State of New York. (This allegation is
necessary where action is brought in a court of limited terri-
torial jurisdiction. )

2, That heretofore and on the .......... day of ........
adeshea iehawaieeee , 19...., upon personal service of the summons
on the defendant in the action (or his appearance) this plain-
tiff duly recovered judgment against one ................. ;
said defendant (the employee) in the .............0.e 00 eee
Court Of Gavautruwseeweses for the sum of $............ :

damages and costs, the judgment roll in which action was
filed and said judgment duly docketed on that day (that a
transcript of the original docket of said judgment was filed,
and the said judgment duly docketed in the office of the Clerk
of the County of ....-.200eseueee on the .......... day
OL Fe Baeeeees Shoes , 19....); that an execution against
the property of said judgment debtor, Richard Roe, was there-
after and on the ........... CAS 2OF Wisin een eine nae aetencte i
FORMS 485

19...., duly issued out of the ...............05- Court of
CPHEGG ANS ARERR RS upon said judgment and delivered to the
Sheriff (or constable or similar officer) of «2.1... ..00e eee

County (or City or Town) where said judgment debtor, Rich-
ard Roe, then resided and now resides, and the said Sheriff
(or constable or similar officer) has duly returned said execu-
TG 10 THe sesamiae See wanes County Clerk’s office (or to
the court issuing execution if not of record) wholly unsatis-
fied, and said judgment still remains wholly unpaid and unsat-
isfied.

3. That thereafter and on the .......... day of ........
bee een , 19...., an execution against the wages, earnings
or salary of said judgment debtor, Richard Roe, under Sec-
tion 1391, Code of Civil Procedure, was duly issued on such
judgment pursuant to order (or direction) of ..........6...
(a judge or justice of the said court) dated the ........ day
OL ahaha tempore ee +, 19...., and said execution was there-
after and on the .......... day of
19...., delivered to the Sheriff (or constable or similar officer)
OE Secwu aes eevee (City, Town or County), where said judg-
ment debtor then resided and now resides, and said officer duly
presented the same to .......... eee the defendant herein,
the employer of said judgment debtor, as provided in said stat-
ute, on the .......... day Of waswiwe caves nice 5 AD aks
that said execution directed said defendant employer to retain
out of said judgment debtor’s wages, earnings or salary 10%
thereof to apply on plaintifi’s said judgment, but said defendant
then and there refused to deduct such percentage as directed
in said execution and still refuses so to do, although at said
times of refusal and at the present time said judgment debtor
received and now receives for his services from said defendant
employer a sum in excess of $12.00 per week, viz.: the sum of
Bicteceieceenes per week. That during all such times there was no
similar execution against the wages, earnings or salary of said
judgment debtor outstanding and unsatisfied, and such refusal
on.the part of the defendant was and now is in direct violation
486 SUPPLEMENTARY PROCEEDINGS

of such execution and wholly unwarranted and without excuse.

4. That a copy of said garnishee execution marked “Exhibit
A” is hereto annexed and made a part of this complaint.

5.. That there has accumulated and become due on said gar-
nishee execution the sum of $............ ; no part of which
has been paid, although payment thereof has been duly de-
manded as heretofore stated.

Wuerrrorr, plaintiff demands judgment against the defend-
ant herein for the sum of $............ , besides the costs of
this action.

wee eee ewe www ee eee eee

Gi: Pi wees te lca eee ca Do)
and
PO, Atldrest || guvvewpnetuseetere te yrieeesvees sions

(Add usual verification of complaint.)

 

Joon Dos,

Plaintiff—Judgment Creditor, Aga oe ato te

Vacate Garnishee Exec-
utor.

vs.

Ricuarp Rog,

Defendant—Judgment Debtor. (Pes. 007 Cade)

 

 

Stare or New York, a
County of ....2eeerees

Richard Roe, being duly sworn, says that he is the defend-
FORMS 487

ant and judgment debtor in the above-entitled action; that
on the .......... day of suxaiceiesvew nea 5 AQ. cea, a
judgment was rendered in said action in favor of the above
named plaintiff and judgment creditor and against deponent for
the sum of $............ damages and costs. That said judg-
ment is still unpaid and unsatisfied.

That as deponent is informed and believes, an execution was
subsequently issued on said judgment against the property of
deponent and the judgment debtor herein, and the same was

thereafter returned by the Sheriff of ............. .. County
wholly unsatisfied.
That on or about the .......... day Of waveeewecas eeeleisy

19...., as deponent is informed and verily believes, a garnishee
execution was issued on said judgment against the wages, salary
or income of deponent under Sec. 1391 of the Code of Civil
Procedure and such execution is still outstanding. That said
garnishee execution was issued pursuant to an order dated
sdb as haa ara rete ees 19...., made by Hon. ................
one of the Judges (or justices) of the ............6.. Court.
(Here recite grounds of application, as)

Your deponent is informed that J. B. Co. of Rochester, N. Y.
has been served with a copy of the garnishee execution afore-
said, which recites that deponent is in the employment of said
J. B. Co., and that deponent’s wages, earnings, and salary
amount to $50.00 per week and that such sum is payable to de-
ponent by said J. B. Co. by reason of said employment, each and
every week, and that the same is now due and owing to deponent,
and shall thereafter become due and owing to him.

Deponent further says that said J. B. Co. is not in fact
indebted to deponent as recited in said execution or is it under
any obligation to pay deponent any sum whatsoever, and de-
ponent is not in the employment of said J. B. Co. and never has
been, and there is not now and never has been, any wages,
earnings or salary due or owing to deponent from said J. B.
Co.
488 SUPPLEMENTARY PROCEEDINGS

That no previous application for the order herein applied for
has been made.

WHEREFORE, your deponent respectfully prays that the said
order herein of Hon. ..........eeeeeees , dated the .......
G87 Ol iciudegdiaee mineeeee ,19...., directing the issuance
of the garnishee execution as aforesaid, and the execution
issued thereon, be set aside and vacated, on the ground that the
facts as above stated are insufficient in law to warrant said
order and execution; for the costs of this motion and for such
other and further relief in the premises as may be just.

Sworn to before me this ..........
GAe OL New dvoaengcass p AD aks

ee

Notary Public.

Add supporting affidavit by an officer of the J. B. Co. as to
defendant not being in its employment.

ee ee ee Court, .............. Coumry.

 

Joun Dos,

Plaintiff—Judgment Creditor, Notice of Motion for

Order Vacating Order
and Garnishee Execu-

vs. :
tion.

Ricuarp Ros,

Defendant—J udgment Debtor. (Sec. 1891 Code)

 

 

Please Take Notice, that upon the affidavit of Richard Roe,
FORMS 489

Verified ivisccscceeawent 19ss.s, and.ot . acess ee ee
verified on the same day, copies of which are herewith annexed
and served upon you, and upon the order made herein, dated

SS AeGetad tahoe oats DOS os Dy OM 2a) scsee arent erote e eeer es
one of the Judges of the ........... Court, and the execution
issued thereunder, dated ................ 19...., the de-

fendant-judgment debtor herein will move this Court at a Spe-
cial Term thereof to be held at the Court House in the City
: Seta eit ge Nie Mo FOW the ceciseue wets ses day of ..........

. (See, 1391, Code of Civil Procedure provides that such
oo shall be given as the Court or judge shall prescribe)
at 10 a. M. or as soon thereafter as counsel can be heard, for an
order vacating and setting aside the said order, heretofore made
herein and the said garnishee execution issued pursuant thereto,
upon the ground that under the facts herein, as set forth in said
affidavits served herewith, no ground exists for the making of
said order nor the execution issued thereunder under Sec. 1391
of the Code of Civil Procedure, and for the costs of this motion,
together with such other and further relief in the premises as

may be just.
Dated) ved ceeww wae es AD sie.
‘Attorney for Defendant—Judgment Debtor.
Office? |) aeeetasiwe san keaaeiaewere ,
and
P, 0. Aaldress | sucveseuhovessarevede essen eenes
To

Attorney for Plaintif—J udgment Creditor,
490 GARNISHEE EXECUTION

NO. 9.

At a Special Term of the ........... Court,
held in and for the County of ............ , at
the Court House in the City of .............. 5
IN. YON acs eiace'ees day OF are w enarnewa
1D sicie

Present:
03 Ke Reena ee are ee ee ol alieees Siete 7
Judge (or Justice).
hes dete gates COURT, eats County.

 

Joun Doz,
Plaintiff—Judgment Creditor,

vs.

Ricuarp Rog,
Defendant—Judgment Debtor.

 

 

Order on Motion to Va-
cate Garnishee Execu-
tion.

(Sec. 1391 Code)

A motion having been made herein by the defendant and
judgment debtor for an order vacating and setting aside the
FORMS 491

order heretofore made by the Hon. ...............655 zou
one of the Judges of the .......... Court, authorizing the issu-
ance of an execution against the wages, earnings and salary of
the defendant and judgment debtor, and vacating and setting
aside the execution issued pursuant to said order, and the said

motion having regularly come on to be heard on the ..........
day Olas. bes knaeaces das Re eee

Now, after reading and filing the notice of motion herein,
the affidavits of Richard Roe and ................ both veri-
fied on the .......... day Of siacteaseswwovies 5 LD racy
and after hearing’ «<..<00s «vss .... Esq. of counsel for de-
fendant and judgment debtor, in support of said motion, and,
after reading and filing the affidavit of John Doe and........
baa iese ar ete verified on the ........ day of ........e eee,
19...., in opposition, and after hearing ...... ep lesap a tania ts :

of counsel for the plaintiff and judgment creditor in opposi-
tion thereto, and due deliberation having been had, it is hereby

OrverED, that said motion be and the same hereby is granted
and said order and garnishee execution are hereby vacated and
set aside with $10.00 costs of this motion.

Enter

Levene eewesse es ereeresreeseeseeeae ee
4u2 SUPPLEMENTARY PROCEEDINGS

ewer e ee eer eee ree ee te woe

 

In the Matter of the Examination
of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

_ Judgment Creditor.

Under a Judgment Recovered in

an Action Entitled
SAV oe Courts yaks
OLIN. upset anes: a Ne Xe
Joun Dos,
Plaintiff,
vs.

Ricuarp Rog,
Defendant.

 

 

State or New York,
County of ...........

Affidavit for Order for
Examination of Judg-
ment Debtor after Re-
turn of Execution—
Court Not of Record.

(Sec. 2435 Code)

LEANN ee eS Se shee being duly sworn says that he resides

At the’ <6 oca3ceeug os OL. extant

Resa ars , N. Y., and is
FORMS 493

pabeetesue the attorney for John Doe, the judgment creditor
above named, and is authorized to institute proceedings sup-
plementary to execution upon the judgment hereinafter de-
scribed, now owned by said judgment creditor.

That said judgment was duly rendered, entered and perfected
in favor of the said John Doe and against the said Richard

Roe, the judgment debtor, on the .......... day of ........
ibys ea aad 9 Legacy I 1HO aaesoeuwereetens COURt OE
thé: wiswew avs es (OE ery sdcas sista syrateneacasauaays , in the County of
haus Aut aeheines dane arias , N. ¥., held by ................, Esq,,
a Judge (or Justice) of said court, in and for said ...........
and County, for .............. Dollars and ..............
Cents ($...........2-. ) (mot under $25.00), damages, and
League seme tty ait, Dollars and ................. Cents
(Bisicedinaeceos ), Costs, amounting in all to ............
Mol late idl 4 oes ceweseeoees Cents (Boss scaxaesrekeuses ).

That said judgment was duly rendered, entered and per-
fected, upon the appearance of Richard Roe said judgment
debtor (or upon personal service of the summons upon Rich-
ard Roe, said judgment debtor) and the judgment so rendered
was duly docketed in said court on that day; that a transcript
of the original docket of said judgment was filed, and said
judgment was duly docketed in the office of the Clerk of the
Cotitty of .keccisawssdeens y N.Y. 0m the .scece cas ous day
Os seie Sie ehatp Biante aD ph cack

That an execution upon ad judgment against the property
of the said judgment debtor, Richard Roe, was thereafter and

on the .......... Way GE wise e senses eer , 19.... duly
issued out of the County Court of said County of ..........
i Saeshay oa epee , which is a Court of Record, by the County Clerk
of said County, and delivered to the Sheriff of ..............

County, that being the County where said judgment debtor,
Richard Roe, then resided and yet resides, (or has at the time
of the commencement of these proceedings a place for the
regular transaction of business in person), (or said judgment
494 SUPPLEMENTARY PROCEEDINGS

debtor being a nonresident of the State, and having no place
of business therein, that being the county where the judgment
roll is filed or the transcript thereof is filed).

That said Sheriff has, within ten years last past, duly re-
turned said execution to the .............6. County Clerk’s
office wholly (or partly) unsatisfied, and that said judgment
still remains wholly (or partly) unpaid and unsatisfied, the
amount of said judgment remaining unpaid and unsatisfied
DElNE sci emiavesieale eats Dollars. tind © caie-ciw wie esa ds Cents
Cee gears eer ).

DEPONENT FURTHER says, that no previous application has
been made for an order to examine said judgment debtor in
proceedings supplementary to execution upon the above de-
scribed judgment, and that this application is made within
ten years after the return as aforesaid of said execution against
the property of said judgment debtor.

Sworn to before me this ....... re
Gay VE nice s cdae sassy LO Pose

Oe Oe ee ee ey
oer eee r ester eereereen eens

 

In the Matter of the Examination
of Ricuarp Roz,

Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

side Gnas Siatebieae Court) wai aaeass
Of ses ews Ralevarea p NY,
Joun Dos,
Plaintiff,
vs.

Ricuarp Roz,

Defendant.

 

 

495

Order for Examination
of Judgment Debtor
after Return of Execu-
tion—Court Not of
Record.

(Sec. 2435 Code)

It having been made to appear to me, by the annexed affi-

davit of
dered, entered and perfected in
ig bate wieldige wees of

Lene opeete nae ees , N. Y., held by
a Judge (or Justice) of said Court, in and for said

cere eee er eee oe

cree Sie dock ay hahaa , that Judgment was duly ren-

Court of the
496 SUPPLEMENTARY PROCEEDINGS

and County, on the ........... day of
19.... for a sum not less than $25.00, exclusive of costs, in
favor of said John Doe, judgment creditor, and against the
said Richard Roe, judgment debtor, upon his appearance (or
upon the personal service of the summons upon him) for the

SUI OR Wises yeeraea es Dollars and ..............-.
Cents ($. cca cus sae eases ), (not less than $25.00), damages.
ANY sitesi get a Maas ee Dollars and ............... Cents
CO ca een eee ), costs, amounting in all to .............
Dollars and ...............0. Cents ($i.60 sc eserwsa sees Ms

That a transcript of the said judgment was duly filed in the
office of the Clerk of the County of ................ , on the
PERG ERIA day of ................, 19...., and said judg-

ment was on that day duly docketed therein against said judg-
ment debtor, and that an execution upon the aforesaid judgment
against the property of the said Richard Roe, judgment debtor,
has been duly issued out of the County Court of ............
County, N. Y., a Court of Record, to the Sheriff of the said
County, that being the county where the said judgment debtor
then resided and yet resides (or has at the time of the com-
mencement of these proceedings a place for the regular trans-
action of business in person), and that such execution has been
returned by said Sheriff wholly (or partly) unsatisfied within
the last ten years, and that said judgment still remains wholly
(or partly) unpaid as stated in said affidavit, and that said
judgment creditor is the owner of said judgment, and that no
previous application has been made to any court or judge for
this order.

I do, THEREFORE, on motion of ................ , Attorney
for said judgment creditor, HerEBy orpEr that it be referred
to, and I do hereby appoint ................... , Esq., of
LeioanG ora naawes , N. Y., to examine the said Richard Roe,
judgment debtor, and take his answers under oath concerning
his property, and to reduce such answers and examination to
writing ; and also to examine under oath such witnesses as may
FORMS a 497

be offered by the respective parties, and to reduce such exami-
nations to writing, and to require the testimony to be signed.
Either party may be examined as a witness in his own behalf,
and may produce and examine other witnesses as upon the trial
of an action, and the examination may be adjourned from time
to time as said Referee thinks proper. Said Referee is hereby
ordered to report and certify to me (or other judge of the
county) to whom this order is returnable, all the evidence and
the other proceedings taken before him under and by virtue
of this order, with all convenient speed.

Anp I po ALso FURTHER ORDER AND REQUIRE, the said Rich-
ard Roe, judgment debtor, to attend and be examined, before

the said Referee, at ............000- yim the .............
OE eafaieserera cheaters atacues , N. Y. (some place in the county), on
the sc. eceess day of ....... Lessa ees g1Qsecay at cease ia
o'clock in the ............ noon, concerning his property as

aforesaid, and for that purpose to appear before the said
Referee from time to time as he shall direct and appoint.

And the said Richard Roe, judgment debtor, is hereby for-
bidden and restrained from making or suffering any transfer
or other disposition of, or interference with, the property of
the said judgment debtor or in which said judgment debtor has
any interest, legal or equitable, and not exempt from levy and
sale on execution, until further directions in the premises.

Garnishee—32.
498 SUPPLEMENTARY PROCEEDINGS
NO. 12.

Affidavit of Service.
(Sec. 2452 Code)

Strate or New York, Is :

County of ............

Snare NaNanes being duly sworn says that he resides
WU sep sahredoneta a, Seahaceseca? shar , N. Y., and is over twenty-one years of
age; that on the ......... day Of ..sseee er news ae gh D ste yy
af the csucedoee. aguas p ANCHE poe wade ioe See we of
el bie kev aash aceon eee , County of ................, New York,

deponent personally served the within affidavit and order in
proceedings supplementary to execution, in the above-entitled
action, upon Richard Roe, the judgment debtor therein named,
by delivering to and leaving with him personally, a true copy
of said affidavit and order, and deponent at the same time
exhibited to the person so served said original order under the
hand of the judge making it; deponent further says he is
acquainted with the person so served, and personally knows
him to be the judgment debtor mentioned in said affidavit and
order.

Sworn to before me this ..........
Gay Of eo wads seca » Ldsews

eee ee ee weer erro reece
eee ee we me we eee ee me eer ewer errr erene

Ce
FORMS 499

 

In the Matter of the Examination
of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dog,

Judgment Creditor.

Affidavit for Order for
Examination of Judg-
ment Debtor after Re-

Under a Judgment Recovered in turn of Execution.—
an Action Entitled r Court of Record.
dese sicewie Court, County of
2
ee ee are , N. Y. item Bane ode)
Joun Dos,
Plaintiff,
WS.

Ricuarp Rog,

Defendant.

 

 

State or New York, @
County of ............ oe

ieemantlenwueot es Lawes being duly sworn, says that he is
Liew eet the attorney for John Doe, the judgment credi-
500 SUPPLEMENTARY PROCEEDINGS

tor in the above-entitled proceedings supplementary to execu-
tion, and duly authorized to institute such proceedings upon
the judgment hereinafter described.

Drponent FURTHER says that judgment was duly rendered,

entered and perfected, in an action in the ............+--.
Court; o..wcedvhsng seen’ in favor of said John Doe, plain-
tiff and against said Richard Roe, defendant therein, on the
desea aks day of ................, 19...., for the sum
Gl Begs ewe ceien ee Dollars and ...........+.... Cents
(Bis eeacaatadanan ), (not less than $25.00) damages, and
sisehele Meda eh RG Oke ES Dollars and ................. Cents,
(So sae hi eere ), costs, amounting in all to $............

that said judgment was duly rendered, upon said judgment
debtor’s appearance (or upon personal service of the summons
upon said judgment debtor) (or upon substituted service of the
summons upon said debtor as prescribed by Sec. 436 Code of
Civil Procedure), and said judgment was docketed and the
judgment roll filed in the office of the Clerk of the County of
wAgvenle Votina Sie veibia: oreens on that day; (that a transcript of the oriq-
inal docket of said judgment was filed, and the said judgment
was duly docketed in the office of the Clerk of the County of
Hig Malan sive sie OWANG we rwenaiec AY OF eissowacrn ae Oe ses .
LB Sxbn de

That an execution against the property of the said judgment
debtor, Richard Roe, was thereafter and on the ......... day
OL digeteaeitaies atacsuie , 19...., duly issued out of a court of
record, viz., the .............. COUN: Gece eneeans upon
said judgment, and delivered to the Sheriff of ..............
County, where said judgment debtor, Richard Roe, then re-
sided and yet resides; (or has at the time of the commence-
ment of these proceedings a place for the regular transaction
of business in person), (or said judgment debtor, being a non-
resident of the State, and having no place of business therein
that being the county where the judgment roll is filed, or the
FORMS 501

transcript thereof is filed) and that said Sheriff has duly
returned said execution to the .............. County Clerk’s
Office wholly (or partly) unsatisfied, and that said judgment
still remains wholly (or partly) unpaid and unsatisfied, the
amount of said judgment remaining unpaid and unsatisfied
being ....... oe Dollars and .........006- Cents

Deponent further says, ........ that no previous applica-
tion has been made herein for an order to examine said judg-
ment debtor and that this application is made within ten years
after the return as aforesaid of said execution against the prop-
erty of said judgment debtor.

Sworn to before me, this .........

GA FOE ieee eres , 19.... F sawsnenaaocmnannt

fee eee ovrereeeere sarees ensevevseace
502 SUPPLEMENTARY PROCEEDINGS

 

In the Matter of the Examination
of Ricuarp Roz,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dos,

é f E : ti
Judgment Creditor. Order for Examination

of Judgment Debtor

Under a Judgment Recovered in after Return of Exe-
an Action Entitled -  cution — Court of
Meng ewmine see's Court, County of Hever,
eoeoeere eee se ee ’ N. Y (See. 9435 Code)
Joun Dor,
Plaintiff,
US.

Ricuarp Ror,
Defendant.

 

 

It having been made to appear to me by the annexed affidavit

OF. eke eee eee wines , that judgment has been duly rendered,
entered and perfected, for a sum not less than $25.00, exclu-
sive of costs, in the .............. COU hae kde es tesari &

in favor of said John Doe, judgment creditor, and against the
said Richard Roe, judgment debtor, upon his appearance, (or
personal service of the summons upon him), (or upon substti-
luted service of the summons upon said debtor as prescribed by
FORMS 503

Sec. 436, Code of Civil Procedure), and that an execution
against the property of the said Richard Roe, judgment debtor,
has been duly issued out of a Court of Record to the Sheriff
of the proper County upon the aforesaid judgment; and that
such execution has been returned by the said Sheriff wholly
(or partly) unsatisfied within the past ten years and that
such judgment still remains wholly (or partly) unpaid as
stated in said affidavit; I do therefore, Heresy orper that it
be weterted 16 Geese aa aaa egos pew , Esq., Counselor, of
LGN S eR SS , N. Y., to examine the said Richard Roe,
judgment debtor, and take his answers under oath concerning
his property and to reduce such answers and examinations to
writing; and also to examine under oath such witnesses as may
be offered by the respective parties, and to reduce such exami-
nation to writing. Either party may be examined as a wit-
ness in his own behalf, and may produce and examine other
witnesses as upon the trial of an action. Said Referee is here-
by ordered to certify to me (or other judge of the county) to
whom this order is returnable, all the evidence and the other
proceedings taken before him under and by virtue of this
order, with all convenient speed. And I do hereby appoint
the sald scsaewsse weed *,. a Referee in these proceedings for
the purpose aforesaid. And he may adjourn these proceedings
from time to time as he thinks proper.

And I do also further Order and Require the said Richard
Roe, judgment debtor, to attend and be examined before said

Referee, at ...........0000, IM. TNE s/o ose eae are of
Biapatoie tee aivek aug ee , N. Y., (some place in the county) on the
die eb Jo ies day Of oikw a teigesnegey De eos ates canes
o’clock in the ............ noon, concerning his property as

aforesaid, and for that purpose to appear before the said Referee
from time to time as he shall direct and appoint.

And the said Richard Roe is hereby forbidden from making
or suffering any transfer or other disposition of, or interference
with, the property of which he is now in possession, or in which
he has any interest, legal or equitable, and not exempt from
504 SUPPLEMENTARY PROCEEDINGS

levy and sale on execution, until further direction in the

premises.

Dated the ........ day Of icc ewseenesn 9 19.60

 

In the Matter of the Examination

of Ricuarp Roz,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application

ve eae Affidavit for Order for
Sea Examination of Judg-
Under a Judgment Recovered in |. ment Debtor before
an Action Entitled + Return of Execution.
pea ie COliEtWs ota seh eu Rbeeszev ends)
Of aie sensw eeles x , N.Y
Joun Dos,
Plaintiff,
VS.

Ricuarp Rog,
Defendant.

 

 

Stare or New York,
County of ........206.
FORMS 505

attorney for John Doe, judgment creditor, in the above-entitled
proceedings supplementary to execution, and authorized to
institute such proceedings upon the judgment hereinafter de-
scribed.

That judgment was duly rendered, entered and perfected in

an action in the ............ Courtine sees in favor
of John Doe, plaintiff, and against Richard Roe, defendant
therein, on the .......... MO OF 6 sveuiei vanes ee pe ce

for the sum of ...........4.. Dollars and ..........000-
Cents (a sum not less than $25.00), damages, and $.........-
costs, amounting in all to $.............86. Said judgment

was rendered upon said judgment debtor’s appearance (or per-
sonal service of the summons upon him), (or upon substituted
service of the summons upon said debtor in the manner pre-
seribed by Sec. 436, Code of Civil Procedure) and said judg-
ment was docketed and the judgment roll filed on that day;
(that a transcript of the original docket of said judgment was
filed, and the said judgment was duly docketed in the office of
the Clerk of the County of .......eeceeeee ,on the ........
OY Of aveisneavaseea de 5 19 seen)

That an execution against the property of the said judgment
debtor Richard Roe, for the collection of said judgment was

thereafter, and on the .......... day of wise nvaneeareme ;
19...., duly issued out of a court of record, viz., the ........
setetare fetes Court, ............ upon said judgment, and
delivered to the Sheriff of ................. County, N. Y.,

where said judgment debtor, Richard Roe, then resided and
yet resides (or has at the time of the commencement of these
proceedings a place for the regular transaction of business in
person), (or said judgment debtor being a nonresident of the
state, and having no place of business therein, that being the
county where the judgment roll is filed, or the transcript there-
of ts filed).

But said execution has not yet been returned by said Sheriff
and that said judgment remains wholly (or partly) unpaid
506 SUPPLEMENTARY PROCEEDINGS

and unsatisfied, the amount of said judgment remaining unpaid
and unsatisfied being ............ Dollars and .aseraas0+s
Cente (Gicceesxwas cide ne

DEPONENT FURTHER says that said judginent debtor, Richard
Roe has property which he unjustly refuses to apply toward
the satisfaction of said judgment, to-wit: (Here describe
property not exempt under Sec. 2463, Code Civil Procedure
and set forth facts showing unjust refusal to apply such prop-
erty to payment of said judgment).

That no previous application has been made herein for an
order to examine said judgment debtor.

That on the .......... day Of sia saieetecviens sil Dicscarany
and after the issuing of said execution, a demand was made
DIV. Psiieth etaile.odalerglantos are (if @ person other than judgment credt-

tor, state authorized to make the demand) upon said judgment
debtor to apply his said property to the satisfaction of said
judgment, and he has neglected and refused so to do.

se eee remo mere eres e rere renee ere nevroe
FORMS 507

 

In the Matter of the Examination
of Ricuarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor. Order for Examination
of Judgment Debtor

Under a Judgment Recovered in hefore: Hetuen. oF Hee:

an Action Entitled

eution.
iby eae aE G Sais COUP ews
OE serio ie aed ie he (See. 2486 Code)
Joun Doz,
Plaintiff,
v8.

Ricuarp Rog,

Defendant.

 

 

It having been made to appear to me, by the annexed affi-

GAVE. OF eat rea ast anew that judgment has been duly
rendered, entered and perfected in the ............ Court,
ia Are AD bh aGGrs Serre ota , for a sum not less than $25.00,

exclusive of costs, in favor of the said John Doe and against
,

508 SUPPLEMENTARY PROCEEDINGS

the said Richard Roe, judgment debtor, upon his appearance
(or personal service of the summons upon him (or upon sub-
stituted service of the summons upon said debtor as prescribed
by Sec. 486, Code Civil Procedure)), and that an execution
against the property of the said Richard Roe, judgment debtor,
has been duly issued out of a court of record to the Sheriff of
the proper County, upon the aforesaid judgment; but that such
execution has not yet been returned by the said Sheriff, and
that such judgment still remains wholly (or partly) unpaid
to the amount of $....... pais seetel , and that said judgment
debtor has property which he unjustly refuses to apply toward
the satisfaction of said judgment as stated in said affidavit;
I do, therefore, Heresy orper that it be referred to........
sgt ale Walaa » Esq., Counselor of ................, N. ¥.,
to examine the said Richard Roe, judgment debtor, and take
bis answers under oath concerning his property, and to reduce
such answers and examination to writing; and also to examine
under oath such witnesses as may be offered by the respective
parties, and reduce such examination to writing. Either party
may be examined as a witness in his own behalf, and may
produce and examine other witnesses as upon the trial of an
action. Said Referee is hereby ordered to certify to me (or
other judge in the county of examination) to whom this order
is returnable, all the evidence and the other proceedings taken
before him under and by virtue of this order, with all conven-
icnt speed. And I do hereby appoint the said ........
a Referee in these proceedings for the purpose aforesaid. And
he may adjourn these proceedings from time to time as he
thinks proper.

And I do also further order and require the said Richard
Roe, judgment debtor, to attend and be examined before said
Referee, at ...-...-. 0. eae Inthe) teisedeas Sado occa of
NAN aide tamed Sere we , N. Y., (some place in the county) on the
deve kiaieiea le day OE came steiedarsseutes yp AD eae AL veces ‘
FORMS 509

o’clock in the ............ noon, concerning his property as
aforesaid; and for that purpose to appear before the said
Referee from time to time as he shall direct and appoint.

And the said Richard Roe is hereby forbidden from making
or suffering any transfer or other disposition of, or interfer-
ence with, the property of which he is now in possession, or,
in which he has any interest, legal or equitable and not exempt
from levy and sale on execution, until further direction in the
premises.

Dated the ........ day of ........ sperdielsy 1 Dis siere
WEE WEN Se Rete Uieeee as sesaes cel Orgnaiure of Suge)

WUE Sea's 605 655 see kemwan eens line OF Onice)
510 SUPPLEMENTARY PROCEEDINGS

NO. 17.

 

In the Matter of the Examination
of Rronarp Roz,

Debtor.

In Proceedings Supplementary to
Execution upon the Application | Affidavit for Order for
of Joun Doz, Examination of Debt-

Creditor. \ or upon an Order for

Under an Order Granting Costs in Costs.

a Special Proceeding Entitled (Secs. 2432, 2485.)

ee re Court sigecsewden

oor eeer errr ree eee eee sere eves

 

 

Stats or New Yorx, .
County of ..... eee ee ae

sich ates See ge es Meee being duly sworn says he is the
creditor (or attorney for the creditor) above named; that here-
FORMS 511

tofore and on the ......... May Gl Vee gwendenas se aie eg
in a certain special proceeding entitled ..............- Court
OL pasion akadies cites In the Matter of ................ ‘
an order was duly made and granted, after due service of
igen Rae ean eeeere ws , by the court (or judge) awarding
costs in the sum of $....... 0.0... e ee eee to the creditor

above named and against the said Richard Roe, debtor;
that the said order was duly entered and filed in the

office of the clerk of .......... Batic bevelave county, on the
eaeG ses day of ................ 19...., a copy of which
order is hereto annexed and made a part of this affidavit; that
thereafter and on the ........ GUY OE Seetenwee en ,19....,

the said order was personally served upon the said Richard
Roe, debtor (or upon his duly authorized attorney), and the
payment of said costs was duly demanded ; that thereafter and
on the .......... day 08 eaieasisieine-a shire xs 19...., and
more than ten days after the service of said order upon the
said Richard Roe, an execution for the collection of said costs
was duly issued, in the manner prescribed by Sec. 779, Code
of Civil Procedure, to the Sheriff of the county of .......... :
where the said debtor then resided and now resides (or has
at the commencement of these proceedings a place for the regu-
lar transaction of business in person (or said debtor being a
nonresident of the state, and haying no place of business there-
in, that being the county where the judgment-roll is filed, or
the transcript thereof is filed)), and said execution has been
duly returned by said Sheriff wholly (or partly) unsatisfied, and
there is still due upon said order for costs the sum of
oD ois ae Wh alate ole: SLatearete That the said execution issued upon the
said order was returned within ten years from the commence-
ment of these proceedings.

That no previous application for an order to examine the
512 SUPPLEMENTARY PROCEEDINGS

said debtor in supplementary proceedings upon said order for
costs has been made herein.

Sworn to before me this ..........
DOChOL aiid aera se ehas slbigee Aaewieaeuewew as foe mols
NO. 18
ee rer COURT: wags decks Rewer

 

In the Matter of the Examination
of Ricuarp Roz,

Debtor.

In Proceedings Supplementary to
Execution upon the Application | Order for Examination
of Joun Doz, of Debtor for Collec-

Creditor. f tion of Costs.

Under an Order Granting Costs in

a Special Proceeding Entitled (Seca, 2432, 2485.)

eee ee eee ere seer ere eee eroereenen

 

 

It having been made to appear to me by the annexed affidavit
FORMS 513

in a certain special proceeding entitled .............- Court
DE arb kenaek earl aks in ties Matter 6f siccwuy sew gaccwon
on the ......... ay OF 35 a oer Walavesei cia , 19.... in favor
of John Doc, creditor, against the said Richard Roe, the debtor,
awarding to the said John Doe, the sum of $..............-
costs, against the said Richard Roe, debtor, upon the due serv-
ICC Of socsueg Senco nee ss upon him (or his duly authorized

attorney in said proceeding). That the said order was duly
entered and filed in the office of the clerk of the county of

Hace tieess seeees, on the .......... day of... 0... eee e eens
19...., and the said order was thereafter and on the ........
day Of pn crews asap. 19.... duly served upon said Rich-

ard Roe (or upon the said attorney for said debtor), and the
payment of the said costs duly demanded, and that there-
after and more than ten days after the service of said
order, as aforesaid, an execution upon the said order for costs
was duly issued in the form prescribed by Sec. 779 of the Code
to the Sheriff of the proper County, and that said execution
was duly returned by said Sheriff within ten years last past,
wholly (or partly) unsatisfied, and the said costs remain wholly

unpaid (or there remains due thereon the sum of $......... ).
I do, therefore, hereby order that it be referred to .........
Bai as ts Wiese SUMS ES Ka. Counselor, 00 0.0 .60.a2e00 ex Ns Ye

to examine the said Richard Roe, debtor, and take his
answers under oath concerning his property, and to reduce
such answers and examination to writing; and also to examine
under oath such witnesses as may be offered by the respective
parties, and reduce such examination to writing. Either party
may be examined as a witness in his own behalf, and may pro-
duce and examine other witnesses as upon the trial of an action.
Said Referee is hereby ordered to certify to me (or other judge
in the county of examination) to whom this order is returna-
ble, all the evidence and the other proceedings taken before
him under and by virtue of this order, with all convenient
speed, and I do hereby appoint the said ...........-..4..

Garnishee—33. *
514 SUPPLEMENTARY PROCEEDINGS

Referee in these proceedings for the purpose aforesaid. And
he may adjourn these proceedings from time to time as he
thinks proper.

And I do also further order and require the said Richard
Roe, debtor, to attend and be examined before said Referee

DUE Grete ennateceleane gn thé aesisewaree sae ewes of
I teeorereewee es , N. Y., (some place in the county) on the
sian aaeiesetes day of ..........-.. 19.... at ........ o'clock
in the ........ noon, concerning his property as aforesaid;

and for that purpose to appear before the said Referee from
time to time as he shall direct and appoint.

And the said Richard Roe, debtor, is hereby forbidden from
making or suffering any transfer or other disposition of, or
interference with, the property of which he is now in posses-
sion, or in which he has any interest, legal or equitable and
not exempt from levy and sale upon execution until further
direction in the premiscs.

Dated the ........ day of ......e0-00- 5 19 es

ecceccccccccessccseces Judge (or Justice)
FORMS 515

 

OL bee eeere eee we eG was

In Proceedings Supplementary to
Execution upon the Application
of Joun Dor,

Judgment Creditor. Affidavit for Order for
Examination of Third
Person in Supplemen-
tary Proceedings,

Under a Judgment Recovered in
an Action Entitled

Oe esumoudieds pas Ve (Sec. 2441 Code)

Joun Dog,
Plaintiff,

Us.

Ricuarp Rog,
Defendant.

 

 

Strate or New Yorn, 2).
County of ............ Ce :

eWM NS SRG a a Osuna being duly sworn, says that he resides
at thé: wsceg teins aces Of oe dnwigagiesens , in the County
516 SUPPLEMENTARY PROCEEDINGS

Ob mclhae Wee esouts , N. Y., and that he is ......-.e+eee-
the attorney for the judgment creditor, in the above-entitled
proceedings and authorized to institute the same upon the judg-
ment hereinafter described; that the said judgment was duly

rendered, entered and perfected in the .............. Court
Da bia teva aiee eas , in favor of said John Doe, plaintiff, and
against Richard Roe, defendant, on the ........... day of
eden aiale Gv SaretOeee 1S eee IO apse suas enaes Done ant
oa Poa ee a Mae vee as Cents (not less than $25.00) damages,
WG tdi ame melee Dollars and .............6.. Cents,
costs, amounting in all to $..............6. Said judgment

was duly rendered upon the said judgment debtor’s appear-
ance (or personal service of the summons upon the said judg-
ment debtor, Richard Roe), (or upon substituted service of
the summons upon said debtor as prescribed by Sec. 436, Code
of Civil Procedure) and said judgment was duly docketed and
the judgment roll filed on that day (that a transcript of the
original docket of said judgment was filed, and the said judg-
ment was duly docketed in the office of the Clerk of the County
Of sisi dara lela ere aoe et »N.Y., onthe ........ day of 19....).

That an execution against the property of the said Richard
Roe, judgment debtor, was thereafter, and on the ..........
day: Of wists e yee wees , 19.... duly issued out of a Court
of Record, viz., the ............000. Court. is caie cae eke
upon said judgment and delivered to the Sheriff of .........
Sew see ee County, where the said judgment debtor, Richard
Roe, then resided and yet resides (or has at the time of the
commencement of these proceedings a place for the regular
transaction of business in person), (or said judgment debtor
being a nonresident of the state, and having no place of busi-
ness therein, that being the county where the judgment roll is
filed, or the transcript thereof ts filed).

That said execution has not been returned (07 has been re-
turned) wholly (or partly) unsatisfied, by said Sheriff, and
FORMS ‘517

that said judgment remains wholly (or partly) unpaid and
unsatisfied. That the amount of said judgment remaining

unpaid and unsatisfied is .............0... Dollars and
ee ee Cents ($..............+..), and interest
thereon from the ........ Gay GL ca. edaponssamnes sti

Deponent further says, that ...........2.4-. (Third Per-
son) of the .............. Of Aiea aoe , N. Y., has

personal property of the said judgment debtor exceeding $10.00
in value (or is indebted to him in a sum exceeding $10.00) ;
(tf this allegation is made on information and belief, set forth
that fact, and state the grounds of deponent’s beltef) and that
no previous application has been made herein to any judge or
court for an order to examine said third party.

fee ewerere ere eer seer eceeeeeseaecesees’
518 SUPPLEMENTARY PROCEEDINGS

NO. 20.

were ree ere r rere eee reese

 

In the Matter of Examination of
sions grea afhigle ea , Third Person.

In Proceedings Supplementary to
. Execution upon the Application
of Joun Dor,
Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

Order for Examination of
Third Person.

sieie f Se Wests! Courts cease is ewes (Sec. 2441 Code)
Clic gia eae’ , N.Y
Joun Dor,
Plaintiff,
vs.

Ricuarp Rog,
Defendant.

 

 

It having been made to appear to me, by the annexed affidavit
Ol Wewieresoers one verified the day of
19...., that judgment has been duly rendered in the above-
entitled action for a sum not less than $25.00, exclusive of
costs, in favor of said John Doe, and against said Richard
FORMS 519

Roe, judgment debtor, upon his appearance (or personal service
of the summons upon him), (or upon substituted service of
‘he summons upon said debtor as prescribed by Sec. 436, Code
Civil Procedure), and that an execution against the property
of the said Richard Roe, judgment debtor, has been duly
issued out of a court of record to the Sheriff of the proper
County, upon the aforesaid judgment; and that such execution
has not been returned by the said Sheriff (or has been returned
wholly (or partly) unsatisfied) and that such judgment still
remains wholly (or partly) unpaid and unsatisfied, and that
the amount of said judgment remaining unpaid and unsatisfied

1 ee ee eee Dollars and .......... Cents ($...... ), and
NAC stew ielsm ewes. a0 (Thad Person), 08 the oss n0 00
Obs Gee seine a ae aes , N. Y. has personal property of the said

judgment debtor exceeding $10.00 in value (or ts indebted
to him in a sum erceeding $10.00), as stated in said affidavit:

I do, therefore, hereby Order, That it be referred to ........
Esq., counselor at law, of ...........0005. , N. Y., to examine
said person ............000- , and take his answers under

xath concerning the debt, or other property, as aforesaid, and
to reduce such answers and examination to writing. Said
Referee is hereby ordered to certify to me (or other judge in
the county of examination) to whom this order is returnable,
all the evidence and other proceedings taken before him under
and by virtue of this order, with all convenient speed. And I
do hereby appoint the said ................ a Referee in
these proceedings for the purposes aforesaid.

And I do also further Order and Require the said person

send Maite ead ad oid iat aa to attend and be examined before the
said Referee, at ........0.. 0 eee ga MI ENG: coliseus acide, sus ean evevas
DE eae RSS (some place in the county), N. Y., on
the: wasesaes AV OL neseeewsecases pb Oaaey Al eweweney
o'clock in the .......... noon, concerning the debt or other

property aforesaid, and for that purpose to appear before the
said Referee from time to time as he shall direct and appoint.
520 SUPPLEMENTARY PROCEEDINGS

And the said judgment debtor and said .....-..-+++eees
(Third Person) are hereby severally forbidden from making or
suffering any transfer or other disposition of, or interference
with, the property of said judgment debtor, Richard Roe, or
in which he has any interest, legal or equitable, and not exempt
from levy and sale on execution, or the property, or debt, con-
cerning which said .........+-2+-05- (Third Person) is re-
quired to attend and be examined, until further direction in the
premises.

Dated the ........ day Of os eceee caw es § LOSS ss

NO. 21.

 

| Affidavit for Second
Title as in Form No. 12 Order for Examination
of Judgment Debtor.

 

(Proceed as in usual forms down to allegation as to no
previous application, and substitute therefor the following :)

That no previous application has been made for an order to
examine said judgment debtor in proceedings supplementary
to execution upon the above-entitled judgment, except that
FORMS 521

heretofore and on the ........ day GE avian swiaiaes » 19.3
an order for his examination was granted by Hon. ..........
Lalseata on wea as Judge (or Justice) of sccxssanevsseevev ves
dated on that day, and an examination of said judgment debtor
took place thereunder before the Referee named in such order,
and no property was then discovered in said examination and
the same was closed and a report of the proceedings made by

the Referee therein and filed in the ................ County
Clerk’s Office, and thereafter an order was duly made by said
judge, dated the ........ day of, siwavasaaweecns 5 ADs esis

discontinuing said proceedings (or allege that said proceed-
ings were terminated and abandoned by express consent of the
parties, etc.).

Deponent further says that since said examination, said
Richard Roe, judgment debtor herein, has acquired property
of considerable value amounting to the sum of about $........
which is reachable in these proceedings and said judgment
creditor is anxious to examine said judgment debtor in reference
to said property, and he has no intention or desire to unneces-
sarily harass and embarrass him (or allege other facts showiny
it reasonable and just that a second examination should be had).

(Add the provision that the application is made within ten
years after the return of execution).

Ce

Note: The order for the second examination of the judg-
ment debtor may follow the usual form, and it would appear
that there need be no reference therein to the first examination.
522 SUPPLEMENTARY PROCEEDINGS

NO. 22.

re ee

 

In the Matter of the Examination

of RicHarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dog,

Judgment Creditor. | Affidavit for Warrant of

Arrest Instead of Or-

Under a Judgment Recovered in as
der for Examination.

an Action Entitled r
walsiveK you aac Court, .......++-+| (Sees. 2437, 2438 Code)
Of ghee occas ,N.Y
Joun Dor,
Plaintiff,
vs.

Ricuarp Ros,
Defendant.

 

 

Srate or New York, LA
Coit OT semen ere -

Li ee@ew ieee being duly sworn, says that he is the judgment
creditor above named (or the attorney for the judgment cred-
itor). That judgment was duly rendered, entered and per-
fected on the ........ day OF ksaioesukeesers , 19...., in
TRE csgaeies enews Ceut, Of -ovstdtoeg aw pe County, ........
FORMS 523

in an action wherein said John Doe was plaintiff, and Richard
Roe was defendant in favor of the said John Doe against the

said Richard Roe for the sum of .......... Dollars ........
Cents (Bi. c.0s ) (not less than $25.00) damages and ........
Dollars and «102560. Cents ($...... ), costs amounting in all
iD 9 Kase enwes Dollars and «ss... 4. Cents ($...... ); that

said judgment was duly rendered upon said judgment debtor’s
appearance (or personal service of the summons upon said
judgment debtor), (or upon substituted service of the sum-
mons upon said debtor as prescribed by Sec. 436, Code of Civil
Procedure), and said judgment was duly docketed and the
judgment roll filed on that day.

(That a transcript of the original docket of said judgment
was filed and the said judgment was duly docketed in the
office of the Clerk of the County of .........c0eee0e on the

Bel eee we Gi Of <a. une fiwewdsdy LO) eee

That an execution against the property of the said judgment
debtor, Richard Roe, was thereafter and on the ........ day
Ol gue wpe ewes , 19...., duly issued out of a court of
vecord, viz., the ..............., Court upon said judgment
and delivered to the Sheriff of .............. County, where
said judgment debtor, Richard Roe, then resided and yet re-
sides (or has at the tume of the commencement of these pro-
ceedings, a place for the regular transaction of business in
person), (or said judgment debtor being a nonresident of the
state and having no place of business therein, that being the
county where the judgment roll is filed, or the transcript there-
of is filed) ; and that said Sheriff has duly returned said execu-
fia te Gites as asesw wana ene County Clerk’s Office wholly (or
partly) unsatisfied, and that said judgment still remains wholly
(or partly) unpaid and unsatisfied; the amount of the said
Judgment remaining unpaid and unsatisfied being ..........
Dollars and .............. Cents ($...... ), that deponent
further says that Richard Roe, judgment debtor, has property
uot exempt in these proceedings under Sec. 2463, described as
524 SUPPLEMENTARY PROCEEDINGS

follows: (Here describe property). That onthe ........ day
OLE ieecdse cual stat saneanen ass , 19...., the said judgment creditor
caused a demand to be made by the Sheriff (or some other duly
authorized person) upon said judgment debtor to apply said
property to the satisfaction of said judgment, a copy of the
said demand being hereto annexed and made a part of this
affidavit. That the said judgment debtor refused and neglected
and still refuses and neglects to so apply his said property as
thereby required. (Here set forth facts showing that such re-
fusal was unjust.) That said Sheriff (or other person) was
duly authorized to make such demand for the judgment creditor
and was present to receive said property, or an assignment
thereof.

That no order to examine the judgment debtor in supple-
mentary proceedings has been granted by any Judge (or Jus-
lice) (or an order for the examination of the judgment debtor

in supplementary proceedings was granted on the ...... .. day
Of einictatscatedsvoce ti nicer ,19...., pursuant to an order of ......
5 nace Rea Judge (or Justice) but the examination there-

under has not been closed).

That deponent further says that there is danger that said
judgment debtor will leave the state (setting forth grounds of
such belief, as for example). Deponent’s grounds for such be-
lief are founded upon the following facts: Ten days ago
deponent met said judgment debtor and was advised by him that
he was preparing to remove with his family to Cleveland, Ohio,
where he had obtained a position and that he was then packing
and preparing for shipment his household furniture and ex-
pected to leave the eity Of .. 2.0 .cceae renee , N. Y. in about
two weeks; that deponent has since frequently passed by the
residence of said judgment debtor and on those occasions de-
ponent saw him packing his household goods and deponent
verily believes that said judgment debtor is preparing to leave
the city and will be removed therefrom within ten days from
this date,
or
bo
OL

FORMS

Deponent further says that no previous application for the
warrant herein applied for has been made.

Sworn to before me this ..........
BY OE. ia seissaietscspeceinte? ace gl Diese. “Nt ce stelerewiowberemn bearers .
NO. 23
sr aeb aaa Ande hep aeeetctata ahi ee eae COURT 25 Aieaieeaw a ateharere alow

 

In the Matter of the Examination

of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor. Warrant for Order of

Under a Judgment Recovered in Arrest Instead of Or-
an Action Entitled r der for Examination.

Beiieinda Pieiatthe.cest6 fe sens oesaue teeta

a coe nae (Secs. 2437, 2438

cd regen Ke x ,N. Code)
Joun Dor,
Plaintiff,
vs.

Ricuarp Rog,
Defendant.

 

 

J

Prope oF THE State or New York, To tHe SHERIFF OF
awy County, WHERE Ricuarp Ror, true Jupemenr Desr-
or aBovE Namep May BE Founp, Greerine:
526 SUPPLEMENTARY PROCEEDINGS

It having been made to appear to me by the annexed affi-

MEAD, «a 5s sine em RR RAED that judgment was duly rendered,
entered and perfected on the ........ GAY OL ever sevwaw essex ’
TO ys agains IM THE: .3 soacgme-varesees COUTE Of osc cn cee pee ees ;

in an action wherein the above named John Doe was plaintiff
and Richard Roe was defendant, in favor of the said John Doe

against the said Richard Roe for the sum of ..............
Dollars and ................ Cents. (Sis. cau vaccaes aise )
(not less than $25.00) damages and .............4. Dollars
ON) a cieiese ones Cents ($...... ) costs, amounting in all to
sa taedes Dollars and ........ Cents ($......); that said

judgment ‘was duly rendered upon said judgment debtor’s ap-
pearance (or personal service of the swmmons upon said judg-
ment),(or upon substituted services of the summons upon suid
judgment debtor as prescribed by Sec. 436, Code of Civil Pro-
cedure) and said judgment was duly docketed and the jndy-
ment-roll filed on that day. (That a transcript of the original
docket of said judgment was filed and the said judgment was
duly docketed in the office of the Clerk of the County of ......
suouwuieaes on the ........ day of ...........4. 19....).

That an execution against the property of the said judg-
ment debtor, Richard Roe, was after and on the ..........
Cay OE «a sacuineis pees. , 19...., duly issued out of a court
of record, viz., the ............... GOUTU. waricwece wie secur
upon said judgment and delivered to the Sheriff of ..........
, wae Re county, where said judgment debtor, Richard Roe,
then resided and yet resides (or has at the time of the com-
mencement of these proceedings a place for the regular trans-
action of business in person), (or said judgment debtor being
a nonresident of the state and having no place of business
therein, that being the county where the judgment-roll is filed,
or the transcript thereof is filed); and that said Sheriff has
duly returned said execution to the ................ county
clerk’s office wholly (or partly) unsatisfied, and that said judg-
ment still remains wholly (or parlly) unpaid and unsatis-
FORMS 527

fied, the amount of said judgment remaining unpaid and unsat-
isfied being . caves soe sess : Dollars and ............ Cents
(Pieeus vues tun ians Jk

That ten years have not elapsed since the return of such exe-
cution issued upon said judgment, and that said judgment still
remains wholly (or partly) unpaid, the amount remaining due
thereon being the sum heretofore stated.

And it further appearing by said affidavit to my satisfaction
that there is danger that the said Richard Roe, judgment debtor,
will leave the state, or conceal himself therein, and that there
is reason to believe that he has property not exempt in these
proceedings under Sec. 2463 of the Code, which he unjustly
refuses to apply to the payment of such judgment, Now ruHERE-
FORE,

You ARE HEREBY REQUIRED, to arrest said Richard Roe,
judgment debtor, and bring him before me (or before Hon.

Suerte eeateedauceis Judge (or Justice) of the ..........65-.

Court, before whom this warrant is made returnable, at his

chambers in the oo... .cceeeeeee HOf WeeS cao ® ood N.Y.)
Wirness, my hand this ...... day of ........... ge dO we

Inte in 8 WW 8 Wy cecvecccccccenee dudge (or Justice)
528 SUPPLEMENTARY PROCEEDINGS

NO. 24.

wooeereove eee wegesereree Courr wee rere cereesoeseioes eee

 

In the Matter of the Examination

of Ricuarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application

of Joun Dox, ; Order for Undertaking
Judgment Creditor. by Judgment Debtor
Under a Judgment Recovered in Arrested under War-
an Action Entitled + rant Issued under
Secs, 2437, 2438 Code.

seta wean Coutts eases

OF iiicdnisien s-aies , N.Y.
Joxn Dor,
Plaintiff,
vs.

Ricuarp Ros,
Defendant.

 

 

A warrant having been heretofore issued by me for the ar-
rest of Richard Roe, judgment debtor in the above-entitled
proceedings and said judgment debtor having been arrested and
taken into custody upon said warrant, and brought before me,
and upon a preliminary examination of the said judgment
FORMS 529

debtor, it. appearing to my satisfaction, that he has property,
not exempt in these proceedings under Sec. 2463 of the Code,
which he has unjustly refused to apply to the satisfaction of
the judgment, for the collection of which these proceedings
were instituted.

Now, rurrerorg, I do hereby order and direct the said Rich-
ard Roe, judgment debtor, to execute and deliver to the Sheriff
oe ee ee County within ten days from the time
of the service of this order upon him, an undertaking to the
People in the penal sum of .............. (Biscave wvaee)
With: apialesraeeess (one or more) sureties, conditioned that
he will attend before the judge, or before a-referee appointed
in these proceedings, from time to time as directed; and that
he will not until discharged from arrest by virtue of the war-
rant aforesaid, dispose of any of his property not exempt in
these proceedings under Sec. 2463 of the Code.

Dated. the: s5caeeas MAY OE ead aeedam decks 5 OD seat

Garnishee—34.
530 SUPPLEMENTARY PROCEEDINGS

NO. 25.

 

In the Matter of the Examination

of Ricuarp Roz,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dor,

Judgment Creditor. Undertaking by Party

Arrested under War-

rant Issued Pursuant

to See. 2440 of the
esieeies eeatatars Courty ci care iw: Code.

Under a Judgment Recovered in
an Action Entitled

Joun Dog,
Plaintiff,

VS.

Ricuarp Rog,
Defendant.

 

 

Kyow Axi Men py THESE PRESENTS:

That, We sis wire eeu sew OF igen cee adieasiess by occu-
pation a ............ ON: snaceeg sess OL Mar sawewee ‘
by occupation a ............0.. , are held and firmly bound

unto to the People of the State of New York in the sum of
Picis dere ee eels to be paid by the said Richard Roe, for which
FORMS 53

payment well and truly to be made we bind ourselves, our
heirs, and representatives, jointly and severally.
Sealed with our seals, and dated ............... day of

Wuersas, the above bounden Richard Roe, was heretofore
duly arrested and taken into custody upon a warrant issued
as prescribed by Sec. 2437 of the Code, and whereas, by an

onder made by HOM, ia.5.asess cs vanes Judge (or Justice)
OL UNE) dew os eae we kts oS Court, on the ............ day of
ap ArcclatahGe oar eta etic , 19...., in the above-entitled supplemen-

tary proceedings, the above bounden Richard Roe was required
to give an undertaking as prescribed by Sec. 2440 of the Code.

Now THEREFORE, the conditions of this obligation are such
that if the said Richard Roe shall and does from time to time
as the judge directs, attend before the said judge, or before a
referee appointed, or to be appointed in these proceedings, and
shall not until dischargd from arrest under the aforesaid war-
rant, dispose of his property not exempt under Sec. 2463 of the
Code, then this obligation to be void, otherwise to remain in
full force and effect.

Sealed and delivered in presence of

Ce

abieorde ese eee es (LZ. 8S.) (Judgment Debtor)
mmiisd baat bow eanueains (L.8.) (Surety)

asslibsnd are tinereearange ss Pome eiarevenstetaea (L.8.) (Surety)

Strate or New York, ee
Conny 02 4. .0tsnssexs pees

BN as eaclelas harsh aa ta in AUG: oxdeecidceeaewacedeeanes above named,
5382 SUPPLEMENTARY PROCEEDINGS

being duly and severally sworn, each says for himself that he
is a resident of, anda .............. holder in the State of
New York, and worth the sum of $.............-. over and
above all debts and liabilities he owes or has incurred,. and
exclusive of property exempt by law from levy and sale under
execution.

Severally sworn to before me this )
ere O87 OE waceineusy Blo ae \odtaeahetepeece nines

eee mm wm oe er ete eee eee

eee ere e eer err etree rere rere reserve

a 2 Y

Srate or New York,
Cee
els}

Oounty of ...........-

On. this” wexscskxcke day 08 esses taa ewes ¢ ADia es
before me the subscriber personally appeared, Richard Roe
(judgment debtor) and .............. ANd wave wes adise as

(sureties) to me personally known to be the same persons de-
seribed herein and who executed the within instrument, and
they severally acknowledged to me that they executed the same.
FORMS

NO. 26.

 

In the Matter of the Examination
of Ricuarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

Joun Dog,
Plaintiff,

vs.

Ricyarp Ror,
Defendant.

 

COURT ..eceeee

 

530
Warrant for Commit-
ment of Judgment
Debtor Refusing to

Give Undertaking un-
der Sec. 2440 Code.

Tue Prorie oF THE State oF New York To THE SHERIFF
oF any County wuHeEeRE Ricnarp Roz, tHe Jup¢MENT
Depror ABOVE NAMED, May BE Founn, GreertIne:

Wuereas, I

ee

... did, on the ....... day of ..........

as judge (or justice) of

eeey
534 SUPPLEMENTARY PROCEEDINGS

19...., upon the proper affidavit, issue a warrant under Sec.
2437 of the Code, for the arrest of Richard Roe, judgment
debtor in the above-entitled proceedings, and whereas, the said
Richard Roe, was duly arrested and brought before me, and
whereas, I did on the ............ day OF xg ieaaueadca cee ;
19.... make an order directing the said Richard Roe, to exe-
cute an undertaking as prescribed by Sec. 2440 of the said
Code; and it appearing to me that a copy of said order was
duly and personally served upon the said Richard Roe, at the
ee eer ee Of aciweteesed eae sy Ne Vey On the vsemesicis
day? Of sneid cs ea ger eats , 19.... and it further appearing
that the said Richard Roe, judgment debtor, has failed and
neglected to furnish said undertaking as directed by said order,
Now THEREFORE,

You ARE HEREBY REQUIRED to commit said Richard Roe,
judgment debtor, to the common jail of this county there to
remain within the walls of said jail until he give the under-
taking heretofore mentioned, or until finally discharged from
the aforesaid warrant, and that you produce the said judgment
debtor before me, or a Referce appointed by me, at such times
and places as I may appoint and direct.

Dated the ........ day of sssescewsecia es p10.
be
o
o
=
M
ox
ee
X

 

In the Matter of the Examination
of Ricuarp Ror,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dog,

Judgment Creditor. Pelee: aan 6

Under a Judgment Recovered in Compel Attendance of
an Action Entitled + Judgment Debtor.
ba wate a ae Courti ci eewdea aes
ee N.Y. ieee G28 Code)

Joun Dox,
Plaintiff,

VS.

Ricwarp Ror,
Defendant.

 

 

To Richard Roe, Judgment Debtor.

Le ksadaaseaeewees duly appointed a Referee in the above-
entitled proceedings under Sec. 2442 of the Code, to examine
536 SUPPLEMENTARY PROCEEDINGS

you and any witnesses produced as prescribed by See. 2444 of

said Code, by an order made by Hon. .......... ..ee. Judge
(or Justice) of .............--. , and dated the .........
day Of sx ituuda wean: 19...., and heretofore duly served
upon you, do hereby Summon, DIRECT AND REQUIRE you to at-
tend in person before me at .............. ee eee in the
gee Sapa nares OF sSew ee eey Ne Wg OM TNS: 6 oe conde
GAY IOE -gieaicesse in desls jab aace-aiice o’clock in the .......

noon of that day, that being the time and place I have fixed
for said examination (or to which date said proceedings have
been regularly adjourned) to be examined as in said order
directed and required.

Dated this ........ diy Of sasitawerenas lO esae

errr j( PARSRRRe Ree ieR (Referee)

Note.—Strictly speaking, a referce’s summons is only avail-
able where the original order does not fix the time and place
for examination, or where the judgment debtor was not present
at a regular adjournment, or he was not directed to appear
upon the making of an adjournment in his presence. Under
the decisions, the custom of referees to issue a summons for
the appearance of the judgment debtor, where upon the original
return day the referee was not present, or the judgment credi-
tor did not appear, is not warranted. The remedy in such case
is to obtain a revival of the order by the judge and the appoint-
ment of a later time and place for the examination before the
same or another referee.

y
oe Sveuete sebieisna'ssisie soe! (COURT: 444. GanGaeeewie i iedisioe aes

 

Iu the Matter of the Examination

of Ricuarp Roz,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dor,

Judgment Creditor.

Under a Judgment Recovered in Referee’s Subpoena.
an Action Entitled r
(Sec. 854 Code)

Joun Dos,
Plaintiff,

Us.

Ricuarp Rog,

 

 

Defendant.
Tuer PEOPLE OF THE STaTE OF New YORK TO ....).04.- Se oe
GREETING.
Lauter sea ew ween eae , duly appointed a referee herein

by an order made by Hon, «.isdsvavverseewnies » Judge of
538 SUPPLEMENTARY PROCEEDINGS

the goewrusin soawey Soa Geue ae , dated the .......... day of
Sah alo WaArtriora Ga ath , 19...., under and pursuant to Sec. 2442
of the Code Civil Procedure, do hereby Commann you (and
each of you) that all business and excuses be laid aside, you

(and each of you) appear and attend before me at .........
AM ARO sora. oa asier aie es Ole canter ewes osiaheasea D ouasser a , N. Y., on
the? eanins eek Gay Ob ypsoS tania aan 5 AO a at
ee eee o’clock in the ............mnoon, to testify and

give evidence in the above-entitled proceedings (and that you
bring with you, and then and there produce the following de-
scribed books and papers, VtQ.0 voce cece cence ene

PY

saan tte waaaraie ese sane wari dais ah olere ean yr eabassestias)
and for a failure to attend (and produce said books and papers)
you will be liable, in addition to any other punishment which
may be lawfully inflicted therefor, for the damages sustained
by the person aggrieved, and $50.00 in addition thereto.

Dated the ........ CayiOR ea Guekinies Gute’ p LD eae

ee ee ee seeeeee.. Referee
 

Tn the Matter of the Examination
of Ricuarp Ror,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Jonw Dos,

Judgment Creditor.

Under a Judgment Recovered in | Subpoena Duces Tecum.

an Action Entitled r
Javea eee e Court c.senacse ee RBecs See Cone)
Of Shad eeasaeed 5 NAY,
Joun Dog,
Plaintiff,
vs.

Ricuarp Rog,
Defendant.

 

State or New York, 4
County Ob acnciecesees BS

Tuer PEOPLE OF THE STATE OF New YORK, TO ........0e00%
GREETING,

You are hereby commanded that all and singular business
540 SUPPLEMENTARY PROCEEDINGS

and excuses being laid aside to be and appear in your own

proper person before ............ , the undersigned referee,
or Judge at ................ AD TO! gia alae Saas wine of
sayialage ia aehatantralar aie UOTE caeaes TAY OF wywecsawadea ven ty
Wcsey Al cadens xs o’clock in the ........ noon of that

day, to be examined as a witness in the above-entitled proceed-
ings, now pending undetermined, at the instance of the judg-
ment creditor (or judgment debtor) that you bring with you and
produce at the time and place aforesaid, certain books, papers
and writings (here describe the same sufficiently for identi-
fication).

And for a neglect or refusal to obey this subpoena, you will
be deemed guilty of a contempt of court, and liable for all losses
or damages sustained thereby by the party in whose behalf you
are subpoenaed, besides $50.00 in addition thereto,

Dated the ........ ay OL sowie give nsewas 5 LO ies 3

eee ewer rere e es ere eres eee ere eevee ee
FORMS 541

 

In the Matter of the Examination
of Ricuarp Ror,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dox,

Judgment Creditor.

Under a Judgment Recovered in Referee’s Oath.
an Action Entitled
(Secs. 2445, 842 Code.)

Joun Dor,
Plaintiff,

VS.

Ricuarp Rog,
Defendant.

 

 

Strate or New York,
ges
ovo

AOMBLY OF 2 caexeuce eax

[ eaedreas gaan eeu’ , the Referee, appointed by the order
OF HOt. sieeve cde cars Judge (or Justice) of ........000.
in proceedings supplementary to execution in the above-entitled
action, dated ................, 19...., do solemnly swear

that I will faithfully and fairly discharge my duty upon the
542 SUPPLEMENTARY PROCEEDINGS

reference herein, and make a just and true report, according
to the best of my understanding.

Sworn to before me, this .........
day of ..........2.. gD rei, Vea dratoatieae ates Rea ears
NO. 31
COURT iets ee seee dans eer ara

a

 

Tn the Matter of the Examination
of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to

Execution upon the Application Pancseainge amen the ms

of Joun Doz,
Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

Joun Dor,
Plaintiff,

vs,

Ricnarp Ror,
Defendant.

 

 

amination Held before
the Referee Pursuant
to Order of Hon.
FORMS 543
Referee’s oath taken and annexed hereto.

Judgment creditor appears in person, (or by his attorney
Laur ele ees aeweE be

Judgment debtor appears specially and raises the following
objections: (Here set forth such objections, and proceedings
had thereon).

Judgment debtor, Richard Roe, appears in person (and by
«Spied Gb Sue a erate cae , his attorney).

Richard Roe, judgment debtor, being duly sworn by me
testified as follows: (Here give questions and answers or tes-
timony may be written out in narrative form).

Testimony Read over to Judgment
Debtor; suggested corrections
thereto made and the same duly
subscribed before me.

er rd

(Testimony of Witnesses, if any, to follow in same manner.)
544 SUPPLEMENTARY PROCEEDINGS

 

In the Matter of the Examination

of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor.

Under a Judgment Recovered in | Referee’s Report (Rule

an Action Entitled r 79, General Rules of
Mie weve were Court coasseees an raetice)
OL wile wae weeswe , N.Y.
Joun Dor,
Plaintiff,
vs.

Ricuarp Ror,
Defendant.

 

 

Doate: Tony yoiaeaeseseuey ne (Judge, before Whom Order
Returnable).

Judge (or Justice) of oc... cece eecaeee

The Report of the undersigned Referee, appointed in the
above entitled proceedings supplementary to exccution, by an
FORMS 545

order made therein by Hon. ........c0e.ceeeeee , Judge of
er eee OH THE a pee ues CI OL gee woaseu saws
19...., respectfully shows:

That before entering upon the examination, or taking testi-
mony as directed in said order, I, said Referee, subscribed and
took the oath prescribed by Section 2445 of the Code of Civil
Procedure, which is hereto annexed and returned with this
report.

That at the time and place mentioned in said order for that
purpose, to wit; at ..... o'clock ..... M., on the .........
day Of sinusewiscacees ws pb Oi eis At ou awe aan elas i in the
aah Pe wm of ................, N. Y., I called said pro-
ceedings and examination, and said judgment creditor appeared
before me by ...........0008. Esq., his attorney, and said
judgment debtor appeared in person (and by his attorney .....
Teak eee ee Esq.) and submitted to the examination as
directed by said order (or objected to the jurisdiction of the
Referee and the sufficiency of said order and the affidavit upon
which it was granted, upon the grounds specified in the written
objections filed by him with me, which are hereto annexed,
marked “Schedule A,” and returned as a part of this report, and
said judgment debtor, wnder the advice of his said counsel, re-
fused to be sworn and examined wpon said proceedings, where-
upon I did adjourn said examination before me to the ........
DOG Of 3s abe viw se eies 5 hG ews Ob Sawa aeeiees o'clock,
.eee.. M. at the same place, and directed said judgment debtor
to appear before said judge granting the order, at his cham-
VEFS UE cosas ornecs 66 y Ne Lay DTA sve e eaa wae w day of
etoeaalatalaOGNa Seis waters ,» 19...., for the purpose of hearing and
determining said objections).

Said examination was held before me, pursuant to said order,
and the various adjournments had thereunder on the following

days, to wit: On the .......... day Of vssixsnovnweesrs
Ws eos § OD thE dee vanes Cady Of 2acexyerkeeermas planed
Ob THE ce gaxeene day Of ay Crewe aan vy 19. «9 On the

Garnishee—35.
546 SUPPLEMENTARY PROCEEDINGS

oeeew wean Gay Of exdiciawerag nes 19.4203 om thé .su0% eee

Cay Of adage getaslioes AD cnet BNE: 4 Gato wees wealss
That said judgment debtor (and the following witnesses)

spi bew te ioateralbusin Stew Rial ee Ria tLe meer oa cetewe bis was (were) produced

and examined before me under said order.

That said judgment debtor (and each and every of said wit-
nesses) was by me duly sworn or affirmed in the manner pre-
scribed by law, before giving testimony upon said reference,
and was (were) examined under oath.

That upon said reference I took all of the testimony given,
in writing, which said testimony appears in full in my minutes,
which are hereto annexed, together with the exhibits put in evi-
dence, and are referred to and are a part of this my report.

That the testimony of said judgment debtor (and of each
of said witnesses) after his examination had closed, was read
over to him (or them) by me, and such changes, alterations
and additions were made as the witness directed, and the testi-
mony as corrected was subscribed by him.

That the various adjournments, objections, etc., appear fully
and at large in said minutes of the Referee.

All of which is respectfully submitted.
 

In the Matter of the Examination

of Ricuarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dos,

vuagueant Credion Affidavit for Order Va-

Under a Judgment Recovered in cating Order : for Ex-
an Action Entitled > amination,
ianaerareneednete arate Court, County of
aisiaceascadecsuscs suit ecw » N.Y. Apete aA0d Codes)
Joun Doz,
Plaintiff,
vs.

Ricuarp Ror,

Defendant.

 

 

Strate or New Yorx, j]_ .
County Of acenkeavews ‘ae

{ser Hs Ewe nee ene’ _.+. being duly sworn says that he is the
attorney for the judgment debtor in the above-entitled proceed-
548 SUPPLEMENTARY PROCEEDINGS

ings; that heretofore and on the ....... day of ....eseeeeee ‘i
19...., an order was granted therein for the examination of the
said judgment debtor in supplementary proceedings by Hon.
ihe Page eed sews Judse (or SUSCe), OF vassenndeieexe xs
dated the ........... ay Ol: oss ead tena ees NOs 85
which order and the affidavit upon which it was based were
thereafter personally served upon said judgment debtor; that
said affidavit and order are hereto annexed and made a part
hereof. Deponent further says that ..............0.. the
referee appointed in said order to take the examination in said
proceedings is disqualified to serve by reason of the fact that
.he is associated in business with the attorney for the judgment
creditor and occupies adjoining offices with him.

. Deponent further says that no previous application has been
made herein for an order vacating said order of examination.

Sworn to before me this .........
G07 OF vaveeepietiosey les See

 

NO. 34
Notice of Motion for Or-
A der Vacating Order
Title as in Form No. 33. for Examination.

(See. 2433 Code.)

 

Take Norior, that upon the annexed affidavit of ....... ae
FORMS 549

hla eons tears ; the order for the examination of Richard Ree, :
Sadantent debtor , in proceedings supplementary to execution
granted by Hon. ............. 000 ee, Judge (or Justice)
Jee While ee Barden Of isisces sive ces s dated. on the os .ces ss
oy Ol 2 eeu ceeeees , 19.... together with the affidavit
upon which the same was based, the undersigned, judgment
debtor, will move before said Hon. ...............-. Judge
(or Justice) at his Chambers in the ........ cehueteeus of
sitar a eae ,N. Y., on the ....... dayof ...... sec e ee ey
AD ov cv'atoe scissors o'clock in the ........ noon of said day,

for an order vacating the said order of examination on the
following grounds: That the facts set forth in said affidavit
for said order of examination, were insufficient to authorize
the judge to grant said order, and, that the said Referee ap-
pointed therein was disqualified from acting by reason of the
fact that he then occupied and now occupies adjoining offices
with the attorney for the judgment creditor.

And also such other or further relief in the premises as to
the court may seem just, together with the costs of this motion.

Dated the s.es..<2 day of 04.54%: peweuig doe tase

Yours, ete.,

Attorney for Judgment Creditor.
550 SUPPLEMENTARY PROCEEDINGS

NO. 35.

 

In the Matter of the Examination

of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
. Execution upon the Application
-- of Joun Doz,

Judgment Creditor.
Under a Judgment Recovered in | Order Vacating Order
an Action Entitled + for Examination of
Judgment Debtor.
iicacy weeteeeee Court, County of
Shapira alee N.Y. een es oe Code)
Joun Dog,
Plaintiff,
vs.

Ricnarp Roz,
Defendant.

 

 

A motion having been duly made before me at my Chambers

Ut {he Foose eiow bare Of cibivancveder ews , N. Y., for the
vacation of an order heretofore and on the .......... day of
a prey aaa Sg rere de , 19...., granted by me for the examina-

tion of the judgment debtor, Richard Roe, on the ground that
FORMS 551

the facts set forth in the affidavit upon which said order was
granted were insufficient to authorize the judge to grant said
order, and the further ground that the referee named in said
order was disqualified because he then occupied and now occu-
pies adjoining offices with the attorney for the judgment credi-
tor.

Now, upon reading and filing said order for examination,
and the affidavit upon which it was based, and the affidavit .

OF uceiewwoe wows wee attorney for the judgment debtor, veri-
fied on the .......... Cay Of eyes Gow eae pd Oates
and the affidavit of ................ attorney for the judg-
ment creditor, verified on the ........ day Ob; eine die eaters ;
19...., and after hearing ........... attorney for said judg-
ment debtor, and .............00. attorney for the judgment

creditor, in opposition thereto, and after due deliberation
thereon, it is hereby Ordered that said objections be and the
same thereby are sustained, and it is further Ordered and Di-
rected that said order be and the same hereby is vacated and
set aside with $10.00 costs of this motion to the judgment
debtor. |

Dated the ........ day of ...ceeeeeeees pL Oiirns

fejathl oi tiie xe dieeaus sovceecceese+ -oudge (or Justice).
552 SUPPLEMENTARY PROCEEDINGS

 

In the Matter of the Examination
of Rrcuarp Rog,

Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dos,

Tee nen Recetas Order Permitting Debtor

Under a Judgment Recovered in of Judgment Debtor to

an Action Entitled r Pay Debt to Sheriff.
sie sie eeeene . Court, County of
Sec. 2446 Code.
Olea N.Y. (See &)
Joun Dos, *
Plaintiff,
vs.
Ricuarp Roz,
Defendant.

 

 

Motion having been duly made before me at my Chambers,
ID thé? scsaiearseey Of a wariaecidhauiwiia'es , N. Y., on the
date below specified by ................. (Party indebted),
(or the judgment creditor), for an order authorizing and per-
mitting ......-.6.6 doGhe soem , a debtor of the judgment
FORMS 553

debtor, herein to pay his debt to the Sheriff of .............-
County, to be applied upon the judgment of the judgment
creditor herein, and due proof having been made to me of the
service of said notice of motion upon said judgment debtor,

Richard Roe, (and upon .........0e0eees ), which notice is
deemed sufficient in the premises, now

THEREFORE, upon reading and filing the affidavit of .......
al eaieretae pete’ verified on the ....... day of ......eee00.- :

19....3 the affidavit for the original order for examination
herein; such order of examination; said notice of motion, and
the affidavit of .......... ...... as to the service thereof, and
after hearing ........ seeeeessy attorney for said judgment
creditor (or party indebted) in favor of said motion, and
een eae mB Garseem attorney for the judgment debtor, in op-
position thereto, it is hereby,

ORDERED AND ADJUDGED, that the said .........0..006- is
indebted to the said Richard Roe, judgment debtor, in the sum
Of Bic wuss eee , and it is hereby further

ORDERED AND DIRECTED, that the said ...........05-60-
may pay the said debt to said Sheriff to apply upon the judg-
ment of the judgment creditor herein.

Dated 222209 ce Wy UL aan eras Guess gLOke a

io. b08 6.6 oejsus 6 Be Few wierd ses eeeles ao SUdgE (or Justice).
554 SUPPLEMENTARY PROCEEDINGS

NO. 37.

 

In the Matter of the Examination

of Ricuagp Roz,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application Affidavit
of Joun Doz,

Judgment Creditor.

and Order to
Show Cause for an
Order Directing the

Under a Judgment Recovered in Judgment Debtor (or
an Action Entitled r Third Person) to De-
liver Property to the

‘oaire Seg ane ncaa ate Court, County of Recej Sheri
paerccmaaauesen N.Y ne angen

Joun Dor, (Sec. 2447 Code.)

Plaintiff,
vs.

Ricuarp Ros,
Defendant.

 

 

State or New York,
County of ..........6. PS

GaSe ea ta emer being duly sworn says he is the
attorney for the judgment creditor above named (or the judg-
ment creditor) ; that heretofore and on or about the .........
FORMS 555

G0 Oh nui éeeeeskeeess , 19...., an order for the examina-
tion of Richard Roe, the judgment debtor herein in supple-
mentary proceedings was duly granted by Hon. ...........
EAT ae , Judge (or Justice) of .............. dated
THE ese ee se day Of nears ig aeeeres ,19...., which said
order was thereafter duly served upon said judgment debtor,
reference to which is hereto had, and the same made a part of
this affidavit. That the examination of said judgment debtor

was duly taken before ................. Esq., the referee
duly appointed in said order, and the testimony before said
Referee was duly certified to Hon. ..............6- , Judge
(or Justice) of ...........00.. to whom said order of exam-

ination was made returnable, reference to which certificate and
testimony is hereto made and the same made a part hereof.
That it appears by said examination and testimony that Rich-
ard Roe, the judgment debtor, has in his possession or under
his control, money (or other personal property), belonging to
him, applicable to the payment of the judgment herein (here
describe property) (or that said testimony shows that ........
Paes ,athird party, 1s indebted to or has property of the
judgment debtor applicable to the payment of said judgment,
describing same).

That no previous application for an order to show cause why
an order should not be made directing said judgment debtor
(or third person) to deliver over said property pursuant to
Sec. 2447 of the Code has been made herein.

Sworn to before me this ..........
day Of cesesveews ces piteore, “\atewiwanaeciwee sites

ee

eee me mw mw ee mee ee eee wm ewe ew enw rene
556 SUPPLEMENTARY PROCEEDINGS

WL Te (yaw eunes AAS Ol ie en es so eeree ees yi dew aie
original order for the examination of the judgment debtor here-
in, and the proceedings had therein, let the judgment debtor,
Richard Roe (or third person) show cause before me at my

Chambers in the ............5. OL. ie iaiarravene > azeacs ioe oe , N.Y.
on the w.iseiss seas. day: Of écaawsreirseasewes p ADs
De waxy ewe G'clotk I thé .s0s.s2 20% noon, of that day, or

as soon thereafter as counsel can be heard, why John Doe, the
judgment creditor herein should not have an order directing

Richard Roe, the judgment debtor (or ...........06- third
person) to deliver .............6.. the receiver herein (or
the Sheriff of ...ccscceecerees county) the money and other

personal property mentioned and described in the testimony
heretofore taken in these proceedings, viz., (here describe prop-
erty).

Let this order and the annexed affidavit be served upon Rich-
ard Roe, said judgment debtor (07 ..........e000- said third
person) on or before the ......... day of ...... ep eesete
19...., and such notice and service shall be deemed sufficient.

Dated the ........ day Of ces seweewees LD eesrore

 

Order for Delivery of

Property to Receiver
Title as in Form No. 37. (or Sheriff).

(Sec. 2447 Code.)

 

An order to show cause why the judgment creditor above
named should not be granted an order that Richard Roe, the
FORMS 557

judgment debtor (or ..........0.. third Person) deliver cer-
tain money, and other personal property described as follows:
(here describe property) to be applied to the payment of the
judgment herein, having been heretofore issued returnable at
this time and place, and said order and the affidavit upon which
it was based, having been duly served, as appears by the afli-
davit Of 020 2dseeesase ava hereto annexed.

NOW, upon reading and filing the affidavit of ...... sbi eess
attorney for the judgment creditor herein verified on the
Redeoceene a day Of wa vacwvseocaee nny L9e away the Bald order
to show cause, with affidavit of service together with the cer-
tificate of the Referee, and the testimony taken in these pro-
ceedings, and after hearing .............44. of counsel for
the judgment creditor, and ..............0. of counsel for
the judgment debtor (or third party), it is hereby,

OrpErED that Richard Roe, the judgment debtor (or

ere tye third person) pay and deliver to .........+.000-
the receiver herein (07 .....cccccccessceees the Sheriff of
er re County) said money and property aforesaid,

to be applied toward the satisfaction of the judgment of the
judgment creditor herein.

Dated the ........ Gay Ol waxedawdewaads flees

Sake ees eet DN ands a dwege eas MARS (OF @ Usttee).
NO. 39.

 

In the Matter of the Punishment
of Ricuarp Roz,
Judgment Debtor,

For Criminal Contempt of Court | Affidavit for Order Com-

Arising in Supplementary Pro- mitting for Criminal
ceedings in an Action Entitled Contempt of Court not
re Court, County of { in Presence of Court.
Bis aesiysira ies shodeaieeste ,N. Y.
(Sec. 2457 Code, Secs.
Joun Doz, 750, 751 Judiciary
Plaintiff, Law.)

US.

Ricuarp Roz,
Defendant.

 

 

State or New York, ) |
County Of oasceaneree's oe

Biesbeles Seen shrn wats sia tee oot being duly sworn says that he is the
attorney for the judgment creditor in the above entitled pro-
ceedings (or the judgment creditor) that heretofore and on the

nikism nies day of ................, 19...., an order in
these proceedings was granted by Hon. ..................
Judge (or Justice) of ....... ce eee eee for the examination
of Richard Roe, the judgment debtor herein, and said order
was thereafter and on the ......... day Of csssaancvecens
19...., personally served upon said judgment debtor, as ap-

pears by the affidavit of ................ hereto annexed and
FORMS 559

made a part hereof; that under the provisions of said order
said judgment debtor was directed to appear before .........
dace once uaeenens the Referee named therein for his examination
concerning his property; that upon said return day said judg-
ment debtor did appear before said Referee, and although
requested to be sworn and testify in the proceedings by the
judgment creditor and said Referee, said judgment debtor,
wilfully and with intent to defeat said examination, and in
contempt of the said Referee, loudly swore at said Referee and
refused to be sworn and testify in said proceedings, and when
requested to remain at said hearing and proceed with the ex-
amination, attempted to strike said Referee in the face, and
then and there left the place of said hearing and stated that he
would pay no attention to said Referee or the directions given by
him (or allege other contemptuous and insolent conduct on the
part of said judgment debtor).

That no previous application has been made herein for the
punishment of said judgment debtor, Richard Roe, for his said
misconduct and contempt of court.

Sworn to before me this ..........
GOP UE vecspevrwekes Dae poate KOR DE ASI
Upon the annexed affidavit of .............206. verified
On, the weveeceuse es day Ob scieueesdaweues , 19...., the

original order for the examination of the judgment debtor here-
in, the proceedings had before the referee therein with his cer-
tificate thereto annexed, and on all the proceedings had therein,
let the judgment debtor, Richard Roe, show cause before this
Court at a Special Term thereof to be held at the Court House
ID: THe gic asrcwewes oes Of agape Gatanw eek , N. Y., on the
560 SUPPLEMENTARY PROCEEDINGS

Siriaas anh May CL skeidey sede xivens 10ers A Greate
oelock in the 5: Acacaie< 4 noon of that day, or as soon thereafter
after as counsel can be heard, why he should not be punished for
criminal contempt of court, for insolent and contemptuous mis-
conduct before the Referee in said supplementary proceedings,
as set forth in said affidavit of .......s.eeeeeeee and the
certificate of said Referee hereto annexed.

It is further ordered that copies of the affidavit and other
papers on which this order is granted be served upon said Rich-

ard Roe, judgment debtor, personally, on or before the .......
day Of ase senctaeetaes , 19...., and such service shall be
sufficient.
Dated the ........ diy De sachoomiwewes gp 19e ces
Gelb asia etnielsi oie: nentiwe eee eeeee-dudge (or Justice).
NO. 40

 

Title as in Form No. 39. | Dertiiieate ‘ot Referee ve
| to Proceedings.

 

aD coos boleh akabeoedanausea aNohoa eee ah the Referee duly appointed in
the above mentioned supplementary proceedings, pursuant to
an order of Hon. ...........0.0005- Judge (or Justice) of
eR aaeiarealelsa ete dated the ........ day of ..........005,

19...., do hereby,

Certify, that upon the return day of said order I was at-
tended by ......... Fence ee , the attorney for the judgment
creditor, and said judgment debtor appeared in person; that I
took the Referee’s oath and requested the said judgment debtor
to be sworn and testify in the proceedings; that said judgment
FORMS 561

debtor refused so to do and loudly swore at me and declared
that he would not be sworn and testify; that I then requested
him to remain at said hearing and proceed with the exami-
nation, but he attempted to strike me in the face and imme-
diately thereafter left the place of said hearing and stated that
he would pay no attention to me or my directions.

All of which is respectfully submitted.

Dated the ........ day Of ws 00w sa vase wes 5 AD save
iukippeieeee cae veiead cvccevcvce Referee.
NO. 41.
‘At a Special Term of the .......... Court
Of te oreo eeled ds , held at the Court
House in the ..............00.. of
SUS e eee aaa , N. Y., on the
Seucsee Scioto ss Cy Ol «ses etedvewuwag
19.
Present:
Hots: icdotueuueernaereecis
Judge (or Justice) of ......... 0. cee .

 

Order Committing for
Criminal Contempt.
Title as in Form No. 39.
(Sec. 752 Judiciary
Law.)

 

On reading and filing the affidavit of .................

Garnishee—36.
562 SUPPLEMENTARY PROCEEDINGS

verified on the .......... day Of .ciexcisevaseees yd dns
and the certificate of the Referee appointed in the iiovenaniell
supplementary proceedings, dated the ............ day of

19...., and upon all the proceedings had herein, and upon
due proof of the service of the order to show cause, annexed to
said affidavit, and said Richard Roe, judgment debtor, appear-
ing before the court in defense of his alleged criminal contempt,
and upon reading and filing the affidavit of ......... Sp aeons :
his attorney, verified on the ......... day of .......4. ere
19.., and after due deliberation it is hereby,

Orprrep, and Apsupcep that said Richard Roe, judgment
debtor, is guilty of the contempt charged, in that he did, on the
ceeceeees Gay Of .cccceccecseceeey 19...., upon the return
day of the order for the examination of said judgment debtor
in said proceedings refuse to be sworn and testify upon the
request and direction of said Referee; that he swore at and
attempted to strike said Referee in the face; that he refused
to remain at said hearing and in an insolent and contemptu-
ous manner left said hearing, and he hereby is adjudged guiltv
of criminal contempt of court, that he be and he hereby is
convicted thereof and is ordered and adjudged as punishment
for said contempt, to pay a fine of $........... (not exceed-
ing $250.00) to the clerk of this court, to be disposed of accord-
ing to law and that he be imprisoned in the common Jail in the
County of: isai vices adage een there to remain until the said
fine imposed as aforesaid shall be fully paid, not exceeding
thirty days, or he be sooner discharged according to law.

Enter.

Judge (or Justice).
FORMS © = ‘563

NO. 42.

 

Order Committing for a
Criminal Contempt of
Court in Presence of
Title as in Form No. 39. Judge.

(Sec. 752 Judiciary
Law.)

 

An order having heretofore been made by me (or Hon.
bases Souetalaetadane 4 ) Judge (or Justice) of .........06, is 6
and dated the .......... (ay Or parks ceemeeates ens
for the examination of Richard Roe, the judgment debtor in
the above entitled proceedings, returnable before me.on this
aap schaiis Satista day of ............, 19...., and said judgment
debtor appearing before me pursuant thereto, and being‘directed
to be sworn and testify in said proceedings, he insolently and
contemptuously, in defiance of the court, refused so to do, left
my presence and refused to remain at said hearing, although
directed by me so to do (or allege other insolent and contemptu-
ous conduct im the presence of the judge) now, therefore, it is
hereby,

OrpErRED and ApgupGeED, that said Richard Roe, judgment
debtor, is guilty of criminal contempt for his wilful, insolent
and contemptuous conduct aforesaid, and he is hereby convicted
hereof, and he is ordered and adjudged as punishment for said
contempt to pay a fine of $............... (not eaceedini
$250.00) to the Clerk of this Court to be disposed of aecord-
ing to law, and be imprisoned without further delay in the
common Jail in the County of ................ , and there
to remain until his said fine, imposed as aforesaid, shall be
564 SUPPLEMENTARY PROCEEDINGS

fully paid, not exceeding thirty days, or he be discharged ac-
cording to law.

Dated the ........ day OF 66 bites hase 5 LD ices
uearkees ise wwaendreeelewene Judge (or Justice).
NO. 43.
Court Bish ce Viaiek's Biaisere'e's

 

In the Matter of the Punishment

of Ricnarp Ros,
Judgment Debtor.

For Contempt in Supplementary
Proceedings Arising in an Ac | Affidavit for Writ of At-
tion Entitled tachment (or Order to

Show Cause).

Since eie state saleta Court, County of |
int we eho mente oe Nay
(Sec. 757 Judiciary
Joun Dor, Law.)
Plaintiff,
vs.

Ricowarp Ros,
Defendant.

 

 

State or New York,
County of ............ Sas

eet ueeeueeceeeessecees being duly sworn says he is the
FORMS 565

attorney for the judgment creditor (or judgment creditor) in
the above entitled proceedings. That heretofore, and on the

svvensoes Gay OL ciaceteeecsawesey 19s 0x05 an onder was
granted in said proceedings by Hon. ...............- Judge
(or Justice) of the .............. Court, which said order
was thereafter personally served upon said judgment debtor, as
appears by the affidavit of ................ hereto annexed
and made a part thereof; that said order was returnable before
di ov creeinhhay eechigeacshe thes , Esq., appointed referee, at .......+...
ID thE cua cewewy Of cee ae earn acenes , N. Y., onthe ......
day Of acceler ences ,19.... at 10 o’clock in the forenoon
of that day; that deponent appeared for the judgment creditor
herein before said Referee at said time and place ready to pro-
ceed with said examination of said judgment debtor; that said
Referee took the usual oath of office and called said proceedings,
but said judgment debtor failed to appear before said Referee at
said time or within an hour thereafter, during which time said
proceedings were held open, and he is guilty of contempt there-
for (or allege other acts constituting contempt).

Deponent further says that said order for examination of
said judgment debtor, together with the proceedings before said
Referee, with a certificate of said Referee thereto, are hereto
annexed and made a part of this affidavit.

That said misconduct of said judgment debtor was caleu-
lated to and actually did defeat, impair, impede, or prejudice
the rights and remedies of the judgment creditor herein (if
actual damages also sustained thereby state particulars thereof
and the amount of such damage).

That said judgment creditor has paid out the sum of
Bs cecdubue te acaasooe. 8 to deponent (or .............. ) his said at-
torney, for services upon said examination and $............
to the Sheriff for his fees herein, (state what other or different
expenditures) making a total expenditure of $..............

That no previous application has been made for a writ of
566 SUPPLEMENTARY PROCEEDINGS

attachment herein, (or order to show cause) to punish said
judgment debtor for said misconduct.

Sworn to before mc this ..........
day Of vrwcien deere Oss ine

eee eer eer eee reese eves
ere ee ere eee eee rere eee eee see

ee ey

(Add Certificate of Referee as in Form No. 40, with change of
i facts to apply.)

(If a Court Order Begin as in Form No. 41.)

 

The People ex rel. Warrant of Attachment
for Arrest of Judg-

Joun Doz, ment Debtor.
US.
(Sec. 757 Judiciary
Ricuarp Ror. Law. )

 

Tue PEopre oF THE State or New York To THE SHERIFF OF
Guage SRE eRe Country (or Any County Where the
Accused May Be Found) Greetine:
FORMS DOT

-We command you that you attach Richard Roe and bring
him forthwith befpre me (or before me at my Chambers m
CO ioe vnse Grave OF sie seeeages seep dle Key OM TNE osc5 5 ew
POY OF le aise ae eiaspieh 6a 3 LO waa GE 3 aicib ees o'clock in the
Re ree noon), (or before this Court at a Special Term
thereof to be held in the .........06. OF seater aeeee Pits
Ny 2 OME are wees Ge OUD pie bine cau aioeaes Ls ee
Wb peak o'clock in the .....0.005. noon) to answer as to
his alleged contempt in refusing to obey the order of Hon.
Siena SOS ER t Ue , in the matter of the examination of Rich-
ard Roe, Judgment Debtor, in proceedings supplementary to
execution, and such other matters as shall then be brought be-
fore me (or said court) against him.

Let copies of this warrant, and the affidavit upon which it.
was issued, be served upon the said Richard Roe, at the time
of his arrest.

Dated the ........ day Of wsccwacaw vena y 18s.

(or if court order)

Witness Hon. .......... eee eeees one of the Judges (or.
Justices) of the said court this ........ Gay Of Fouuuyeaciens
19....

Clerk,

Note :—If accused is not to be brought before Judge or Court
forthwith there may be an indorsement on the warrant permit-
ting the giving of an undertaking to appear and answer.

(Form for indorsement permitting undertaking.)
568 SUPPLEMENTARY PROCEEDINGS

Let Richard Roe, the accused, give security for his appear-
ance by an undertaking as prescribed by Sec. 764 Judiciary

Law, in the penalty of $............ for his appearance to

answer.

Dated the ........ day of ssaives cae eee, 19...
Tabet aeeetteteneeceiey Judge (or Justice).

(OP Soeuee teak eats Clerk, if Court Order).

(Form for return of Sheriff where undertaking given.)
I have attached Richard: Roe and discharged him upon his
giving the undertaking prescribed by the indorsement upon the
within warrant, which said undertaking is herewith returned.

Dated the .......... Gay Of asd ia eda va eee 5 ADs eee

(Form for return where not indorsement for undertaking or
none given as directed.)

By virtue of the within warrant of attachment I have ar-
rested Richard Roe, and for want of undertaking I have him
before the court. ,

Dated the ........ Gay Gh 4 evadeuesw sess ¢ 1D ewes

Cr Ce ee  Y . Sheriff.
FORMS 569

 

Undertaking by Person
The People ex rel. Joun Dor, Arrested under War-

\ rant of Attachment.

 

vs.
Ricuarp Ros. (Sec. 766 Judiciary
Law.)
Kyow att Men sy THESE PRESENTS:

That we, Richard Roe, of the ............ OF ea mane voles © P
N. Y., principal, and ........ cece eee eee of the ........
phSeog tis OD. ccaieisees tomer sg lle Med wiweae voen ae oe done
occupation) and .......ee eevee Of the wscaceeeewsgedes
Ol ay. Gesiresnioces dN NOS ABD icradonreertliien cs (state occupa-
tion), are held and firmly bound unto the People of the State
of New York in the penal sum of §...... , for which payment

well and truly to be made, we bind ourselves, our heirs, repre-
sentatives and assigns, jointly and severally, by these presents.
Sealed with our seals, and dated this .......... day of

Wuereas, the above named Richard Roe has been arrested
upon a warrant of attachment issued by Hon. ...............
Judge (or Justice) Of ....peeccecceeas (or by the .. 24.2.4.
Court) in a proceeding for contempt for disobedience of an
order made in the matter of the examination of said Richard
Roe, judgment debtor, in certain proceedings supplementary to
execution, and
570 SUPPLEMENTARY PROCEEDINGS

Wuenreas, the Judge (or Court) issuing said attachment by
an indorsement thereon fixed a sum in which the accused might
give an undertaking for his appearance to answer, as prescribed
by See. 766 Judiciary Law, now,

THEREFORE, the condition of this obligation is such that if
the above bounden Richard Roe will appear at the time when,
and the place where, the said warrant is returnable, viz., (here
state time and place) and then and there abide the direction
of the Judge (or Court), then this obligation to be void, other-
wise to remain in full force and virtue.

Sealed and delivered )
in the presence of §

(Add Acknowledgment and Justification as in form No. 25).

No. 46.

eR ERACT REG Oe OES Be COURT! Gan danuiny ease ene:

 

Interrogatories to Be Ad-
ministered to Accused
by Direction of Judge

The People ex rel. Joun Doz,

v8. (or Court).
Ricuarp Ror. (Sec. 769 Judiciary
Law.)

 

Interrogatories to be administered to the above named,
Richard Roe, touching a contempt alleged against him for the
FORMS rel

disobedience of an order made in the matter of the examination
of said Richard Roe, Judgment Debtor, in proceedings sup-
plementary to execution now pending, which said contempt con-
sists of the failure to appear and testify before the Referee
appointed in said order as therein directed (or state other mis-
conduct charged).

First. Interrogatory: Were you heretofore and on the ......
day Of vsisaWeea ere an eas , 19...., personally served with an
order for your examination in supplementary proceedings, a
copy of which is hereto annexed, marked “A” ?

Second Interrogatory: Did you or did you not appear before
the Referee named in said order, at the time and place desig-
uated therein viz., at the ...........6.. Gl cceaeareeewens ;
N. Y., on the ..... nay sday OF vari wow eeuees ,19....2% (or
insert other interrogatory applicable to misconduct charged).

 

No. 47.
Answers to Interroga-
tories.
; } rm No. 46.
(iam in Hore Naede) (See. 769 Judiciary
7 Law.)

 

The said Richard Roe, above named, answers the foregoing
interrogatories in these proceedings as follows:

To the first interrogatory he makes answer (here insert
answer).

To the second interrogatory he makes answer (here insert
answer).

(Signature of Richard Roe)
572 SUPPLEMENTARY PROCEEDINGS
No. 48.

(If a Court Order Begin as in Form No. 41.)

 

Final Order Directing
Commitment for Con-

(Title as in Form No. 46.) a

(Sec. 770. Judiciary
Law.)

 

A warrant of attachment having been heretofore issued for
the arrest of the above named Richard Roe, and he having been
arrested thereunder, and having been brought before me (or
the court) and interrogatories having been duly filed, and
answers thereto by the said Richard Roe, having been made
and filed, and affidavits and other proofs having been made and
presented before me (or the court) concerning the misconduct
charged,

Now, on reading and filing the affidavit of ...............
verified on the .......... GAY Of wsicsiee sine Howes 5 19 ec eiey
on which said warrant was issued; said warrant of attachment;
interrogatories and answers thereto, and said affidavits and
other proof as to said misconduct, and after due consideration
and deliberation, it is hereby,

OrprRED and Apsvupcep, that said Richard Roe, is guilty of
the contempt charged against him, viz., that he did disobey the
order for his examination in supplementary proceedings made
BMG (OP HOW, 9 ina mega s gece ted Judge (or Justice) of
sate aiator anaes pOOCd The. texiass.. COG OF sees cehesge ws

ww) bY failing to appear before the Referee named lierd-
FORMS B75

in for examination on the day directed in said order (or set
out other misconduct charged); and that such acts and mis-
conduct were calculated to, and did actually defeat, impair,
impede or prejudice the rights and remedies of John Doe, the
relator and judgment creditor above named, and it is further
OrpERED and ApsubGED, that the costs and disbursements
of the relator and judgment creditor amount to and are hereby
allowed and fixed at $............ , and it is further
(Apsupexp, that the relator’s actual loss or damage caused
by said misconduct of said Richard Roe, amounts to $....... )
For his said misconduct the said Richard Roe is fined the
sum Of $. ccc ek ee veens (not exceeding $250 and costs and
expenses if no actual damage) to be paid by him to the said
relator and judgment creditor to indemnify the latter for his
loss or injury, and it is further
Orprrep and Apsupcen, that the said Richard Roe, stand
committed to the common jail of the County of ............
until the said fine be paid, not exceeding six months, unless
sooner discharged, and that a warrant issue to carry this order
into effect.

Dated the ........ day of ........000. 5 LD he arte

(or if court order)

Witness Hom cs.seseesiexeevnas one of the Judges (or
Justices) of said Court this ....... GG Ol seo elude ewsewes j
19). 6 6:6
me
1
He

SUPPLEMENTARY PROCEEDINGS
NO. 49.

(If a Court Order Begin as in Form No. 41.)

 

Renple: ex tel. Warrant of Committ-

Joun Dor, ment for Contempt.
vs. (Sec. 770 Judiciary
Ricuarp Ror. Lay)

 

Tue Propie ot tHE State or New York, to the Sheriff of
“Leieeeernnnars County, GREETING:

WuergEas, a judgment was duly rendered and recovered on
the iss. 008 eas day Of .aciscasucs vase , 19...., im an
action in which John Doe was plaintiff, and Richard Roe
was defendant, in favor of the said John Doe, against the said

Richard Roe, for $.............+4- and

Wuereas, I (or Hon. ...... 6. eee Judge (or Justice )
Of Siar ere hier oat daa ) did duly grant upon proper affidavit an
order dated the .......... Gai OL yaa cee Greed ¢ 19 Sens

for the examination of said John Doe, in supplementary pro-
ceedings on said judgment, and,

Wuereas said order and aftidavit were duly served upon
the said Richard Roe, and thereafter a warrant of attachment
was issued by me (or the court) commanding the Sheriff of
sia gages as wit County to arrest and bring before me (or
the court), and said John Doe, having been duly arrested
under said warrant, and having appeared before me (or said
court), and interrogatories having been duly filed and
answered, and affidavits and proofs in said matter having been
duly filed and considered, and after hearing ..............4
FORMS 575

of counsel for the relator, and judgment creditor, and ........
Ree oeanuewe of counsel for the said Richard Roe, it is hereby,

Orprrep and ApsupGED, that the said Richard Roe, is guilty
of the contempt charged against him, viz., that he did disobey
the said order for his examination in supplementary proceed-
ings made by me (or Hon. .......... weeeee. Judge (or Jus-
ACO): Of es arngasie a tees Oy ) as aforesaid, by failing to appear
before the Referee named therein, for examination on the day
directed in said order (or set out other misconduct charged) ;
and that such misconduct was calculated to and did defeat, im-
pair, impede or prejudice the rights and remedies of the said
relator, and the said relator’s costs and expenses having been
found to be, and fixed by me (or the court) at the sum of
Piletaleaiwctans a aciee (and it also having been found by me (or the
court) on competent proof that the relator has been injured
by the said misconduct, of the said Richard Roe, in the sum
Of Boe atest , making a total sum of $...... 00 eee )

Now, THEREFORE, you are hereby commanded that you take
the body of the said Richard Roe, and him closely keep in
your custody in the common jail in the County of ...........
for the period of six months, or until he shall have paid the
SUM Of Bias ierewniete oe imposed upon him for his said miscon-
duct, to the relator herein, or until the said Richard Roe shall
be sooner discharged by an order of the court.

Dated the ........ ays b2u0steaiuases ploouae
ajatyn etisisrsane Picle warts Judge (or Justice)
(or if court order)
Witness Hon. ....-.2--2- eee one of the Judges (or Jus-
tices) of said court this .......... CaP GL Sqn es aee dares :
ee
576 SUPPLEMENTARY PROCEEDINGS

NO. 50.

(If a Court Order begin as in Form No. 41)

 

In the Matter of the Punishment
of Ricuarp Ros,
Judgment Debtor,

For Contempt in Supplementary

Proceedings Arising in an Ac- Order to Show Cause

bine Babieed Why Judgment Debtor
Should Not Be Pun-
en ariele gi euiscane Court, County of | ished for Contempt.
Pe eee oe 19....
Joun Doz, (Sec. 757 Judiciary
Plaintiff, Law.)
vs.

Ricuagp Roz,

 

 

Defendant.
Upon the annexed affidavit of ........ceeeeeeees verified
Of TE «iecaeaws day Of saavexeknwalews nae 19.... (Form

No. 48); the original order for the examination of the judg-
ment debtor herein; the proceedings had before the Referee
herein, with his certificate thereto annexed, and all the pro-
ceedings had herein, let the judgment debtor, Richard Roe,
show cause before me (or this court at a Special Term thereof
to be held at, etc.) at my Chambers in the ............... of
pSiamiewcaseniess NOY, con the: sito GRY OF jan GeddeAdus
FORMS 577

DOs 5 oe cgi AU ee aise ee Sore o’clock in the .......... noon, of that
day, why he should not be punished for contempt, in that he
‘failed and neglected to appear before the said Referee, at the
time and place directed in said order for his examination (or
allege other misconduct charged).
It is further ordered that copies of the said affidavit of

Siren ans masta Sid be served upon said Richard Roe, judg-
ment debtor, a on or before the ........... day of
eee eww ewes 19...., and that such service shall be suffi-
cient
Dated the ........ Marl gas ieheces sae 18:

eal ateis.a Sel is ean AS aals Judge (or Justice)
(or tf court order)

Witness Hon. scexewcaweccews one of the Judges (or Jus-
tices) of the said court, this ........ O8y Of sui tana ees ‘i
195 c0s

Clerk
NO. 51

(If a Court Order begin as in Form No. 42)

 

Order Committing for
Contempt upon Order

Title as in Form No. 50. to Show Cause.

(Sec. 772 Judiciary
Law.)

 

An order to show cause having been heretofore issued in this
Garnishee—37.
578 SUPPLEMENTARY PROCEEDINGS

proceeding directing the judgment debtor above named to show
cause why he should not be punished for his alleged miscon-
duet in said proceedings, due service of said order to show
cause, and the affidavit upon which it was based having been
made upon said Richard Roe, as appears by the annexed affi-
aVAE! OL sas pate er gated a aarert's , and said Richard Roe, appearing
before me (the court) to answer said charge of misconduct.

Now, upon reading and filing the affidavit of .............
upon which said order to show cause was based; the original
order for the examination of said judgment debtor, together
with all the proceedings had thereunder, and after reading and
filing the affidavit of said Richard Roe, and ............-24-
in justification of said alleged misconduct and upon hearing
DAs epee eet of counsel for John Doe, judgment creditor
herein, and ...........000.. of counsel for said judgment
debtor, and after due consideration and deliberation thereon
it is hereby,

Orprrep and Apsuncxp, that said Richard Roe, is guilty of
the contempt charged against him: viz., that he did disobev the
said order for his examination m supplementary proceedings
made by me (or Hon... 0... ee cece eee. Judge (or Justice )
OF eck oie ove aeiaae , dated the ........ LOY OF vier Bereaiere bes 5
19....) by failing to appear before the referee named therein
for examination on the day directed in said order (or set out
other misconduct charged) ; that such acts and misconduct were
calculated to and did actually defeat, impair, impede, or preju-
dice the rights and remedies of said judgment creditor, and it
is further,

Orperep and Apsupcep, that the costs and disbursements of
the said judgment debtor, amount to and are hereby allowed at
the gut Gf Pe wive seeancd , and it is further,

(Apsupexn that the actual loss to said judgment creditor re-
sulting from said misconduct of said Richard Roe, amounts to
FORMS 579

For his said misconduct the said Richard Roe is fined the
sum of $.......... (not eaceeding $250.00 and costs and ex-
penses tf no actual damage) to be paid by him to the said John
Doe, judgment creditor, to indemnify the latter for his loss or
injury, and it is further

OrprrEep and ApsupGeEp, that the said Richard Roe stand
committed to the common jail of the County of ...........--
until the said fine is paid, not exceeding six months, unless
sooner discharged.

Dated the ..s4ss0 day Of scisssvassss plan's

aie Bienen ate mine tienes Judge (or Justice)

(or if court order)

Witness Hon, ............008- one of the Judges (or Jus-
tices) of the said court, this ........ day Of see sce sees Boag
19....

Clerk.

Note :—Under Sec. 772, Judiciary Law, the offender may be
committed upon a certified copy of this order, without further
process.
580 SUPPLEMENTARY PROCEEDINGS

 

In the Matter of the Examination

of Ricnarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dos,

Judgment Creditor.

Under a Judgment Recovered in | Affidavit for Order Ap-

an Action Entitled r —-_—- pointing Receiver.
ee) eietate sinees Court, ........06.
Wa peensees ae ee (pee 208 Cade)
Joun Dor,
Plaintiff,
vs.
Ricuarp Ror,
Defendant.

 

Strate or New York, :
Contty Of .aneensseeus be

Fieisaaee ain ieee -.. being duly sworn says that he is
the aitomnay for the judgment creditor above named (or judg-
ment creditor); that heretofore an order for the examination
of the judgment debtor herein was granted by Hon. .........
bat Aaron aienera 8 Judge (or Justice) of ............ Court, dated
FORMS 581

he Sees pes< Gay OF aaiwn ke tae eee , 19...., a copy of
which order is hereto annexed and made a party hereof, and
said order was duly served on said judgment debtor. (If the
examination of the debtor has taken place, so state with the
proceedings had.)

Deponent further says that no action under Sec. 1871-1879,
Code of Civil Procedure, is pending against the said judgment
debtor, and no special proceeding instituted as prescribed in
Secs. 2432-2463 of said Code is pending against him, in which
a receiver has been appointed.

Deponent further says that said judgment debtor has prop-
erty applicable to the payment of the judgment herein, viz.:
(here describe property). (An allegation as to judgment debtor
having property is not absolutely necessary. )

That no previous application has been made for the appoint-
ment of a receiver herein.

Sworn to before me this .........
Gay Of sssneewesawas gllcces. Aeereeseoiaus ek ewe
eee reer eerste eer eso ene @oeevececeree)
No. 53
ope bes ede See COURT sore aise, 0: is ve ooh aoe Wee Swe a we

 

Notice of Application for
Title as in Form No. 52. Appointment of Re-

ceiver.

 

Priraszs Taxe Notice, that upon the annexed affidavit of
es ine rpalsnsae eas , the affidavit and order for the examina-
tion of the judgment debtor herein, and all the proceedings
582 SUPPLEMENTARY PROCEEDINGS

had thereunder, the undersigned will apply to Hon. ........
seneeees Judge (or Justice) of wel ee cee eee ees , to whom
said order was returnable, at his Chambers in the ..........
Chips ohes a reais we ,N. Y., on the ........ Gay OF vase wisse
DOs aes Blt aieyaeta oes x o’clock in the .........4- noon of that
day for an order appointing ................ or some other

suitable or proper person, receiver of your property, as pre-
scribed by Secs. 2464-2470: Code of Civil Procedure, together
with, such other or further relief in the premises as to the court
may seem just.

Dated the ........ Cay Of .cssea Genes Pat! eee

To eeeeoeeeoeveveeeeeeeeree eevee ’
Judgment Debtor.

 

Order Appointing Re-
Title as in Form No. 52. ceiver.

(See, 2464 Code.)

 

An order having heretofore and on the .......... day of
Ey 2.thayeneto aus Ale ana aeons , 19...., been duly made in the above-en-
FORMS 585

titled supplementary proceedings by me, requiring the above-
named judgment debtor, Richard Roe, to attend and be ex-
amined on oath concerning his property (before .........-.-
Esq., a Referee, aud said Referee having subscribed and taken
ihe requred oath before entering upon said examination, and
said judgment debtor having been examined under oath accord-
ing to said order, and the Referee having certified the report
herein containing all the evidence and other proceedings taken
before him).

And i appearte by the stidavi of 2.000. c.eeen sees
verified on the .......... day Of sage waa eee sales , 19..
that notice of application for an order that a receiver be ap-
pointed herein was personally served upon said judgment debtor

ON the sxe ws Gay OL sei wee wawy eee bx ,19...., and it
also appearing bv affidavit of ................ verified on the
bacdirusde yea sad dav OF as.5 ou de aedis eeliy De any thAE NO

other supplementary proceedings are now pending against
said judgment debtor, and no action pending against him
brought under Sec. 1871-1879 Code of Civil Procedure.

Now, on reading and filing said affidavits, and the affidavit
and said order of examination herein, and proof of service of
said notice of examination and on motion of ................
Esq., attorney for said judgment creditor (and afler hearing
beet niie is cecteu Oso Kisq. attorney for said judgment debtor, im
opposition thereto), it is hereby

OxpeErep that 2.6.25 502.000. ees Of the 13 dees sa eare a of
Miyahara enone on , N. Y., be and he hereby is appointed re-
eeiver of the property of said Richard Roe, judgment debtor.
That such receiver, before entering upon the execution of his
trust, execute and file, with the clerk of the County of ........
wig snesechod , N. Y. a bond to the People with at least two suffi-
cient sureties to be approved by me in the penalty of $.......
conditioned for the faithful discharge of his duties as such re-
ceiver, and upon filing such approved bond, and filing and
recording this order in the office of the clerk of ............
county, and other necessary counties, said receiver shall be in-
584 SUPPLEMENTARY PROCEEDINGS

vested with all the rights, powers and duties of receiver accord-
ing to law (Sec. 2466 seems to make the giving of bond optional
with the judge, but such bond is almost invariably required).
(It is further ordered that the sum of $......... be allowed
to said John Doe, judgment creditor, for the costs of these pro-
ceeNings, and $...... Prete s witness’s fees and other disburse-
ments herein as taxed, which sums are to be paid out of any
money which may hereafter come to the hands of said receiver).
And the said judgment debtor is hereby restrained from
making or suffering any transfer or other disposition of or inter-
ference with his property, until further order in the premises.

Dated the ........ day’ Of ssa. ves etwas 5 AD ez
SHEE ais eae aah Judge (or Justice)

State or New York, a

County of «6.2... .008. a

Certificate on Certified Copy
to Be Filed in other Counties.

UT. etacersed seat tataralev ese County Clerk of the county of ......
Leta eS , do hereby certify that I have compared the pro-
ceeding with the original order filed in this office, and recorded
therein in Book No. ...... of Orders Appointing Receivers
of Judgment Debtors at page ........ g the sce ee eas day of
si ghewiale aes erode Mek , 19...., at .......... o'clock .... M.
and that the same is a correct transcript therefrom, and of the
whole of such original.

In Testimony whereof, I have hereunto set my hand and
official seal this .......... day 08 eave tea sites ews 5 AD ears

Clerk.
FORMS 585

No. 55.

 

Receiver’s Bond.

Title ag in Form No. 52.
ee Nays (Sees. 715, 2467 Code.)

 

Kxyow Avi. Men py rurse Presents:

LAA We: :ckan autores OF meh ane eeee ewe eg Ny Xey
as principal and ............ OL BreeeRor was sree 5 IN: Ys,
ON wae ed odveaecues OL anGiatsreecacenihalasleta , N. Y., sureties,
are held and firmly bound into the People of the State of New
York, in the sum of $........ for which payment well and

truly to be made, we jointly and severally bind ourselves, our
heirs and representatives, firmly by these presents.
Sealed with our seals.

Dated the ........ dag Of iss aawe seen 5 LY sears

Wuersgas, by an order dated the ........ day Ol eneaoeds
ens seit ,19.... made by Hon. .................. Judge
(or Justice) of... eee cece eee in the above-entitled sup-
plementary proceedings, in an action in the ..............
COUPE OF ic tigen ebahs , wherein John Doe was plaintilf,
and Richard Roe was defendant, the above bounden ..........

‘was appointed Receiver of all the property and effects, of the
said Richard Roe, judgment debtor, pursuant to Sec. 2464,
Code of Civil Procedure.

Now, therefore, the condition of this obligation is such that
if the above bounden .............4.. shall, well and truly
account, render and faithfully discharge his duties as such
586 SUPPLEMENTARY PROCEEDINGS
receiver, and render account to the court whenever directed so
to do, then this obligation to be void, otherwise to remain in full

force and effect.

Sealed and Delivered in the Presence of

i

(Add acknowledgment and justification as in form No. 25).

I approve the within bond both as to form and sufficiency of
the sureties.

Dated the ........ Cay Of esas Gee oe'd y AD es0

 

Receiver’s Demand of

Deliver sses-
Title as in Form No. 52. ee Ee
sion of Property of

Judgment Debtor.

 

Taxe Norice of an order filed in the ............ County
FORMS 587

Clerk’s Office appointing me receiver of the property and effects
of the above mentioned Richard Roe, judgment debtor, on the
Bits ia brs chara Gee Of coiecrseustenesey Jace, OE Wiel the
within is a copy. Also that I have given and filed a bond as
required by said order, and have fully complied with all the
requirements necessary to the vesting of said judgment debtor’s
property in me.

Now Tuererorn, I hereby demand and require you to de-
liver to me, all the property, equitable interests and rights in
action which belonged to you immediately prior to my appoint-
ment as said receiver, and now belong to me.

(Or.I hereby demand of you (a third person) the following
described property, viz.: (description of property) which be-
longed to Richard Roe, judgment debtor above named, on the
said day of my appointment as said receiver, and which said
property now belongs to me).

Dated the ssces ss ay Gl se iasdeueads gL aes

(Signature of Receiver.) |

To Richard Roe, Judgment Debtor (or ........ third person)

Nore.—TIf there be refusal to comply with the above demand,
affidavit thereof by the receiver may be made and an order
obtained directing such judgment debtor or third person to
deliver the same over, and upon continued refusal so to do, con-
tempt proceedings may be instituted. Forms Nos, 43-51, with
changes as to facts apply.
a88 SUPPLEMENTARY PROCEEDINGS

cr
w

No. 57.

 

|
Title as in Form No. 52. \. Receiver’s Inventory.
J

 

A just and true inventory of the real and personal estate

taken: bY aseaipeniea vere 3 the duly appointed receiver herein,

pursuant to an order of Hon. ...........e000- Judge (or

Jusitee) Of ciweunvwed wvms 5 dated, the: sscss ese day of
19.

eettesd was ; .

An account against .....eeeeeeeeeeee for the sum of

II. Mortgage, stock, bonds, notes, ete.:

‘A chattel mortgage for $...... given by si 95%400%<%
payable the ............ DayiOl ssw sia asiou seals 5 LO vious
A promissory note made by ...........eee ee eee for
Daas wi siess payable the .......... day Ob swaxsainesciinaes -

19...., ete

III. Leases and Real Estate:
A lease of a house and lot at No. ........... , in the
eee ee OL Sells ew aa essa neg NA nO eae yl a
FORMS 589

[eccece Corre rescore reesrcce eoecee .

(Signature of Recewer.)

Strate or New York, ‘
Gouuly Of eesnanceseas a

(iw die wasioee asa ee being duly sworn says he is the re-
ceiver above named; that the above is a true inventory of the
property and effects of Richard Roe, at any time in his posses-
sion or committed to his care as such receiver, so far as the
same has come to his knowledge.

@erecece eevee vrestenet se esasereseeeen a)
590

No. 58.

ed

 

In the Matter of the Examination

of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

SUPPLEMENTARY PROCEEDINGS

eeeereeooe eevee eeeeesse

Petition by Receiver for
Leave to Sue.

 

 

arnebece Geese Ue SO Court i swewee as (Rule 78 General Rules
OL davai eared ) N. Y. of Practice. )
Joun Dos,
Plaintiff,
vs.
Ricuarp Ros,
Defendant.
(EO thE caved s isesleeasrs OEE OE is wa niaign es eau wear
I, The petttion of vcssesi5 2502005 receiver of the property
FORMS 591

of Richard Roe, the judgment debtor above named, respectfully
shows: That heretofore and on the ........ day of ........
ded tar diranatices ,19...., your petitioner was duly appointed receiver
of the property and effects of said judgment debtor, by an
order Gr EO iin boae eeangaiae wees Judge (or Justice) of
love Satedvel Sees sh ate , dated on that day; that said order was duly
filed and vecorded ti thé os sacccsewees ees County Clerk’s.
Office as provided by Sec. 2467, Code of Civil Procedure; that
thereafter your petitioner gave the requisite bond with sureties
approved, and filed the same as required in said order.

II. Your petitioner further alleges that he believes a cause of

action lies against .......... oder atere of the ..... ieee Sieniew
OD pee Setw ates .., N. Y., for the sum of $...... for
moneys loaned to him by said judgment debtor on the ........
day of ......... .+-, 19...., and payable on demand, which

demand said judgment debtor made prior to the appointment
of your petitioner as receiver aforesaid, and your petitioner has
since himself made demand of payment of said indebtedness
from said ...........00005 (or allege other facts showing a
cause of action); that said .............ee ee indebted as
aforesaid, has personal property and real estate, out of which
said claim can be collected by suit.

III. That the written request of John Doe, the judgment
creditor herein in whose behalf your petitioner was appointed,
is hereto annexed and made a part hereof (or that a bond as pre-
scribed by Rule 78 of the General Rules of Practice, is hereto
annexed and made a part of this petition), (or allege that said
petitioner has in his actual possession sufficient property to
secure the person against whom the action is to be brought for
any cosls which may be recovered against the receiver).

Your petitioner, therefore, prays that he may be allowed to
commence, and prosecute an action in the .............4..
court Of .-......2..00-. against the said, ...............
592 SUPPLEMENTARY PROCEEDINGS

for the recovery of said debt aforesaid, in such form of action
as counsel may advise.

(Signature of Receiver)

Starz or New Yorx, 0.
County of 2... .206 e008 e

(reesuseia ee wcax being duly sworn, says he is the receiver
in the above-entitled proceedings, that he has read the fore-
going petition and knows the contents thereof; that the same is
true to the knowledge of deponent, except as to the matters
therein stated upon information and belief and that as to those
matters he believes it to be true.

Sworn to before me this ..........
day Of ssniwwrcsauns pdbives \eakaveee yerdensawass

Weeeeeocrvesecn le eoneisener eee eoeenvese e
FORMS 593

No. 59,
At a Special Term of the ............
Court: of asad heen , held at
the Court House in the ...........
OL sapiens. fy lea weird ¢ , N. Y., on the
ce Weiee hn day of ........... Qt
PRESENT:
HON oo64 6 oe eee weiner daw wee se .

Judge (or Justice)

 

In the Matter of the Examination
of Ricuarp Rog,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Jouw Dor,

Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

Hees GWG ae ee Re wees bs Court of
Gre aaibices lagu oenter skeet gy IN OY,
Joun Dog,
Plainieff,
vs.

Ricuarp Rog,

Defendant.

Order Permitting Re
f ceiver to Sue.
(Rule 78 General Rules
of Practice.)

 

 

 

On reading and filing the petition of ........ ase ks

Garnishee—38.
594 SUPPLEMENTARY PROCEEDINGS

heretofore duly appointed receiver of the property of Richard
Roe, judgment debtor, above named, for leave to bring an
action upon a claim amounting to $............ , due from
LeaDew ee ean tes Of secsaseneniew sassy Ne Xep and. this
court deeming such petition to contain and allege sufficient
facts to authorize such action, and it appearing that said re-
ceiver has complied with the requirements of Rule 78 of the
General Rules of Practice, now on motion of ..........0.06.
attorney for said receiver, it is hereby

Orperep that said ............406- , as receiver aforesaid,
is hereby authorized and directed to commence and prosecute
an action in the ............. Oourtol os cas a iiwae teens
Mgainet GAId ssharssee ee swn as in such form as counsel may
advise, to recover the aforesaid claim.

Enter:

Judge (or Justice) Of sacccesccsnevesavn
FORMS 595

@eeeseeeeesee se seer eeees Court eeeeesreeer roe eee eee ee en ae

 

Peter Smith, as Receiver of the
Property and Effects of
Ricuarp Rog, rae .
Plaintiff, Complaint in Action by
Receiver.
vs.
Henry Jonzs;
Defendant.

 

 

The plaintiff above named, complaining of the defendant
herein, alleges:

1, That on s<saw ns eine GAY OF sau veiviens wakes 9 19.2085
in an action in the ............. Court of ........ eee .
one John Doe, duly recovered a judgment against one Richard
Roe, defendant, therein, for the sum of $............ and

said judgment was duly rendered upon personal service of the
summons upon said Richard Roe, defendant aforesaid (or upon
his appearance), (or upon substituted service under Sec. 486
of the Code), and said judgment was duly docketed and the
judgment-roll filed on that day.

(That a transcript of the original docket of such judgment
was filed and the same duly docketed in the office of the Clerk
of the County, Of sasenses anaes ,N. Y., on the .....005..
Giip OF os 0a hanes Hae wie ,19....); that thereafter and on the
sae wpe Mans Giy UE siuwertanwesaa%s , 19...., an execution
596 SUPPLEMENTARY PROCEEDINGS

against the property of said Richard Roe, was duly issued out

of a court of record, viz.: the ....... cee eee eee court of
5s oe amneau ase upon said judgment, and delivered to the
Sheriff of ............0.. County, where the said judgment

debtor, Richard Roe, then resided (or had a place for the regu-
lar transaction of business in person), which said execution
was thereafter returned wholly unsatisfied (or partly unsatis-
fied, with an allegation of the amount then due), and said judg-
ment now remains wholly unpaid (or the sum aforesaid now
remains due and unpaid thereon).

That thereafter and subsequent to the return of such exe-
cution and upon an affidavit setting forth the above facts,
supplementary proceedings were duly instituted upon the afore-
said judgment against the above-named judgment debtor, Rich-
ard Roe, at the instance of the said John Doe, judgment credi-
tor aforesaid, under an order of Hon. ...........6... , Judge
(or Justice) Of ..... 6. ee cee eee , dated on the ..........
day Of .ageaseswtsss , 19....; that the examination of said
judgment debtor took place under said order as directed there-
in, and thereafter and on the ........ day Of s.cvweewecuees
19...., this plaintiff was duly appointed receiver of the prop-
erty and effects of said judgment debtor by an order of said
judge, dated the .......... Mee DE cheer ee aia ewne gil Oasis ares
that said plaintiff duly qualified by giving the required bond,
and filing the order of his appointment and said bond as pre-
seribed by statute, and entered upon the discharge of his duties,
and is now so acting.

2. Deponent further alleges upon information and belief,

that heretofore and on or about the ............ day of
Aer galantiie al ieseie's , 19.... said Richard Roe, judgment debtor,
loaned the sum of $............ to the defendant herein with

the understanding and agreement that said sum should be repaid
to said judgment debtor on demand; that thereafter and on the
sigs sina téng-ays day Of sv inaceue-s Scilesece2sea , 19...., before the
FORMS 597

appointment of plaintiff as receiver aforesaid, said Richard
Roe, judgment debtor, duly demanded the payment of said sum
OL Dvewkerieweses , but the same was refused; that since the
appointment of fis plaintiff as receiver of said judgment
debtor, plaintiff has repeatedly demanded payment of such
sum of money so loaned to defendant, but said defendant re-
fuses to pay the same, and said sum.of $............. , with
interest from the said day of said loan now remains due and
unpaid.

3. That heretofore and on the .............. day of
acaba ee ates WSIS Se , 19.... this plaintiff was duly granted
permission by this court to bring an action against the de-
fendant herein on the claim heretofore set forth, by an order

dated on the .......... day Of ccc decisis caieawies 5 De ee ey
and duly filed and entered in the office of the Clerk of ........
Sains .. County on the ........ day of ..... se cece ewes

19...., a copy of which order is hereto annexed and made a
part hereof.

Wuererorg, plaintiff, as receiver aforesaid, demands judg-
ment against the plaintiff herein, for the sum of $
with interest thereon from the ........ day of
19...., besides the costs of this action.

eee reer seer ee ee serene es er ese osee

(Add usual Verification of Complaint.)
598 SUPPLEMENTARY PROCEEDINGS

 

In the Matter of the Examination
of Rronarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor.

Under a Judgment Recovered in | Petition to Sell Doubtful
an Action Entitled r Claims.

(Rule 77 General

Rules of Practice. )
Joun Doz,

Plaintiff,
vs.

Ricuarp Roz,
Defendant.

 

 

LG TNO esas Sueno ge Cory BF veuwetsedeucat :

THG POtiON OF c.ccedesencse venga ves , the receiver of the
property and effects of Richard Roe, judgment debtor above
named, respectfully shows:

i. That under on order of Hom. 2.22665 cdc cs oes Judge
FORMS 599

(or Justice) of the .......006- . court made in the above pro-
ceedings, and dated the .......... day Of is von caee ga ewes ;
19...., your petitioner was duly appointed receiver of the
property and effects of said judgment debtor; that said order
was filed as required by Sec. 2467 of the Code, and that there-
after your petitioner made and filed his bond as required in
said order, and thereafter entered upon the discharge of his
duties as such receiver, and is now so acting.

That among other assets and property which came to your
petitioner’s hands, are the following accounts, viz.: (here de-
scribe).

That your petitioner has made frequent demands upon the
debtors of said accounts for the payment thereof, but he has
been refused such payment, and said debts still remain due
and unpaid; that your petitioner has made diligent inquiry
as to the financial responsibility of such debtors, and from such
inquiry believes that the said accounts are desperate and doubt-
ful.

Your petitioner therefore prays that he may be allowed, as
such receiver, to sell such desperate and doubtful account at
public auction as prescribed by the Rules of Practice,
600 SUPPLEMENTARY PROCEEDINGS

NO. 62.

Court of ........22200ee held at ‘ie

Present:

Fon, oie ooo ceases ee ree
Judge (or J austica)

 

Order Granting Leave to
Sell Doubtful Ac-

Title as in Form No. 61. counts.

(Rule 77 General
Rules of Practice.)

J

On reading and filing the petition of ..............00.
receiver of the property and effects of Richard Roe, sudinnent
debtor herein, praying for leave to sell certain alleged doubtful
accounts, viz.: (here describe accounts) under Rule 77 Gen-
eral Rules of Practice.

Now, on motion of ............00 0000 ee attorney for the
said petitioner it is hereby,

OrpereD, that the said ................00.. » as receiver
aforesaid, be allowed to sell at public auction, at the ........
errr Of .aveksesassuvsaeay Ny Voy all and each of

the following accounts, viz.: (here Hees ibe) ; that said receiver
FORMS 601

shall give at least 10 days notice of such sale by serving per-

sonal notice thereof on .......--..+eee0e- and by posting a
notice thereof at three public places in the said ..........-..
Ob cig nous ePeusunes , N. Y. (or by publishing notice of said

sale in a designated newspaper at certain specified times).

NO. 63.

 

Notice of Sale of Doubt-
ful Claims.

(Rule 77 General Rules
of Practice.)

Title as in Form No. 61.

 

Nortce is hereby given that by virtue of an order made in
the above entitled proceedings, the subscriber, as receiver in
said proceedings, will sell the following accounts, viz.: (de-
scribe accounts) at public auction at the Court House (or other

designated place) in the .........+..- Of sr tawa eee e were 5:
N. Y., on the .......... day of ............ femtenag LO Saisie
at 10 o’clock in the forenoon of that day.
Dated the ........ day of .....-2.c05- 5 1D deeper

{ee eee rere eee ere eve ene rs rere eres ej

(Signature af Recewer.)
602 SUPPLEMENTARY PROCEEDINGS

NO. 64.

eooeccos 066/09 0 ee Os ee Court occ eee eee 88 oe Oe Oee eferee

 

Tn the Matter of the Examination

of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,
Judgment Creditor.

Under a Judgment Recovered in Receiver’s Account.
an Action Entitled r
edu COUT causa pes gees (Seq. 200 Doe),
OL aise adinen as , N.Y

Joun Dog,
Plaintiff,

Us.

Ricuarp Rog,
Defendant.

 

 

I, the undersigned, duly appointed receiver in the above
entitled proceedings by order of Ton. ............... Judge
(or Sustice) Of ....eceeeeeeeees dated the .......... day
FORMS 603

co a ee eee , 19...., do hereby make the follow-
ing account or report as said receiver; that I have received out
of the estate of John Doe, the judgment debtor herein, the
following property and effects set out in schedule “A” hereto
annexed and made a part hereof, the total receipts from which
are the sum of $.............0.. ; said property being all
the assets coming into my hands and known to me; and all of
said property having been reduced to cash (or allege other
property recewwed).

II. That I have paid out the following sums to the follow-
ing named persons, viz.: (Here set forth items and names of
persons recewing).

III. That there remains in my hands the sum of
Dy dashaiaa ted sai obec Gh applicable to the payment of my fees and
expenses as said receiver, and the payment of the judgment
herein (or allege other facts as to whom said fund is payable).

IV. That all the vouchers, of said payments are hereto an-
nexed and returned.

All of which is respectfuly submitted.

Dated the ........ day Of. eierckv eek 5 Oss

J atesintu ieee eleareeay eaae Wai Rw (Receiver)

County of ............

bi bile areca tie owe We The receiver above mentioned,
being duly sworn says that the foregoing account contains a
full and true statement as to all property coming into his hands
as said receiver, or known to him and the disposition thereof,
that the same is true to the knowledge of deponent, except as
to,the matters therein stated to be alleged on information and
belief and that as to those matters he believes to be true; that
the source of his information and grounds of his belief are as
therein set forth and he knows of no error or omission to the
604 SUPPLEMENTARY PROCEEDINGS

prejudice of the judgment debtor, creditor, surety, or other
person interested.

Sworn to before me this .........
day OE c.6ascer anes

(Annex schedule “A” and vouchers aforesaid.)

NO. 65.

‘At a Special Term of the ............ .
Court Of) . sie eee ce held at the
Court House in the ...............
OL cierd hoses eusweaarens , N. Y., on the

Fi aee snare ay Ol cee acute

PRESENT?
FONs, ial na Sac ms Peewee MS
Judge (or fuses) Of wsoccciacerieeesnce

 

Order Discharging Re-
Title as in Form No. 64. ceiver.

(Sec. 2471 Code.)

 

On reading and filing the account of
FORMS 605

receiver in the above entitled proceedings; the petition for his
discharge as such receiver, together with the order to show
cause why such receiver should not be discharged, with proof

GE Service thereer UPON... eas edenee «esas , and it appearing
by said account that there is now in the hands of said receiver
unexpended the sum of $............55 for disposition under
the order of this court.

Now, on motion of ........ccceeeeees of counsel for said

receiver, it is hereby,

Orverep and Direcrep that said account be and the same
hereby is approved and passed, and that said receiver be al-
lowed to retain out of said sum in his hands the sum of
Pistase Seb ate ieie elacies , for his commissions and expenses herein,
and ‘that he pay ihe S000 OF Po evs esws ems en s to John Doe,
judgment creditor, in satisfaction of his judgment and accrued
interest, and the balance then remaining shall be paid to Rich-
ard Roe, the judgment debtor herein (or direct such other dis.
tribution of such fund as the circumstances warrant), and it
is further,

OrpERED AND DirEcrep that upon making said payments,
taking receipts therefor, and annexing the same hereto said
receiver shall be discharged from the duties of said receiver-
ship, and the bond given by him for the faithful performance
of his duties shall be discharged and vacated, without further
order of the court.

Enter:
Hon. ....... Ao aeane wis Sac N GAs

Clerk.
606 SUPPLEMENTARY PROCEEDINGS

 

In the Matter for the Examination

of Ricuarp Ror,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Dos,

Judgment Creditor.

Under a Judgment Recovered in
an Action Entitled

Joun Dor,
Plaintiff,

Vs.

Ricuarp Rog,
Defendant.

 

 

State or New Yorx, or
COUN OE 4 ecwyay cx ewe ye

oe ver erseeseoe eoeeoscee

Affidavit for Order Dis-
missing Proceedings.
for Unreasonable De-
lay at Instance of
Judgment Debtor.

(Sec, 2454 Code.)

being duly sworn says he is the

attorney for the judgment debtor in the above entitled pro-
FORMS 607

ceedings (or the judgment creditor) that said proceedings were
commenced on the ......... day of seswvssecuecsay LDe x eey
by the personal service of the affidavit and order for the exami-
nation of the judgment debtor; that deponent has at various
times brought these proceedings to hearing and requested the
judgment creditor to complete the examination of the judgment
debtor, but on each and every such occasion the said judgment
creditor refused so to do and offered one excuse after another
for such delay; that on all said occasions deponent (or said
judgment debtor) has been ready and willing to answer all
pertinent questions concerning his property which said judg-
ment creditor or his attorney might ask, but said judgment
creditor, and his attorney have refused to proceed with said
examination, although they requested adjournments of said
proceedings from time to time, on the alleged ground that said
execution was not completed.

Deponent further says that said judgment debtor has no
property reachable in these proceedings and none has been dis-
covered by his partial examination therein, and deponent be-
lieves that the only purpose of the institution and continued
adjournment of said proceedings by the judgment creditor is
to harass and annoy said judgment debtor.

Deponent further says that said judgment debtor has paid
out and expended in these proceedings the sum of $..........
for witness’ fees and counsel.

That no previous application for an order dismissing these
proceedings has been made herein.

Sworn to before me this .........
day of .......-+ svey LD
608 SUPPLEMENTARY PROCEEDINGS
NO. 67.

Notice of Motion for

Order Dismissing Pro-
Title as in Form No. 66. eS
ceedings.

as) (Sec. 2454 Code.)

 

 

Piease TAKE NOTICE, that upon the annexed affidavit; the
affidavit and order for examination herein, and all proceedings
had thereunder, the undersigned will move before the Hon.

Sey iesa cues Judge (or Justice) of . 1... cece eee ee y
at his Chambers in the ............... Of waa ca eee ena wes ;
N,. Yo5 Onsthe! oe.ore wea day Of swewes aaacees oe 5 LO oes
DE se Siscnais ed o'clock, in the .......... noon, for an order

dismissing the above entitled proceedings, on the ground that
the judgment creditor unreasonably neglects and delays to pro-
ceed therein, together with such other, and further relief as
to the court may seem just, with costs and said judgment debt-
or’s expenditures in said proceedings.

Dated the ........ day Of caverauseses 1D ceeis

Atlonies for Judgment Creditor (or judgment debtor),
FORMS 609

 

 

NO. 68.
Order Dismissing Pro-
ceedings for Unreason-
Title as in Form No. 66. able Delay.
(See. 2454 Code.)

On reading and filing the affidavit of .......... eee e eee
verified on the ..... sans GAY Of wsieg sacce wan ss gh Oiineck's
notice of motion with proof of service thereof, and all the pro-
ceedings had herein, and after hearing ...............-. » of
counsel for the judgment debtor, and ................... of

counsel for the judgment creditor in opposition thereto, it is
hereby,
Orverep, that said motion be, and the same hereby is granted,

with ($i. go. cxwee diem s costs and disbursements, which latter
are hereby taxed at the sum of $............ making a total
of the sum of $............ which said sum is to be deducted

from the judgment creditor’s judgment (or that said motion
be and the same is hereby dented with $10.00 costs of this mo
tion).

Dated the ........ day OE aewee dee eek ese

Garnishee—39.
610 SUPPLEMENTARY PROCEEDINGS

NO. 69.

 

In the Matter for the Examination
of Ricuarp Roz,

Judgment Debtor (or

(el iehae wees Third Person)

In Proceedings Supplementary to
Execution upon the Application
of Joun Dor,

Fudgment Ceeditor. Affidavit and Notice of

Motion for Allowance
Under a Judgment Recovered in | of Costs to Judgment

an Action Entitled Creditor.
do Bate tides wees Court ......... of
ey aera ort apace , N.Y. (Sec. 2455 Code.)
Joun Dor,
Plaintiff,
US.

Ricuarp Ror,
Defendant.

 

 

Strate or New York, :
County Of ci.xiveeeses ”

Sethi l eG si heekeaiees being duly sworn says that he is the
attorney for the jujdgment creditor in the above entitled pro-
FORMS 611

ceedings ; that heretofore and on the ........ May Ol eaaseeee
eae , 19...., an order for the examination of the judg-
ment debtor (or the examination of ........... qatssectecae 3 a
third person) was duly granted by Hon. ..........+++0+-
Judge (or Justice) of ......... ee eens , dated the ........
G8 OL vasa yerenegaeke ,19...., and said order was there-
after ‘personally served upon said judgment debtor (or third
person), copies of which order and the affidavit upon which it
was based, are hereto annexed and made a part of this affidavit.

That the examination of said judgment debtor (or third
person) took place under said order, and thereafter and on the

eae day of ................, 19...., the referee ap-
pointed to take said examination, made and certified his pro-
ceedings to Hon. ............-0005, Judge (or Justice) of
culcn Grae Wenge ease to whom said order was returnable, which

said certificate and proceedings are hereto annexed and made
a part of this affidavit.

That certain property belonging to the judgment debtor was
discovered in said proceedings amounting to the value of $.....

That said judgment creditor has paid out and expended cer-
tain sums of money in said proceedings, as follows (here set
forth such items). That no previous application for an order
for costs has been made by the judgment creditor herein.

Sworn to before me this ..........
May OF oveadecess ewes y foes

(Pewee r ese er esses veer eseses eee

fee eeescereraaveeve eoeereceeooseeen ey
612 SUPPLEMENTARY PROCEEDINGS

No. 70.

 

Notice of Motion for
Costs.
(Sec. 2455 Code.)

Title as in Form No. 69.

 

PLEaSE TAKE Notice, that upon the annexed affidavit of
i sale ghe ees oleraieteas ; the original affidavit and order for exam-
ination mentioned therein and on the testimony and proceedings
had thereunder, the undersigned will move before Hon. ......
He aS Gees 3 Judge (or Justice) of .......2..++...., at his
Chambers in the ............ OL sdewuiaew weet NN,
ONtNG sce escce cess es day Of secre ceuies yp AO .s wrateg Ab ecciws
o’clock in the .......... noon of said day, for an order allow-
ing the judgment creditor herein costs, and his disbursements
in these proceedings, together with such other and further relief
in the premises as may seem just, besides the costs of this
motion.

Attorney for Judgment Debtor (or Judgment Debtor).
FORMS 618

No. 71.

 

Order Allowing Costs to

Judgment Creditor.
Title as in Form No. 69. udgment Creditor

(Sec. 2455 Code.)

 

Upon reading and filing the affidavit of .......200seeeeee
verified on the ........ day Of seiscscisicceeesxas p AD econ
the notice of motion herein with affidavit of service thereof; the
original order for examination herein with the affidavit upon
which the same was based, the certificate of the Referee, together
with all proceedings had herein, and after hearing ..........
es aeavaueherete of counsel for John Doe, the judgment creditor, in
favor of this motion, and ............00 eee of counsel for
Richard Roe, the judgment debtor (or .......-e ee. weeeee
attorney for above mentioned third person) in opposition
thereto, and is hereby,

Orperep, that John Doe, the judgment creditor, herein, be
and he hereby is allowed $...... costs of these proceedings, to-
gether with his disbursements therein, which are hereby fixed
and allowed at the sum of $...... » making a total sum of

It is further Orprrep that said sum of $....... so allowed
for costs and disbursements, be paid out of any money which
has come to the hands of the receiver herein (or of the Sheriff)
or that Richard Roe, the judgment debtor (or said third per-
son) pay said sum to the judgment creditor herein within ten
days after the personal service of this order upon him.

Dated the .......... Gay GE vxsewxn As ehece aed Dee

Mmde@uieele eae Piwhecwntaeehiee es «+ Judge (or Justice).
614 SUPPLEMENTARY PROCEEDINGS

No. 72.

 

In the Matter of the Examination

of Rrcuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application
of Joun Doz,

Judgment Creditor. Affidavit for Order Al-

Under a Judgment Recovered in lowing Costs to Judg-
an Action Entitled | ment Debtor.

Sahchatey eet inh euees Court, County of (Sec, 2456 Code.)
sachsen esse odie i N.Y

Joun Dos,
Plaintiff,

Vs.

Ricuarp Roz,
Defendant.

 

 

State or New York, ;
County of ............ a

Es ares ea peray ee being duly sworn says that he is
the attorney for the judgment debtor (or the judgment debtor)
FORMS 615

in the above entitled proceedings; that heretofore and on or
GOI THe: vanes wae GAY Of puscleeonpaate seni gol Disp tay all
affidavit and order for examination of said judgment debtor
were duly served upon said judgment debtor (or deponent),
copies of which are hereto annexed and made a part of this
athdavit.

That said judgment debtor (and the following named wtt-
NOSSOS ina wih diiae hee OW Wal Ea Rae SRS Eee ) was (or were)
examined under said order, and such proceedings had thereon,
that afterwards and on or about the ....... day of ........
ere , 19...., such examination was finished, a copy of
which said examination and the certificate of the referee thereto
are hereto annexed and made a part hereof. That no property
applicable to the payment of the judgment herein, has been
discovered in these proceedings.

Deponent further says that said judgment debtor (or de-
ponent) has paid out the following sums of money in these
proceedings, viz.: (here set forth items, including sum paid
counsel).

Deponent further says that no previous application for an
order granting costs to said judgment debtor (or deponent)
has been made herein.

Sworn to before me this ..........
DAV OL aie eiew eas: AD ser

eee reer eer eee ea ee eee eer ere eeeres
616 SUPPLEMENTARY PROCEEDINGS

No. 73.

 

Notice of Motion for
Title as in Form No. 72. Order Allowing Costs
to Judgment Debtor.
(Sec. 2456 Code.)

 

Prxase Noricz, that upon the annexed affidavit of ......+-
woue laa , the affidavit and order for the examination of the
judgment debtor herein, the testimony taken thereunder, and
the certificate of the referee thereto, the undersigned will move

hbetoré: Hons. sais ewes cows Wee ae wes Judge (or Justice),

Shia sacate See a Uae e at his Chambers in the ............. of

hoy SIR IR a ERal Sa Sentara pN. Yon the case oe day. Of Las aaa
cumuenee lO yaaa ree o’clock in the ...... . noon,

ce an order awarding the judgment debtor costs and for dis-
bursements incurred in these proceedings, together with the
costs of this motion, and for such other and further relief in the
premises as to the court may seem just.

Dated the ........ Gay Ob natal wi wetearee de Dessay

Attorney for Judgment Debtor,

ere ererereee eaiesis'ebasiey Ne. Ke

DG satin Saas ie EGS .
Attorney for Judgment Creditor.
FORMS 617

No. 74.

 

Order Allowing Costs

to Judgment Debtor
Title as in Form No. 72. a eaunt Pidgment
Creditor.

(See. 2456 Code.)

 

Upon reading and filing the affidavit of ..........-.00e-
verified on the .......... CASMOR ‘soy beatae eee te g AD esting
the notice of motion herein, with due proof thereof; the affidavit
and order for examination in these proceedings; the examina-
tion and testimony had thereunder, together with the certificate

of the Referee thereto, and after hearing ............064. of
counsel for Richard Roe, the judgment debtor, and ..........
sh avidscd ted de of counsel for the judgment creditor herein, in op-

position thereto, it is hereby Orprrep, that said judgment
debtor, Richard Roe, be and he hereby is allowed $........
costs, together with his disbursements in these proceedings,

which latter are hereby fixed at $........ , making a total of
Deen , said sum to be paid on or before the ........ dav
OE cu sdee eee aaa , 19

(Or tt ts hereby ordered that said swm so allowed be deducted
from the judgment of the judgment creditor.)

Dated the .cseasse day Ob siecsecviveasvacy Dice

,

bby gh Lar NHN S Ee Meenw ee ved UNZS Cor dusiien),
618 SUPPLEMENTARY PROCEEDINGS

No. 75.

 

In the Matter of the Examination

of Ricuarp Ros,
Judgment Debtor.

In Proceedings Supplementary to
Execution upon the Application | ,

of Jou Doz, . Affidavit and Order to
Judgment Creditor. Giese: Qaace tor Wie:
Under a Judgment Recovered in continuance of Pro-
an Action Entitled r ceedings.
Sis eee Gies Court csaeeetee OL
: Sec. 2453 Code.
eoadeeteetecestoas ,NY a)

Joun Dog,
Plaintiff,

Vs.

Ricuarp Ros,
Defendant.

 

 

Strate or New York,
Conny OF aaasesmawsien e

deka sen cee an van being duly sworn, says he is the attor-
ney for the judgment creditor herein (or judgment creditor) ;
that these proceedings were instituted by the granting and serv-
ice of an order for the examination of the judgment debtor on
him on or about the .......... CAV OL yes a) idarisewia Grads
19.... 3 that thereafter the examination of said judgment debtor
took: place befote = sisewssiseasewe es » the Referee appointed
FORMS 619

in said order for that purpose, and said examination was con-
cluded on or about the ............ day of
Ws 4

Deponent further says that no property was discovered in
such proceedings, and the Referee has filed his report of the
proceedings had before him in the ................ County
Cierk’s Office; that deponent further says that as far as he can
ascertain said judgment debtor has acquired no property since
said examination, and no purpose will be accomplished by
continuing the same.

That no previous application for an order discontinuing these
proceedings has been made.

Sworn to before me this ..........
day of o..cce cise eve. LO apg. Me tadsh athe caldera teu
Upon the annexed atilavii Of 4 s.asscsssesseaviens ; the

order for the examination of the judgment debtor herein, and
all the proceedings had thereunder, let Richard Roe, the judg-
ment debtor, hercin show cause before me at my Chambers in

tho xadhieetenees OL bas ts ee bee Meee eS , N. Y., onthe ......
day Of awaeeacdseeaee go NO eaelneg OE. se aeneetars o’clock in the
3 ae aa else ga Ris noon of that flag why the judgment creditor,

John Doe, should not have an order discontinuing his proceed-
ings herein, together with such other or further relief in the
premises as to the court may seem just.

Let this order and said affidavit of .................. be
personally served upon said Richard Roe, judgment debtor, on
-or before the .......... Ue DE ences eee whee mes yp DDL aceite
and such service shall be deemed sufficient.

Dated thé os -vs1 reece GA Gr <lewGsxgevagaces AP cee

Cee ee ewer eee eee reer weer enw e nea nae

iaeearou a arent haste as Suances Judge (or Justice).
620 SUPPLEMENTARY PROCEEDINGS

No. 76.

 

Order Discontinuing Pro-
Title as in Form No. 75. ceedings.

(Sec. 2454 Code.)

 

An order to show cause why the judgment creditor above
named should not be granted an order discontinuing these pro-
ceedings having been duly made and served herein, returnable:
at this time and place.

Now, upon reading and filing the affidavit of ....... poeeiet
verified on the .......... day Of 405 one wad viea 6 ony LD cae S
said order to show cause; the proof of the service thereof, and
after hearing ............ 000 eeeee , attorney for the judg-
ment creditor, and ...... 6. cece ee eee , attorney for Richard.
Roe, the judgment debtor, it is hereby,

Onverrp, that these proceedings be, and the same hereby are
discontinued without costs to either party (or slate other terms
umposed).

Waited, the ssuwseaees WAY OF co ccescens peed, 10s Gs

je eeeeeeereseceoeeeeneeseeeeeeeeence

[eeceeseesreeeeeeeeee Judge (or Justice).
GENERAL INDEX

(For forms see separate Index of Forms following this Index.)

PAGE
ABANDONMENT —
Of proceedings—what constitute .........ccececccscccccess 467-470
As defense to contempt .........ceeee ee cec cere cvenes 89-391
ABATEMENT —
Of supplementary proceedings .....ccececercececsestesecee 465-472
ABSENCE —
Of referee or judge—effect ............ sececeeeeeeecs 228, 465-467
ACCOUNTING —
Action by receiver for ....... assed esaiavenatses Sai Siateyer og aecoeene aay sees 360
In Surrogate’s Court—right of receiver to compel ............ 362
ACTIONS —
For dishonor of garnishee execution ........ 0. cece cece eee e eee 36
By judgment creditor—exclusion by receivership .............. 267
On order directing payment of money ..................0.0005 294
Against receivers ...... Pr ees te ica LEGS ee eo eee aes 3638, 364
By receiver—when lie .......cceeceeee cece eee e eee ee 338, 348-361
Leave to sue ...... adelaide be puawnies Hues oS oe AE OE TG ame eeos 338
Attack of fraudulent conveyances ..........--....00.. 348-354
Complaint—sufficiency .......... 0. cece cece eee eee 342, 343
Defenses) available: i+ .s0sssnweace sataaeee ies ve Sewn se 344-347
Determination of priorities ................... ee eee eee 361
PATtICS.-x sowieisiouindrs ocr diaie 4d egniaieie a alsin cle oeueldiag en's aches & 339-341
Conversion .......-....0005 Sods Mele sa L Sa Oew FE HRS 358, 359
Partition) <i0i2 ss oies esa d eee ponierbia <a cache ne aces dg ahaa 360
To reach funds of debtor ..... glsitiand Subaxahie 2 a ahaten Aaya 354-358
Replevin ............-.... sh aie desea Sauna al a apanee seeencceess BEL
To redeem pledged property .......... cee cece cease ceeeees 359
For trespass ...eeee eee cee e teen ofa! s wisueseao G.ans seeeseseees SEL

621
G22 GENERAL INDEX.

PAGE
ADJOURNMENTS —
By stipulation of parties—force ......... Sis. vvavestetaner toy re Stace gee 394
Failure to make—effect .......... 2. cece eee eee eenee 229, 467-470
Powers of judge and referee .......cee cece eee eee eee eee 216
ADMINISTRATORS —
Supplementary proceedings—availability tO) ihe caiens cso ceoeee 99
Supplementary proceedings against .........-......eeeee igen LOL
Third party orders against ............. Aaa ree ree eeeoees 104
ADVICE OF COUNSEL—
Effect as excuse for contempt .......-.ese cece eect eeee 384, 385
AFFIDAVITS —
Contempt—application for discharge from imprisonment—suf-
MOLENCY” “icecasvn QdiewAa canes s eeeiaammawware’ Sine aisraie es 450
For order to show cause for contempt ...........2.....00 «- 426
Defective copies—effect 0.0.0.0... ccc cece cece eee e ee nen eatenee Ti7
For examination—after return of execution ...............60. 144
Allegations as to execution ............ cece cece eee eees oe. 136
AS tO. jUdEMENE si oscar ecia cad oe ese doe eases ted 132
Of no previous application ............ 02.02. cee eee 130
As to place of business ..............0-5 20. cece eee 139
As to property ........ euaiDiiblg Abed RA te ae een camo tant fase 137
NS 0G; TESIGENCE aces da atin aha Hei nduMd seas mee see oS 137
Upon information and belief ....................004. 147
Alternative allegations .............0... 000... e eee 131
Application of personal representative .... ........... 143
By assignee: i.e cisiecs caesar andse 04 Guna oes Hae RO 142
Attorney enforcing lien ............00 0. eee eee eee 144
Before return of execution ...............- 20005. 145-148
Alleging demand of application of property ............ 146
By whom made ........... eee cece eee cece eeee- 128, 129
General requirements ......... 00... cece e ee eee eee e eee 127
HOW tenititled : is: sc.3-2 a eatonds wlste sipieis Sad aewS <6 Harseleld he's - 127
Tnsufficiency—waiver .... 0... cece cee cece een ceeenees 140
Mistakes and falsity—effect ..... 0... eee ccc eee 131
Second order’ .icicsaee svsee news aes ead gee gece seule 257-261
Third party orders sscems cca aoe paseo tow seme ne 148-154
For garnishee execution ........... 0... cece eee cnet e eens 29, 30

AFTER-ACQUIRED PROPERTY—
Disposition of, as contempt ............... Shia Psat ataedee « 402, 403
Right to reach in supplementary proceedings ................ e- 232
GENERAL INDEX. 623.

PAGE
AGENTS —
Affidavit for examination ................ MENTE IERS Se aan v eee Leo
ALIMONY —
As subject to garnishee ..... 0... cc cece cece cece ee eee eees *19, 20
Reaching in supplementary proceedings ................ 0220000 235
Supplementary proceedings to enforce payment ............- 91
ALTERNATIVE ALLEGATIONS —
Effect in affidavits .............. sist Sse aerate eA VM SheeMnw a ser -- 131
In order for examaination—effect ............ 0. e cece eee eee 168
AMOUNT —
Of fine for contempb ............. ais ai Sybow tensa aseieonsala eeseees 437-448
Of judgment for garnishee execution .......... Lauauameedetaeese LC
For supplementary proceedings ............20-.e0e6 eooeee 85
ANNUITY —
Reaching in supplementary proceedings .............0ccseeee . 235
APPEALS —
Amount involved .......e.0..4-- A SSNS HOON Se FERN OSE: -- 206
Bar or waiver ........ siangie larereieesetiel silnjeueigiaieheise nnd Gayayena: aie 3-4 204
From garnishee orders .............. wee west e ede eee ee aneaes 56
Covered by sec. 2433, subd. 1, Code ............. eee ee eee seca 299
Covered by sec. 2433, subd. 2, Code .............. 0. ee ee eee eae. 201
Default orders .......... 6.00 4 daad Roca ASAT sas Heeae 204
Facts presumed On ......ceccee eee e eee c teen neeteeceees siaeiea es 207
From orders made on motions to vacate orders ..... eee as eee 202
From orders—substantial rights ................. eecscccevee 203
Questions reviewable .......... csc eee cece ee eee e ee eeeee weieea 205
Ref si: caealee cee sce degee s dewe setae Pes eee eis Oe SR 207
Statutory provisions ............. syors- 6 shea La swig oa SOR ate dare 198
To court of appeals .......... SNRs eae as eee weve fswe sees 208:
WOME casesacdie erase berate ere Fiopaele nee. Hae SEAR One sikoogu ira tnapalets eee. 207
APPEARANCE —
Judgments ON ...ccee cece eee e cece cece eee cence coseeceseeee 87

Of parties and witnesses in supplementary proceedings ........ 212

APPLICATION —
For extension of receivership ...ccevcccccccccsesecscesees SO8-370
For garnishee execution ......++seeseseeeeeeees. 24, 25, 26, 27, 28
For modification or vacation of garnishee ........ 42, 43, 44, 45
624 GENERAL INDEX,

PAGH
APPLICATION—continued.

For order directing payment or delivery of property—when

granted vcacsssicocacewe's ave ss oidave gaan oem eet 266

Directing payment or delivery of property—-what judge .. 267-269

/For examination—what judge ...ccccsccccccccseesss 157-163

Second order for examination ....cccceccesrecccccccsscccsesee LOT

For vacation of orders .......cccecceessccccccccecccvccenaces 185

APPOINTMENT OF RECEIVER—

Grounds ........e. ee eee eee ee eeee iheas-bs a Haels Ss Seria OtA so 299-302
Attack—grounds ........ cece cece ee eee cece Bie ee Grshe sarSs 311-313
Irregularities—effect .........0--. 000 eidare Seeahoreted ova eee sgued a Sik 311
Judge making ........... sires aSesdopes heaeie ataanecae aye sa desd. ax «+. 308-310
Himitations: viccsiesascgagra oases Wiese hes Sekai eavre a bee sees. 303
Moving papers ..........-+2. sega ee eA daisies eiptecasie'v 9:58 04
Notice: required acc ssneie dy saans eee palaces «seme es sulsee ee ey 304-308
Notice—service .......6. cece cece cece teenies ee eee 308
Order—irregularities—effect 1.00... cece cee eee eee eee 314-3516
Order—requisites ......... 0. cece cece eee Seen gr yuncast atainses 310
Qualifying—requisite acts ..............000- Aagoate iedoeett says 313
Vacation—grounds ......... ccc cece cect eect aceeeeresctcaceee . 195

ASSIGNED PROPERTY —

As subject to order for delivery of property ...............+5. 252)
ASSIGNEE OF JUDGMENT —

Supplementary proceedings—availability to ............000 5.00 94
ASSIGNEES —

Supplementary proceedings against .......... 0. cece cece ee eee ee 102
ASSIGNMENT —

Power to compel debtor to execute ..............0005 sr Seig SNeT RS 266
ASSOCIATIONS —

Availability of supplementary proceedings against .............. 91
ATTACHMENT — ‘

Relation to garnishee proceedings ................ 0000000 econ 4
ATTENDANCE —

Of witnesses—how compelled ............ 0... eee eee ce vcceee 213
ATTORNEYS —

Advice of as excuse for contempt ........ cece eee ee wee 384, 385
GENERAL INDEX. 625

PAGE
ATTORNEYS—continued.
Affidavit of for order of cxamination—sufficiency ............-. 125

Costs: against. ss isae csvee ees ce seeswe sas OR eed OE RSS LS 457, 460
Liability to contempt proceedings ..... seeeeseeee 396, 399, 407, 409
Power—issuance of subpoena ....... era aieneh inate lied e.de8 So erareuk se Sess 213
Privilege from testifying 1... .. cece cece cece eee eee 222, 409
Resort to supplementary proceedings to enforce lien ...........- 96

ATTORNEYS IN FACT—
Supplementary proceedings against ........ 0. eee cece eee eee 100

AWARD IN CONDEMNATION PROCEEDINGS —
Right of receiver to take .......... ica wae Wee Wee Fe ade 320, 332

BANK DEPOSITS —

Right to reach in supplementary proceedings ...... 0... ee eee ee 237

Right of receiver ‘to take 2.2.2 cee esvadevesd sear ceseeaseaneses 321

Reaching in action by receiver ...... ee cece eee eens 35d

BANKRUPTCY —

Effect on contempt ........ SiGe oid s ee ews Rete Seok eG H 383, 399
Garnishee 2 2.c.ccaylieienascugd as dnd yA ewe wacaye bias Guna esis 47
Supplementary proceedings .......... 0. cece cece eee eee 84
Recéiver’s title ..sis..s seeders wansee depres sea ges cory B2T

As violation of injunction 2.0... ccc cece eee eee ee ee 399

BONDS —

Of reveiver—statutory provisioONS ........ 6... eee eee eee eee 315

Liability under—reaching in supplementary proceedings ...... 253

See also UNDERTAKINGS.

BOOKS AND PAPERS —

Leaving with referee 2.2... .. cc cece eee e cree enes 225, 226
Production—procedure .... 6... cece eee teen ees 224-226
Production—privilege—private papers ........ ese eee eee eee eee 225

BURYING GROUND —
Exemption .........-..- speck aes Saeco eee eee t eee ee eeeeenes 239

CERTIFICATES OF MEMBERSHIP —

Right to reach in supplementary proceedings .................. 239
CERTIORARI —
Availability for review of orders ..... Seca Viaaaens saw eels ve S 209

Garnishee—40.
626 GENERAL INDEX.

PAGE
CHATTEL MORTGAGES —
Attack by recelver ....ccecccccenseceeneseecererseseees 348, 349
CHATTELS —
Right to reach in supplementary proceedings .............. 235
CIVIL CONTEMPT —
Dehnition: wices gow sa ceadaunae ves pee VEEN eRe Tee eae eae RE 374
How “pumished. s sdejieotennde cs Bichesin da pedis eee Wee euataegss -. 420
See also CONTEMPT.
COLLECTION —
Of costs—procedure ©... cc cece eee ccc cece ce te tee teens 459
COMMISSIONS —
As. subject: to garnishee spec c gc pace ee caida na sie visnene sales ant aere 21
Of -Teceiver geduewidons fea aes age BOER Za gine’ 64 Slee gen wee Lee 365
COMPETENCY —
Questions on examination 6.0.0... 0. cee eee eee eens 218-224
COMPLAINT —
In actions by receiver ...... ccc cece cece e cece ee ete nn eees 342, 345
For dishonor of garnishee execution ....... yaissian Dass Gulevnlten ea 38
CONFESSION OF JUDGMENT —
Availability of supplementary proceedings on .................. 87
As violation of injunction by debtor .................... 400, 402
CONSPIRACY —
To defeat collection of judgment—remedy of receiver .......... 353
CONSTITUTIONALITY —
County judges—powers respecting orders ...............0000. 158
Statute authorizing garnishee proceedings ................0005 9
CONSTRUCTIVE NOTICE —
What: @Onstrtutes: caches teeiewe ga katate eae ena en ge neaw ee 290
CONTEMPT —
Affidavit for order to show cause ............ 00. eee eee eee 426
Attorneys as subject to ...... 6. eee cece eee eee 396, 407, 409
Bankruptcy as constituting .......6.... cece cee eee eee ees 399
Confession of judgment as constituting .................0. 400, 402

Costs—availability to enforce 2.0... cece eee eee eee 459
GENERAL INDEX. 627

PAGE
CONTEMPT—continued. :

Defenses available ................ 0 eeee 375-395, 402-408, 416-418
Deposition—right to 2... . ccc ceccceeeee ee eect een e eens 428
Dishonor of garnishee execution ......... of tne Dasma take aaretans 36
Disobedience of order to pay money or deliver property ...... 413-416
Disposition of earnings ........... ccc eee e eee cerns 403, 404
Execuse—in general ......... 0. cece cece eee cece reece 376, 376
Absence of formal order or direction ..........-..2..000- 394
Advice of counsel ............ cc cece cece eee ete neces 384, 385
After-acquired property ..........ce ec ee cece eee eee 402, 403
Bankruptey <4 csesss bees os cwed cea ada se sasina yeeeenaes wee 383
Defects and irregularities 0.0.2.0... 0... c ccc eee eee 376-382
Defects and omissions in service of papers ............ «... 386
Defective copies of papers ...... 06... cece ee eee eee 387
Discharge in insolvency proceedings .......-.........05- 383
Disputed ownership ............ 0000 cece cece eee 405-407
Exempt: property ins .+ cscs eas saees sae eek aoe aca 403-405
Insufficient time for compliance ............ 0.00. eee 383
Invalid second Order’ se. 2.ccusves gues seateea ess tes ee eaae . 395
Lapse or abandonment of proceedings .............+.005 389
MASTIOMER? = 5ssgin beets qussasdieie: mraubuediaia:lenea nosed auaninslnce ec anadpe p osenarondua 393

No restraining clause ........ 0... cece e eee eee eet 407
Privileged. persons 6. siss ci ccna ce cesses es oee eee cen 395, 396
Unfair or disqualified referee .......... 0.0... eee eee 383
Unfair or inconsistent conduct of creditor ............ 391-393
Failure to produce books and papers ...........0 00. e ues 413
Final order—requisites 2.2... 00600. eee ete eee ee 431-437
Fine—amount of judgment ............ 0... e cece eee eee 443-446
Amount—when actual damages .................0000- 441-443
Amount—when no actual damages ................0005 437-441
Costs. allowable. a.cigeveesead eri anes ta essxeee aes eev en 447
Excessive—eflech: acces scias seg weve dindesea teed ct vs REN Kee 448
Extenuating circumstances—effect ................00. 446, 447
General assignment as constituting .............. 0.0. c ee eee 399
Inconsistent conduct of creditor as defeating .................. 417
Interference with or resistance to receiver .................004. 418
Irregularities—waiver ...........--.-.004. Hi deNey Suniaetidlee 2G Sealey 427
Jurisdiction—what judges ......... cc cece cece cece eee 429-431.
Kinds: “and: ature ascites sieragcoee whic ead Gok xg modes ns Adee saw 374
Judgment debtor—evasive answers ..........ecee eee eeee ++. 411
Judgment debtor—refusing to answer ...............000. seen. 408
Order to show cause—service .......... cece eee cece ee eee e eee 427
Perjury as constituting ......... 0.6... ccc eee cece e eee ee ees . 412
Punishment—discharge—grounds ...........00. cece ee eeee -. 450

Interrogatories. aves eed esas ta waka ewasee saNee EEGs oa « eee ADE
628 GENERAL INDEX,

PAGE
CONTEMPT—continued.

Order to show cause ........ plershetdeaeasres Salita ts Gan abeanedens 420, 425
Period of imprisonment ............000.eeee i Sere peace 449
Procedure ........ Hr Me ta Maa eed Saeed qaiarlayee Sue eeitavers 420-451
POUCDIY* connate teeta Sheth oempald eee amesce aie Mane Ses satewxeas Meeencemes 448
Writ of attachment .......... 00 ccc eee eee sees. 420, 422-425
Service of affidavit for order to show cause ........eeceeeeee eee 427
Statutory provisions ......... 0. e eee ee ee ee eee eens 312-374
Substantial dispute to title as defeating ................ 416, 417
Suing receiver without leave ............ 0.0 cee eee cece ee eee 419
Violation of injunction—acts constituting .................. 396-407
Witness—refusal to answer ......... cece eee e eee e ce aeeees 408-410
Witness—evasive AnsSWeTS ......eeseeeeeee {4 tiiienseaece es “ALO

CONTEMPT ORDERS —
Vacation—grounds ............ cece eect e tenet eee ee eens singies 195

CONTINGENT FEES —
Reaching in supplementary proceedings .........seeeeeeeeeess 238

CONTINUATION —

Of order for examination ......... Si eis iaavonesdueiastt hatte toe eoraneanens 229
CONVERSION —

Liability of receiver for ...... cece cece eee eee ee neee a tect 364
CONVEYANCES —

Attack by receiver for fraud .......... cee eee eee eee eee 348-354

Power to compel debtor to execute ..........ecee eee eens 266

To receiver—necessity ....2..... cece eee ee eee eee Pao axa tactacsuae es 331
COPIES —

Mistakes and omissions in—effect ............ 0.00 cece ee eeeeee 177
CORPORATIONS —

Examination of—subpoena duces tecum ...............-ce0eee 225

Mode of service upon ................. ESIRN Eee RGM aur Resse eee 178

Presentation of garnishee execution to—mode ....... sssnceeceee 34

Supplementary proceedings against .............0c000 aciieege LOZ
COSTS —

Against attorneys ...... ccc cee cece cece cence cette ete eeeaeues 457

Against judgment creditor .........c.ce cece e cence es 452, 455-457
GENERAL INDEX. 629
PAGE
COSTS—continued.
Collection—procedure ............. CUSER Se eae owas ews 409
Defeat—abandonment of proceedings ..... pteis HR LENS Sa wee 454
In contempt proceedings ..... stad yw eeM ee eyON Advi ane Bae coeee 447
TUA Ge; GV ANGIN Dia sess eee saleies 4 aie Fn baie away eotiag. dimeaua Rare seeee 453
Judgments for—supplementary proceedings on ............0065 88
Right to In general secs css ees seeeenne se eweee veces ee 452
Security for—actions by receivers .............-. Reece Sola oa 338
To judgment debtor ............ cece cece cee ee eee eeeee 455, 456
To and against receivers .............. 000. e eae R cinerea hayes aes 458
LO CHId. PEVSONS sc.ccesoears saamaas sade ale heals LeGiuaid ee ne ase 457
COUNSEL —
Advice of as excuse for disobedience of orders ........ eee. 384, 385
COUNTY —
Of examination ........... Sige eg Ss averong cue esate bg 121, 122, 123, 125
For issuance of execution ...... 0... c eee cece eee eae . 112, 113
COUNTY JUDGES —
Power to grant orders for examination ................0008 coe 161
Power to grant orders for garnishee executions .......... «- 24, 25

COURT OF APPEALS —
Appealable: OFMELB: oso: e cies os sivsecyeg reine 6 4s ereleiece'eg sieieie ole einietsta

COURTS —
In which actions for dishonor of garnishee execution brought ....
In which application for modification or vacation of garnishee
MAdE. sjexi.u 2 eave da Sew ee mess va a aerate 3 Gia Simi 4 sis wishes eyatela ee
Not grant orders for examination ....... Btiscersnessere a eiese.6 a) sibiie’e
To which application for vacation of orders made ..........

CRIMINAL CONTEMPT —
How punished ........ Ba ERAS Meira ee eaane ard Se ayaylaos aie wilolese
What constitutes .........eceeeeeee se ahavei gushed die etguoteanatenses ONS
See also CONTEMPT.

CRIMINAL PROCEEDINGS —
Admissibility of examination im .... cc ececeeecsccccvecesecers

DEATH — .
Of judgment debtor—effect .....ccececcoescecvescossesees 100,

208

37

44

158
186

420
375

227

106
630. GENERAL INDEX.

PAGE

DEBTS —

As subject to garnishee .............. cee rrre teeeauias 18, 19

Definition, .ssaccacce saa ossaeeiiss se wea ese eee WEE eae RS i8

Right of receiver to take ............... RiSaa BT Seance a PRE Ye 321
DEFAULT —

Of judgment debtor in supplementary proccedings—practice .... 211

On proceedings for contempt—procedure ..........++++-+ eee. 426
DEFAULT ORDERS —

Appealability on cscsssgs tenieaines Sie Fee RNS Gade eae Se 204
DEFEAT —

Of supplementary proceedings .........-.cseseeeteeeeeeereeees 228
DEFECTS —

Effect on contempt ........ 0... cece cence eee neenenee swexy BlU-one
DEFENDANTS —

In actions by receiver ........2.eeeeee sisieresa salsa iealevalwers eee. 339
DEFENSES—

In actions by receiver ........-++4+ oeigins ibaa RR hee 344-347

For dishonor of garnishee execution .............. eee eee eee 39

In contempt proceedings .............--- 375-395, 402-408, 416-418
DEFINITION —

Civil contempt: asus vy wisens aoe eek ee areas peta y hee see eee 374

Criminal contempt 2s esis cessasecenanneee se ngea see seman eee 374

Garnishee: 0.41 j002 42 wawewe ceca wees es eWe x eh eee Coane ge sare 4

Order to show Case cacasececsas cesnee tesanenes obsess 6 oe. 426
DEMURRER—

Availability in actions by receiver ................. 2000 eee 347
DEPOSITIONS —

In contempt proceedings .....-... ec eee ee cece eect ee ee eee 428

To take testimony—availability ........... 00... c eee ee eee eee 226
DEPOSITS —

Right of receiver to take ..... shee Biteh eee SaGewe yee meublanes 321

DIRECTORS’ LIABILITY —
Enforcement by receiver .....cccee ce seceee cere teen tenes --. 320
GENERAL INDEX.

DISABILITY —
Of judge—effect .........--. ee ee eee taveees

DISCHARGE —
In bankruptey—effect on garnishee ........
Effect on supplementary proceedings ....
In insolvency—effect on proceedings ........

From imprisonment for contempt—grounds ...

Of receiver—grounds ...........200..0 000s

DISCONTINUANCE —
Of supplementary proceedings—how effected
Judge granting order ...............-.
Entry of order—necessity ...........-.0.05

DISPOSITION OF FUNDS —
BY LECCE? sa naesin eu diseie eee eee Res seus

DISQUALIFIED REFEREE —
Effect on contempt ....-....ccevesnenee
See also REFEREE.

DISSOLUTION Ox CORPORATION —
Effect on supplementary proceedings ....
Third party order ............--e 0000

DOMESTIC CORPORATIONS —
Right to receiver of .......... 0. cece eee eee
Supplementary proceedings against ........
See also CORPORATIONS.

DUTIES —
OR TEICTER: Cy ace hese Oa & McRae eae Sateen
CE INGE eid bbw Deed 8 Heb AE ona eee

EARNINGS —

As subject to garnishee ..................
Effect of reduction on garnishee ..........
Definition 2cci ce cneer sr giiantsaed nati enes
Disposition of as contempt
Exemption in supplementary proceedings ....
Right of receiver to take ............--.--.

ELECTION —
As abandonment of proceedings ............

631
PAGE

eee thea toeys siiaena ar LO

Lobe teadenia ewes, “EO

sii tees eae esses 102

Sage dcpcten cova cuathaan asd ttrays 216

pis Pp de wees Race a sheer es 21
Fade ded maeowE 403, 404
Sigua Gta nae 242-248
sire aiugs Seen lang aeatg as 321
632 GENERAL INDEX.

PAGE
EMPLOYERS —
Who subject to garnishee .......e-...eeee ee 3b ionic 17, 18, 21, 22
EMPLOYMENT —
Termination—effect on garnishee .......cceee cee ens ccaee sows 47
ENTRY —
Of orders—necessity ...cccee ce eec eee eee eens vigheiate Saw Saud tee OF
ESTOPPEL —
To continue supplementary proceedings ..............+. ssa AVA,
EVIDENCE —
Competency of questions in supplementary proceedings .... 218-224
Incompetent in action by receiver—effect ..... see c eee ceeeseee es BID
EXAMINATION —
Affidavit for order .....ccceeec ence cere ceeeerencescene eee 126-156
Of attorneys—privilege ........ cece cee tee eee ee eaasees ene: 222
Before return of execution—requisite conditions .............. 64
County Of 9 vsesscay aes a5 ise esa sidew se eats +e. 121, 122, 123, 125
Defeat—insolvency proceedingS ........... cece cece cece ee eeee 228
Evidence—scope and competency of questions ............ 218-224
Filing went te compel asercsscex yess dew anwadiae ean y ba% 461
TA PSE? oa. ngisial oe ane-angiers Segeveuibite ia: 0.0. "Saie esol 0 eeiloledar al auecn ee Oks Wis 228, 229
NOMTESIMENT: CEDEGI: dass cov. ciinsuse wert anne see Nisa Rea Meneame eens 125
Production of books and papers ........ cece cece eee eee 224-225
Proceedings on—conditions precedent ............. 20. cece eee 211
Statutory “provision! sadiicasgaueeys ecinwere ees soins 24 eeCR ea 210
Taking default—practise ..........ccesee cece eee er eee ecee 211
Signing of testimony—necessity ..........-...- AMS Sg Re seen. 224
Testimony—admissibility in other actions ......... Sravereauad eee 227
Third party order—examination of debtor—necessity ........ -. 68
Under second order—scope ........--0005 aie ea Mardis ap eaar W2O
What place of business ............ aia Sig Singh oot aahDlesete o' aes eoee. 123
Of witnesses—subpoena—practise ........... Eee oleae eee. 213
Witnesses—oath—necessity ...........005 S68 winierelewie'e’s weweseiey LED
EXCUSE FOR CONTEMPT —
Advice of counsel ...... bie Sa eR VERO Se VES Ee eS eens oe BBE
After-acquired property ................00000. seeeeecee. 402, 403
Defects and omissions in service of papers—effect ........ 386-389
Disputed ownership ................4. wet eee seen seceececs 405-407
Exempt property ................. aS cae Aavgeretel Saat seeeces. 403-405

For failure to pay money or deliver property under order .. 416, 417
GENERAL INDEX. 633

PAGE
EXCUSE FOR CONTEMPT—continued.

Insufficient time to comply with order ...........ccceeeecceess 389

Invalid second order ............. cece cece eee eee seeeeeee. 395
Lapse of proceedings as defense to contempt proceedings .... 389-391
Misnomer ...... sibiisiesn dards Oeyeeeots eae veccveeee. 393
Privileged persons .......... iS sieleieiews Mis 's Mune Siorsisimalestots ... 395, 396
Unfair conduct of creditor ........... ccc eee eee +e. 391-393
EXECUTION —

Allegations as to in affidavit for order of examination ...... wees 136

In order for examination ............ 000. c sce e eee eee ee 169
County to which issued ............-- cece eee ees sicean’ sees ae A?
Effect of countermand .............. cece cee ener aigces a eaves dd
Enforcement of costs by ......... ccs cece eee eee eeee seecneee 459
Garnishee—presentation ... Sibsb a. SENG BEA Sdthes ssi ag asian artes ak Caras 32
Garnishee—requisites ........ cece eee eee ee cee eee eee. 31, 32.
Issuance of second—effect ........ 0... e eee cece eee sia disid wavered:
EAMItatiOns: siete: oaege sawaews es sakes eowns De berms ecocescecee 109
“Place: of business” as os axed sere seco sd sep esas dei we'e temerecie 112
Requisites as to form for supplementary proceedings ...... 107, 108
“Residence” ........... gisbes ese ovvephwrmeesiour stameescee 113
Return—defects—waiver .........ce eee se eeee Baia Bo eaeavere seer 120
Return—requisites ...... sinteie ec apigsartegtasbvesiniar Dail: Winvalieigre-s ate vecseoee D4
Subsequent return—effect .........0-e sees alors tig weseieae 18

EXECUTORS —

Supplementary proceedings against ........sssesseccceseeees. 101

Supplementary proceedings—availability to .......-seeeesees. 95
Third party orders against .....cececcccecsceccccceccvecses 104

EXEMPT PROPERTY —
Disposition of, as contempt ......-..eeeeees teeececccceees 403-405.

EXEMPTION —
From service of order for examination ........ccceecececveces 174

 

Property—burying ground ........ aie a ereaueae soars CBSE Buses oie 239
Harnings .....cccecescsceeeees ence rtereseceseeceres 242-248
“Bamily” .sceccee cesses eeeeeee eveva's baie e Sawhorse eeeee. 247
Fees of public officers .......... 0s cece cece cence eens seeee 248
Homestead ....cccececcetersceeereeenecs Sasiebieve Sets ea 239
Horses ........ Soames evak Hebe ak sees oe eeeecceeesee. 248, 249
Household goods statutory provisions .........66-..-. 239
Insurance moneyS ......+5.-5 eR ee eee ee seeee. 250
Nonresident debtor ..........++.. so volanusnacs alee tne ratpiedeie see. 240

Office furniture ............ eee ee seaide ava ansele ale seseroeatnien 249
634 GENERAL INDEX,

PAGE
EXEMPTIONS—continued.
Proceeds from sale of exempt property ..........00.0005 .-. 250
Salary of judges ............ coesieks ae seeteroteccacee B47, 248
Statutory provisions ....... shes Rass earewie hg hawew a sesteanee ae 239
Trust funds ............... Wiis ¥ O8 OE thug eae cosseses 240
WOME) ~ stielacsepcahiote Sift susy vais libata ati Sapamnpenn Ene Badseoccwrens aeons 24D
Weatelic earn: sjuecine nt eiuie asnthaiaend wakes ta AA Guat encas 249
Who householder .......... 0... cee cece eee e eee ene 246, 247
WALCO W! av serene ntahgava ie abcess a Wisse ny Re lati aoa iaigiisrnso ab Dati eoa-8 249
“Working: team? coe sas ies Sky wee wand 2689 ses Lea see 248
Working: to0ls: sci veay nen snenives van tvus Meus eas baaee ase 249
Working tools—seat in stock exchange ................ “,. 250
EXTENSION —

Of receivership—notice of application ........ qaia st. baa Mia She 369
Rights acquired ...........cee cece cece eee en eens 369, 370
Statutory provision .............. ce eee eee ily, srevasechadelar gai 368
When granted. 2.5 caw saesge deaaine gee teens Bebe ce atsldle sous 369

EXTENUATING CIRCUMSTANCES —

Effect on punishment for contempt ............eeee ce eeee 446, 447
FALSE ARREST —

Liability of judgment creditor .......... Sissel eeattesews oe. 425
FALSITY.

Effect in affidavit for examination ............. ce eeeeeee eee 131
FEES —

Of jurors—reaching in supplementary proceedings ............ 248

OF VecelVers iiss shine tis Rick com inie pinay Gains sae eee Keka why eee & 365

Of referee ....... des iisig cube oan tinh) ns Somes BOE ROS Oe eS 182, 183
Nonpayment—refusal to file report ...................00. 462

Of witnesses in supplementary proceedings .................. 213

Of witnesses—third party .....cce cece cece cee eee eens » 73

FILING —

Order appointing receiver .......................... 134, 315, 316

Papers in supplementary proceedings—necessity ..........00.... 461

Receiver’s bond—requisites ............ 00.000. e eee eee 314, 315

FINE —
Amount for contempt .......... cece cece eee eee eee ees 437-448
Contempt—effect of extenuating circumstances ............ 446, 447
' Excessive fine—effect ...... 00. c cece eee e eee eee tenes 448
GENERAL INDEX. 635

PAGE
FINES IN U. S. COURTS —
Supplementary proceedings to collect ........... siiles cae ees: 91
FISCAL OFFICERS —
Third party orders against ........ se cece e eee eee eee ees 105
FORCIBLE POSSESSION —
By receiver in taking property .......... ee cee eee cece tenes 334
FOREIGN CONSULS —
Exemption from supplementary proceedings, ........... . 104, 395
FOREIGN CORPORATIONS —
Supplementary proceedings against ..........0.. eee ee sevesaion, LOZ
FOREIGN JUDGMENTS —
Supplementary proceedings on .......... eee cece ee ects 92
FOREIGN REAL ESTATE —
Title: GL PCCSLVEL  vnsisin. g 0:6 ears a ve eile Sie ale heres aceon aaNER HO le Reese ws 331
FORMAL ORDER OR DIRECTION —
Necessity in contempt proceedings .............-::eeeereeeee 394
FORMS —
See Index to Forms following this Index.
FRAUDULENT CONVEYANCES —
Actions by receiver attacking ............... Save aaie eaaNecs 348-354
FUNDS —
Disposition by receiver ..........- Seek Mare aoe EWM Peay OS 337
Of judgment debtor reachable in receiver’s action ........ 354-358
See also Property REaCcHABLE.
GARNISHEE —
Aceruing salary ...ce cece eee eee eee teen eee eee 13
Actions for dishonor o.44secex sea veces de cows ee eee eetee dias 36
Affidavits for—requisites ©2002... 0.6... cece ete eee 29
On motion to modify or vacate ........ 0... eee eee 45
Alimony as subject 6.24 ce iscneeeea news cess au sede a cases 19, 20
Appeals. veke +s seu Geen sos eee (eae em eee Eee ee eon ales 56
Application, fOr dai esisdanes sete ees evened teas 24, 25, 26, 27, 28
Vacation or modification .......... 00.2. eee eee eee 42,43, 44, 45
Bankriptey Cet: iawaw ea eee eek heeded aE LEGS Ee ee tees 47

Bar of remedy anwcswiersacomieliie 4 maar ke nleedee FEAR IAS OR aa ee 15, It
ms

Oo

6

GENERAL INDEX,

PAGE
GARNISHEE—continued.

Commissions as subject ..........-00-5. +o dbieeertivewtepe 2h, 2B
Complaint in action for dishonor ............ 00 cece eee eeee «a Oe
Contempt for dishonor of execution ............++.0-- seecenee 36
Courts in which action for dishonor brought ..... subaie daa sinclar’: SO
Judgments obtained ........ 0. cece e eee ---. 15, 16
Courts modifying or vacating ......... 6. cece ec eee ee sees 44
Debts as: subject ssccccnsed eas vere sed eowa aes eaediensceques 18
Defenses in action for dishonor .......... cece eee cece eee 39
Den iOn: -: Hoe ca.dgins Pade were nie acaer Ne coeatene weave asaloee iene 8 4
Employers subject 2.0... .. cc cece cece ee ee cence eens 17, 18, 21, 22
Exclusiveness of remedy ............ 00+ eceeeeeveee 6 Bei 12, 13
Execution—requisites 1.2.0.0... 0... ee eee eee eee eee . 17, 31, 32
History of statute acc casted ice ceerrsadedieess sles dese ss 5, 6
Income from trust funds as subject ........ 0.20 e ee cece eee ee 23
Judge to whom application made .......... 00... eee eee 24, 25, 26
Judgments available on ........ 0... cece cee ce ee ce eee eenee 15, 16
DUM tATLONS! e.g. bytes Mae dean 6 hanna ne Aantal bey ane MoWalaare 16
Moving papers on motion to modify or vacate garnishee ...... 45
Necessity of judgment ............ 0. cc cece eee e eee eee 14, 15
Notice of application for—necessity ..........00 eee eee eee 27, 28
To vacate or modify ..............- coves BEEBE ea GREP ADEA dt
Order to compel honoring .......... 0... eee eee cece teens 36
Orders for—requisites ...... pears ake sOeuigeaeagwaeen eke 30, 31
Parties in action for dishonor .......... 0c sceee cer eeee ee eeee 37
Payment—effect ....escrcscccecccccvevccccsseeecase ausssuaha van 45
Percentage of wages, earnings, ete., reachable .................. 24
Place of application for ...... legen eS o S4 a Ree ea wee Bas Ae da 26
Place of employment ..........eeeeeeeeeeeeces siace a phermengrhs Ske 17
Pleadings in action for dishonor ...........eeeeeee eee seeerenee 38
Presentation of execution ...... Sh EAclens Sea cure ee ents. d ahs 32
Profits as subject ....... ais S Wav Males SaVenaise SRO Sarerin Relates 23
Protection of employer ............. nelnetsa's Oe reer 35
Remedies for failure to honor ...........-..00.e0ee. 35, 36, 37
Return of execution—necessity ...... se ianier Gteiseraiuen aera gual eeewewe at
Review of orders ...... cc cece ee ee ence eee wo G sisthw sa. ee eee seeee 56
Salary as subject... cee eee eeoeee WEARS tesatnnens sawianes 22
Effect of reduction ............ Slaioie Sie ghar wg ous Paertvnnee ielavate 46
Termination of emplayment—effect ...........65 ashi <s 4 wee 47
Trusts as subject ...... cece eee eee BiG Wels @eraveennmaed neers 2S
Wages as Subject: sip cccatiwucange gues ocala daleaaea cee any 17, 18
EG eet OE POPUL os ow Ge Bs ee ee ie 09 PRK eh eS 46
Waiver of right to appeal ......... ccc ccc eee eee eee +. 56
GENERAL INDEX. 637

PAGE
GARNISHEE EXECUTION —
Modification ....... tie Guhaieee Sdeugeneuga gna iisieccettanus: Glo
Termination of lien ........ Cocca ee en entree enceeene aha 45-47
Vacation ..... Satie eases MwA SRG ee G TE eo eee AIO)
GARNISHMENT —
Definition .......... Seas ecco vee eee meter rere teers ives Be 3
GENERAL ASSIGNMENT —
Effect as violation of injunction ......e eee ee ee ce eee 399
HABEAS CORPUS —
Review of orders in supplementary proceedings .............+4- 208
HOMESTEAD —
Exemption ....... SA Sewtmie ee Sam eee ae ee a ree 239
HOUSEHOLD GOODS —
Exemption ............. OE ae ae {er Hieacgisan eeaious. LOO
IMPRISONMENT —
Of judgment debtor—effect as defeating supplementary proceedings 84
Period for contempt scsiw cage es iva dead oeers erie’ a onalees 449
INCOME FROM TRUST FUNDS —
As subject to garnishee ..............+- ‘tie in saws exsaees: 23
Definition ....ccccceaese cee sceesteeees J Madd ot oe eaee eens 23
INCRIMINATION —
Of witnesses and parties .......... cece cece eee eee eens 222, 233
INDIVIDUALS —
Supplementary proceedings against ........... ccc eee ewes eva 99
INFANTS —
Supplementary proceedings against............00e seen eee. 100
INJUNCTION —
ApAINSt LECIVELS sseed 64 sae ope sar cing e ee Dee EE tame guess 364
Tt receiver's AChiOn sox sas cen eee cats tee ERE FEE ge Rau ee ED 357
Violation as contempt ........ 0.66 cece eee teen ewes 396-407
Absence of restraining order in order appointing receiver ... 407
Bankruptcy as constituting ©0000... 6... cee cece eee eee 399
Disputed ownership ........ 0... e cece eee eee ee 405-407
Exempt property ©. 0.0.00. eee e cece cece eens 403, 404

General assignment: sc ssa cet cee wes.2as Sees: eke dae os 399
638 GENERAL INDEX.

INJUNCTION CLAUSE —

PAGE

Provisions respecting in order for examination .............. 170
INJUNCTION ORDERS —
Service—statutory provisions ........ ee cece eee tte eee eee ees 173
INSOLVENCY PROCEEDINGS —
Eifect on contempt 2s. i scneseia gees ssaaeecesy wees eeeve seeeee 383
Supplementary proceedings ............ sc ee cee eeeeecceee 228
INSPECTION OF BOOKS —
On examination in supplementary proceedings ............000005 224
INSURANCE MONEYS —
Reaching in supplementary proceedings ..............-004 232, 234
Taking ‘by’ receivel! vex 2accass ate dees eee eee eee: ose Sete 6 ares 321
IRREGULARITIES —
Effect on contempt ............ sianbanoie’s ¢ ala aaa noel 376-382, 427
Supplementary proceedings ..........0.. cece cece cece eens 82
In appointment of receiver—effect ..........0. 0.000000 seeeeee Bll
JOINT PROPERTY —
Right to reach in supplementary proceedings ................0. 239
JOINT STOCK ASSOCIATIONS —
Supplementary proceedings against .......... cece cee e eee eee 103
JUDGES —
Absence—effect. on supplementary proceedings .............. 465-467
Application for second order for examination .................. 257
Appointing receiver ..... oct Sk Meant Asvaealela ata ehciata Use Sueno seats 308-310
Granting COBtS” pc vcs alanis ta aretiacre Suntan Hie Sige wee Ada os ee ere 458
Granting orders discontinuing supplementary proceedings ...... 465
Granting orders for examination .................. 000 eee 157-163
Powers as to adjournments ............ 0. cece eee cece ear enes 216
Punishing for contempt .... 0.0... .. cece cece eee neces 429-431
Resignation or disability—effect 0.0... .. 2. . eee ee eee ee 163
Salary of as reachable in supplementary proceedings ...... 247, 248
To whom application for garnishee execution .............. 24-26
Modification or vacation of garnishee ............0...0005 44
Order directing payment or delivery of property ........ 267-269
Who may vacate cordérs. 2.3 sna. see eedsves Jeers eer egne ies Sey 185
GENERAL INDEX, 639

 

PAGE
JUDGMENTS —
Alimony—supplementary proceedings ON ........ cece ee eee 91
Amount of for supplementary proceedings .................055 85
Asignees of—supplementary proceedings by ...........000000 94
Against associations—supplementary proceedings on .......... 91
Cancellation under Debtor and Creditor Law—effect on receiver's
VEO sseeueur saws ccgaeoeauats : vadeey shatec bab sesacsweares 327
On appearance of debtor ........ 0... eee eee eee eee ST
On confession—supplementary proceedings ...............20005 37
For costs—availability of supplementary proceedings .......... 85
Dissolution of corporation—ellect on supplementary proceedings s2
Foreign—supplementary procecdings on ........ 6... cee eee ees 92
Irresularities iIn—elect 285 csc cae ees eens eae saan pivaees 82
MSOC =SOMGCH. 02 sc gee Bh ges Kaew Ewes Se dea Sachin sad Guanes 78
On what supplementary proceedings lie ...............-.04. 76-92
Payment—effect on supplementary proceedings ..............0. 83
Personal service of summons on debtor ................00 00 Sy
Reaching in supplementary proceedings ...............2...... 236
Substituted. service ccavsex es sinew s ya wwe eg eue ceceaaavee ewes 88
JUDGMENTS BY CONFESSION —
As constituting contempt ............. 00. e cece eee eee ee 400, 402
JUDGMENT DEBTOR —
Appointment of receiver of—notice ............ 2... .000 eee 304-307
Compelling to execute transfers ............ 000. c cee eee ee eee 266
Contempt—evasive answers ........ 0.00 cee eee ee teens 41]
Refusal TO ANSWER ae s.c03 dns due gus Vagal Pod eee EN 408
Refusal to sign testimony ............6. 65. c cee eee eee eee 413
Default—how taken sess esacmacevs oulve seas pews ead exw oneaes 211
Effect of death of on supplementary proceedings .............. 100
Imprisonment on supplementary proceedings ............0. 84
Removal (OM COUNLY 2 eee bee ede amas Made eats 112
FExamination—oath—necessity ....... 02. ce cee eee 215
PCOPe: pe ve gQessis ce bags Gea ems Wag Meo cag ae Ree eee 218, 219
Second order—scope ........ 0.66 e eee eee eee 1... 226
Funds of reachable in receiver’s action .................... 354-358
THOFIMINATION: 4 .eabess ia iiee Ie ev ea AeeG ReMi EN Eee 222
NL SHOMER—EMECE ie eisus gun eed ea ewiaes Bashers Sed qaddl San hauee HS de 78, 168
Nonrésidente--exectition, .c24c.02¢ eben deen emi bead ude bane oeee 113
Orders directing payment or delivery of property hy .......... 264
POEULY OF AS CONVENE can ser caas een eared O-ak pane ae ede eRe 412
Property of reachable in recciver’s action ................ 354-358
Receivership of—efiect on supplementary proceedings .......... 83

Right to costs ..... see cece cece eee ete ee cee eens 455, 456
640 GENERAL INDEX.

PAGE

JUDGMENT CREDITOR —

Appointment of receiver on other judgments—right to notice .. 307

Costs: against .:.ss<sacesvewssasans eos senscsé ewe tes 452, 455-457

Effect of receivership on actions, Of .......... 000s cece eee eee 367

Inconsistent conduct of as defeating contempt proceedings ...... 417

Liability for false arrest ........ 2.00. cee filouaave Hee eG ses » 425

Supplementary proceecdings—availability ............ acsuitohectigyandts 93

Unfair conduct of as excuse for contempt ............+-005- 391-393
JUDGMENT CREDITOR’S ACTION —

Effect on supplementary proceedings ............+-.04 gees as 83
JURISDICTION —

Of contempt—what judges ............ ese c eee eeee ee 429-431

Of garnishee—what judge ........... 00.0 ee eee eee doesn Od ulate 24

Of supplementary proceedings—what judge ................ 157-163
JURISDICTIONAL DEFECTS —

Waiver .......... eee e eee e eee dsiswee Se ais lg eisiolalaa ee ae seceeee 196

JURORS’ FEES —
Right to reach in supplementary proceedings ..........seeeece. 248

LACHES —
Effect of by receiver in taking possession of property ....... --- 359
LAPSE —
Of supplementary proceedings .........00 eee eee rere ees 228, 465-472
As excuse for contempt ....... 0... eee eee e eee eee ee 389-391

LAW MERCHANT —
Application to YeceiveTS .. cc cece cece cece cece eee e eect ewees 325

LEAVE TO SUE—

In actions by TeCelWer 52 cc.wiasieuwss onneeyes mee ees seem S 338
LIEN —
Supplementary proceedings as creating ............. 0.00 eae 61

LIEN OF ATTORNEY —
Supplementary proceedings to enforce ................ 2.000 96

LIFE INSURANCE —
Right of receiver to take ....... cc ccc cece ee cee cee eee e eee 321
GENERAL INDEX. 641

PAGE
LIMITATIONS —
Appointment of receiver ........ cece cece eee eee ene aisioteless sare 303
As to return of execution ...... 0... cece eee eee eee ea as HOH 109
Supplementary proceedings ..........-. 000-2 eee ee --.. 65, 80
MECHANIC’S LIEN —
PHLOKIEY OVEl: POCCIVEL css sig esi 4s sisisie'n elasidld ep Sek wees abe gee ete 320
MEMBERSHIP CERTIFICATES —
Right to reach in supplementary proceedings ...........005 eee 239
MILITARY PAY —
HXEMPEION 9 siesta Fescay da Panis. Sad Hares Cw EA aia EM Maal hae ea ve eee 239
MISNOMER —
Effect as excuse for contempt ........... cece cece ee eee eee. 393
Wn jUdZMenit—VElheek: i ssi sice dk haedesheecsidaeie Hew ince 9 e ove leenuale ere -. 78
Of judgment debtor—effect ............ 0... eee e eee eda a sotuayee as 168
MISTAKES —
Effect in affidavit for examination ........... cS eGR Se MRSS 131
Effect in copies served .......ecesccc ce eeeneceeees seine Rew! RE 177
MODIFICATION —
Of garnishee execution .... 0... 0... cee eee eee eee eee eens we 41-45
MONEY —
As subject to order for payment .............. 0. eee eee eee 275-280
Proceeds from sale of exempt property—reaching .............. 250
Recovery in receiver’s action ........0... ec cece cece eee ee 354-357
MOTIONS —
For vacation of orders—right to ............ cc cece eee eae 185
Notice of Motion: seicy05 veut ws salen oe sane ¥ 24a he an Gee ee 187
MOVING PAPERS —
Application to vacate or modify garnishee ................ o. 40
NOTICE —
Application for extension of receivership .................... 369
Garnishee execution—necessity ............0-..00 eee 27, 28
To vacate or modify garnishee ................ ven ediacaa 44
For order for payment or delivery ..................0000. 266
For second order for examination ...................2..... 257

Writ: of attachment. ssc siesscaw es 6 atae oe snes oemeccn eee nave 425
642 GENERAL INDEX.

PAGE
NOTICE—continued.

Of motion to vacate OTderd ..eecseeee cece nese ee eee teeter anes 187

Specifying defects—necessity 2.2... 2. eee eee ee eee ete eee eee 187
OATH —
Of referee—statutory provision .........0 +. eeee eee e ee dsieearecen 2d
Of referee—waiver ...... ere ving Sapese oe: Hissyeats persis Os wONS Tae 21]
Of witnesses and parties .....ce cee cee cece etree ainedet cane 215
OFFICE FURNITURE —

Exemption in supplementary proceedings ........--..46 seecceee 249
OMISSIONS —

Effect In Coples wsienxigesriegtv ro sage wes ae Hee deeew ee He seoee 177
ORDERS —

Appeal—default orders ......... ccc cece cece eee eect eee eeenee 204
When: lies occ scecteetorsmen ani cdndte ae Baraat aaa ves 198-208
Subsbaneial TASES. a sus ag eons sesh cates tee sont ort ciee scene» beede dares sesh cs 203

Appointment of receiver—requisiles ........ 5. cece eaacanacs seee 310
Vaeation-eronnds: 19 sg new. ean ences Whead enna ee ohana -. 195

Discontinuing supplementary proceedings—form ...........05- 465
Wien -pranited, jis cg -cpeit & css tigiy tre cosnihceunia Selagee agra geaila 463-465

Effect of mistakes and omissions ............ 0.00. cee eee eee ee 178

Extending receivership—when granted ................ 0000000 369

Final order in contempt—requisites .................0000, 431-437

For contempt—vacation sc. ccsdeaa dens eiua cas cece twee noes 195

Garnishee—requisites: 2. csce oe cei cea Hone Soin eames ae oun 30, 31

Insufficient time for compliance—elfect ..............00.0000. 383

Payment of money or delivery of property-—right to ........ 262-293

Payment or delivery of property—application—notice .......... 266
Attack —srounds! \c.0.ciusceade dmaGinat als wean augone sees 2838
Bond. to andemmnily sas icvea said ya as seid’ od date vag eeeesis BSU
Defeat—substantial dispute .......... 0... eee eee 283-288
Necessity of supplementary proceedings ............0..000. 204
Noncompliance—excuse 2.0... 0... ccc cece e eee ee eee 289
Protection—‘Constructive notice? oo... eee eee eee eee 290
Protection—right to cc... es ccc cece ee eee cece teen eee 290-203
Statutory provisions .......... 0... cee ec e eee ee 262, 263
Vacation—grounds ...... cc cece cece cece cee e cee enacataens 194
Wie may apply a2 sad. sk pawn eens woke Gabde a bisssmmd nee we 266

Delivery of property—assigned property as subject ............ 282
Chattels: as subject ssc. digecssas deed s08 40a de0¥Sd oa ares 280
Patent rights as subject ............ cece eee e eee e cece eees 282
Real estate as subject cc sscg esse ceuscn ee wenees awa vena DF.

Stock exchange seat as subject 281
GENERAL INDEX. 643

PAGE
ORDERS—continued.
Directing payment of money—action On ....cecsecsccescceesee 294
Unwarranted order—restoration .............4. swine e waneie oo OM
Permissive for payment or delivery of property.............+++ 269
Review—certiorari ....... cece eee eens sate. stag wes eee «. 209
Habeas corpus .......... aia a sce Pe SSR Meas Gein ess sees. 208
Prohibition ............... KAAS aaigen 24 MoE ER Ree wT 209
Revival—procedure ........ cece cece cece cece e cette eeneeneeee 470
Show cause for contempt ............e cee eee eee 420, 425-428
Supplementary proceedings ON .......eee ee cece cee cence -. 89
Third party orders—grounds .......... 0.0... c eee eee eee eee 66
To compel honoring of garnishee execution .................. 36
To pay money or deliver property—disobedience as contempt 413-416
Vacation—entry—necessity 2.0... 6c ccc cece cece eee e eens 197
GHOUNAS: «waking, dana scene aaa Ma Hed Ae Reems 185, 188-194
Refund of payment. woccce cess cea ee canne ge ce wees ce new ae 197
WralNel! 4 cee4 ahcne oe SEG AOE eR E Seer ey Ceekdee 190, 197
WHO MAy MOVE ..secesccecrascreerertnncececees ceeeeee. 186
ORDERS FOR EXAMINATION —
Appearance before judge after examination ...............06, 171
Application for revival—judge hearing ......,...........046- 162
Appointment of referee ..... Suet siege sec baah entra a ses Sosa oop ean or ee ater 170
Continuation of order ....... ai hislce 3:2 a liga a e-G:iedsparerdp ahanesese' es oe. 229
Discontinuance—entry of order—necessity ...........-. eeeeeee 200
Form—statutory provisions ............-eeeee kone ates soencees 164
How entitled .....cee cece cece cece e ete reece ener eeeens seceeee 165
Injunction clause ........ cece cece cee etter e teens sooeee 170
Irregularities—effect 6... cece cece e nett ete eens 167
Judges granting ......... RiGee ied Semone Tenlea es 157-163
Jurisdictional allegations 2.2... 0. cece eee cee eee teen ee ees 166
Provisions as to return day 1.20... ccs cece cece eee eee sieves Somat 169
ReTOPO NCE: ac 3s cca b 0A Sas FORE LS GbE RRA EERE «+e. 180-183
Service—exemption 6... .. cece cece cece cece cence teen tenn eee 174
Exhibition of original ....... cece cece ete eee eee. 176
Statutory provisions .......... 0... eee eee eee eee veeeee 174
Territorial, Limite <sasweeses wy sug bey oreo d Goa ee tes 175
After return of execution—grounds .......... 00. c seen eee . 66
Before return of execution—grounds ....... 6. cece ee eee eee 64
Statutory provisions ..... aA peas desea eaice OG Raa ARS Re ioe sts 64
ORDER FOR SECGND EXAMINATION —
Affidavit—sufficiency ........ Sk Coleen ge came eamewamer ++ 257-261

PAID JUDGMENTS —
Effect on supplementary proceedings ....ssseseecscsceesenscaes 83
644 GENERAL INDEX.

PAGE

PAPERS —

Filing—mecessity ....ece sees esevee Wieeees (aw sera weet vee 461

Production—subpoena duces tecum ........ sc eee cece renee + 225
PARTIES —

In actions by receiver ..... Sia K shale fhe ttade donee Gln ard Sia eee 339-341

In actions for dishonor of garnishee ...................008 eee 87

Examination of—oath—necessity .......... 0.00 c eee cee eee 215

Substitution—actions by receiver ........... pacientes sass 340, 341
PARTITION —

Action for by receiver ......c cece eee cece cece eee eee eens 360
PARTNERSHIP INTERESTS —

Right to reach in supplementary proceedings .......-....20004- 237
PARTNERSHIPS —

Supplementary proceedings against ...............44. areas oe 103
PATENT RIGHTS —

As subject to order for delivery of property ..... see eeeeereeee 282

Right to reach in supplementary proceedings ....... ee eeneeee 235
PAYMENT —

Effect on garnishee execution ........ 0.00... cee cece ee eens ae. 45

Compelling refund of to receiver ........eeeeeeee eee seiey.ne% 362

Orders compelling ............ cece cece ee cece ence eee ++ 262-266

Refund—liability of receiver ..... cece cece c eee eee cee eee eens 364
PERJURY —

As constituting contempt ......seeceeseeeeee seas seeeeee 412

PERSONAL PROPERTY —
After-acquired property as subject to supplementary proceedings 232

Exemptions in supplementary proceedings ......... Ns Sa 239-250
What. reachable: ...4:s sihen vas steeds She Osc eee ete en eras 232-239
Vesting in receiver ...........0+ avai Secayeie i iorouon ue aeetiene 319-322

See also PRoprrTyY REACHABLE.

PERSONAL RERESENTATIVES —
Supplementary proceedings against ........ siaisiarerets 2 20 a aceeee 100

PLACE —
Of application for garnishee ....cee. cece eee eee ee eee eee . 26
GENERAL INDEX. 645

PAGE

PLACE OF BUSINESS —

What constitutes ......e eee eee eee ee cree gic beraleeda wevere, FEZ, 123
PLEADINGS —

Actions by receiver ........ eee eee eee 6 Leek os ee 342-347

Actions for dishonor of granishee execution ......... Shaneeeacneesy 38
PLEDGE—

Action by receiver to redeem .......... ee cree ee tte eee oe. 809
PLEDGED PROPERTY —

Right. to ‘reach ..c8c.a0 cand cinennes wwe te women ee eeuiete cian Bhd
POWERS AND DUTIES —

OF TECCIVENS: aidicc cakes sean soe Hea SOs BOOS o MOS sia aeveleese 332-363

Of referees ...ccee sec ee scree eees ica let pie tk erate ae tava seeeees 216-218
PRACTICE —

Punishment for contempt ....... 9S digyassa apache alan Sie ANS alenere dividers 424
PRESENTATION —

Of garnishee execution ....eeeeee cece cet e cece eens oe. 32-34
PRIORITIES —

Action by receiver to determine ............... 0c eens ccaceeeee SOL
PRIORITY OF TITLE —

Receiver—mechanic’s lien ...cee.eeeeseee iaghiaedienoetme we eee 320
PRIVATE SALES—

By receiver ..........- eee eer eeee Gwe RAGE Kaa Bea tas seee 337
PRIVILEGE —

As defense to contempt proceedings .............200 cee ee 395, 396

Of witnesses and parties ........ 6. cece cee ccc cette tenes 222

Testimony offered in other actions ................c. eae eee 227
PROCEEDINGS ON EXAMINATION —

Appearance of parties ........ ee eee cece eee cece Weediehis 211

Statutory “PLOViSiONS: vaies o sisi sees cadlgas wea pele Ree hee es 210.

Subpoena—practice: o.cei%e cds g28 sae oG Mediedeeeeg soa Heo wanes 213.

Witnesses—how attendance enforced ............ 2. cc cece ee eaee 213,

PROCEDURE —

Production of witnesses .....sscccccec cesses ects eer cevcevece 213
646 GENERAL INDEX.

PAGR
PROCEDURE—continued.
Punishment for contempt ..........seeeeec cert cette ecee 420-451
Punishment for contempt—procedure on default ........+.- see 426
PRODUCTION OF BOOKS AND PAPERS —
Failure: a8: Contempt: c..0.seiac tecdine niebee tds den eka ss 413
Right to ........- eee eee Si avaysad Sart. cijsoe a eames Castereas Saeko 224-226
PROFITS —
As subject to garnishee ....... Cannes Swieaha oh wegice Shays secee 23
D6AREION: .pcgis 55 HERE ESA RRS SA atie sete ees oes Fa eeS coos 23
PROHIBITION —
Orders—review by .........-..+ slstopate oiei sishdietece Sd idaasaee seaieieee 209
PROOF —
Of service—requisites ........ beara ron Sethe elaine, Sas aaah Re ene ieee es aa 179
PROPERTY —
Receiver taking possession—force ............. sibceteels HaSiee Neus 334
Title of receiver tO ..cceececscercceccccceccecssereeceeees 316-332
PROPERTY REACHABLE —
After-acquired property ..............- oles ere aie waters desea shes oe. 232
Alimony’ *sccceja's: ciisooesdegiia view Saueatuls weirs atau ohare datieres +. 235
ADHUILY » . siwicce siasieiere’s sorties oe Rael Soy Hide de tse ey vine sis aes 235
Bank: deposits s4 sises dcinkee eee nies tae Packet Snes eae Sew ees 237
By receiver’s action ........ es ces eee e cette eee eeeneeenas 354-358
Chattels ........... J SeNwE NE caARON ss MEE RSMO a anes eee 235
Gortingent, ees) —...iiseas Gaciicitarsaas ethane dw odarniemuee oe weve hoes 238
HXCMPliOns |. cc dcsncsies ser tacwade uaa ee teens. 239-250
Fees of public officers .........cecee eee e cece cece eet e ea eeenes 248
Household, G000S: ccc ccinsie tee tase ns weee wes eaee aul atone we 239
Insurance moneys ............ ISDA EHO ake ee Gears Say 232, 234
Insurance moneys—exempt property .......... 0... cece ee eee 250
Joint property ssw eicsescecs veer cess dee esee ver ens eevee cee -.. 239
Judgments: 5 iscsi sdaness eos See hae 4 Saw 8G TSG he Faw wR Ee ee Bi 236
Jurors’ fees ...... GWU 2 Ei RACE Rone tae eeasiae Wusereptan doa ro Sale 248
Liability under bonds ....... cece cece cece cette eee e ee 232
Membership certificates .......... eee cece eee eens 239
Moneys in hands of fiscal officer .......... 0.0.0. eee eee 238
Partnership interests .......c00ccsane cece en essere eee ee tenes 237
Patent rights ....... Ugo PIMs CEEaEY coer gels caents ake oes 235
Pledged. ‘property .sswescs sea tags Geri ss eelew Raa ea eeeae ees 233

Proceeds from sale of exempt property ............-..0e eee 250
GENERAL INDEX. 647

PAGE
PROPERTY REACHABLE—continued.
Rents nics cases Mcteeeys eeeevny Beak ee ee eee ee O52
DOIALIES. coxye dante oewaiiwre< sae oy ESA ea naE 232, 233, 248
Seat in stock exchange ...... Sieled ahaa Rau ae waco anaanne eae 234, 250
DETMICES. 40 baad aearneaion Mises eae Musreeied vnwas aca een Se 2. 238
Wnliquidated: claims: ii. .e:c06 seas ossivew ihe tomese waded ia seeee 236
PROTECTION —
Under orders for payment or delivery of property .............. 290
PUBLIC OFFICERS —
Salary of as-meachable: so .cs'eaceu esa gee aeae Woe eee Re ees a awe ed 24s
PUBLIC SALES —
By TeCeiver—NeCessity: ici. bc. cai) chilean egos ea Ea a Sales 337
PUNISHMENT —
For contempt ..... vies Gite Weir ain tint, ante sens SEs eget Saaene 437
Discharge from imprisonment—grounds .................. 450
SEALY 5s. HERS Ses Shans caste dnas slags Wauese Ried aumenmehseia Desa eeslansle 448
Period for contempt ................ oieve dd Graben Beanies dieraeecsntate 449)
QUALIFICATIONS —
Of receiver .......... os tae Se SEN EeS REREY S Hee TERA eas 315, 314
OF <TeLereeh ws aetind ae eae Sie cteet 24 eed Fiesty Sie aaaeae 180, 181
QUESTIONS —
On examination—competency .......cceee cece eee ee eee +. 218-224
REAL ESTATE —
As subject to order for delivery of property .......... Satine 274
Conveyance to receiver—Necessity ......-. 0.0.0. eee eee e eee 321
In foreign state—receiver’s title ........---. 6 cece eee cece eee ee 331
Right to reach in supplementary proceedings .............. 230-232
Title of receiver—mnature ....6... ee cece ee ee cece ee ee eee eee 328-332
RECEIVERS —
Accounting in Surrogate’s Court—right to compel .............. ‘862
ACtIONS AGAINST ssc. cad cesses ergers donde ere ade vows 363, 364
Actions by—accounting ......... cc cece eee e eee teen eens 360
Attack of fraudulent conveyances ............0ee0e-- 348-354
GComplaing: js isaaiands acinedon. acme aeeae tienen Tene Manes 342, 343
Defenses: avawlahle: : scactd+ anes wae ea tune kates antes ian 344-347
Determination of priorities ........ eee eee eee 361

Teaee 06 3 gaes wee pae ee venes Hers Sein esis Nee eRe -. 338
G48 GENERAL INDEX.

PAGE.
RECEIVERS—continued.

Parties ...00-.eeseeees seaewk Hee aawe tity Sess eevee 339-341
Partition seid eeeie<es 206% cea ate Gas ee eee iMeseseunes vias 860
Redemption of pledged property ............. deg oSeere seeeee 359
Replevin ............. Sibeicd Seid odhansr ay Gisoae cate Bat denigrate eyed eee. 361
DECUTEEY FOR COREE jecc: cree: oslonsethgconnard.c wranavacduge naquayalaloeie Guana care 338
EEGSPASS. 4.8 cwsiee et Sid oain scenes nomen Omanateaneawes .. 361
Whent Vie occu coitus cetis tees Sea mies arate anes 338, 348-361
Appointment—attack—grounds ...... 0... e cee eee eens 311-313
Effect as termination of proceedings ...............0008 wee 472
Effect of on actions by creditor .......... 0... eee e eee eee 367
General requisites ........ 00... cece eee tree eens 297-299
Irregularities—eflect 0.0... ccc cece cece eee cenene 311
DUAR: MAINE «gcse. jase acase lina iw. as sab bs. ekemiand. dnd auare Cialeereeane 308-310
GAMItatiOns: sieeve vis en bing eed ebine ENS pee LOG chews wae os... 303
MOVING (PAPeTs: agp. rsriwiere tga Ges ww seus Sala Sees wiela or seeaae 308
Notice: to. debtor’ x escsiaierd os asics g04 sue ed ce anne ees cee 304-307
Notice—service ... ss.eie sc tied seme eee nia noe besa een eek 308
Notice—statutory provisions ........... 6. cece ee eee eee 304
Qualifications: a ccnteec tones eg aay eae ee 2 eee 313, 314
Statutory PLOVISIONS. < soos oss didiid ot cobain re teete nee LOG
Wheit Made toicjet3 2 coe enae ld ake Wed aioe a eee La Reese Beetles B6 299-302
Bond—requisites ........... daha Ducnaatine sta Nie © Coolmine ays oe... 314
Compelling refund of payment .......... 6... c ee eee eee ees 362
Conversion—liability for ........ceecee ence e eee eee es <9 teusv'es, BOL
OF corporations: issues Serger cckw ged co aval goes Nits See a oew se 102
Costs to and against ............. elev aw slcten's Sais Sraeu's +4 Guede wee 458
Discharge—grounds. ..s4.2accsesdeweiversawe ees cawdecsewen ees 366
Enforcing directors’ liability .......... 0... eee e eee eee ee eee 320
Extension to other judgments .......... 0... cee e cee eee 368-370
Rees” Of scighegiw dace awed eee ooh aces Sas Aaa She heen eeeee. 365
TN JUNCHON AGAINST: estes s-asrdsi sented Semel dane dais Parad Guava baaem goacduelb.o 88 364
Interference with or resistance to recciver as contempt ........ 418
Law merchant—application ........ 0... cece cece eee eee 325
Order appointing—requisites ......... cee cece eee eee 310, 314-316
Vacation—grounds ..... ais Aroha bras Oe Won Riats wine erate male een ees & 195
Powers—disposition of funds .................... pots eeees 3ST
Powers and duties—statutory provisions .............. cess ee ee 332
Powers—taking possession of property ...........-.0.e ee eee oe. 334
Private or public sale of property ............ ce eee cece eee 337
Property taking—after-acquired property ..............e0000, 320
Award fOr PeaAlty’ sas sce cea deinec oneasedss polauert Svea 320, 332
Bank: deposits: s.c.casediewsaegrqtinad ne Gauigves Seleied omaretecceted ne 321
Debts, ces cheeses ncanes'e coe oles mete tesadnawntgeeiaed BOL

Exempt property seesen cvs vig ee saneg seeiesitet eed eres eas 319
GENERAL INDEX, 649

PAGE
RECEIVERS—continued.

Foreign realty ............00ee0e aferele avieietew eveteeesenens se Clb
Life insurance ..............05 ii We aed REO wS 4 ewe TE ES 321
Personalty csc% sows s ewiwae swe es ticdal isd iaclosodew es 319-322
Stock exchange seats ........ cece ese e cece ee cesta eeeees 320
‘Lénaney: by: -Curtesy.- aide iacieeite cme nea Bae gdeumma teenies 332
Qualifying—requisite acts .......... eke cee cee ee eee es 3138-316
Statutory provisions .......... cece ee eee eee eect en eens 313
Refund of payment—liability to ......... 0.0.0.2. e eee ee wee. 364
Removal—grounds ..........ccceec cere cece cette tence eeeennes 366.
Resort to supplementary proceedings ..................00 eee 97
Suing without leave as contempt ............... 0. cece ee eee 419
Supplementary proceedings against ............... ce eee wees 102
Pitle—-date:-Of Vesting cise <6 seis g ew sies aoe Hele oreinSaninl oe see ders 357
Effect of bankruptcy ...... Ay cones soem eed ae he aac oe 327

Effect of cancellation of judgment under sec. 150 debtor and
Cred tor MAW cada ecitisuvas #2 baw sow beside aaeenaes aoe wee. 327
For whose benefit ........ ccc cee rece creer ee eceenseaes 319
Loss by delay in taking possession ...............000000- .. 359
PRIOTILY: 25 08 habs kee sega ease ee Mth ehae 320, 326, 327
Relating back—statute .......... 0... eee cece eee edase eds 317
When, relates: back i ..sscscsconeases otis cous aweveae +.. 322-326-
To real estate—nature ..............00 00 ce eee eeeee. 328-332
Vesting of title—necessity of assignment by debtor ..... Siariedarnon 318.
Statutory provisions ............-- Gassieieha eas seeeeee. 316, 317

Whom represent .occccccccccsccccccccccesssssccccscecces O08, 334

RECEIVERSHIP —
Effect as preventing supplementary proceedings ................ 83
Extension to other judgments ........ se eeeeeeccceescee. 308-370
REFEREES —
Absence—effect on proceedings ........ oa; b/ ev seks avers eee. 228, 465-467
Hees. OF i gaasie cata ssa wise os Kee sige PON cee aheaialie 182, 183
Oath—statutory provision ............+...... pligsa-si sd avaeeie's sais 211
Walver ec. os gid se ainew. a dedees os piew.s sb eeGe sd Yee ee aee.et 211
Power—adjournments .......... 2. cece cece eee et eee tees 216-218
Powers and duties—in general .......... 0... cece eee eens 216
Issuance of subpeona ......... cece cee eee eee e eee eee 213
Respecting books and papers ........ cece esse eee 225, 226
Provisions in order as to appointment .................0.0-0. 170:
Qualifications ............0.086 sileeveuniegie sw plotline nas 180, 181
Refusal to file report—remedy ...............-5. Ssierse Seeds 462.
Statutory provisions respecting ..............-+... fei eeateeaie 180

Unfair or disqualified—effect op contempt ............ we trtiniee'y: 822
650 GENERAL INDEX.

PAGE
REFERENCE—
Incidental questions .......c..ceveeeeseccececceveaceccoeseres 180
In orders for examination ......cccecececece nsec ceeceeccseecce 180
REFUND —
Of payment at instance of receiver ..........eeees dees esteaewign 02

Liability of receiver ..... cece ccc e este cree ete ereeeeesens 64

REMEDIES —
For dishonor of garnishee execution ....c0..ecceeeeeceer eee 35, 36
Supplementary proceedings ......-..+++eseeeee vee. 62, 64, 66, 74
REMOVAL —
Of debtor from county—effect on supplementary proceedings 112, 113
Of receiver—grounds ........... sashoee eels oats mistesoe ts: tiaisteie's 366
RENT —

Reaching in supplementary proceedingS ........ce.ececeeeeees Loe

REPLEVIN —
Actions by receiver for ......ce cece ee cece rt cecsceeecerseeeces OO]

REPORT OF REFEREE —

Filing—necessity ......... elisa elas wie lalelewierarstete ce eisiniwe BS sis sigee 462
REPRESENTATION —

By receiver ..cscccccscerccvecccersssscecs yaee ai ww Ye « Bae; Bod
RESIDENCE —

What constitutes .....c cece cc ce cc ence tesencees Se-cavaauen 113, 122
RESIGNATION —

Of judge—effect on proceedings .......6.--+-.eeeeee seeoedes oe 163
RESTORATION —

Unwarranted order directing ............ 20: cee eeeee spans eatin 294

RETROACTIVE EFFECT —

Of garnishee statute ....... Kateee vs een Hea weedy oa 6 sees Z 9,10, 11
RETURN —
Of execution—requisites ........ eee eee ee eee tenes -. 114

RETURN DAY —
Interval before ........-..0005 «8b Way Fa SNe Lee OHS ated wR - 176
GENERAL INDEX. 651

PAGE
RETURN DAY—continued.
Provisions as to in order for examination ............00eeeeee 169
Service of order for examination after elapse of ....... saawe ee EEL
REVIEW —
Of garnishee orders and executions .......... 2. cece ee eee seee 56
Of orders—habeas Corpus .... cee ee cece e eens .. 208
Prohibition ........... cece eee diel ReBiwe Gok Bh were e 209
UGH. C0) ie tiwie.c a swisha RE Sidings BRarS Deedee Oa 184-197
REVIVAL —
How affected .......... 00... e eee ipa Sa SOs BS os. 470
SALARY —
DeAnition: sassy wale caaigete este weeks sialte be Gaara eM OwEN es 22
As subject to garnishee ........... ccc cece cece eect eee eenaes 22
Effect of reduction on garnishee ................0000. Siena ae 46
Reaching in supplementary proceedings ...........-. seen. 232, 233
SALES —
By receiver—private or public ............ ee cece eee renee 337
SEALS —
On bond—omission—effect ....eeee. seers eee aiaserneiets mages 314
SEAT IN STOCK EXCHANGE —
Right to reach in supplementary proceedings ........ ee eseee 3 -»- 250
Right of receiver to take ........... davaneie a aactye sesecvesseces B20
SECOND EXECUTION —
Effect on supplementary proceedings ........ ieee awh ee ees 111
SECOND ORDER FOR EXAMINATION —
Application for—grounds .........-.........-e0ee  mbeataiaee 251-253
Notice ........- casa bonita toy SUOTE Targa eatin ane aw Satta Scene nse aaa 257
What judge .......... Bile eGo Oss oN GE ae naR NT ga IeY 257
Examination under—scope ..ccsesceecssc ers cse cette ccnncees 226
Service—necessity ........... Pyawiediy ARES EAS AMY ERs EE Ss 261
Termination of prior proceedings ........... cc cece cece eee eee 254
SECURITY FOR COSTS —
In actions by receivers .......--+6- See ae ARN ecTaRE -. 338

SERVICE —
Defects in—WaAiver .wueccccsseceevcesecsries sriauawie eS. Gees oe.Ges aD
652 GENERAL INDEX.
PAGE
SERVICE—continued.
Effect of defects and omissions on contempt ......-+...++. 386-389
Exemption from ......... SRE Tae CP Rae eae Ga nea gee Me 174
Exhibition of original ...... 2... cece e cece e eee eee eprbier) habeas 176
Failure before return day—effect ......... je bod pele eee os 471
Injunction orders—mode ......... cece eect ee ctr eee e rete ee ees 173
Mistakes in copy—effect 1... 0... cc cece cece cece een neces 177
Notice of appointment of receiver ........ 0.0.00. ee eee eee 308
Of affidavit and order to show cause for contempt ...........- $27
Of orders for examination—statutory provisions .............04- 173
Who may make ....cccsvscsnnevecsasaence sauna wana SS Aik
Of second order for examination .......... 0. 0c cece eee eee eee 261
On: corporations: . 6c acaveag tes eee Ara eG ee ee es 178, 177
Period before: return day <si0s.50 sede esas dees oi ewan cose vues ee Wie.
Proof—requisites ........ eect e eee eee RSS Taitniaals ak Sees 179
Werritorial UMits: gies ic seisenied con Meee Sees VOMe Coy PRIA ES 175
Warrant of arrest-—mode wic.eisi cee sssusess esa ndad esse wares 173
WATE Of WAIVER si srta's ax nrsand 8S dresiouns Baad Hk Gulu eWS Ali wes 178
Writ of attachment for contempt ...........-...-0006- wing “AZZ: 425.
SERVICES —
Reaching in supplementary proceedings ............ OS 238
SHERIFF —
Duties on payment of money or delivery of property to under
orders ......++65 eid 4h eR Nere oa aes atelier ioiendvn i aia ad a eva eee: Wa aod apa se 264
Certificate of insufficient proof of service .......... eee e ee eee eee 179
SIGNING —
Of testimony—necessity ...ccccccesecc cers eceeceeeeneeestenee 224

SPECIAL PROCEEDINGS —

Spfpplementary ProceedingS AS ceeececeecerceeesceessvesosees 60

STATUTES —

History of garnishee statute ...... Sista 8 Geb Brbllade Baal exe seceeeeeee OB, 6
See also Statutes Cited in front of book,

STAY —

Of punishment for contempt .......... cece eee eee eee seeeee 448

STOCK CERTIFICATES —

Reaching in receiver’s action ......--. cece eee cece eee eee sees 355
GENERAL INDEX. 653

‘STOCK EXCHANGE SEATS —
As subject to orders for delivery of property .........--.06-+ 282
Right to reach in supplementary proceedings .........++--.+- 234

SUBPOENA —
Duces tecum—right to ............0005 oie Pade ESR Rye 225
Dures. tecum—serviee ca scse ee vee ce eene ced dauescsaieoeganew 225
For witnesses—how issued ......... cece cee eee eee eee ene eens 213

SUBSTANTIAL DISPUTE —
As defeating right to order for payment of money or delivery of

PTOPOLCY.~ 2 'shevet is cinnahase(Sees cesta al salen ae wibigain ogo amas 283, 416, 417
SUBSTITUTED SERVICE —
Judgments on—supplementary proceedings ..............408 «es 88
SUBSTITUTION —
Of parties in actions by receiver .......... ee cece ee eee ee 340, 341
SUMMONS —
Personal service on Gébhtor saseecss reece taser ensean bea ais wage SE

SUPPLEMENTARY PROCEEDINGS —

Against’ whom, He iss sas iscaaci sou neadawrawwnaae de siege ee ee 98
As special proceedings 1... ccccceee cee eenee case cede nn tecees 60
Effect of pendency of judgment creditor’s suit ..... Sire seainads «.. 83
Nature of proceedings ......... {igseq yas Ae kaw ye eee seeee 60
ORIG ics iets ee eee ee Re ee eee 58
Remedies available ........-...+- siaies eee Sate Se toasty a EN aol 62
Who: May ANSCIEULE. oases i eauies bao talad Sa eae omen » 93

SUPREME COURT JUSTICES —
Power to grant orders for examination ...........-..... wiaas 259

SURROGATES’ COURTS —

Right of receiver to compel accounting in ........-....-..e000e 362
TAXES —
Supplementary proceedings to enforce collection ...........64. +» 90

TENANCY BY CURTESY —
Right of receiver to take ....cecsseeeseeeeeeeeeereee shdiang eae tats 332

TERRITORIAL LIMITS —
Service of orders for examination ...........0ce eve eee moana Leo
654 GENERAL INDEX.

PAGE
TESTIMONY —

Admissibility in other actions ....ccceseeeeecseeeeereeceewes 227

Filing—right to compel ..... aca eEibuades e599 eigen ects etuewrencat AOL

On examination—competency .......- sioraisi ea guaiole eae veveeee 218-224

Refusal to sign as contempt ............eeees scenes Ep eeerelads 413

Signing—necessity ........-. airs siaelels Som meme etetgeD pare Dera 224

TERMINATION —
Of garnishee lien .....ceeceeeseeees Feats sabe hadiew es wees 45, 46, 47
TERMINATION OF SUPPLEMENTARY PROCEEDINGS —

Appointment of receiver as constituting .............. eee eee 472

By estoppel or election wocciiciana acces cawe cu eaaee ce rane oo 47)

Failure to serve order before return day ......6+-seeee cere eee 471

How termination effected .......... 0... ee eeee ce eeee eanb eas 463-472

Invalid revival order oc iisieuises weary enaenes soa anwee pao evaes APO

THIRD PARTY —

Contempt of—fine—amount .................00. 440, 442, 444, 446

Examination—scope 2... 00... cee cece ccc teen ee cence ene ve ne 220)

Orders directing payment or delivery of property ........ eae 264

Right: tO Costs: ts 6.:5 sna raeads Meets MASA RG Ga ON Ros Sa RE 457

Supplementary proceedings against ........... 00. e cece e ee eee 104

Witness fees—right to ......... aiiraaces eo Grkemrs ae skate a sale aise . 73

THIRD PARTY ORDERS —

Affidavit—allegations as to debtor’s residence ............-.0. 149
Allegations as to execution .............. cess eee eae eee D4
Allegations as to indebtedness or property ................ 149
Information and belief ........ 6... cece ce tee eee 152
For—statutory provisions ..........00e. eee ee Giisaw oeagie V4s
Allegations of authority in deponent .......... Pebowsion sian lot

Against administrators ........ aiinse lau Sk Geabshannie. on aeie wen eisanncganh tae 104

Against: CXECUCOTS. ost saiccawses aeiew G6 eee dee Hees Reese 14.

Death of judgment debtor—effect .......... cece cece eee 106

Fiscal officers as subject to .... ccc cece cece cee eet eee eens 105

Grounds generally ............5+ Sg teins es acisbehnce gh eraseva Gnesi he's ft

Indebtedness to debtor—necessity ....... sings 5 gui ee Re ares wetwae 68

Necessity of examination of debtor ......... 0... cece eee e eee ee 6s

Pendency of action by creditor against third person as defeating

Tight COL OF de si spc Vis, SSE es Reh eras Ont eho Se Said Migs DEE oe

Property of debtor—Necessity 2.0... cc cece cece eect tenets 68

Receivership-effect: ON «s496s00a0i oo emer cece sania cena bene caus Gy

Subsequent return of execution—effect 1.0.0... 6... eee «oe
GENERAL INDEX. 655

PAGE
TIME — '
Insufficient period for compliance with order—effect .......... 383
Period before return day .......... 00 cece cence eee e eens anaes 175
For return: of: execution: ..siisws ve eww resmneess thaw ews awe seats 119
TITLE —
Of receiver—to what property .......... cece eee eee eee eee 316-352
Date Of acCMal. oh ta iwidAcac tahini neue dew grede 307
See also RECEIVER.
TRANSFERS —
Attack by receiver for fraud .......... SoS Diaal ecient eee 315-354
TRESPASS —
ACtIONS for by HeCciver wine denna nase de Stew sg eee y Se aN ceeee. SUL
TRUSTS —
As subject to garnishee ...... Haisewt es CS Pee peels a aeons es 23
TRUST FUNDS —
Exemption in supplementary proceedings ................ 240-242
UNDERTAKINGS —
By debtor arrested on warrant for examination ....... eevee 74, 75
Arrested under writ of attachment for contempt ...... 422, 424
Of receiver—requisites ...... ccc cee ee eee cece cette eee eens 314
See also Bonps.
UNFAIR CONDUCT —
As excuse for contempt ......ceecceeccccc tect ene tees .. 391-393
UNFAIR REFEREE —
Effect on contempt proceedings ..........0...e eee eeee orate a Hers 382
UNLIQUIDATED CLAIMS —
Right to reach in supplementary proceedings ..........--...... 236
U. S. COURT FINES — :
Supplementary proceedings ON oo... see eee cece eee ee eee eee ol
VACATION —
Of garnishee execution ...... ccc cece eee e eee eee e tee eeeees 41, 45
Of orders—grounds ......... ec ee eee cece tet eee eee 188-194
Waiver by aches: 35.2% go's eeeaienackgtes «Seu eo y's eine ee acca 197

Who may apply sc<.ssow ee-e dee ese sass eons eee geaaeausaus 186
656 GENERAL INDEX.

PAGE
VENUE —
Appeals: cassie eeasiead's ov news ieee hea sso eeew ew eee web eG seek es 207
VESTING —
OF ti€T@: AN PECEIVET oy areca ce Recta. S La un eels eRe we aS 316-352
See also RECEIVERS.
VIOLATION —
Of injunction as contempt ............+.e0 eee dgiinacs Savane: 396-407
See also CONTEMPT AND INJUNCTION,
VIOLENCE —
By receiver in taking property .....ee eee cece eee ee ene saigies OO
WAGES —
As subject to garnishee ..........--000- Hen osee evans ss ly at
Definition, sg cges ves weniy oa sarees Sede aa eras Se coos 18
Effect of reduction on garnishee ......... cweve eee ee euaew eens: SO

See also EARNINGS AND SALARY.

WAGONS —
Exemption in supplementary proceedings .....e.ceceeceeeceones

WAIVER —
Appeals from garnishee orders ...........-0 Weivioig es HOE BINe. ae
Of jurisdictional defects 2.0.0... ccc ce eee eee eect ees
Of referee's Oath: 2. ncewngw-e ge eepian anya CP GAYE Chg CORE Re
Of service of O©ders. 65 keosi ees peed see okies ess wewetes do ke ee ase tahe

WARRANT OF ARREST —
Service—statutory provisions .......... Rat REARS ads seseene

WARRANT FOR EXAMINATION —

Affidavit—statutory provisions 1... .... cece eee cece ee eee sees

TGP =SSUMMCLEN CY? — ca aeiiasca'e eiois Geer actctrad iidige h Mka. Gunna oe as belgue eae sv
Against whom available 1.0.0.0... 0c cece eee e eee e ce nane
Independent: proceeding ccc coascaucwwg said sues space ace aielete
Requirements in general ..........  mihiais emp pcas eqacs tees Soave
Requisites—statutory provisions .... 6.66. eee cee eee 74,
Undertaking on—requisites 2.0.0... cc eee eee eee ne eee
Vacation .....e-e-eee ae Ses teen oie id NOS Sree Sh Run ee Bagel ee

WATCH —
Exemption in supplementary procecdings ..........ceeeee eee

249

56
196
211
178

173

154
155
75
75
172
172
GENERAL INDEX. 657

PAGE
WIDOW —
Exemptions .........0.. eee eee Ogee reaseuaegaer Sito ea AD
WITNESSES —
Cannot compel attendance by order ...........-0. 0c cece eee «- 215
Contempt—evasive ANSWCYS 1.6... cece eee cece cent e eens 410
RREMUSA] HO ANSWER \ svete 0 oe. aoialeterd, Hew hood min ea dnatelede aX 408-410
Refusal to sign testimony .......... 06 cece cece teens 413
Deposition. without state ce sice cee sige te cae wea sae nase es 226
Examination—incrimination . 0.0.0... cee cc ee eee -. 223
Necessity of examination of debtor ............00 cece eee 214
Privilege ....... BS segemiah Bacay See BRNO rea Rarer haat RN a SMe eee cer 222
SCOPE ares. o 8 ssi tiene eben Peat n sd amu eet da daeys 220-223
Exemption from service of orders for examination ............ 174
How attendance enforced ........ 0.0.06 cece cence cet e nee 213
Oath=necessity: asec ndes eee dae 1 Aw sie an Oia Eee a Rees 215
Refusal to testify—excise ©. 0... cee cee eee enn eeee 388
Signing testimony—necessity sseicsee snes ene deste eien awe 224
WITNESS’ FEES —
AMOUNG fi/scsc2 gunn ale dies Hoa Da Set daas eas seta s ce aeils bleraioee ae 5
Third party as entitled to ...... cc cece ec ee eect cette ee nnenee 73
WORKING TEAM —
HEROMUP tL ON’ — accierd spuestiveresana Sale ayer eaN i ysee Soyer te erie a epee Be a) Sheet aya eaters 248
WRIT OF ATTACHMENT —
Notice of application .......... ccc eee cee eee eee eens 425
Punishment for contempt—right to ..................008. 422-425
Service of ...... aye So ance aviacs fovbiKieaene Oe aed Cie ea sceteca yes wee a -bicpage 422, 425
INDEX OF FORMS

PAGE
ACCOUNT —
Of receiver (NO. 64)0 6 ia cece skeen ee ain ends sige eaareinn seeeee. 602
Verification. (No: 64). se.cccs eames acta cscs oaks a eede sates 603
ACKNOWLEDGMENT —
Of undertaking (No. 25) co... cece eee cee tenes ween 531
t
AFFIDAVIT — ‘
For garnishee execution—court not of record (No. 1) ........ 473
For order for garnishee execution (No. 3) .....-..-e eee ee eeee 477
Appointing receiver (No. 52) ©... 0... cece eee cee eee 580
Committing for criminal contempt (No. 39) ............-. 558
For costs to creditor (No. 69) ........ eee eee ee eee ee 610
For costs to debtor (No. 72) ..... cece eee eens 614
Directing delivery of property to receiver or sheriff (No. 37) 554
Dismissing proceedings for unreasonable delay (No. 66) .... 606
For examination of debtor after return of execution—court of
record (No. 13) ...... aes hs Pa hes G Mad bias Bee eae teeies 4
For examination of debtor after return of execution—court
not of record (No. 10) 2.2... .. cc eee eee 492
For examination of debtor before return of execution (No. 15) 504
For examination of debtor on order for costs (No. 17) .... 510
For examination of third person (No. 19) ................ 515
To show cause for civil contempt (No. 43) ................ 564
To show cause for discontinuance of proceedings (No. 75) .. 618
For second order for examination of debtor (No. 21) .......... 520
For vacation of order for examination (No. 33) ............ 547
For warrant for examination ........... 20sec eee eee eee nee 522
For writ of attachment for contempt (No. 43) ................ 564
Of service of affidavit and order for examination of debtor (No.
DOV cee bapeeh tot alae a Men Naa Ab teeeeast antic ot esos matt 498
Of verification of receiver’s inventory (No. 57) ............ 589
On motion to vacate garnishee execution (No. 7) .............. 486
ANSWERS —

To interrogatories in contempt proceedings (No. 47) ........ 571

659
660 INDEX OF FORMS.

PAGE
APPOINTMENT, OF RECEIVER —
Affidavit for (No. 52) ......... 2.008 tee aehapevasrs bie Sts di elaisaorete v2? DOO!
Notice of application (No. 53) ....see see eenees eeetssigeeess O8L
APPROVAL —
Of receiver’s bond (No. 55) .ececece cece cece cee eeee eeecceeee 586
ARREST —
Affidavit for warrant for examination (No. 22) ......... sees 522
Warrant for examination (No. 23) ..ecssceeeceeee ede eesieise wel O20
See also CoNTEMPT.
BOND —
Of receiver (No. 55) .........005 Bra elaletunseusierotatas a9. ara:Srsiejuisie ss OOD!
Of receiver—approval (No. 55) ..cccceseceeseccccccccccccecee 586

See also UNDERTAKING.

CERTIFICATE —
On certified copy order of appointment of referee (No. 54) .... 584
Of referee as to proceedings (No. 40) ...ceecececccccsecccceee 560

COMPLAINT —
In action against employer for dishonor of garnishee execution
(NG: 6) cag esteace crane asanoneta sade weaeea sasamwer ets 484
In action by receiver (No. 60) .....--...eeeeee Wieiiecets ie Ql e a sie DUO
CONTEMPT —

Affidavit for order committing for criminal contempt (No. 39) .. 558
For order to show cause for punishment for civil contempt

(No: 423\) pea ceasinates eae ee Meee Leta Soler ae 564
For writ of attachment for civil contempt (No. 43) ........ 564
Interrogatories (No. 46) 1.0.6... cee e eee e eee eee eect eee eee eee 570
Answers to interrogatories (No. 47) ........ cece cece eee eee 571
Final order committing for civil contempt (No. 48) .......... 572
In presence of judge—order committing for criminal contempt
(No. 42) ........ MUG Ra tame Sa RAMORUM Oe mene 563
Order committing for criminal contempt before referee (No. 4) .. 561
To show cause for (No. 50) 2.2.22... 0 eee eee eee ewes 576

Committing for upon order to show cause (No. 51) ........ 577
Warrant of attachment for civil contempt (No. 44) ............ 566
For commitment after writ of attachment (No. 49) ........ 574

cosTSs —
Affidavit for order allowing to creditor (No. 69) ..........--0008. 610
For order allowing to debtor (No. 72) ...........0. weee. 614
INDEX OF FORMS. 661
as PAGE
COSTS—continued.
Notice of motion for to creditor (No. 70) ........-+seeeee sigave G12
Notice of motion for to debtor (No. 73) 1.0... eee eee cece ees 616
Order allowing to creditor (No. 71) ......ee cece ee cree ee eres 613
Order allowing to debtor (No. 74) .........-- Sith ee wnel Eawuea aces 617
DEMAND —
Of possession of property by receiver (No. 56) ........0.---- O56
DISCHARGE —
Of receiver—order for (No. 65) ..ceceeees cece cee cree teeee we. 604
DISCONTINUANCE OF PROCEEDINGS —
Affidavit: for order (NO: 75): s.vesseawees ac anew secs sews «ewe 618
Ordér: for (NG:° 78) css cease sees io caees aeemisseedees wate 620
Order to show cause for (No. 75) ...... cece eee ee ee eee eee 619
DISMISSAL OF PROCEEDINGS —
Affidavit: for (NGOs G6) pse8 524.5 wateles axed oasnaere ou aeees 3 x« GOG
Notice of motion for (No. 67) ........ 0 cece cee ee ee eee +s. 608
Order for (N6.68)> saves cise cas Ose ceemute ste ia Ses ARR SE eY -- 609
DOUBTFUL CLAIMS —
Petition to ‘sell. (No: 61) so cvsctele saa gediegcaidemax nn aanauas widen DIS
Order granting leave to sell (No. 62) .............0 eee eee 600
Notice of sale of (No: 68) ac..scc cee dec das ae seek dew cee ee 601
EXAMINATION —
Certificate of referee as to proceedings on (No. 40) ............ 560
Referee’s minutes on (No. 31) ...cceee cece ee cee eee eee 542
EXAMINATION OF DEBTOR —
Affidavit for order after return of execution—court of record (No.
V3): osseda sa eres Yeiee a ses bed gag ied ede oc wa wah a cases 499
For order after return of execution—court not of record (No.
ON. peta aie ab edn ee eieeaemnsaaaeet oie Toncomiatonss 492
For order before return of execution (No. 15) ............ 504
For order for examination on order for costs (No. 17) .... 510
For order vacating order for (No. 33) .............. ttee O47
For second order (No. 21) ..cc cece cece eee eee e eee oe eve B20
Order for after return of execution—court of record (No. 14) .. 502
For after return of execution—court not of record (No. 11) .. 495
For before return of execution (No. 16) ............... was. DOF
For on order for costs (No. 18) ...... cece eee eee cece eee 512
Vacating order for (No. 35) .......... WSIS B.6-4R ca. 04 .. 550
662 INDEX OF FORMS,

PAGE
EXAMINATION OF THIRD PERSONS —
Affidavit. for order (Nn; 19) sces seeds eeecw vena ee cna ee 515
Order ‘for (No: 20) cncacwusas cet aner td iaeae canadian: epanauenne 518
EXECUTION —
Garnishee—court of record (No. 5)... 2. cee eee 481
Court not of record (No. 2) ..... cece ee eee eee 475
FINAL ORDER —
Commitment for contempt (No. 48) .......... cece ee eee tens S72
GARNISHEE —
Affidavit for execution—court not of record (No.1) ............ 473
For order for garnishee execution (No. 3) ......-+-...0- 477
Complaint in action against employer (No. 6) .........00-5. 484
Execution—court of record (No. 5) ...ceccs cee cess cece ceeees 481
Court not of record (No. 2) .... cc ee cece eee eee e nee 475
Notice of motion to vacate garnishee execution (No. 8) ........ 488
Order for execution (No. 4) ........ eee eee eee eee a+. 479
Order on motion to vacate garnishee execution (No. 9) ........ 490
INDORSEMENT —
For undertaking under writ of attachment (No, 44) .........- 567
INTERROGATORIES —
In contempt proceedings (No. 46) ..cceeeeee cece ee ee cece eee 570
Answers to (NG. 47). ...casqek@ae esas teaciews cedeere ee s bam 571
INVENTORY —
OF <Peciver ING: 57) -aisilecs ws duesdudia as sieved ede mgepaed 8. a seoeuere ave cereuec 588
JUSTIFICATION —
OF sureties: “(No 25) sax fi paced s Shee encwieeeee a ap hee eds 531
LEAVE TO SUE—
Petition by receiver (No. 58) 2.0... cece cece c cece cette ences 590
Order permitting receiver (No. 59) .......... cece cece eee eee -- 593
NOTICE —
Application for appointment of receiver (No. 53) ............ 581
Of motion for costs to creditor (No. 70) ....... ce eee eee eee 612
Motion for costs to debtor (No. 73) .. 2... cc cece cece cece eee eee 616
For dismissal of proceedings (No. 67) .......-...0esee een 608
To vacate order for examination (No. 34) ............000. 548
To vacate garnishee execution (No. 8) ........ 0... 00 eee ee 488

Sale of doubtful claims (No. 63) ........ ADR MSHA OR ELT ERS Oe 601
INDEX OF FORMS. 663
PAGE
OATH —
Of referee, (No. 30) sssavccs ees cvs dwar sc ewen cease sewe vaca ee O41
ORDER —
Allowing costs to creditor (No. 71) ........ 2. bees eee ee eens 613
Allowing costs to debtor (No. 74) 2.0... 0. eee cece cece eee eee 617
Appointment of receiver (No. 54) ...... ce cece eee eee ee 582
Arrest instead of order for examination (No. 23) ............ 925
Committing for civil contempt upon order to show cause (No. 51) 577
For criminal contempt before referee (No. 41) .......... oul
For criminal contempt in presence of judge (No. 42) ...... 563
Discontinuing proceedings (No. 76) ........... Scab ake s conesens 620
Dismissal of proceedings (No. 68) 1.2.0... cee eee eee -.. 609
For delivery of property to receiver or sheriff (No. 38) ......-- 556
For examination of debtor after return of execution—court of
record: (Nos 14): awiswieus hein nai sea ease bee homage ee 502
Of debtor after return of execution—court not of record (No.
LY) wae, Rea eeu Pes Meek Ghee DOA SeS Hes Skee H eR ope eee 495
Of debtor before return of execution (No. 16) ............ 5OT
Of debtor on order for costs (No. 18) ............0.2.-. ale
Of third persons (No. 20) 2... .. ec cece eee eee 518
For final order committing for contempt (Na. 48) ............ 572
For garnishee execution (No. 4) 2.0.0... ee cece eee ee 479
For undertaking by debtor arrested for examination (No. 24) 528
For vacation of garnishee execution (No. 9) 2.2.2.2... 2.00004. 490
Of order for examination (No. 35) .......... 0000 cece 550
Permission for suit by receiver (No. 59) ................ 00000. 595
Permitting payment by third person to sheriff (No. 36) ........ 552
To show cause for civil contempt (No. 50) .................2.. 576
For commitment for criminal contempt (No. 39) .......... 559
For delivery of property (No. 387) ..................000. 555
For discontinuance of proceedings (No. 75) ..........0.0. 619
PAYMENT —
Order permitting third person to pay to sheriff (No. 36) ........ 552
PETITION —
For leave to receiver to sue (No. 58) ...... ee eee cece eee eee 590
To sell doubtful claims (No. 61) ........ 00.0... ccc ee ee eee ee 598
Verification of (No. 58) .... cece eee ce cece eee cece eeee 592
PROCEEDINGS ON EXAMINATION —
Certificate of referee as to (No. AD). sna sivech core mesea a cman gale ety wi .. 560

Referee’s minutes (No. 31) ...... cece eee eee ee cee eee

» o42
664 INDEX OF FORMS.

 

PAGE
RECEIVER —
Account: of -UNo. 64): ava ssvarice gcayees acces sea e des ded seas 602
Affidavit for appointment (No. 52) wo... ee eee eee eee eee 580
Bond. Of «CNO2 G5) wx ses jo SslacRented a Snela eee dte bles bade eas Sleutee 585
Complaint in action by (No. 60)... .. cee cece ee cee eee ee eee DIS
Demand of possession of property (No. 56) ..............000. 586
inventery: ‘by (No. 07). avagnesgea pid pase awe oles eek deroantge IOS
Notice of application for appointment (No. 53) ..........-... os
Order’ appointing (No. 54): aas.c.neeeecey neve ese nea nes uses 582
Discharging’ (NO, 65) ssaweieveseunsaseeua esas ohawe veoens 604
Granting leave to sell doubtful claims (No. 62) ............ 600
Granting leave to sue (No. 59) .... eee eee ee eee eee 593
Petition for leave to sue (No. 58) 2... cece eee cece ee eee cane 590
To sell doubtful claims (No. 61) co... cece cece ee ee ee eee 598
REFEREE —
Certificate as to proceedings (No. 40) ........--... Sara e sy 560
Minutes of proceedings (No, 31) 2.0... 0... ee ee cee eee eee 542
Oath. of (NO; 30) ac cesiweenees stead cugs dee ks Shean eee aes 541
Neport.Of (CNG. 33) scccaeet oe dage Sead acc awateund katbeeaes eee 544
Subpoena of for witnesses (No. 28) 22.0.0... ec ee ee ween ee 537
Sunumons of to compel attendance of debtor (No. 27) ........ 535
REPORT —
Of releree: (CNG, B2)) veks vacates aaah bewasgayseaedewen awwe oes 544
RETURN OF SHERIFF —
On warrant of attachment (No. 44) .... eee cece eee ee cee 568
SALE —
Doubtful claims—notice (No. 63) .... cc cee eee ee eee wsiscow-e s, COL

Doubtful claims—order granting leave to receiver (No. 62) .. 600

SECOND EXAMINATION —

Affidavit for (No. 21) ........ cece eee Ton aMeeeaoasaee siecauera: O20:
SERVICE —
Affidavit of service and order for examination of debtor
GINOS VAD): « dokwisunuee aanqawer eg aavees oie neste wie a aieale tec wee 49S
SUBPOENA —

Of referee or judge for witnesses (No. 28) ...........0.0e0000. 537

SUBPOENA DUCES TECUM —
Of referee or judge (No. 29) ....cccc cece ee weet eee eect eens «+. 589
INDEX OF FORMS. 665

PAGE
SUMMONS —
Of referee to compel attendance of debtor (No. 27) .......eeeee 535
UNDERTAKING —
Acknowledgment of (No. 25) ..csccee ccc c ccc eee ee eteeeeneee 531
On arrest under warrant for examination (No. 25) .........505 530
Justification of sureties (No. 25) ........6-. cee ee eee eee 531

Under warrant of arrest for contempt (No. 45) .cecesceee-- SOY
See also Bonp.

VERIFICATION —
Account of receiver (No. G4) .oceeeceec ee ecaee aiete. 5 atin mae 6 armel 603
Of inventory by receiver (No. 57) 22... sce ee eee eee eet eee 589
WARRANT —
Commitment for contempt (No. 49) .. cee... cece eee soeceee O74
Of debtor for refusal to give undertaking (No. 26) ........ 533
For examination of deter (30, 22) cccaas tedden 6544 s00R0 9 ue §25
For examination—affidavit for (No. 22) woe. ce eee eee ee ee eee 522
Order for undertaking (No. 24) co... eee eee cece eee eee eee 528
Undertaking under (NO. 25) ssccicsacuirnes tee same eewauiee eee 530
WARRANT OF ATTACHMENT —
Arrest of debtor for civil contempt (No. 44) .............00- 506
Indorsement permitting undertaking (No. 44) ...........0.... S67
Return of sheriff when undertaking given (No. 44) .........20. 568
Where no undertaking (No. 44) 0... .. 0. ec cece eee eens 568

Undertaking under (No. 45) ....... Sos iavedh We tas aaa akan ares 569
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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