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THE 
 
 LAW AND PRACTICE 
 
 IN 
 
 PROCEEDINGS 
 
 SUPPLEMENTARY TO EXECUTION, 
 
 UNDER THE NEW YORK CODE, 
 
 AND 
 
 Adapted to all the Other States having Similar Practice, 
 Including Decisions to July, 1886. 
 
 WITH FORMS. 
 
 THIRD EDITION, 
 
 Revised and Enlarged. 
 
 DANIEL S. R^DLE 
 
 AND 
 
 E. FITCH BULLARD. 
 
 NEW YORK : 
 L. K. STROUSE & CO., Publishers, 
 
 95 Nassau Street. 
 1886. 
 
INTRODUCTION TO THE THIRD EDITION. 
 
 It appears advisable to issue a new and revised edi- 
 tion of the work on Supplementary Proceedings. The 
 first edition was brought out nearly twenty years ago. 
 Since then various amendments and changes were made 
 in the statute, which finally culminated in 1880 in the 
 enactment of that part of the Code of Civil Procedure 
 which relates to these proceedings and superseded the 
 provisions of the former Code on the same subject. 
 The statute contained in the present Code has been 
 recast in a new form, provisions of the old law have 
 been modified, and new ones added with a view of in- 
 creasing the efiSciency of the remedy and rendering it 
 more in harmony with other portions of civil practice, 
 and with the law protecting the rights of property. It 
 is safe to say that no remedy embraced within the Code 
 of Civil Procedure has been more frequently before the 
 courts and judges, or received more frequent attention, 
 than these proceedings in their multifarious phases and 
 provisions. As a result, the books of judicial reports 
 are full of decisions on this subject — some crude and 
 offhand, others learnedly and thoroughly considered. 
 Several years ago, and since the present Code went into 
 effect, a second edition of the work was issued. It was, 
 however, intended rather as a supplement to the first 
 edition. It included the provisions of the new statute, 
 together with the decisions made thereunder. It did 
 not aim at a revision of the first edition and the elimi- 
 nation of what had become obsolete law by the adoption 
 
IV " INTRODUCTION TO THE THIRD EDITION. 
 
 of the Code of Civil Procedure ; whereas the present 
 edition seeks to give the law as it now exists. It is, 
 however, worthy of notice, that no important provision 
 of this remedy in the former Code has been repealed, 
 but the whole of it has been substantially reproduced 
 in the present Code, with such modification as experi- 
 ence and the opinions of the courts pointed out. 
 
 It has also been deemed advisable to refer to the 
 statutes of other States in the Union which authorize 
 this or a similar remedy, and the decisions of the courts 
 thereupon. But it is not intended to give a complete 
 resume of the statutes of the other States, or even a 
 complete list or citation of the numerous decisions of 
 the other States. That would have necessitated a volume 
 beyond the present plan. Yet quite a full citation of 
 decisions of the other States bearing on this subject 
 will be found scattered through this edition. The 
 general provisions of these proceedings are nearly alike 
 in all the States which have adopted them, and the 
 decisions under them are, in principle, usually like those 
 of the State of New York in similar provisions. There 
 is, in fact, a remarkable harmony between the judicial 
 determinations of the different States upon this subject, 
 notwithstanding the diversity of phraseology and pro- 
 visions contained in the several statutes. All the 
 States which adopted these remedies found them to 
 conform well to the purpose of their enactment — fur- 
 nishing a cheap summary and efficient substitute for 
 the old bill of discovery — except the State of Florida, 
 which, after trying them for several years, abolished 
 them and resorted to the old law ; the State of Penn- 
 sylvania, in which the Supreme Court held a badly 
 drawn act on the subject unconstitutional, and in Mich- 
 igan, where the Supreme Court denounced the statute 
 on that subject as a piece of clumsy legislation and as 
 inadequate to protect the rights of third persons. 
 
INTRODUCTION TO THE THIRD EDITION. "V 
 
 It is often said that these Supplementary Proceedings 
 are fruitless ; that nothing comes out of them. That is 
 generally the fault of the practitioner. In New York, 
 where the rule is that any judgment creditor is entitled 
 to prosecute proceedings against his debtor in any case, 
 this remedy is often resorted to where it is evident that 
 the judgment debtor has no property, but merely as 
 an experiment to try to frighten or harass him to pay 
 something on the judgment or otherwise. Another 
 difficulty in the way is the practice of examining 
 debtors not in the presence of the judge, but apart, or 
 in a separate room, where the sanctity of his oath rests 
 lightly on him, and he does not hesitate to prevaricate, 
 conceal, or directly falsify in regard to his property. 
 It is to be laid down as a rule that where a person delib- 
 erately secretes his property beyond the reach of his 
 creditors, he is prepared to swear sufficiently to main- 
 tain that secrecy, if possible. 
 
 D. S. RIDDLE. 
 
PREFACE. 
 
 I OFFER to the profession a Treatise on the Rules, 
 Practice, and Principles of Proceedings Supplementary 
 to Execution. My only purpose is to supply to some 
 extent the present and universal need of a thorough 
 and reliable work on that subject ; and if this shall in 
 any degree accomplish that result, I shall consider my- 
 self amply compensated. 
 
 The principles which lie at the foundation of these 
 proceedings are as old as the jurisprudence of the 
 State ; but the remedy by which those principles are 
 applied and made effectual is solely the creation of the 
 Code of Procedure. Some of its provisions are crude, 
 and have as yet received little or no judicial notice ; 
 while others have been variously construed in the dif- 
 ferent courts and districts of the State. These facts 
 increase the labor of compiling a systematic and com- 
 prehensive work on this subject. 
 
 As to the proceedings themselves, they are simply 
 proceedings in the original action — as much so as pro- 
 visional remedies, for instance — though, like them, they 
 may not be deemed an ordinary part of it. The Act 
 which created this remedy has merely enlarged the ca- 
 pacity of actions by endowing them with a new attri- 
 bute, an equitable power to aid the execution at law in 
 the enforcement of judgments. The investing of ac- 
 tions with this attribute was the natural consequence 
 of the revolution which swept away the old system of 
 practice, and united both legal and equitable remedies 
 
VUl PREFACE. 
 
 in the same action. Hence, all orders, etc., made in 
 supplementary proceedings are really made in the ac- 
 tion itself. 
 
 The forms added to this treatise have been carefully 
 selected and prepared with a view to their usefulness, 
 and, as general precedents, they may be relied upon. I 
 do not, however, offer them as so ■m.^Viy formulas, to be 
 followed in all cases, but merely as general directions, 
 which may be varied to suit any particular instance. 
 They are placed by themselves, with ample marginal 
 notes for reference and explanation. 
 
 Hoping that this work may, to some extent at least, 
 
 supply the present want of the Practice, I may yet 
 
 say : 
 
 " si quid novisti rectius istis, 
 Candidas imperii, sinon, his utere mecum." 
 
 D. S. R. 
 
 128 Broadway, New York, ) 
 June 1, 1886. j 
 
 EXPLANATORY NOTE. 
 
 After this work was mainly prepared for the press, 
 and in June, 1886, Mr. Riddle's health failed, when the 
 matter was placed in my hands for review and final 
 completion. 
 
 It is believed it will save the profession much labor 
 in its department of practice. 
 
 Saratoga Springs, N. Y., \ 
 September I, 1886. j 
 
 Edward Fitch Bullard. 
 
INTRODUCTION TO FIRST EDITION. 
 
 PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 
 
 These proceedings are created by chap. 2, title g, 
 part 2, of the Code of Procedure. Their own name is 
 their best definition. Their object is to furnish the 
 judgment creditor with a cheap and summary mode of 
 reaching such property of his debtor as could not or 
 cannot be reached by execution at law. But the rights 
 of third parties cannot be determined by these proceed- 
 ings. Rodman v. Henry, 17 iV. Y. R., 482. 
 
 Creditor's Bill. 
 
 Supplementary proceedings, especially those insti- 
 tuted after return of execution, are a substitute for the 
 ordinary creditor's bill of the Revised Statutes — that 
 is, when such bill was filed merely against the judg- 
 ment debtor and third persons to discover property be- 
 longing to the former, and not also against third per- 
 sons to set aside an assignment, or transfer of property 
 on the ground of fraud. Hence, the rules of the ordi- 
 nary creditor's bill govern in these proceedings, so far 
 as such rules are not altered by the Code or the prac- 
 tice under it. Sale v. Lawson, 4 Sand/., 718; Orr's 
 Case, 2 Abb., 4$^ ; Owen v. Dupignac, 9 Id., 180. It 
 cannot be amiss, therefore, to give at the outset a 
 brief outline of the rules and practice in the creditor's 
 bill. 
 
 After the return of an execution unsatisfied in whole 
 
X PRIORITY — LIEN. 
 
 or part, and after the time limited for its return, the 
 judgment creditor filed his bill in the Court of Chan- 
 cery against the debtor. This bill was filed under 2 
 R. S., p. 174, §§ 38 and 39. It was a complaint in equity, 
 and, as all such, long and cumbersome. It stated, 
 among other things, the recovery of the judgment, its 
 non-payment, the issue and return of the execution 
 unsatisfied ; and then set forth at large every imagina- 
 ble kind of equitable property and interests as belong- 
 ing to the defendant, and in his possession, or under 
 his control. It ended with a prayer that the defendant 
 be compelled to make discovery of his property on 
 oath ; that all dispositions of property made by him for 
 his own benefit be set aside ; that he pay the judgment 
 with all costs ; that process of subpoena and injunction 
 issue against him, and a receiver of his property be ap- 
 pointed. 
 
 This complaint was filed in Court, and a subpoena 
 answering to the summons under the Code was ob- 
 tained from the Register or Clerk of the Court, and 
 served on the defendant. The suit was then com- 
 menced ; or, as it was technically called, the bill was 
 filed. 
 
 Priority. 
 
 He who, after filing his bill, obtained the first service 
 of the subpoena, or made a bona fide attempt to serve 
 the same on the debtor, had his suit first commenced, 
 and had priority of right to the property. Boynton v. 
 Rawson, i Clark, 584; Corning v. White, 2 Paige, 568; 
 Fitch V. Smith, 10 Paige, 9. 
 
 Lien. 
 
 By thus filing a bill and serving process, the creditor 
 gained a lien on all the equitable assets of the debtor, 
 so that if the latter afterward assigned or transferred 
 such assets, it was subject to this lien, which was o-ood 
 
INJUNCTION — RECEIVER — REFERENCE. XI 
 
 against all the world. The Insurance Company v. 
 Power, 3 Id., 365; Hayden v. Bucklin, 9 Id., 512; 
 Roberts v. The Albany, etc. R. R. Co., 25 Barb., 662. 
 But no lien was acquired by this means on leviable 
 property. Lansing, etc. v. Easton, 7 Paige, 364. 
 
 Injunction. 
 
 The creditor also sued out an injunction against the 
 defendant to prevent him from disposing of his property. 
 This injunction was generally obtained and served with 
 the subpoena. The return of the execution unsatisfied 
 presupposed that if the debtor had any property it 
 would be misapplied ; and therefore the complainant 
 was entitled to an injunction in the first instance. 
 Bloodgood V. Clark, 4 Id., 577. 
 Receiver. 
 
 The complainant then upon notice applied to the 
 Court for a receiver of the debtor's property and for an 
 order that he deliver the same upon oath to the receiver. 
 This application was granted as a matter of course, if 
 the equity of the creditor's bill was not denied on the 
 hearing. Id. Nor was it any objection to the appoint- 
 ment of a receiver that the debtor denied that he had 
 any property. Browning v. Bettis, 8 Id., 568. In fact, 
 when an injunction had been granted, the Court made 
 it the duty of the complainant to move for a receiver 
 to take care of the property during the litigation. 
 Osborn v. Heyer, 2 Id., 342 ; Bloodgood v. Clark, supra . 
 I Bard. Ch. Pr., 668. 
 Reference. 
 
 It was usually referred to a master in chancery either 
 to appoint a receiver or to report a suitable person for 
 that office, and to receive from the debtor an assign- 
 ment and delivery upon oath of all his property, which 
 was in his possession or under his control. The master 
 was authorized to examine him and witnesses for the 
 
Xii REFERENCE. 
 
 purpose of ascertaining the nature, value, situation and 
 amount of the debtor's property, so as to determine 
 what person to appoint receiver, what security to re- 
 quire ; to compel the debtor to deliver to the receiver 
 the whole of his property in his possession or under his 
 control, and to enable the latter to take the necessary 
 steps to recover all debts due, and all property in the 
 hands of third persons belonging to the debtor. The 
 inquiry before the master was confined to these objects, 
 for this was its sole aim ; unless when the debtor's ex- 
 amination was taken as a substitute for an answer to 
 the bill by stipulation under the rule, when it extended 
 to every averment in the complaint. Vide Browning 
 V. Bettis, supra , i Barb. Ch. Pr., 671. The bona fides 
 of a transfer or assignment to third persons who claimed 
 under it could not be inquired into, although it was 
 plainly fraudulent ; because the object of this proceeding 
 was to obtain a delivery of the debtor's property to the 
 receiver, not to elicit evidence to enable the complain- 
 ant to sustain his suit ; and the debtor could not deliver 
 up property with the ownership and possession of which 
 he had parted, however fraudulently. And the master 
 had no power to try the question of fraud. The exam- 
 ination was therefore limited to discover what property 
 belonged to the debtor, and was in his possession, or 
 under his control. 
 
 But within this limit a large liberty was allowed to the 
 investigation. It was held that pubhc policy required 
 such a course to be pursued ; that fraudulent debtors 
 could not cover up their property by a mere general 
 affidavit that they had nothing ; and that an honest 
 debtor had nothing to fear from a thorough investiga- 
 tion of his pecuniary condition. The examination was 
 permitted to extend to a time anterior to the filing of the 
 bill, but not subsequent to it ; and to all kinds of property 
 belonging to the debtor to which the receiver would be 
 
REFERENCE. xiii 
 
 entitled under the order appointing him, no matter in 
 whose hands it might be. If the debtor claimed that 
 any of his property was exempt from execution, he was 
 compelled to give a particular account, and the value 
 of such property, to enable the master to determine 
 whether it was wholly exempt or not. When the cred- 
 itor filed the bill in aid of the execution, then he was 
 entitled to a discovery of all the real and personal prop- 
 erty which the debtor had at the time of docketing the 
 judgment, although it was subsequently assigned or 
 sold. Le Roy v. Rogers, 3 Paige, 234. Upon this in- 
 terlocutory proceeding, " the master decided what prop- 
 erty was shown to belong to the debtor, and in his posses- 
 sion or under his control, and directed him to deliver the 
 same to the receiver. If it was present, he ordered him to 
 deliver it on the spot. If not, and it consisted of evi- 
 dences of debt, personal ornaments, and like portable arti- 
 cles, the master ordered them to be brought to an ap- 
 pointed place at a specified time to be delivered to the 
 receiver in his presence or elsewhere. If the effects 
 were ponderous articles, as furniture, the master ap- 
 pointed a day and hour at the place where they were 
 situated, for the debtor to attend and deliver them to 
 the receiver, who came prepared with the means to take 
 them away. If under such order the debtor refused to 
 deliver the articles, the plaintiff in the suit (not the re- 
 ceiver) applied to the Court for an attachment against 
 the debtor as for contempt. On the hearing of the mo- 
 tion, the debtor, by way of appeal from the master's 
 order, was at liberty to show that the direction for the 
 delivery of all or any of the chattels was erroneous. 
 Unless he satisfied the Court of such error, process of 
 attachment issued." There was no occasion for the re- 
 ceiver to act, except under the specific order of the 
 Court. Dickinson v. Van' Tine, etc., i Sandf. S. Ct., 
 724. 
 
XIV ASSIGNMENT — NO RECEIVER. 
 
 Assignment, 
 
 The debtor was also required, under the direction of 
 the master, to execute to the receiver an assignment of 
 all his property, although the examination disclosed 
 none, and the appointment of itself, it was held, vested 
 in that officer all the personal property. Chipman v. 
 Sabbatan, 7 Paige, 47 ; Storm v. Waddell, 2 Sandf. CJi., 
 A^<:^A^; Porter v. WiUiams, i Code R.'{N. S.), 144. The 
 receiver, after completing his appointment by giving the 
 required bond,' became vested with all the equitable 
 property which the debtor owned at the date of the 
 commencement of the suit, and with all the leviable 
 property which he then owned, and still owned when 
 the appointment was made, except such as was exempt 
 by law from execution. Browning v. Bettis, supra. 
 
 The master also inquired whether other like proceed- 
 ings were pending against the debtor, or a receiver had 
 already been appointejd ; and if so, the complainant in 
 such suit was notified of the proceedings before the mas- 
 ter and the same receiver was appointed. 
 
 No Receiver. 
 
 If it appeared on the application, or in the proceeding 
 for the appointment of a receiver, that the property 
 sought to be reached consisted of a gross sum of money, 
 none was appointed, but the debtor was ordered to pay 
 it into Court to abide the final decree in that suit. 
 Edwards on Receivers, 12. This proceeding before the 
 master was summary. The complainant was required to 
 proceed with all reasonable dispatch, and complete the 
 examination of the debtor. The master had the power 
 to adjourn the reference from time to time, but not to 
 postpone it indefinitely, to be resumed at the pleasure of 
 the complainant. When the examination of the debtor 
 and witnesses was once closed, and the property assigned 
 and delivered, the master's power under the order of 
 
NO RECEIVER. Xv 
 
 reference was spent. If the creditor after that desired 
 a further examination or direction for the delivery of 
 property subsequently discovered, he could only obtain 
 it by applying to the Court on proper affidavits and no- 
 tice to the debtor. Hudson z/. Plets, ii Paige, i8o; 
 S. C, 3 N. Y. Leg. Obs., 120. 
 
 After the receiver had the possession of the debtor's 
 property, it remained in his care and custody until the 
 final decree in the suit, when it was appropriated pur- 
 suant thereto. 
 
 Thus it will be seen that supplementary proceedings 
 seek to accomplish by a few orders (the order of the 
 examination, and that which applies the property upon 
 judgment, directly, or through a receiver) all that could 
 be done by a suit before. In this only lies their superi- 
 ority to the creditor's bill. When, however, third persons 
 claim an adverse interest in the debtor's property, these 
 proceedings can give no other relief than the appoint- 
 ment of a receiver, and an injunction ; and here nothing 
 substantially has been gained over the creditor's bill, 
 except the injunction under § 299. 
 
CONTENTS. 
 
 PAGE 
 
 INTRODUCTION TO FIRST EDITION. i 
 
 Proceedings supplementary to execution i 
 
 INTRODUCTION TO THIRD EDITION. 8 
 CHAPTER I. 
 
 PROCEEDINGS TO COMPEL AN EXAMINATION OF THE JUDGMENT 
 DEBTOR, ETC. 
 
 Section I. The different kinds of remedies ii 
 
 2. Nature of the remedies, etc 14 
 
 Substitute for a creditor's bill 20 
 
 The title 23 
 
 s 3. What judges may entertain the proceedings. . 24 
 
 A justice of the Supreme Court 27 
 
 Other judges 29 
 
 County judges 30 
 
 ' Judges of the New York Court of Common Pleas. 32 
 
 4. By whom and against whom may the proceedings 
 
 be instituted ? 35 
 
 By whom 35 
 
 As to taxes 39 
 
 Against whom as judgment debtors 39 
 
 Married women 40 
 
 Joint debtors 40 
 
 Infant judgment debtors 41 
 
 Lunatics .... 41 
 
 Delinquent taxpayer 41 
 
 Foreign ministers, consuls, etc 42 
 
 Corporations. 42 
 
 Executors, etc 44 
 
 Trustees 45 
 
 As against bailees or debtors of judgment debtors. 47 
 
 Married woman 47 
 
 Infants 48 
 
 5. On what judgments and executions 51 
 
 To collect interest 56 
 
 Collection of taxes 56 
 
CONTENTS. 
 
 PAGE 
 
 On what execution 59 
 
 Voidable execution °° 
 
 Where returnable 67 
 
 Sixty days ^7 
 
 Waiver 7i 
 
 The return 72 
 
 Actually returned 73 
 
 Return of execution 75 
 
 Second return of execution 76 
 
 6. Within what time and in what county the proceed- 
 
 ings must be brought 76 
 
 Within what time 7^ 
 
 The warrant 79 
 
 Proceedings against third parties 79 
 
 In what county judgment debtor, etc., must attend. 80 
 
 Residence 82 
 
 Place of business 85 
 
 Warrant 86 
 
 Proceedings against third persons 86 
 
 7. The proof to obtain the order after return of execu- 
 
 tion 87 
 
 What facts and how proved 89 
 
 The order 98 
 
 Recitals gg 
 
 Mode of service 102 
 
 Where served 103 
 
 Waiver of proof. 104 
 
 8. Proof to obtain the order before return of execution. 104 
 
 Nature of 105 
 
 What to prove 106 
 
 Unjustly refusing iii 
 
 The order 115 
 
 g. The warrant, and the proof to obtain it 116 
 
 The proof 118 
 
 Security 121 
 
 The tribunal 121 
 
 The warrant 121 
 
 A warrant after the order has been made 122 
 
 The service of the warrant 122 
 
 10. Proof to obtain order to examine a third person .... 123 
 
 Proof J23 
 
 Notice J27 
 
 Order J27 
 
 Service of the order 127 
 
CONTENTS. xix 
 CHAPTER II. 
 
 PROCEEDINGS ON RETURN OF ORDER OR WARRANT. 
 
 Section i. Attendance for examination and appointment of 
 
 referee 12S 
 
 Appointment of referee 128 
 
 Wiio not to be referee 130 
 
 Ciianging referee 130 
 
 Tiie order j^o 
 
 Twofold order 131 
 
 Notice joj 
 
 Nature of tlie reference 132 
 
 The referee's duty and power 132 
 
 Proceedings before tlie referee — Adjournments. .. 135 
 
 Taking of evidence 136 
 
 2. Tlie oath of the referee 138 
 
 Waiver of oath 138 
 
 3. The examination — Adjournments 140 
 
 Re-examination 145 
 
 Concurrent remedies 145 
 
 In proceedings before return of execution 146 
 
 " on warrant of arrest 146 
 
 " " against a third party. .. ., 147 
 
 Adjournments 147 
 
 ' ' to examine witnesses 14S 
 
 4. The witnesses 151 
 
 The oath administered to a witness, etc 152 
 
 Production of books and papers 152 
 
 An attorney or counsel 154 
 
 Wife of judgment debtor 154 
 
 Commission 154 
 
 Witness's privilege 155 
 
 5. The extent of the inquiry 156 
 
 159 
 
 Examination of an attorney or counsel 164 
 
 The use of examination in actions, etc 169 
 
 6. How proceedings are discontinued or dismissed in 
 
 New York 171 
 
 Waiver of default 176 
 
 Dismissing proceedings 176 
 
 CHAPTER III. 
 
 injunctions, COSTS, ENFORCEMENT OF ORDERS, ETC. 
 
 Section i. The judge may enjoin transfer, etc., of property. . . 177 
 
 Who may grant the injunction order 179 
 
 Who enjoined 179 
 
CONTENTS. 
 
 PACE 
 
 The order i8o 
 
 Service of the injunction order i8i 
 
 When an injunction talces effect i8l 
 
 Continuance of an injunction 183 
 
 A dormant injunction 184 
 
 A limited " 184 
 
 Proceedings lapsing 184 
 
 Irregular proceedings 186 
 
 Persons not parties 186 
 
 Vacating or modifying injunction 187 
 
 What the injunction restrains 188 
 
 Costs 195 
 
 A judge's authority to allow costs 196 
 
 To whom allowed 197 
 
 When costs may be allowed 198 
 
 What " " " 200 
 
 Notice 201 
 
 Length of notice 2or 
 
 How costs to be collected 201 
 
 Disobedience to order to be punished 205 
 
 Nature of , 206 
 
 Who may punish a contempt 207 
 
 The court 21 r 
 
 Referee 212 
 
 Who may be punished as for a contempt 212 
 
 Witnesses 213 
 
 Who may apply for punishment 215 
 
 What acts are punishable — Failure to appear 215 
 
 Not answering 218 
 
 Violating injunction 2ig 
 
 Not paying or delivering property 220 
 
 Who and what are not punishable 223 
 
 For non-payment of costs 231 
 
 As to third parties 232 
 
 The procedure to punish as for contempt 234 
 
 Non-payment of money 235 
 
 Service of papers, etc 23S 
 
 What objection cannot be raised 238 
 
 By order to show cause 23S 
 
 Nature of the order 240 
 
 Title 24J 
 
 Service of the order 241 
 
 On return of order ^,„ 
 
 Proof of damages, etc 247 
 
CONTENTS. XXI 
 
 PAGE 
 
 What the accused may show 248 
 
 Nodefence 248 
 
 Waiver 249 
 
 By warrant of attachment — Nature of 249 
 
 Who may issue the warrant of attachment 250 
 
 Title 251 
 
 Proof 252 
 
 The warrant of attachment 252 
 
 Indorsement upon warrant 253 
 
 Waiver 254 
 
 Habeas corpus instead of warrant 254 
 
 Return of the warrant, etc 254 
 
 Interrogatories and proof 255 
 
 Reference to examine party, etc 257 
 
 Adjudication 258 
 
 The punishment. . . . .j, 258 
 
 Penalty 259 
 
 Amount of fine 260 
 
 Complainant's costs and expenses 261 
 
 Length of imprisonment, etc 265 
 
 Discharge from imprisonment 256 
 
 Loss of jurisdiction . . '. 267 
 
 Where the accused does not appear 268 
 
 The final order 268 
 
 Warrant of commitment 271 
 
 No contempt 271 
 
 Final order, void or irregular 272 
 
 Appeal 1 272 
 
 Criminal contempt 273 
 
 Unconstitutionality 273 
 
 5. Proceedings when judgment is against joint debtors. 274 
 
 6. " continued before another judge 277 
 
 CHAPTER IV. 
 
 THE APPLICATION OF PROPERTY UPON JUDGMENTS. 
 
 Section i. What property may be applied upon judgments. . . . 279 
 
 As to real estate 281 
 
 Real property without the State may also be reached. 283 
 
 Void assignment 284 
 
 Goods and chattels ' 284 
 
 A seat or membership in a board of trade 285 
 
 Alimony directed to be personally paid to a woman. 286 
 
 Joint property 2S7 
 
 Things in action 287 
 
XXII CONTENTS. 
 
 PAGE 
 
 2. What property cannot be reached through the pro- 
 
 ceedings 290 
 
 Exempt property 293 
 
 Householder 293 
 
 Reaching property 294 
 
 Trust property 297 
 
 Earnings 299 
 
 Real estate 302 
 
 Future earnings and acquisitions 302 
 
 Equitable appropriation 305 
 
 Money in the hands of disbursing officers 305 
 
 3. Order permitting a debtor of judgment debtor to pay 
 
 the sheriff 306 
 
 Notice 308 
 
 What cannot be so paid 309 
 
 Effect of the order 310 
 
 The proof 312 
 
 4. Order requiring delivery of money or property to 
 
 sheriff or receiver 313 
 
 Notice 321 
 
 Restitution of money 322 
 
 5. When and what property cannot be applied by order. 323 
 
 Mortgaged property 329 
 
 Substantially disputed 330 
 
 6. Duty and power of the sheriff, etc 341 
 
 I^ow money or property applied to pay the judg- 
 ment 342 
 
 CHAPTER V. 
 
 THE RECEIVER. 
 
 Section i. When and how a receiver may be appointed 343 
 
 In what cases appointed 344 
 
 By whom and when appointed 352 
 
 Notice 353 
 
 This notice must be in writing 355 
 
 Service and length of the notice 356 
 
 The order 356 
 
 Irregularity in appointment 357 
 
 Waiver of irregularity 35S 
 
 Fraud in the appointment 358 
 
 Who may be appointed receiver 359 
 
 Receiver's bond 35g 
 
 To be filed jgj 
 
 Papers, where filed 362 
 
CONTENTS. XXUl 
 
 PAGE 
 
 2. Notice to others' creditors 362 
 
 Length of 363 
 
 3. Only one receiver — Former receivership extended. . 364 
 
 Order to be filed and recorded 365 
 
 4. When property is vested in receiver 365 
 
 Property to which he is entitled to the immediate 
 
 possession 370 
 
 Exempt property 38 1 
 
 After acquired property 383 
 
 Trust estate 383 
 
 Claim against an executor 385 
 
 5. How receiver's title to personal property extended 
 
 by relation 386 
 
 Clerk to record orders, etc. — Penalty for neglect.. 388 
 
 6. Receiver subject to the control of the court 389 
 
 His commissions 392 
 
 7. Nature of the receiver's office — His rights and duties, 
 
 etc. — Nature of the order 393 
 
 His office 396 
 
 His power 396 
 
 Attorney of the judgment creditor 401 
 
 His duties 401 
 
 Agents 407 
 
 Accounting 408 
 
 His privileges 408 
 
 Special receiver 409 
 
 8. Action by the receiver 410 
 
 Pleadings 414 
 
 Death or removal of receiver 414 
 
 Privity of estate 414 
 
 Costs of action 41 5 
 
 Receiver personally charged with costs 415 
 
 Security for costs 416 
 
 No action by receiver 416 
 
 CHAPTER VI. 
 
 LIENS, PRIORITIES, APPEALS, ETC. 
 
 SsCTlON I. Liens and priorities 420 
 
 " under Code, §2441 427 
 
 2. Priority among creditors 427 
 
 ' ' How determined 429 
 
 ' ' between creditor's actions and Supplementary 
 
 Proceedings 429 
 
 In real estate 43 1 
 
:x;xiv CONTENTS. 
 
 PAGE 
 
 3. Appeals and reviews 44° 
 
 From referee 440 
 
 ' ' a judge 441 
 
 Ex parte order 442 
 
 In what case appeal lies 443 
 
 Who may appeal 446 
 
 When to Court of Appeals 447 
 
 4. Irregularities 448 
 
 Objections, when taken 452 
 
 Amendment 453 
 
 Waiver 454 
 
 Jurisdictional defects 457 
 
 Formal irregularities 459 
 
 5. Of the powers of the judge 460 
 
 Staying proceedings 462 
 
 On questions of residence 467 
 
 Bound by judicial determination . , 469 
 
 His exclusive control 472 
 
 Staying proceedings 472 
 
 Continuance before another officer 473 
 
 Opening defaults 474 
 
 To punish disobedience 476 
 
 Second execution 480 
 
 Filing papers 4S1 
 
 6. Second or further proceedings 482 
 
 First res judicata 4S3 
 
 CHAPTER VII. 
 
 PROCEEDINGS IN AID OF ATTACHMENT OR EXECUTION. 
 
 Section i. In what cases under § 650 487 
 
 What must be shown 488 
 
 The order, and proceedings thereon 491 
 
 The determination 492 
 
 Proceedings against foreign corporations 492 
 
TABLE OF CASES. 
 
 V, Lindsey, 407. 
 
 Abell V. Riddle, 126. 
 Adams v. Hackett, 137, 427. 
 
 V. Welsh, 309, 311. 
 
 Albany City Bank -'. Door, 71, 
 97- 
 
 V. Schermerhorn, 242, 250, 
 
 258, 261, 270, 283, 406. 
 
 Albany City Ins. Co. v. Van 
 
 Vranken, 411. 
 Albany City Nat. Bank v. Gay- 
 
 nor, 302. 
 Albright v. Kempton, 290, 303. 
 Alexander v. Richardson, 324, 
 
 327. SSI- 
 Allen V. Fitch, 23. 
 
 V. Starring, 14, 131, 135, 
 
 173, 185, 472. 
 
 Ammidon v. Wolcott, 100, 148, 
 
 217, 247, 450, 451, 455. 
 Araore v. La Mothe, 39. 
 Anderson v. Treadwell, 395. 
 Andrews v. Andrews, 214. 
 
 V. Glenville Woollen Co., 
 
 347, 354, 417- 
 
 • V. Rowan, 295, 309, 381. 
 
 V. Wilson. 122. 
 
 Anonymous (11 Abb., 108), 197, 
 
 199. 
 
 -(32 Barb., 201), 53. 
 
 (i Code Rep., N. S., 113), 
 
 95, 199- 
 (i Code Rep., N. S., 211), 
 
 so- 
 
 Anonymous (3 Duer, 673), 60. 
 
 (3 Sandf., 725), 95, 199. 
 
 Anway v. David, 66, 81, 100. 
 Arctic Fire Ins. Co. u. Hicks, 
 
 loi, 186, 453. 
 Armstrong v. Cummings, 55. 
 Arnoux v. Homans, 445. 
 Arthur v. Hale, 16, 63. 
 Aschemoor v. Emmvert, 225, 300. 
 Ashley v. Turner, 78, 348, 353, 
 
 356- 
 Atkinson v. Sewine, 181, 183. 
 Atlantic and P. Tel. Co. v. Balto. 
 
 and O. R. R. Co., 219. 
 Averill v. Tucker, 306. 
 
 B. 
 
 Bacon v. Bonham, 282. 
 
 V. Cropsey, 357. 
 
 V. Frisbie, 153, 164, 165. 
 
 V. Goldsmith, 166. 
 
 Bailey v. Buell, 316, 339, 470, 471. 
 V. Dubuque Western R. R. 
 
 Co., 58. 
 
 • V. Lane, 346, 348, 443. 
 
 V. Ryder, 319. 
 
 Baker v. Kenworthy, 309. 
 
 V. McLoughlin, 170. 
 
 V. Stephens, 92, 255. 
 
 V. Van Epps, 401. 
 
 Balde v. Smith, 346. 
 Baldwin v. Eazler, 393. 
 
 V. Perry, 27, 56, 468. 
 
 Ball V. Goodenough, 133, 278, 
 
 284, 356, 365, 405, 471. 
 
XXVI 
 
 TABLE OF CASES. 
 
 Ballou u. Boland, 173, 185. 
 Balston Spa Bank v. Marine 
 
 Bank of M., 44, 59, 272. 
 Baltes V. Ripp, 329. 
 Bangs V. Duckinfield, 357, 358. 
 
 V. Selden, 469. 
 
 Bank Commissioners v. City- 
 Bank of B., 180, 214. 
 Bank for Savings v. Hope, loi, 
 
 452. 
 Bank of Genesee v. Spencer, 14, 
 
 19, 64, 442, 472, 473. 
 Bank of Utica v. IWersereau, 164, 
 
 166. 
 Banks v. Potter, 361, 367, 368, 
 
 387, 390, 396, 428. 
 
 V. Rodenbach, 302. 
 
 Barclay v. Quicksilver Mining 
 
 Co., 410. 
 Barculow v. Protection Co. of 
 
 N. J., 169. 
 Barker v. Dayton, 18, 58, 73, 
 
 398, 410. 
 
 V. Johnson, 17, 102, 125. 
 
 Barnard v. Kobbe, 324, 327, 448, 
 
 463. 464- 
 Barnes v. Morgan, 285. 
 Bartlett v. McNeil, 52, 448. 
 
 V, Spicer, 52. 
 
 Bassett v. Wheeler, 143, 442. 
 Batterman v. Finn, 180, 215. 
 Beach v. Gregory, 447. 
 
 V. Nixon, 449, 458. 
 
 Beamish v. Hoyt, 281, 371. 
 Bean v. Tonnelle, 36, 53, 55, 89, 
 
 91, 93, 451- 
 Becker v. Hager, 476. 
 ■ V. Torrance, 21, 387, 393, 
 
 433, 434- 
 Beebe v. Fredley, 66. 
 V. Kenyon, 233, 248, 312, 
 
 339, 470. 
 Beebee v. Rogers, 490. 
 Belknap v. Hasbrouck, 64. 77, 
 
 467. 
 
 Bennett v. Doody, 54. 
 
 V. McGuire, 170, 173, I75. 
 
 418. 
 Berthelen v. Betts, 106. 
 Bevans v. Pierce, 430. 
 Billhofer v. Heubach, 274. 
 Billings V. Carver, 103, 216, 452, 
 
 455- 
 Bingham v. Disbrow, 27, 65, 71, 
 
 80, 82, 88, 89, 96, loi, 129, 353, 
 
 449, 450, 461, 462, 474. 
 Birnbaum v. Thompson, 315, 334. 
 Bish V. Bradford, 150. 
 Bishop V. Garcia, 336, 341, 426. 
 Bitting V. Vandenburgh, 20, 211, 
 
 295- 
 Blake v. Locy, 27, 442. 
 
 V. Respass, 41. 
 
 Bloodgood V. Clark, 3. 
 Blydenburgh v. Cotheal, 452. 
 Board of Education v. Scoville, 
 
 21. 
 Boelger v. Swivel, 204. 
 Bolen V. People, 170. 
 Bond V. Bond, 259. 
 Bonner v. McPhail, 130. 
 Booth V. Clark, 57, 397, 419. 
 Bostwick V. Beizer, 396, 411. 
 V. Menck, 396, 397, 410, 
 
 411, 414, 415. 
 Botts V. Cozine, 399. 
 Bowne v. Witt, 296. 
 Boyd, Ex parte, 58. 
 Boynton v. Rawson, 2. 
 Branch v. Harrington, 401. 
 Brett V. Brovfn, 124, 155. 
 Bridgman v. McKissick, 440. 
 Briggs V. Merrill, 399. 
 Brisco V. Askey, 97, 325. 
 Britton v. Lorenz, 410. 
 Broadhead v. McConnell, 109, 
 
 459- 
 Brockway v. Brien, 484. 
 Bronson, Matter of, 251. 
 Brouwer v. Hill, 288. 
 
TABLE OF CASES. 
 
 XXVll 
 
 Brown v. Andrews, 251. 
 
 V. Gump, 85. 
 
 V. Hebard, 300. 
 
 V. Mayor, 38. 
 
 V. Morgan, 167, 168. 
 
 V. Nichols, 424. 
 
 Browning v. Bettis, 3, 4, 6, 303. 
 
 V. Marvin, 138, 139. 
 
 Brummagen v. Baucher, 318. 
 Bruns v. Stewart Manuf. Co., 
 
 392. 
 Brush V. Lee, 220, 221, 222, 232, 
 
 241, 242, 244, 314. 
 Buchanan o. Alexander, 50, 306. 
 
 V. Hunt, 294, 427, 471. 
 
 Bulkley V. Eckert, 306. 
 Bumpus V. Maynard, 296. 
 Bunacleugh v. Poolman, 345. 
 Bunn V. Daly, 78, 302, 348, 349. 
 V. Fonda, no, 284, 294, 319, 
 
 372, 405- 
 Burt V. Hoetlinger, 22, 126, 149. 
 Bush V. Preston, 170. 
 
 V. White, 291, 299. 
 
 Buswell V. Lincks, 75, 418. 
 Butler V. Jaffray, 288, 424. 
 V. N. Y. and Erie R. R. Co., 
 
 287. 
 
 V. Niles, 191. 
 
 Butts V. Dickenson, 53. 
 
 C. 
 
 Cahoon v. Leary, 324. 
 
 Calkins v. Packer, 309, 312. 
 
 Campbell v. Fish, 286, 374, 400. 
 
 V. Foster, 15, 189, 297, 302, 
 
 324, 383, 414, 448. 
 
 V. Genet, 182, 297, 383. 
 
 Canal and Walker Streets, Mat- 
 ter of, 461. 
 
 Canavan v. Coyne, 485. 
 
 V. McAndrew, 483, 485. 
 
 Carroll v. Finley, 488. 
 
 Carter v. Clarke, 145, 173, 175, 
 444, 446, 483, 485, 486. 
 
 Caton V. Southwell, 182, 302, 
 
 484. 
 Chamberlain v. Greenleaf, 359. 
 Champlin v. Stoddart, 153, 155, 
 
 163. 
 Chandler v. Caldwell, 13, 150, 
 
 325- 
 
 V. City of Fond du Lac, 322. 
 
 Chapman v. Hatt, 42. 
 Chappell V. Winters, 230, 246. 
 Chautauqua Co. Bank v. Risley, 
 
 283, 367, 372, 405, 431. 435- 
 Chemung Canal Bank v. Judson, 
 
 15- 
 Chipman v. Sabbatan, 6. 
 City of Newark v. Funk, 51, 306. 
 Clapp V. Lathrop, 158, 160, 161, 
 
 169, 324. 
 Clark, Matter of, 269. 
 
 V. Bergenthal, 22, 85, 352. 
 
 V. Bininger, 236, 258, 263. 
 
 V. Clark, 266, 355. 
 
 ■ V. Gilbert, 373, 388, 439. 
 
 V. Miller, 60. 
 
 V. Savage, 354. 
 
 Clarke v. Londrigan, 484, 485. 
 
 Clinkscales v. Hall, 40, 63. 
 
 Clute V. Bool, 298. 
 
 Cochran v. IngersoU, 217, 248. 
 
 Coddington v. Webb, 476. 
 
 Coffin V. Van Scoten, 22. 
 
 Coleman v. Roff, 195, 388, 424. 
 
 Collier V. De Revere, 36, 87, 88. 
 
 Collins V. Ryan, 469. 
 
 Colton V. Bigelow, 144, 148, 325, 
 
 350, 354- 
 
 V. Simmons, 201. 
 
 Columbian Ins. Co. v. Stevens, 
 
 411. 
 Condee v. Gundelsheimer, 53. 
 Conger v. Hudson River R. R. 
 
 Co., 46. 
 
 V. Sands, 368, 380, 425. 
 
 Conklin, In re^ 94. 
 Connolly v. Kretz, 392. 
 
XXVlll 
 
 TABLE OF CASES. 
 
 Conover v. Wood, 477. 
 Conrell v. Funk, 50, 306. 
 Conway v. Hitchins, 53, 87, 91, 
 
 131, 132, 174, 442, 4S1. 
 Cooke V. Ross, 13, 150, 424. 
 Cooman v. Board of Education 
 
 of Rochester, 321, 334. 
 Cooney v. Cooney, 368, 381. 
 Coope V. Bowles, 380. 
 Cooper V. Bigalow, 42. 
 Corbin v. Berry, 34, 352, 363. 
 Corning v. Glenville Woollen Co. , 
 
 334, 363, 423- 
 
 V. Stebbins, 77. 
 
 V. Tooker, 18, 144, 145, 159, 
 
 318, 320, 324, 331. 
 
 V. White, 2. 
 
 Corson v. Oatis, 325. 
 Countryman v. Boyer, 311. 
 Coursen v. Dearborn, 216, 456, 
 
 470. 
 Courtois V. Harrison, 43, 84, 468. 
 Cowdrey v. Carpenter, 20, 211, 
 
 445, 461, 472, 474. 
 Craig V. Hone, 282, 298, 372. 
 Crill V. Koenmayer, 35. 
 Cromwell v. Spofford, 483. 
 Crooks V. Findley, 395. 
 Crosby v. Stephan, 286. 
 Crouch V. Gridley, 289. 
 Crounse v. Whipple, 324, 444. 
 Crouse v. Wheeler, 27, 80, 320. 
 Camming v. Egerton, 401, 415. 
 
 V. Waggoner, 257. 
 
 Cummings v. Timberman, 300. 
 Cunningham v. McGregor, 46. 
 Currie v. Noyse, 77. 
 Curtis V. Leavitt, 409. 
 Cushman v. Gephart, 114, 142. 
 Cutter V. Reilly, 415. 
 Cuyler v. Moreland, 418. 
 
 Dandistel 
 114. 
 
 D. 
 
 Kronenberger, 62, 
 
 Darrow v. Lee, 347- 
 
 Davenport v. Ludlow, 288, 309, 
 
 411. 
 
 V. McChesney, 375, 397- 
 
 Davis, In re, 328. 
 
 V. Breens, 57. 
 
 V. Davis, 48. 
 
 • V. Herrig, 53, 54, 125. 
 
 V. Mayor, etc., of N. Y., 180. 
 
 214. 
 
 V. Sturtevant, 262. 
 
 V. Turner, 15, 98, 152, 197, 
 
 198. 
 Davison's Case, 272. 
 Day V. Brosnan, 99. 
 
 V. Lee, 124, 227. 
 
 Dean v. Hyatt, 245. 
 
 De Bemer v. Drew, 346. 
 
 De Comeau v. People, 173, 175. 
 
 Degraw v. Clason, 282, 371. 
 
 De Groot v. Jay, 408. 
 
 Dejonge v. Brenneman, 247. 
 
 Deming v. N. Y. Marble Co., 
 
 364- 
 Deposit Nat. Bank v. Wickham, 
 
 194, 284, 425. 
 Devendorf v. Dickinson, 416. 
 De Vivier v. Smith, 348. 
 Dewey v. Finn, 231, 324, 328, 357, 
 
 376, 377- 
 De Witt V. Dennis, 237, 255, 256, 
 
 269, 272. 
 Dickerson 7'. Van Tine, 5, 133, 137, 
 
 322, 392. 403, 440. 
 Dickinson v. Cook, 60. 
 V. Onderdonk, 168, 314, 327, 
 
 345- 
 Dillman v. Dillman, 22, go, 149. 
 Diossy V. West, 93, 450, 454, 457. 
 Dix V. Briggs, 59. 
 Dobson V. Pearce, 357. 
 Dodge -'. Crandall, 416. 
 DoUard v. Taylor, 444, 445, 457. 
 Doran v. Dempsey, 248. 
 Dorr V. Noxon, 133, 318, 354. 
 
TABLE OF CASES. 
 
 XXIX 
 
 Drake v. Shurtliff, 316, 339, 470, 
 
 471. 
 Drane v. McGavock, 306. 
 Dresser v. Van Pelt, 14, 100, loi, 
 
 208, 450, 452, 455, 
 Driggsw. Smith, 83, 107, 108, iii. 
 
 V. Williams, 15, 77, 79, 481. 
 
 Drought V. Curtiss, 280, 288. 
 Du Bois V. Cassidv, 302, 383, 385, 
 
 387. 
 Dudley v. Mayhew, 449, 458. 
 Duff, Matter of, 444, 445. 
 DufBeld V. Horton, 310. 
 Dunbar v. Harnesberger, 308. 
 Dunning v. Rogers, 22, 149, 290. 
 Durand v. Hankerson, 314, 324. 
 Dusenbury v. Dusenbury, 170. 
 
 E. 
 Eager v. Price, 289. 
 Earle v. Skiles, 13, 114, 126. 
 Eberhardt v. Schuster, 38. 
 Eden v. Everson, 22, 87, 284. 
 Edgarton v. Hanna, 115, 325. 
 Edlunds, Matter of, 285, 296. 
 Edmeston v. Lyde, 280, 427, 431. 
 Edmonston tj. McLoud, 178, 187, 
 
 421, 428, 473. 
 Ehlers v. Staeckler, 324. 
 Eldridge, Matter of, 244. 
 Ellsworth V. Cook, 2S1, 371. 
 
 V. Cuyler, 284. 
 
 Emery v. Emery, 55, gi, 276. 
 Engle V. Bonneau, 67, 76, 197, 
 
 198. 
 Erie Ry. Co. v. Ramsey, 186, 227, 
 
 249, 265. 
 Exchange Fire Ins. Co. v. Early, 
 
 139- 
 
 F. 
 
 Farnham v. .Campbell, 283, 370. 
 
 V. Hildretb, 458. 
 
 Farqueharson v. Kimball, 67, 68, 
 
 76, 102, 480. 
 Feely v. Glennen, 261, 
 
 Fellerman's Case, 480. 
 Fellows 'V. Fellows, 410. 
 Felt V. Dorr, 46, 94, 95. 
 Fenner v. Sanborn, no, 193, 226, 
 
 260, 283, 319, 405, 471. 
 Fenton v. Flagg, 67, 68. 
 Fessenden v. Woods, 394, 398, 
 
 428. 
 Field V. Chapman, 67, 275. 
 V. Sands, 378, 379, 380, 425, 
 
 437- 
 Figg V. Snook, 284. 
 Fillmore v. Horton, 387, 417. 
 Fillson V. Scott, 114. 
 Finnin v. Malloy, 294, 381, 382. 
 First Nat. Bank v. Beardsley, 303. 
 First Nat. Bank of Rome v. Der- 
 
 ing, 12, 13, 67, 68. 
 • V. Wilson, 64, 90, 106, 107, 
 
 125, 319- 
 First Nat. Bank of Whitehall v. 
 
 Whitehall Transp. Co., 439. 
 Fischer v. Raab, 243, 263, 265. 
 Fisher v. Doyle, 251. 
 Fiske V. Twigg, 16, 362, 481. 
 Fitch V. Smith, 2. 
 Flint V. Webb, 18, 72, 98, 351, 
 
 353- 
 Fobes V. Meeker, 252. 
 Foley V. Rathbone, 218, 264. 
 Folger V. Hoogland, 251. 
 Folsom V. Clark, 84. 
 Folwell V. Cambeis, 91, 143. 
 Foot V. Stevens, 15. 
 Forbes v. Spaulding, 459, 460. 
 
 V. Waller, 70, 76. 
 
 V. Willard, 153, 162, 163, 167, 
 
 169, 272, 444. 
 Foster v. Prince, 84, 125, 447. 
 
 V. Twigg, 362. 
 
 Fowler v. Griffin, 66, 289. 
 
 V. Lowenstein, 312, 322, 338, 
 
 340. 
 Fraser v. Hunt, 359. 
 Frazer v. Colorado D. & O. Co. 23. 
 
XXX 
 
 TABLE OF CASES. 
 
 Frazier v. Bowman, 294, 297. 
 Frederick v. Decker, 35, 88, 469, 
 
 472. 
 Fredericks v. Niver, 367. 
 
 Galster v. Syracuse Sav. Bank, 
 
 391- 
 Gardiner v. Tyler, 393. 
 Gardner v. Lay, 457, 470. 
 V. Smith, 374, 376, 381, 400, 
 
 411. 
 Gasper v. Bennett, 324. 
 Gates V. Young, 76, 146. 
 Gaylord v, Jones, 173, 224, 248, 
 
 484. 
 Genet v. Foster, 324, 383, 391. 
 Gere v. Dibble, 175, 409, 418. 
 German Sav. Bank v. Habel, 181, 
 
 229. 
 Germer v. Hepburn, 365. 
 Gerregani v. Wheelwright, 182, 
 
 183, 236, 245, 290, 304, 327. 
 Gibson v. Gorman, 23, 359. 
 V. Haggerty, 12, 125, 127, 
 
 310, 311, 321, 336, 338, 341, 427, 
 
 448, 465, 466. 
 Gillet V. Fairchild, 288. 
 Gillett V. Bates, 285. 
 Glenney v, Stedwell, 93, 451. 
 Glenville Woollen Co. v. Ripley, 
 
 I go. 
 Goddard v. Stiles, 408. 
 Goodall V. Demarest, 64, 454, 469, 
 
 482. 
 Goodenough v. Davids, 235, 248. 
 Goodyear v. Belts, 318. 
 Gould V. Dodge, 35. 
 
 V. Gould, 287. 
 
 V. Moore, 29. 
 
 V. Root, 336. 
 
 V. Torrance, 14, 441, 442. 
 
 Graff V. Bonnett, 189. 297, 383. 
 Grafton v. Weeks, 155. 
 Graham v. Colburn, 154. 
 
 Graham v. La Crosse & M. R. R. 
 
 Co., 22. 
 
 V. People, 165. 
 
 Grassmuck v. Richards, 326. 
 
 Graves v. Lake, 143. 
 
 Gray v. Cook, 206, 230, 246, 261. 
 
 Graydon v. Barlow, 424. 
 
 Green v. Bookhart, 357. 
 
 V. Bullard, 88, 102, 129, 136, 
 
 178. 
 
 V. Hicks, 158, 446. 
 
 Gregory v. Hewson, 58, 195. 
 
 V. Valentine, 167, 168. 
 
 Griffin v. Dominguez, 15, 42. 
 Grimm v. Grimm, 186, 249. 
 Griswold v. Tompkins, 230, 321, 
 
 329- 
 Grocers' Bank v. Bayaud, 485. 
 
 V. Murphy, 286. 
 
 Groot V. Greeley, 352. 
 
 H. 
 
 Hagerman v. Tong Lee, 324, 326, 
 
 446. 
 Haggerty v. Rogers, 100, 451, 455. 
 Hall V. Kellogg, iii, 113, 422, 428. 
 
 V. McMahon, 324, 331. 
 
 V. Samson, 329. 
 
 Hallahan v. Crow, 308. 
 
 Hallett V. Thompson, 282, 298, 
 
 371. 
 Hamilton v. Morange, 485, 486. 
 Hamlin v. Wright, 410. 
 Hammond v. Hudson River Iron, 
 
 etc. Co., 43, 158. 
 Hancock v. Sears, 188, l8g, 194, 
 
 225, 299, 471. 
 Handly v. Greene, 312. 
 Hanson v. Tripler, 17, 347, 4S0. 
 Hardy v. Dobbins, 113. 
 Harrier v. Fassett, 295. 
 Harrison v. Maxwell, 369. 
 Hart V. Stearns, 67, 68, 88, 454. 
 Harteau v. Deer Park Blue Stone 
 
 Co., 243. 
 
TABLE OF CASES. 
 
 XXXI 
 
 Hartman v. Olvera, 21, 318. 
 
 Hasty V. Simpson, 85. 
 
 Hatch V. Weyburn, 95, gg, 100. 
 
 Hathaway v. Brady, 21, 318. 
 
 Hauptman v. CatUn, 322. 
 
 Haurie v. Veigtlin, 2g. 
 
 Havens v. National City Bank of 
 
 B., 49, 306. 
 Hawes v. Barr, 88, g2, 173, 185, 
 
 444- 
 Hawley v. Bennett, 215. 
 
 V. James, 2g8. 
 
 Hayden v. Bucklin, 3, 422. 
 Hayes v. Buckley, 368. 
 
 V. McClelland, 333. 
 
 Hayner v. Fowler, 396. 
 Hazard v. Caswell, 217, 248. 
 Hazewell v. Penman, 424. 
 Hebbard -u. Haughian, 154. 
 Henderson v. Brooks, 410. 
 
 V. Stone, 103, 456. 
 
 Hentig v. James, 44. 
 
 Hentz V. McGehee, 327. 
 
 Heroy v. Gibson, 315, 345, 354, 
 
 443- 
 Herring v. Tylee, 256, 257. 
 Hersenheim v. Hooper, 27, 82, 
 
 468. 
 Hextor v. Clifford, 13. 
 Higbie v. Edgarton, 186. 
 Hilton V. Patterson, 207, 208, 211, 
 
 216, 228, 238, 247, 254, 259, 450, 
 
 453- 
 Hinds V. Canandaigua & N. F. 
 
 R. R. Co., 43. 
 Hinsdale v. Sinclair, 74, g8, 115. 
 Hoadley v. Caywood, 13, 150, 424. 
 Hoagland v. Stodolla, 488, 489. 
 Hobart v. Frost, 357, 449. 
 Holbrook v. Orgler, 12, 26, 228, 
 
 347- 
 Holcomb V, Jackson, 478. 
 Hollister v. Spofford, 132. 
 Holmes v. Jordan, 12, 17, 125. 
 V. Stietz, 153. 
 
 Holstein v. Rice, 15, 174, 207, 208, 
 
 209, 211, 273, 443. 
 Hopkins v. Snow, 489, 491. 
 Hough V. Kohlin, 88, 95. 
 Houghton V. Lee, 2g4. 
 Howery v. Miller, 310. 
 Hudson V. Plets, 7, 135, 143, 192, 
 
 288, 2g5, 309, 411, 482, 483. 
 Hull V. Carnley, 287, 329. 
 V. Thomas, 180, 181, 215, 
 
 219. 
 HulsaverT/.Wiles, 19, 99, 100, loi, 
 
 131, 132, 133, 201, 203, 472. 
 Hunt V. Enoch, 159. 
 
 V. Hunt, 227, 464. 
 
 Huse V. Guyot, 311. 
 Hutchinson v. Brand, 60, 67. 
 V. Symons, 74, 75, 85, 98, 
 
 115- 
 Hutson V. Weld, 451. 
 
 L 
 
 Inglehart, Petition of, 78, 348, 397. 
 Insurance Co. v. Power, 3. 
 Ireland v. Smith, 192, 305. 
 Irwin V. Chambers, 484, 485. 
 
 J- 
 Jacobson v. Doty Plaster Manuf. 
 
 Co., 84, 358. 
 Jay V. De Groot, 336, 423. 
 
 V. Martine, 36. 
 
 Jeffres v. Cochrane, 421. 
 Jesup V. Jones, 65, 82. 
 Johns, Matter of, 213, 224, 458. 
 Johnson v. Martin, 360. 
 
 V. Tuttie, 56, 148. 
 
 Jones V. Lawlin, 95, 276. 
 
 V. Porter, 73, 468. 
 
 V. Zuphin, 55. 
 
 Journeay v. Brown, 350, 424. 
 Joyce V. Holbrook, 273, 324, 442, 
 
 445- 
 Judd V. Littlejohn, 308. 
 Jung, In re, 43. 
 Jurgenson v. Hamilton, 484, 485. 
 
xxxn 
 
 TABLE OF CASES. 
 
 K. 
 
 Katt V. Germania F. Ins. Co., 139. 
 Kaufman v. Thrasher, 135, 445. 
 Kay V. Vischers, 98. 
 Kearney's Case, 202, 211, 220, 
 
 221, 229, 269, 271. 
 Keaton v. Ulster Plank Road Co., 
 
 139- 
 Keiher v. Shipherd, 295. 
 Keiley v. Dusenbury, 170, 401, 
 
 426. 
 Keller v. Zeigler, 213, 238, 249. 
 Kellogg, Ex parte, 191. 
 — — V. Coller, 22, 364, 429. 
 Kelly V. McCormick, 100, 207, 
 
 208, 234, 238, 239, 247, 251, 254, 
 
 453, 454- 
 Kelty V. Daly, lOi. 
 Kemp V. Harding, 12, 17, 125, 354. 
 Kennedy v. Norcott, 133, 176, 452. 
 
 V. Thorp, 93, 398, 400. 
 
 V. Weed, 90, 186, 217, 226, 
 
 453, 468. 
 Kennesaw Mills Co. v. Walker, 
 
 18, 19, 22, 85, 136, 320. 
 Kibbee v. Howard, 308, 313. 
 King V. Kirby, 35, 119. 
 
 V. Tuska, 187. 
 
 Kissell V. Anderson, 22, 149. 
 Klinke v. Levy, 107. 
 Knight !<. Nash, 318, 319, 322, 351. 
 Knowles r. De Lozere, 248. 
 Krom V. Hogan, 215, 249. 
 
 L. 
 
 La Farge v. La Farge Fire Ins. 
 Co., 443. 
 
 Lafontaine v. Southern Under- 
 writers, 136, 164, 171. 
 
 La Fountain v. Southern Under- 
 writers' Assoc, 43. 
 
 Lakey v. Cogswell, 93, 451. 
 
 Lamont v. Pierce, 272. 
 
 L'Amoureux o. Van Rensselaer, 
 298. 
 
 264. 
 168. 
 
 Lancaster v. Boorman, 442. 
 
 Lane v. Lutz, 390. 
 
 Lanigan v. Mayor, etc. of N. Y., 
 
 393- 
 Lansing, In re, 407. 
 V. Easton, 3, 192, 193, 226, 
 
 260, 265, 266. 
 
 V. Lansing, 232. 
 
 Latham v. Westervelt, 122, 208. 
 Lathrop v. Clapp, 161, 205, 218, 
 
 255, 268, 269, 448. 
 
 V. Gilbert, 293. 
 
 Latimer, Ex parte, 212. 
 Lederer v. Ehrenfeld, 41. 
 Lee V. Delehanty, 338. 
 
 V. Heisberger, 124. 
 
 Leeds v. Hood, 23. 
 Leet V. Heinberger, 121. 
 Leggett V. Sloan, 363. 
 Lehmaier v. Griswold, 238, 
 Le Roy v. Halsey, 144, 167 
 
 f. Rogers, 5. 
 
 Levy V. Cavanagh, 289. 
 
 •». Kirby, 77, 459. 
 
 Lewis V. Penfield, 131. 
 
 V. Rosier, 41, 273. 
 
 Lewishon v. Drew, 275. 
 Lilliendahl v. Fellerman 
 Lilliland, Matter of, 212. 
 Lindsay v. Sherman, 88 
 
 442. 
 
 Lindsey, v., 407. 
 
 Lindslay v. Deafendorf, 416. 
 Lippincott v. Westray, 362, 390 
 Livingston, Matter of, 47. 
 
 V. Cleveland, 67, 76. 
 
 V. Stoessel, 405, 412. 
 
 V. Swift, 179, 181, 215, 
 
 260, 443, 446, 447, 477. 
 Locke V. Mabbett, 189, 297 
 
 331. 44S. 
 Lockwood -'. Worstell, 47. 
 Logan V. Ferris, 42. 
 Londheim v. White, 286. 
 Loomis V. People, 170. 
 
 4S0. 
 
 91. 441, 
 
 219, 
 
 4, 
 
TABLE OF CASES. 
 
 XXXUl 
 
 Lord V. Ford, 17, 125. 
 Lorton v. Seaman, 230, 246. 
 Lottimer v. Lord, 358, 363, 364, 
 
 387. 
 Lounsberry v. Purdy, 15. 
 Lowber v. Mayor, etc. of N. Y., 
 
 18, 50, 306, 473. 
 Lowry v. McAlister, 114, 293. 
 
 V. Smith, 401. 
 
 Lucas V. Johnson, 203. 
 Lyman v. Cartwright, 309. 
 Lynch v. Johnson, 20, 127, 314, 
 
 336, 341, 421, 422, 448. 
 
 V. Tomlinson, 64. 
 
 Lyon V. Botchford, 181. 
 
 M. 
 Maas V. La Torre, 267. 
 Mackay v. Lewis, 155. 
 Macondray v. Wardle, 47. 
 Malcolm v. Foster, 139. 
 Mallory v. Gulick, 441. 
 
 V. Norton, 309. 
 
 Manice v. Smith, 324, 327, 328, 
 
 357- 
 Manley v. Rassiga, 414. 
 Manning v. Evans, 189, 297, 368, 
 
 383. 
 V. Monaghan, 287, 329, 374, 
 
 393. 
 Marshall v. Francisco, 441. 
 Martin v. Kanouse, 447. 
 
 V. Sheridan, 299. 
 
 Marx V. Spaulding, 72, 460. 
 Mason v. Hackett, 54. 
 
 V. Lee, 135, 136, 148. 
 
 V. Weston, 21, 97. 
 
 Matthews v. Tuft, 155. 
 Mattison v. Demarest, 431. 
 Mayor, etc. of N. Y. v. N. Y. and 
 
 S. L Ferry Co., 215, 219, 242. 
 McArthur v. Hoysradt, 289. 
 
 V. Lansburgh, 76, 95, 481. 
 
 McBride v. Farmers' Branch Bank, 
 
 17, 48, 125, 487. 
 
 McCartan v. Van Syckel, 217, 248. 
 McCaskill z\ Lancashire, 18, 19, 
 
 75- 
 McComb V. Weaver, 229, 246, 403, 
 
 405. 
 McCormick v. Kehoe, 304. 
 McCoun V. Dorsheimer, 303. 
 McCoy V. Cornell, 302. 
 McCrea v. Cook, 324. 
 McCredie v. Senior, 192, 226, 252, 
 
 255- 
 McCuUoch V. Hoffman, 203. 
 McCuUough, Ex parte, 33. 
 
 V. Carrogan, 299. 
 
 V. Clark, 21, 482. 
 
 McEwan v. Burgess, 65, 82, 467. 
 McEwen v. Brewster, 189, 297, 
 
 373- 
 
 McGarry v. Smith, 223. 
 
 McGowan v. Newman, 139. 
 
 McGuinty v. Herrick, 42. 
 
 McHarg v. Donelly, 415. 
 
 McKee v. Judd, 287. 
 
 McKelsey v. Lewis, 229. 
 
 McKiethan v. Walker, 74, 75. 
 
 McKnight v. Knisely, 44. 
 
 McMahon v. Works, 22, 149. 
 
 Mechanics' and T. Bank v. Healy, 
 163, 166. 
 
 Melburn, In re, 223, 273, 281. 
 
 Menage v. Lustfield, 126, 272. 
 
 Menagh u. Whitwell, 276. 
 
 Menkin v. Pape, 107, 108. 
 
 Merchant v. Session, 38. 
 
 Merriam v. Hill, 285, 296, 304. 
 
 Merritt v. Sawyer, 383. 
 
 Methodist Book Concern v. Hud- 
 son, 70, 483. 
 
 Meyers v. Trimble, 217, 248 
 
 Michigan v. Phoenix Bank, 312, 
 322, 338, 340. 
 
 Miller v. Adams, 31, 88, 124. 227, 
 237, 246, 247. 
 
 ■ V. Hall, 398, 411, 412. 
 
 V. Hooper, 300. 301. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Miller v. Levy, 385. 
 • — ~ V. Mackenzie, 398. 
 
 V. Rossman, 20, 77. 
 
 Minnesota v. Becht, 273. 
 
 Mitchell V. Westervelt, 203. 
 
 Mitchell's Case, 2ig. 
 
 Moak V. Coats, 282, 367, 368, 371. 
 
 MoUer v. Wells, 332. 
 
 Morgan v. Potter, 357, 360. 
 
 V. Von Kohnstamm, 189, 
 
 297, 354- 
 Morrell v. Hey, 154. 
 Morris v. First Nat. Bank of 
 
 N. Y., 190, 440. 
 
 V. Hiler, 391. 
 
 Morrison v. Lester, 232. 
 Morton v. Campbell, 254. 
 Moser v. Polhamus, 187. 
 Mosher I'. People, 108. 
 Mosier v. Lees, 463. 
 Muldoon V. Pierz, 213, 224, 458. 
 Muldowney v. Corney, 59. 
 Munsell v. Lewis, 304. 
 Murphy v. Briggs, 418. 
 Myers v. Janes, 141, 267, 272. 
 Myres' Case, 351. 
 Myrick v. Selden, 364, 427, 428, 
 
 429. 
 
 N. 
 
 Nagle TJ. Janes, 68. 
 
 V. Stagg, 306. 
 
 Nason u. Luddington, 139. 
 
 National Bank of Port Jervis v. 
 Hansee, 459. 
 
 National Printing Co. v. Patter- 
 son, 103. 
 
 Neale v. Osborne, 219. 
 
 Netzel V. Mulford, 119. 
 
 Newark (City of) v. Funk, 51, 
 306. 
 
 Newell V. Cutler, 103, 189, 216, 
 
 444, 452, 455- 
 NicoU V. Boyd, 414. 
 Nieuwankamp v. UUman, 211, 
 
 317. 
 
 Noe V. Gibson, 408. 
 Norris v. Burgoyne, 169. 
 
 O. 
 
 Oakley v. Becker, 357. 
 O'Brien, Petition of, 48. 
 
 V. Flanders, 84, 150. 
 
 O'Neil V. Martin, 443, 447, 469. 
 Ormes v. Baker, 345. 
 Orr's Case, i, 35, 135, 145. 
 Osborn v. Heyer, 3. 
 Owen V. Dupignac, i, 69, 77, 
 108, 480. 
 
 P. 
 
 Pacific Bank v. Robinson, 21, 
 
 285. 
 Page V. Randall, 212, 324. 
 Palen v. Bushnell, 398, 411. 
 Panton v. Zebley, 229, 246, 403. 
 Pardee v. Tilton, 29, 36, 55, 130. 
 Parish v. Murphree, 399. 
 Park V. Park, 254, 273. 
 Parker v. Browning, 408. 
 V. Hunt, 12, 17, 125, 135, 
 
 148, 216, 477, 480. 
 
 V. Page, 324, 333. 
 
 V. Wakeman, 192, 226. 
 
 Parks V. Sprinkle, 352, 365. 
 Parmelee v. Egan, 431. 
 Patten v. Connah, 314. 
 Payne v. Becker, 2S2, 371;. 385. 
 People V. Albany and Vt. R. R. 
 
 Co., 219. r-,.- 
 
 V. Ball, 135, 152. 
 
 V. Bergen, i85, 217, 220,. 
 
 249. ... 
 V- Brower, 180, i8i;.2-i5, 
 
 219, 477- 
 
 V. Brown, 257. 
 
 V. Cole, 21. 
 
 ^'- Compton, 180, 181, 215, 
 
 219, 249, 257, 260, 262, 263, 264, 
 
 266, 477, 47S. 
 
 ■ z'. Conner, 269. 
 
 '■J. Craft, 251. 
 
TABLE OF CASES. 
 
 XXXV 
 
 People V. Dutcher, 151. 
 
 ■ TJ- Hulburt, 91, 95, 284, 324, 
 
 331, 345, 405, 462, 471. 
 
 V. Jacobs, 262, 272. 
 
 f. Jones, 124, 227, 247. 
 
 V. Kearney, 217, 249. 
 
 V. Kelly, 202, 207, 211, 220, 
 
 229, 271. 
 
 V. Kenny, 272, 455. 
 
 "-'■ King, 225, 229, 234, 235, 
 
 236, 251, 315, 318, 324, 327, 396, 
 
 406, 407, 443. 
 
 'i'. Kingsland, 194, 261, 448. 
 
 V. Leipsig, 133. 
 
 V. Marston, 72, 152, 205, 2i8. 
 
 V. Mead, 137, 145, 352, 356, 
 
 404. 
 
 V. Munro, 256. 
 
 V. Murphy, 237, 272. 
 
 -J. Nevins, 261, 268. 
 
 V. Norton, 18. 
 
 ■ V. Oliver, 88, 99, 148, 265, 
 
 452, 454, 467, 470. 
 
 V. Randall, 184. 
 
 V. Recorder of Albany, no. 
 
 V. Rochester and S. L. R. R. 
 
 Co., 247, 262, 264. 
 
 V. Spalding, 186, 260, 265. 
 
 V. Spier, 170. 
 
 V. Sturtevant, 180, 181, 186, 
 
 206, 214. 
 
 V. Tefft, 256. 
 
 'J. Tioga C. P., 287, 288. 
 
 V. Wilgus, 141. 
 
 People's Bank v. Moody, 213. 
 Perkins v. Kendall, 58, 63, 212, 
 
 277- 
 
 V. Taylor, 217, 249. 
 
 Perry, In re, 179, 460. 
 
 V. Merchants' Bank of N. B,, 
 
 319. 323- 
 Person v. Grier, 155. 
 
 V. Pardee, 155. 
 
 Pester, Matter of, 246, 267. 
 Peters v. Carr, 357, 361. 
 
 Peters v. Kerr, 246, 314, 324, 33t. 
 
 Pettibone v. Drakeford, 419. 
 
 Phelps V. Cole, 412. 
 
 Phillips V. O'Connor, 431. 
 
 Phyfe V. Riley, 283. 
 
 Pitt V. Davison, 241, 242, 268. 
 
 272, 480. 
 Poertner v. Russell, 180, 214. 
 Pool V. Safford, 390, 441, 471. 
 Porter v. Purdy, 336, 459. 
 V. Williams, 6, 367, 384, 
 
 396, 397, 409, 410. 
 Potter V. Connah, 323. 
 V. Low, 53, 182, 237, 245, 
 
 290, 302, 327. 
 
 V. Merchants' Bank, 15. 
 
 Potts V. Davidson, 40, 126. 
 Pounds V. Chatham, 18, 97. 
 Powell V. Waldron, 285, 357. 
 Powelson v. Reeve, 385. 
 Price V. Thrasher, 63. 
 Prime, Matter of, 113. 
 Produce Bank v. Morton, 274, 
 
 275- 
 Provost V. Farrell, 201. 
 Pruden u. Tallman, 153. 
 Pudney v. Griffith, 68. 
 Pulver V. Harris, 38. 
 Pursell V. Pappenheimer, 194, 
 
 290. 
 
 R. 
 
 Railings v. Pitman, 483. 
 Rand z\ Rand, 19, 23, 289. 
 Randall v. Dusenbury, 224. 
 Ransom v. Miner, 113. 
 Redmond v. Goldsmith, 134, 213, 
 
 216. 
 Reed "'. Champagne, 186, 226, 
 
 334- 
 
 V. Parker, 325. 
 
 Reeve v. Ehele, 93. 
 
 Remington, In re, 22, 34, 73, 
 
 75- 
 Remmey v. Gedney, 50, 306. 
 Reynolds v. Gilchrist, 263, 265. 
 
XXXVl 
 
 TABLE OF CASES. 
 
 Reynolds v. McElhone, 140, 148, 
 174, 176, 185, 186, 213, 269, 270, 
 
 450, 474, 479- 
 Rhodes v. Casey, 42, 58, 440. 
 Rice V. Ehele, 451. 
 Richards v. Allen, 357, 358, 450. 
 Richardson v. Ainsworth, 311. 
 — ■ — V. Rust, 192. 
 — ^ — V. Smallwood, 399. 
 Rider v. Mason, 298. 
 Riggs V. Whitney, 408. 
 Righton V. Pruden, 419. 
 Rinelander v. Dunham, 136. 
 Ritterband v. Baggett, 286. 
 
 V. Marryatt, 68. 
 
 Roberts v. Albany, etc. R. R. 
 
 Co., 3. 
 Robeson v. Ford, 325, 406. 
 Robinson v. Weeks, 287, 311. 
 Rockwell V. Merwin, 398, 411, 
 
 414. 
 Rodman v. Henry, i, 215, 315, 
 
 317, 318, 324, 325, 326, 345. 
 Rogers z'. Corning, 369, 392. 
 Rohshand v. Waring, 120. 
 Rooney, In re, 171. 
 Root V. Wright, 165. 
 Ross V. Bridge, 392, 401. 
 — • — V. Clussman, 23, 35, 191, 
 
 192, 193, 226, 260, 262. 
 — V. Wigg, 448. 
 Roy V. Baucus, 337. 
 Rugg V. Spencer, 89, 94, 269, 
 
 270. 
 Russell V. Summerville, 37. 
 
 S, 
 Sackett 7'. Newton, 106, 108, no, 
 
 146, 324, 458. 
 St. John V. Sewall, 478. 
 Sale V. Lawson, i. 
 Salsbury v. Parsons, 298, 385. 
 Salter 7). Bowe, 375. 
 Sandford v. Carr, 144, 158, 163, 
 
 166. 
 
 Sandford v. Moshier, 314, 324. 
 Sands v. Roberts, 182, 295, 302. 
 Sanford v. Goodwin, 188, 189, 
 
 194, 225, 300. 
 Saul V. Kruger, 329. 
 Saunders v. Hall, 469. 
 Savage v. Murphy, 399. 
 Sayer v. MacDonald, 92, 460. 
 Schanck v. Conover, 93, 173, 
 
 175, 451. 
 Schieb i'. Baldwin, 490. 
 Schneider v. Altman, 166. 
 Schrauth v. Dry Dock Sav. Bank. 
 
 321, 324, 336, 337, 423, 463, 470. 
 Schultz V. Andrews, 155, 216, 
 
 228, 238. 
 Scott V. Durfee, 36, 89. 
 
 V. Elmore, 368. 
 
 V. Nevius, 297, 298, 383. 
 
 Scroggs V. Palmer, 414. 
 Seaman v. Duryea, 268. 
 Second Ward Bank v. Upmann, 
 
 35. 73, 350, 352. 
 Seeley v. Black, 14, 206, 241, 251, 
 
 261. 
 
 V. Garrison, 18. 
 
 Seligman v. Wallack, i66. 
 Sellig v. Mclntyre, 484. 
 Sewell V. Jones, 286. 
 Sexton V. Mann, 150. 
 Seyfert v. Edison, 424. 
 Seymour v. Cooper, 302. 
 
 V. Wilson, 396. 
 
 Sheldon v. Weeks, 314. 
 Shepherd v. Dean, 211. 
 Sherman v. Carvill, 72, 281. 
 
 V. Fowler, 437. 
 
 Sherwood v. Buffalo and N. Y. 
 
 City R. R. Co., 12, 17, 43, 125, 
 
 324. 325, 469. 474. 
 
 V. Dolan, 145. 
 
 V. Littlefield, 76. 
 
 Shults z'. Andrews, 452, 486. 
 Sickels V. Hanley, 102, 131, 2S4, 
 
 405, 471. 
 
TABLE OF CASES. 
 
 XXXV U 
 
 Silverman v. Henant, 59. 
 Simmonds v. Simmonds, 263. 
 Simmons v. Simmons, 266. 
 Simms z\ Frier, ig6, ig8. 
 Simpkins v. Page, 67, gl. 
 Simpson i'. Turner, 306. 
 Slater v. Merritt, 246. 
 Sloane v. Higgins, igg, 228. 
 Slocum V. Barry, 416. 
 Sluyter v. Smith, 64. 
 Smethurst, In re, 208, 223, 234, 
 
 236, 238, 242, 250, 255. 
 Smith V. Brown, 318. 
 
 V. Clarke, 416. 
 
 V. Fitch, 133. 
 
 z\ Gore, 2g5. 
 
 V. Hart, 446. 
 
 v. Johnson, 133, 352. 
 
 1'. Kearney, 304. 
 
 V. Mahoney, 21, 76. 
 
 I'. McMillan, 3og. 
 
 t'. McNamara, 48, 2gl. 
 
 '■. Paul, 46S, 470. 
 
 V. Reno, 186. 
 
 V. Weeks, 22, 115, 146, 270, 
 
 328. 
 
 V. Woodruff, 412. 
 
 Spaid V. Hoge, 216. 
 
 Spear v. Wardell, 106, in, 113, 
 
 422. 
 Spencer v. Cuyler, 67, 68. 
 Sperling v. Levy, 69. 
 Squire v. Young, 148, 173, 174, 
 
 185, ig7, 460, 473, 475- 
 Staats V. Wemple, 426. 
 Stafford v. Brown, 251. 
 Stanly v. Lovett, 173, I74- 
 State of Michigan v. Phoenix 
 
 Bank, 312, 322, 338, 340. 
 State of Minnesota v. Becht, 273, 
 
 2g6. 
 State Bank v. Gill, 364. 
 State Bank of Ohio v. Oliver, 72. 
 Steele v. Sturges, 369, 372, 3g4. 
 Stevenson v. Stevenson, 286. 
 
 Stewart v. Biddlecum, in. 
 
 V. Foster, 182, 2g7, 324, 327. 
 
 V. McMartin, 2S2, 297, 371. 
 
 Stewart's Estate, 425, 431. 
 Stillwell V. Carpenter, 47. 
 
 V. Epps, 42. 
 
 Storm V. Waddell, 6. 
 
 Storrs V. Kelsy, 68. 
 
 Stovall V. Bank, 63. 
 
 Stright V. Vose, 27. 
 
 Strohn v. Epstein, 354, 355. 
 
 Strybing v. Hicks, 81. 
 
 Sudlow V. Knox, 218, 247, 261, 
 
 263, 273. 
 SuUivan v. Judah, 186. 
 Swartout v. Schwerter, 375. 
 
 Taggard v. Talcott, 194. 
 Taylor v. Baldwin, 408. 
 
 V. Perkins, 289. 
 
 V. Persse, 481. 
 
 Teller v. Randall, 324, 325, 327, 
 
 357- 
 Ten Broeck v. Sloo, 282, 284, 
 
 288, 371, 405, 409, 411. 
 Terry v. Deitz, 292. 
 
 V. Hultz, 31. 
 
 Thomas v. Kircher, 173, 184, 224, 
 
 248. 
 Thompson v. Nixon, 303. 
 
 V. Sargeant, 40. 
 
 Thorn i\ Fellows, 373, 383- 
 Thorne v. Thomas, 285. 
 Thurman v. Wells, 287. 
 Tillotson 1'. Wolcott, 295, 382, 
 
 390, 44S. 
 Tillou V. Vere, 95. 
 Tinker v. Crooks, 221, 223, 244. 
 
 314, 316. 327, 339. 47°- 
 Tinkey v. Langdon, 229, 230, 
 
 243, 246, 263, 272, 2S4, 302, 319, 
 
 348, 349, 357, 358, 374. 403, 405. 
 
 455, 471- 
 Todd V. Crooke, 345, 353, 354, 356- 
 
xxxvui 
 
 TABLE OF CASES. 
 
 Toledo, W. and W. Ry. Co. v. 
 Howes, 22, 126, 145. 
 
 Tompkins v. Floyd County Agri- 
 cultural Assoc., 44, 49. 
 
 V. Fonda, 282, 371. 
 
 V. Purcell, 57. 
 
 Tompkins Co. Bank v. Trapp, 
 169. 
 
 Town V. Safeguard Ins. Co., igg, 
 326. 
 
 Tracy v. Hornbuckle, 306. 
 
 Tremain v. Richardson, 131, 132, 
 205, 262. 
 
 Tripp V. Childs, 290. 
 
 Tweed v. Liscomb, 272. 
 
 Tyler t. Whitney, 67, 357, 450, 
 
 457- 
 V. Willis, 67, 357, 358, 360, 
 
 457- 
 Tyson v. Reynolds, 301. 
 
 tl. 
 
 Underwood v. Sutcliffe, 173, 357, 
 
 358, 360, 384, 397, 410, 419, 456. 
 Union Bank -u. Northrop, 299, 
 
 358. 
 Union Bank of Rochester v. 
 
 Union Bank of S., 49, 225, 317, 
 
 424. 
 Union Bank of Troy v. Sar- 
 
 geant, 347, 455, 456, 457. 
 U. S. Land and Emig. Co. v. 
 
 Pike, 64, 457. 
 Utica City Bank v. Buell, 102, 
 
 104, 142. 
 
 V. 
 
 Vail V. Foster, 305. 
 Valiente v. Bryan, 202, 203, 232. 
 Van Alstyne v. Cook, 433. 
 Vandeburgh v. Gaylord, 354, 467. 
 Van Doran v. Marden, 294. 
 Van Rensselaer v. Emery, 370, 
 
 391, 408, 412. 
 V, Sheriff of Onondaga, 
 
 283, 371. 
 
 Van Valkenburgh v. Doolittle, 
 
 262. 
 Van Vechten v. Hall, 299. 
 Van Wyck v. Bradly, 159, 167, 
 
 169, 179, 491- 
 Verplanck v. Mercantile Ins. Co., 
 
 396- 
 
 V. Van Buren, 415. 
 
 Viburt V. Frost, 100, 449, 450, 
 
 453. 
 Voorhees v. Seymour, 367, 368, 
 
 376, 428, 433. 
 Vredenburgh v. Hendricks, no. 
 Vulte V. Whitehead, 53. 
 
 W. 
 Waldheim v. Bender, 321, 338. 
 Waldman v. O'Donnell, 50, 306. 
 Walker v. Donovan, 36. 
 Wall V. Whisler, 13, 84, 149. 
 Wallace v. Lawyer, 22, 49, 51, 
 
 149, 150. 
 Walter v. Lane, 399. 
 Ward V. Arenson, 236, 238, 
 
 253. 
 V. Beebe, 12, 17, 125, 127, 
 
 321. 
 
 V. Roy, 39, 415. 
 
 Wardell v. Leavenworth, 391. 
 Waters v. Miller, 264. 
 Watrous v. Kearney, 273. 
 V. Lathrop, 304, 324, 326, 
 
 426. 
 Watson V. Fitzsimmons, 229, 
 
 242, 243, 255, 404. 
 
 "'. Fuller, 476. 
 
 Webb V. Overmann, 289, 346. 
 Webber v. Hobble, ig, 197, 200, 
 
 389, 404, 460, 472. 
 Weed v. Pierce, 304. 
 
 TJ. Smull, 422. 
 
 Weiller v. Lawrence, 41, 115, 
 
 140. 
 Weitzel v. Schultz, 203. 
 Welch V. Bogert, 416. 
 
TABLE OF CASES. 
 
 West Side Bank v. Pugsley, 221, 
 222, 223, 233, 307, 314, 316, 317, 
 318, 321, 324, 330, 423, 448, 471. 
 
 Whalen v. Tennison, 289. 
 
 Wheeler v. Dakin, 36. 
 
 White Sewing Machine Co. v. 
 Wait, 102. 
 
 Whitehead -j. Hellen, 68. 
 
 Whitlock's Case, go. 
 
 Whitney v. Welch, 354. 
 
 Wicker v. Dresser, 167, 207, 208, 
 211, 218, 238. 
 
 Wilcox V. Harris, 457. 
 
 Wildrick -v. De Vinney, 296. 
 
 Wilds, Matter of, 407, 411. 
 
 Wilkie V. Rochester and S. L. 
 Ry. Co., 187. 
 
 Williams v. Carroll, 40, 159, 166, 
 167. 
 
 V. Godack, 19. 
 
 V. Thorn, 189, 297. 
 
 Wilson V. Allen, 394. 
 
 V. Andrews, 82, 129, 186. 
 
 V. Greig, 249. 
 
 Winebrener v. Johnson, 64. 
 
 Winfield v. Bacon, 412. 
 
 Wing V. Disse, 368, 390, 471, 
 
 Winston v. English, 93, 451. 
 
 Winters v. McCarthy, 324, 327. 
 
 Witherow v. Higgins, 22. 
 
 Woerishoffer v. North River Con- 
 struction Co., 427, 448. 
 
 Wolf V. Jordan, 53. 
 
 Woodman v. Goodenough, 290, 
 302. 
 
 Woodruff V. Cook, 416. 
 
 Woods V. De Figaniere, 269. 
 
 Woolf V. Jacobs, 185, 220, 445. 
 
 Worrall v. Driggs, 385. 
 
 Wright V. Cabot, 337. 
 
 V. Nostrand, 14, 15, 23, 37, 
 
 60, 69, 90, g6, 107, 170, 173, 
 
 357, 367, 379, 413. 458. 
 Wyman v. Childs, 88, 89. 
 
 Yates V. Lansing, 270. 
 
 V. Olmstead, 165. 
 
 Young V. Ledrick, 34. 
 
 Zabriskie v. Smith, 287, 288, 305. 
 
CHAPTER I. 
 
 PROCEEDINGS TO COMPEL AN EXAMINATION OF THE 
 JUDGMENT DEBTOR, AND OF HIS DEBTOR OR BAILEE, 
 UNDER THE CODE OF CIVIL PROCEDURE OF THE 
 STATE OF NEW YORK. 
 
 Section i. The different kinds of remedies. 
 " 2. The nature of the remedies, etc. 
 
 " 3. What judges may entertain the proceedings. 
 
 4. By whom and against whom they may be instituted. 
 ' 5. On what judgments and executions. 
 
 " 6. Within what time and in what county must the proceed- 
 
 ings be brought. 
 " 7. The proof to obtain the order alter return of execution, 
 
 and the order. 
 8. The proof to obtain the order before the return of execu- 
 tion, and the order. 
 " g. The warrant and the proof to obtain it. 
 
 10. The proof to obtain order to examine a third person, and 
 the order. 
 
 SECTION I. 
 The different Kinds of Remedies. 
 
 §2432. "This title (tit. 12 of ch. 17 of the Code of 
 Civil Procedure) provides for three distinct remedies, as 
 follows : 
 
 " I. An order made or a warrant issued against a judg- 
 ment debtor after the return of an execution. 
 
 " 2. An order made or a warrant issued against a 
 judgment debtor after the issuing and before the re- 
 turn of an execution. 
 
 " 3. An order made after the issuing, and either be- 
 
12 DIFFERENT KINDS OF 
 
 fore or after the return of an execution, against a 
 person who has property of the judgment debtor, or is 
 indebted to him. 
 
 " The proceeding under subdivison third of this sec- 
 tion may be pursued either alone or simultaneously 
 with the proceedings under either subdivision first or 
 subdivision second." 
 
 This section is new in form. It classifies and defines 
 the different remedies which belong to proceedings sup- 
 plementary to execution against property, the intent 
 being to fix definitely the commencement of each species 
 of proceedings, in order that its progress may be traced 
 without danger of confounding it with another. 
 
 This section also settles a disputed point in New 
 York ; it authorizes proceedings against a third person 
 independently of proceedings against the judgment 
 debtor. Under the former Code of New York some 
 cases held that proceedings against a third person as 
 debtor or bailee of the judgment debtor were in aid of 
 and ancillary to those against the judgment debtor, and 
 must be taken in connection with the latter, or not at 
 all. This was generally the view of the courts in the 
 country districts, and also in the Superior Court of the 
 City of New York. 
 
 Sec Kemp V. Harding, 4 How., 178; Sherwood z'. 
 The Buffalo and N. Y. R. R. Co., 12 Id., 136; Holbrook 
 V. Orgler, 49 How., p. 289. But in the First Judicial 
 District the contrary rule had been established for a 
 long time. 
 
 See Parker v. Hunt, 15 Abb., 410 ; Holmes v. Jordan, 
 Id., note ; Ward v. Beebe, Id., 872 ; First National Bank 
 of Rome v. Bering, 8 N. Y. Weekly Digest, 2.61. 
 
 However, the Court of Appeals judicially settled the 
 question in Gibson 7^. Haggerty, 37 N. Y., 555, by hold- 
 ing that these several proceedings are independent of 
 each other. And the above-named section has enacted 
 
SUPPLEMENTARY PROCEEDINGS. 1 3 
 
 this decision into a statutory law, thus superseding all 
 the decisions to the contrary. 
 
 As a consequence of this rule, the Court in First 
 National Bank of Rome v. Dering, supra, decided that 
 these remedies need not be all taken before the same 
 judge, or judges of the same Court, but that one, as that 
 against the judgment debtor, might be instituted before 
 a Supreme Court justice, and another, as that against a 
 third person, before a county judge. 
 
 In Colorado it is held that proceedings against a third 
 party (a bailee or debtor of the judgment debtor) are 
 independent of proceedings against the judgment debtor, 
 and that no notice of such proceedings or process need 
 be served upon the judgment debtor, and he need not 
 be made a party thereto. Hextor v. Clifford, 5 Col. 
 R., 168. 
 
 In Indiana supplementary proceedings are converted 
 by statute into a summary judgment creditor's action; 
 and if in the course of the examination in proceedings 
 against the judgment debtor it appears necessary to a 
 full and complete determination of the matter in con- 
 troversy that a third person, as bailee or debtor, should be 
 made a party to the proceedings, the court or judge 
 will so direct. So also in proceedings against a third 
 party, as debtor or bailee, of the judgment debtor, it 
 will be necessary to make the latter a party to the pro- 
 ceeding if it appears that a complete determination of 
 the controversy cannot be had without his presence. 
 
 Wall V. Whisler, lA^Ind., 228; Hoadley v. Caywood, 
 40 Id., 239 ; Chandlor v. Caldwell, 17 Id., 256 ; Cook v. 
 Ross, 22 Id., 157 ; Earle v. Skiles, et al., 93 Id., 178. 
 
14 NATURE OF SUPPLEMENTARY PROCEEDINGS. 
 
 SECTION II. 
 Nature of the Remedies, etc. 
 
 §2433. Each of those remedies is a special proceed- • 
 ing, but an order made in the course thereof can be re- 
 viewed only as follows : 
 
 " I. An order made by a judge out of court may be 
 vacated or modified by the judge who made it, as if it 
 was 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. 
 
 " 2. Where the execution was issued out of a county 
 court, an appeal from an order made in the course of 
 the proceeding may be taken in like manner as if the 
 order was made in an action brought in the same court." 
 
 This section is new, and was intended to settle some 
 doubtful questions. It makes these various remedies 
 special proceedings, but it does not wholly separate 
 them from the action in which the judgment was re- 
 covered, and the execution against property issued 
 which forms the basis of the proceedings. They are still 
 yet linked to the original action. An appeal can only be 
 taken to the General Term, to which an appeal from an 
 order made in the action lies. 
 
 See below, ch. 6, § 2, Appeals and Reviews. 
 
 Under the former Code (the New York Code of Pro- 
 cedure) the current of decisions was strongly in favor 
 of regarding these proceedings as in the original action 
 — a sort of equitable execution. 
 
 Wright V. Nostrand, 94 N. V., 31 ; Dresser z: Van 
 Pelt, 15 How., 19; The President, etc., of the Bank of 
 Genesee v. Spencer, Id., 412 ; Gould z^. Torrance, ig Id., 
 560 ; also 3 Sandf., 676 ; 2 Abb., 155 ; Allan i\ Starring, 
 26 How., 57; Seeley w. Black, 35 /^., 369 ; Holstein v. 
 
NATURE OF SUPPLEMENTARY PROCEEDINGS. I5 
 
 Rice, 2i,Id., 135 ; S. C, 15 Abb., 307; while in Davis r. 
 Turner, 4 //i9w., 190; Campbell v. Foster, 16 /^., 275 ; 
 Griffin v. Dom'inques, 2 Duer, 656 ; Driggs v. Williams, 
 15 Abb., 477, the proceedings were regarded as special, 
 and in their nature a new suit, and in Driggs v. Williams, 
 supra, it was held that they revived the judgment the 
 same as an action would. The controlling decisions 
 above cited are superseded by this section (2433) of the 
 present Code. 
 
 In Wright v. Nostrand, 94 N. F., 31, supra, the court 
 reviewed proceedings instituted against a debtor and 
 the appointment of a receiver made therein under the 
 former Code, and held them to be proceedings in the 
 action, and further say that they are in the nature of 
 an action, and could not therefore be termed a special 
 statute proceeding before a court or ofificer of limited 
 jurisdiction in the sense that the facts conferring juris- 
 diction of the matter must be affirmatively proved 
 whenever questioned in a collateral proceeding ; but it 
 is simply a new remedy in an action in which the court 
 is possessed of general jurisdiction ; and where the acts 
 of the officer named are entitled to all the presumption 
 of regularity which belong to the proceedings of courts 
 of general jurisdiction, citing with approval Lounsberry 
 V. Purdy, 18 N. Y., 519; and that the orders of a court 
 or judge authorized by law in such proceedings must 
 be presumed to be regular until annulled in a direct 
 proceeding to review or set them aside, and that such 
 orders, so far as they recite the facts necessary to confer 
 jurisdiction upon the court or judge to move in the 
 proceedings, furnish prima facie evidence of the exist- 
 ence of such facts, citing Foot v. Stevens, 17 Woid., 483 ; 
 Chemung Canal Bank %'. Judson, 8 N. Y., 258 ; Potter 
 V. Merchant's Bank, 28 Id., 652. 
 
 How much of this decision has been superseded by 
 § 2433 of the present Code, and how much is law to-da)- ? 
 
l6 NATURE OF SUPPLEMENTARY PROCEEDINGS. 
 
 Does the mere classifying of these proceedings 
 among special proceedings in a statute, without any 
 other material changes, wholly alter the nature of these 
 remedies? 
 
 They are still of the nature of an equitable execution, 
 which authorize a judge to make orders to reach prop- 
 erty and apply the same toward the satisfaction of the 
 judgment which an execution issued to a sheriff is un- 
 able to reach. The proceedings are still simply a new 
 remedy, proceeding precisely in the same manner as 
 they did under the former Code ; and why should not 
 the presumptions of regularity and jurisdiction exist in 
 proceedings prescribed in the present Code as under the 
 former one? 
 
 In Kansas a similar presumption has been recognized 
 in favor of the decision of a judge upon an appeal from 
 his order requiring the defendant or garnishee to pay 
 money in his hands to the clerk of the court. Arthur 
 V. Hale, 6 Kas., i6i. 
 
 These proceedings are naturally classified by the new 
 Code among special proceedings ; for proceedings 
 against third parties at least are not in any sense pro- 
 ceedings in the action in which the judgment was 
 recovered ; still, they have not all the characteristics of 
 special proceedings. The records, such as orders, exam- 
 inations, etc., must now be filed where records in other 
 special proceedings are filed, in a county clerk's ofifice. 
 In the City and County of New York they must be 
 filed with the clerk of that city and county. Fisk v. 
 Twigg, 50 N. V. Superior Court, 69; S. C, 5 N. Y. Civ. 
 Pro., 41, and 18 N. Y. W. Digest, 563, Sp. T., S. C, 
 affirmed at General Term. 
 
 Witnesses are no longer subpoenaed as on the trial 
 of an action, but summoned by the judge, as in special 
 proceedings. But the provisions as to receivers, costs, 
 etc., remain the same as under the former Code, while 
 
NATURE OF SUPPLEMENTARY PROCEEDINGS. 1/ 
 
 reviews and appeals in these proceedings are brought 
 in the same court and in the same manner as in 
 ordinary proceedings on the judgment. 
 
 Under the former Code proceedings against a third 
 person (debtor or bailee of judgment debtor) were held 
 to be ancillary to those against the judgment debtor, 
 and must be taken in connection therewith, or not at all. 
 This was the decision in Kemp v. Harding, 4 How., 
 178 ; Sherwood v. The Buffalo and N. Y. R. R. Co., 12 
 Id., 136, on the ground that the section of that Code 
 providing for those third-party proceedings did not 
 require notice to be given to the judgment debtor, 
 who might have a good defence to such proceedings, 
 as, for example, that the judgment was already paid. 
 Accordingly, it was held that where no proceedings 
 could be instituted against the judgment debtor for 
 any cause, none could be instituted against his debtor 
 or bailee ; but the creditor must file a creditor's 
 bill in equity. Barker v. Johnson, 4 Abb., 435. The 
 First Judicial District of the Supreme Court endeavored 
 to remedy this defect by a rule, to wit : that proceed- 
 ings against third persons were independent of proceed- 
 ings against the judgment debtor ; but that proceedings 
 against the latter should be first instituted. If, how- 
 ever, none could be taken against the judgment debtor 
 for any cause, then, on showing this fact, proceedings 
 against his debtor or bailee would be upheld with- 
 out regard to any against the judgment debtor. Sec 
 Holmes v. Jordan, 15 Abb., 410, note ; Parker v. Hunt, 
 Id.; Ward v. Beebe, Id., 372 ; McBride v. The Farmer's 
 Branch Bank, 7 Abb., 347 ; Contra, Lord v. Ford, 15 Id., 
 409, note, said to have been overruled by more recent 
 decisions. The rule in the Superior Court of the City 
 of New York and in the N. Y. Court of Common Pleas 
 was similar to that of the Supreme Court in the First 
 Judicial Department above mentioned. See Hanson v. 
 
1 8 NATURE OF SUPPLEMENTARY PROCEEDINGS. 
 
 Tripler, 3 Sand/., 733. The People v. Norton, 4 Id., 
 640; Seeley v. Garrison, 10 Abb., 460. 
 
 The Code of Civil Procedure, however, settles this 
 question by declaring that proceedings against a third 
 party may be pursued alone (§2432), but no receiver 
 in such proceedings shall be appointed without notice 
 to the judgment debtor, except as otherwise prescribed 
 in article second of this title. 
 
 In Lowber v. The Mayor, etc., of New York, 5 Abb., 
 268, these proceedings against a third party were held 
 to correspond with what used to be known as a bill in 
 aid of an execution, rather than with a creditor's bill ; 
 and hence a stay of all proceedings on the execution 
 did not include these. 
 
 The third party is entitled to appear with counsel in the 
 proceedings against him. Corning v. Tooker, 5 How., 19. 
 
 In the other States of the Union having similar pro- 
 ceedings they have been variously regarded. In Indi- 
 ana they are held to be independent of the action in 
 which the judgment was rendered. In that State the 
 statute authorizing them makes them a summary judg- 
 ment creditor's action. Pound v. Chatham, 96 Lid., 342. 
 
 In Minnesota the scope and purpose of these pro- 
 ceedings are said to be the discovery of the debtor's 
 property, both that which is liable to execution and 
 equitable interests belonging to him, and to compel 
 the application of both, if not exempt, to the satisfac- 
 tion of the judgment. Flint i'. Webb, 25 Minn., 263. 
 
 In North Carolina, South Carolina and Wisconsin 
 the proceedings are regarded as in the original action, 
 and not a separate proceeding. McCaskill v. Lancashire, 
 83 N. C, 393 ; Kennesaw Mills Co. v. Walker, 19 5. C, 
 204 ; Barker v. Dayton, 28 Wis., 367. 
 
 In North Carolina it is held that the proceedings are 
 in the nature of an equitable execution in the original 
 action, and that whatever can be attained toward the 
 
NATURE or SUPPLEMENTARY PROCEEDINGS. I9 
 
 satisfaction of the judgment in the action should be 
 done, and that the trial of an independent suit should 
 not be required ; but that in all cases judgment credit- 
 ors must resort to these proceedings to reach property be- 
 yond seizure by execution, except in the single one of a 
 judgment operating a lien on equitable estates in land 
 which cannot be sold on execution, but which can be 
 reached and applied toward the satisfaction of the 
 judgment through a creditor's action, under another 
 provision of the statutes of that State. McCaskill v. 
 Lancashire, 83 N. C, 393. Further held that supple- 
 mentary proceedings are the proper remedy to reach 
 a distributive share of a judgment debtor in the hands 
 of an administrator. Rand v. Rand, 78 N. C, 12. 
 
 In Oregon a proceeding against a garnishee — that is, 
 a third party — is held to be a proceeding at law. 
 Williams v. Godack, 1 1 Or., 337. 
 
 In South Carolina several different proceedings 
 against the same judgment debtor may be united and 
 referred to the same referee, so that one reference and 
 one examination of the judgment debtor,etc., may suffice 
 for all. Kennesaw Mills Co. v. Walker, 19 5. C, 104. 
 
 In New York all these proceedings are now instituted 
 and continued before a judge, out of court as a separate 
 tribunal. No other judge at chambers has the right to 
 interfere or make any order therein, except when act- 
 ing in his place as provided by statute. Webber v. 
 Hobbie, 13 How., 382; Hulsaver t^. Wiles, 11 Id., 446; 
 The President, etc., of the Bank of Genesee v. Spencer, 
 15 Id., 14. See post, ch. 3, § 6, and ch. 6, § 4. 
 
 Under the former Code proceedings before return 
 of execution issued against the judgment debtor's prop- 
 erty might be brought before the court, as well as 
 before a judge ; but this provision has not been re- 
 enacted in the Code of Civil Procedure. 
 
 The Court as such has now no jurisdiction over any 
 
20 SUBSTITUTE FOR A CREDITOR'S BILL. 
 
 of these proceedings, and can grant no order in them. 
 See Miller v. Rossman, 15 How., 10. It has, however, 
 power on motion to vacate or modify an order made by 
 a judge therein. § 2433 of the present Code. This 
 section thus settles a point considerably disputed before 
 that. This power under the former Code was denied 
 by some decisions. Bitting v. Vandenbergh, 17 How., 
 80; Cowdray 7'. Carpenter, ij Abb., 107. 
 
 The Court may also entertain proceedings to punish 
 disobedience of an order made by a judge, as for a 
 a contempt, and the General Term may review orders 
 on appeal. 
 
 In some of the other States, a judge only can enter- 
 tain the proceedings ; in others the Court only ; and 
 in still, others the Court has jurisdiction of the proceed- 
 ings ; but in vacation a judge has also. 
 
 Substitute for a Creditor's Bill. 
 
 In New York these proceedings have been regarded 
 as a substitute for the creditor's bill of the Court of 
 Chancery ; and it has been held that the service of the 
 order, beginning the proceedings like the commence- 
 ment of a suit in chancery, gives the judgment creditor 
 the priority of a vigilant creditor, and a lien upon the 
 equitable assets of the debtor, and that the final order 
 of a judge in proceedings against a third person requir- 
 ing him to pay the debt due the judgment debtor to 
 the plaintiff renders his lien effective, and payment or 
 liability to pay in pursuance of such order is a defence 
 to an action against him by the judgment debtor or an 
 assignee, who is not shown to be a bona fide purchaser 
 for value of the claim. Lynch v. Johnson, 48 N. Y., 
 27, affirmed ; S. C, 46 Barb., 50. And the practice estab- 
 lished by the Court of Chancery in respect to the course 
 of procedure in a creditor's bill applies to the new pro- 
 ceeding unless inconsistent with or obviously superseded 
 
SUBSTITUTE FOR A CREDITOR'S BILL. 21 
 
 by the change made by the Legislature. Smith v. 
 Mahoney, 3 Daly, 285; also Becker z/. Torrance, 31 
 N. v., 63 1 ; People v. Cole, 64 £ard., 406. A similar 
 view is held in Kansas, to wit : that the order of a 
 judge in proceedings in aid of execution, that a gar- 
 nishee shall pay over to the judgment creditor certain 
 moneys which he owes to the judgment debtor, is in 
 effect only an assignment of the claim from the judg- 
 ment debtor to his creditor. Board of Education v. 
 Scoville, 13 Xas., 17. 
 
 The proceedings under the N. Y. Code of Civil Pro- 
 cedure appear even more closely allied to the creditor's 
 bill. They are a sort of judgment creditor's suit, and 
 must be commenced within the same time — ten years. 
 
 In the other States having statutory provisions on this 
 subject, the proceedings are generally regarded as a 
 substitute for the creditor's bill, at least so far as dis- 
 covery and the application of property toward the sat- 
 isfaction of the judgment which indisputably belongs 
 to the judgment debtor, go. There is but one State in the 
 Union — Indiana — that authorizes the trial of contro- 
 verted questions of fact and law as in ordinary actions. 
 
 In California supplementary proceedings are substi- 
 tuted for the creditor's bill of the Court of Chancery, 
 and witnesses may be called and examined on either 
 side, and all property which can be reached by the lat- 
 ter can be reached by the former. Pacific Bank v. Rob- 
 inson, 57 Cal., 520 ; McCullough v. Clark, 41 Id., 298. 
 But these statutory provisions must be strictly pursued. 
 Hathaway v. Brady, 26 Cal., 581 ; Hartman v. Olivia, 5 
 Ca/., 500. In Indiana these proceedings take the place 
 of the former creditor's bill of discovery, and supersede 
 it possibly in every case. Mason v. Weston, 29 Ind., 561. 
 In that State, after the order has been made requiring 
 parties to appear and answer, all proceedings shall be 
 summary, without further pleadings, upon oral examina- 
 
22 SUBSTITUTE FOR A CREDITOR'S BILL. 
 
 tion and testimony of parties and witnesses, and all 
 questions of law or fact are tried in the proceedings as 
 an ordinary action, and a jury may be empanelled when 
 asked for. Under the former statute the court required 
 formal pleadings to be filed when a question of law or 
 fact arose in the course of the proceedings, thus join- 
 ing issue of law or fact, to be tried. But the Revised 
 Statutes of 1881 do away with pleadings, and require the 
 proceeding, after the order to appear and answer, to be 
 summary and without further pleading. Eden v. Ever- 
 son, 65 Ind., 113 ; McMahon v. Works, 72 Id., 19; Dun- 
 ning V. Rogers, 69 Id., 272 ; The Toledo W. and M. Rail- 
 way Co. V. Howes, 68 /it/., 458, overruling Burt t'. Hoet- 
 linger, 28 Id., 214; Kissell v. Anderson, 73 /,/., 485 ; 
 Dillman v. Dillman, 90 Id., 585 ; Wallace v. Lawyer, 91 
 Id., 28 ; also Cofifin v. Van Scoten, 20 Id., 50. The 
 contrary is overruled by the above decisions. But it 
 was held in Witherow v. Higgins, 13 Id., 440, that 
 supplementary proceedings were not a proper mode to 
 test the question of good faith or the legality of the 
 proceeding upon a sale by an officer. 
 
 In South Carolina these proceedings are held to be a 
 substitute for a creditor's bill. Kennesaw Mills Co. v. 
 Walker, 19 5'. C, 104. 
 
 In Wisconsin they are held to be a substitute for the 
 creditor's bill, and the only means to obtain the relief 
 which was formerly obtained by filing a creditor's bill. 
 Graham v. La Crosse and Milwaukee R. R. Co., 10 
 Wis., 459 ; in re Remington, 7 Id., 643 ; Smith v. 
 Weeks, 60 Id., 94. The remedy is said to be purely 
 statutory, and intended as a substitute for the creditor's 
 bill. It is governed by the same rules of law in respect 
 to the rights and priorities of parties affected by the 
 proceedings. Clark v. Bergenthal, 52 Id., 103 ; Kellogg 
 V. Collar, 47 Id., 649. 
 
 In New Jersey the proceedings are considered in the 
 
THE TITLE OF THE PROCEEDINGS. 23 
 
 nature of process of execution. Gibson v. Gomer, 15 
 Vs., 325. 
 
 In Colorado the proceedings are held to be special, 
 and a substitute for a creditor's bill. Frazer v. Colo- 
 rado, D. and O. Co., i Col. Law U. S. Circuit Court for 
 Dist. of Col. R., 221 ; Allen v. Fitch, 5 Col., 226. The 
 remedy by these proceedings is exclusive since the 
 adoption of the Code, and must be pursued whenever 
 adequate for the purpose, and a bill in the nature of a 
 creditor's bill cannot be maintained in such cases. But 
 the proceedings are not exclusive in that sense in the 
 national courts of that State. A creditor's bill may be 
 filed there. i Col. Law R., 221, supra. This remedy is 
 not adapted to reach disputed property of the judgment 
 debtor. No contested title to property can be deter- 
 mined, 5 Col., 226, supra. 
 
 In Kansas the proceedings are held to be not a full 
 and complete substitute for an action in the nature of 
 a creditor's bill. Leeds v. Hood, 29 Kas., 49. 
 
 In North Carolina these proceedings are a substitute 
 for the creditor's bill, which is now abolished, when it 
 was instituted to enforce the payment of a judgment 
 out of property which the execution could not reach. 
 Rand v. Rand, 78 N. C, 12. 
 
 The Title. 
 
 When these proceedings were adjudged to be in the 
 action in which the judgment was rendered, it was quite 
 proper that the title of each of them should be that of 
 the judgment or the execution to which they were 
 supplementary; and Wright v. Nostrand, 94 N. Y., 
 31, holds that it was right for a receiver of a bank 
 to sue out proceedings in the name of the judgment 
 creditor, even although it was defunct. This decision 
 was made in proceedings instituted under the former 
 code. Also Ross v. Clussman, 3 Sandf, 676; S. C, 
 
24 WHO MAY ENTERTAIN THE PROCEEDINGS. 
 
 I CodeR.(N. 5.), 91. The present Code declares that 
 each of these remedies is a special proceeding (§2433). 
 
 If these proceedings are in all respects special proX 
 ceedings, then they should be entitled as special pro- 
 ceedings are ; and it is wrong to entitle them in any- 
 other way. The title should contain the name of the 
 owner of the judgment as plaintiff, and the judgment 
 debtor as defendant, with the name of the judge before 
 whom they are instituted ; for § 449 of Code of Civil 
 Procedure provides that every action shall be prose- 
 cuted in the name of the real party in interest ; and / 
 see § 1909 of the present Code. 
 
 But these proceedings are so linked with the action 
 in which the judgment was rendered and the execution 
 against property issued, that the practice, at least for 
 the sake of convenience, entitles them in the action in 
 which the execution was issued. There is no objection 
 to that. But the affidavit must state who owns the 
 judgment if it has been transferred, and how he came 
 to own it, whether by assignment or operation of law, 
 etc., so that the proceedings are in fact brought by the 
 real party in interest. It is also proper to entitle any 
 of these remedies, as other special proceedings are en- 
 titled (§ 1909). 
 
 SECTION III. 
 
 What Judge may Entertain the Proceedings in New 
 
 York. 
 
 § 2434. Either special proceeding may be instituted 
 before a judge of the court out of which, or the county 
 judge, or the special county judge, or the special surro- 
 gate of the county to which the execution was issued, 
 or where it was issued to the City and County of New 
 
WHO MAY ENTERTAIN THE PROCEEDINGS. 2$ 
 
 York, from a court other than the Marine Court of that 
 city, before a judge of the Court of Common Pleas for 
 that city and county. 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 whom 
 the special proceeding might be instituted as prescribed 
 in this section, is absent from the county, or for any 
 reason unable or disqualified to act, the special pro- 
 ceeding may be instituted before a justice of the Su- 
 preme Court. In that case if he does not reside within 
 the judicial district embracing the county to which the 
 execution was issued, the order made or warrant issued 
 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 the special surrogate of that 
 or any adjoining county, as directed in the order or war- 
 rant. 
 
 This provision in the Code of Civil Procedure of New 
 York is substantially the same as that of the former 
 Code, being part of § 292. It includes among the 
 judicial officers who may entertain the proceedings spe- 
 cial county judges, special surrogates, and justices of 
 the Marine Court, now City Court, of New York. These 
 officers were not named among such judges in the old 
 Code as it stood in June, 1866. Special county judges 
 were included afterward, and the session laws of 1874, 
 ch. 545, §7, empowered the justices of the Marine 
 Court of the City of New York to entertain these pro- 
 ceedings in that city upon judgments of their own court. 
 Under that statute it was held that a justice of the last- 
 named court could maintain any of these proceedings, 
 although a transcript of the judgment was filed and 
 docketed in the clerk's office of the City and County 
 of New York, which by prior statutes made such judg- 
 ment a judgment of the Court of Common Pleas for 
 the City and County of New York, for the purpose of 
 
26 WHO MAY ENTERTAIN THE PROCEEDINGS. 
 
 enforcing the same by execution and supplementary 
 proceedings. Holbrook v. Orgle, 49 How., 289. This 
 statute of 1874 is repealed. See Repealing Act, session 
 laws of 1880, ch. 24s, § I, subd. 50. And now on this 
 point the above provision of § 2434 embraces all the 
 acts passed prior to 1880. In 1883 the title of Marine 
 Court of the City of New York was changed to that of 
 City Court of New York. Session laws of 1883, ch. 26. 
 
 In 1884 this section (2434) was further amended by in- 
 cluding special surrogates among the officers by whom 
 these proceedings may be entertained. 
 
 The principle which the Code of Civil Procedure 
 enacts is that any judge of a court out of which an 
 execution against both real and personal property may 
 issue to a sheriff, or, where he is interested, to a coroner 
 of the same county, can entertain these proceedings, 
 whenever the requisite facts exist and are proved ; to 
 wit : first, a judge of the court out of which the execu- 
 tion was issued upon a judgment of his own court ; 
 second, a county judge, or special county judge, or spe- 
 cial surrogate, upon any judgment where the execu- 
 tion thereon against property was issued out of a court 
 of record, and to a sheriff or a coroner of his county ; 
 third, a judge of the Court of Common Pleas for the 
 City and County of New York, upon such an execution 
 when issued to the sheriff, or a coroner, or the coro- 
 ners of the City and County of New York from any 
 court other than the City Court of New York ; fourth, 
 where the execution against property was issued out of 
 a local court, and it is shown by affidavit that each of the 
 judges before whom the proceedings might be instituted 
 as prescribed in this section (2434) is absent from the 
 county, or for any reason unable or disqualified to act, 
 then a justice of the Supreme Court may act in his 
 stead. 
 
 It had been held at chambers in the First Judicial 
 
A JUSTICE OF THE SUPREME COURT MAY. 2/ 
 
 Department that a justice of the Supreme Court under 
 § 2434, of the Code of Civil Procedure, had no power 
 to entertain proceedings in the City of New York upon 
 a judgment of his own court. This decision was re- 
 versed on appeal to the General Term, arid the power 
 of the Supreme Court justices fully asserted in all re- 
 spects under this section. Baldwin v. Perry, 25 Hun., 
 72 ; S. C, 61 How., 289; I N. Y. Civ. Pro. R., 118, and 
 N. Y. W. Digest, 398, reversing^. C, i N. Y. Civ. Pro. R., 
 32, at chambers. 
 
 A Justice of the Supreme Court. 
 
 A justice of this court may make the order institut- 
 ing any of these proceedings in any part of the State, 
 and all proceedings therein, if on a judgment of his own 
 Court may be had before him anywhere in the State, 
 except the attendance and examination of the party 
 proceeded against. See Crouse v. Wheeler, 33 How., 
 337; Bingham v. Disbrow, 14 Abb., 251; S. C, 37 
 Barb., 24. 
 
 Before the amendment of 1859 to §292 of the for- 
 mer Code, which authorized a Supreme Court justice 
 in certain cases to act in the place of a county judge, 
 or a judge of the New York Court of Common Pleas, 
 he could not entertain any of these proceedings on a 
 judgment not of his own Court. Stright v. Vose, I 
 Code R. (N. S.), 79 ; Blake v. Lacy, 7 How., 108 ; Her- 
 senheim v. Hooper, i Duer, 594 ; S. C, \\ N. Y. Leg. 
 Obs., 222. The provision of this amendment of 1859 is 
 now extended by § 2434 of the present code, so as to 
 empower a Supreme Court justice to act in the place 
 of any judge whatsoever before whom these proceed- 
 ings might be taken, upon presenting to him an affi- 
 davit containing the requisite facts duly verified. But 
 when he acts in the place of a judge of a local court 
 under this provision of §2434, and does not reside 
 
28 A JUSTICE OF THE SUPREME COURT MAY. 
 
 within the judicial district embracing the county to 
 which the execution against property was issued, he 
 must make the order or warrant instituting the pro- 
 ceedings returnable to a justice of the Supreme Court 
 residing in that district, or to the county judge, or the 
 special county judge, or the special surrogate of the 
 county to which the execution was issued, or to a like 
 judicial officer of an adjoining county, and make this 
 direction, and name the officer in the order or warrant. 
 This order or warrant of the Supreme Court justice 
 institutes the proceedings, brings the judgment debtor, 
 or third party, into court, and confers jurisdiction upon 
 the judge or surrogate whom he names in his order or 
 warrant, analogous to the appointment of a referee. 
 
 In such case a county judge, or special county 
 judge, or special surrogate may acquire jurisdiction in 
 these proceedings which he otherwise could not obtain. 
 The judgment debtor, or third party, may reside at the 
 time in another county and district, and have no place of 
 business in the county to which the Supreme Court 
 justice sends the proceedings ; still, the county judge, 
 or special county judge, or special surrogate, as the 
 case may be, would be authorized to act throughout 
 the proceedings by virtue of the order of the Supreme 
 Court justice, except to take the examination of the 
 judgment debtor, or third party ; that would have to 
 be taken by a referee sitting in the county in which the 
 party proceeded against resides, or has a place for the 
 regular transaction of business in person, as required by 
 §2459, Code of Civil Procedure; and as a local judicial 
 officer has no power to appoint a referee to sit and 
 conduct a reference outside of the judge's own county, 
 the Supreme Court justice would have to make the 
 appointment in the order or warrant ; but it would be 
 irregular for such justice to direct the referee to report 
 to him the examination or proceedings taken on the 
 
WHAT OTHER JUDGES MAY, 29 
 
 reference, or to reserve to himself any part of the subse- 
 quent proceedings ; for all that must be had before the 
 judicial officer named in the order or warrant, or before ■ 
 the one sitting at chambers and acting in his stead. See 
 Pardee v. Tilton, 20 Hun, 76 ; S. C, 58 How., 476, General 
 Term, First Judicial Department. The provision in § 292 
 of the former Code, that in case of an order made by a 
 justice of the Supreme Court, all subsequent proceed- 
 ings should be had before the same justice in the judi- 
 cial district where the judgment debtor resides to be 
 specified in the order, is not re-enacted in the present 
 Code, while that section has been repealed ; and § 2459 
 of the Code of Civil Procedure requires the examina- 
 tion of a judgment debtor and a third party to be had 
 in the county of his residence or place of business. 
 A justice of the Supreme Court has no jurisdiction to 
 entertain supplementary proceedings in the City and 
 County of New York upon any judgment recovered in a 
 District Court of that city, in a case not within the ex- 
 ception mentioned in § 2434 of the Code of Civil Pro- 
 cedure. Haurie v. Veigtlin, 5 N. Y. M. L. Bull., 38 at 
 Chambers, LAWRENCE, J. 
 
 Other Judges. 
 
 Any other judge may entertain either of these pro- 
 ceedings upon an execution against property issued out 
 of his own court. This includes the justices of Supe- 
 rior city courts, the judges of county courts, and of all 
 other local courts from which an execution against 
 both real and personal property may be issued to a 
 sheriff or a coroner ; and such execution need not be 
 issued to the county in which the judge resides. See 
 Gould V. Moore, 51 How., 188. Here judgment was re- 
 covered in the Superior Court of the City of New York, 
 and an execution against property issued out of it to the 
 sheriff of Suffolk County, where the judgment debtor 
 
30 WHAT OTHER JUDGES MAY. 
 
 then resided. Afterwards he removed to and became 
 a resident of New York City, where proceedings were 
 taken against him before a justice of that court. It 
 was held, on a motion to dismiss the proceedings, that 
 the justices of the New York Superior Courts had juris- 
 diction in such case ; but the party proceeded against 
 must, at the time of the examination, reside, or have a 
 place of business, in the county of the judge, as re- 
 quired by § 2459 o^ the present Code. 
 
 County Judges. 
 
 A county judge or special county judge may also 
 entertain either of these proceedings upon a transcript of 
 a judgment rendered in an inferior court, as a justices' 
 court, when the transcript is filed and docketed in the 
 ofifice of the clerk of his county, whereby the judgment 
 became a judgment of his own court, and the execution 
 against real and personal property is issued out of his 
 court. He may also entertain proceedings upon the 
 determination of a body or board in the State, which is 
 in the nature of a judgment, and upon which an execu- 
 tion against real and personal property has been issued 
 to the sheriff of his county. He may also entertain 
 proceedings for the collection of a tax from a de- 
 linquent tax-payer residing in his county, against whom 
 a tax exceeding ten dollars has been levied by the 
 Board of Supervisors of his county, or the Board of 
 Trustees of a village situated in his county, which the 
 collector has returned uncollected, for want of goods 
 and chattels out of which to collect the same. Ses- 
 sion Laws of 1867, ch. 361 ; amended by laws of 1879, 
 ch. 446, and by laws of 1881, ch. 640. 
 
 In like manner a judge of the New York Court of 
 Common Pleas may entertain either of these proceed- 
 ings upon a transcript of a judgment rendered in a dis- 
 trict court of the City of New York, where the transcript 
 
WHAT OTHER JUDGES MAY. 3 1 
 
 is filed and docketed in the office of the clerk of the 
 City and County of New York, whereby such judgment 
 becomes a judgment of the Court of Common Pleas, for 
 the purpose of these proceedings at least, and the execu- 
 tion against real and personal property is issued thereon 
 as from that court. He may also entertain either of 
 these proceedings upon a judgment entered in the City 
 and County of New York, on a recognizance forfeited in 
 a criminal court of that county, such judgment being, 
 in fact, a judgment of the New York Court of Common 
 Pleas. 3 R. S. (5th ed.), p. 790, §§46 and 48, and session 
 laws of 1854, ch. 198, §6. 
 
 In addition to the above cases, any county judge, or 
 special county judge, or special surrogate, may enter- 
 tain either of these proceedings upon a judgment of 
 any other court than his own, when the execution 
 against property has been issued thereon to his county, 
 and the judgment debtor then resided there, or has a 
 place there for the regular transaction of business, in 
 person, at the time the proceedings are instituted, or, if 
 not a resident of the State when the execution was 
 issued, then in case the judgment roll, or the transcript 
 of a judgment, if of a court not of record, was filed in, 
 and the execution was issued to, his county — that is, a 
 county judge, or a special county judge, or a special 
 surrogate has power to take jurisdiction of either of 
 these proceedings upon a judgment other than of his 
 court, only when the execution against both real and 
 personal property has been issued to his county, § 2434. 
 See Miller v. Adams, 7 Lans., 131, General Term ; and 
 in Terry v. Hultz, 8 Ai>5. {N. S), 109; S. C, 39 How., 
 169, the Kings County Judge held that to give the 
 county judge jurisdiction of proceedings on a judgment 
 not of his own court, the execution must have been 
 issued to the county of his residence ; whereas if the 
 execution against property issued from his own court. 
 
32 WHAT OTHER JUDGES MAY. 
 
 he may entertain either of these proceedings, although 
 it was not issued to his county. 
 
 Judges of the New York Court of Common Pleas. 
 
 A judge of this court, in addition to the power of 
 entertaining the proceedings in the cases above men- 
 tioned, may also entertain either of these proceedings 
 upon a judgment of any other court than his own, ex- 
 cept one rendered in the City Court of New York, 
 where the execution against property has been issued 
 to the City and County of New York as prescribed in 
 §2458 of the Code of Civil Procedure, and the party 
 proceeded against resides, or has a place of business, in 
 that city and county as required by § 2459 of the Code. 
 The amendment of 1881 to § 2434 of the Code of 
 Civil Procedure left the institution of supplementary 
 proceedings upon judgments recovered outside of the 
 City and County of New York in an awkward plight, so 
 far as the judges of the Common Pleas were concerned. 
 But this defect was remedied by a later amendment to 
 the section by striking out the word inferior, thus re- 
 storing to these judges the power to entertain proceed- 
 ings upon any judgment rendered in the State, no matter 
 in what court, provided the other requisite facts exist. 
 It would seem that §241 of the Code of Civil Proced- 
 ure empowers a judge of a Superior City Court to en- 
 tertain any of these proceedings within his city upon 
 a judgment rendered in the Supreme Court of the State, 
 and also to act within his city in a case provided for in 
 § 2434 of the Code of Civil Procedure, when the judges 
 before whom the proceedings might be instituted are 
 for any reason disabled, etc. 
 
 The law authorizes the Governor of the State to des- 
 ignate judges of the Superior Court of the City of 
 New York, and of the New York Court of Common 
 Pleas, to hold terms of the Circuit Court, and of the spe- 
 
WHAT OTHER JUDGES MAY. 33 
 
 cial term of the Supreme Court in the City of New 
 York ; but it does not expressly empower them to enter- 
 tain any of these proceedings in the place of a Supreme 
 Court justice sitting at chambers in the City of New 
 York. The law confers upon such a judge the power 
 of a justice of the Supreme Court, out of court, to make 
 orders in action or special proceedings in the Supreme 
 Court, but supplementary proceedings are not pending 
 in a court ; they are before judges out of court. 
 
 In proceedings before return of execution in which a 
 paid-up policy of life insurance was discovered, and 
 ordered to be delivered up to the sheriff to levy on and 
 sell, it was held that the judge had jurisdiction of the 
 whole' subject-matter, and his process was valid on its 
 face. Ex-parte McCullough, 35 CaL, 97. 
 
 No other State has such a complicated judiciary, or 
 empowers so many different judges to entertain these 
 proceedings, as New York ; it will therefore suffice to say 
 that in the other States in which supplementary proceed- 
 ings, more or less similar to those in New York, are au- 
 thorized by statute, any court of record in the county to 
 which the execution was issued, as in Indiana, or in 
 vacation by the clerk thereof ; or the court which ren- 
 dered the judgment, or in vacation a judge thereof, as 
 in Iowa ; or the court from which the execution against 
 property issued, or in vacation a judge thereof, as in 
 Missouri ; or the court to which the execution against 
 property is returnable, or a judge thereof, as in North 
 Carolina ; or the court rendering the judgment, or a 
 judge thereof, as in Oregon ; and in other States a judge 
 of the court which rendered the judgment, or out of 
 which the execution against property issued, or a coun- 
 ty judge, or Common Pleas, Probate, or Circuit Court 
 judge of the county in which the judgment debtor re- 
 sides, or to which the execution against property has 
 been issued or a commissioner of the Supreme or Circuit 
 
34 WHAT OTHER JUDGES MAY. 
 
 court, may make the order instituting the proceedings 
 and requiring the party proceeded against to appear 
 and answer. 
 
 In all cases the execution against property must be 
 issued to the county where the judgment debtor resides, 
 or, if a non-resident of the State, then to the county 
 where the judgment-roll or the transcript of a judgment 
 of an inferior court is filed, and in nearly all of these 
 States the judgment debtor, or his bailee or debtor, 
 need not attend for examination in any place without 
 the county of his residence ; and the order in each State 
 requires the party to be examined to appear before the 
 court, or the judge who made the order, or commis- 
 sioner, or referee appointed by the court, or judge 
 to answer concerning the property of the judgment 
 debtor. 
 
 In Virginia and West Virginia the judgment creditor, 
 after return of execution against property unsatisfied, 
 files interrogatories to his debtor with a commissioner 
 of the Circuit Court, or a Corporation Court, and the 
 commissioner thereupon issues a summons to the judg- 
 ment debtor requiring him within a time prescribed to 
 file answers thereto upon oath. 
 
 Held in Kansas that it was not unconstitutional to 
 vest the probate judges with the power to entertain 
 supplementary proceedings. Young w. Ledrick, 14 Kas., 
 92. Held in North Carolina that the resident judge, or 
 the one assigned to the district, or the one holding the 
 courts there by exchange, has the power to entertain 
 the proceedings. Corbin v. Berry, 83 JV. C, 27. IrfWis- 
 consin it is held that a circuit or county judge may 
 entertain the proceedings, but a court commissioner 
 could not. He can make an order requiring the judg- 
 ment debtor to appear before a judge, but that is all. 
 He has no further power over the proceedings, and 
 especially not to punish, as for contempt. I/i re Rem- 
 
BY AND AGAINST WHOM INSTITUTED. 35 
 
 mington, 7 Wis., 643 ; The Second Ward Bank v. 
 Upmann, 12 Wis., 499. The court, as well as a judge 
 thereof, may make the order instituting the proceedings, 
 and appoint a referee to take the examination. Gould 
 V. Dodge, 30 Wis., 621. 
 
 SECTION IV. 
 
 Bj/ whom and against whom m.ay the Proceedings be 
 Instituted. 
 By Whom. 
 
 Any person who is entitled to collect a judgment in 
 whole or in part in his own name may institute either 
 of these proceedings. 
 
 See subd. 13 of § 3343 of the Code of Civil Procedure. 
 The term " judgment creditor " as defined in this subdivi- 
 sion includes every one who owns or becomes the 
 owner of a judgment in his own right, or is entitled in 
 his own right to collect or otherwise enforce it, and he 
 may maintain any of these proceedings on such judg- 
 ment in his own name. See § 1909 of the Code. An 
 assignee of a judgment, whether he is such by a 
 special or general assignment, or by operation of law, 
 may institute the proceedings, although he becomes 
 such assignee after the return of execution. Orr's Case, 
 2^3(J., 457; Frederick z/. Decker, 18 How.,g6; Ross 
 V. Clussman, 3 Sandf., 6^6 ; Crill v. Koenmayer, 56 
 How., 276 ; King v. Kirby, 28 Barb., 49. In this last 
 case it was held that an assignee of the judgment 
 could sue out the warrant authorized by § 2437 o^ the 
 Code of Civil Procedure. The personal representative 
 of a deceased judgment creditor prior to the amend- 
 ment of 1866, to § 283 of the former Code, could not 
 institute these proceedings. He could not issue exe- 
 cution upon a judgment recovered by the judgment 
 
T,6 BY AND AGAINST WHOM INSTITUTED. 
 
 creditor in his lifetime. His only remedy was to bring 
 an action for leave to issue execution. Jay v. Martine, 
 2 JDuer, 654; Wheeler v. Dakin, 12 How., 537. But 
 this amendment to § 283 authorized the duly appointed 
 representative of the deceased judgment creditor to 
 issue execution against property, or institute supple- 
 mentary proceedings any time within five years after 
 the entry of the judgment. Collier v. De Revere, 7 
 Hun., 61, General Term; Scott 7'. Durfee, 59 Barb., 
 390, note. 
 
 But this § 283 of the former Code, together with the 
 amendment thereto, was repealed by ch. 417 of the laws 
 of 1877. The substitute therefor, § 1376 of the present 
 Code, was amended in 1885 by ch. 515, by re-enacting 
 substantially the amendment of 1866, above mentioned, 
 so that the personal representatives of a deceased 
 judgment creditor, or the assignee of the judgment, may 
 institute any of these proceedings within five years. 
 
 In Pardee v. Tilton, 20 Hurt, y6; S. C, 58 How., 
 476, and 9 N. Y. W. Digest, 473, it appeared that the 
 judgment had been recovered and execution against 
 property issued and returned before September, 1877, 
 and the judgment creditor had died in April, 1878. The 
 General Term, First Judicial Department, held that the 
 right of the judgment creditor to these proceedings had 
 accrued before the repealing act of 1877 went into 
 effect, and was unaffected thereby, and passed to his legal 
 representative by the saving and qualifying provisions 
 of § 3 of the same act, ch. 417, laws of 1877; and 
 that the deceased judgment creditor's legal representa- 
 tive might institute the proceedings any time within 
 five years after the entry of the judgment. The same 
 was substantially held in Walker v. Donovan, 6 Daly, 
 552 ; S. C, 53 How., 3, Sp. T., the execution having been 
 issued and returned in the lifetime of the creditor. 
 See also Bean v. Tonnelle, 24 Hun, 352 ; S. C, i Code 
 
BY AND AGAINST WHOM INSTITUTED. 37 
 
 Procedure R., 33. These decisions were all made before 
 the amendment of 1885 to § 1376 of the present Code. 
 
 A receiver of a corporation may institute proceedings 
 in the name of the corporation after it has ceased to 
 exist, and procure the appointment of a receiver of the 
 judgment debtor's property. Wright v. Nostrand, 94 
 N. v., 31, overruling S. C. in 47 JV. Y. Superior Court, 
 441, where it had been held that the proceedings must 
 be brought in the name of the owner of the judgment. 
 
 Here the proceedings and the appointment of a re- 
 ceiver therein were had under the former Code, in which 
 the proceedings were held to be in the original action, 
 and the title of the original action was properly pre- 
 served throughout all the proceedings. 
 
 An attorney who has a lien on a judgment for his 
 costs and fees may institute and maintain these pro- 
 ceedings for the collection of the amount of such lien ; 
 but he cannot collect any more ; and these should be 
 liquidated. 
 
 The affidavit by which the proceedings are instituted 
 must show the status of the attorney and the amount 
 of costs and fees to which he is entitled. Russell v. 
 Summerville, 10 Abb. {JV. C), 395 ; S. C, 4 N. Y. Mo. 
 L. Bull., 3 ; Supreme Court, Barrett, J. 
 
 An attorney's Hen on a judgment for his services was 
 always recognized ; the presumptive value of which was 
 the amount of the costs taxed and entered therein ; but 
 by agreement with the plaintiff the amount of his claim 
 might be more than the taxed costs ; and for this 
 amount, whatever it is, either by express agreement 
 on quantum meruit, he might prosecute supplementary 
 proceedings. This rule extends to judgments in causes 
 of action which in themselves were not assignable — 
 that is, although the attorney might not have a lien 
 for his services upon the cause of action, even by § 66 
 of the Code of Civil Procedure as amended in 1879 on 
 
38 BY AND AGAINST WHOM INSTITUTED. 
 
 the ground that the cause of action is not assignable, 
 yet he would have upon the judgment recovered 
 therein, and could maintain proceedings for the col- 
 lection of the same. See Pulver v. Harris, 52 N. Y., 
 73. Eberhardt v. Schuster, 10 Abb. {N. C), 392, note, 
 holds that since the amendment of 1879 to §66 of the 
 present Code an attorney in proceedings to collect his 
 fees and costs where the parties have settled without 
 paying him, need not allege fraud. He has the right 
 to prosecute proceedings for the enforcement of his 
 lien, although the judgment creditor had previously 
 made an assignment for the benefit of his creditors ; 
 the assignee in such case takes subject to the attor- 
 ney's lien. Merchant v. Session, 5 JV. Y. Civil Pro. R., 
 24, N. Y. City Ct., Sp. T., Hyatt, J. 
 
 The attorney always had a lien upon the judgment for 
 his services and disbursements therein. All that the 
 amendment of 1879 to §66 of Code of Civil Procedure 
 did was to extend that lien to the action' or to a counter- 
 claim before it terminated in a judgment. However, we 
 have nothing to do here with liens in actions prior to 
 judgments. If the client agrees to give the attorney, in 
 addition to the taxed costs, a certain share of the 
 recovery, as compensation for his services and disburse- 
 ment the lien upon the judgment recovered will include 
 this entire amount. See Brown v. Mayor, 9 Hjin, 
 587, and 7iote to Eberhardt v. Schuster, 10 Abb. {N. C), 
 392. Whether, where the judgment debtor settles with 
 and pays the amount of the judgment to his creditor, 
 without the knowledge or consent of the attorney and 
 without any knowledge or information on the part of 
 the judgment debtor' that the attorney has a claim or 
 lien thereon, he can be held for a larger lien on the 
 judgment than the taxable costs, or not, is a question 
 of some importance. It seems clear that he cannot ; 
 for this additional compensation is the result of a spe- 
 
BY AND AGAINST WHOM INSTITUTED. 39 
 
 cial agreement between client and attorney which the 
 judgment debtor cannot be presumed to know. The 
 Court of Appeals held that an attorney retained to col- 
 lect a claim had authority by virtue of his original re- 
 tainer after recovering judgment to institute these pro- 
 ceedings and procure the appointment of a receiver. 
 
 Ward V. Roy, 69 N. Y., 96. This decision was made 
 under the former Code and on the ground that these 
 proceedings were in the original action. Does, how- 
 ever, the mere fact that the proceedings are declared 
 to be special proceedings in the present Code oust the 
 attorney from this authority? It cannot be; for his 
 retainer in such case is to collect the claim — that is, to 
 employ the usual means and processes known to the 
 law to accomplish that end. But after the death of 
 the judgment creditor the attorney of record has no 
 authority to prosecute these proceedings on his behalf. 
 Amor6 v. La Mothe, 5 Abb. {N. C), 146. On the same 
 principle of an attorney's lien, any other person having 
 a lien on the judgment may institute proceedings 
 thereon to collect the same except where the judgment 
 debtor has paid or settled the judgment without knowl- 
 edge or information of such lien. 
 
 As to Taxes. 
 
 The supervisor of a town or ward, or the treasurer of 
 a county and the president of village trustees, or the 
 treasurer thereof, may institute these proceedings for 
 the collection of a tax exceeding ten dollars. See be- 
 low, Section V. of this chapter. 
 
 Against Whom as Judgment Debtors. 
 
 The proceedings may be instituted against any per- 
 son against whose property, both real and personal, 
 an execution may be issued lawfully on a money judg- 
 ment for a sum not less than twenty-five dollars, for 
 the purpose of collecting the same. This statement 
 
40 BY AND AGAINST WHOM INSTITUTED. 
 
 has some exceptions, which will be mentioned herein- 
 after. 
 
 Married Women. 
 
 As a personal judgment may now be rendered against 
 a married woman and enforced by execution the same 
 as if she was z.feine sole, proceedings may also be taken 
 against her upon such judgment. Thompson v. Sar- 
 geant, 15 Abb., 452, decided since §§274 and 287 of the 
 former Code were amended. See § 1206 of the Code of 
 Civil Procedure. Williams v. Carroll, 2 Hilt., 438, to 
 the contrary, was decided prior to the above amend- 
 ments, and must be regarded as overruled on this 
 point. In South Carolina proceedings may be taken 
 against a married woman as a judgment debtor, although 
 the execution against property does not state that the 
 judgment is to be collected out of her separate estate 
 and not otherwise as the statute requires, for the omis- 
 sion of this direction at most is a mere irregularity, and 
 cannot be assailed in a collateral proceeding. Clerckseale 
 V. Hall, 15 .S. C, 602. 
 
 Proceedings may also be taken against a sheriff as a 
 judgment debtor. Potts v. Davidson, 1 1 How. Prac. R. 
 {N. S.), 216. 
 
 Joint Debtors. 
 
 Proceedings may also be taken separately against one 
 of several judgment debtors on the same judgment, 
 whether the execution against property was issued 
 against all the debtors or only against some ; but in 
 such case to enable the judgment creditor to institute 
 proceedings against one only of several debtors, the 
 execution must in terms have run against the joint 
 property of all the debtors. They may also be prose- 
 cuted against one or more of several joint debtors, where 
 some of them have not been served with the summons 
 and no judgment has been rendered against the latter 
 
BY AND AGAINST WHOM INSTITUTED. 4I 
 
 separately, and the joint property and choses in action, 
 etc., of all the debtors may be reached in such proceed- 
 ings, provided the execution has been issued as prescrib- 
 ed in §§ 1934 and 1935 of the present Code. See §2461 
 of Code of Civil Procedure. 
 
 Proceedings may be taken against joint judgment 
 debtors before return of execution issued against their 
 joint property, as well as after return. Wieller v. Law- 
 rence, 81 N. C, 65. 
 
 In West Virginia, where on return of execution against 
 property interrogatories are filed to the judgment debtor 
 which he is required to answer, they need not be filed 
 to all the debtors named in an execution. They may 
 be filed to one or more, and not to all. Lewis v. Roslar, 
 19 W. Va., 61. 
 
 Infant Judgment Debtors. 
 
 The proceedings may be taken upon a judgment 
 against an infant, because at the most such a judgment 
 is only irregular, not void, and the irregularity cannot 
 be inquired into on collateral proceedings. Lederer v. 
 Ehrenfeld, 49 How., 403, N. Y. Superior Ct., Sp. T. 
 
 Lunatics. 
 
 In North Carolina a judgment debtor who, after the 
 rendition of the judgment, is adjudged a lunatic, and has 
 a guardian appointed, is liable to these proceedings. 
 Blake v. Respass, 'jy N. C, 193. 
 
 Delinquent Tax-payer. 
 
 A tax-payer against whom a tax exceeding ten dol- 
 lars has been returned uncollected for want of goods 
 and chattels out of which to collect the same may be 
 proceeded against for the collection thereof before a 
 county judge, or special county judge, of the same 
 county where the tax-payer resides. See above, under 
 this same section. 
 
42 BY AND AGAINST WHOM INSTITUTED. 
 
 In South Carolina proceedings may be instituted 
 against an administrator upon a judgment against him 
 in the Probate Court upon the final settlement of the 
 estate of his intestate, for such a judgment is against 
 him personally. Rhoades v. Casey, 20 S. C, 491. 
 
 No proceedings can be taken or maintained against a 
 judgment debtor under arrest on execution against his 
 person issued upon the same judgment. Logan v. Ferris, 
 1852, per Daly, J. The reason is, that the taking of the 
 body on execution is a satisfaction of the judgment so 
 long as it continues and prevents further proceedings 
 upon the judgment. Cooper i/. Bigalow, I Cozu., 56; 
 McGuinty v. Herrick, 5 Wend., 240 ; Chapman v. Hatt, 
 II Id., 41. No creditor's bill could be filed against the 
 debtor while he was charged in execution. Stillwell v. 
 Epps, I Paige, 615. But in case the debtor be dis- 
 charged from arrest or the execution set aside for irreg- 
 ularity, the proceedings may be taken against him. 
 Daly, J., supra. 
 
 Foreign Ministers, Consuls, etc. 
 
 No proceedings can be taken in a State Court against 
 a foreign consul, although he permitted judgment to 
 pass against him. He and all foreign ministers are 
 under the exclusive jurisdiction of the national courts. 
 Griffin v. Dominquez, 2 Duer, 656. But as the judges 
 of the national courts situated in the State and in other 
 States which provide this remedy have the authority to 
 institute and maintain these proceedings, foreign min- 
 isters, etc., may be subjected thereto as well as to any 
 other proceeding in these courts if amenable to any ac- 
 tion on proceeding. 
 
 Corporations. 
 
 No proceedings can be taken in this State against a do- 
 mestic corporation as a judgment debtor, nor against a 
 foreign corporation as a judgment debtor when the 
 
BY AND AGAINST WHOM INSTITUTED. 43 
 
 latter does business within this State or has here a busi- 
 ness agency, or a fiscal agency, or an agency for the 
 transfer of its stock. See §§2463 and 1812 of the Code 
 of Civil Procedure ; Hinds v. Canandaigua and Niagara 
 Falls R. R. Co., 10 How., 487 ; Hammond v. The Hud- 
 son River Iron, etc. Co., 1 1 Id., 29 ; Sherwood v. The 
 Buffalo and New York City R. R. Co., 12 Id., 136. The 
 distribution of the assets of an insolvent corporation is 
 within the exclusive jurisdiction of a Court of Equity, 
 which is to distribute the same ratably among all its 
 creditors ; and the issue and return of an execution 
 against property unsatisfied is proof of such insolvency. 
 See 2 R. S., p. 463, §36. Although the equity of the 
 statute excepts corporations from proceedings when the 
 execution against property has not yet been returned, 
 §2463, above named, expressly extends this prohibition 
 to all proceedings before as well as after return of an 
 execution against property. 
 
 In Courtois v. Harrison, i Hilt., 109 ;S. C, 3 Abb., 
 96, and 12 How., 359, it was questioned whether the Re- 
 vised Statutes include other bodies in this prohibition, 
 such as stock companies, or not. 
 
 Some of the other States of the Union allow these 
 proceedings against corporation judgment debtors as 
 well as against natural persons, and some do not. In 
 North Carolina proceedings are permitted against a pri- 
 vate corporation as a judgment debtor which was created 
 by a special act of the legislature and organized for the 
 private gains of its shareholders. La Fountain v. South- 
 ern Underwriters' Association, 79 N. C, 514. The pro- 
 visions of the Revised Statutes as to insolvent corpora- 
 tions extend only to corporations organized under the 
 General Act of North Carolina. The statutes of Ohio 
 provide for a summary proceeding of garnishment upon 
 a judgment against a railroad company recovered for 
 labor or materials furnished to the company. The pro- 
 
44 BY AND AGAINST WHOM INSTITUTED. 
 
 ceedings are similar to those against a debtor or bailee 
 of the judgment debtor in New York. 
 
 In Indiana proceedings may be maintained upon a 
 judgment against a corporation, and a person having in 
 his possession personal property of the corporation or in- 
 debted to it may be required to appear and answer con- 
 cerning the same. Tompkins v. The Floyd County Agri- 
 cultural Association, 19 Ind., 197 ; also 68 Id., 458 ; 69 
 Id., 272 ; 72 Id., 19. So in Wisconsin proceedings can 
 be instituted upon a judgment against a private corpo- 
 ration. Balston Spa Bank v. Marine Bank of Mil- 
 waukee, 18 Wh., 4go. But no proceedings can be main- 
 tained against the holder of commercial paper trans- 
 ferred to him by the judgment debtor in payment of a 
 pre-existing debt. He cannot be made a party to these 
 proceedings under the Indiana statute. McKnight v. 
 Knisely, 25 Ind., 336. Here there was no evidence 
 that the transfer of this commercial paper might be 
 fraudulent. 
 
 In the State of Kansas, when a person recovers a 
 judgment against an incorporated company he may ob- 
 tain from the court rendering the judgment an execu- 
 tion against the property of a stockholder of the com- 
 pany upon notice and motion under ch. 28 of the gen- 
 eral statutes of that State ; but the stockholder is not 
 a judgment debtor within the contemplation of the 
 statutes of Kansas so as to subject him to proceedings 
 in aid of execution, because the judgment against the 
 company is not a lien on the real property of the stock- 
 holder ; and an execution against him would not reach 
 this property, and thus exhaust the remedy at law. Hen- 
 tig V. James, 22 Kas., 326. 
 
 Executors, etc. 
 
 No proceedings can be taken against the representa- 
 tive of a deceased judgment debtor in order to reach 
 
BY AND AGAINST WHOM INSTITUTED. 45 
 
 the property of the deceased, because the assets of a 
 decedent pass into the Surrogate's Court for adminis- 
 tration and distribution according to certain rules pre- 
 scribed by statute. 
 
 Trustees. 
 
 Nor can any proceedings be taken against a trustee, 
 personally, upon a judgment against him in his repre- 
 sentative capacity, except for the costs of the action. 
 In re Jung, 16 N. Y. W. Digest, 563, N. Y. Court of 
 Common Pleas, General Term. Here an assignee un- 
 der an assignment to him for the benefit of creditors 
 obtained on petition a general citation to all persons in- 
 terested to attend his final accounting. A decree was 
 made therein and filed on the application of the assignee, 
 and with the consent of the creditors of the estate, 
 whereby he was directed to pay a dividend of ten per 
 cent to the creditors out of a fund of $14,000 in his 
 hands. There was no provision in the decree for the 
 entry of a judgment against the assignee personally; 
 one creditor entered a judgment on this decree in his 
 own favor and against the assignee for $2,688.92, being 
 his share of the dividend on the accounting, and issued 
 execution thereon against property, and upon its return 
 unsatisfied, instituted proceedings against the assignee 
 personally. It was held that he could not maintain the 
 proceedings ; that the decree was against the assignee 
 as a trustee, and in such case no personal judgment 
 could be entered against him unless provision therefor 
 were made in the decree ; that a trustee is not liable, 
 personally, unless he has been guilty of a breach of trust 
 nor can he be charged personally for a breach of trust 
 without having an opportunity to be heard ; and supple- 
 mentary proceedings on such a judgment were held to 
 be not merely irregular, but void. But an assignee de- 
 fending an action brought against his assignors, under a 
 
46 BY AND AGAINST WHOM INSTITUTED. 
 
 substitution granted by court, is liable to these proceed- 
 ings as a judgment debtor for the collection of the costs 
 of the action. He is, however, not personally liable to 
 pay the costs, unless the court so orders. Felt v. Dorr, 
 29 Hun, 4 S. C, 16 N. Y. W. Digest, 385. Here two 
 persons. Felt & Bell, made a general assignment for the 
 benefit of their creditors, to the defendant Dorr. At 
 the time of the assignment an action was pending 
 against them as partners. Dorr obtained leave of court 
 to come in and defend the action as defendant ; judg- 
 ment was rendered against Dorr and his assignors for 
 damages and costs. Execution issued for the collec- 
 tion of these costs was returned unsatisfied. Proceed- 
 ings were then instituted against the assignee. It was 
 held that Dorr was a trustee of an express trust (Cun- 
 ningham V. McGregor, 12 How., 305 ; Conger v. H. R. 
 R. R. Co., 7 Abb., 255); that the Code of Civil Proced- 
 ure provides that in an action brought against a trus- 
 tee of an express trust costs must be awarded as in an 
 action against such a person defending in his own right, 
 but that they are exclusively chargeable upon and col- 
 lectable out of the estate or fund which he represents, 
 and are preferred, unless the court directs them to be 
 personally paid for his mismanagement. § 3240 of the 
 Code. 
 
 No proceedings can be instituted against a trustee in 
 his representative capacity upon a judgment against 
 him as trustee, especially so when the execution against 
 property has been returned unsatisfied, for the trustee 
 represents a fund or estate, and if the estate is insolvent 
 as is indicated by the return of the execution unsatisfied, 
 the fund must be equitably distributed among all credit- 
 ors and claimants, and not be absorbed by one judgment 
 creditor, to the entire exclusion perhaps of all the others, 
 which these proceedings tend to do. Neither can a per- 
 son institute proceedings in his personal capacity against 
 
BY AND AGAINST WHOM INSTITUTED. 47 
 
 himself in his representative capacity. It is impossible 
 for a person to sue himself. Such proceedings must be 
 collusive, and therefore void. Matter of Livingston, 27 
 Hun, 607, General Term. See Stillwell v. Carpenter, 59 
 N. v., 414. 
 
 As ag:ainst Bailees or Debtors of Judgement Debtors. 
 
 Proceedings may be instituted against any person or 
 corporation that has possession of personal property 
 exceeding ten dollars belonging to the judgment debtor 
 or is indebted to him in a sum exceeding ten dollars. 
 See § 2441 of the Code of Civil Procedure. 
 
 This designation of any person or corporation in 
 §2441 includes every person, company, corporation, or 
 association of persons. It includes unincorporated asso- 
 ciations of seven or more persons, who must ,be pro- 
 ceeded against as provided in § 1919 of the Code of 
 Civil Procedure. But -there are some exceptions to 
 the above rule, which will be noted below. 
 
 Married Woman. 
 
 Clerke, J., held at Chambers in the N. Y. Su- 
 preme Court that the wife of the judgment debtor al- 
 leged to have his property in her possession or control 
 could not be examined concerning it in these proceed- 
 ings. Lockwood V. Worstell, 1 5 Add., 430, note. But this 
 decision is not law now. In fact, some of the other 
 justices on the same bench at the time held the contra- 
 ry, and to the contrary is also Macondray v. Wardle, 7 
 Al/l/., 3. A wife can now be examined for or against 
 her husband upon any subject whatever, but she can- 
 not disclose confidential communications made to her 
 during marriage. §§828 and 831 of the Code of Civil 
 Procedure. 
 
 It is held in Wisconsin that a married woman may be 
 required to appear and testify concerning property be- 
 longing to her husband, the judgment debtor, which 
 
48 BY AND AGAINST WHOM INSTITUTED. 
 
 property it was alleged was in her possession and under 
 her control. Petition of O'Brien, 24 Wis., 547. 
 
 Infants. 
 
 If an infant has in his posession or under his control 
 personal property, or a specific sum of money belong- 
 ing to the judgment debtor not exempt from execution, 
 there is no reason why proceedings should not lie 
 against him to reach it. But no proceedings would lie 
 against hin to reach a debt due or claimed to be owing 
 to the judgment debtor upon contract, because no con- 
 tract can be enforced against an infant. 
 
 No proceedings can be maintained against a bailee 
 or debtor of a corporation judgment debtor to reach 
 personal property or an indebtedness, for the same 
 reason that no proceedings can be instituted against the 
 corporation itself. The principle of law which in New 
 York prohibits proceedings against a corporation as a 
 judgment debtor does not apply to a corporation as 
 bailee or debtor of a judgment debtor. Proceedings 
 may also be taken against the debtor or bailee of a 
 foreign corporation upon a judgment against the lat- 
 ter, unless it has a business agency in the State, as 
 provided in §§2463 and 1812, Code of Civil Procedure. 
 McBride v. The Farmers' Branch Bank, 7 AM., 347. 
 But a receiver of a foreign corporation appointed in 
 another State will not be subjected to examination in 
 these proceedings, or required to pay over money due 
 a judgment creditor. Smith v. McNamara, 1 5 Jltm, 47. 
 
 The surrogate of Westchester County, New York, 
 held that the county judge of Westchester had no 
 power to interfere by supplementary proceedings with 
 the surrogate's disposal of a fund in his court to be dis- 
 tributed as directed by statute ; and order him to pay 
 any part thereof otherwise than as the statute directs. 
 Davis V. Davis, 4 Redfield, 355. Here the judgment 
 
BY AND AGAINST WHOM INSTITUTED. 49 
 
 debtor was entitled to a share in surplus money arising 
 from the sale of real estate of a decedent. The proceeds 
 of the sale were paid to the surrogate, to be distributed 
 by him under the statute of distribution. 
 
 In Indiana, where proceedings may be maintained 
 upon a judgment against corporations, proceedings may 
 also be instituted against a bailee or a debtor of the cor- 
 poration. Tompkins v. The Floyd County Agricult- 
 ural Association, 19 Ind., 197. The statutes of Indi- 
 ana authorize these proceedings against private or or- 
 dinary business corporations as judgment debtors. Wal- 
 lace V. Sawyer, 54 Id., 501. 
 
 A bank which is made the depository of the United 
 States bankruptcy court has no power to pay out any 
 funds so deposited except upon the order of that court, 
 and such funds cannot be reached by supplementary 
 proceedings. Havens v. National City Bank of Brook- 
 lyn, 4 Hun, 131; S. C, 6 N. Y. Supreme Court {T. 
 and C.) R., 346, General Term. A bank is not made a 
 party (third party proceedings) by the mere issuing of 
 a notice to and the service thereof upon its president 
 and cashier to appear and testify concerning the in- 
 debtedness of the bank to the judgment debtor, so as 
 to create a lis pendens against the bank without other- 
 wise naming the bank, or otherwise indicating the ob- 
 ject of the order. The Union Bank of Rochester v. 
 The Union Bank of Sandusky, 6 Ohio State, 254. 
 
 The service of a judge's order issued against a debtor 
 of the execution debtor has the effect of lis pendens. 
 6 O. S., 254, supra. 
 
 No third party proceedings can be taken against a 
 public disbursing officer for the purpose of reaching a 
 salary or wages in his hands due to an officer or other 
 person who is a judgment debtor ; and proceedings of 
 this kind will be dismissed on motion. The disbursing 
 officer in such case is merely the trustee of the public 
 
50 BY AND AGAINST WHOM INSTITUTED. 
 
 to hold and disburse its money intrusted to him for 
 certain specific objects. Remmey v. Gedney, i City 
 Ct. R. 28; S. C, 57 How., 217; N. Y. City Ct., 
 McAdam, J.; Cornell v. Funk, Id., 35, note; Waldman 
 V. O'Donnell, Id., 215; S. C, i N. Y. M. Bull., 47; 
 Lowber v. Mayor, etc., of N. Y., 7 Abb., 248 ; Anon, i 
 Code {N. S.), 211. This principle of public policy in- 
 cludes all financial or disbursing officers having in their 
 hands as trustees of the public salaries or wages to be 
 paid to officers or other persons — such as county treas- 
 urers, comptrollers, sheriffs, clerks of counties, pursers of 
 the navy, etc. This same principle prevails very gen- 
 erally throughout the Union. It is the law of the 
 Supreme Court of the United States. Buchanan v. 
 Alexander, 4 How. {U. S.), 20. But this exemption 
 from proceedings does not extend to a case where the 
 disbursing officer or municipal corporation holds prop- 
 erty of, or is indebted to a judgment debtor — not as 
 trustee for the public, but in a personal capacity. 
 
 The Supreme Court in the first judicial district held 
 that a judgment creditor of a municipal corporation 
 might institute proceedings against a person indebted 
 to or having funds of such corporation, as the cham- 
 berlain of the City of New York ; that the private 
 property of a municipal corporation was liable for its 
 debts, and might be enforced in the ordinary mode of 
 collecting debts ; but that public moneys raised by a 
 municipal corporation pursuant to law for govern- 
 mental purposes and in the hands of its fiscal agent 
 could not be reached ; for such moneys are trust funds. 
 They belong to the people, to be used in the adminis- 
 tration of the government. Lowber v. The Mayor, etc., 
 of N. Y., 7 Abb., 248. 
 
 It is held in Anon., i Code {N. S.) R., 211, that the clerk 
 of a court or the chamberlain of the City of New York, 
 with whom is deposited money arising from the sale of 
 
ON WHAT JUDGMENTS ISSUED. 51 
 
 real estate on foreclosure of a mortgage, could not be 
 examined in these proceedings for the purpose of reach- 
 ing such money. 
 
 In Indiana no proceedings can be instituted against a 
 municipal corporation or a body politic and corporate 
 to compel it to answer as to its indebtedness to an ex- 
 ecution debtor for his salary or wages, or fees as an ofificer 
 of the county, nor can proceedings be maintained 
 against a county treasurer or a board of commissioners 
 of a county to reach an indebtedness of such county 
 to an execution debtor for his salary as an officer of 
 such county. 
 
 It is against public policy to authorize such proceed- 
 ings. Wallace v. Lawyer, 54 Ind., 501. 
 
 In Ohio the salaries of officers of incorporated cities, 
 due and unpaid, may be reached by a judgment creditor 
 of such officers under the provision of the Ohio Code 
 of Civil Procedure. The City of Newark f. Funk, 15 
 O . 5., 462. 
 
 No proceedings can be maintained against a bailee or 
 debtor of a judgment debtor who has been charged 
 in execution issued against his person, so long as 
 such arrest continues ; and generally no proceedings 
 can be maintained against a third party as bailee or 
 debtor of the judgment debtor where no proceedings 
 lie against the latter himself. 
 
 SECTION V. 
 
 On what Judgments and Executions. 
 
 § 2458. " In order to entitle a judgment creditor to 
 maintain either of the special proceedings authorized 
 by this article, the judgment must have been rendered 
 upon the judgment debtor's appearance, or personal 
 
52 ON WHAT JUDGMENTS ISSUED. 
 
 service of the summons upon him, for a sum not less 
 than twenty-five dollars, and the execution must have 
 been issued out of a court of record ; and either 
 
 " (i) To the sheriff of the county where the judg- 
 ment debtor has, at the time of the commencement of 
 the special proceeding, a place for the regular transac- 
 tion 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 execution 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 tran- 
 script of the judgment is filed." 
 
 This section contains a part of § 292 of the former 
 Code, remodelled, and the additional provision, which is 
 not found in the old Code, that to entitle the judgment 
 creditor to maintain any of these proceedings the judg- 
 ment must have been rendered upon the judgment 
 debtor's appearance or personal service of the summons 
 upon him. However, under the former Code the Court 
 of Appeals and the Supreme Court decided that when 
 the summons had not been personally served upon the 
 debtor, and he had not appeared in the action in which 
 judgment had been rendered, the proceedings could not 
 be maintained against him. 
 
 Bartlett v. McNeil, 60 N. V., 53, afl'g S. C, 49 //ow., 
 55, and 5 Supreme Ct. R. (T. & C), 675 ; Bartlett v. Spicer, 
 75 N. v., 528 ; S. C, aff'g 12 Hun., 398. 
 
 Service of the summons upon a person designated 
 for that purpose by § 430 of the Code of Civil Pro- 
 cedure is equivalent to a personal service thereof upon 
 the judgment debtor to authorize these proceedings. 
 But can proceedings be maintained upon a judgment 
 rendered on a substituted service of the summons 
 
ON WHAT JUDGMENTS ISSUED. 53 
 
 pursuant to §§ 438-445 of the Code of Civil Procedure, 
 and when the defendant does not appear in the action, 
 although he may be personally served without the State ? 
 Proceedings may be maintained upon a judgment 
 against a plaintiff in the action. The above-named sec- 
 tion (2458) does not apply to him ; he appears and 
 submits himself voluntarily to the jurisdiction of the 
 court. Davis v. Herrig, 65 How., 290, Supreme Court, 
 Special Term ; Bean v. Tonnelle, 24 Hun, 353; S. C, 
 I Civ. Pro. R., 133. In New York proceedings may be 
 taken upon any judgment or decree of any court of the 
 State when such judgment or decree directs the payment 
 of a sum of money, as the whole or part of the relief 
 granted, and for the collection of which an execution at 
 law may be issued against both real and personal prop- 
 erty, and the debtor can be proceeded against as above 
 stated ; and also for the collection of a tax exceeding ten 
 dollars which has been levied by the board of supervisors 
 of a county, or the board of trustees of a village, and 
 which is returned uncollected by the collector. There are 
 some exceptions to these which will be noted below. 
 If the judgment is of a court not of record, it must be 
 first docketed into a court of record, by filing and 
 docketing a transcript thereof with the clerk of the 
 county where it was rendered, and the execution against 
 property must be issued from the court into which it 
 was so docketed. Under the former Code such a judg- 
 ment had to be for at least twenty-five dollars, exclusive 
 of costs, in order to sustain proceedings of any kind. 
 Wolf V. Jordan, 22 Hun, 108 ; Potter v. Law, 16 Barb., 
 549; Conway v. Hitching, 9 Id., 378; Vulte v. White- 
 head, 2 Hilt., 596; Butts V. Dickenson, 12 Abb., 60; 
 S. C, 20 How., 230; Anon., 32 Barb., 201, overruling 
 Condee v. Gundelsheimer, 17 How., 434. The present 
 Code (§ 3043) provides that the execution issued upon a 
 judgment of a justice of the peace for a sum less than 
 
54 ON WHAT JUDGMENTS ISSUED. 
 
 twenty-five dollars, exclusive of costs, must omit the 
 direction to the sheriff to satisfy the same out of the 
 real property of the judgment debtor. Hence no pro- 
 ceedings can be ijistituted on such a judgment. This 
 section includes the District Courts of the City of New 
 York and other district and Justices' Courts. Under the 
 former Code proceedings might be taken upon a judg- 
 ment of a court of record for any amount, even for costs. 
 Bennett v. Doody, Special Term, N. Y., Transcript of 
 December 8th, i860; 2 Tillinghast and Shearman s Prac- 
 tice, 855. The present Code does not authorize proceed- 
 ings upon a judgment of a court of record for less than 
 twenty-five dollars, and at first did not permit proceed- 
 rngs upon a judgment wholly for costs. But by a recent 
 amendment this is allowed, and proceedings may now be 
 instituted upon a judgment of a court of record wholly 
 for costs, if it amounts to twenty-five dollars or over. 
 See Davis v. Herrig, 65 How., 290, supra. A judgment 
 of the Municipal Court of the City of Rochester must 
 be for twenty-five dollars at least, exclusive of costs, 
 in order to sustain supplementary proceedings. Laws 
 of 1880, ch. 14, § 6. See §§ 3043 and 3226 of the Code 
 of Civil Procedure, and Mason v. Hackett, 2\ N.Y. W. 
 Digest, yg. 
 
 Proceedings may also be taken upon a judgment re- 
 covered in an action against joint debtors, when the 
 summons commencing the action was served upon only 
 some of them, and those not served failed to appear in 
 the action. But the execution in such case must run 
 against the joint property of all, and the separate prop- 
 erty of those against whom the judgment was rendered 
 upon their personal service or appearance in the action, 
 in order to exhaust the remedy at law ; and the pro- 
 ceedings can only reach the joint property of all and 
 the sole property of those above mentioned. See 
 §2461 of the Code of Civil Procedure, /^j/, ch. 3, §5; 
 
ON WHAT JUDGMENTS ISSUED. 55 
 
 also Emory v. Emory, 9 How., 130; Jones v. Zuphin, 
 I Code R., 94 ; S. C, i Sand/., 722. 
 
 So proceedings may also be maintained against one 
 or more of joint judgment debtors. It need not be 
 taken against all at the same time ; and each joint 
 debtor may be examined as to the joint property in 
 separate proceedings ; but the execution must also have 
 run against the joint property of all and the sole property 
 of those defendants against whom the judgment was 
 rendered. 
 
 According to the decisions of Pardee v. Tilton, 20 
 Hun, 76, and Bean v. Tonnelle, 24 Id., 353 ; S. C, i 
 Civ. Pro. R., 133, that rights which had accrued to a 
 judgment creditor under the former Code, and existed 
 when the present one went into effect, are preserved by 
 § 3352 of the Code of Civil Procedure and the qualify- 
 ing provisions of § 3, ch. 417, laws of 1877, the right to 
 institute these proceedings in a case in which the creditor 
 had such right under the former Code seems to be pre- 
 served by the same provisions. Thus in Bean v. Ton- 
 nelle, supra, the judgment was for costs, and the pro- 
 ceedings were taken in October, 1880, after the new 
 Code went into operation ; and § 2458 at that time did 
 not permit proceedings upon judgment for costs only. 
 This point was taken, but the court overruled it on the 
 ground that the judgment had been recovered and exe- 
 cution against property issued and returned while the 
 former Code was in force, which entitled the judgment 
 creditor to proceedings on a judgment for costs of a 
 court of record, and that this right was preserved to 
 him when the present Code went into effect by § 3352 ; 
 thus distinguishing this case from Armstrong v. Cum- 
 mings, 2 N. V. Mo. L. Bull., 94, in which the right to 
 institute the proceedings did not exist on September 
 1st, 1880, the time when this part of the New Code went 
 into force. The principle of the decisions in Pardee v. 
 
56 MAY BE ISSUED TO COLLECT INTEREST — TAXES. 
 
 Tilton, etc., is, that when the right to institute any 
 of these proceedings had accrued prior to and existed 
 at the time when the Code of Civil Procedure went into 
 effect, the saving and qualifying provisions of §3352, 
 and of § 3, ch. 417, laws of 1877 preserve that right, and 
 the remedy then existing must be pursued. The proof, 
 for instance, to obtain the order in such case need only 
 conform to the practice which existed while the former 
 Code was in force. But where the right to institute 
 any of these proceedings accrued since September ist, 
 1880, they are special proceedings, and governed by the 
 provisions of the Code of Civil Procedure. Baldwin v. 
 Perry, i N. V. Civ. Pro. R., 40 ; S. C, 3 N. Y. Mo. L. 
 Bull., Supreme Ct., BARRETT, J. 
 
 To Collect Interest. 
 
 When the face of the judgment is paid, proceedings 
 may be instituted and maintained to collect the unpaid 
 interest and disbursements of it. Johnson v. Tuttle, 17 
 Abb., 3 IS, N. Y. Com. Pleas, General Term. Either of 
 these proceedings may be taken upon a judgment en- 
 tered in the City and County of New York, upon a rec- 
 ognizance forfeited in a criminal court of the county. 
 The judgment in the forfeited recognizance is entered 
 in the New York Court of Common Pleas, and becomes 
 a judgment of that court. See 3 R. 5. (sth ed.), p. 79, 
 §§46 and 48, and session laws of 1854, ch. 198, § 6. 
 
 Any of these proceedings may also be instituted 
 upon such decrees of the late Court of Chancery and 
 judgments of the old Supreme Court and the courts of 
 Common Pleas of the different counties as are not yet 
 outlawed. 
 
 Collection of Taxes. 
 
 Any of these proceedings may be taken to collect a 
 tax from a delinquent tax-payer. The statutes pro- 
 
MAY BE ISSUED TO COLLECT TAXES. 5/ 
 
 vide that where a tax exceeding ten dollars in amount 
 is levied by the Board of Supervisors of a county or 
 by the Board of Trustees of a village against a person 
 or firm, estate, or corporation resident thereof is re- 
 turned by a collector to the county or village treasurer, 
 as the case may be, uncollected, for want of goods and 
 chattels out of which to collect the same, the super- 
 visor of the town or ward, or the county treasurer, or 
 where the tax was levied by village trustees, then the 
 president or treasurer of the village, within one year 
 thereafter, may apply on affidavit to the county judge 
 or the special county judge of the county, and obtain 
 an order requiring said person, firm, estate, or corpora- 
 tion to appear before the judge or referee named in 
 the order and answer concerning his property. The 
 same proceedings may thereupon be had, in all respects, 
 as in supplementary proceedings ; costs may be allowed 
 against the delinquent tax-payer, but none in his favor, 
 and the tax when collected shall be paid over to the 
 county treasurer, or if a village tax, then to the village 
 treasurer. Session laws of 1867, ch. 361 ; of 1879, '^^■ 
 446; and of 1 88 1, ch. 640. 
 
 But no proceedings can be taken before a judicial 
 officer of the State upon a judgment recovered in a na- 
 tional court, although the judgment is docketed in a 
 county clerk's ofifice, under §271 of the present Code, 
 now repealed. Tompkins v. Purcell, 12 Jlun, 662, Gen- 
 eral Term, First Jud. Dept.; also see Davis v. Breens, 11 
 N. V. W. Digest, 436, same court and department. 
 General Term. 
 
 The scope of these remedies limits their operations 
 to judgments recovered in the courts of this State. 
 The national courts constitute a foreign jurisdiction 
 in respect to the courts of the several States. Booth 
 V. Clark, 17 How. [U. S.), 322, and their judgments are 
 foreign judgments. But any of these proceedings may 
 
58 MAY BE ISSUED TO COLLECT TAXES, 
 
 be instituted and maintained before a judge of a na- 
 tional court. Ex-par te Boyd, 105 U. S. Supreme Ct., 
 647; S. C, A. L. Journal, 26 Vol., p. 33 ; also Greg- 
 ory V. Henson, i Bond U. S. Cir. Ct., 277, for South- 
 ern Dist. of Ohio. This arises from authority given 
 by act of Congress, which provides that the party re- 
 covering a judgment in any common law cause in any 
 Circuit or District Court shall be entitled to similar rem- 
 edies 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. 
 
 In Iowa it is held that there must be a judgment 
 against the party sought to be examined as a judg- 
 ment debtor. It is not enough to insert a clause in the 
 execution directing a levy upon the property of such 
 person, as may be done under the statute of that State. 
 Bailey v. The Dubuque Western R. R. Co., 13 Iowa, 
 97. In New York it is held that one of joint debtors, 
 although the judgment is not against him individually, 
 he not having been served with the summons, nor hav- 
 ing appeared in the action, may yet be proceeded 
 against as a judgment debtor and be examined con- 
 cerning the joint property. Perkins v. Kendall, 3 N. Y. 
 Civ. Pro. R., 240. In South Carolina a judgment of 
 the Probate Court against an administrator upon his 
 final settlement of the estate of the intestate is a judg- 
 ment against him personally, and wi'l support supple- 
 mentary proceedings against him. Rhoades v. Creasy, 
 20 5. C, 491. 
 
 In Wisconsin proceedings may be brought upon a 
 judgment for divorce to collect alimony and costs 
 awarded in the same judgment. Barker v. Dayton, 28 
 Wis., 367. Proceedings may be prosecuted against a 
 private corporation as a judgment debtor, and its presi- 
 dent may be examined on proceedings against him as a 
 
ON WHAT EXECUTIONS ISSUED. 59 
 
 third party. Balston Spa Bank v. Marine Bank of Mil- 
 waukee, 18 Wis., 490. 
 
 On what Execution. 
 
 In New York the execution must have been issued 
 out of a Court of Record to a sheriff or, if he is a party 
 or interested, to a particular coroner or to the coroners 
 generally of the same county, §1362 of the Code of 
 Civil Procedure. No proceedings can be based upon 
 an execution issued out of a District Court of the City 
 of New York to a marshal of that city, because such 
 execution does not exhaust the remedy at law ; it does 
 not reach real property. Muldowney v. Corney, 3 Daly, 
 170; Silverman z/. Henant, 40 fiow., 88; nor, for the 
 same reason, will an execution issued by a justice of 
 the peace to a constable support any supplementary 
 proceedings. Dix v. Briggs, 9 Paige, 595. 
 
 The execution must have been issued to the county 
 where the judgment debtor resides at the time, if a 
 resident of the State, or to the county where he has a 
 place for the regular transaction of business in person 
 at the time of commencing the proceedings against 
 him ; or, if not a resident of the State at the time, 
 then to the county where the judgment-roll is filed or 
 where the transcript of the judgment is filed, if the ex- 
 ecution was issued out of another court. § 2458 of the 
 Code of Civil Procedure. 
 
 The execution must be one against both real and 
 personal property to collect a certain sum of money. 
 See §§ 1362 to 1478 inclusive of the Code of Civil Pro- 
 cedure. See also 9 Paige, 59S, supra. 
 
 The above sections also prescribe the form of the 
 execution and what it shall contain. No proceedings 
 can be based upon an execution issued for the delivery 
 of real or personal property merely, unless it also re- 
 quires the officer to collect a definite sum of money out 
 
6o VOIDABLE EXECUTIONS. 
 
 of the judgment debtor's property for costs, damages, or 
 rent, or profits which were recovered by the same judg- 
 ment. 
 
 It was held in Dickinson v. Cook, i6 Barb., 509, that 
 proceedings might be taken on an execution issued be- 
 fore the Code of Procedure went into effect. Anon., 3 
 Duer, 673 is to the contrary. Here the execution had 
 been issued and returned before the Code. But these 
 decisions are of very httle value now. The Code of 
 Civil Procedure provides that supplementary proceed- 
 ings may be taken at any time within ten years after 
 return of execution issued against property, and the 
 New York Code of Procedure went into effect in 1848. 
 
 Proceedings may also be taken before the proper 
 county judge, or special county judge, on the return 
 of a collector of taxes, that he could not collect a cer- 
 tain tax exceeding the sum of ten dollars for want of 
 goods and chattels. 
 
 Voidable Execution. 
 
 An execution issued out of the Supreme Court upon 
 a judgment in a Court of Common Pleas is utterly void, 
 and of course no proceedings can be based on it. 
 Clark V. Miller, 18 Barb., 269. The judgment creditor's 
 remedy at law would not be exhausted in such a case. 
 But an execution against property with an unauthor- 
 ized direction to the sheriff as to its return is not void, 
 because the law prescribes the sheriff's duty in making 
 the return, and he is not controlled by such direction. 
 Hutchinson v. Brand, 9 N. V., 208. 
 
 So, although the execution is extremely defective, 
 and is subject to be set aside for informality, yet if it is 
 amendable on motion, it cannot be treated as void in 
 supplementary proceedings. See Wright v. Nostrand, 
 g4N. K, 31, 47. 
 
 This was an action by a receiver appointed in sup- 
 
VOIDABLE EXECUTIONS. 6l 
 
 plementary proceedings against a judgment debtor. 
 The action was brought in the Superior Court of the 
 City of New York to set aside a conveyance of proper- 
 ty on the ground of fraud. One of the defences was 
 that the execution against the judgment debtor's prop- 
 erty upon which the proceedings were based was void 
 for defects contained therein. The Special Term after 
 trial found for the plaintiff, the receiver ; on appeal to 
 the General Term, the judgment at Special Term was re- 
 versed on the ground, among others, that the defects 
 in the execution rendered it void ; that the judgment 
 creditor's remedy at law had therefore not been ex- 
 hausted, and that his proceedings, based on the execu- 
 tion, including the appointment of the plaintiff re- 
 ceiver, were also void. S. C, 47 N. Y. Superior Ct., 441, 
 reversed. 
 
 The defects in the execution which the General 
 Term held made it void were as follows : It recited 
 that a judgment had been rendered for dollars on 
 
 the day of March, 1874, in an action in the Superior 
 Court (without stating what Superior Court) in favor 
 of the plaintiff and against the defendant as appeared 
 by the judgment-roll filed in the office of the clerk of 
 the Superior Court ; that said judgment was docketed 
 in the County of New York, and that there was on the 
 fourth day of March the sum of six hundred and 
 four dollars and ninety-five cents actually due thereon ; 
 and it commanded the sheriff to collect the same 
 from the property of the defendant in the judgment 
 and return the execution to the clerk of the City and 
 County of New York. It was witnessed by Egbert 
 Spier, one of the justices of this court. It was in- 
 dorsed " N. Y. Superior Court, J. E. Arnold v. Elbert 
 Nostrand," and address'ed to the sherifif of the County 
 of New York, with directions to return it to Culver & 
 Bartrand, plaintiff's attorneys. 
 
62 VOIDABLE EXECUTIONS. 
 
 The sheriff received this execution, and made a re- 
 turn thereon to the Superior Court of the City of New- 
 York. On appeal to the Court of Appeals this decision 
 of the General Term was reversed, and the judgment of 
 the Special Term affirmed, the Court holding on this 
 point that the execution, although extremely defec- 
 tive and subject to be vacated and set aside for in- 
 formality, was not so defective that it could be treated 
 as void when questioned in a collateral proceeding ; 
 that most of the defects appearing in the execution 
 had been held to be amendable, and defects of that 
 character could only be taken advantage of by the de- 
 fendant in the execution in a direct proceeding to set 
 it aside. The court also made a point of the fact that 
 the sheriff did make a correct return of the execution. 
 
 The distinction is here made between defects in a 
 proceeding amendable on motion and those which are 
 not so amendable — in other words, between defects 
 which amount to an informality or irregularity only, 
 and those which render a proceeding void. A proceed- 
 ing containing the former may be set aside on a direct 
 motion made therefor by the defendant, or party af- 
 fected thereby, and such defects may also be corrected 
 on motion ; but if the defects are neither corrected on 
 a direct motion to the court, nor the proceedings set 
 aside on account of such defects, the court or judge 
 will disregard them in a collateral proceeding, even if 
 the objection should be made by the defendant him- 
 self or the party affected thereby. Held in Indiana 
 that upon a judgment against joint debtors, the execu- 
 tion must be issued against the property of all to au- 
 thorize supplementary proceedings. Dandistel v. Kro- 
 nonberger, 39 Ind., 405. 
 
 But in New York it was held that where all the 
 partners jointly liable are not personally served with 
 the summons, nor appear in the action, and the judg- 
 
VOIDABLE EXECUTIONS. 63 
 
 ment is in form entered against all the partners jointly, 
 so as to bind the joint property of all, and the individ- 
 ual or sole property of only those served with the 
 summons and an execution against the joint property of 
 all the partners defendants, and the individual property 
 of those who had been served with the summons is is- 
 sued and returned unsatisfied, it is a sufficient exhaus- 
 tion of the remedy at law to entitle the judgment cred- 
 itor to an order upon a partner who was not served 
 with the summons in the action and against whom in- 
 dividually the judgment was not entered, to require 
 him to appear and answer concerning the joint proper- 
 ty, and for disobedience of such order he may be pun- 
 ished, as for a contempt. Perkins v. Kendall, 3 N. Y. 
 Civ. Pro. R., 240. In Kansas it is held that no execu- 
 tion can be issued against a garnishee to collect the 
 money of the judgment debtor found in his hands or 
 due to him ; the statute does not authorize it. There- 
 fore no proceedings can be taken against a garnishee 
 of a judgment debtor. Arthur v. Hale, 6 Kas., 161. 
 
 In South Carolina an execution against the property 
 of a married woman is valid, although it does not di- 
 rect that the judgment is to be collected out of her 
 separate estate, and not otherwise. Such an execution 
 will support supplementary proceedings. The omis- 
 sion of this direction, at most, is a mere irregularity, 
 and an irregularity cannot be assailed in a collateral 
 proceeding, like proceedings supplementary to execu- 
 tion. Clinkscales v. Hall, 15 S. C, 602. 
 
 Under the provision of the statute of the State of 
 Virginia a judgment creditor need not exhaust his 
 remedy at law before resorting to chancery to subject 
 lands to the payment of his judgment. Stovall v. 
 Bank, 78 Va., 188 ; Price v. Thrasher, 30 Gratt, 515. 
 
 An execution against property issued after the lapse 
 of five years from the entry of judgment, when none 
 
64 VOIDABLE EXECUTIONS. 
 
 had been issued within that time without leave of 
 Court as provided in the New York Code of Procedure, 
 is held to be voidable merely, not void, and an affida- 
 vit omitting to state that fact is only irregular, and the 
 omission not fatal to the jurisdiction. Bank of Gene- 
 see V. Spencer, i8 N. Y., 150 ; Winebrener v. Johnson, 
 7 Adi>. {N. S.), 202, N. Y. Superior Ct., Special Term ; 
 Lynch v. Tomlinson, Daily Register of October 31st, 
 1883, N. Y. City Court Ch., Hawes, J. ; U. S. Land 
 and Emg. Co. v. Pike, 2 N. V. M. L. Bull., 31, Supreme 
 Ct. Ch., Lawrence, J. 
 
 The first two decisions hold that on a direct motion 
 to set aside the execution, because issued without leave 
 of court, it is entirely in the discretion of the court to 
 grant or deny the motion, depending upon the facts 
 produced, pro and con ; and that one of the facts nec- 
 essary to show is that the motion is promptly made. 
 To the contrary is Belknap v. Hasbrouck, 13 Abb., 418, 
 note, which holds that no proceedings can be instituted 
 upon an execution issued without leave of court, 
 where that is necessary. But this latter is no author- 
 ity in the face of the above decisions. 
 
 Where leave of court has been granted, but the fact is 
 omitted in the affidavit, the omission may be supplied 
 by amendment. Such omissions may be supplied by 
 amending the affidavit. The First National Bank of 
 Rome V. Wilson, 13 Hun, 232 ; S. C, N. Y. W. Digest, 
 565, General Term ; Goodall v. Demarest, 2 Hilt., 534. 
 
 Where an execution against property was issued 
 and returned wholly unsatisfied upon a judgment for 
 six hundred dollars, which amount was afterward re- 
 duced, and both the judgment-roll and the returned 
 execution were amended in that respect, it was held 
 that supplementary proceedings might be based on 
 such an execution. Sluyter v. Smith, N. Y. Superior 
 Ct., Voorhies Code, i860, p. 405. 
 
VOIDABLE EXECUTIONS. 6$ 
 
 The execution must be against property, and must 
 have been issued to the sheriff ; or if he is a party, or 
 interested, then to a particular coroner, or to the cor- 
 oners generally (§1362 of present Code), of the county 
 where the judgment debtor has a place for the regular 
 transaction of business in person ; or if he is a resident 
 of the State at the time of issuing the execution, of 
 the county where he then resided. 
 
 The Code of Civil Procedure makes this distinction 
 as to time between residence and place of business. 
 Residence applies to the time of issuing the execution 
 against property, and not to the time when the pro- 
 ceedings are instituted. Bingham v. Disbrow, 37 
 Barb., 24 ; S. C, \\Abb., 251 ; affirmed S. C, 5 Transct. 
 App., 198, Court of Appeals ; and Jesup v. Jones, 32 
 How., 191, while place of business relates to the time 
 when the proceedings are instituted. Hence, if the 
 execution was issued to the sheriff of the county in 
 which the judgment debtor then resided, it need not 
 appear that it was issued to the county to the which he 
 afterward removed, and in which he is required to at- 
 tend for examination. This decision of Bingham v. 
 Disbrow having been rendered before the Code of Civil 
 Procedure was enacted, that part of it which holds 
 that in going upon the debtor's place of business the 
 execution must have been issued to the county where 
 the debtor then had a place of business is superseded. 
 Under the former Code it was held that it is sufficient 
 if the judgment debtor has a place of business within 
 the county, although his principal place of business and 
 his residence are in another county. McEwan v. Bur- 
 gess, 15 Abb., 473 ; S. C, 25 How., 92, N. Y. Superior 
 Ct. Special Term. This decision is superseded by § 2459 
 of the Code of Civil Procedure, if it authorized the judge 
 making the order to compel the judgment debtor, or 
 other person required to appear and answer, to attend 
 
66 VOIDABLE EXECUTIONS. 
 
 for that purpose without the county of his residence or 
 place of business stated in the affidavit. 
 
 To entitle a judgment creditor to any of these pro- 
 ceedings, the execution against property must be issued 
 to the sheriff or other proper officer of the county 
 where the judgment debtor resides at the time, or of 
 the county in which he will have a place for the regular 
 transaction of business in person at the time the pro- 
 ceedings shall be instituted, or if not a resident of the 
 State at the time of issuing the execution, then to the 
 sheriff or other proper officer of the county in which 
 the judgment debtor will have such place of business 
 when the proceedings shall be taken, or in which the 
 judgment-roll is filed, or in which the transcript of the 
 judgment is filed, if the execution is issued out of a 
 court other than that in which the judgment was ren- 
 dered. §2458 of Code of Civil Procedure ; and Anway w. 
 David, 9 Hun, 296. 
 
 In Indiana, where the clerk, as in New York, issues 
 the execution against property to the sheriff upon a 
 justice's judgment, the presumption is that he did so 
 upon the requisite facts certified to him by the justice, 
 without these facts being alleged in the affidavit or 
 complaint. Fowler v. Griffin, 83 Ind., 297. 
 
 In the same State, in order to entitle the judgment 
 creditor to these proceedings, the execution against 
 property must be issued to the sheriff of the county 
 where the judgment debtor resides, or if not a resident 
 of the State, then to the county where the judgment 
 was rendered. See R. S. of 1881. It must be issued 
 to the proper county. Fowler v. Griffin, supra. 
 
 In Minnesota, where the county in which the judg. 
 ment debtor resides is attached to another county, the 
 execution to sustain these proceedings is properly is- 
 sued to the sheriff of the latter county. Beebe v. Fred- 
 ley, 16 Minn., 518. 
 
EXECUTION MAY BE RETURNED. 6"] 
 
 Where Returnable. 
 
 In the State of New York the execution against 
 property is made returnable by statute within sixty 
 days to the clerk of the court whence it was issued and 
 where the judgment-roll is filed or the transcript of the 
 judgment, if of a court not of record, is filed ; and the 
 sheriff or other proper officer to whom it was issued 
 must return it to such clerk. He cannot be compelled 
 to return it in less than sixty days from the time of 
 receiving it. Spencer v. Cuyler, 17 How., 157; S. C, 
 9 Abb., 382, and i E. D. Smith, 414. 
 
 An unauthorized direction to the sheriff as to the re- 
 turn of the execution does not render it void ; for the 
 law prescribes the sheriff's duty in making a return, and 
 he is not controlled by such unauthorized direction. 
 Hutchinson v. Brand, 9 N. Y., 208. 
 
 Sixty Days. 
 
 But the officer having the execution need not keep it 
 sixty days ; he may return it at any time within that 
 period, and proceedings as upon the return of ex- 
 ecution may be taken thereon at once ; for the sheriff is 
 presumed to have done his duty in searching for prop- 
 erty. First National Bank of Rome v. Bering, 8 N. Y. 
 W. Digest, 261 ; Hart v. Stearns, 4 Id., 540, Supreme 
 Court, General Term ; Simpkinsi^. Page, i Code R., 107 ; 
 Spencer v. Cuyler, supra : Farqueharson v. Kimball, 
 9 Abb., 385, note/ S. C 18 Nozv., 33, citing and approv- 
 ing Livingston v. Cleveland, 5 Id., 396 ; Engle v. Bon- 
 neau, 2 Sand/., 679; Tyler v. Whitney, 12 Abb., 465; 
 S. C, sub. nom Tyler w. Willis, 33 Barb., 327 ; Fenton v. 
 Flagg, 24 How., 499, Supreme Ct., General Term ; 
 Field V. Chapman, 15 Abb., 434. And this is so, al- 
 though the sheriff made no demand of the judgment 
 debtor, and there was property which he could have 
 taken and sold. The return, so long as it stands, is 
 
68 EXECUTION MAY BE RETURNED. 
 
 conclusive in these proceedings. See Storrs v. Kelsy, 
 2 Paige, 418, and Fenton v. Flagg, supra. There is no 
 objection to a request by the plaintiff's attorney, made 
 in good faith to the sheriff, to return the execution 
 after it is apparent that no property can be found to levy 
 upon, although sixty days may not have elapsed since 
 the sheriff received it. See First National Bank of 
 Rome V. Daring, 8 N. Y. IV. Digest, 261 ; but Spencer 
 I'. Cuyler and Farqueharson v. Kimball, supra, hold that 
 when the sheriff returns the execution unsatisfied be- 
 fore the expiration of sixty days, pursuant to the plain- 
 tiff or his attorney's instruction or solicitation, without 
 a real attempt to effect a levy, such return will be 
 deemed the act of the party, and not the ofifiicial act of 
 the sheriff, and that proceedings supplementary to ex- 
 ecution based thereon will be set aside on motion when 
 this fact is made to appear to the judge. The same 
 views were expressed in Pudney v. Griffith, 15 How., 
 410; S. C, 6 Abb., 211, Supreme Ct. ; Nagle v. Janes, 
 7 Id., 234, N. Y. Superior Ct. ; Ritterband v. Mar- 
 ryatt, 12 N. Y. Leg. Obs., 158. In North Carolina an 
 execution against property may be returned by the 
 sheriff at any time before the time fixed for its return. 
 Whitehead v. Hellen, 74 iV. C, 679. Where it appeared 
 that the execution had been returned in good faith 
 after an unsuccessful effort on the sheriff's part to find 
 property to levy on, and after the judgment debtor had 
 assured him that he had no property subject to levy, 
 the judgment debtor is estopped by his own state- 
 ment from claiming that the execution was prematurely 
 returned. All that is required is a bona fide z.tV&m.-^X to 
 find property to levy on, and if no such property exists 
 or can be found, the execution may be returned, al- 
 though sixty days have not yet elapsed. Hart v. 
 Stearns, 4 N. Y. W. Digest, 540, supra. 
 
 These authorities hold that it is competent to the 
 
EXECUTION MAY BE RETURNED. 69 
 
 judge or officer before whom these proceedings are 
 pending to go behind the sheriff's return, and inquire 
 into the bona fides thereof, not to set aside such return, 
 but to dismiss the proceedings if the return was fraud- 
 ulently or improperly procured by the judgment cred- 
 itor. This is on the ground that such a return is a 
 nullity, and will not support proceedings which can 
 only be taken after the creditor's remedy at law is ex- 
 hausted. 
 
 The question whether the judge can go behind the 
 sheriff's return appears still an open one in the State 
 of New York. The N. Y. Court of Common Pleas, at 
 General Term, has denied this power to the judge en- 
 tertaining these proceedings, and held that he could not 
 go behind the sheriff's official return, no matter how ob- 
 tained, but that so long as it stands, the judgment cred- 
 itor is entitled to the proceedings, as after a return of 
 execution unsatisfied ; and, further, that the return can 
 only be impeached by a direct motion to court to set 
 it aside, and not collaterally in these proceedings. 
 Sperling v. Levy, 10 Abb., 426 ; also Owen v. Du- 
 pignac, 9 Id., 180, same court ; and Wright v. Nos- 
 trand, 94 N. Y., 31, which holds that a proceeding like 
 an execution may be so defective that it is subject to 
 be vacated and set aside on motion for informality, yet 
 not so defective that it can be treated as void when 
 questioned in a collateral proceeding. The court holds 
 that the defects in the execution in that case were 
 amendable on motion made for that purpose, and de- 
 fects of that character can only be taken advantage of 
 by the defendant in the execution in a direct proceeding 
 to set it aside. 
 
 But in a fraudulent return to an execution, there is 
 nothing to amend on a direct motion. Hence, this case 
 does not seem to settle the question. 
 
 The Supreme Court at General Term in the First Ju- 
 
70 EXECUTION MAY BE RETURNED. 
 
 dicial Department also adopted the above rule of the 
 N. Y. Common Pleas, and held that the sheriff's return 
 could only be impeached by a direct motion to the 
 court to set it aside. See also the opinion of Smith, 
 J., in Forbes v. Waller, 25 N. Y., 43, on this point, in 
 which, however, the other judges did not concur, but 
 expressed no opinion. 
 
 In the N. Y. Superior Court the justice entertaining 
 the proceedings will upon motion inquire into the dona 
 fides of the return, so far as it involves the acts of the 
 creditor or his attorney ; and if it appears that either im- 
 properly procured the return of the execution, will dis- 
 miss the proceedings ; but if the sheriff alone is guilty 
 of a mistake or misconduct in reference to the execu- 
 tion, or there is any other irregularity, the debtor will 
 be remitted to his motion to the court, which, if grant- 
 ed, will, of course, carry along with it the judgment 
 creditor's proceedings. 
 
 In the City Court of New York, Special Term, Hyatt, 
 J., held that the return of an execution could only be im- 
 peached by a direct motion to set it aside, and not col- 
 laterally in these proceedings. The Methodist Book 
 Concern v. Hudson, i How. {N. 5.), 517, citing au- 
 thorities. 
 
 The rule that a sheriff's return made in less than 
 sixty days from the date of receiving it, or without a bona 
 fide attempt to find and levy on property through the 
 instigation of the judgment creditor or his attorney, 
 shall nevertheless be conclusive upon the judgment 
 debtor until set aside by a direct motion, is more con- 
 sistent with other parts of the practice, and seems the 
 better and safer course. 
 
 The judge who is called on to entertain the proceed- 
 ings is to act on the records of the judgment and execu- 
 tion as he finds them in the court to which they belong, 
 and of which he is often not even a member. He acts 
 
EXECUTION WAIVED. 71 
 
 upon these records. It is hardly competent for him in 
 a summary proceeding of this kind to put himself in 
 the place of the court, which may not be his own even, 
 and hold that a certain proceeding or act of an officer 
 of that court is void for fraud. The tendency of the 
 practice is toward this rule, as above stated. It may, 
 however, lead to some inconvenience, and compel the 
 judgment debtor not infrequently to go to a distant 
 part of the State in order to have a fraudulent return 
 set aside. 
 
 But regularity in legal practice is of more impor- 
 tance than the occasional inconvenience of suitors. 
 
 In such case the judgment debtor must take the ob- 
 jection on the return of the order for his examination, 
 or at the first opportunity, and apply for an adjournment 
 and stay of proceedings to enable him to make the mo- 
 tion in the proper court to set aside the sheriff's return. 
 
 It is well settled that no proceedings, as upon return 
 of execution, will be tolerated where the return is fraud- 
 ulent or illegal on its face, provided the objection is 
 seasonably taken. 
 
 In Michigan it is held that the sheriff's return to an 
 execution is conclusive between the creditor and the 
 ofificer when good upon its face, unless it has been made 
 by collusion or by the direction of the judgment credit- 
 or. Albany City Bank v. Door, Walker s Chancery 
 Rep., 317. 
 
 Waiver. 
 
 This objection to the sheriff's return may be waived 
 by the judgment debtor, and is waived unless taken on 
 the first opportunity. He can only make this objection. 
 If he does not, no one else can. 
 
 A person proceeded against as bailee or debtor of the 
 judgment debtor cannot make this objection. See Bing- 
 ham V. Disbrow, 14 Abb., 251 ; S. C, 37 Barb., 24. 
 
72 EXECUTION RETURNED. 
 
 A witness on an appeal from an order punishing him, 
 as for a contempt, cannot object to the regularity of the 
 execution, no objection having been made before. 
 People V. Marston, i8 Abb., 258. 
 
 The Return. 
 
 A return by the sheriff was as follows : " In pursuance 
 of the demand of the plaintiff's attorneys, I make the 
 following return to the within execution. I have col- 
 lected 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 mentioned 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." This return was held not 
 to be such a return as authorized supplementary pro- 
 ceedings after return of execution against property. 
 Marxz/. Spaulding, 35 Hun, 478, General Term. 
 
 A return in these words, ' No goods," is held in 
 Ohio not sufficient to base proceedings upon. State 
 Bank of Ohio v. Oliver, i Disney, 159. 
 
 But in Minnesota a return nulla bona to an exe- 
 cution against property is held to be evidence in these 
 proceedings that the officer has made reasonable search 
 and inquiry after the debtor's property; and that for relief 
 against an improper return to an execution the judg- 
 ment debtor must apply directly to the court on motion 
 to set it aside. A return unimpeached by such a motion 
 and order cannot be affected by any inquiries in supple- 
 mentary proceedings concerning it. Flint v. Webb, 
 25 Minn., p. 263. 
 
 In Indiana a return by the sheriff of nulla bona is 
 sufficient to base supplementary proceedings on. Sher- 
 man V. Corville, 73 Ind., 126. 
 
 In Wisconsin it is held that the return must show on 
 
EXECUTION MUST BE RETURNED. 73 
 
 its face that the sheriff made reasonable and dihgent 
 search for real and personal property subject to levy 
 and sale to give the judge jurisdiction of supplementary 
 proceedings, and the mere return " unsatisfied " is not 
 enough. In re Remington, 7 Wis., 643. 
 
 After keeping the execution forty days, but before the 
 regular return day, the sheriff made the following return : 
 " Could find no property whereof to make the amount ;" 
 and immediately underneath this return, on the same 
 execution and of the same date, there appeared a direc- 
 tion from the judgment creditor's attorney, " Return 
 as above after diligent search." This was held to be a 
 sufficient return to base supplementary proceedings 
 upon. The Second Ward Bank v. Upmann, 12 Wis., 
 499. 
 
 Actually Returned. 
 
 To authorize the institution of proceedings in the 
 State of New York, as upon the return of execution, 
 the execution must be actually returned wholly or 
 partly unsatisfied, and the judgment creditor's remedy 
 at law really and truly exhausted. In Jones v. Porter, 
 6 How., 286, the sheriff indorsed the return, nulla bona, 
 upon the execution, and sent it by a person to the 
 proper clerk's office to be filed. The bearer, however, 
 neglected to deliver it there until four o'clock, after- 
 noon of the same day. In the mean while the plaintiff's 
 attorney, having reason to suppose that the execution 
 had been returned, made an affidavit, and obtained an 
 order for the appearance and examination of the judg- 
 ment debtor some two hours before the execution was 
 actually delivered tj the clerk. This was held to be a 
 sufficient return under the circumstances, and an order 
 was made that the execution be filed as of a time prior 
 to the making of the affidavit and order. See also Barker 
 V. Dayton, 28 Wis., 367, to the same effect. 
 
74 EXECUTION MUST BE RETURNED. 
 
 In North Carolina the actual return of an execution 
 against property unsatisfied is not sufficient to author- 
 ize proceedings thereon, if it appears by such return 
 that the judgment debtor owns an equitable right or 
 estate in land on which the judgment operates a lien, 
 although such right or lien cannot be levied on and sold 
 under an execution at law. McKiethan v. Walker, (^ 
 N. C, 95. But where the execution against property 
 is returned unsatisfied, and there is nothing in the re- 
 turn to show that the judgment debtor owns any such 
 equitable right or estate upon which the judgment oper- 
 ates a lien, it is held that supplementary proceedings 
 will lie. Hutchinson ■y. Symons, 67 ]V. C, 156. But in 
 a later decision the court say that the proof must af- 
 firmatively show that the judgment debtor has no such 
 equitable right or estate in land. Hinsdale v. Sinclair, 
 83 JV. C, 338. By a provision of the statutes of North 
 Carolina a judgment is made a lien upon certain equita- 
 ble rights or estates which a debtor has in lands, but 
 the same cannot be reached by execution at law, nor 
 by these proceedings. They can only be reached by a 
 suit in equity, in which the rights and interests of all 
 parties concerned may be ascertained and determined ; 
 and until such right or estate, or the property affected 
 thereby, is sold or disposed of through a court of equity, 
 and that fact is shown to the judge, no supplementary 
 proceedings will lie against the judgment debtor, al- 
 though the execution has been actually returned wholly 
 unsatisfied. If, however, it is established to the satis- 
 faction of the judge, by affidavit or otherwise, that this 
 equitable right or estate is insufficient to satisfy the 
 judgment, proceedings may be taken against the debtor, 
 nevertheless. So also proceedings may be instituted 
 before the return of execution against property unsat- 
 isfied, or before the sale of property levied upon, the 
 same as if it had been returned unsatisfied, upon affi- 
 
EXECUTION MUST BE RETURNED. 75 
 
 davit showing to the satisfaction of the judge the insuf- 
 ficiency of the debtor's leviable property to satisfy the 
 judgment. But no final order in the proceedings can 
 be made appropriating to the judgment creditor any 
 property discovered, until the property previously levied 
 on or taken has been exhausted. McKiethan v. Walker, 
 66 N. C, 95 ; Hutchinson v. Symons, 67 Id., 156; Mc- 
 Caskill V. Lancashire, 83 Id., 383. These proceedings 
 being in the original action, and in the nature of an 
 equitable execution, it is held in North Carolina that 
 whatever can be attained toward satisfying the judg- 
 ment therein should be done, and that the trial of an 
 independent action should not be forced upon the 
 court ; the judgment creditor must resort to the pro- 
 ceedings provided for in the Code in all cases where 
 property cannot be reached by execution at law, except 
 the single one of a judgment operating a lien on cer- 
 tain equitable rights or estates in land, and which can- 
 not be sold on execution ; and even in such a case the 
 judgment creditor may have proceedings as above 
 stated, upon showing, by affidavit or otherwise, the 
 insufificiency of such right or estate to satisfy his judg- 
 ment. McCaskill v. Lancashire, 83 N. C, 383, supra. 
 
 Return of Execution. 
 
 In Wisconsin it is held that the execution against 
 property must be issued in good faith, and actually re- 
 turned, to give the judge jurisdiction of the proceedings, 
 as upon a return of execution. In re Remington, 7 Wis., 
 64.^ ; Buswell v. Lencks, 8 £>a/j, 528, General Term, 
 holds that while it is necessary that an execution should 
 be returned to warrant a suit in equity to reach equita- 
 ble assets and choses in action, the return is not neces- 
 sary to authorize an action to set aside a fraudulent 
 conveyance of or incumbrance on the judgment debt- 
 or's real property, citing authorities. 
 
76 WITHIN WHAT TIME. 
 
 Second Execution. 
 
 The institution of supplementary proceedings after 
 return of execution against property does not preclude 
 the issuing of another one upon the same judgment. 
 Smith V. Mahoney, 3 Daly, 285. An old case held con- 
 versely, that when it appeared affirmatively that an 
 alias execution is out, and not yet returned, supplement- 
 ary proceedings cannot be maintained; and where a 
 levy had been made upon such alias execution on prop- 
 erty claimed by the defendant, the proceedings against 
 the debtor were dismissed. McArthur v. Lansburgh, 
 Code R. {N. 5'.), 211. But it has since been settled that 
 two proceedings having the same object in view — the 
 collection of a judgment — may be pursued concurrently. 
 Gates V. Young, 17 iV. F. W. Digest, 551. 
 
 For proceedings before return of execution, none 
 of the above qtiestions arise in regard to the return. 
 
 SECTION VI. 
 
 Within what Time and in what County must the Proceed- 
 ings be brought. 
 
 Within what Time. 
 
 In New York as to the judgment, either of these pro- 
 ceedings may be taken at any time within twenty years 
 after the recovery — that is, during the lifetime of the 
 judgment. As to the execution against property, pro- 
 ceedings based on the return of execution may be taken 
 immediately after due return. Livingston v. Cleve- 
 land, 5 How., 396; Engle v. Bonneau, 2 Sand/., 6yg; 
 Farqueharson v. Kimball, 9 y^W., 385, note, S. C, 18 
 How., 33 ; Forbes v. Waller, 25 N. Y., 430 ; Sher- 
 wood V. Littlefield, i Code R., 85, are overruled by these 
 decisions. And such proceedings may be taken at any 
 
WITHIN WHAT TIME. "JJ 
 
 time within ten years after the return of execution 
 against property (§ 2435 of the Code of Civil Procedure 
 prescribes that hmitation), thus conforming these pro- 
 ceedings in this respect to a judgment creditor's bill, 
 which can only be filed within the same time. Corning 
 V. Stebbins, i Barb. Ch., 589. 
 
 This section (2435) is explicit, that a judgment creditor 
 is entitled to these proceedings at any time within ten 
 years after the return of execution issued against prop- 
 erty. It thus puts at rest a question which had been 
 variously decided by the courts, and supersedes the fol- 
 lowing cases so far as they hold the contrary. Currie 
 V. Noyse, i Code R. {N. S.), 198 ; Miller v. Rossman, 
 15 Hozv., 10 ; Owen v. Dupignac, 9 Abb., 180 ; Belknapp 
 T. Hasbrouck, 13 Abb., 418, note; Driggs z;. Williams, 
 IS Id., A77- 
 
 Proceedings may be instituted within ten years after 
 return of execution against property, although more 
 than ten years have elapsed since the return of a former 
 execution. Levy v. Kirby, 51 N.Y. Superior Ct., Gen- 
 eral Term. In this case the proceedings were instituted 
 upon the return of the second execution. In Owen v. 
 Dupignac, 9 Abb., 180, decided under the provisions of 
 the former Code, it was held that there was no time 
 limited during the lifetime of the judgment within which 
 the proceedings may be commenced after return of exe- 
 cution. Also Belknapp v. Hasbrouck, \^ Abb., A^iZ, su- 
 pra ; Driggs V. Williams, 15 Abb., 477. The new system of 
 supplementary proceedings, as designed in the Code of 
 Civil Procedure, and the weight of decisions in regard 
 to these proceedings, have reduced the hardship, which 
 otherwise might result from this summary remedy to a 
 minimum. Now, as to the personal property which 
 is subject to levy and sale under execution, the proceed- 
 ings must be taken within ten years, and if it indisput- 
 ably belongs to the judgment debtor, the judge orders 
 
78 WITHIN WHAT TIME. 
 
 its delivery to a sheriff or a receiver to levy upon and 
 sell and apply the proceeds toward the satisfaction of 
 the judgment. For if the judge appoints a receiver, and 
 orders the personal property to be delivered to him to 
 sell, the sale is an execution sale, and is conducted in 
 the same manner ; while as to the real estate on which 
 the judgment became a lien upon its rendition, or which 
 the debtor acquired after the return of execution and on 
 which the judgment becomes a lien, the courts hold that 
 such real estate cannot be reached by these proceedings. 
 Ashley v. Turner, 22 Hun, 226 ; Bunn v. Daley, 24 Id., 
 526. And as to real estate in general, no matter when 
 acquired, the rule of the old Court of Chancery may be 
 enforced , to wit : not to permit a receiver to sell the 
 real property of the judgment debtor when it appears 
 to be bound by the judgment, and no impediment ex- 
 ists to a sale under an execution at law issued upon such 
 judgment. Petition of Englehart, i Sheldo7i ( Buffalo 
 Superior Ct^, 514. 
 
 The object of these restrictions is to secure to the 
 judgment debtor his statutory right of redemption 
 within one year after the sale of his real property. As a 
 judgment is good for twenty years after its recovery, 
 proceedings under this section (2435 of the Code of 
 Ciyil Procedure) may be taken upon it at any time 
 within that period, provided the execution was returned 
 within ten years prior thereto ; and generally any of 
 these proceedings may be instituted upon a judgment 
 during its lifetime, provided the execution against 
 property is either then in the hands of the sheriff or 
 was returned wholly or partly unsatisfied within ten 
 years prior to the commencement of the proceedings. 
 If more than ten years have elapsed since the return of 
 the execution, a new one must be issued to the sheriff 
 of the proper county. The judgment creditor is en- 
 titled to proceedings at any time within ten years after 
 
WITHIN WHAT TIME AS TO A WARRANT. 79 
 
 the return of the execution against property. The 
 lapse of time within ten years cannot deprive him of 
 this right. 
 
 If proceedings are legally instituted on a judgment 
 before the lapse of twenty years from the recovery 
 thereof, they do not abate upon the expiration of the 
 twenty years. In that respect they are like a judg- 
 ment creditor's bill. Driggs z/. Williams, 15 Abb., ^yy, 
 Supreme Ct. Ch. 
 
 The other States which have statutory provisions on 
 supplementary proceedings, or proceedings in aid of ex- 
 ecution, except Missouri and North Carolina, do not 
 prescribe by statute within what time after return of 
 the execution against property, proceedings may be 
 instituted against the judgment debtor; but some of 
 the States follow the rule of chancery, and limit the 
 time to ten years. In Missouri proceedings must be 
 taken within five years after return of execution against 
 property, and in North Carolina within three years after 
 issuing the execution against property. 
 
 Proceedings before return of execution (§ 2436 
 of the Code of Civil Procedure) authorize these pro- 
 ceedings against the judgment debtor or his bailee or 
 debtor at any time after the execution against property 
 is delivered to the proper sheriff or officer, and before 
 the return thereof upon an affidavit, setting forth the 
 requisite facts. 
 
 The Warrant. 
 
 When the warrant of arrest is resorted to for the 
 commencement of the proceedings, it is the substitute 
 of an order, and it can only be issued within the same 
 time after the issuing or return of execution that the 
 order could be made for which it is the substitute. 
 
 Proceedings against Third Parties. 
 
 § 2441 of the present Code prescribes no limit 
 
8o IN WHAT COUNTY. 
 
 of time within which such proceedings must be brought 
 after return of execution. But they are special pro- 
 ceedings, and fall under §§ 388 and 414 of the Code. 
 They must, therefore, be instituted within ten years 
 after the right to do so accrues, in that respect conform- 
 ing to a judgment creditor's action. They may also be 
 brought immediately after the issue of execution to the 
 sheriff, and before the return thereof. 
 
 In the other States the limitation of time within 
 which to bring these last proceedings follows that pre- 
 scribed for proceedings against the judgment debtor. 
 
 In what County Judgment Debtor or Bailee, etc., must attend. 
 
 § 2459. " If the judgment debtor or other person re- 
 . quired to attend and be examined, as prescribed in this 
 article, or the officer of a corporation required to attend 
 in its behalf is, at the time of the service of the order 
 upon him, a resident of the State, or then has an office 
 within the State for the regular transaction of business 
 in person, he cannot be compelled to attend, pursuant 
 to the order, or to any adjournment, at a place without 
 the county wherein his residence or place of business is 
 situated." This section is part of § 292 of the former 
 Code. 
 
 This provision applies only to the attendance of the 
 party for examination. He cannot be required to at- 
 tend without the county where his residence or place 
 of business is situated. It does not include motions or 
 orders which may be made in another county. 
 
 A justice, of the Supreme Court may make the order 
 or issue the warrant anywhere in the State. Crouse f. 
 Wheeler, 33 How., 337; Bingham v. Disbrow, \^^ Abb., 
 253 ; and upon a judgment of his own court he may 
 conduct the proceedings in any part of the State ; but 
 the examination of the party proceeded against must 
 in all cases take place where this section requires it to 
 
IN WHAT COUNTY. 8 1 
 
 be had — that is, if the person to be examined is a resi- 
 dent, then he must be examined in the county where 
 he resides or has an office for the regular transaction of 
 business in person at the time the order is served upon 
 him ; and in the latter case it must also be the county 
 to which the execution against property was issued. 
 Where a transcript of a justice's judgment was filed in 
 the King's County clerk's office, and a transcript from 
 that in the office of the clerk of the City and County 
 of New York, and an execution issued against property 
 to the sheriff of the latter county, where the judgment 
 debtor resided, returnable to the clerk of King's 
 County, held that the execution was properly issued, 
 and supplementary proceedings could be taken thereon 
 against the judgment debtor before a judge of the New 
 York Court of Common Pleas. Strybing v. Hicks, 
 2 JV. Y. M. L. Bull., 6, Sp. T., N. Y. Com. Pleas. 
 
 The provision as to the county where the examination 
 is to be had applies to both the judgment debtor and his 
 bailee or debtor. But it does not make such place of 
 examination a matter of jurisdiction. The party to be 
 examined has the option of going into another county 
 and voluntarily submitting to an examination there. It 
 is his right to require the examination to be taken in 
 his county, but which he may waive. 
 
 If the judgment debtor is a non-resident, and has no 
 office within the State for the regular transaction of 
 business in person, he must be examined in the county 
 where is filed the judgment-roll, or the transcript of 
 the judgment, if the execution against property was 
 issued out of another court. But if he has an 
 office in the State for the regular transaction of business 
 in person, then he may be examined in the county 
 where his business is situated, although he is a non- 
 resident. Anway v. David, 9 Hun, 296 ; S. C, 3 N. Y. W. 
 Digest, 532, General Term. 
 
82 RESIDENCE. 
 
 Residence. 
 
 Under the former Code the county of residence was 
 held to mean the county in which the judgment debt- 
 or resided at the time the execution against proper- 
 ty was issued. Bingham v. Disbrow, 37 Barb., 24; 
 S. C, i/i^Abb., 251 ; Jesup z^. Jones, 32 How., 191 ; Mc- 
 Ewan z'. Burgess, 15 Abb., 473; S. C, 25 How., 92, 
 Wilson V. Andrews, 9 How., 39, was not in conflict 
 with these decisions, because in the latter the judg- 
 ment debtor was required to attend in a county in 
 which he did not reside when the execution was issued. 
 Before the amendment of 1867 to § 292 of the former 
 Code, it was immaterial where the judgment debtor 
 resided when the proceedings were taken against him. 
 They had to be brought in the county to which the ex- 
 ecution against property had been issued, provided it was 
 the proper county, as prescribed in the Code. Her- 
 sheimer v. Hooper, i Ducr, S94; and the debtor had to 
 attend for examination in that county, no matter at what 
 inconvenience of distance or expense, if the order was 
 served upon him within the territorial jurisdiction of 
 the judge making it. The same rule held in regard 
 to the debtor's place of business. The proceedings 
 were brought in the county to which the execution 
 against property had been issued and in which he then 
 had a place of business, and he was bound to attend 
 for examination in that county. If the judgment debt- 
 or was not a resident of the State at the time of issu- 
 ing the execution, he was bound to attend in the county 
 to which the execution had been issued — that is, the 
 county where the judgment-roll, or the transcript of 
 the judgment, if of a court not of record, was filed, al- 
 though he had in the mean while become a resident, or 
 acquired a place in another county for the regular 
 transaction of business in person. 
 
 By the amendment of 1867 to §292, although a 
 
RESIDENCE AND PLACE OF BUSINESS. 83 
 
 justice of the Supreme Court could make the order for 
 the examination of the judgment debtor anywhere in 
 the State, yet if the latter was a resident of the State 
 he could not be required to attend and answer concern- 
 ing his property out of the judicial district in which he 
 resided. 
 
 In proceedings against a judgment debtor before re- 
 turn of execution against property under § 292 of the 
 former Code, ROBINSON, J., held at Special Term, New 
 York Court of Common Pleas, that the judge of a local 
 court under that section had no jurisdiction to make an 
 order instituting proceedings when the judgment debtor 
 was not a resident of his county, and that the debtor's 
 appearance and examination without objection did not 
 confer jurisdiction, although he might have a place of 
 business in the county. Driggs v. Smith, 47 How., 215. 
 
 The provision in the above-named section upon which 
 the decision of Driggs v. Smith was based applied to a 
 justice of the Supreme Court equally as well as to a judge 
 of a local court. This decision, however, has been 
 largely superseded by §§ 2434 and 2436 of the Code of 
 Civil Procedure, which put residence and place of busi- 
 ness of the party to be examined on the same footing, 
 and omit the above-mentioned provision of §292 of the 
 former Code. Still, the case may be consulted when a 
 judge of a local court makes an order against a party 
 who at the time neither resides nor has a place of busi- 
 ness in his county. 
 
 As to proceedings against a debtor or bailee of the 
 judgment debtor, the former Code did not prescribe 
 any county or place where he should attend for exami- 
 nation. It was therefore held that proceeding after 
 return of execution need not be taken in the county to 
 which it had been issued and in which the judgment 
 debtor resided, especially if the person to be examined 
 did not object ; that § 294 (of the former Code) imposed 
 
84 PLACE OF EXAMINATION. 
 
 no such conditions ; that the judge would naturally 
 select a place for the examination, other things being 
 equal, most convenient to the person to be examined, 
 and not necessarily so to the debtor, as he is not com- 
 pelled to attend. Foster v. Prince, 8 Abb., 407 ; S. C, 
 18 How., 258; also Courtois v. Harrison, i Hilt., 109; 
 S. C, 12 How., 359; 3 Abb., 96. 
 
 It is not necessary that either of these proceedings 
 should be instituted in the judicial district in which the 
 judgment was recovered. Jacobson v. The Doty Plaster 
 Man. Comp., 32 Hun, 436, General Term. 
 
 In most of the other States which have statutory 
 provisions on this subject, the judgment debtor both 
 in proceedings after and in proceedings before return 
 of execution against property, if a resident, is required 
 to attend at a time and place specified in the order in 
 the county where he resides at the time ; and if not a 
 resident, then in the county where the judgment-roll or 
 the transcript of a justice's judgment is filed; and if a 
 warrant of arrest has been issued, then in the county 
 where he is arrested. 
 
 In Indiana the proceedings against the judgment 
 debtor must be brought in the county where he resides, 
 and the proceedings against his debtor or bailee in the 
 county where the latter resides, unless the judgment 
 debtor is a necessary party to the proceedings ; then in 
 the county where the judgment debtor resides, although 
 that may not be the county where such debtor or bailee 
 lives. Folsom v. Clark, 48 Ind., 414; O'Brien v. Flan- 
 ders, 41 Id., 486, citing Wall v. Whisler, 14 Id., 228. 
 
 In Kansas the judgment debtor, in proceedings after 
 return of execution against property, is required to at- 
 tend in the county to which the execution was issued ; 
 in proceedings before return of execution, in the county 
 in which he is served ; in proceedings instituted by a 
 warrant of arrest, in the county where he is arrested ; 
 
PLACE OF EXAMINATION. 85 
 
 and a debtor or bailee of the judgment debtor, in the 
 county where he may be found. In North Carolina 
 the proceedings must be instituted in the county where 
 the judgment was rendered, because they are held to be 
 proceedings in the same action. Hutchinson v. Symons, 
 67 N. C, 156; Hasty v. Simpson, "j-j Id., 69. But the 
 place designated for the judgment debtor to attend and 
 answer should be in the county in which he resides. 
 "J J N. C, 69, supra. 
 
 In South Carolina it was held that while the judg- 
 ment debtor can only be required to appear and answer 
 in the county of his residence, a motion and order may 
 be made to and by the judge confirming the referee's 
 report, etc., at his chambers in another county within the 
 same judicial district ; and also that all other orders in 
 the case to continue and consummate the proceedings 
 may be had in another county in the same district. 
 Kennesaw Mills Co. v. Walker, 19 S. C, 104. 
 
 In Wisconsin the proceedings must be taken in the 
 county where the judgment debtor resides at the time. 
 Clark V. Bergenthal, 52 Wis., 103. 
 Place of Business. 
 
 The Code of Civil Procedure of New York is also 
 more explicit than the former Code was as to the place 
 of business of the judgment debtor. 
 
 Now, it must be a place where he regularly transacts 
 business in person, and not through an agent. Brown 
 V. Gump, 59 How., 507, Marine Court of New York 
 City, Special Term, McAdam, J. 
 
 The literal construction of § 2458 of the present 
 Code would go so far as to allow an execution against 
 property to be issued to the sheriff of the county in 
 which the judgment debtor has neither a place of res- 
 idence nor of business, and the legal remedy against 
 him could therefore not be exhausted ; but if at any time 
 within ten years thereafter he chanced to open a place 
 
86 PLACE OF BUSINESS. 
 
 in such county for the regular transaction of business 
 in person, proceedings could be instituted against him. 
 However, that is a matter of judicial construction or of 
 legislative amendment. 
 
 Warrant. 
 
 'When the judge issues a warrant for the arrest of the 
 judgment debtor, he may be arrested in any county in 
 which he is found ; but he is to be examined in the 
 same county that he would be required to appear 
 and answer if the proceedings had been commenced 
 by an order instead of the warrant. 
 
 See §§ 2434 and 2459 of the Code of Civil Procedure. 
 The function of a warrant is only to compel the per- 
 sonal attendance of the judgment debtor before the 
 judge for examination, and to obey such orders as may 
 thereafter be made against him. 
 
 Proceedings against Third Persons. 
 
 Proceedings against a debtor or bailee of the judg- 
 ment debtor can only be maintained when the execu- 
 tion against his property was issued to the proper offi- 
 cer of the county where the judgment debtor has, at 
 the time of the commencement of the proceedings, a 
 place for the regular transaction of business in person ; 
 or, if a resident of the State at the time of issuing the 
 execution, then only when the execution was issued to 
 the county where he resided. 
 
 In short, the same requisites as to issuing execution, 
 the county where to be issued, and the county in which 
 the third person is to attend for examination, are re- 
 quired as in proceedings against the judgment debtor. 
 
PROOF TO OBTAIN ORDER. 87 
 
 SECTION VII. 
 
 The Proof to Obtain the Order after Return of Execution. 
 
 % 2435. " At any time within ten years after the re- 
 turn, wholly or partly unsatisfied, of an execution 
 against property, issued upon a judgment as prescribed 
 in § 2458 of this act, the judgment creditor, upon proof 
 of the facts, by afifidavit, or other competent written 
 evidence, is entitled to an order requiring the judg- 
 ment debtor to attend and be examined concerning his 
 property, at a time and place specified in the order." 
 This section, unlike § 292 of the former Code, expressly 
 limits the time to ten years within which to prosecute 
 proceedings after return of execution, and also requires 
 written evidence of the facts necessary to obtain the 
 order. In New York the proof of the facts necessary 
 to procure the order for the examination of the judg- 
 ment debtor, if by affidavit, may be furnished by the 
 owner of the judgnient, his attorney, or agent, who has 
 charge of the collection of the judgment. Conway v. 
 Hitchins, 9 Barb., 378 ; Eden v. Everson, 65 Ind., 113. 
 In short, the affidavit may be made by any person who 
 knows the facts which are to be sworn to. But his 
 connection with the matter must be shown — viz., that 
 he is the judgment creditor, or assignee, or attorney, 
 etc.; or if he is neither, that he is acquainted with the 
 facts, and how he is so acquainted, and that the affida- 
 vit is made at the request of or procured by the creditor 
 or owner of the judgment or by his agent. The exec- 
 utors of the judgment creditor are presumptively the 
 owners of the judgment, and that fact need not be 
 stated in the afifidavit. Collier v. De Revere, 7 Hun., 
 61. But it must appear before the judge that the af- 
 fiant is in a position to know the facts which he asserts. 
 
88 PROOF TO OBTAIN ORDER. 
 
 and that he is not an interloper, but authorized to 
 make the affidavit. If he is not in some such way con- 
 nected with the matter, his affidavit will not give the 
 officer judisdiction to institute the proceedings, and the 
 order obtained thereon will be set aside on motion, 
 especially where neither the plaintiff in the judgment 
 nor his attorney appears in the proceedings. Lindsay 
 V. Sherman, i Code {N. 5.), 25 ; Hough v. Kohlin, Id., 
 232 ; Frederick v. Decker, 18 How., 96. 
 
 It will, however, require but slight evidence to con- 
 nect the affiant with the owner of the judgment or the 
 party who is entitled to prosecute the proceedings. 
 
 In Hawes v. Barr, 7 Robt., 452, the General Term of 
 the N. Y. Superior Court held that when an agent of 
 the judgment creditor makes the affidavit, the averment 
 that he is an agent is not enough ; he must state the 
 nature of his agency. But an affidavit by one who 
 describes himself as the attorney of the plaintiff, in- 
 stead of alleging that he is the attorney, is sufficient. 
 Miller z/. Adams, 52 N. Y., 409. 
 
 The Code of Civil Procedure requires proof of the 
 facts to be made by affidavit or other competent writ- 
 ten evidence to entitle the applicant to the order. The 
 former Code did not in terms require proof. Hence 
 there was a difference of opinion on this point. Some 
 cases held that proof of the requisite facts was neces- 
 sary for the order. See The People, etc., v. Oliver, 66 
 Barb., 570; Wyman v. Childs, 44 Id., 403 ; Bingham v. 
 Disbrow, 5 Transpt. Appeals, 198, Clerke, J. ; Greene 
 V. Bullard, 8 How., 313 ; while others held that it was 
 only necessary that the requisite facts did exist to give 
 the judge jurisdiction, and he might dispense with the 
 formal proof thereof, the only consequence of doing 
 so being that he and the applicant took the risk of the 
 facts not existing. See Collins v. De Revere, 7 Hun, 
 61, General Term ; Hart v. Stearns, 4 N. Y. W. Digest, 
 
WHAT FACTS TO PROVE. 89 
 
 540, Supreme Court, General Term ; Rugg v. Spencer, 
 59 Barb., 383 ; Scott v. Durfee, 59 Id., 390, note. 
 
 These last decisions are superseded by the above- 
 named section (2435) of the present Code. The statutes 
 of no State in the Union expressly prescribe any proof 
 to obtain the order against the judgment debtor after 
 return of execution except New Jersey, which provides 
 that a petition be presented, verified by oath, setting 
 forth, among other things, the judgment creditor's belief 
 that the debtor has property or money or things in ac- 
 tion due him or held in trust for him. But the prac- 
 tice in the other States generally follows that of the 
 creditor's bill, which requires the facts entitling the 
 judgment creditor to the bill, to be set forth and 
 verified. 
 
 What Facts and how Proved. 
 
 The facts required by §§ 2435 and 2458 of the Code 
 of Civil Procedure of New York must be proved. A 
 judgment and an execution against property issued 
 from a court having the right to issue it, the delivery 
 thereof to the sheriff of the proper county, or, if he is 
 a party or interested in the judgment, to a particular 
 coroner or to the coroners of the county generally, 
 and the return of the same unsatisfied in whole or in 
 part, must be shown. Wyman v. Childs, 44 Barb., 
 403 ; Bingham i). Disbrow, 5 Transpt. Appeals, 199, 
 Clerke, J. 
 
 The sheriff is presumed to have returned the execu- 
 tion at the expiration of sixty days after receiving it. 
 Bean v. Tonnelle, 24 Hun, 353 ; S. C, i Civil Pro. R., 
 33, General Term. It is, however, sufficient to allege 
 these facts directly and without going into detail. But 
 the affidavit must name the parties in whose favor 
 and against whom the judgment was rendered, as well 
 as the court and when the same was recovered, the 
 
90 WHAT FACTS TO PROVE. 
 
 amount of the recovery, the county or office where the 
 judgment-roll is filed, or where the transcript is filed, 
 if the judgment was rendered in a court not of record, 
 and the time of such filing. The amendment of 1881 
 to §245 8 of the Code of Civil Procedure makes it unnec- 
 essary to allege in the affidavit for proceedings, on a 
 judgment of a court of record, that the judgment was 
 recovered for a sum not less than twenty-five dollars, 
 exclusive of costs ; but this allegation is still required 
 for proceedings on a judgment of a court not of record. 
 This fact may, however, sufficiently appear from the af- 
 fidavit without being directly averred. Thus, where a 
 judgment of a district court of the City of New York 
 was for thirty-three dollars, it was held that the fact 
 sufficiently appeared. Whitlock's case, 2 Abb., 320. 
 The affidavit or proof must truly describe the judg- 
 ment and allege all the facts necessary to authorize the 
 judge to make the order. If it does not, if it is defective 
 in any particular required by the statute, the proceed- 
 ings must be dismissed, if the objection is made at the 
 first opportunity. Dillman v. Dillman, 93 Ind., 585. 
 But many such defects may be supplied by amendment 
 on the return of the order or thereafter. See First 
 National Bank of Rome v. Wilson, 13 Hun, 232 ; S. C, 
 5 N. V. W. Digest, 565, General Term ; also Wright v. 
 Nostrand, 94 N. Y., 31. 
 
 It was held in Kennedy v. Weed, 10 Abb., 62, New 
 York Common Pleas Ch., that the defect of not describ- 
 ing the judgment correctly in that case could not be rem- 
 edied by amendment, as the defect went to the juris- 
 diction. The defect in this case was, however, not in 
 the affidavit, but in the transcript of the judgment. 
 The judgment had been rendered in a court not of rec- 
 ord, and described the debtors as Ira Weed and Mary 
 Weed, which the affidavit followed, while the transcript 
 filed and docketed in the county clerk's office de- 
 
WHAT FACTS TO PROVE. 9 1 
 
 scribed them as Ira Weed and Mrs. Weed. This error 
 in the transcript could not be corrected on these pro- 
 ceedings. See also Simpkins v. Page, i Code R., 107 ; 
 the People v. Hulbert, 5 How., 446 ; S. C, 9 N. Y. Leg. 
 Obs., 245, and i Code R. {N. S.), 75 ; Lindsay v. Sher- 
 man, Id., 25. 
 
 In all cases where the right to prosecute supplement- 
 ary proceedings has accrued since this part of the Code 
 of Civil Procedure went into effect — September i , 1 880 — 
 it must appear by affidavit, or other competent written 
 evidence, that the judgment was rendered upon the 
 defendant's appearance or personal service of the sum- 
 mons upon him (§ 2458). But in any case where this 
 right existed on September i, 1880, such proof need 
 not be made. So if the judgment is recovered against 
 the plaintiff, no such proof need be offered ; for the 
 plaintiff has voluntarily brought himself within the 
 jurisdiction of the court. Bean v. Tonnelle, 24 Hun, 
 353; Folwell V. Combies, 14 iV. Y. W. Digest, 115, Su- 
 preme Ct., General Term. 
 
 Although, according to Emory v. Emory, 9 How., 
 130, the defendants of joint debtors against whom the 
 judgment was not entered up, need not be made par- 
 ties to these proceedings, yet the affidavit should de- 
 scribe the judgment as it is entered — to be enforced 
 against the joint property of all the debtors and the 
 sole property of those against whom the judgment 
 was entered ; and that the execution against property 
 was so issued. 
 
 When the judgment is of a court of special jurisdic- 
 tion, the facts conferring jurisdiction need no more be 
 stated in the affidavit or proof than in a pleading ; but 
 it should be alleged that the judgment was duly given 
 or made, as is required in a pleading in such case. Con- 
 way V. Hitchins, 9 Barb., 378. 
 
 In the City Court of New York, in proceedings upon 
 
92 WHAT FACTS TO PROVE. 
 
 a judgment of that court, it has been held not to be 
 necessary to state in the affidavit that that court is 
 a court of record, or that no previous application for an 
 order had been made, or that the judgment was recov- 
 ered upon the appearance or personal service of the 
 summons upon defendant ; for if the judgment-roll is 
 referred to in the affidavit, it may be inspected at any 
 time, to ascertain this last-mentioned fact, and is the 
 proof thereof. Sayer v. MacDonald, Daily Register, 
 July 7, 1885, N. Y. City Court, General Term. 
 
 It must also appear in the proof that an execution 
 against the property of the judgment debtor was issued 
 to the sheriff of a county prescribed by § 2458 of the 
 Code of Civil Procedure, and that the same has been 
 returned unsatisfied in whole or in part, as the fact may 
 be, and that the judgment remains wholly unpaid, or, 
 if partly paid, it must state the amount still unpaid. 
 The present Code does not expressly require this last 
 averment, but the creditor's bill did by Chancery Rule 
 189, and the practice follows this rule. 
 
 It must appear that the execution was issued after 
 the judgment was docketed in the same county. 
 
 The New York Superior Court held at General Term 
 that the proof must show affirmatively that the judg- 
 ment had been docketed and the transcript thereof 
 filed before the execution was issued. Hawes v. Barr, 
 7 Robt., 452. But this decision is not followed in prac- 
 tice. Such a stringent rule can serve no good purpose, 
 while it is a snare to the practitioner. 
 
 The New York Common Pleas laid down a more lib- 
 eral rule, to wit : that an affidavit which states the facts 
 of the recovery of the judgment, the filing, etc., of the 
 transcript, the issuing and return of the execution, etc., 
 sequently, is sufficient. Baker v. Stephens, 10 Abb. (N. 
 S.), 1 127. The latter court at General Term also held 
 that to obtain an order upon a judgment in that court 
 
WHAT FACTS TO PROVE. 93 
 
 the affidavit need not aver that a transcript of the judg- 
 ment had been filed in the office of the clerk of the City 
 and County of New York, but that such an averment 
 is essential to jurisdiction in proceedings based on a 
 judgment of a district court of the City of New York. 
 Kennedy z-. Thorp, 2 Daly, 258 ; S. C, 3 Abb. {N. 5.), 131. 
 
 When more than five years have elapsed since the 
 rendition of the judgment, it should appear by the affi- 
 davit, or other proof, either that an execution against 
 property had been issued within the five years, or that 
 the execution on which the proceedings are based was 
 issued by leave of the proper court. But the omission 
 of this last averment is not fatal. 
 
 As to the averment that no previous application to 
 the order had been made, the Supreme Court at Gen- 
 eral Term, First Judicial Department, decided that the 
 omission of it was simply an irregularity which did not 
 entitle the judgment debtor to a dismissal of the order, 
 although the judge might do so. Bean v. Tonnelle, 
 24 Him, 353- 
 
 Before this last decision the Supreme Court at Spe- 
 cial Term in another district held that this rule was not 
 intended to apply to orders instituting supplementary 
 proceedings, and that if it was intended to be so ap- 
 plied, such intent was inoperative, because a provision 
 of a statute could not be altered by a rule of court. 
 Schank v. Conover, 56 How., 437, citing Glenny v. 
 Stedwell, 64 N. Y., 120; Reeve v. Ehele, 55 N. Y., 524; 
 Winston v. English, 14 Abb. {N. S.), 124 ; Lakey v. Cogs- 
 well, 3 Code R., 116. But what provision or statute 
 does this rule seek to alter? The judges of the New 
 York Court of Common Pleas adhere rigidly to this rule, 
 and require this proof to be made, and will dismiss the 
 proceedings on motion upon the return of the order, if 
 this averment is omitted. See Diossy v. West, i N. Y. 
 M. L. Bull., 23 ; S. C, 8 Daly, 298. 
 
94 WHAT IS NOT SUFFICIENT. 
 
 The decision in Rugg v. Spencer, 59 Barb., 383, made 
 under the former Code, that where the order recites 
 expressly that the requisite facts had been made to ap- 
 pear to the judge by the affidavit of one of the plain- 
 tiff's attorneys, this is sufficient prima facie to show 
 that proof had been made, is superseded by § 2452 of 
 the Code of Civil Procedure, which requires that a copy 
 of the affidavit on which the order was made must be 
 served with the order, except, perhaps, in cases where 
 the right to these proceedings existed when this part 
 of the present Code went into effect, September i, 
 1880. 
 
 It will not do to allege residence or place of business 
 and non-residence in the alternative ; as, for instance, 
 that the judgment debtor resided in the county when 
 the execution against property was issued, or was then 
 a non-resident of the State. But residence and place 
 of business, or non-residence and place of business, may 
 be jointly alleged. 
 
 An affidavit in a proceeding against a tax-payer is suf- 
 ficient to justify the making of the order when it states 
 the facts specified in § i, ch. 640, of the Act of 1881. In 
 re Conklin, 21 N. Y. W. Digest, 329, Supreme Court, 
 General Term. 
 
 The affidavit or proof for proceedings upon a judg- 
 ment against a trustee in his representative capacity, for 
 the collection of the costs included therein, must show 
 that the execution required the sheriff to satisfy the 
 same out of the trust property in the hands of the de- 
 fendant. (§ 1371 of the Code of Civil Procedure.) Such 
 costs have a preference over payments to be made, pur- 
 suant to the instrument creating the trust. Felt v. 
 Dorr, 29 Hun, 14; S. C, 16 N. V. IV. Digest, 385. 
 
 An averment in the affidavit that the execution 
 was issued against the property of the defendant as 
 assignee is not sufficient. Simply describing him as as- 
 
WHAT FACTS TO ALLEGE. 95 
 
 signee is not a compliance with the statute. Felt v. 
 Dorr, 29 Hun, 14, General Term. 
 
 So also, if the court directs the trustee to pay the 
 costs personally for mismanagement, the affidavit or 
 proof for proceedings against him to collect the same 
 must show that fact, and that the execution was issued 
 accordingly; because the judgment-roll will not neces- 
 sarily show it. 
 
 It must also appear in the proof that the application 
 for the proceedings is made within ten years since the 
 return of the execution against property. The proof 
 must also state the county in which the judgment debtor 
 resides, if a resident of the State, or in which he has an 
 ofifice for the regular transaction of business in person 
 (§2458); or if he is neither a resident of the State nor 
 has a place of business therein, then the county where 
 the judgment-roll or the transcript, etc., is filed. Subd. 
 3 of §2458 of the Code of Civil Procedure. 
 
 The afifidavit or other proof need not show that the 
 judgment debtor has property. Hough v. Kohlin, i 
 Code R. {N. 5.), 232 ; Anon., Code R. {N. S), 1 13 ; S. C, 
 3 Sandf., 725 ; Hatch v. Weyburn, 8 How., 163, over- 
 ruling Tillou V. Vere, Code R., 130; Jones v. Lawlin, 
 I Sandf., 722 ; S. C, Code R., 94. 
 
 The affidavit should state that the execution is one 
 issued against property. People v. Hulburt, 5 How., 
 446; S. C, 9 N. V. Legs. Obs., 245, and i Code R. {N. S), 
 75. To the contrary is McArthur v. Lansburgh, i 
 Code R. {N. S.), 211, but not followed in practice. In 
 People V. Hulburt it was held that nothing will be pre- 
 sumed in favor of the jurisdiction of an inferior tribu- 
 nal as a county judge when he assumes its exercise for 
 the first time in these proceedings, upon a judgment 
 not in his own court ; but that all the facts upon which 
 his jurisdiction rests must be afifirmatively shown. This 
 old and severe decision seems to be overruled on this 
 
96 WHAT FACTS TO ALLEGE. 
 
 point by later decisions, and especially in Wright v. Nos- 
 trand, 94 JV. Y., 31 ; and Bingham v. Disbrow, 14 AM., 
 251 ; S. C, 37 Barb., 24. In this latter case the judg- 
 ment was recovered in the Supreme Court. The judg- 
 ment-roll was filed in one county and the execution 
 against property issued to another. The affidavit failed 
 to state that a transcript of the judgment had been 
 filed in the latter county. This omission was held not 
 to be fatal. Of course, the defect was amendable on 
 motion. In some of the other States it is prescribed 
 by statute that the affidavit or proof must show that 
 the judgment debtor has property or clioses in action, or 
 things of value which ought to be applied to the pay- 
 ment of the judgment, or make out a prima facie case 
 that he has property, in order that the aid of the court 
 may not be invoked for an idle purpose. In other 
 States the courts have adopted a like rule, having taken 
 it from Chancery practice, which requires the bill of 
 complaint to allege that the defendant has property 
 which ought to be applied to the payment of the judg- 
 ment. But in New York the far more liberal rule pre- 
 vails, to-wit : every judgment creditor is entitled to 
 institute and prosecute supplementary proceedings 
 upon his judgment against the debtor, and subject him 
 to a full and thorough examination, wringing his con- 
 science under the solemnity of 'an oath and exploring 
 ' all the hidden recesses of fraud in order to discover if, 
 peradventure, he may have property or something of 
 value applicable to the payment of the judgment. But 
 he can have only one such examination and proceeding, 
 even if he has other judgments against the same debtor. 
 These proceedings, and substantially in the same form, 
 have been in force in the State of New York for nearly 
 thirty years. The statutory provisions authorizing them 
 have been amended a number of times, and also re- 
 modelled twice by the Legislature, with the view of im- 
 
WHAT FACTS TO ALLEGE. 97 
 
 proving them and rendering them more efficient and 
 serviceable to the pubHc ; the courts have had them 
 under judicial examination in all their provisions many 
 times during that period, and yet neither legislature 
 nor court in all those years has ever imposed upon the 
 judgment creditor the condition that he must state, 
 under oath, or show that his debtor has some species 
 of property applicable to the payment of the judgment 
 before he will be permitted to subject him to supple- 
 mentary proceedings, on the grounds that otherwise 
 the aid of the courts or the judges might be invoked 
 for an idle purpose. 
 
 In Indiana it is held that after the return of execu- 
 tion against property unsatisfied, an order instituting 
 proceedings may be issued without an affidavit ; but for 
 proceedings before the return of execution an affidavit 
 is necessary, or else the proceedings will be dismissed. 
 Brisco V. Askey, 12 Ltd., 666 ; Mason v. Weston, 29 Id., 
 561. In that State the affidavit is deemed a com-, 
 plaint upon which a summary creditor's action is insti- 
 tuted, and the judgment debtor, and third parties hav- 
 ing property of the debtor in their hands, or indebted to 
 him, are ordered to appear and answer. See above, §11. 
 
 If the affidavit contains no averment of fraud in the 
 conveyance of property by the judgment debtor to the 
 third party, the question of fraud cannot be raised or 
 adjudicated in the proceedings. Pounds v. Chatham, 
 96 Id., 342. In Michigan it was held that these pro- 
 ceedings require the same facts to be alleged as to the 
 return of execution unsatisfied that are required to file 
 a creditor's bill. Albany City Bank v. Door, i Walk- 
 er's Chancery R., 317- 
 
 In Minnesota the only facts necessary to show to en- 
 title a judgment creditor to proceedings after return of 
 execution are judgment, execution against property is- 
 sued to the sheriff of the proper county and returned 
 
98 WHAT FACTS TO ALLEGE. 
 
 unsatisfied in whole or part, the statute of that State 
 not requiring any more. It need not be alleged that 
 the judgment debtor has property subject to execution. 
 Kay z/. Vischers, g Minn., 270; Flint 7a Webb, 2^^ Id., 
 263. In North Carolina, after return of execution 
 against property unsatisfied, the affidavit or proof must 
 state that the judgment debtor has property, choses in 
 action, or things of value which ought to be subjected 
 to the payment of the judgment. But this fact may 
 be stated on information or on knowledge. Hutchinson 
 V. Symons, 6^ N. C, 156. The statute of that State 
 does not prescribe what proof shall be made to obtain 
 the ol-der for examination after return of execution. 
 But the courts conform the practice in these proceed- 
 ings to the former system — namely, that the facts must 
 be made to appear by affidavit or otherwise — that is, 
 the want of known property liable to execution (which 
 is proved by the sheriff's return unsatisfied), the non- 
 existence of any equitable estates in land within the 
 lien of the judgment, and the existence of property, 
 choses in action, and things of value unaffected by any 
 lien and incapable of levy. This last allegation is re- 
 quired in order that the aid of the court may not be 
 invoked for an idle purpose. Hinsdale v. Sinclair, 83 
 N. C, 338. 
 
 The Order. 
 
 In New York the order may be entitled, as in other 
 special proceedings, before a judge out of court. Davis 
 V. Turner, 4 How., 190; or in the action" in which the 
 judgment was rendered or the title of the transcript 
 when the execution was issued out of another court. 
 
 Under the former Code it was held that entitling an 
 order in a wrong court, as in a justice's court when the 
 proceedings were before a county judge, was a mere ir- 
 regularity, of which the judgment debtor only could 
 
THE ORDER, AND RECITALS. 99 
 
 avail himself by a motion on the return of the order 
 to set it aside. People, etc., v. Oliver, 66 Barb., 570, 
 General Term. 
 
 Proceedings to collect a tax instituted before a 
 county judge or a special county judge must be entitled 
 like other special proceedings. 
 
 When the judgment has been assigned and the as- 
 signee substituted in the place of the judgment cred- 
 itor, all the proceedings are conducted in his name. 
 
 The parties to the proceedings may also be styled 
 plaintiff and defendant, as in an action. 
 
 The order is ex-parte, and made at chambers. Huls- 
 aver v. Wiles, 11 How., 446. 
 
 Recitals. 
 
 It is usual to recite the requisite proof in the order, 
 but this is not necessary. The People, etc., v. Oliver, 66 
 Barb., 570. As the present Code requires the service 
 of a copy of the affidavit with the order upon the party 
 to be examined, which the former did not do, there 
 seems to be no reason for encumbering the order with 
 a recital of the affidavit or the substance of it. But 
 Judge Larremore, at Special Term, New York Court 
 of Common Pleas, held that to give the judges of that 
 court jurisdiction in proceedings instituted upon judg- 
 ments of the District Courts of the City of New York or 
 of justices' courts, it was necessary to state all the juris- 
 dictional facts in the order, and that it was not sufficient 
 to show the jurisdictional facts merely in the affidavit. 
 Day V. Brosnan, 6 Abb. {N. C), 312. 
 
 If, however, the order undertakes to recite the facts 
 conferring jurisdiction upon the judge, who is to make 
 it, it must recite them correctly, or else the order will 
 be dismissed if the objection is taken in time. Hatch 
 V. Weyburn, 8 How., 163; and Hulsaver z/. Wiles, 11 
 Id., 446. 
 
lOO WHERE TO ATTEND FOR EXAMINATION. 
 
 If the judgment debtor is at the time a resident of 
 the State, or has therein an office for the regular trans- 
 action of business in person, the order must require him 
 to attend in person at a time and place specified within 
 the county in which he resides or carries on business. If 
 he is not a resident of the State, but has an ofifice there 
 for the regular transaction of business in person, then 
 the order must require him to attend within the county 
 where his business is situated. If he is neither a resi- 
 dent of the State nor has an ofifice there for the regular 
 transaction of business in person, he must be required 
 to attend within the county where the judgment-roll is 
 filed or the transcript of the judgment is filed, if the 
 execution was issued out of a court other than that in 
 which the judgment was recovered. See Anway v. 
 Davies, 9 Hun, 296. 
 
 The order must be made returnable, in terms, before 
 the judge who grants it or before a referee named 
 therein, or in a case specified in § 2434 of the Code of 
 Civil Procedure, before some other judge named in the 
 order, and require the judgment debtor to answer con- 
 cerning his property. See Hatch v. Weyburn, 8 How., 
 163 ; Hulsaver v. Wiles, 11 Id., 446. It is irregular to 
 require the debtor to appear before one of the justices 
 of the court or before any other judge than him who 
 makes the order, except in a case specified in § 2434 
 above mentioned ; and an order containing such direc- 
 tions will be dismissed on motion, if made in due time. 
 Haggerty v. Rogers, 15 Abb., 314, note; Dresser v. 
 Van Pelt, 15 How., 19; Vibert v. Frost, 3 Abb., 119; 
 S. C, S Duer, 672 — all in the Superior Court of the 
 City of New York. See also Ammidon v. Wolcott, 
 15 Abb., 314, and Kelly v. McCormick, 28 N. Y., 318, 
 where it was held that an attachment should be made 
 returnable before the judge who grants it, thus overrul- 
 ing the New York Court of Common Pleas on this point 
 
WHERE TO ATTEND FOR EXAMINATION. lOI 
 
 in S. C, 2 E. D. Smith, 503. But all such directions, 
 and errors in the order are at most mere irregularities, 
 and if the objection is not taken on the return of the 
 order or attachment — that is, when the exercise of ju- 
 risdiction is first claimed, they are waived. See above 
 authorities. So if the order should require the judg- 
 ment debtor to appear before the court held by the 
 judge making it, this would also be a mere irregularity, 
 and could be waived. Dresser v. Van Pelt, supra. 
 
 In the New York Court of Common Pleas an order re- 
 quired the judgment debtor to appear before the judge 
 who signed it, " or some other judge at chambers." The 
 court at General Term decided that these words were 
 simply surplusage, and that the motion to dismiss the 
 order upon its return was properly denied. The Bank 
 for Savings v. Hope, 8 Daly, 316; also Dresser v. Van 
 Pelt, supra ; Bingham v. Disbrow, 14 Abb., 251 ; S. C, 
 37 Barb.. 24, where this point was mooted, but not 
 passed upon. In a case where a Supreme Court justice 
 may make the order upon an execution issued out of a 
 court other than his own, and the requisite facts are 
 verified, and are before him, he may make the order re- 
 turnable before another judge, as prescribed in § 2434 of 
 the present Code. 
 
 An order returnable on Sunday is a nullity, and 
 changing the date of return cannot make it valid. 
 
 The Arctic Fire Insurance Co. v. Hicks, 7 Abb., 204. 
 Semble, if the order is mad'e returnable on a holiday 
 or election day. An order stating no place to appear 
 is totally defective. Kelty v. Daly, 31 How., 95. 
 
 It is held in Hulsaver v. Wiles, 1 1 How., 446, that 
 where the proof will warrant it the order may combine 
 the purposes sought to be attained by §§ 292, 294, and 
 296 (of the former Code) — that is, it may require the 
 appearance of the judgment debtor and third parties 
 for examination, and also appoint a referee. Also see 
 
i02 MODE OF SERVICE OF ORDER. 
 
 Sickles V. Henley, 4 Abb. {N. C), 231. This is the 
 practice in the State of Indiana. 
 
 In the State of Kansas, where a probate judge is au- 
 thorized to make the order instituting the proceedings, 
 it was held that an affidavit and order using the words 
 " probate court " instead of " probate judge " while the 
 affidavit and application were filed with the probate 
 judge, and the order was made by him as probate judge, 
 was not fatal. The White Sewing Machine Co. v. 
 Wait, 24 Kas., 136. 
 
 Mode of Service. 
 
 §2452. "An injunction order, or an order requiring 
 a person to attend and be examined, made as pre- 
 scribed in this article, must be served as follows : (i) 
 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 de- 
 livered, where a summons is personally served upon the 
 corporation, unless the officer is specially designated by 
 the judge, as prescribed in §2444 of this act. 
 
 This section is new, and definitely prescribes the mode 
 of service of orders. The order must be personally 
 served upon the judgment debtor. There can be no 
 substituted service. Barker v. Johnson, 4 Abb., 435 ; 
 also Green v. Bullard, 8 How., 313; Utica City Bank 
 V. Buell, 17 /^., 498; S. C, 9 Abb., 385; Farquehar- 
 son V. Kimball, 9 Id., note ; S. C, 18 Hozv., 33. 
 
 Under the former Code it was held that the omis- 
 sion to show the original order with the judge's signa- 
 ture thereto to the person being served was simply an 
 irregularity, which did not justify the person served to 
 disregard the service. If he wanted to take advantao-e 
 
MODE OF SERVICE AND WHERE SERVED. I03 
 
 of the irregularity, he should have appeared and taken 
 the objection. Billings v. Carver, t^^. Barb., 40; Newell 
 V. Cutler, 19 Hun, 74. The former Code, however, did 
 not prescribe a mode of service, as does the present 
 Code, which has modeled the service in these proceedings 
 upon the mode prescribed in the R. S., part 3, ch. 7, 
 tit. 3, §44, for the service of a summons issued by a 
 judge to a witness. Query: Would such a service, 
 without exhibiting the original, be a nullity for all pur- 
 poses ? Would the proceedings thereby be instituted, 
 so as to give the judgment creditor a priority over an- 
 other who regularly served his order subsequently 
 thereto ? and would the effect of such irregular service 
 merely be not to require the attendance of the person 
 served under the penalty of punishment as for a con- 
 tempt of court ? When the copy of the affidavit served 
 with the order did not contain the copy signature of 
 the affiant, nor of the officer administering the oath, 
 it was held that the service was defective, and a motion 
 to dismiss the proceedings on that ground was granted 
 under the above section (2452) of the Code. Nat. 
 Printing Co. v. Patterson, 4 N. V. M. L. Bull., 64, 
 J. F. Daly, J., N. Y. Com. Pleas. 
 
 Service of the order after the return day is void. 
 Henderson v. Stone, 2 Sweeny, 468 ; S. C, 40 How., 
 336, General Term. 
 
 Where Served. 
 
 An order made by a justice of the Supreme Court 
 may be served anywhere in the State; his territorial ju- 
 risdiction is conterminous with the boundaries of the 
 State. But an order made by a judge of a local court 
 can only be served within the same territorial limits 
 that a summons or order instituting any other special 
 proceeding before the same judge may be served. A 
 judge of a local court can acquire no jurisdiction of 
 
I04 WAIVER OF PROOF OF SERVICE. 
 
 these proceedings if the judgment debtor neither re- 
 sides in his city or county, nor has an office therein for 
 the regular transaction of business in person, except in 
 the single case mentioned in § 2434 of the Code of Civil 
 Procedure, where a justice of the Supreme Court is au- 
 thorized to institute the proceedings upon an execution 
 issued out of a court other than his own, and send the 
 same to a county judge of an adjoining county. But 
 if the judgment debtor resides, or carries on business in 
 the city or county of the local judge, and he has other- 
 wise jurisdiction of the subject-matter, there is no rea- 
 son why the order should not be served without his city 
 or county. See subd. 9 of § 263 of the present Code. 
 
 Proof of service is made by affidavit. The sheriff's 
 certificate is no proof. Utica City Bank v. Buell, 17 
 How., 498 ; S. C, 9 Abb., 385. 
 
 Waiver of Proof. 
 
 To appear for the purpose of asking an adjournment 
 is a waiver of every objection to the proof of service, 
 although the judgment debtor at the time expressly re- 
 serves the right to object to any irregularity in the 
 proceedings. Utica City Bank v. Buell, supra. 
 
 SECTION VIII. 
 
 Proof to Obtain tJie Order before Return of Execution. 
 
 % 2436. " At any time after the issuing of an execu- 
 tion against property, as prescribed in §2458 of this 
 Act, and before the return thereof, the judgment cred- 
 itor, upon proof, by affidavit or other competent written 
 evidence, that the judgment debtor has property which 
 he unjustly refuses to apply toward the satisfaction of 
 the judgment, is entitled to an order requiring the 
 
PROOF FOR ORDER, NATURE OF 105 
 
 judgment debtor to attend and be examined concern- 
 ing his property, at a time and place specified in the 
 order." This is substantially that part of §292 of the 
 former Code on the same head, except the words 
 " concerning his property " are substituted for " con- 
 cerning the same," so that in this proceeding the judg- 
 ment debtor may be as fully examined concerning all 
 his property as in proceedings after return of execu- 
 tion, and the same remedy adopted. This could not 
 be done under the former statute. 
 
 The new Code has assimilated the different proceed- 
 ings as to the kind of proof required for the jame facts, 
 and the mode of proving them ; wherefore, what is 
 stated in the preceding section applies here. 
 
 Nature of. 
 
 These proceedings are rather in aid of execution than 
 supplementary thereto. They enable a judgment cred- 
 itor at once to discover concealed property and cause 
 it to be paid or delivered to the sheriff, for the purpose 
 of levy and sale, under the execution, without the 
 delay of sixty days ; or if it is beyond the reach of exe- 
 cution, to cause the appointment of a receiver at once, 
 in order to reach it by that remedy. In a proper case 
 for this course, the judgment debtor is not prejudiced. 
 A somewhat similar practice obtains in North Carolina, 
 under the Code of that State, although a levy may 
 have been actually made upon the debtor's property. 
 But as this remedy is extraordinary, and liable to abuse, 
 the courts of New York construe this provision (§ 2436) 
 strictly, and hold the judgment creditor to a close com- 
 pliance therewith in proving the facts which entitle 
 him to this remedy. The provisions of this remedy 
 and that of the warrant are modelled upon the second 
 subdivision of the fourth section of the act to abolish 
 imprisonment for debt^, and to punish fraudulent debt- 
 
I06 WHAT FACTS TO PROVE. 
 
 ors, passed April 26, 1831, but now repealed; and 
 the proceedings, like those in the latter, are in effect a 
 statute execution against choses in action and other 
 property not tangible by the ordinary 7?/«, or so con- 
 cealed that it cannot be reached without proceedings 
 of discovery. 5^^ Berthelen i/. Betts, 4 /////, 577 ; Spear 
 V. Wardell, i N. Y., 144 ; also Sackett v. Newton, 10 
 How., 560. 
 
 There is a similarity on this point between these pro- 
 ceedings and those under the Non-imprisonment Act. 
 However, this provision in §2436 has enlarged the rem- 
 edy, so that any and every species of property of the 
 debtor may be reached and applied upon the judgment 
 under the direction of the judge. 
 
 What to Prove. 
 
 To obtain this order, the same facts required for an 
 order of examination after return of execution must be 
 proved by affidavit, or other competent written evi- 
 dence, except the return of execution unsatisfied, and in 
 addition the further fact prescribed in § 2436, to wit : 
 that the judgment debtor has property which he unjustly 
 refuses to apply toward the satisfaction of the judgment. 
 This latter requisite must be clearly set forth by show- 
 ing facts and circumstances, in orderthat the judge may 
 decide whether the judgment debtor has property which 
 he unjustly refuses to apply toward the satisfaction of the 
 judgment. It is not enough to make that averment in 
 the words of the statute. The First National Bank of 
 Rome V. Wilson, 13 Hun, 232 ; S. C, 5 N. Y. IF. Digest, 
 565, General Term. But an affidavit in the language 
 of the statute is enough to give the court jurisdic- 
 tion, the defect being only an irregularity which may be 
 waived or amended. The First National Bank of Rome 
 V. Wilson, supra. Here the amendment of the proof 
 was allowed on a motion to dismiss the proceedings. 
 
WHAT FACTS TO PROVE. 107 
 
 An affidavit which states on the information and be- 
 Hef of the affiant that the judgment debtor has proper- 
 ty which he unjustly refuses to apply toward the sat- 
 isfaction of the judgment, without giving the name of 
 the informant, with his means of knowledge, nor de- 
 scribing the character of the property, is not sufficient 
 to warrant the order. The name of the informant, 
 with his means of knowledge, should be given, so that 
 the court may determine whether the information is 
 entitled to credit as proof or not ; and the property 
 should be described, because the examination can only 
 be had where the property which the debtor refuses to 
 apply is concealed or is not subject to levy. Menkin 
 V. Pape, 65 How., 453, New York City Court, Special 
 Term, McAdam, J. Nor will an affidavit made by the 
 attorney, on information obtained from the plaintiff, suf- 
 fice for this order. Klinke v. Levy, The Daily Regis- 
 ter, Nov. 22,1883, New York City Court, McAdam, 
 J. All the facts necessary to bring a case within this 
 section (2436) of the Code of Civil Procedure must be 
 proved to confer jurisdiction upon the judge. The 
 mere appearance of the judgment debtor and his ex- 
 amination without objection does not confer jurisdic- 
 tion. The order granted is void, and the question of 
 jurisdiction may be raised at any stage of the proceed- 
 ings. Driggs V. Smith, 47 How., 215, N. Y. Common 
 Pleas, Robinson, J. But this decision can only apply 
 when the requisite facts, or any of them, do not exist. 
 If all the facts necessary to confer jurisdiction upon 
 the judge making the order exist, then a defect or an 
 omission of this kind in the affidavit or other proof 
 may be waived or amended. See First National Bank 
 of Rome v. Wilson, 13 Hun, 232 ; S. C, S N. Y. W. 
 Digest , 565 ; Wright v. Nostrand, 94 jV. K, 31. It is 
 not property generally of the judgment debtor which 
 he must refuse to apply toward the satisfaction of the 
 
I08 WHAT FACTS TO PROVE. 
 
 judgment to authorize this order. The affidavit or 
 other competent written evidence must show that it 
 consists either of property not subject to levy, as 
 things or rights in action, etc., or if subject to levy, 
 that it is so kept by him that it cannot be clearly identi- 
 fied and with ordinary diligence reached by execution 
 at law, or fraudulently concealed by him, or placed 
 beyond the reach of the execution, so that a discovery 
 thereof through an examination is necessary to bring it 
 within the reach of the law. 
 
 The proof must also show that a demand has been 
 made upon the judgment debtor to apply such proper- 
 ty toward the satisfaction of the judgment. Menkin 
 V. Pape, 65 How., 453, supra. 
 
 If at any stage of the proceedings it .appears the 
 above-mentioned facts do not exist, the proceedings 
 must be dismissed, although the debtor has submitted 
 to the examination without objection. Sackett v. 
 Newton, 10 How., 560 ; also opinion of Brady, J., in 
 Owen V. Dupignac, 17 Id., 512 ; and Driggs v. Smith, 
 supra. 
 
 The identity of these proceedings with those under 
 the Non-imprisonment Act above mentioned makes the 
 decisions on the latter Act authority in these proceed- 
 ings, except that the same exactness of proof is not re- 
 quired for the order nor the same technical precision 
 in the procedure, because these proceedings form part 
 of the practice established by the Code of Civil Proced- 
 ure, while the others are statutory. Besides, the pro- 
 ceedings under the Non-imprisonment Act involved 
 the liberty of the citizen ; therefore greater strictness 
 was required in the proof for the warrant than may be 
 required when the application is for an order only. 
 
 In Mosher v. The People, 5 Barb., 575, the following 
 rules are laid down in respect to the proof for a war- 
 rant under the Non-imprisonment Act : (i) An affi- 
 
HOW TO ALLEGE THE FACTS. 109 
 
 davit made by the creditor or an indifferent person 
 must state positively the facts and circumstances which 
 are rehed upon as the foundation of the warrant ; (2) the 
 facts and circumstances must be of such a character 
 as to tend to prove the grounds on which the process 
 is asked for ; (3) the intent of the debtor may be shown 
 by the behef of the creditor or his agent when the req- 
 uisite facts and circumstances are positively proved. 
 It is further held that an affidavit stating the requisite 
 facts on information and belief is not sufficient to give 
 the officer jurisdiction ; that the statute requires legal 
 proof, which statements on information and belief do 
 not constitute ; but that the slightest amount of such 
 proof is enough to confer jurisdiction, so that the offi- 
 cer's proceedings thereupon will not be coram non 
 judice, and can only be questioned on review by certi- 
 orari (now on appeal). It was also held that when it is 
 positively shown by affidavit that the debtor did a 
 short time before have property, that he parted with it 
 to some one, and that the consideration therefor exist- 
 ed in the hands of somebody in the shape of an in- 
 debtedness to the debtor, and that the latter refused 
 to apply it upon the judgment, the creditor or his 
 attorney was justified in swearing to his belief that 
 the debtor had rights in action which he fraudulently 
 concealed and unjustly refused to apply upon the 
 judgment. 
 
 An affidavit, with these latter statements on infor- 
 mation, is sufficient if it refers to another which gives 
 facts and circumstances to justify the belief, and is used 
 on the application. See also Broadhead v. McConnell, 
 3 Barb., 175, 190-91. 
 
 It is held not to be enough for the affiant merely to 
 use the words of the statute in the affidavit, to wit : 
 that the debtor has rights in action, etc., because these 
 words are mere conclusions. " He must either state, if he 
 
no WHAT FACTS TO PROVE. 
 
 knows that the debtor has property, and specify the 
 particular form in which it exists ; or, if he cannot do 
 that, he must state the facts on which his inference is 
 based that the debtor has property, so that others can 
 judge whether he reasons correctly. When he shows 
 that there was tangible property which had been con- 
 verted into something else which he cannot trace, he 
 may then add his belief that the avails exist in some of 
 the forms mentioned in the statute (as rights in action, 
 interests in some public stocks, etc.), without specifying 
 the particular one." The People, etc.i/. The Recorder 
 of Albany, 6 Hill, 429 ; also Vredenburgh v. Hendricks, 
 17 Barb., 179. 
 
 If it appears by affidavit or other competent written 
 evidence that the judgment debtor has property without 
 the State, where it cannot be reached by an execution 
 at law, these proceedings may be instituted to reach 
 and apply the same on the judgment, in case all the 
 other requisite facts exist. Bunn v. Fonda, 2 Code R., 
 70; Fenner v. Sanborn, 37 Barb., 610. 
 
 But when the debtor is shown by the affidavit to be 
 in the undisputed possession of the property in question, 
 under circumstances affording unequivocal evidence of 
 title in him, and he manifests no design to remove or 
 dispose of it with a fraudulent intent, and such property 
 is tangible, the creditor is bound to levy upon it instead 
 of resorting to this proceeding, although the debtor re- 
 fuses to apply it upon the judgment, and asserts that 
 it belongs to some one else. Sackett v. Newton, 10 
 How., 560. 
 
 The proof must also show that the property men- 
 tioned therein belongs to the judgment debtor and is 
 in his possession or under his control, so that he may 
 apply it toward the satisfaction of the judgment, if so 
 disposed. But it is not necessaiy to allege or prove that 
 he has no property tangible to execution at law. 
 
UNJUSTLY REFUSING TO APPLY PROPERTY. Ill 
 
 Unjustly Refusing. 
 
 It must likewise appear in the affidavit or other evi- 
 dence that the debtor unjustly refuses to apply the prop- 
 erty above discribed toward the satisfaction of the judg- 
 ment, or the judge will acquire no jurisdiction, and 
 the proceedings will be void. See Spear v. Wardell, 
 
 1 A^. K, 151 ; Driggs v. Smith, 47 How., 215. In order to 
 this, it must be shown that a proper demand has been 
 made of the debtor thus to apply his property by some 
 one having a right to make it. See Hall v. Kellogg, 
 \2N. Y., 331. 
 
 The sheriff, with execution in hand, has this right as 
 to property, which can be applied upon the judgment 
 by that process. But has he sufficient authority from 
 the creditor, by virtue of the execution, merely to make 
 a demand for the debtor's equitable property? But of 
 course the creditor himself, or any one authorized by 
 him, may make this demand for both the equitable and 
 concealed property. It was so in the Non-imprisonment 
 Act, which, however, did not require the precedent is- 
 sue of the execution. Thus in Stewart v. Biddlecum, 
 
 2 JV. v., 103, the debtor insisted that he did not unjustly 
 refuse to apply his property upon the judgment ; first, 
 because he had been required to do so by the creditor's 
 attorney, who had recovered the judgment, and that the 
 attorney by his retainer in the action merely had not 
 sufficient authority to make the demand ; and, secondly, 
 because the demand did not specify the particular rights 
 in action, stocks, money, etc., which he should apply 
 upon the judgment. The court held that the attorney, 
 by his retainer in the action to recover the judgment 
 and collect the debt, had sufficient authority ; and that it 
 was not necessary to specify what particular property 
 the debtor should apply upon the judgment ; that the 
 statute did not require such particularity, nor could it 
 be expected of the creditors ; and that where it is shown 
 
112 HOW TO MAKE DEMAND. 
 
 that the debtor has an undefined mass of rights in 
 action, stocks, etc., it was sufficient to make a general 
 demand. In this case the demand was in writing, 
 signed by the attorney as attorney of the plaintiff, and 
 by his direction delivered to the debtor by another per- 
 son, who at the same time made a similar verbal de- 
 mand, also at the request of the attorney. The demand 
 required the debtor to assign his property to the plain- 
 tiff, to be applied upon the judgment. The judge who 
 delivered the opinion in this case further said that since 
 the statute is silent as to the manner in which the prop- 
 erty is to be applied, the debtor does not unjustly refuse 
 if, when the demand is made, he offers to place his prop- 
 erty in the hands of some suitable person for the pur- 
 pose of having it appropriated to the payment of the 
 judgment instead of delivering it to the creditor, who 
 might be a very unsuitable person to be the depositary 
 of the fund ; that if, however, he makes no such offer, 
 but absolutely refuses, and proceedings are instituted 
 against him, he cannot take the objection that when the 
 demand was made there was no proper person present 
 to receive the property demanded. This decision must 
 be authority in these proceedings to a great extent. 
 The subdivision under consideration, however, unlike 
 that in the Non-imprisonment Act, does not designate 
 the kinds of property, " as rights in action," etc., concern- 
 ing which the demand is to be made ; hence, there is 
 less need of specifying the particular property which 
 the debtor is to apply to the payment of the judgment. 
 A demand for his property generally should be enough. 
 If the request or demand in these proceedings is made 
 by the sheriff, an offer by the debtor, like that above 
 mentioned, to place his property in the hands of some 
 suitable person, would be deemed an evasion, and equiv- 
 alent to an absolute refusal, unless it were equitable 
 property, as things in action, which cannot be levied 
 
WHAT IS A REFUSAL. 113 
 
 upon and sold on execution. On this last point see 
 Hardy z-. Dobbins, 12 Johns, 220. The Code has not 
 altered this rule. Ransom v. Miner, 3 Sandf., S. C, 692. 
 If the demand is made by the creditor or his agent, it 
 should be in writing, for the sake of greater certainty, 
 and signed by the creditor, or the agent as such, and 
 should require the debtor to deliver his property liable 
 to execution to the sheriff, to be applied to the pay- 
 ment of the judgment. When the property is equitable, 
 or beyond the reach of execution, as in another State, 
 the demand, in analogy to the practice under the Non- 
 imprisonment Act, should require the debtor to convey, 
 assign, or deliver the same to a receiver, to be appointed 
 in appropriate proceedings therefor, or to one already 
 appointed on the same judgment. If the property 
 -should be required to be delivered or assigned to the 
 creditor, the debtor would be justified in refusing, for 
 any such disposition of it is unauthorized by law. See 
 § 2447, Code of Civil Procedure. The debtor also un- 
 justly refuses, and entitles the creditor to these proceed- 
 ings, when he bases his refusal on the ground that he 
 intends or is about making an assignment for the equal 
 benefit of all his creditors ; or when he refuses, and, at 
 the same time, offers to make a general assignment for 
 the pro rata distribution of his assets among all his cred- 
 itors, because on a demand duly made, the debtor is 
 at once bound to apply his property to the payment of 
 the judgment in obedience to the request, and his re- 
 fusal to do so, for any reason whatsoever, the law pro- 
 nounces a fraud — that is, the demand gives the creditor 
 a right to the property superior to that of the debtor, 
 and the latter commits a wrong if he does not yield to 
 that right ; and every act of his thereafter to defeat it is 
 held fraudulent and void. Spear v. Wardell, i N. Y., 
 144; Hall V. Kellogg, 12 JV. Y., 325 ; In the matter of 
 Prime, i Bard., 296 ; S. C, 5 JV. Y. Leg. Obs., 409 ; 
 
114 THE FACTS TO BE ALLEGED IN OTHER STATES. 
 
 3 How., 113. The specific allegations in the affidavit or 
 proof concerning the debtor's property, and refusal to 
 apply the same upon the judgment, should be preceded 
 or followed by a charge in the actual words of the sec- 
 tion, that the debtor " has property which he unjustly 
 refuses," etc. 
 
 In Indiana the affidavit or complaint for proceed- 
 ings before return of execution must be verified, and 
 must describe the property which the defendant or 
 judgment debtor has, subject to execution, and where 
 he has it, and that he unjustly refuses to apply it tow- 
 ard the satisfaction of the judgment ; that the prop- 
 erty thus sought to be reached is subject to execution, 
 and that he does not have within the county other 
 property subject to execution sufficient to satisfy the 
 same, besides that which he refuses so to apply. Tillston 
 V. Scott, 15 Ind., 187 ; Dandistel -z/. Kronanburger, y^Id., 
 405 ; Earle v. Skiles, 93 Id., 178 ; Lowry v. McAllister, 
 86 Id., 543 ; Cushman v. Gephart, 97 Id., 46. But 
 such a defect in the affidavit or complaint, as a failure 
 to describe the property subject to execution which 
 the judgment debtor has, or where he has it, is waived 
 to the defendant's or judgment debtor's answer on the 
 merits. Wilson v. Scott, 15 Id., 187. 
 
 In North Carolina the affidavit for proceedings be- 
 fore return of execution must show that the judgment 
 debtor has no property which can be reached by exe- 
 cution, or that such property is not sufficient to pay 
 the judgment ; it must negative the existence of suf- 
 ficient property liable to execution, and show that the 
 debtor has property, or choses in action, or things of 
 value which he unjustly refuses to apply to the satis- 
 faction of the judgment ; but it need not show a per- 
 sonal demand, or a formal refusal so to apply the 
 property; for a suit brought, and all proceedings up to 
 judgment, and an execution issued and placed in the 
 
THE DEMAND AND REFUSAL IN OTHER STATES. IIS 
 
 hands of the sheriff are in law a demand and a refusal. 
 Hutchinson v. Symons, 67 N. C, 156; Hinsdale v. Sin- 
 clair, 83 Id., 338; Wieller v. Lawrence, 81 N. C, 65. 
 
 In Ohio the affidavit need not state that a demand 
 has been made upon the judgment debtor to apply his 
 property not subject to levy on execution to the pay- 
 ment of the judgment. It is the debtor's duty to apply 
 such property, and a failure to do so is an unjust re- 
 fusal. Edgerton v. Hanna, 11 O. S., 323. Although 
 the phraseology in the statutes of North Carolina and 
 Ohio is identical with that in the Code of New York, 
 as to unjustly refusing, yet the decisions differ. 
 
 In Wisconsin the purpose of proceedings before re- 
 turn of execution is to remove some fraudulent or 
 inequitable obstruction interposed by the judgment 
 debtor to the collection of the judgment, and to reach 
 that species of property not liable to levy by execution, 
 as choses in action and other rights and interests, 
 which the debtor ought to apply toward the payment of 
 the judgment, but which he unjustly refuses so to 
 apply ; allegations in the affidavit that defendant has 
 property, to wit : the household furniture, for the pur- 
 chase of which the judgment was recovered, and which 
 he unjustly refuses to apply to the satisfaction of the 
 judgment, without alleging that it is concealed or re- 
 moved beyond the reach of the execution, does not 
 give the officer jurisdiction to make the order. 
 
 The order is void, and the attachment against the 
 judgment debtor based upon it for disobeying it is also 
 void. Smith v. Wicks, 60 Wis., 94. But proceedings 
 before return of execution does not entitle the judg- 
 ment creditor to an examination of his debtor concern- 
 ing his property generally. Id. 
 
 The Order. 
 
 Under the former Code of New York the court 
 
Il6 WHO TO MAKE ORDER— WARRANT. 
 
 might grant the order as well as a judge thereof, and 
 the granting of it was discretionary. The present Code 
 gives the judgment creditor a right to the proceedings 
 on making a proper case therefor, and it does not in 
 terms confer the power upon the court to make the 
 order. The same judge who can grant the order insti- 
 tuting proceedings after return of execution may make 
 the order. It is similar, and served in the same manner 
 and within the same territorial limits as to jurisdiction 
 of the judge who grants it as the other order. In short, 
 the only difference between the two proceedings is the 
 existence of the additional facts in the proof required 
 to obtain the order before return of execution. 
 
 SECTION IX. 
 
 The Warrant and the Proof to Obtain it. 
 
 §2437. "Upon proof entitling a judgment creditor 
 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 conceal himself, and that there is reason 
 to believe that he has property which he unjustly re- 
 fuses 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 ar- 
 rest 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." §§ 2437 and 2440 
 are a part of § 292 of the former Code, remodelled and 
 enlarged. 
 
 § 2438. " Where the facts specified in the last sec- 
 tion are made to appear as therein stated, at any time 
 
THE WARRANT. I17 
 
 after the making of an order requiring the judgment 
 debtor to attend and be examined, and before the close 
 of his examination, the judge may issue a warrant as 
 therein prescribed, and, if necessary, may direct the 
 adjournment, or, if the return day of the order has 
 elapsed, the continuance of the proceedings under the 
 order, until after the return of the warrant and his de- 
 cision thereupon." 
 
 § 2439. " -^ warrant issued as prescribed in the last 
 two sections may be vacated or modified, as prescribed 
 in §2433 of this Act, with respect to an order." 
 
 §2440. "Where the judgment debtor has been ar- 
 rested and brought before a judge by virtue of a 
 warrant issued as prescribed in this article, and it 
 appears to the satisfaction of the judge from his exami- 
 nation or other proof that there is danger that he will 
 leave the State or conceal himself, and that he has 
 property which he has unjustly refused to apply to the 
 satisfaction of the judgment, the judge may make an 
 order requiring him to give an undertaking, with one or 
 more sureties, in a sum fixed and within a time specified 
 in the order, to the effect that he will, from time to 
 time, as the judge directs, attend before the judge, or 
 before a referee appointed, or to be appointed in the 
 proceedings ; and that he will not, until discharged from 
 arrest by virtue of the warrant, dispose of any of his 
 property which is not exempted from seizure by § 2463 
 of this Act. If he fails to comply with the order, the 
 judge must forthwith, by warrant, commit him to prison, 
 there to remain until the close of the examination or 
 the giving of the required undertaking, except that the 
 judge may direct the sheriff to produce him from time 
 to time, as required in the course of the proceedings." 
 
 These sections, with other provisions in the title on 
 proceedings supplementary to execution, are intended 
 to furnish substantially a substitute for the Non-im- 
 
Il8 THE WARRANT AND PROOF. 
 
 prisonment or Stillwell Act. The Non-imprisonment 
 Act, with all Acts amending the same, was repealed by 
 the repealing Act of 1880, ch. 245. 
 
 The general similarity between these two remedies 
 consists mainly in the inquiry and requiring the debtor 
 to give security after he is arrested and brought before 
 the judge, and in the proof to obtain the warrant — 
 namely, that there is reason to believe that the judg- 
 ment debtor has property which he unjustly refuses to 
 apply to the payment of the judgment ; hence, the de- 
 cisions and rules of practice under the Non-imprison- 
 ment Act on these points may be consulted with 
 advantage ; but, in other respects, there is little similarity 
 between the two remedies. The warrant in these pro- 
 ceedings is a substitute for the order, and is only issued 
 when it is made apparent that the latter would be 
 ineffectual to bring the judgment debtor before the 
 judge — when there is danger that he will leave the State 
 or conceal himself ; and therefore the judge may com- 
 mand the sheriff of any county through which the 
 judgment debtor is passing in his flight from the State, 
 or in which he is concealing himself, to arrest him. 
 The other grounds of arrest contained in the Non-im- 
 prisonment Act are not re-enacted in these proceedings. 
 There is no similarity between the two proceedings as 
 to the kind of warrant, who may grant it, or where it 
 may be executed, before what judge the debtor may 
 be brought, and as to what is to be done with him after 
 examination. 
 
 The Proof. 
 
 The warrant is a substitute for the order in either of 
 the foregoing proceedings, and requires the same proof, 
 with the additional proof specified in § 2437. The ev- 
 idence necessary for the warrant may be furnished by 
 the same persons ; and the proceedings are between the 
 
WHAT FACTS TO PROVE. 1 19 
 
 same parties as in the order, for which it is the substi- 
 tute. An assignee of the judgment may sue out a war- 
 rant against the judgment debtor. King v. Kirby, 
 28 Barb., 49. The privilege from arrest accorded to a 
 woman by §553 of the Code of Civil Procedure does 
 not appear to extend to these proceedings. A person 
 against whom judgment is recovered for costs which 
 the law requires him to pay out of a trust fund may 
 also be arrested on a warrant issued in these proceed- 
 ings ; for the acts which would justify the arrest would 
 be personal. 5^^ § 555 of Code. This additional proof 
 requisite to obtain the warrant is substantially the same 
 in the present Code as in the former one. Netzel v. 
 Mulford, 59 How., 452, Supreme Ct., Special Term. 
 But the facts constituting the additional proof cannot 
 be stated on information and belief nor inferentially. 
 They must be positively averred ; the applicant must 
 make out a plain case. Netzel v. Mulford, supra. 
 
 The proof must establish (i) that there is danger that 
 the debtor will leave the State or conceal himself ; 
 (2) that there is reason to believe that he has property 
 which he unjustly refuses to apply to the payment of 
 the judgment. The writ of ne exeat which was granted 
 when there was danger that the defendant would leave 
 the State, and in that respect is similar to the warrant 
 in these proceedings, could only be granted upon pos- 
 itive proof that the defendant intended to leave the 
 State or made threats and declarations to do so, or 
 upon proof of facts and circumstances which evinced 
 or amounted to an intention to leave. It is, however, 
 sufficient if the defendant's declarations of such inten- 
 tion are sworn to on information obtained from members 
 of his family. The affidavit need not state that the de- 
 fendant is going abroad for the purpose of avoiding the 
 payment of the debt in question. See i Barb., Ch. Pr. 
 649-50. If facts and circumstances are relied upon to 
 
I20 WHAT FACTS TO PROVE. 
 
 establish the averment that there is danger of the debt- 
 or's leaving or concealing himself, they must be posi- 
 tivefy stated in sufficient detail to enable the judge to 
 determine the fact of such danger. The term " dan- 
 ger" here appears to be an equivalent for that of in- 
 tent in subd. 2 of §550 of the Code of Civil Pro- 
 cedure. So the clause " there is danger that the judg- 
 ment debtor will leave the State or conceal himself " is 
 nearly equivalent to that in subd. 4 of § 550, "is 
 about to depart therefrom." Hence, the decisions un- 
 der these subdivisions and sections of the present and 
 former Codes may be beneficially consulted. 
 
 If the application for the warrant is made on the ground 
 of anticipated concealment, it must appear or be pre- 
 sumable that the concealment will be within the State. 
 When it is shown that the judgment debtor is out of 
 the State, the warrant will not be granted. Rohshand 
 V. Waring, i Abb. {N. C), 311, Supreme Ct. Ch., First 
 Judicial Department. 
 
 As to the other additional proof, " that there is rea- 
 son to believe that he has property which he unjustly 
 refuses to apply to the payment of the judgment," the 
 decisions and remarks contained in the next preced- 
 ing section herein fully apply. There is some differ- 
 ence in the phraseology of the two provisions. In § 2436 
 of the Code the expression is " that the judgment debtor 
 has property," etc., while in § 2437 the expression is, 
 " that there is reason to believe that he has property," 
 etc. The same difference existed in §292 of the for- 
 mer Code. This statutory distinction is, no doubt, in- 
 tended to make a difference in the proof to be pro- 
 duced, and to require less positive evidence on this 
 point for the warrant than for the order. 
 
 The allegation that the judgment debtor will conceal 
 himself is no doubt established when it is shown by 
 facts and circumstances that the debtor would conceal 
 
SECURITY, THE TRIBUNAL. 121 
 
 himself, so as to render proceedings by order unavailing, 
 if one were served upon him. 
 
 As to unjustly refusing, etc., if the judgment debtor 
 is in his flight to another State, or keeps himself con- 
 cealed, so that no demand can be made of him, this 
 fact itself may be deemed equivalent to a refusal. Ev- 
 idently, if it is shown that he does this to avoid a 
 demand, his unjiist refusal should be considered as es- 
 tablished. If the execution has been returned, that 
 should be stated. The facts and circumstances show- 
 ing or tending to show that there is danger that the 
 judgment debtor will leave the State, etc., and there is 
 reason to believe that he has property, etc., should be 
 preceded or followed by the precise words contained 
 in §2437 of the Code of Civil Procedure. But it will 
 not do to allege that he will leave the State or conceal 
 himself, alternately. But these clauses may be con- 
 junctively alleged, if such is the fact. See Leet v. 
 Heinberger, i Code R., 38. 
 
 Security. 
 
 No bond or undertaking need be given upon the is- 
 suing of the warrant. 
 
 The Tribunal. 
 
 Any judge who can make the order instituting pro- 
 ceedings may instead thereof issue the warrant under 
 his hand. But the judgment creditor is not entitled 
 thereto as a matter of course. Its issuance is in the 
 discretion of the judge. 
 
 The Warrant. 
 
 The warrant runs in the name of the people. It 
 must recite the recovery of the judgment, the issue of 
 the execution, "that it has been proved to the satisfac- 
 tion of the judge that there is danger that the judgment 
 debtor will leave the State (or conceal himself), and 
 
122 RECITAL IN WARRANT. 
 
 that there is reason to believe that he has property 
 which he unjustly refuses to apply to the payment of 
 the judgment, and require the sheriff of any county 
 where the fleeing or concealed debtor may be found to 
 arrest him and bring him before the judge before whom 
 the warrant may be returnable. The warrant needs 
 no seal nor any other signature than that of the judge 
 who issues it. It cannot be made returnable before a 
 referee, although one may be appointed after the re- 
 turn to take the evidence. See Andrews v. Wilson, 
 9 How., 39. In Lathan z/.Westervelt, 16 Barb., 421 (Non- 
 imprisonment Act), the warrant in the First District was 
 made returnable before one of the justices of the Su- 
 preme Court. This command was held merely a mat- 
 ter of form, and not of substance. 
 
 A Warrant after the Order has been made. 
 
 The provision for a warrant after proceedings have 
 been instituted by order contained in §2438 is new. It 
 is an important addition to this remedy. It is not in- 
 tended to take the place of an attachment as for con- 
 tempt, but in a proper case made to bring the judg- 
 ment debtor into court and give the judge the custody 
 of his person during the examination upon the order, 
 and thus require his presence and obedience to the 
 order of the judge. § 2439 is also new. 
 
 The Service of the Warrant. 
 
 §2453 of the Code of Civil Procedure provides that 
 " the sheriff, when he arrests a judgment debtor by 
 virtue of a warrant issued as prescribed in this article, 
 must deliver to him a copy of the warrant and of the af- 
 fidavit upon which it was granted." This section is 
 new. 
 
 The warrant may be vacated or modified as an order 
 may be by the judge who issued it, or the court out of 
 which the execution was issued upon motion. 
 
PROOF TO OBTAIN ORDER. 1 23 
 
 SECTION X. 
 
 Proof to obtain Order to examine a third Person. 
 
 §2441. " Upon proof by affidavit, or other competent 
 written evidence, to the satisfaction of the judge, that 
 an execution against property has been issued as pre- 
 scribed in §2458 of this Act, 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 exceed- 
 ing ten dollars in value, or is indebted to him in the 
 sum exceeding ten dollars, the judgment creditor is en- 
 titled 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 re- 
 ceiver shall not be appointed without such a notice, 
 except as otherwise prescribed in article second of this 
 title." This section is a part of §294 of the former 
 Code. 
 
 Proof. 
 
 The proof as to the recovery of judgment and issue of 
 execution thereon against property and the county to 
 which the same has been issued, is identical with that 
 required for an order against the judgment debtor. 
 The proof for this order must be to the satisfaction of 
 the judge. The attorney making the affidavit need 
 not aver that he is the attorney of the judgment cred- 
 itor ; it is sufficient if he describes himself as such ; and 
 the affidavit in the words of this section, that a per- 
 son (or corporation) has personal property of the judg- 
 ment debtor exceeding ten dollars in value, or is in- 
 debted to him in a sum exceeding ten dollars, as the affi- 
 
124 WHAT FACTS TO PROVE. 
 
 ant is informed and believes, is sufficient to confer juris- 
 diction upon the judge to make the order. The facts 
 and circumstances need not be stated. Miller v. 
 ^ Adams, 52 N. Y., 4og, 413, aff'g S. C, 7 Lans., 131, but 
 not on this point, and overruling Lee v. Heisberger, 
 I C. R., 38, Special Term. But in the New York Court 
 of Common Pleas, Special Term, it "was held that an afi5- 
 davit upon information and belief, without stating the 
 source of information, was insufficient. People, etc. v. 
 Jones, I Ad3. {JV. C), 172 ; S. C, as Day v. Lee, ^2 How., 
 95. In this case objection to the proof was taken on a 
 motion to punish the third person as for contempt in fail- 
 ing to appear for examination pursuant to the order, it 
 having appeared on the motion that in fact he did not 
 owe the judgment debtor. This decision cannot be 
 commended as right. The party Jones refused to obey 
 the judge's order duly made. He should have appeared 
 and moved to dismiss it on the ground that he had it 
 dismissed upon the motion to punish him as for con- 
 tempt. Grover, J., in Miller v. Adams, supra, in the 
 Court of Appeals, thought that an affidavit upon in- 
 formation and belief would be sufficient even upon a 
 direct application, based on such an affidavit to set the 
 order aside ; while the Supreme Court, at General Term 
 in the same case, 7 Lans., 131, held that an affidavit on 
 information and belief was not competent legal evi- 
 dence, and that an order based on such proof would be 
 set aside on motion. If the judgment debtor goes 
 upon the personal property clause in this section (2441), 
 the proof must be that it exceeds ten dollars in value. 
 In this particular the Code of Civil Procedure differs 
 from the former Code, and supersedes Brett v. Brown, 
 I Abb. {N. S.), 155. The proof must further state 
 that the third person to be examined has personal 
 property of the judgment debtor exceeding ten dollars 
 in value, or is indebted to him in a sum exceeding ten 
 
CREDITOR ENTITLED TO THE ORDER. I25 
 
 dollars. It will not suffice to allege these facts in the 
 alternative. Davis v. Herrig, 65 How., zc^/i^. It must 
 also state the county in which he resides, if a resident 
 of the State, or in which he has an office for the regu- 
 lar transaction of business in person. If he has neither 
 a residence nor such place of business, that fact should 
 be stated; for the judge will then select a place for the 
 examination of the third party, other things being 
 equal, most convenient to the person to be examined. 
 Foster v. Pierce, 8 Abb., 407 ; S. C, 8 How., 258, Su- 
 preme Ct., General Term. Upon the proof required by 
 this section (2441) the judgment creditor is entitled to 
 the order. The judge has no discretion to refuse it. 
 It is not necessary to say anything in regard to pro- 
 ceedings against the judgment debtor, or about giving 
 him notice of the proceedings to be taken against his 
 bailee or debtor ; for § 2432 of the present Code ex- 
 pressly severs these proceedings from any against the 
 judgment debtor, and § 2441 leaves it in the discre- 
 tion of the judge to require notice of the subsequent 
 proceedings to be given to the judgment debtor. These 
 proceedings supersede a number of decisions on these 
 points, to wit: Kemp v. Harding, 4 How., 178; Sher- 
 wood V. The Buffalo and N. Y. R. R. Co., 12 Id., 136 ; 
 Barker «/. Johnson, 4^ W., 435; Holmes z/. Judson, \^Id., 
 410, note; Parker v. Hurst, /i^. ; Ward v. Beebe, /;/., 
 372 ; McBride v. The Farmers Branch Bank, 7 Id., 
 347; Lord V. Ford, 15 Id., 409, note ; Gibson v. Hag- 
 gerty, 15 Id., 406. An affidavit that the third party is 
 indebted to the judgment debtor in a sum exceeding 
 ten dollars, to wit : one hundred dollars was held suffi- 
 cient to give the judge jurisdiction. Davis v. Herrig, 
 etal., 6t)How.,2go, citing and approving First National 
 Bank of Rome v. Wilson, 5 N. Y. W. Digest, 565. A 
 man is indebted equally whether the debt is due or to 
 become due. Davis v. Herrig, supra. 
 
126 WHAT FACTS TO ALLEGE IN OTHER STATES. 
 
 The affidavit to obtain an order for the examination 
 of a third party before return of execution need not al- 
 lege the facts necessary to obtain an order for the ex- 
 amination of a judgment debtor before return of exe- 
 cution, to wit : that he has property which he unjust- 
 ly refuses to apply toward the satisfaction of the judg- 
 ment, the nature or description of the property, and a 
 demand. Potts v. Davidson, i How. {N. S), 216. 
 
 In Indiana it is held that a third person cannot he made 
 a party to proceedings supplementary to execution, ex- 
 cept on an affidavit that he has property of the judg- 
 ment debtor, or is indebted to him. Burt v. Hoetlinger, 
 28 Jnd., 214. This case has been expressly overruled by 
 that of the Toledo, Wabash, and Western Railway Co. 
 V. Hawes, 68 Ind., 458 ; but it would seem not on this 
 point. The statutes of that State require that the af- 
 fidavit for proceeding against a third person having 
 property of or indebted to the judgment debtor must 
 allege that such property or indebtedness, together with 
 other property claimed by him as exempt from execu- 
 tion, exceeds the amount of such exemption. Abell v. 
 Riddle, 75 Ind., 345. It is also held that where pro- 
 ceedings are taken against a third person for having 
 property of, or being indebted to the judgment debtor 
 before return of execution, the affidavit must show 
 that the judgment debtor has property which he un- 
 justly refuses to apply toward the satisfaction of the 
 judgment. Earle v. Skiles, 93 /<^., 178. This decision 
 is put on the ground that the judgment debtor must 
 be made a party to these proceedings. See above de- 
 cision. 
 
 In Minnesota the affidavit or proof for proceedings 
 against a third party must establish the facts to the 
 satisfaction of the judge, in order to give him jurisdic- 
 tion as prescribed in the statute of the State. Menage 
 V. Lustfield, 30 Min., 487. 
 
NOTICE, ORDER, SERVICE OF IT. 12/ 
 
 Notice. 
 
 Under the present Code of New York notice of the 
 order made against a third person, a debtor or bailee 
 of the judgment debtor, or of the proceedings thereon, 
 need not be given to the latter except notice of an ap- 
 plication for the appointment of a receiver (§ 2441). 
 This provision supersedes Ward v. Beebe, 15 Abb., 
 372, and Gibson v. Haggerty, Id., 292 ; S. C, 23 How., 
 260, as to notice. Under the former Code it was held 
 that a third-party order need not be served on the 
 judgment debtor. Lynch v. Johnson, 46 Barb., 56. 
 
 Order. 
 
 Under this section (2441) of the present Code the 
 judgment creditor is entitled to the order against the 
 bailee or debtor of the judgment debtor upon proof to 
 the satisfaction of the judge of the facts required in that 
 section, while under § 294 of the former Code the grant- 
 ing of the order was in the discretion of the judge. 
 
 The order against a third party in New York is sub- 
 stantially like an order against the judgment debtor. 
 It contains similar recitals and direction as to the at- 
 tendance of the person to be examined, and when and 
 where to attend and be examined concerning the debt 
 due, or personal property in his hands belonging, to the 
 judgment debtor. An injunction clause against the 
 third party may be and generally is inserted in the or- 
 der, restraining him from transferring or making any 
 other disposition of the debt due, or property belong- 
 ing to, the judgment debtor. 
 
 Service of the Order. 
 
 It is served in the same manner and within the ter- 
 ritorial limits as an order against a judgment debtor. 
 § 2452 of Code of Civil Procedure prescribes the man- 
 ner of serving orders. 
 
128 PROCEEDINGS ON RETURN OF ORDER, ETC. 
 
 CHAPTER II. 
 
 PROCEEDINGS ON RETURN OF ORDER OR WARRANT. 
 
 Section i. Attendance for examination and appointment of referee. 
 
 2. The oath of the referee. 
 
 3. The examination and adjournments. 
 
 4. Witnesses. 
 
 5. The extent of the inquiry. 
 
 6. How proceedings are discontinued or dismissed. 
 
 SECTION I. 
 
 Attendance for Examination and Appointment of 
 Referee. 
 
 The order by which any supplementary proceedings 
 are commenced in New York is returnable before a 
 judge or before a referee designated therein ; and it is 
 there where the party to be examined must attend for 
 that purpose. 
 
 The warrant issued instead of such an order is return- 
 able only before a judge, and it is before him that the 
 sheriff must bring the judgment debtor on arresting 
 him. § 2437 of the present Code. 
 
 Appointment of Referee. 
 
 § 2442. " An order, requiring a person to attend and 
 be examined, made pursuant to any provision of this 
 article, must require him so to attend and be examined, 
 either before the judge to whom the order is returnable, 
 or before a referee designated therein. Where the ex- 
 amination is taken before a referee, he must certify, to 
 
APPOINTMENT OF REFEREE. 1 29 
 
 the judge to whom the order is returnable, all the evi- 
 dence and the other proceedings taken before him." 
 
 This section, as to the appointment of a referee, is 
 substantially the same as § 296 of the former Code, ex- 
 cept that it does not authorize the court to appoint a 
 referee. 
 
 § 2443. " At any stage of the proceedings the judge 
 to whom the order is returnable may, in his discretion, 
 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 ; where a 
 question is so referred the referee may be directed to 
 report either the evidence or the facts." 
 
 This section includes substantially § 300 of the former 
 Code, except the clause " agreed upon by the parties," 
 is omitted. It authorizes the judge before whom the 
 order is returnable, or who has the power to maintain 
 and continue the proceedings, to appoint a referee at 
 any stage thereof. It authorizes him to appoint a 
 referee, not only to take the examination or testimony 
 of witnesses in the proceedings, but also to inquire into 
 any question arising in the course thereof, take evi- 
 dence upon such question, and report the same or the 
 facts found therefrom. 
 
 The referee may be appointed in the first instance 
 before the judgment debtor has appeared. Green v. 
 Bullard, 8 How., 313. §§ 2442 and 2443 provide for 
 this. He may be appointed in either of the remedies 
 provided for in § 2432 of the Code of Civil Procedure. 
 A Supreme Court justice may appoint a referee to hold 
 sessions and take examinations in any part of the State. 
 He need not reside in the county of the party to be 
 examined, or where the examination is taken. Bing- 
 ham V. Disbrow, 14 Abb., 251 ; S. C, 37 Barb., 24; Wil- 
 son V. Andrews, 9 How., 39. But a judge of any other 
 court cannot appoint or authorize a referee to sit and 
 
130 WHO NOT TO BE REFEREE. 
 
 take an examination without the territorial jurisdiction 
 of the judge appointing him. See Bonner v. McPhail, 
 31 Barb., 107. 
 
 Who not to be Referee. 
 
 No person holding the office of clerk, deputy clerk, 
 special deputy clerk or assistant in the clerk's office, of 
 a court of record or of the Surrogate's court within 
 either of the counties of New York or Kings, shall 
 hereafter be appointed by any court or judge a referee, 
 receiver, or commissioner, except by the written consent 
 of all the parties to the action or special proceedings 
 other than parties in default for failure to appear or 
 to plead. § 90, Code of Civil Procedure. 
 
 Changing Referee. 
 
 The judge before whom the proceedings are pending 
 has the power to vacate an order of reference and ap- 
 point a new referee to take the examination ; such an 
 order is discretionary, and not appealable to the Court 
 of Appeals. Pardee v. Tilton, 83 N. K, 623 ; S. C, 11 
 N. V. W. Digest, 455. 
 
 But this rule must be taken with the qualification, 
 that where a Supreme Court justice, acting in the place 
 of a local judge, institutes the proceedings, and makes 
 the order returnable before a county judge, as provided 
 in § 2434 of the Code of Civil Procedure, and appoints 
 a referee to hold sessions in another county, the county 
 judge entertaining such proceedings could not appoint 
 a new referee to sit in any other county than in his 
 own. 
 
 The Order. 
 
 An order which merely required the person to be ex- 
 amined to appear before A. B. referee at his office, 
 was held to be a valid appointment of the referee ; and 
 it was further held that an order appointing the referee 
 
TWOFOLD ORDER — NOTICE. 13 1 
 
 need not be incorporated in the order requiring the 
 debtor to attend for examination ; and where it is not 
 so incorporated, it must be presumed to have been a 
 separate order and to have been served with the other 
 order on the person to be examined, where there is no 
 evidence to the contrary. Lewis v. Penfield, 39 How., 
 490. 
 
 Twofold Order. 
 
 An order may direct the judgment debtor to attend 
 before a referee for examination at a specified time, and 
 also to appear before the judge at a place and time 
 specified, after the close of his examination, to abide 
 the further order in the premises ; and a receiver may 
 thereupon be appointed, if a proper case is made out by 
 the examination, notwithstanding the debtor fails to 
 appear before the judge, and the debtor may also be 
 punished as for contempt in neglecting to appear. 
 Sickles V. Henley, 4 Abb. (N. C), 231, Supreme Court, 
 General Term, 4th Judicial Department. If the referee 
 dies, or the reference before him falls through from any 
 cause, the judge before whom the proceedings are 
 pending may appoint another. Allen v. Starring, 26 
 How., 57. 
 
 Notice. 
 
 The referee may .be appointed without any previous 
 notice to the judgment debtor, or party to be examined. 
 But if he is objectionable, or the order has been im- 
 providently granted, the proper course of the aggrieved 
 party is to apply at once to the judge who made the 
 appointment, and who can pass on the objections, to 
 modify or vacate the same. Tremain v. Richardson, 
 68 N. Y., 617; Conway v. Hitchins, 9 Barb., 378, 386; 
 Hulsaver v. Wiles, 11 How., 446, 449. The party can- 
 not refuse to attend before the referee, or attend, make 
 objections, and refuse to be examined, even although 
 
132 NATURE OF REFERENCE. 
 
 the judge may have given him verbal directions to do 
 so. Tremaine v. Richardson, supra. The appoint- 
 ment is discretionary with the judge. In Hollister v. 
 Spofford, 3 Sandf., 742 ; S. C, i Code R. {N. S), 120, 
 Campbell, J. announced that as a general rule the 
 judges of that court (N. Y. Superior Court) would not 
 order a reference against the wishes of either party, but 
 direct the examination to be taken at Chambers. When, 
 however, the parties agreed to it, or when it was ap- 
 parent that a difficult or protracted investigation must 
 ensue, and the examinant had counsel, a reference would 
 be ordered. 
 
 In the N. Y. Court of Common Pleas the practice is 
 to direct a reference in proceedings on a judgment ren- 
 dered in a District Court of the city of New York 
 where the transcript has been filed and docketed in the 
 office of the clerk of the city and county of New York. 
 
 A county judge may appoint a referee as well as a 
 Supreme Court justice. Conway v. Hitchins, supra. 
 
 Nature of the Reference. 
 
 Only the examination or the ascertaining of certain 
 facts is referred. The proceedings themselves can no 
 more be referred than an action can ; they continue be- 
 fore the judge, and on the coming in of the referee's 
 report of the evidence, or of the facts, the judge takes the 
 case from the report, the same as if he had himself, by 
 an examination, obtained the evidence or determined 
 the facts. His next duty is to grant the appropriate 
 order on the facts before him. Hulsaver f. Wiles, 11 
 How., 446 ; Conway v. Hitchins, 9 Barb., 378. 
 
 The Referee's Duty and Power. 
 
 The referee's duty and power depends much upon the 
 order of his appointment. His duty is judicial. He is 
 to take, not make the examination, and if he persists in 
 asking questions in an officious manner and in a par- 
 
REFEREES DUTY AND POWER. 1 33 
 
 tisan spirit, he transcends his duty. The People v. 
 Leipsig, 52 How., 410, N. Y. Common Pleas, Special 
 Term. Here the referee pressed questions and suggested 
 others on his own motion to an inquisitorial extent. 
 
 The referee must make his report to the judge ; he 
 cannot adjourn the reference before the judge. Ken- 
 nedy V. Norcott, 54 How., 87, Supreme Court, Special 
 Term. In this case the plaintiff and his counsel failed 
 to appear at the reference on an adjourned day, where- 
 upon the referee at the defendant's request forthwith 
 and without making a report adjourned the proceedings 
 before the county judge, who dismissed them without 
 notice to the plaintiff, dissolved the injunction, and 
 granted costs against him. This course was held 
 irregular. No order in such case can be made grant- 
 ing costs or discontinuing the proceedings, before the 
 referee has made his report, and then only upon a 
 motion made thereon on notice to the adverse party. 
 
 The referee must certify the examination and the 
 other proceedings taken before him to the judge who 
 appointed him by name. Smith v. Johnson, 7 How., 
 39, Supreme Court, Special Term ; Smith v. Fitch, 
 Id., 40 ; also Ball v. Goodenough, 37 How., 479 ; 
 Hulsaver v. Wiles, 1 1 Id., 446 ; or to the judge to whom 
 the order instituting the proceedings is returnable. 
 (§ 2442 of Code of Civil Procedure.) 
 
 When the referee is appointed or directed to report 
 the facts, it was held that he could not report the evi- 
 dence at large. Dorr v. Noxon, 5 How., 29. 
 
 Where directed to report the facts, he should report 
 whether any property applicable to the payment of 
 the judgment by the proceedings instituted has been 
 discovered, of what it consists, its value, how and where 
 situated, whether a receiver should be appointed, 
 and whatever other facts he may be directed to find. 
 See Dickinson v. Van Tine, i Sandf., S. C. 724 ; also 
 
134 referee's duty and power. 
 
 I Barb., Ch. Pr., 670. He has the usual powers of a 
 master in chancery in a creditor's bill. But it is not 
 the practice in these proceedings, as it was in a cred- 
 itor's suit in chancery, to refer to him the power to 
 appoint a receiver. See Edwards on Referees, 
 p. 175. The order of reference may empower the referee 
 to fix the time, and place of the examination, and to 
 issue his summons to the judgment debtor or third 
 party to attend the reference before him at such time 
 as he shall designate. Redmond v. Goldsmith, 2 N. Y. 
 Mo. L. Bull., 19, N. Y. Common Pleas, Special Term, 
 Van Hosen, J. Disobedience to such a summons 
 would be a contempt, if personally served. The sum- 
 mons must be personally served to compel attendance 
 like the order, and may be served with it. The sum- 
 mons is entitled in the cause and signed by the referee 
 appointing a time and place for the party to attend be- 
 fore him. It should be properly underwritten, or the 
 nature of the reference to be proceeded in or the ob- 
 ject of the attendance should be stated in the body 
 thereof. See i Barb., Ch. Pr., pp. 472-3. But if the sum- 
 mons is served with the order instituting the proceed- 
 ings, and a copy of the affidavit, as is now required, it 
 need not be so specific. The referee must direct in the 
 summons the number of days it is to be served previous 
 to the attendance before him, which should be a rea- 
 sonable time. The order may also authorize the referee 
 to require by his summons the production of books and 
 papers before him on the reference as a master in 
 chancery could do when thus empowered. But the 
 Code of Civil Procedure appears to give this power 
 to the referee without any authority from a judge 
 (§§ 854-858 inclusive). 
 
 The Code also empowers the referee to require by 
 his summons the attendance of witnesses before him, 
 and to produce books and papers in their possession or 
 
PROCEEDINGS BEFORE REFEREE, ETC. 1 35 
 
 control. See the above sections. He and not the 
 court must issue the subpoena or summons requiring 
 the attendance of witnesses on the reference before 
 him. The People v. Ball, 22 N. Y. W. Digest (No. 12), 
 275, Supreme Court, General Term. 
 
 Proceedings before the Referee — Adjournments. 
 
 The referee may adjourn the proceedings from time 
 to time as he thinks proper ( § 2444 of Code of Civil 
 Procedure). In proceedings before him he should grant 
 adjournments and stays. Mason v. Lee, 23 How., 466, 
 Backus, J. ; Allen v. Starring, 26 How., 57. He has the 
 same power of adjournments that a master in chancery 
 had when examining a judgment debtor under an order 
 in a creditor's suit, and he may adjourn the matter from 
 time to time, even though the debtor objects. Kauf- 
 man V. Thrasher, 10 Hun, 438, General Term. He 
 may adjourn the reference in the absence of the judg- 
 ment debtor or other party upon the application of his 
 attorney, without prejudice to the injunction order 
 served. See Mason v. Lee, 23 How., 466. But in such 
 case the order of adjournment should be signed and 
 served on the party personally to bring him into con- 
 tempt if he does not then attend. See, however, Par- 
 ker z'. Hunt, 15 Abb., 4.10, note, which holds in effect 
 that such service is not necessary, Supreme Court, 
 Ingraham, J. The safest and most convenient way is, 
 however, to take the absent party's default, and then 
 open it upon his appearance on a subsequent day. 
 
 The referee cannot adjourn the reference indefinitely. 
 Orr's Case, 2 Abb., 457; Hudson v. Pletz, ii Paige, 
 180; S. C, 33 N. Y. Leg. Obs., 120. The summary 
 nature of supplementary proceedings requires him to 
 proceed with -the reference with due dispatch. If the 
 referee is unjustly arbitrary, and refuses a postpone- 
 ment when a clear and undoubted case is made out for 
 
136 TAKING OF EVIDENCE. 
 
 it, the judgment debtor (or the third party) would be 
 justified in withdrawing and letting the matter come 
 before the judge on a motion for an attachment as for 
 contempt. See Mason v. Lee, supra. 
 
 Taking of Evidence. 
 
 The proceeding is the same in all respects as before 
 the judge. The referee swears parties and witnesses. 
 He must take down in writing the testimony and all the 
 proceedings had before him, in order to enable the judge 
 to see more clearly the bearing of the evidence, should 
 any question therein be submitted to him for his deter- 
 mination. Edwards on Referees, p. 190. He has power 
 to pass upon questions of evidence and of law in the 
 course of the reference before him. Kennesaw Mills 
 Co. V. Walker, 19 S. C, 104. He may allow corrections 
 to the testimony of a party or witness and a re-ex- 
 amination of the same person during the reference, 
 but he has no control over the person of the party 
 or witness ; he cannot punish any disobedience of an 
 order or any other misconduct, as for a contempt. 
 §§ 1018 and 2272 of the Code of Civil Procedure do not 
 apply to a referee appointed in these proceedings. See 
 § 2457 of same Code. He must report the offence to 
 the judge or the court out of which the execution was 
 issued. § 2,457 of Code. Green v. Bullard, 8 How., 
 313, 318; Lafontaine v. Southern Underwriters, 83 
 N. C, 132. The certificate of the referee, that a party 
 failed to appear before him for examination, is no evi- 
 dence of the fact to base upon it a proceeding as for 
 contempt ; the fact must be proved by affidavit. 
 Rinelander v. Dunham, 2 N. V. Civ. Pro., 32, N. Y. 
 Marine Court, General Term. 
 
 On a motion made upon a referee's report to punish 
 as for a contempt, or for any other relief, the party 
 moved against can, by way of appeal, have the referee's 
 
REFEREE IN OTHER STATES. 1 37 
 
 rulings or findings reviewed by the court or judge, and 
 show that the referee is in error. This he could do in 
 the creditor's bill. See Dickinson v. Van Tine, i Sandf. 
 {S. C), 724. 
 
 It was held in the People v. Mead, 29 Horn., 360, that 
 the referee need not file his report. But if the report 
 is to be made the basis of any subsequent proceedings, 
 it should be filed in the office where other records and 
 papers in special proceedings are required to be filed. 
 
 By the statutes of California and Colorado the 
 referee appointed in these proceedings has the power 
 to order any property of the judgment debtor not ex- 
 empt from execution in his or in his bailee's hands, or 
 due to him, to be applied toward the satisfaction of the 
 judgment. But it is held in the former State that the 
 referee in effect is a Master in Chancery, and he can 
 only order that the property discovered in the proceed- 
 ings be applied toward the satisfaction of the judgment 
 in such manner as the court may direct ; that his duty 
 is very limited and plain, and his acts are subject to the 
 review of the court. Hence the fact that the referee 
 was the clerk of the judgment creditor is no objection. 
 Adams v. Hackett, et a/., 7 Ca/., 187. 
 
 In most of the States whose statutes authorize these 
 proceedings, a referee may be appointed in the first or- 
 de£, or at any stage of the proceeding, to take the evi- 
 dence of parties and witnesses, and report the same, or 
 the facts found by him, if appointed for that purpose, to 
 the proper court or officer. 
 
 In Missouri he is appointed to take the evidence and 
 report the same in writing to the court or judge. See 
 statute of Missouri. 
 
 In New Jersey a commissioner of the Supreme Court 
 may be designated to take the examination of the judg- 
 ment debtor and certify the same to the judge who ap- 
 pointed him referee. See statute of New Jersey. 
 
138 OATH OF REFEREE. 
 
 The statutes of Virginia and West Virginia require 
 the commissioner to return the interrogatories and 
 answers iiled with him, and report the proceedings had 
 before him to the court in which the judgment is, or, if 
 of a justice of the peace, to the court to which such 
 justice belongs. 
 
 SECTION II. 
 
 The Oath of the Referee. 
 
 §2445. "Unless the parties expressly waive the 
 referee's oath, a referee, appointed as prescribed in this 
 article, must before entering upon an examination, or 
 taking testimony, subscribe and take an oath, that he 
 will faithfully and fairly discharge his duties upon the 
 reference, and make a just and true report, according to 
 the best of his understanding. The oath may be ad- 
 ministered by an officer designated in § 842 of this act, 
 and must be returned to the judge, with the report or 
 testimony." 
 
 This is a new provision, and in general accordance 
 with § 1016 of the Code of Civil Procedure, except that 
 § 1016 prescribes that an oral waiver must be entered 
 in the referee's minutes, while § 2445 is silent on that 
 head. Under the former Code it was not usual to 
 swear the referee. 
 
 The officers are designated in § 842 of the present 
 Code, by whom the oath maybe administered to a ref- 
 eree. The referee must be sworn, unless the oath is 
 waived. Browning v. Marvin, 5 Abb. {N. C), 285, Su- 
 preme Court, Special Term, Lawrence, J. 
 
 Waiver of Oath. 
 
 The waiver may be made by a written stipulation or 
 orally by the parties to the proceedings or their attor- 
 
WAIVER OF OATH. 1 39 
 
 neys. If it is oral, it must be entered in the referee's 
 minutes. See § 1016 of Code of Civil Procedure. It has 
 been held under this section (1016) that a waiver of the 
 oath not entered in the referee's minutes is insufficient ; 
 that a party attending upon the reference and refusing to 
 go on for another reason will not waive this objection. 
 One party alone cannot waive the oath. Browning v. 
 Marvin, supra ; Malcolm v. Foster, 5 N. Y. W. Di- 
 gest, 310, City Court, Brooklyn, McCuE, J. If the ref- 
 eree fails to take the oath, the proceedings before him 
 are irregular, and will be set aside on motion. So held 
 in a reference to compute the amount due in a mort- 
 gage foreclosure action. Exchange Fire Ins. Co. v. 
 Early, 4 ^<J^. {N. C), 78 ; S. C, 54 How., 279, N. Y. Com- 
 mon Pleas, Special Term. On the contrary, the N. Y. 
 Superior Court decided that this section (1016) applied 
 only to referees appointed to hear and determine is- 
 sues under §§1011, 1013, and 1015, and not to one ap- 
 pointed under §1215, of the Code of Civil Procedure. 
 McGowan v. Newman, 4 Abh. {N. C), 80; S. C, 54 
 How., 458, Special Term, Sandford, J. 
 
 But the N. Y. Court of Common Pleas, General 
 Term, held that the failure of a referee to be sworn 
 was a mere irregularity, and not a jurisdictional defect, 
 and could be waived by implication, as where a party 
 proceeds with the reference without demanding that 
 the referee take the required oath, examines witnesses 
 and conducts it to its conclusion, and where there are 
 no infants, or absentees, or parties unrepresented on 
 the reference. Nason v. Luddington, 8 Daly, 149 ; S. C, 
 56 How., 1 72, affirming S. C, 5 5 How., 342. See also Kea- 
 ton V. Ulster Plank Road Co., 7 How., 41, Special Term, 
 Harris, J., and Katt v. Germania Fire Ins. Co., 26 
 Hun, 429. §§ 1016 and 2445 of the present Code are 
 substantially alike, except in the particulars above 
 stated. 
 
I40 EXAMINATION — ADJOURNMENTS. 
 
 SECTION III. 
 
 The Examination — A djournments. 
 
 § 2444. " Upon an examination under this article, 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 ; and the judge may, in his 
 discretion, specify the officer. 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. The judge or referee may adjourn any pro- 
 ceedings under this article, from time to time, as he 
 thinks proper." 
 
 This section is a substitute for § 295 of the former 
 Code, and for those parts of §§ 292 and 296 which relate 
 to the examination. The words " either party may be 
 examined as a witness in his own behalf " have been 
 substituted for " the judgment debtor may be exam- 
 ined in the same manner as a witness" contained in 
 § 292, so as to bring, Mr. Throop says, the examina- 
 tion within certain provisions of ch. 9 of the Code 
 of Civil Procedure. Chapter 9 relates to evidence. 
 The order to appear for examination need not be an 
 eight-day order. Wielert;. Lawrence, 81 N. C, 65. 
 
 Either party in the absence of the other must wait 
 at the place designated for the examination, some rea- 
 sonable time, usually halT an hour, before he can take 
 his default. Where the debtor went to the office of 
 the judge at the appointed hour, but left without wait- 
 ing a reasonable time for the arrival of the judge and 
 the judgment creditor, it was held that the proceedings 
 had not fallen through, nor had the injunction order 
 become inoperative thereby. Reynolds v. McElhone, 
 20 How., 454. But if, after waiting the usual time, 
 neither the party to be examined nor any one rep- 
 
APPEARANCE ON RETURN OF ORDER. 141 
 
 resenting him as attorney appears, his default may be 
 taken. It may also be taken, although his attorney ap- 
 pears for him before the judge or referee. The de- 
 fault is generally noted by a memorandum signed by 
 the judge or referee before whom the order is return- 
 able, stating the fact. The justices of the Supreme 
 Court in the First Judicial Department will not sign a 
 memorandum of a default, but require the judgment 
 creditor or his attorney to make an afifidavit of the fact. 
 If the judgment creditor or his attorney fails to appear 
 and move on the proceedings, the party to be exam- 
 ined, after waiting the usual time, may have the pro- 
 ceedings dismissed. The dismissal, to be available, 
 must be signed by the judge or referee. In proceed- 
 ings against a third party, where notice is required to 
 be served on the judgment debtor, the creditor should 
 wait the usual time for him, and if he fails to attend, 
 produce proof of service, and take his default. 
 
 The judgment debtor or party to be examined must 
 appear in person before the judge or referee on the re- 
 turn of the order. Appearance means not merely bod- 
 ily presence. He must render himself before the ofifi- 
 cer to answer to the proceedings when they are called 
 on. People v. Wilgus, 5 Den., 58. Here the judg- 
 ment debtor was present, but did not answer when 
 called. In Myers v. Janes, 3 Abb., 301, Emmot, J., 
 thought that when the debtor is required to appear be- 
 fore a county judge, and no particular place is desig- 
 nated for his appearance in the city where the judge re- 
 sides, and the latter at the time is holding court in 
 the same city, the court room is as much his office 
 as his private ofifice, and the debtor ought to attend 
 there. 
 
 On the return of the order or warrant, and on the 
 first appearance of the judgment debtor, or party to be 
 examined before the judge or referee, Vt should make 
 
142 OBJECTIONS ON RETURN OF ORDER. 
 
 his objections to the proceedings, if he has any, and 
 move to dismiss them, or make such other motion as he 
 deems himself entitled to, and thus give the plaintiff 
 or judgment creditor the opportunity to have the de- 
 fect in the affidavit or order, etc., amended or corrected 
 on motion, if that can be done. See post, ch. vi. 
 § 4, " Powers of a Judge," etc., or to make such 
 other motion as he thinks advisable. When the judg- 
 ment debtor is made a party to proceedings against his 
 bailee or debtor, he has the right to contest the suffi- 
 ciency of the affidavit. Cushman v. Gephart, 97 Ind., 46. 
 
 But if the party to be examined appears, and makes 
 no objection to the proceedings, or points out no defects 
 or irregularity therein, at his first opportunity, but sub- 
 mits himself to the order of the officer, or even obtains 
 or consents to an adjournment without reserving his 
 right to object, he waives all irregularities and defects 
 in the proceedings thus far which do not amount to 
 jurisdictional defects. 5^^ Utica City Bank z^. Buell, 17 
 How., 498 ; S. C, 9 Abb., 385 ; and post, ch. vi. § 3, " Ir- 
 regularities, Jurisdictional Defects," etc. 
 
 If the examination is ordered to be taken by a 
 referee, as that officer cannot rule upon an objection 
 and dismiss the proceedings or the reference to him, 
 or grant an amendment, the objector should request 
 an adjournment for the purpose of bringing the matter 
 before the judge on notice and motion. If he does 
 not take some such course the referee can only pass 
 his objection by or note it, and proceed with the 
 reference ; for the referee has no authority to review 
 the order of the judge who appointed him or the 
 evidence upon which he granted it and correct his mis- 
 takes. See post, ch. vi., §§ 3 and 4. 
 
 In proceedings for the collection of taxes the defend- 
 ant (the delinquent tax'-payer) may, upon the return 
 of the order, move for the dismissal thereof as improvi- 
 
EXAMINATION ON THE ORDER. 143 
 
 dently made, and the motion may be granted. Bas- 
 sett V. Wheeler, 84 N. Y., 466. 
 
 Where the judgment debtor procured a release of 
 the judgment upon dehvering to his creditor notes 
 made by a person represented by him to be responsi- 
 ble, whereas it turned out that the person was at the 
 time irresponsible, and the notes for that reason were 
 unpaid and substantially worthless, it was held on a mo- 
 tion to dismiss proceedings based on such judgment, 
 that the release was entirely inoperative as between the 
 parties, and did not require first to be set aside by 
 means of legal proceedings, before supplementary pro- 
 ceedings could be prosecuted. Folwell v. Gambles, 14 
 N. V. W. Digest, 115, Supreme Court, General Term. 
 
 The examination, if before a judge, is taken at his of- 
 fice or at chambers, and- presumably in his presence, 
 and he passes upon any question that may arise in the 
 course of it ; if before a referee, it is taken at his office 
 or at the place designated by the judge, and he passes 
 upon the questions that arise in the course of the ex- 
 amination ; and from his decision an appeal lies to the 
 judge. 
 
 Each answer of a party or witness must be under 
 oath (§ 2444). He need be sworn but once. It is 
 not necessary or proper to swear him a second time on 
 an adjourned examination ; the plaintiff should exam- 
 ine him on the oath already taken. Hudson v. Pletz, etc., 
 II Paige, 180; S. G., 3 N. Y. Leg. Obs., 120. It is the 
 privilege of the judgment creditor to examine his 
 debtor, but which he may waive and examine only wit- 
 nesses. Graves v. Lake, 12 How., 33. But the debtor 
 is entitled to notice of the examination of witnesses ; if, 
 however, he fails to appear, he cannot afterwards be 
 heard to object to their testimony. The judgment 
 creditor is not bound to examine the debtor, especially 
 when the latter fails to appear pursuant to the order. 
 
141. EXAMINATION, HOW TAKEN. 
 
 He may examine witnesses, and upon their evidence 
 apply for and have a receiver appointed. Colton v. 
 Bigelow, 41 N.J., 266. 
 
 The examination is taken in the form of a deposi- 
 tion, and must be signed and sworn to by the party or 
 witness. He is sworn before the examination to tell 
 the truth, and at the termination he swears to the cor- 
 rectness of his deposition. Either party may be exam- 
 ined as a witness in his own behalf, and may produce 
 and examine other witnesses as upon the trial of an ac- 
 tion. The same rules apply to the judgment debtor 
 and to the witnesses as to the extent and thoroughness 
 of the examination. See Sandford v. Carr, 2 AM., 462, 
 Davies, J. Either may be cross-examined. Leroy v. 
 Halsey, i Buer, 589; S. C, 11 N. Y. Leg. Obs., 2i^2; 
 I Code R. {N. S.), 275, contra ; Corning v. Tooker, 5 
 How., 16, decided before the amendment of 185 1 to 
 § 292 of former Code, and not now followed on this 
 point. A party may have counsel, but a mere witness 
 not. Sandford v. Carr and Corning v. Tooker, supra. 
 As the examination is taken orally, great liberality 
 should be allowed in correcting mistakes, which is prop- 
 erly done by way of a supplemental examination, leaving 
 the original deposition untouched. Corning v. Tooker, 
 supra. Persons examined under oath are entitled to 
 have their depositions accurately taken down in the first 
 instance. If that is done, and they desire afterwards to 
 correct their testimony, it is proper to do so in the 
 mode suggested in Corning z/. Tooker, 5 How., 16 — that 
 is, by a supplemental statement at the end of the depo- 
 sition ; but where the testimony actually given has 
 been taken down erroneously, the witness has a right 
 to have the minutes changed so as to conform to the 
 testimony actually given by him, and the court has no 
 power to compel him to subscribe his name to a state- 
 ment which is not strictly true, even though the falsity 
 
RE-EXAMINATION. 
 
 145 
 
 of it be declared by a supplementary entry in the min- 
 utes ; for that would be unjust to the witness. Sher- 
 wood V. Dolan, 14 Hun, 191 ; S. C, 6 N. Y. W. Digest, 
 565, General Term, 2d Judicial Department. 
 
 Leading questions are permitted. Corning v. Tooker, 
 supra. The testimony of the judgment debtor may be 
 rebutted. 
 
 Re-examination. 
 
 It is held that where the examination of a judgment 
 debtor before a referee is once closed, it can only be re- 
 sumed by motion to the judge on notice to the debtor, 
 and showing special cause ; for the referee's power is 
 spent. Orr's Case, 2 Abb., 457. When the examina- 
 tion is taken before a judge he may grant an ex-par te 
 order, requiring the judgment debtor or other party to 
 attend and answer further in the same proceedings. 
 The appointment of a receiver does not terminate the 
 jurisdiction of the judge over the proceedings. He 
 may require the debtor to appear and answer after 
 that. People v. Mead, 29 How., 360. 
 
 An appeal does not lie to the General Term from 
 every refusal of the judge to allow a question to be put 
 to a witness. The proceedings must be first terminated 
 or disposed of before him before an appeal can be taken. 
 See Carter v. Clark, 7 Robt., 490. 
 
 Concurrent Remedies. 
 
 Where a judgment creditor instituted supplementary 
 proceedings against his debtor, and while they were 
 pending brought an action in the Supreme Court on 
 his judgment against the defendant and others to make 
 the same a lien on certain real estate, it was held that 
 the plaintiff had two concurrent remedies, and had the 
 right to prosecute both or either of them, and that it 
 was error to stay his supplementary proceedings ; and 
 further held that if such order was granted in the dis- 
 
146 EXAMINATION BEFORE RETURN OF EXECUTION. 
 
 cretion of the court (in this instance), the discretion 
 was erroneously exercised, as the proof disclosed no 
 abuse against which the party required protection. The 
 plaintiff denied that he was conducting the proceed- 
 ings to obtain evidence to be used in the action. Gates 
 V. Young, 17 N. Y. W. Digest, 551, Supreme Court, 
 General Term, 2d Judicial Department. 
 
 In Proceedings before Return of Execution. 
 
 When the judgment debtor is brought up for exam- 
 ination before the return of execution, he has the right 
 to demand that his testimony be first taken upon the 
 allegation in the affidavit, or other proof, that he has 
 property which he unjustly refuses to apply toward the 
 satisfaction of the judgment ; and if the proof does not 
 establish this allegation, he is entitled to have the pro- 
 ceedings dismissed. See Sackett v. Newton, 10 How., 
 560, and ante, ch. i, § 8, "Proof to Obtain Order 
 before the Return of Execution." But if this allega- 
 tion is established, the examination proceeds as in pro- 
 ceedings after the return of execution, and extends to 
 the whole range of possible property, and is equally 
 unlimited and thorough. See ante, ch. i, § 8. Un- 
 der the statutes of Wisconsin an order for proceedings 
 before return of execution does not authorize a general 
 discovery of property. Smith v. Weeks, 60 Wis., 94. 
 The examination must be limited to the property men- 
 tioned in the affidavit. This was also the rule under 
 the former Code of New York. 
 
 In Proceedings on Warrant of Arrest. 
 
 When the judgment debtor is brought before the 
 judge before whom the warrant is returnable, the first 
 requisite is to ascertain from the examination of the 
 debtor, or from other proof, the truth or falsity of the 
 averments in the affidavit upon which the arrest was 
 ordered — to wit., that there is danger that the judgment 
 
PROCEEDINGS AGAINST THIRD PARTY. 147 
 
 debtor will leave the State or conceal himself, and that 
 he has property which he has unjustly refused to apply 
 to the satisfaction of the judgment. If these allega- 
 tions are established to the satisfaction of the judge he 
 may make an order requiring the judgment debtor to 
 give the undertaking specified in § 2440 of the Code of 
 Civil Procedure ; and on his failure to comply there- 
 with he must forthwith by warrant commit him to 
 prison, as prescribed in said section, and the examina- 
 tion of the judgment debtor, etc., concerning his prop- 
 erty proceed as in proceedings after return of execution. 
 But if these averments are not established to the satis- 
 faction of the judge, he must vacate the warrant of 
 arrest, or it may be vacated, as prescribed in § 2433 of 
 the Code of Civil Procedure, and the judgment creditor 
 must resort to or fall back on his common order for the 
 conduct of his proceedings against his debtor. See 
 ante, ch. I, § 9. If the execution has been returned 
 or has not yet been returned, and the facts sworn to en- 
 title the creditor to proceedings against the judgment 
 debtor, in either case he has the right to prosecute the 
 same as upon an order, although the warrant has been 
 vacated. 
 
 In Proceedings against a Third Party. 
 
 The judgment creditor, in proceedings against the 
 debtor or bailee of the judgment debtor, is not limited 
 in his inquiry to any debt or personal property de- 
 scribed or mentioned in the affidavit, or other proof, 
 upon which the order was granted. He may inquire 
 concerning any debt due or personal property in the 
 third party's hands belonging to the judgment debtor. 
 
 Adjournments. 
 
 The judge or referee may adjourn the proceedings 
 before him from time to time as he thinks proper. He 
 may adjourn the proceedings or examination to a future 
 
148 ADJOURNMENTS TO EXAMINE WITNESSES. 
 
 day in the absence of the judgment debtor or party to 
 be examined, and without the presence of any one 
 representing him, but the order of adjournment must 
 be personally served on the party to bring him into con- 
 tempt if he fails to attend. See Mason v. Lee, 23 
 How., 466. This power is expressly conferred upon 
 the judge or referee by §2444 of the present Code. 
 
 In Ammidon v. Wolcott, 15 Add., 314, Johnson v. 
 Tattle, 17 Id., 315, both at General Term, Parker 7'. 
 Hunt, 15 Id., 410, fio/e, and Reynolds v. McElhone, 20 
 Hozv., 454, the point was made that the proceedings 
 had lapsed for want of regular adjournments. But the 
 court held in each case that the adjournments were 
 sufficiently regular to keep the proceedings alive. These 
 decisions on this point are of less importance since the 
 enactment of §§ 2444 and 2454 of the Code of Civil 
 Procedure, which expressly authorize adjournments and 
 prescribe how proceedings may be discontinued or dis- 
 missed. See post, §6, of this chapter. 
 
 A valid adjournment may be made by the parties 
 themselves. Squire v. Young, i Bosw., 690, General 
 Term. A parole arrangement for an adjournment 
 made by the creditor and debtor to a future day 
 before the referee, is valid. People v. Oliver, 66 Barb., 
 570, General Term. 
 
 Adjournments to Examine Witnesses. 
 
 The judgment debtor is entitled to notice of an 
 adjournment, for the examination of witnesses, and of 
 the time and place ; or else upon a motion based upon 
 their testimony he may object to the use of it ; but if 
 he is notified of such adjournment for that purpose, 
 and fails to appear, he cannot afterward object. 
 Colton V. Bigelow, 41 N.J., 266, supra. 
 
 In Indiana, before the R. S. of 1881, it was held 
 that the answer under oath of the defendants, the 
 
PROCEEDINGS IN INDIANA. 149 
 
 debtor and his alleged bailee and debtor denying the 
 possession of such property (as mentioned in the cred- 
 itor's affidavit) or the existence of the alleged indebt- 
 edness is not final and conclusive upon any question of 
 fact involved therein ; but that as to any such question 
 pleadings may be filed and issues either of law or fact be 
 joined by and between the plaintiff and the defendants, 
 or either of them, or by and between the defendants, 
 and such issues so joined maybe heard and determined 
 in the same manner as other issues of law or fact in 
 other civil action or proceeding ; and that any and all 
 controverted questions between all or any of the 
 parties may be heard, tried, and determined, and that 
 the court or judge may try the issues so formed, either 
 with or without a jury, as in an ordinary action, and 
 render judgment according to the rights of the parties; 
 and further that a party demanding it may have the 
 issues of fact tried by a jury. 
 
 See the Toledo, Wabash and Western Railway Co. v. 
 Howes, 68 Ind., 458, overruling Burt v. Hoetlinger, 28 
 Id., 214 ; Dunning v. Rogers, 49 Id., 272 ; McMahon v. 
 Works, 72 Id., 19 ; Kissell v. Anderson, 73 Id., 485. 
 But the R. S. provide that all proceedings after the 
 order has been made requiring parties to appear and 
 answer shall be summary without further pleadings 
 upon the oral examination and testimony of the parties 
 and witnesses — that is, the R. S. dispense with formal 
 pleadings in these proceedings, the affidavit of the 
 judgment creditor upon which the order is granted 
 being deemed a complaint. See R. S., § 822 ; Dillman 
 V. Dillman, 90 Id., 585 ; Wallace v. Lawyer, 91 Id., 
 128 ; ante, pp. 21, 22. 
 
 In proceedings against third persons the judgment 
 debtor must also be made a party if it appears that a 
 complete determination of the controversy cannot be 
 had without his presence. Wall v. Whisler, 14 Id., 
 
I50 INDIANA — WISCONSIN. 
 
 228 ; Hoadley v. Caywood, 46 Id., 239 ; Chandler v. 
 Caldwell, 17 Id., 256; Cook v. Ross, 22 Id., 157. 
 
 When the judgment debtor and his bailee appear in 
 the proceedings, and by their answer deny the allega- 
 tions in the creditor's affidavit, proof must be given of 
 every material allegation denied by the answer. A 
 judgment without proving such allegations was held to 
 be erroneous. Chandler v. Caldwell, siipra. 
 
 The judgment creditor may waive the answer of the 
 debtor. Cook v. Ross, supra. A third person was 
 made a party to proceedings on a judgment against 
 a railroad company, on the ground that he was in- 
 debted to the company on a subscription of stock. 
 He appeared and answered that the company pro- 
 cured his subscription through false representation. 
 This was held to be no defence, as the alleged misrep- 
 resentation amounted to mere matters of opinion and 
 expectation, and not of any existing fact. Bish v. 
 Bradford, 17 Id., 490. 
 
 The verified answer of the president of a bank is not 
 evidence that it is indebted to the judgment debtor. 
 O'Brien v. Flanders, 58 /<r/., 22. 
 
 Since the R. S. the answer of defendant consists of 
 oral testimony. The evidence must sufficiently de- 
 scribe the property of the judgment debtor sought to 
 be reached and the claims due him, to enable the court 
 in its judgment to direct what property shall be levied 
 on and sold, and what claims due the debtor shall be 
 applied to the payment of the judgment. Wallace v. 
 Lawyer, 91 Id., 128. 
 
 Where it appears that proceedings under the statute 
 for the relief of insolvent debtors and the discharge of 
 debts have been commenced by the debtor, no judg- 
 ment creditor will be allowed to gain advantage over 
 the others by supplementary proceedings. They will 
 be stayed. Sexton v. Mann, 15 Wis., 162. 
 
WITNESSES. 151 
 
 The statutes of some of the States which provide for 
 these proceedings expressly require that all examina- 
 tions of parties and witnesses shall be under oath ; and 
 also expressly authorize the judge or referee before 
 whom the proceedings are pending to continue them 
 from time to time until completed. 
 
 SECTION IV. 
 
 Wtinesses. 
 
 Either party may produce and examine witnesses, as 
 upon the trial of an action. Under the former Code 
 of New York (§ 295) witnesses were required to appear 
 and testify in the same manner as upon the trial of an 
 issue ; and as the proceedings were adjudged to be in 
 the original action, it was held that the proper way to 
 procure the attendance of a witness was by a subpoena 
 issued out of the court in which the judgment was ob- 
 tained, or into which it had been docketed from a court 
 not of record, and served upon him ; and that any dis- 
 obedience thereof should be tried and punished by the 
 court out of which it issued ; and further, that a judge 
 could not issue a subpoena to a witness or punish him 
 for disobedience thereof. People, etc., v. Dutcher, 3 
 AM. {N. S.), 151, Supreme Court, General Term. The 
 Code of Civil Procedure has changed this mode of sub- 
 poenaing witnesses. They are now summoned as in 
 other special proceedings, and to produce books and 
 papers. §§854 to 858 inclusive of the present Code 
 provide the mode of requiring witnesses to attend in 
 supplementary proceedings, give evidence, and produce 
 books and papers. This mode is by a subpoena issued 
 by and under the hand of the judge or the referee, when 
 
152 OATH ADMINISTERED TO A WITNESS. 
 
 he is authorized to examine witnesses ; and it must be 
 served as prescribed in §852 of the present Code. 
 When the taking of evidence is before a referee, and 
 witnesses are required to attend and testify, the sub- 
 poena should be issued under his hand. The People, 
 etc., V. Ball, 22 N. Y. W. Digest, 275, Supreme Court, 
 General Term. The same fees and mileage are paid 
 or tendered to the witness as upon the trial of an 
 action. See Davis z'. Turner, 4 //i?w., 190. 
 
 A prisoner detained in jail or prison within the State 
 may be produced to testify in these proceedings by a 
 writ of habeas corpus. See §§2008 and 2009 of the 
 Code of Civil Procedure. 
 
 Where a person attends and is examined as a wit- 
 ness, he is obliged to answer any material and pertinent 
 question, whether he has been subpoenaed or not. Peo- 
 ple V. Marston, 18 Abb., 2'^y. 
 
 The Oath Administered to a Witness, etc. 
 
 The oath should require the witness to answer all 
 questions asked him concerning the judgment debtor's 
 property ; or if examined in proceedings against a third 
 party, concerning the indebtedness due and the prop- 
 erty in the hands of the third party belonging to the 
 judgment debtor. The oath administered to the judg- 
 ment debtor should require him to answer all questions 
 put to him concerning his property, while that admin- 
 istered to a third party should require him to answer 
 all questions concerning the debtor's property in his 
 hands or his indebtedness to him. 
 
 Production of Books and Papers. 
 
 A witness may also be required by the subpoena 
 duces tecum of the judge or referee to produce on the 
 examination books and papers in his possession or un- 
 der his control. See §854 of the Code of Civil Pro- 
 
WITNESS TO PRODUCE BOOKS, ETC. 1 53 
 
 cedure. §§866 to 867 inclusive of the same Code no 
 doubt also apply to these proceedings. Champlin v. 
 Stoddard, 17 N. Y. W.. Digest, "jG, Supreme Court, Gen- 
 eral Term. 
 
 In this case (Champlin v. Stoddard) the witness was 
 required to produce certain papers, checks, etc., in his 
 possession or under his control. This he refused to do, 
 on the ground that these papers, etc., were his individual 
 and private property ; held that it was for the court 
 to determine whether or not the witness was justified 
 in withholding the information for the reason which he 
 assigned ; that the proper course was to submit the 
 papers to the inspection of the court and abide its de- 
 cision as to their relevancy and materiality. Also same 
 in principle. Bacon v. Frisbie, 80 N. Y., 399 ; Forbes v. 
 Willard, 54 Barb., 520; S. C, n How., 193. 
 
 An ofificer of a corporation called as a witness may 
 be compelled to produce the books of the corporation 
 by order or by subpcena duces tecum. Holmes, Booth 
 & Hayden v. Stietz, 6 N. Y. Civ. Pro. R., 362, note, 
 N. Y. City Court Ch., Hawes, J. 
 
 Here the president of a corporation called as a wit- 
 ness was required to produce its books by an order of 
 the judge. 
 
 A judgment debtor in these proceedings may be re- 
 quired by order to produce on the examination books, 
 papers, etc., in his possession or under his control. Pru- 
 den V. Tallman, 6 N. Y. Civ. Pro. R., 360 ; N. Y. Common 
 Pleas, Special Term, J. F. Daly, J. This is done by an 
 order of the judge or of the referee, when the examina- 
 tion is referred. Pruden v. Tallman, supra. In the cred- 
 itor's bill the order of reference made by the court al- 
 ways required the defendant to produce on the exami- 
 nation such books and papers as the master might 
 direct him. to produce. 191 Ch. Rule; i Barb. Ch. Pr., 
 167. 
 
1 54 ATTORNEY — WIFE OF DEBTOR. 
 
 An Attorney or Counsel. 
 
 An attorney who prepared a deed for parties was 
 required to disclose facts which he obtained in the 
 transaction of the business between them, and which 
 was not communicated to him as an attorney, to enable 
 him to perform his duty to a client. Information so 
 acquired is not privileged. Hebbard v. Haughian, 70 
 N. Y., 54. 
 
 See post, § 5 of this chapter, " The Extent of the 
 Inquiry." 
 
 Wife of Judgment Debtor. 
 
 She may be examined and required to produce 
 books and papers in the same manner as the statute 
 now requires of her upon the trial of an action ; and 
 § 2460 'of the present Code applies to her as well 
 as to any other party or witness, except she is screened 
 from disclosing confidential communications between 
 herself and her husband. See § 831 of present Code. 
 She is subpoenaed in the same way as other witnesses. 
 
 Commission. 
 
 No commission can be issued to take the testimony 
 or deposition of a witness without the State to be used 
 in these proceedings. Graham v. Colburn, 14 How., 
 52 ; S. C, 6 Diier., 678, BOSWORTH, J. Nor can such a 
 commission be issued since the amendments of i860 and 
 1862 to the former Code. Morrell v. Hey, 24. 1/ow., 
 48; S. C, 15 ^(53., 430, Ingraham, J. No commission 
 can be issued in these proceedings to examine a witness 
 since the present Code went into force, because they 
 are special proceedings, and the statute which au- 
 thorizes the examination of witnesses out of the State 
 relates to actions, and it cannot be extended to any 
 other mode or form of proceedings ; and the power to 
 award a commission to take the testimony of a foreign 
 
WITNESS' PRIVILEGE. 155 
 
 witness depends entirely upon the statute. Champlin 
 V. Stoddart, 64 How., 378, Co. Judge of Erie Co. 
 
 Witness' Privilege. 
 
 A person duly and in good faith subpoenaed or or- 
 dered to attend for the purpose of being enamined in a 
 case where his attendance may lawfully be enforced by 
 attachment or by commitment is privileged from 
 arrest in a civil action or special proceeding while 
 going to, remaining at, and returning from the place 
 where he is required to attend ; and the court or a 
 judge thereof, etc., upon proof of a violation of this priv- 
 ilege, must make an order directing his discharge from 
 arrest. See §§ 860, 861, and 862 of the Code of Civil 
 Procedure., 
 
 A resident of another or a foreign State while at- 
 tending a court of this State as a witness cannot be 
 served with a process for the commencement of an 
 action against him, although he comes voluntarily into 
 the State and attends the trial without being served 
 in the State with any compulsory process. This 
 privilege continues until the expiration of a reasonable 
 time. Person v. Grier, 66 N. Y., 124; Matthews t/. 
 Tuft, 87 /d., 568; Brett v. Brown, 13 Al>i). {N. S.), 295, 
 Supreme Court, Special Term ; Grafton v. Weeks, 7 
 Daly, 523. 
 
 But the court (in Person v. Grier) was in doubt 
 whether the same immunity extended as fully to a 
 resident witness or not. See also Person v. Pardee, 14 
 A. L. Journal 13, Court of Appeals, affirming S. C, 
 6 Hun, 477, and Mackay v. Lewis, 7 Hm, 83. 
 
 But if instead of returning to his residence the wit- 
 ness proceeds about his own business, he loses his 
 privilege. Schultz v. Andrews, 54 How., 380, Supreme 
 Court, Special Term. 
 
 The statutes of all the States which provide for these 
 
156 EXTENT OF INQUIRY. 
 
 proceedings authorize the compulsory attendance of 
 witnesses, either by the order of the court or judge, or 
 by subpoena, and their examination as on the trial of an 
 issue. 
 
 SECTION V. 
 
 The Extent of the Inquiry. 
 
 § 2460. " A party or a witness, examined in a special 
 proceeding, authorized by this article, is not excused 
 from answering a question, on the ground that his ex- 
 amination will tend to convict him of the commission 
 of a fraud ; or to prove that he has been a party or 
 privy to, or knowing of a conveyance, assignment, 
 transfer, or other disposition of property for any pur- 
 pose ; or that he or another person claims to be enti- 
 tled, as against the judgment creditor, or a receiver ap- 
 pointed or to be appointed in the special proceeding, 
 to hold property, derived from or through the judg- 
 ment debtor, or to be discharged from the payment of 
 a debt which was due to the judgment debtor, or to a 
 person in his behalf. But an answer cannot be used, as 
 evidence against the person so answering, in a criminal 
 action, or criminal proceeding." 
 
 This section embodies substantially the two last 
 sentences of § 292 of the former Code. 
 
 The amendment of i88i to this section consists in 
 striking out the words " Civil or," before " Criminal," 
 and in substituting ' ' criminal proceedings " for " in 
 any other special proceedings, civil or criminal." 
 
 The debtor cannot evade or stop an examination 
 into his pecuniary situation by offering to consent to 
 the appointment of a receiver ; for the creditor is enti- 
 tled to a full and complete discovery of his debtor's 
 
EXTENT OF INQUIRY. 157 
 
 property to the end that it may at once be applied to 
 the payment of his judgment by an order made under 
 § 2447 of the Code of Civil Procedure. An im- 
 portant purpose of supplementary proceedings is to 
 discover property and apply it toward the payment of 
 the creditor's judgment without the intervention of an 
 action. It is in this — to wit : accomplishing by a few 
 orders what formerly required a suit, wherein these 
 proceedings assert their superiority over the creditor's 
 bill. 
 
 §§ 2435 and 2436 of the present Code say that 
 the judgment creditor is entitled to an order requiring 
 the debtor to attend and be examined concerning his 
 property, and § 2460 above mentioned provides the 
 extent to which he may be required to answer. 
 
 A receivership can hardly be considered a means of 
 discovering property. It is only a mode of applying 
 the discovered property to the payment of the judg- 
 ment. 
 
 The first aim of these proceedings is to discover 
 property of the debtor which may be thus summarily 
 applied toward the payment of the plaintiff's judgment; 
 the second aim is to discover what disposition the 
 debtor has made of his property, if he has parted with 
 it, to whom he transferred it, how, for what consider- 
 ation, etc.; in other words, to discover facts concerning 
 the disposition of his property, in order to enable the 
 creditor to reach it through an action by himself, or a 
 receiver to be appointed in the proceedings, and in that 
 way apply it toward the payment of his judgment. 
 The creditor is therefore entitled to a thorough exam- 
 ination into his debtor's pecuniary affairs and business 
 transactions in order to meet these ends. The mere 
 appointment of a receiver is hardly a step toward this 
 end. It sheds no ray of light upon the dark recesses 
 and intricate mazes in which the debtor may have con- 
 
158 EXTENT OF INQUIRY. 
 
 cealed his property. On the contrary, a receivership is 
 often a convenient barrier which the fraudulent debtor 
 interposes between himself and pressing creditors. 
 Indeed, it is quite common for a dishonest debtor to 
 take refuge in a friendly receivership from the hot 
 pursuit of determined creditors. 
 
 In a creditor's bill a receiver was appointed as a mat- 
 ter of course, if the equity of the bill itself was not 
 denied. But the interlocutory proceedings did not stop 
 there. The complainant was entitled to and always 
 was accorded a full and rigorous examination, both of 
 the debtor and witnesses, in order to inform the re- 
 ceiver of the nature, kind, and whereabouts of the 
 debtor's property, and thus to enable him to take pos- 
 session or control thereof. Green v. Hicks, i Barb. 
 Ck., 309 ; also ante, pp. 3-5, it was essentially a fish- 
 ing proceeding, and was much favored by the Court of 
 Chancery. Hammond v. The Hudson River I. and M. 
 Co., 20 Barb., 378. 
 
 Supplementary proceedings seek to enlarge this 
 remedy and render it more simple. See Sandford v. 
 Carr, 2 Abb., 462; Clapp v. Lathrop, 23 How., 423, 
 Supreme Court. True, when a debtor has once been 
 fully examined, and offers to produce the deposition to 
 another creditor who seeks an investigation by this 
 means, he should not be put to the annoyance of a 
 further examination except upon new matter, or upon 
 matters not at all or not fully gone into before. So also 
 should it be where witnesses have once been fully ex- 
 amined. However, this phase of the inquiry is left to 
 the sound discretion of the judge who has charge of 
 it. Where a creditor's course is vexatious, he can im- 
 pose costs upon him, and that is ordinarily ample pro- 
 tection against vexatious proceedings. However, the 
 rule is now well established in all the courts of New 
 York, that the judgment creditor is as much entitled to 
 
EXTENT OF INQUIRY. 1 59 
 
 bring these proceedings, and have this debtor fully and 
 thoroughly examined after return of execution unsatis- 
 fied, as he is to issue the execution itself to the sheriff 
 and endeavor to collect his judgment in that way. 
 
 The Extent of the Inquiry. 
 
 It took the courts some years fully to understand the 
 spirit and intent of these proceedings. At first the 
 provision requiring the judgment debtor to appear and 
 answer concerning his property was literally construed, 
 and in the light of an examination before a master in a 
 creditor's bill. The creditor was limited to the inquiry 
 whether or not his debtor had any property in his name 
 which ought to be Epplied to the payment of the judg- 
 ment, and within that limit every question tending to 
 throw light on the subject was pertinent. But when it 
 appeared on the examination or otherwise that the title 
 to any property once owned by the debtor had passed 
 to another person, the judgment creditor's inquiry was 
 arrested ; he was not permitted to inquire into the char- 
 acter or bona fides of the transfer, because such prop- 
 erty was no longer the debtor's. The creditor was 
 remitted to Chancery to grope his doubtful way through 
 a tedious and expensive creditor's action to ascertain 
 whether his debtor had made a fraudulent disposition 
 of his property. See Corning v. Tooker, 5 How., 16 ; Van 
 Wyck V. Bradley, 3 Code R., 1 57, Special Term ; Town v. 
 The Safeguard Ins. Co., 4 Bosw., 683, Special Term ; 
 Hunt V. Enoch, 6^iJi^., 212, N.Y. Common Pleas, Special 
 Term ; Williams v. Carroll, 2 Hilt., 438. But gradually 
 the views of the courts enlarged to a comprehension of 
 the full intent and purpose of these proceedings — to wit., 
 that they are not merely to discover property which 
 still belongs to the judgment debtor and which may be 
 directly applied toward the satisfaction of the judg- 
 ment by an order of the judge, but to furnish to the 
 
l6o EXTENT OF INQUIRY. 
 
 creditor a cheap, direct, and efficient method to ascer- 
 tain the character and bona fides of the debtor's transfer 
 of property ; to follow up and unravel the tangled skein 
 of dishonest transfers and concealment of property 
 without being impeded in the inquiry by allegations or 
 want of allegations and issues in pleadings — in short, 
 that these proceedings were inquisitorial in order to 
 discover facts concerning the debtor's disposition of his 
 property, and to enable the creditor to determine, with- 
 out going to the expense and trouble of an action, 
 whether or not his debtor has covered up or fraudu- 
 lently disposed of property which ought to be applied 
 to the payment of his judgment. Moreover, this 
 course also enables the honest debtor to explain fully 
 and with the least annoyance the fairness of his busi- 
 ness transactions. 
 
 The first and leading case in which this view of the 
 true and full purpose of these proceedings was taken 
 is Clapp V. Lathrop, 23 How., 423, Supreme Court, Gen- 
 eral Term. Here the question was whether or not a 
 witness who claimed to own the debtor's property by a 
 transfer from him could be compelled to disclose the 
 character and purpose of such transfer. The court 
 decide in the affirmative, and say: "If on examina- 
 tion it should turn out that the judgment debtor had 
 no property, that his transfers had been bona fide, no 
 further trouble or expense would be incurred ; on the 
 contrary, if it should be apparent that the party had 
 property undisposed of or had disposed of property 
 fraudulently, it might be seized under execution, or an 
 action might be prosecuted by the creditor in his own 
 name, or through a receiver, to have the property fairly 
 applied to the satisfaction of the judgment. By this 
 course of proceeding the facts could be determined 
 speedily and with little expense. But if the examina- 
 tion is limited in the way claimed by the appellants (to 
 
EXTENT OF INQUIRY. l6l 
 
 discovering property belonging to the debtor only) very 
 little is attained by it — substantially nothing — toward 
 the advancement of justice. Such limitation, in my 
 judgment, effectually frustrates the object and advan- 
 tages intended to be afforded by these proceedings." 
 
 " Nor will an honest debtor feel that it is unfair in his 
 creditor to demand a disclosure of his situation, nor 
 should a creditor be regarded as on a fishing excursion 
 when he takes steps to enforce his rights. An honest 
 transferee of the debtor's property will also be willing 
 to explain to a creditor the circumstances of the trans- 
 fer, and thus avoid suspicion of dishonesty, as well as 
 the trouble and expense of defending an action. A 
 creditor is not without rights in regard to the property 
 of his debtor, and is entitled to be fully and fairly in- 
 formed in relation to it, as well by the debtor himself 
 as also by any one who claims it from him by recent 
 transfer. An inquiry by him ought not to be deemed 
 impertinent or meddlesome." 
 
 This decision was affirmed in the Court of Appeals 
 as Lathrop v. Clapp, 40 N. Y., 328. After this decision 
 § 292 of the former Code was amended in 1863 by 
 adding thereto, " No person shall on examination, pur- 
 suant to this chapter, be excused from answering any 
 question on the ground that his examination will tend 
 to convict him of the commission of a fraud, but his 
 answer shall not be used as evidence against him in any 
 criminal proceeding or prosecution. Nor shall he be 
 excused from answering any question on the ground 
 that he has before the examination executed any con- 
 veyance, assignment, or transfer of his property for any 
 purpose, but his answer shall not be used as evidence 
 against him in any criminal proceedings or prosecu- 
 tion." This provision has been substantially re-enacted 
 in § 2460 of the Code of Civil Procedure. Since the 
 decision of Clapp v. Lathrop, supra, and the above- 
 
l62 EXTENT OF INQUIRY. 
 
 named amendment of 1863, the courts and judges have 
 allowed the judgment creditor the widest scope to his 
 investigation into the character and bona fides of the 
 debtor's disposition of property and his business trans- 
 actions since the creditor's claim accrued, and even in 
 some cases anterior to that time, on cause being shown 
 therefor. 
 
 In Forbes z/. Willard, 54 Barb., 520, S. C, 37 How., 193, 
 General Term, the court substantially say : " The pro- 
 visions of the Code are intended to give the creditor 
 complete authority for a full and searching examination 
 of the judgment debtor, for the purpose of ascertain- 
 ing particularly the amount and condition, as well as 
 the disposition which he had made or attempted to 
 make of his property, without any restriction whatso- 
 ever on account of the purposes for which he might 
 have disposed of it ; and this inquiry extends to all 
 transfers and dispositions of property whatsoever, 
 whether in writing or by an actual delivery following 
 or accompanying an agreement by parol. The person 
 examined is required to answer fully concerning the 
 disposition he may have made of his property, notwith- 
 standing the fact that his examination will show that 
 he has been guilty of a crime in doing it, and without 
 any qualification or restriction arising out of the nature 
 and character of such crime. So he is also bound to 
 answer, although his answer may show that he had ac- 
 quired his property by the commission of a fraud, or that 
 he had conspired and combined with others to commit 
 a fraud, if such discovery becomes essential to the com- 
 plete examination, which the creditor has a right to 
 prosecute for the purpose of ascertaining the nature, 
 condition, extent, and situation of his property — that 
 is, it matters not whether the fraud has been committed 
 in disposing of, or in receiving, purchasing, or other- 
 wise acquiring the property which forms the proper 
 
EXTENT OF INQUIRY. 163 
 
 subject of the examination, if its disclosure is required 
 in the lawful and legitimate course of the examination 
 for the purpose of making the discovery which the 
 creditor is entitled to demand concerning the property 
 of the judgment debtor ; neither the debtor nor any 
 witness produced is at liberty to shield himself from 
 answering because the answers required will lead to 
 that disclosure. But the questions must be pertinent to 
 the inquiry which the law allows to be instituted by the 
 creditor against the debtor." 
 
 This decision also was made under § 292 of the former 
 Code, of which § 2460 is substantially a transcript. See 
 The Mechanics' and Traders' Bank v. Healy, 14 N. Y. 
 W. Digest, 120, Supreme Court, General Term (S. C. 
 appeal dismissed, 89 N. Y., 605) ; Champlin v. Stod- 
 dart, ly N. V. W. Digest, y6, Supreme Court, General 
 Term. 
 
 The rules to be deduced from §2460 of the present 
 Code, and the decisions above mentioned, as well as 
 others, is, that the examination of parties and witnesses 
 may be equally thorough and far-reaching {see Sand- 
 ford v. Carr, 2 Abb., 462, Davies, J.), that all the rights, 
 privileges, and disabilities which by law apply to a wit- 
 ness when testifying on a trial or in an action apply to 
 him when testifying on these proceedings, except that 
 the examination is not limited to issues, but is inquisi- 
 torial, and with the exception contained in § 2460 itself. 
 It is clear that no party or witness can be excused from 
 answering any question which that section requires him 
 to answer, although on the trial of an action or in any 
 other special proceeding he would be privileged from 
 answering. He has no election on any ground, nor can 
 the judge or referee excuse him ; he must answer. See 
 F.orbes v. Willard, 54 Barb., 520 ; S. C, 37 How., 193. 
 
 In North Carolina it is held that a witness cannot 
 evade a question upon any ground of self-crimination. 
 
164 EXAMINATION OF ATTORNEY. 
 
 It must be answered, whatever its bearing upon the wit- 
 ness, and however strongly tending to show his fraudu- 
 lent conduct ; but his answer cannot be used against 
 him in any criminal proceeding whatever. 
 
 When a witness refuses to answer a question on the 
 ground that the answer will tend to convict him of a 
 crime, it is the province of the court to determine 
 whether a direct response to the question will have that 
 tendency or not. But the witness himself must judge 
 what his answer will be, and if he says on his oath that 
 he cannot answer without accusing himself, he cannot be 
 compelled to answer. Lafontaine v. Southern Under- 
 writers, 83 N. C, 132. The law in New York is in 
 accord with that of North Carolina, so far as crimes are 
 concerned. No one can be required to accuse himself 
 of a crime. But fraud is expressly made an exception 
 by this section (2460). 
 
 Examination of an Attorney or Counsel. 
 
 Although a party or witness is not excused from an- 
 swering a question on the ground that his examination 
 will tend to convict him of the commission of a fraud, 
 yet the law will not permit an attorney or counsel of 
 the party or witness to disclose information which he 
 acquired from him while acting in that capacity, 
 although the information so acquired relates to the 
 commission of a fraud. See Bacon v. Frisbie, 80 N. Y., 
 399. The Chancellor in the Bank of Utica v. Merse- 
 reau, 3 Barb., ch. 598, deprecates the existence of this 
 rule, which protects an attorney who gives professional 
 advice or assistance to a client in the perpetration of a 
 fraud upon creditors, or in violation of any law of the 
 State. Yet he is obliged to recognize and enforce the 
 rule. 
 
 The rule as laid down in i Greenleaf's Evidence, 
 § 237, and approved by the courts, is as follows : The 
 
COMMUNICATION TO ATTORNEY. 1 65 
 
 confidential counsellor, solicitor, or attorney of the 
 party cannot be compelled to disclose papers delivered 
 or communications made to him in that capacity. This 
 protection is not qualified by any reference to proceed- 
 ings pending or in contemplation. If touching matters 
 that come within the ordinary scope of professional 
 employment, they receive a communication in their ' 
 professional capacity either from a client or on his 
 account, and for his benefit in the transaction of his 
 business, or, which amounts to the same thing, if they 
 commit to paper in the course of their employment in 
 his behalf, matters which they know only through their 
 professional relation to their client, they are not only 
 justified in withholding such matters, but bound to 
 withhold them, and will not be compelled to disclose 
 the information or produce the papers in any court of 
 law or equity either as a party or as a witness. See 
 Graham v. the People, 63 Barb., 483. 
 
 Every communication which a client makes to his 
 legal adviser for the purpose of professional aid or ad- 
 vice upon the subject of his rights and liabilities is 
 protected, whether it relates to a suit pending or con- 
 templated, or to any other matter proper for such ad- 
 vice. It matters not that no immediate fee is paid, it 
 is sufficient if the conversation was drawn out in conse- 
 quence of the relation in which the parties stand to 
 each other. Bacon v. Frisbie, 80 N. ¥., 394 ; S. C, 36 
 Am. R., 627, with note rev'g in part S. C, 15 Hun, 26 ; 
 Root V. Wright, 84 N. Y., 72 ; S. C, 38 Am. R., 495 ; 
 Yates V. Olmstead, 56 N. Y., 632, rev'g S. C, 65 Barb., 
 462. It is for the court to determine from the facts ap- 
 pearing whether or not the attorney was acting at the 
 time in a professional capacity. Bacon v. Frisbie, supra. 
 The rule no doubt is founded in wisdom. Its object is 
 to leave the client perfectly free in his communications 
 with his legal adviser, in order to obtain his advice upon 
 
l66 THE CLIENT MAY WAIVE PRIVILEGE. 
 
 his rights and liabiHties. The client in whose behalf 
 this privilege exists may waive it by an express waiver, 
 § 836 of the present Code. But the seal of confidence 
 does not cover communications made to an attorney to 
 obtain professional advice or assistance in the com- 
 mission of a felony or other crime which is malum in se. 
 The Bank of Utica v. Messereau, supra. 
 
 The range of the judgment creditor's inquiry is not 
 limited or affected by the fact that his debtor has made 
 an assignment under the statutes of the State for the 
 benefit of his creditors. He may extend his investiga- 
 tions back to a time anterior to the assignment, the 
 same as if it had not been executed, and he may also 
 inquire into the character and bona fides of the assign- 
 ment. Seligman v. Wallack, 6 N. Y. Civ. Pro. R., 232, 
 N. Y. Superior Court, Special Term, O'GORMAN, J. ; 
 Schneider v. Altman, 8 N. Y. Civ. Pro. R., 242 ; Daily 
 Register of September 7, 1885, N. Y. City Court, Gen- 
 eral Term; overruling; Bacon v. Goldsmith, i City 
 Court R., 462, Special Term. 
 
 A witness cannot stop the examination by testifying 
 that he bought the judgment debtor's property which 
 is the subject of the inquiry at its full value. The 
 judgment creditor is entitled to a complete discovery 
 of the facts of such purchase. He may show, if possi- 
 ble, that the purchase, though stated by the witness to 
 have been at the full value of the property, was not 
 made in good faith, and not valid as against him as 
 judgment creditor. Mechanics' and Traders' Bank v. 
 Healey, 14. N. Y. W. Digest, 120 Supreme Court, Gen- 
 eral Term ; Sandford v. Carr, 2 Abb., 462, Davies, J. 
 
 When it appeared that the debtor had sold portions 
 of his property at its full value, an inquiry as to the 
 name of the purchaser was held to be immaterial. 
 Williams V. Carroll, 2 Hilt., 438. But under the more re- 
 cent decisions, such a question would not be excluded 
 
EXTENT OF INQUIRY. 1 6/ 
 
 as immaterial. But the court said in the same case 
 (WilHams v. Carroll) that where it appeared that the 
 debtor had sold property for less than its value, with a 
 proviso for repurchase, the question would be material. 
 It was held in some old cases that the extent of the 
 creditor's inquiry was in great measure left to the good 
 sense of the ofificer who conducts it. Le Roy v. 
 Halsey, i Duer, 589 ; S. C, i Code R. {N. S.), 275, and 
 II .A^. Y. Leg. Obs., 252, Mason, J.; Van Wyck v. 
 Bradley, 3 Code R., 157. But these decisions are 
 greatly limited by the amendment, revision, and later 
 decisions above mentioned in this section, which give 
 the creditor the right to a full and thorough ex- 
 amination into his debtor's pecuniary situation and the 
 disposition which he has made of his property. In 
 this case (Le Roy v. Halsey) the debtor was asked : 
 " Are you a housekeeper?" to which he replied : " My 
 wife has a lease of the premises on which I reside, and 
 owns the furniture, and I reside with her, she having a 
 separate estate." The answer was objected to, but the 
 judge held the defendant was not bound to answer yes 
 or no, but might explain his position. Where the ques- 
 tion, put to the debtor, was as to the amount of encum- 
 brances on his property at a certain day — some six 
 months before the examination — his answer was, that 
 he was unable to give the information. Held that ad- 
 mitting the question was proper, the answer would not 
 be deemed evasive. Wicker v. Dresser, 14 How., 465, 
 PeabODY, J. A denial by the debtor that he has any 
 property except necessary wearing apparel is not suffi- 
 cient. He must give a particular account of it, to en- 
 able the court to judge whether it is wholly exempt or 
 not. Brown v. Morgan, 3 Edw., 278 ; Gregory v. Valen- 
 tine, 4 Id., 282. It seems that questions may be asked 
 of the debtor as to the source from which and the 
 means by which he acquired his property. Forbes v. 
 
l68 INQUIRY CANNOT EXTEND TO WHAT. 
 
 Willard, 54 Barb., 520 ; S. C, 37 How., 193 ; Le Roy v. 
 Halsey, i Duer, 589; S. C, i Code R. (N. 5.), 275, and 
 II N. Y. Leg. Obs., 252, supra. 
 
 But the inquiry cannot extend to property which the 
 judgment debtor acquired or earned since the proceed- 
 ings were instituted, unless the property so acquired is 
 the equivalent of means owned by him previously. 
 
 In proceedings instituted before return of execution, 
 or by a warrant of arrest, if the additional allegations 
 in the affidavit upon which the order was made or the 
 warrant issued are proved, the examination of the 
 debtor and witnesses is as thorough and extensive as 
 ' in proceedings after return of execution. 
 
 In proceedings against the debtor or bailee of the 
 judgment debtor, the inquiry extends to every form of 
 indebtedness due from him to the judgment debtor, and 
 to every species of personal property in his hands be- 
 longing to the debtor, whether the same is claimed to 
 be exempt from sale on execution or not ; for the judge 
 is to determine that fact. See Brown 71. Morgan and 
 Gregory v. Valentine, supra. Or it may be necessary 
 to determine the claim of exemption by a suit. Dick- 
 inson V. Onderdonk, 18 Hun, 479; S. C, 8 N. Y. W. 
 Digest, 526, General Term. 
 
 The judgment creditor is entitled to extend his in- 
 quiry back to the time when his claim against the judg- 
 ment debtor accrued ; because if the third party owed 
 the debtor at any time since then, and the debt has 
 been released or compromised by fraud, or without any 
 or adequate consideration, the creditor may have such 
 release or compromise set aside in an action brought 
 for that purpose, and have the proceeds applied toward 
 the satisfaction of his judgment. So also if the judg- 
 ment debtor has at any time since then made any as- 
 signment or other transfer of property to the third 
 party in fraud or without any or adequate considera- 
 
ANSWER NOT TO BE USED IN WHAT. 169 
 
 tion, he may bring an action to have the same set aside 
 or the money paid by the third party adjudged a mere 
 lien upon the property or proceeds, or for some other 
 appropriate relief. 
 
 When the third party claims a lien on the property 
 of the judgment debtor in his hands, he may be ex- 
 amined as to the manner in which and the time when 
 the same came into his possession, and also as to the 
 extent and nature of the lien, but not further. Barcu- 
 lows V. Protection Co. of N. J., 2 Code R., 72. In 
 Tompkins Co. Bank v. Trapp, 21 How., 17, a county 
 judge held that if the third party denies generally that 
 he is indebted or has any property belonging to the 
 judgment debtor, the inquiry must stop ; and Van 
 Wyck V. Bradley, 3 Code R., 157, decides that where the 
 third party claims the whole property alleged to belong 
 to the debtor, he need answer no further, although he 
 may still be required to state distinctly the measure of 
 his claim, but not what his title is. These decisions, so 
 far as they meant to limit the creditor's inquiry, have 
 been overruled by Clapp v. Lathrop, 23 How., 423 ; 
 Forbes v. Willard, 54 Barb., 520; S. C, 37 How., 193 ; 
 and other later decisions, which authorize the same 
 thorough and extensive examination in proceedings 
 against a third party as to debts due and personal prop- 
 erty in his hands belonging to the judgment debtor 
 as in proceedings against the latter.- 
 
 In California it is held that a garnishee or third per- 
 son can only be required to answer as to his liability 
 to the debtor at the time of the service of the garnish- 
 ment upon him. Norris v. Burgoyne, 4 Cal., 409. 
 
 The Use of Examination in Actions, etc. 
 
 It was held before the amendment of 1 881 to § 2460 
 of the Code of Civil Procedure that the debtor's ex- 
 amination in these proceedings could not be used 
 
170 ANSWER MAY BE USED WHERE. 
 
 against him as evidence of fraud in any other suit or 
 proceeding. Kieleyz'. Dusenbury, 2 Abb. (N. C), 360, 
 N. Y. Superior Court, Special Term ; Bolen v. People, 
 17 Hun, 366; Loomis v. The People, 19 Hun, 601; 
 People V. Spier, 12 Hun, 70. But that amendment 
 now limits the exclusion of answers given in these pro- 
 ceedings to a criminal action and criminal proceedings. 
 
 The examination of the judgment debtor may be 
 used against him in a civil action. Dusenbury v. Du- 
 senbury, 63 How., 349, N. Y. Superior Court, General 
 Term; Wright i/. Nostrand, 94 iV. Y., 31, decided under 
 the former Code. 
 
 The examination of a judgment debtor taken in 
 proceedings instituted before September i, 1880, may 
 be introduced in evidence in an action against him and 
 others to set aside a deed of conveyance as fraudulent. 
 § 292 of the former Code was then in force, and it did 
 not prohibit such use of the examination. Baker v. 
 McLoughlin, 19 N. V. W. Digest, 29; Bush v. Preston, 
 20 Id., 190, Supreme Court, General Term. 
 
 The examination of a judgment debtor taken in pro- 
 ceedings supplementary to execution may be used as 
 evidence on the trial of a creditor's action brought 
 against him and other defendants to set aside a transfer 
 of property made by the judgment debtor on the 
 ground of fraud ; it may be introduced as admissions 
 made by him where he is called as a witness for the de- 
 fendants, and also against all the defendants to affect 
 his credibility. Wright t^. Nostrand, 94 tV. K, 31. This 
 decision was rendered in an action tried while the 
 former Code was still in force. 
 
 In Bennett v. McGuire, 58 Barb., 625, S. C, 5 Lans., 
 183, which was an action brought against the judgment 
 debtor, his assignee and the debtor's wife, to whom 
 the assignee had in turn assigned the property in ques- 
 tion, in order to set aside the assignment of a bond and 
 
PROCEEDINGS, HOW DISCONTINUED. 171 
 
 mortgage on the ground of fraud ; the General Term 
 held that the examination of the debtor taken in sup- 
 plementary proceedings by the plaintiff was not com^ 
 petent evidence as against the assignee or the wife. 
 This action was tried in January, 1871. 
 
 It was held in New Jersey that an examination of a 
 judgment debtor taken in supplementary proceedings 
 in the State of New York, under the laws thereof and 
 placed on file, may be fairly treated in another court 
 as of the nature and character of a judicial proceeding, 
 and capable of authorization under the Act of Con- 
 gress. In re Rooney, 6 Nat. Bank. Reg., 163. 
 
 In North Carolina the answer of a witness to a ques- 
 tion in these proceedings cannot be used against him 
 in any criminal proceeding whatever. Lafontaine v. 
 The Southern Underwriters, 83 N. C, 132. 
 
 The statutes of some of the States which authorize 
 these proceedings make similar provision to that con- 
 tained in § 2460 of the N. Y. Code of Civil Procedure, 
 in respect to the extent and thoroughness of the ex- 
 amination of parties and witnesses, and that the answer 
 of the person testifying shall not be used as evidence 
 against him in any criminal prosecution or proceeding. 
 
 SECTION VI. 
 
 How Proceedings are Discontinued or Dismissed in 
 New York. 
 
 § 2454. " A special proceeding, instituted as prescribed 
 in this article, may be discontinued at any time upon 
 such terms asjustice requires, by an order of the judge, 
 made upon the application of the judgment creditor. 
 Where the judgment creditor unreasonably neglects or 
 
1/2 PROCEEDINGS, HOW DISCONTINUED. 
 
 delays to proceed, or where it appears that his judg- 
 ment has been satisfied, his proceedings may be dis- 
 missed, upon Hke terms, by a Hke order, made upon the 
 appHcation of the judgment debtor, or of the plaintiff 
 in a judgment creditor's action against the debtor, or 
 of a judgment creditor who has instituted either of the 
 special proceedings authorized by this article. Where 
 an order appointing a receiver or extending a receiver- 
 ship has been made in the course of the special proceed- 
 ing, 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 re- 
 ceivership, as far as they can conveniently be ascer- 
 tained." 
 
 This section is new. Now, the proceedings can only be 
 discontinued or dismissed by an order, like an action. 
 The application for such an order may be made (i) by 
 the judgment creditor; (2) by the judgment debtor; (3) 
 by the plaintiff in a judgment creditor's action against 
 the same debtor; (4) by a judgment creditor who has in- 
 stituted either of these special proceedings against the 
 debtor; and in certain cases, mentioned in the section, 
 notice of the application is to be given. The motion 
 ought in all cases to be made upon an affidavit or other 
 proof, and upon notice where an adverse party has ap- 
 peared or is entitled to be heard on the application. 
 This section does not expressly authorize a third party, 
 a debtor or bailee of the- judgment debtor, against 
 whom proceedings are instituted, to move to discon- 
 tinue them, but he is within the spirit of the provision 
 and of the proceedings. No judge would hesitate on 
 that ground to grant the order. 
 
 The proceedings now do not fall through or drop 
 out of court ; nor is the injunction dissolved or the lien 
 or priority of the proceedings lost by the failure of the 
 judgment creditor to appear or go on at a time and 
 
PROCEEDINGS DO NOT LAPSE. 1 73 
 
 place designated, or to adjourn the same, or by an ad- 
 journment without the presence of the party to be ex- 
 amined ; nor can they be abandoned at the pleasure of 
 the judgment creditor, as a majority of cases on this 
 point held under the old Code, might happen or be 
 done. 
 
 See Bennett w. McGuire, 58 Barb.,62'i ; S. C, S Lans., 
 183 ; Ballou v. Boland, 14 Hun, 355 ; Gaylord v. Jones, 
 7 Hun, ^%iO; Schanck v. Conover, 56 How., 437; 
 Thomas v. Kircher, 15 Abb. {N. 5.), 342 ; Squire v. 
 Young, I Bosw., 690; De Comeau v. The People, etc., 
 "J Robt., 498; Hawes v. Barr, Id., 452, General Term; 
 Carter v. Clarke, Id., 490. 
 
 To the contrary is Underwood v. Sutcliffe, 10 Hun, 
 453, General Term, also decided under the former Code, 
 in which it was held that the court does not lose juris- 
 diction of the proceedings by a failure of either party 
 or of both to appear on a day to which they have been 
 adjourned by the judge or referee, but the jurisdiction 
 continues until the judgment is satisfied or the proceed- 
 ings are ended by the order of the judge or of a com- 
 petent court. However, it would be irregular to pro- 
 ceed upon the original order after such a failure to 
 appear. 
 
 This case was reversed in the Court of Appeals, but 
 not on this point. See S. C, TJ N. Y., 58. The same 
 was decided in principle in Wright v. Nostrand, 94 
 N. F., 31 ; Allen v. Starring, 26 How., 57, Supreme Court, 
 General Term ; Stanly v. Lovett, 14 Hun, 412, General 
 Term. In Allen v. Starring, supra, a referee had been 
 appointed to take the examination of the judgment 
 debtor and witnesses. He failed to attend at the time 
 and place designated. The court held that the pro- 
 ceedings had not thereby fallen through, nor had the 
 injunction become inoperative, but that the proceed- 
 ings were still pending before the judge who instituted 
 
174 PROCEEDINGS DO NOT LAPSE. 
 
 them ; that he could require the debtor to attend on 
 some future day and before another referee, and that 
 it was irregular to obtain a new order from another 
 judge, thus instituting second proceedings. 
 
 It was still a question under the former Code whether 
 or not upon the judge's non-attendance at the time and 
 place designated in the order the proceedings lapsed, so 
 far at least as to render the injunction inoperative. See 
 Holstien 7^. Rice, i^ Abb., 307; S. C, 24 How., 135; 
 Reynolds v. McElhone, 20 How., 454. 
 
 The above cited case of Allen v. Starring was hardly an 
 authority upon this question, because there the referee 
 failed to attend ; and the proceedings are not pending 
 before a referee, only the examination of parties and 
 witnesses, or a reference to ascertain certain facts, is 
 pending before him. The proceedings themselves con- 
 tinue before the judge who instituted them. See Con- 
 way V. Hitchins, 9 Barb., 378. 
 
 §2454 of the Code of Civil Procedure settles this 
 question. Now upon the service of the order made by 
 a judge of competent jurisdiction in the premises on 
 the judgment debtor or third party, the proceedings are 
 commenced, and thereafter they remain in full force 
 and effect in all respects like an action, and can only 
 be discontinued or dismissed by an order. 
 
 The judge or referee may adjourn the proceedings in 
 the absence of the judgment debtor, although no one 
 is present to represent him ; but if his attendance on the 
 adjourned day is required, the order of adjournment 
 must be served on him personally to bring him into 
 contempt for neglecting to attend. 
 
 Under the former Code delay in the prosecution of 
 the proceedings was held an abandonment of them. 
 Squire v. Young, i Bosw., 690, General Term. In 
 Stanly v. Lovett, 14 Hun, 412, the court at General 
 Term decided that a delay of six months after taking 
 
TO BE DISCONTINUED BY ORDER. iy$ 
 
 the default of the judgment debtor was hot per se 
 an abandonment of the proceedings. But under the 
 present Code, while negligence or undue delay in 
 the prosecution of proceedings will not amount to 
 an abandonment thereof ; yet it may afford sufficient 
 ground for an order dismissing the proceedings or de- 
 claring them abandoned. But it is not so with the 
 injunction, which is usually incorporated in the order 
 instituting the proceedings, or the lien or priority of 
 the proceedings. Negligence or undue delay in the 
 prosecution of this remedy, even under §2454, may 
 render the injunction inoperative, and lose the lien or 
 priority gained by the commencement of the proceed- 
 ings. See post, ch. 3, § i, and ch. 6, § i, " Liens and Pri- 
 orities." 
 
 Under the former Code, under the head of abandon- 
 ment, the court held that on the return of the order 
 for the examination of the judgment debtor and his 
 non-appearance the creditor might continue the pro- 
 ceedings by another order, or commence new proceed- 
 ings by an order of the same judge or another judge, 
 and that such order was an abandonment of the former 
 proceedings. Schanck v. Conover, 56 How., 437, Su- 
 preme Court, Special Term, and in Bennett v. McGuire, 
 58 Barb., 625, the General Term held that a judgment 
 creditor, after instituting proceedings against his debtor 
 and before the appointment of a receiver, might aban- 
 don them and commence an action in his own name 
 against him and his assignee to set aside a bond and 
 mortgage as fraudulent and without consideration. See 
 also De Comeau v. The People, 7 Robt., 498 ; Carter v. 
 Clarke, Id., 490. 
 
 Under the present Code it would be necessary in 
 such cases to enter an order dismissing the proceedings 
 or declaring them abandoned. 
 
 In Gere v. Dibble, 17 How., 31, the Supreme Court, 
 
176 WAIVER OF DEFAULT. 
 
 General Term, decided that after the appointment and 
 qualification of a receiver in these proceedings, it was 
 competent for the judgment creditor to institute a 
 creditor's action for his own benefit and in his own 
 name against his judgment debtor and others, making 
 the receiver a party defendant thereto, instead of avail- 
 ing himself of the receiver to bring the action. 
 
 Waiver of Default. 
 
 Under the former Code, where the proceedings had 
 fallen through from any cause, they could be restored 
 by the party appearing and submitting to examination 
 or to the discretion of the judge or referee, and the 
 injunction was thereby continued over the hiatus which 
 had occurred by the default. See Reynolds v. Mc- 
 Elhone, 20 How., 454. 
 
 Dismissing Proceedings. 
 
 Where a referee is appointed to take the examina- 
 tion of a party and witnesses, it is irregular to dismiss 
 the proceedings pending before the judge before the 
 referee has made his report, and without notice by the 
 moving party to the judgment creditor of such motion. 
 Kennedy v. Norcott, 54 How, 87, Supreme Court, 
 Special Term. 
 
INJUNCTIONS, COSTS, ENFORCEMENT OF ORDERS. 1 77 
 
 CHAPTER III. 
 
 INJUNCTIONS, COSTS, ENFORCEMENT OF ORDERS, ETC. 
 
 Section i. Judge may enjoin transfer of property, etc. 
 " 2. Costs. 
 
 " 3. Disobedience to orders, how punished. 
 " 4. Practice in contempt proceedings. 
 " 5. Proceedings on judgments against joint debtors. 
 " 6. Proceedings commenced before one judge may be contin- 
 ued before another. 
 
 SECTION I. 
 
 The Judge may Enjoin Transfer, etc., of Property. 
 
 § 2451. " The judge by whom the order or warrant 
 was granted or to whom it is returnable may make an 
 injunction order, restraining any person or corporation, 
 whether a party or not a party to the special proceed- 
 ing, from making or suffering any transfer, or other dis- 
 position 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 exam- 
 ined, until further direction in the premises. Such an 
 injunction order may be made simultaneously with 
 the order or warrant, by which the special proceedings 
 are instituted, and upon the same papers ; or after- 
 ward upon an afifidavit, showing sufficient grounds 
 therefor. The judge or the court may, as a condition 
 of granting an application to vacate or modify the in- 
 junction order, require the applicant to give security in 
 such a sum and in such a manner as justice requires." 
 
178 WHEN INJUNCTION MAY BE MADE. 
 
 This section includes the provisions as to injunctions 
 contained in §§ 298 and 299 of the former Code. But 
 it is more explicit and comprehensive. It empowers 
 the judge to make this restraining order at any time, 
 and make it against a person who is not a party to the 
 proceedings, thus superseding the case of Edmonston 
 V. McLoud, igBarb., 361, in which the court held that 
 the injunction order served upon a third person not a 
 party to the proceedings did not bind him, although it 
 might serve as a notice. 
 
 It is worthy of remark here that the subjects of in- 
 junctions and proceedings, as for a contempt, in this 
 work are treated of only so far as they are deemed re- 
 spectively to concern proceedings supplementary to 
 execution. 
 
 This section (2451) expressly provides that the in- 
 junction order may be made simultaneously with the 
 order or warrant by which the proceedings are insti- 
 tuted or afterward ; that when it accompanies the or- 
 der or warrant, it may be made upon the same papers ; 
 but if afterward, then upon an affidavit showing suffi- 
 cient grounds therefor ; while § 2452 of the present Code 
 prescribes how the injunction order is to be served. 
 Some doubts which existed as to the practice under the 
 former Code are therefore cleared up. See Green v. 
 Bullard, 8 How., 313. 
 
 On these points the practice followed in filing a cred- 
 itor's bill had been adopted under the former Code, 
 and the injunction was granted against a judgment 
 debtor or a third party in the order or warrant by 
 which the proceedings were instituted, and upon the 
 same papers, the facts entitling the judgment cred- 
 itor to the proceedings being deemed also sufficient 
 to entitle him to the injunction; and a copy of the 
 papers upon which the judge granted the order was 
 served on the party enjoined. 
 
WHO MAY GRANT INJUNCTION. 1 79 
 
 When a third party, proceeded against under § 294, 
 former Code, claimed the whole property in question, 
 but refused to give the origin or nature of his claim, it 
 was held that such refusal might be considered a rea- 
 son for an injunction against him. Van Wyck v. Brad- 
 ley, 3 Code R., 157. 
 
 This section (2451) prescribes expressly upon what 
 evidence the restraining order shall be made, and how 
 it shall be served. 
 
 Who may Grant the Injunction Order. 
 
 This order may be made by the judge who grants 
 the order or warrant by which the proceedings are in- 
 stituted or by the judge to whom the same is return- 
 able, or before whom the proceedings are continued. 
 It does not need the seal of a court or the signature 
 of a clerk — only the signature of a judge. 
 
 In Wisconsin a court, judge, or commissioner may 
 grant the injunction, and that, too, in the first instance, 
 before the appointment of a receiver. In re Perry, 30 
 Wis., 268. 
 
 Security. 
 
 No security is required as a preliminary to the grant- 
 ing of the injunction. 
 
 Who Enjoined. 
 
 An injunction order granted against a party or per- 
 son by name, restraining him and his attorneys, agents, 
 and servants, but not served upon one of the latter or 
 brought to his knowledge, does not restrain him, so as 
 to render him liable to punishment for a breach thereof. 
 But if he has knowledge of it, information of its con- 
 tents, or was present in court when it was made against 
 him, and knows what it prohibited him from doing, then 
 he is bound by it, although not served with it. Living- 
 ston V. Swift, 23 How., I, Supreme Ct., General Term; 
 
l8o THE DUTY OF A PERSON ENJOINED. 
 
 The People v. Compton, i Duer, 512,553; Same r. 
 Brower, 4 Paige, 405 ; Hull v. Thomas, 3 Edw., 236. 
 He is liable for a breach of the injunction because he 
 is an attorney, agent, or servant of the party enjoined. 
 Batterman v. Finn, 32 How., 501, Supreme Ct., General 
 Term ; S. C, 34 Id., 108, General Term. 
 
 It is the duty of a person restrained not only to re- 
 frain from doing the act which is forbidden him, but 
 also to restrain his employes from doing it. A mere 
 passive and personal obedience to the order will not 
 suffice. Where by his own negligence and inattention 
 one who has been enjoined permits his agents or part- 
 ners or employes to do the prohibited acts, he may be 
 punished as for contempt, in disregarding the injunction. 
 Poertner v. Russell, 33 Wis., 193. High on Injunc- 
 tions (2d ed.), § 1438. 
 
 Where an injunction against a corporation is served 
 upon the president, he should prevent the other officers 
 from doing anything, as such officers, contrary to it ; and 
 if he conceals the injunction from them, and allows 
 them to act in violation of it, it is a breach thereof on his 
 part. Bank Commissioners v. City Bank of Buffalo, 
 cited in i Barb., Ch. Prac, 636, and approved in People 
 V. Sturtevant, 9 N. Y., 263, 277. 
 
 An injunction addressed exclusively to a corporation 
 operates upon those of its members and officers by 
 whom its corporate will is manifested and corporate 
 acts are performed, and creates a duty for which they 
 as parties to the suit are personally responsible. Davis 
 V. Mayor, etc., of New York, i Duer, 451, affirmed as 
 People, etc. v. Sturtevant, supra. 
 
 The Order. 
 
 The injunction order should show on its face all those 
 things which it is necessary for the party or person en- 
 joined to know in order to obey it, and should plainly 
 
THE INJUNCTION ORDER. l8l 
 
 indicate to him specifically all the acts which he is re- 
 strained from doing, without calling upon him for in- 
 ference or any conclusions, only to be arrived at by a 
 more or less uncertain process of reasoning, and about 
 which the parties might well differ in opinion either as 
 to the facts or the law. The acts prohibited must be 
 the doing of some tangible or distinct thing or series 
 of things to be clearly pointed out or described. Lyon 
 V. Botchford, 25 H^un, 57, General Term ; also German 
 Sav. Bk. V. Habel, 80 TV. Y., 273 ; S. C, 58 How., 336. 
 
 Service of the Injunction Order. 
 
 This is prescribed in § 2452 of the Code of Civil Pro- 
 cedure — namely, the original order under the hand of 
 the judge making it must be exhibited to the person to 
 be served, and 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 de- 
 livered where a summons is personally served upon a 
 corporation, unless the officer is specially designated 
 by the judge, as prescribed in § 2444 of the present Code. 
 
 An injunction addressed in the ordinary way to a 
 corporation and its agents, etc., and served on the presi- 
 dent, binds it and all persons who act for it. The Peo- 
 ple V. Sturtevant, supra. 
 
 Knowledge of the injunction, information of its con- 
 tents, presence in court where it was made, without the 
 original being shown, would be fully sufficient to im- 
 pose upon the defendant the duty of obeying it, at least 
 so far as the pecuniary rights of the creditor are con- 
 cerned. Livingston v. Swift, 23 How., i ; The People 
 V. Compton, i Duer, 512; The People v. Brower, 4 Paige, 
 405 ; Hull V. Thomas, supra, and 2 Barb., Ch. Prac, 275. 
 
 When an Injunction Takes Effect. 
 
 Atkinson v. Sewine, 43 How., 84, S. C, 1 1 Abb. {N. 5.), 
 
1 82 WHEN THE INJUNCTION TAKES EFFECT. 
 
 384, N. Y. Common Pleas, Special Term, holds that the 
 injunction binds the debtor's property from the time it 
 is made ; and that any property acquired thereafter, 
 even before the service of the injunction, is not affected 
 thereby ; and consequently any disposition or transfer of 
 existing property made by the debtor after the order is 
 granted is a violation of the injunction. The judge 
 cites as his authority Campbell v. Genet, 2 Hilton, 290 ; 
 and the latter cites Stewart v. Foster, i Hilton, 505, 
 both at General Term. See also Potter v. Low, 16 How., 
 549, Supreme Court, Special Term, which cites Caton v. 
 Southwell, 13 Barb., 335, at General Term. This last one, 
 which is the pioneer decision, is based on the rule of the 
 Court of Chancery, that no property could be reached 
 by a creditor's bill acquired after the filing thereof. But 
 with a creditor's bill, the question was. When is the suit 
 begun, so as to determine among other things the pri- 
 ority between judgment creditors filing separate bills ; 
 and again, when a bill was once filed, there was a pub- 
 lic record of the commencement of proceeding, while 
 the mere making of an order for examination with an 
 injunction therein, which may remain in the pocket of 
 the judgment creditor for weeks, is a notice to no per- 
 son. Sands v. Roberts, 8 Abb., 343, N. Y. Common Pleas, 
 Special Term, holds the contrary of the above decisions 
 — namely, that these proceedings only reach the property 
 which the judgment debtor had at the time of the ser- 
 vice upon him of the order for his examination. See 
 also Gerregani v. Wheelwright, 3 Abb. (N. S.), 264, 
 N. Y. Common Pleas, Special Term. 
 
 All the above decisions were made under the former 
 Code. The Code of Civil Procedure clearly settles this 
 question, to wit, that proceedings are commenced only 
 by the service of the order upon the person proceeded 
 against, and the injunction takes effect only from the 
 date of the service thereof. See §§ 2457 and 2469. 
 
CONTINUANCE OF INJUNCTION. 1 83 
 
 And yet Atkinson v. Sewine, supra, was equitably de- 
 cided. In Gerregani v. Wheelwright, supra, the judg- 
 ment debtor testified that he had no money of any ac- 
 count when the order was served on him ; that he re- 
 ceived money ($624.99) since then, and spent it. Held, 
 that the debtor could not be punished for violating the 
 injunction on that evidence ; that the plaintiff should 
 affirmatively show that this money was earned by or was 
 due to the debtor at the time of the service of the order 
 for his examination. 
 
 See ante, " Serving of the Injunction Order ; " that 
 where a party has knowledge of an injunction issued 
 against him, information of its contents, or is present 
 in court when it is made, and knows what it prohibits 
 him from doing, the injunction takes effect as to him, 
 although no order had been served upon him. 
 
 Continuance of an Injunction. 
 
 The continuance of an injunction in force depends 
 upon its terms. Without express limitation contained 
 in it, a restraining order continues in force while the 
 proceedings against the enjoined party, or in which he 
 is restrained are pending, or until it is vacated or dis- 
 solved by another order ; or, if a receiver is appointed in 
 the same proceedings, until the receivership is super- 
 seded. Where an order is made under § 2447 of the 
 Code of Civil Procedure, directing the judgment debtor 
 or other person to pay money or deliver articles of per- 
 sonal property of the judgment debtor to a sheriff or a re- 
 ceiver, the injunction continues in force until the order 
 is complied with. However, when a receiver is ap- 
 pointed, or such order, under § 2447, i^ niade, the better 
 practice is to incorporate the injunction or a new one 
 in the order appointing the receiver or extending his re- 
 ceivership to the proceedings before the judge, or in 
 the order made under § 2447. 
 
1 84 LIMITED INJUNCTION. 
 
 A Dormant Injunction. 
 
 Where the creditor's judgment has been satisfied, the 
 injunction granted in the proceedings expires without 
 an order vacating it. When the judgment creditor un- 
 reasonably neglects or delays to prosecute his proceed- 
 ings, his injunction may become dormant, and the 
 person restrained may no longer be required to obey it, 
 or punishment for disregarding it may be greatly miti- 
 gated. This follows from the summary nature of the 
 proceedings. A judgment creditor who gives no 
 security in obtaining his injunction should not be per- 
 mitted to keep it hanging over the heads of third 
 parties and other persons for an indefinite time. 
 
 A Limited Injunction. 
 
 Where the order restrained a third person from inter- 
 fering with the judgment debtor's property in his 
 possession until further order in the premises, it was 
 held that an order appointing a receiver was such 
 further order ; it is the final order ; and any restraint 
 desired thereafter should be inserted in the order ap- 
 pointing the receiver, the first injunction being a mere 
 preliminary one. People v. Randall, 73 N. V., 416. 
 
 Although this section (245 1) prescribes this form of an 
 injunction — that is, " until further direction in the prem- 
 ises," in practice this limitation is usually omitted, 
 and wisely, too ; for it may lead to a lapse of the 
 restraint as occurred in the above case — People v. 
 Randall. 
 
 Proceedings Lapsing. 
 
 As proceedings under the Code of Civil Procedure 
 remain in force until discontinued by an order, the in- 
 junction does not become inoperative by the failure 
 of the parties at any time to adjourn the same. Under 
 the former Code some decisions were to the efTect that 
 the injunction falls in such case. See Thomas v. 
 
PROCEEDINGS LAPSED OR ABANDONED. 1 85 
 
 Kircher, 15 Abb.{N.S.), 342; Squire t;. Young, i Bosw., 
 690 ; Hawes v. Barr, 7 Robi., 452, General Term. While 
 others hold that even the failure of the judge or referee 
 to be present at the time and place designated for the 
 examination of the party enjoined does not dissolve the 
 injunction, unless the proceedings thereby lapse or are 
 vacated. Reynolds v. McElhone, 20 How., 454 ; Allen 
 V. Starring, 26 Id., 57. 
 
 So, where the proceedings were stayed upon in 
 order to show cause why the judgment on which 
 they were based should not be vacated, and the 
 same were thereupon on motion vacated, but on 
 appeal the order was reversed, it was held that the in- 
 junction continued in full force ; that the proceedings 
 had not lapsed or been abandoned under the circum- 
 stances by the neglect to adjourn them pending the 
 appeal, and an interference with his property by the 
 judgment debtor in the mean while was a violation of 
 the restraining order. Woolf v. Jacobs, 36 N. Y., 
 Superior Ct. {4 J. and Sj>), 408. Here the judgment 
 debtor conveyed away property after the Special Term 
 had vacated the judgment, and before the General Term 
 decision had been made reversing the order of the 
 Special Term and reinstating the judgment. This, a 
 later decision, limits and qualifies those of Squire v. 
 Young ; Hawes v. Barr, and some others of the same 
 court, which held that the proceedings fell through or 
 expressed a doubt whether they did not fall through in 
 case they were not regularly adjourned to a definite 
 time where an appeal is taken. But if the proceedings 
 are abandoned, the injunction falls, and is not afterward 
 revived by the commencement of a creditor's action. 
 Ballou V. Boland, 14 Hun, 355, General Term. If, 
 however, the proceedings which have lapsed from any 
 cause are restored by a waiver of the default, the in- 
 junction is revived, and it relates back over the hiatus 
 
1 86 IRREGULAR PROCEEDINGS — PERSONS NOT PARTIES. 
 
 to the date of the service of it, and binds the enjoined 
 party or person as from that date. Reynolds v. 
 McElhone, supra. 
 
 In Wilson v. Andrews, 9 How., 39, vahd proceedings 
 were instituted by a warrant of arrest, and an order 
 was also made at the same time under § 292 (former 
 Code), with an injunction incorporated in it. The order 
 was afterward set aside as void, but the injunction 
 contained in it was upheld, it being deemed indepen- 
 dent of the order and the proceedings instituted by war- 
 rant being valid. 
 
 Irregular Proceedings. 
 
 Where the proceedings are merely irregular, the in- 
 junction is only voidable, and cannot be disregarded. 
 But where the former are void, the injunction also is void, 
 and need not be obeyed. See Reed v. Champagne, 
 5 N. V. W. Digest, 227 ; Kennedy v. Weed, 10 Abb., 62. 
 An injunction, however hastily or improvidently grant- 
 ed, is not void. It is valid until annulled by the court 
 granting it, and till then is entitled to be obeyed ; but 
 when it is void from utter want of jurisdiction, it may 
 be disregarded. Erie R'way Co. v. Ramsey, 45 N. Y., 
 637, affirming 3 Lans., 178; People v. Bergen, 53 
 Id., 404; IS Abb. {N. S), 97; People v. Sturte- 
 vant, 9 N. Y., 263, affirming i Duer, 5x2; Higbie v. 
 Edgarton, 3 Paige, 253 ; People v. Spalding, 2 Id., 
 326 ; Sullivan v. Judah, 4 Id., 444 ; Arctic Fire Ins. Co. 
 V. Hicks, 7 Abb., 204; Smith v. Reno, 6 How., 124; 
 Grimm v. Grimm, i E. D. Smith, 190. 
 
 Persons not Parties. 
 
 Under § 2451 of the present Code persons not parties 
 to the proceedings may be enjoined. Under the 
 former Code (§ 299) this could not be done. No 
 person could be enjoined who was not made a party 
 to the proceedings in which the restraining order was 
 
VACATING OR MODIFYING INJUNCTION. 1 87 
 
 granted. King v. Tuska, i Duer, 635 ; Edmonston v. 
 McLoud, 19 Barb., 356. 
 
 Vacating or Modifying Injunction. 
 
 The judge or court may vacate or modify the in- 
 junction order, and as a condition of granting the same 
 may require the apphcant to give security in such a 
 sum and in such a manner as justice requires (§2451 of 
 the present Code). An injunction order should be 
 vacated if upon all the evidence disclosed the court 
 would not have granted it in the first instance. 
 Moser v. Polhamus, 4 Abb. {N. S.), 442, Special Term, 
 Cardozo, J. 
 
 An irregularity in obtaining the injunction is not 
 waived by a motion to dissolve it. Wilkie v. Roch. and 
 S. L. R'way Co., 5 N. Y. W. Digest, 352. 
 
 A person enjoined who is not a party to the special 
 proceedings may make this motion, and have the in- 
 junction vacated or modiiied ; and where the judgment 
 creditor unreasonably neglects or delays to proceed, or 
 where it appears that his judgment has been satisfied, a 
 person enjoined may have the injunction vacated with- 
 out being required to give security. 
 
 On an application to vacate or modify an injunction, 
 notice of the motion must be given to the judgment 
 creditor or plaintiff in the proceedings. The motion 
 should be founded upon affidavits or other evidence, 
 assigning grounds for a dissolution or modification of 
 it, copies of which should be served with the notice of 
 the application. 
 
 Under the former Code a party aggrieved by the 
 injunction might upon motion have it dissolved or 
 modified on giving security satisfactory to the judge. 
 The motion was made on affidavits and notice to the 
 judgment creditor. Some ground had to be shown for 
 the application. 
 
1 88 WHAT INJUNCTION RESTRAINS. 
 
 What the Injunction Restrains. 
 
 It does not restrain the judgment debtor from receiv- 
 ing and applying to the support of himself or family, 
 or disposing of the proceeds of his earnings or property 
 acquired since the service of the injunction order upon 
 him ; nor does it restrain a third party, or any other 
 person, from paying to him money earned or delivering 
 to him personal property acquired after the service of 
 the injunction upon the former. The judgment creditor 
 has no right to inquire concerning money or property 
 gained or earned since the institution of the particular 
 proceedings {see ante, ch. ii, §5); nor can such 
 money or property be reached in these proceedings 
 either through an order made under § 2447 or through 
 a receiver's action ; for the receiver is only vested with 
 such property as the judgment debtor owned at the 
 time the particular proceedings were instituted or had 
 owned and fraudulently disposed of prior thereto. 
 Nor does the injunction order restrain the judgment 
 debtor from using or disposing of the earnings for his 
 personal services, rendered within sixty days next 
 before the institution of the proceedings against him, 
 where such earnings are necessary for the use of a 
 family wholly or partly supported by his labor. 
 
 Such earnings cannot be reached by the proceedings 
 in question. See § 2463 of the Code of Civil Procedure, 
 and post, § 2, ch. 11; Hancock v. Sears, 93 N. Y., 79 ; 
 S. C, 4 Civ Pro. R., 255 ; Sanford v. Goodwin, Daily 
 Register, M.z.rch.\\, 1881, Marine Ct., Special Term, 
 McAdam, J. 
 
 For like reason, the injunction will not restrain a 
 third party or any other person served therewith from 
 paying such earnings to the judgment debtor. Nor 
 does it restrain the judgment debtor from using or 
 disposing of property expressly exempt by law from 
 levy and sale by virtue of an execution, nor a third 
 
WHAT THE INJUNCTION RESTRAINS. 1 89 
 
 party or any other person served therewith from deliver- 
 ing such property to the judgment debtor, or otherwise 
 disposing of it at his direction. Hancock v. Sears, 
 supra, reversing S. C, 29 Hun, 96, and overruHng Newell 
 V. Cutler, 19 Id., 74; also Sanford v. Good^'m, supra. 
 
 But in all cases of using or disposing of property 
 claimed to be exempt, the judgment debtor or person 
 enjoined must show, when called upon in the proceed- 
 ings for this property, the facts constituting such exemp- 
 tion. See Hancock v. Sears, supra. In the case of 
 Newell V. Cutler, the General Term held that where the 
 judgment debtor was enjoined in the proceedings, he 
 could not touch his earnings, although necessary for 
 the support of his family, until the injunction was 
 vacated ; that his duty was to obey it while in force, 
 and leave his earnings uncollected. This decision is 
 overruled by that of Hancock v. Sears, supra. But by 
 using, delivering up, or disposing of such property, the 
 judgment debtor or person enjoined runs the risk of 
 not being able to show that the same was so exempt 
 upon a motion against him to pay the money or 
 deliver the personal property to a sheriff or receiver. 
 
 Neither does the injunction order restrain a trustee 
 who holds any money, thing in action, or other 
 property in trust for the judgment debtor, where the 
 trust has been created by, or the fund so held in 
 trust has proceeded from, a person other than the 
 judgment debtor, from paying or delivering such 
 money or property to the judgment debtor, because 
 such money or property cannot be reached in any of 
 these proceedings. See § 2463 of the Code of Civil 
 Procedure. Williams v. Thorn, 70 N. Y., 270 ; Locke 
 V. Mabbett, 2 Keyes,4.$7; S. C, 3 Abb., App., Dec. 68; 
 Campbell v. Foster, 35 iV. Y., 361 ; Graff v. Bon- 
 nett, 31 N. v., 9; Manning v. Evans, 19 Hun, 500; 
 McEwen v. Brewster, 17 Hun, 223 ; Morgan v. Von 
 
190 WHAT THE INJUNCTION RESTRAINS. 
 
 Kohnstamm, 9 Daly, 355 ; S. C, 60 How., 161, and 
 i\ N. Y. W. Digest, 181, General Term. 
 
 Where an injunction order had been served upon 
 a third party in proceedings against him to reach 
 money due a judgment debtor, it was held that the 
 service of the restraining order upon him constituted 
 no defence to an action for the same money brought 
 by the debtor, because the injunction did not stay 
 the action, and the defendant could take the order 
 of the court for the payment of the money, so as to 
 protect him from paying it over again. Glenville 
 Woollen Company v. Ripley, 43 N. Y., 206. 
 
 Where W. and J. filed their petition in bankruptcy 
 on July 5, 1873, at which time they had a balance to 
 their credit in bank, within two weeks thereafter sup- 
 plementary proceedings were instituted against the 
 bank on a judgment against them, and the usual in- 
 junction was obtained and served upon it. It was held 
 that by virtue of the Bankrupt Act, the title to this 
 deposit vested in the assignee on July 5, 1873 ; and the 
 injunction order subsequently served on the bank did 
 not restrain it from paying the balance of the account 
 over to him, as such balance was then no longer the 
 property of W. and J. Morris v. The First National 
 Bank of N. Y., 68 N. Y, 362. 
 
 The court in an action ordered a judgment in favor 
 of the defendant in another action to be set off against 
 judgments in favor of the plaintiff at a time when sup- 
 plementary proceedings and an injunction were pend- 
 ing against the latter by another party. Held, that the 
 defendant could not object to accepting costs and a re- 
 ceipt which the court ordered the plaintifif to give him, 
 on the ground that the latter would be violating the 
 injunction in performing these conditions. The acts 
 are authorized by the court, which had all the parties 
 before it, and besides the violation of the injunction, 
 
THE RULE OF CHANCERY. 191 
 
 if any, did not affect the defendant. Butler v. Niles, 
 35 How., 329, N. Y. Superior Ct., Special Term. 
 
 As to what acts, and what not, the injunction order 
 restrains, rule 195 of the old Court of Chancery appears 
 to be a safe guide as far as it goes. That rule is as fol- 
 lows : " No injunction issued upon any (such) creditor's 
 bill shall be construed to prevent the debtor from receiv- 
 ing and applying to the support of himself or his family 
 the proceeds of his earnings, subsequent to the service 
 of the injunction order on him ; nor from defraying the 
 expenses of the suit, or to prevent him from complying 
 with any order of this court made in any other cause, to 
 assign and deliver his property and effects to a receiver, 
 or to restrain him from making the necessary assign- 
 ment to obtain his discharge under the insolvent laws, 
 unless an express provision to that effect is contained in 
 the injunction. Neither shall such injunction prevent 
 any other creditor from levying upon such property of 
 the debtor as he may be able to find and to reach by ex- 
 ecution, previous to the entry of an order for a seques- 
 tration, or for the appointment of a receiver. 
 
 " But a special clause might be inserted, restraining 
 the debtor from confessing a judgment for the purpose 
 of giving any other creditor a preference over the com- 
 plainantj or from doing any other act to enable other 
 creditors to obtain the property of the debtor, which 
 the complainant was unable to discover or reach by ex- 
 ecution." It was decided in Ross v. Clussman, 3 Sandf., 
 676; S. C, I Code R. (N. S.), 91, that where the debtor 
 delays the supplementary proceedings by procuring 
 adjournment, and in the mean while confesses judgment 
 to another person, a relative, with the intent and effect 
 of defeating the judgment creditor in his effort to reach 
 the property, it is a violation of the injunction and 
 punishable as for a contempt. 
 
 See also Ex parte Kellogg, 64 Cal., 343. 
 
192 INJUNCTION IN CREDITORS BILL. 
 
 Under this rule it was held that the injunction did 
 not restrain the defendant from proceeding to judg- 
 ment in a suit pending at the time that he was enjoined. 
 Parker v. Wakeman, 10 Paige, 485, nor from merely 
 bringing a suit for a tort (as for an injury to property), 
 without showing some damages which the plaintiff had 
 sustained thereby. Hudson z/. Pletz, 11 Paige, 180, 184. 
 Nor does it restrain a judgment debtor, where he h::d 
 sold or assigned verbally or otherwise a claim to an- 
 other in good faith and for value received, from merely 
 carrying his contract into effect after the service of the 
 injunction order, by procuring a novation or doing any 
 other act necessary to complete the sale, as indorsing a 
 draft previously given. Richardson v. Rust, 9 Paige, 
 243 ; Ireland v. Smith, i Barb., 419 ; S. C, 3 How., 244. 
 
 An injunction granted in a creditor's bill without 
 the special clause in it against the confession of a 
 judgment did not restrain that act. Lansing v. Easton, 
 7 Paige, 364 ; McCredie v. Senior, 4 Id., 378. In this lat- 
 ter case the complainants and defendants were copart- 
 ners; the injunction order only inhibited the defendants 
 from intermeddling with the partnership property and 
 effects. One of the defendants, after service of the in- 
 junction,, confessed judgment on behalf of the firm to a 
 bona fide creditor of it, in order to give him a prefer- 
 ence, and another defendant acted as the agent of 
 such creditor in the prosecution of the suit against the 
 copartnership. It was held that these acts were not a 
 violation of the injunction. See the reasoning of the 
 court in this case. And in a case arising in supple- 
 mentary proceedings under the former Code the court 
 also held, or rather intimated, that the injunction did not 
 restrain the mere confession of a judgment. Ross v. 
 Clussman, 3 Sand/., 6^6 ; S. C, i Code R. {N. S), 91, 
 General Term. 
 
 But any active interference with the property of the 
 
WHAT AN INJUNCTION RESTRAINS. I93 
 
 judgment debtor by the defendant or his agent for the 
 purpose of having the legal title to the same transferred 
 to another, thereby to deprive the complainant of the 
 equitable lien he has acquired therein by the filing of 
 his bill, is a violation of the letter and spirit of the in- 
 junction. 
 
 Chancellor Walworth in Lansing v. Easton, 7 Paige, 
 364 ; cited and approved in Ross v. Clussman, supra. 
 
 And in this last case (Ross v. Clussman), where the 
 judgment debtor delayed the proceedings by procuring 
 adjournments, and in the mean time confessed a judg- 
 ment to another person, a relative of his, with the ob- 
 vious intent and effect, as found by the court, of defeating 
 the judgment creditor in his effort to reach property, it 
 was held that the debtor's conduct was a breach of the 
 injunction and punishable, as for a contempt, by a fine. 
 
 The injunction granted in these proceedings, and 
 served upon the judgment debtor, restrains him from 
 creating a lien upon his real property in another State 
 by confessing judgment to another person for a ficti- 
 tious debt. Fenner v. Sanborn, 37 Barb., 610. 
 
 But §2451 of the Code of Civil Procedure not only 
 restrains every active interference with the property of 
 the judgment debtor by the party or person enjoined, 
 but it forbids him from suffering any transfer or other 
 disposition of such property or interference therewith. 
 This provision would seem to go farther than the in- 
 junction provided for in these proceedings under the 
 former Code, and prohibits the confession of a judg- 
 ment to another person where the natural effect will be 
 to enable him to seize the property by law or acquire a 
 prior lien thereon. 
 
 The judgment debtor, when under restraint, cannot 
 collect inoney previously earned and then due him, or 
 apply money then in his possession or under his con- 
 trol to the payment of debts contracted for family sup- 
 
194 WHAT AN INJUNCTION RESTRAINS. 
 
 plies. Taggard v. Talcott, 2 Edw., 628. This decision 
 was made before the Code. It must be limited by the 
 provision of § 2463 of the present Code in respect to 
 earnings within sixty days next before the institution 
 of the proceedings and the decision of Hancock v. 
 Sears, 93 N. ¥., 79 ; and Sanford v. Goodwin, Daily 
 Register, March, 1881. 
 
 After service of an injunction order upon the judg- 
 ment debtor he handed his watch to his attorneys to 
 pay them for services already rendered and to be ren- 
 dered in the proceedings against him ; held, this was a 
 violation of the injunction, the judgment creditor's lien 
 by his proceedings being prior to that of attorneys who 
 
 . took the watch in payment for services to be rendered. 
 The Deposit Nat. Bank v. Wickham, 44 How., 421, Su- 
 preme Ct., General Term. 
 
 The judgment debtor was a stock broker doing busi- 
 ness in his own' name and on his own account, and 
 earned commissions. He kept a bank account in his 
 name, as " Richard Kingsland in trust." All his de- 
 posits therein of proceeds of stock sold for other per- 
 sons — his wife and others — were made in the bank and 
 credited to this account, as well as a portion of his own 
 earnings, and the money was drawn out on checks 
 
 ■ signed by himself and purported to be for " family," 
 " board," " office," " diff. on stock," etc. It was held that 
 the injunction restrained him from drawing money 
 out of bank on this account after the same had been 
 served on him. The People v. Kingsland, 5 Abb. 
 (TV. S), 90; S. C, 3 Abb., App., Dec. 526, and 3 Keyes, 
 325 ; I Trans. App., 270. In Indiana it is held that 
 where a debt is owing to a judgment debtor, but 
 not yet due, the proper order or decree to make is to 
 enjoin and forbid the parties from paying, receiving, or 
 transferring it. Pursell v. Pappenheimer, 1 1 Ind., 327. 
 In New Jersey, after the service of an order in sup- 
 
STATUTES OF OTHER STATES. 1 95 
 
 plementary proceedings upon a judgment debtor, he 
 transferred property of his to the defendant, who knew 
 of the proceedings at the time. Afterward a receiver 
 was appointed in such proceedings ; held, that the trans- 
 fer of the property to the defendant was void as against 
 the receiver. Coleman v. Roff, 45 N: J. Law, 7. 
 
 In Ohio it was held that where an order is made and 
 served upon a judgment debtor without a restraining 
 clause therein, his transfer of property thereafter is not 
 void. Gregory v. Hewson, i Bond, 277, U. S. Circuit 
 Ct., Southern Dist. Ohio. 
 
 The statutes of most of the States which provide for 
 these proceedings expressly authorize the court or 
 judge, or other officer having charge of them, to grant 
 injunction orders both against judgment debtors and 
 their parties, with power to vacate or modify the 
 same as against the latter upon such terms as may be 
 just. The statutes of these States very generally au- 
 thorize the granting of an injunction against a third 
 party, where he claims an interest in the property of 
 the judgment debtor adverse to him, or denies the in- 
 debtedness to him, until the creditor or a receiver has 
 sufficient time to institute an action for the recovery of 
 such interest or debt and to prosecute the same to 
 judgment and execution. 
 
 SECTION II. 
 
 Costs. 
 
 % 2455. ".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 
 
196 judge's authority to allow costs. 
 
 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 instituted." 
 
 § 2456. " Where the judgment debtor, or the person 
 against whom the special proceeding is instituted, has 
 been examined, and property applicable to the pay- 
 ment of the judgment has not been discovered in the 
 course of the special proceeding, the judge may make 
 an order allowing him a like sum as costs, and directing 
 the payment thereof, within a time specified in the or- 
 der, by the judgment creditor ; or 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 re- 
 ceiver, or of the sheriff." 
 
 These sections embody the provisions of § 301 of the 
 former Code. The clause in § 2455 following the words 
 "thirty dollars" is new ; and § 2456 differs from § 301 
 of former Code in providing for costs to a judgment 
 debtor or third party only if no property applicable to 
 the payment of the judgment has been discovered. 
 
 A Judge's Authority to Allow Costs. 
 
 The only authority that a judge has to allow costs in 
 a proceeding supplementary to execution is that given 
 himby§§ 2455 and 2456 of the Code of Civil Procedure. 
 Simms v. Frier, 2 N. Y. M. L. Bull, 97, N. Y. Com. 
 Pleas, Special Term, J. F. Daly, J. Here proceed- 
 ings against the judgment debtor were dismissed upon 
 the return of the order and on his motion for a defect 
 in the affidavit. There was no examination. The judge 
 denied a motion for costs on the ground that § 2456 
 did not provide for any costs in favor of the debtor 
 on a dismissal of the proceedings without an exami- 
 nation. On a similar state of facts under the former 
 Code, the Superior Court of the city of New York de- 
 nied a motion for costs, made in favor of the judgment 
 
TO WHOM COSTS ALLOWED. 197 
 
 debtor on the ground that § 301 did not authorize the 
 granting of costs unless he had been examined. Engle 
 V. Bonneau, 2 Sandf., 679. 
 
 A judge out of court has only such power as is ex- 
 pressly given him or clearly implied in the statutes. 
 Webber ji. Hobbie, 13 How., 382 ; Squire v. Young, i 
 Bosw., 690. There is no statute which authorizes him to 
 allow costs in these proceedings except §§ 2455 and 2456. 
 Section 3236 of the present Code does not confer 
 such power upon him ; for the costs provided for there 
 are costs in an action pending in a court or on a refer- 
 ence in an action ordered by the court. Nor does 
 § 3240 confer such power ; for the special proceedings 
 there mentioned are proceedings instituted and pend- 
 ing in a court of record. A judge no doubt has au- 
 thority to impose costs upon a party as a condition for 
 granting him a favor ; but beyond that he does not ap- 
 pear to have any power to grant costs except as au- 
 thorized by §§2455 and 2456. 
 
 The judge who has charge of the proceedings for 
 the time being may allow costs. The allowance of 
 costs is in his discretion. 
 
 To Whom Allowed. 
 
 Costs may be allowed to the judgment creditor, to 
 the judgment debtor, or to any other person against 
 whom the proceedings are instituted ; and the like costs 
 and disbursements in either case. But a mere witness 
 is not entitled to costs besides his witness fees. Davis 
 V. Turner, 4. How., 190; Anon., 11 Abb., 108 ; both at 
 Supreme Ct. Ch. To the contrary is Webber v. Hob- 
 bie, 13 How., 382 ; also at chambers, and simply a dic- 
 tum. This last decision, or rather passing opinion, was 
 given because of the peculiar provision in § 301 of the 
 former Code, which authorized the judge to allow costs 
 " to any party so examined, whether a party to the ac- 
 
198 WHEN COSTS TO BE ALLOWED. 
 
 tion or not." Sections 2455 and 2456 of the present 
 Code expressly limit the allowance of costs to the judg- 
 ment creditor and the person against whom the spe- 
 cial proceedings are instituted. 
 
 The judgment creditor may have costs, although 
 there has been no examination, upon the institution of 
 the proceedings merely ; but the judgment debtor or 
 the person proceeded against can only have costs 
 where he has been examined and no property applica- 
 ble to the payment of the judgment has been dis- 
 covered. Section 2456 of Code ; Engle v. Bonneau, 2 
 Sand/., 679, supra. In this case the proceedings were set 
 aside for irregularity, and a motion for costs was denied. 
 Also Simms v. Frier, 2 N. Y. M. L. Bull., 97, supra. 
 
 When Costs may be Allowed. 
 
 Costs of the proceedings or final costs cannot be al- 
 lowed to a person until the proceedings are terminated 
 as to him and in his favor. Davis v. Turner, 4 How., 
 190. But costs of motion or other interlocutory costs 
 may be awarded during the" course of the proceedings, as 
 in an action. Where a third party examined under § 2441 
 denies that he has any property of the judgment debt- 
 or, or is indebted to him, or claims such property or an 
 interest therein adverse to the debtor, and the proceed- 
 ings against him are discontinued or dismissed, he is in 
 a position to ask for costs. But if a receiver is ap- 
 pointed to litigate the adverse claim in or to the prop- 
 erty set up by the third party or the alleged indebted- 
 ness, then the third party cannot apply for costs until 
 the receiver's action against him is terminated and in his 
 favor. It would not be right to allow costs to a person 
 examined under § 2441, just because he has succeeded in 
 swearing that he has no property of the judgment 
 debtor or has a claim thereto, or that he is not in> 
 debted to him, and thus raising a question which can 
 
WHEN COSTS TO BE ALLOWED. 199 
 
 only be determined in an action, unless the judgment 
 creditor discontinues as against him. So where such 
 proceedings are not discontinued, but the creditor insti- 
 tutes a judgment creditor's action in his own name to 
 recover such property, interest, or debt, the third party 
 is not in a position to apply for costs until the action is 
 finally terminated and in his favor. In Anon., 11 Abb., 
 108, a third party was compelled to attend court a num- 
 ber of times and submit to a long and searching ex- 
 amination, without the discovery of any property of 
 the judgment debtor in his hands or any debt due him. 
 It was held that the party so examined was entitled to 
 costs to be paid by the judgment creditor. Supreme 
 Ct., Special Term, BONNEY, J., a like decision was 
 made in Sloane v. Higgins, 2 N. Y. M. L. Bull., 11, 
 Supreme Ct., Special Term. 
 
 The N. Y. Superior Court held in an old case that 
 if the examination of the judgment debtor disclosed 
 no property applicable to the payment of the judg- 
 ment, the creditor would be required to pay costs, un- 
 less he could show some good reason for having com- 
 pelled the debtor to submit to the examination. 
 Anon., 3 Sandf., 725 ; S. C, i Code R. {N. S.), 113, in 
 1851. But this decision has not been followed for 
 years. It has been rendered obsolete by the universal 
 practice to accord to the judgment creditor one full 
 and complete examination of his debtor, without any 
 let or hindrance or peril of costs, unless he proceeds 
 vexatiously. But this rule of practice does not hold as 
 against the alleged debtor or bailee of the judgment 
 debtor. A third party when hailed into court and 
 compelled to submit to examination should be al- 
 lowed costs unless the judgment creditor can show 
 some good reason for having required him to submit 
 to the examination, and perhaps to retain counsel to 
 protect his rights and interests. 
 
20O WHAT COSTS TO BE ALLOWED. 
 
 As to the judgment creditor, he is entitled to apply 
 for costs upon the granting of a motion made for the 
 payment of money or the delivery of personal property 
 to a sheriff or receiver, as prescribed in § 2447 of the 
 Code of Civil Procedure ; for such order is the practical 
 termination of the proceedings, or of that part thereof, 
 unless reversed on appeal. If the order is disobeyed 
 another proceeding will have to be instituted — that of 
 contempt. 
 
 In case a receiver is appointed on the creditor's 
 motion, or a receivership already existing is extended 
 to the new proceedings, the judgment creditor is en- 
 titled to apply for costs, and the amount allowed is 
 generally incorporated in the order appointing the 
 receiver, or extending an existing receivership to the 
 proceedings in question. The judgment creditor may 
 in any case apply for costs at the close of the proceed- 
 ings and before they are discontinued or dismissed. In 
 Webber v. Hobbie, 13 How., 382, under the former 
 Code, it was held that costs might be allowed to the 
 creditor at any time before the order is made to apply 
 the property of the judgment debtor in the receiver's 
 hands toward the payment of the judgment. 
 
 What Costs Allowed. 
 
 The party entitled to costs may have a fixed sum, 
 consisting of witnesses' and referee's fees, charges for 
 serving the order by which the proceedings are insti- 
 tuted, and for certified copies of records — in short, in- 
 cluding all his necessary disbursements, and in addition 
 thereto a sum not exceeding thirty dollars. But it has 
 not yet been determined what expenditures may be 
 included in the clause " other disbursements," contained 
 in § 2455. Section 3256 of the same Code limits outlays 
 to necessary disbursements. Under §311 of the former 
 Code, which also restricted expenditures to necessary 
 
NOTICE FOR MOTION FOR COSTS. 201 
 
 disbursements, it was decided that money paid for a 
 copy of a stenographer's minutes or for the preparation 
 of maps could not be taxed as disbursements. Provost 
 V. Farrell, 13 Hun, 303; Colton v. Simmons, 14 Id., 75. 
 On the motion for costs, the disbursements in the 
 proceedings should be proved by affidavit. It was held 
 that the allowance of a fixed sum for counsel fee in an 
 order was equivalent to allowing it as costs. Hulsaver 
 V. Wiles, 1 1 How., 446. 
 
 Notice. 
 
 Unless the party required to pay costs or to be 
 affected by the motion is present or represented, notice 
 of the motion should be given to him or to his attorney, 
 if he has one in the proceedings. 
 
 Length of Notice. 
 
 As the proceedings are summary in every respect, 
 the notice is, no doubt, sufficient, if of the same length 
 as that of an application for the appointment of a 
 receiver — that is, at least two days' notice is to be given. 
 See § 2464, Code of Civil Procedure. This section 
 (2464) seems to prescribe the rule as to the length and 
 the manner of serving notice of motion for costs, for 
 costs are usually granted on the appointment of a 
 receiver. 
 
 How Costs to be Collected. 
 
 § 2455 prescribes how the costs are to be collected. 
 If an order is made under § 2447, directing the judg- 
 ment debtor or other person proceeded against to pay 
 the money or deliver the articles of personal property 
 discovered to a sheriff or a receiver, then the order 
 allowing costs is to direct the latter to pay the same out 
 of any money which has come or may come to his 
 hands. 
 
 Under the former Code it was held that the judge 
 
202 COSTS, HOW COLLECTED. 
 
 may order the payment of costs if property be found 
 in the hands of the judgment debtor sufficient for that 
 purpose, and that a disobedience of such an order is a 
 contempt; and if the judge erred, the defendant's 
 remedy is an appeal from his order. See the People 
 V. Kelly, 22 How., 309; S. C, sub nom. Keerney's, 
 13 Abb., 459 ; Supreme Ct., Special Term, LEONARD, J, 
 
 Under the present Code a like course should be 
 pursued, however, modified by §§ 2447 and 2455 of the 
 present Code ; for now the receiver or sheriff only can 
 pay such costs, and he is to pay them out of the judg- 
 ment debtor's property in his hands, but he can only 
 pay them out of money properly applicable thereto. 
 He cannot pay them out of money upon which other 
 persons or judgment creditors have prior liens or claims. 
 
 If there is no money at any time in the.hands of the 
 sheriff or receiver which is applicable to the payment 
 of costs, they must remain unpaid ; for the judgment 
 debtor or the third party under such an order is not 
 personally liable for the costs, and no execution could 
 be issued against him for the collection of the same. 
 The order creates no personal liability. So also where 
 the order appointing a receiver or extending a receiver- 
 ship allows costs to the judgment creditor to be paid 
 out of any money which may come to the hands 
 of the receiver, such costs can only be paid by 
 him out of such moneys, and no execution for the 
 collection thereof can be issued against the judgment 
 debtor or third party. So, if costs are allowed to the 
 judgment creditor in the order appointing a receiver, 
 without directing how they are to be paid, they are 
 only to be paid by the receiver out of money in his 
 hands. No execution can be issued thereon against 
 the judgment debtor. See Valiente v. Bryan, 65 How., 
 
 203 ; S. C, 3 Civ. Pro. R., 358, Marine Ct., Special 
 Term, Hawes, J., decided under the new Code. 
 
COSTS, HOW COLLECTED. 203 
 
 But the judge may also make an order allowing 
 costs to the judgment creditor to be paid within a 
 time specified by the judgment debtor or other person 
 against whom the special proceeding is instituted. 
 
 § 2455- 
 
 He may also in a case mentioned in § 2456 make an 
 order allowing costs to the judgment debtor, or to the 
 person against whom the proceeding is taken, to be 
 paid by the judgment creditor within a time specified 
 therein. In these latter cases the order creates a 
 personal liability. 
 
 An execution may be issued upon such an order 
 against the personal property of the party who is to 
 pay the costs. 'See § 779 of the Code of Civil Proced- 
 ure, as amended in 1882. Before this amendment to 
 the section (779) no execution could be issued for the 
 collection of costs. McCulloch v. Hoffman, i N. Y. 
 M. L. Bull., 27, Barrett, J. This section now 
 authorizes the issuance of an execution for the collec- 
 tion of costs ordered by a judge as well as by a court. 
 It supersedes Hulsaver v. Wiles, 1 1 How., 446, under 
 the former Code. A like execution may also be issued 
 for the collection of motion costs granted by a judge 
 in these proceedings. See Valiente v. Bryan, supra. 
 
 The execution for costs may be issued without first 
 making a demand therefor upon the party who is to 
 pay or on application to the court for leave. Mitchell 
 V. Westevelt, 6 How., 265 ; affirmed Id., 311, note. 
 Supreme Ct. ; Lucas v. Johnson, Id., 121, Supreme Ct., 
 Special Term; Weitzel v. Schultz, 3 Abb., 469, Com. 
 Pleas, Special Term, Brady, J. 
 
 But a party who is directed to pay motion or other 
 interlocutory costs cannot be arrested or imprisoned 
 for their non-payment ; and it is no contempt to refuse 
 to pay such costs. See § 15, Code of Civil Procedure. 
 But may he be arrested or punished, as for contempt. 
 
204 COSTS, HOW COLLECTED. 
 
 on refusing or neglecting to pay final costs ordered to 
 be paid under §§ 2455 or 2456? See post, next section. 
 
 Generally where costs are allowed to the judgment 
 debtor they are ordered to be deducted from the judg- 
 ment. 
 
 But in a case in the city court of New York, General 
 Term, costs were allowed to the judgment debtor to be 
 paid by the creditor personally, on the ground that 
 there was no authority for directing that they be de- 
 ducted from the judgment. Here a reference had been 
 ordered to ascertain whether or not the judgment 
 debtor had passed away a check after an injunction 
 order had been served upon him. The report was in 
 his favor. It was held that the disbursements on the 
 reference, referee's, stenographer's and witnesses' fees 
 could not be ordered to be paid by the judgment debtor, 
 and the amount thereof deducted from the judgment 
 against him ; and further that the court had the power 
 to award costs and disbursements of the proceedings to 
 the judgment debtor to be paid by the judgment 
 creditor personally. Boelger v. Swivel, i How. {N. S.), 
 372, Batfy Register, March 6, 1885, New York City Ct., 
 General Term. 
 
 The judge may also in a case mentioned in § 2456 
 allow to a third party proceeded against costs to be 
 paid out of any money which has come or may come 
 to the hands of the receiver or of the sheriff. 
 
 In all the other States which authorize these 
 proceedings statutory provisions are made for the 
 allowance of the disbursements of the proceedings 
 to the successful party, including fees of referees, 
 sheriffs, clerks, witnesses, etc., to be paid by the 
 unsuccessful party at the rate allowed for like services 
 in action, and in some of the States an allowance as 
 costs may also be made similar to that in the State 
 of New York. 
 
DISOBEDIENCE TO ORDERS AND ORAL DIRECTIONS. 205 
 
 SECTION III. 
 Disobedience to Order to be Punished. 
 
 % 2457. "A person who refuses, or, without sufficient 
 excuse, neglects to obey an order of a judge or referee, 
 made pursuant to the last two sections, or to any other 
 provision of this article, 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 com- 
 mand of a subpoena duly served upon him, may be 
 punished by the judge or by the court out of which 
 the execution was issued as for a contempt." 
 
 This section includes the provision of § 302 of the 
 former Code, on the subject of punishing disobedience 
 of orders. But it is broader and more explicit : it in- 
 cludes oral direction given to persons in the course of 
 the proceeding, as a direction to answer a question in 
 accordance with- Lathrop v. Clapp, 40 N. Y., 328 ; and 
 People V. Marston, 18 Abb., 257. It also empowers the 
 court out of which the execution was issued to punish 
 as for contempt a disobedience in the course of the 
 proceeding, thus settling a disputed point, and enacting 
 into a statute the decision of the Court of Appeals, 
 under the former Code, to wit : that the Supreme 
 Court had concurrent jurisdiction with the county 
 judge to punish for a contempt of an order made in 
 these proceedings, by the county judge, upon a judg- 
 ment in the Supreme Court. Tremain v. Richardson, 
 63 N. Y., 617. However, this decision is clearly based 
 on the view taken by that court, that supplementary 
 proceedings are proceedings in the original action, and 
 it would therefore be hardly controlling now, unsup- 
 ported by this section, as they are declared by statute 
 to be special proceedings. So also the decision in 
 
206 NATURE OF CONTEMPT PROCEEDINGS. 
 
 Seeley v. Black, 35 How., 369, Supreme Court, General 
 Term, that proceeding by attachment for violation of 
 an order is a proceeding in the action, and costs should 
 be taxed as in the action, is superseded. 
 
 -The latter part of § 302 of the former Code is found 
 in § 2286 of the present one. See post, § 4, ch. 3. 
 
 Nature of. 
 
 Proceedings to punish for a contempt are special 
 proceedings. Gray v. Cook, 15 Abb., 308, note, N. Y. 
 Superior Ct., Special Term. They are an independent 
 remedy, and not part of another, unless made so by 
 statute. They are of two kinds : proceedings to pun- 
 ish a criminal contempt and proceedings as for a con- 
 tempt, in order to enforce a civil remedy. The pro- 
 ceedings to punish a criminal contempt are taken to 
 vindicate the dignity of the court. The proceedings 
 to enforce a civil remedy are taken to indemnify and 
 protect a suitor against the disobedience or violation of 
 an order or decree of a court or judge whereby a right 
 or remedy of the suitor has been defeated, impaired, 
 impeded or prejudiced, or which was calculated to de- 
 feat, impair, impede, or prejudice the same. 
 
 The proceeding to punish a contempt of court and 
 to redress private wrongs and protect private rights 
 thereby is summary. It is a departure from the usual 
 common law procedure of enforcing law and adminis- 
 tering justice. It is based upon a disobedience to an 
 order of court or other tribunal or body exercising ju- 
 dicial functions, and derives its efficacy from that fact. 
 The Court of Chancery in enforcing this remedy never 
 lost sight of the principle, that it was the disobedience 
 to the order of the court which constituted the con- 
 tempt. People V. Sturtevant, 9 N. Y., 278. 
 
 The proceedings are therefore stricti juris, and not 
 only must every material fact constituting a contempt 
 
PROCEEDINGS TO ENFORCE A CIVIL REMEDY. 20/ 
 
 and the loss or inj ury produced thereby be clearly proved, 
 and nothing left to inference ; but no question of fact not 
 involved in the disobedience can be determined in these 
 proceedings. For instance, if a party enjoined from in- 
 terfering with his property is accused of violating the 
 injunction in regard to property, and he claims that the 
 property which he interfered with did not belong to 
 him, and thus raises a question of fact, this question 
 cannot be determined by proceedings as for contempt. 
 
 In a proceeding to enforce a civil remedy it must ap- 
 pear that the disobedience or violation was calculated 
 to or actually did defeat, impair, impede, or prejudice 
 the rights or remedy of the suitor, in order to adjudge 
 the offender guilty of contempt and punish him there- 
 for. The punishment imposed consists of a fine or im- 
 prisonment or both. 
 
 Contempt proceedings to enforce a civil remedy are 
 made an assistant to supplementary proceedings by 
 §§ 2266 and 2457 of the Code of Civil Procedure, as 
 they had been under the former Code. They are in an 
 important sense a part of the orderly proceedings un- 
 der § 292 (former Code), inasmuch as they have in view 
 the collection of the plaintiff's debt. Holstein v. Rice, 
 15 Abb., 307 ; S. C, 24 How., 135 ; Supreme Ct., General 
 Term ; Wicker f. Dresser, 13 How^nx ; S.C.,4^i5i5.,93 ; 
 The People, etc. v. Kelly, 22 How., 309; S. C, 13 Abb., 
 459 ; Hilton v. Patterson, 18 Abb., 245. In their appHca- 
 tion to supplementary proceedings they are governed 
 by the provisions of the Revised Statutes. Kelly 
 V. McCormick, 28 N. Y., 318 ; now by the Code of Civil 
 Procedure. It is with contempt proceedings in their 
 civil aspect only that we are concerned here. 
 
 Who may Punish a Contempt. 
 
 The proceeding to punish as for a contempt may be 
 instituted or continued before the judge or officer who 
 
208 WHO MAY PUNISH A CONTEMPT. 
 
 at the time of doing so would have jurisdiction to con- 
 tinue the supplementary proceedings in which the offence 
 complained of was committed, no matter whose order 
 or subpoena or direction has been disobeyed. If the 
 supplementary proceedings may be legally continued 
 before another judge under any statutory provision of 
 the State, he may punish any disobedience therein, 
 mentioned in this section (2457) as for a contempt ; 
 for §§2266 and 2457 make contempt proceedings a part 
 of the supplementary proceedings in which the dis- 
 obedience occurred. 
 
 This is the plain reading of §2457, which differs sub- 
 stantially and intentionally from § 302 of the former 
 Code. 
 
 Section 302 of the former Code in terms conferred 
 the power to punish a disobedience of an order upon 
 the judge who granted it. 
 
 It was therefore held in early cases under it that the 
 judge whose order had been disobeyed ought to pun- 
 ish the disobedience himself, and that he might make 
 the attachment issued against the offender returnable 
 at his office in a distant county, If a Supreme Court 
 justice. Re Smethurst, 2 Sand/., 724; S. C, 4 How., 
 369; 3 Code R., 55. The inconvenience — in fact, the 
 difficulty, sometimes — of such a practice was soon ap- 
 parent. It was then held that where supplementary 
 proceedings instituted before one judge at chambers 
 might be continued before another under any provi- 
 sion of the Code then in force, as in the first judicial dis- 
 trict, the latter might entertain all or any part of the 
 proceedings to punish a contempt to enforce a civil 
 remedy for the collection of the plaintiff's judgment. 
 See Wicker v. Dresser, 13 How., 331 ; S. C, 4 Abb., 93 ; 
 Dresser v. Van Pelt, 15 How., 19 ; Hilton v. Patterson, 
 18 Id., 24s ; Kelly v. McCormick, 2 E. D. Smith, 503. 
 Also Latham v. Westervelt, 16 Barb., 421 ; Holstein 
 
WHO MAY PUNISH A CONTEMPT. 209 
 
 V. Rice, supra. Supreme Ct., General Term. It was fur- 
 ther held that proceedings to punish a contempt com- 
 mitted of an order made in supplementary proceedings 
 by an officer or a county judge might be instituted or 
 continued before his successor. Holstein v. Rice, supra. 
 In this case supplementary proceedings had been com- 
 menced before a county judge, and in the progress 
 thereof a motion was made for an attachment against 
 the judgment debtor as for a contempt for refusing to 
 answer a question. But the county judge went out of 
 office before he disposed of the matter. The court held 
 that his successor had the power to continue the pro- 
 ceeding and punish the contempt. In deciding the 
 case, the court said that the proceeding on the attach- 
 ment was not simply to punish the debtor for his con- 
 tempt of an order, but to enforce the plaintiff's right and 
 to collect his judgment ; that the plaintiff was entitled 
 to an answer to the question, and therefore to hold that 
 the proceedings had abated by the officer's retiring from 
 office would be manifest injustice ; and further, after 
 discussing the efTect upon a continuation, should sup- 
 plementary proceedings be deemed a proceeding in the 
 action, the court say : " But if supplementary proceed- 
 ings are to be regarded as special in their nature, extraor- 
 dinary in their character, peculiar in their object, and 
 not to be classed among the ordinary proceedings in 
 the action," then proceedings to punish as for a con- 
 tempt might be instituted or continued by another 
 officer under 2 R. S., p. 284, § 51 (R. S., part 3, ch. 3, 
 tit. 2, art. 2, §51). 
 
 This decision, although made under the former Code, 
 is not superseded upon this point by the present one ; 
 for here supplementary proceedings are classed among 
 special remedies. The part which holds that if they 
 are special proceedings, then the same or contempt 
 proceeding therein may be instituted or continued un- 
 
2IO WHO MAY PUNISH A CONTEMPT. 
 
 der the above provision of the Revised Statutes, is au- 
 thority still. This section (51), with others in the same 
 chapter of the Revised Statutes, was repealed by the 
 Repealing Act of 1877, ch. 417. But the section was 
 re-enacted almost verbatim in § 52 of the Code of Civil 
 Procedure, which is as follows : 
 
 § 52. " In case of the death, sickness, resignation, re- 
 moval from office, 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 the officer's successor, or any other 
 officer residing in the same county before whom it 
 might have been originally instituted ; or, if there is no 
 such officer in the same county, before an officer in an 
 adjoining county, who would originally have had juris- 
 diction of the subject-matter, if it had occurred or ex- 
 isted in the latter county." 
 
 § 2462 of the Code of Civil Procedure clears away 
 any doubt, if such existed before that. It applies the 
 provisions contained in §§ 26, 52, and 279 thereof in ex- 
 press terms to supplementary proceedings ; and, as 
 stated above, contempt proceedings are made a part of 
 supplementary proceedings for the punishment of any 
 misconduct committed therein. See post, § 6, of this 
 chapter. 
 
 But under § 2457 of the present Code the proper 
 and orderly practice is not to apply for the institution 
 of proceeding to the judge whose order, subpoena, or 
 direction has been disregarded, unless he sits and 
 attends to chamber business, where the supplementary 
 proceedings in question are or may be properly con- 
 tinued, but to the judge who at the time sits in his 
 place, and may continue the proceedings, because of his 
 being there. The latter is the judge intended by this 
 section ; and § 52 of the same Code provides for the 
 
THE COURT MAY PUNISH. 211 
 
 institution and continuance of the proceedings in all 
 .other cases. Holstein v. Rice, supra. 
 
 The Court. 
 
 Section 2457 also expressly authorizes the court out 
 of which the execution was issued to punish any such 
 disobedience as for a contempt. 
 
 It was long a settled practice in the Supreme Court 
 of the 1st Judicial District at least, under the former 
 Code, for the court to take jurisdiction of and continue 
 such proceeding for the punishment of a disobedience 
 to the order of a judge or of a referee whom he had 
 appointed. The court claimed this authority as an 
 inherent general power which it had always possessed. 
 Wicker v. Dresser, 13 How., 33,1; S. C, 4. Abb., gi, 
 Special Term, cited and approved in the People 
 V. Kelly, 22 How., 309; S. C, sub nam. Kearney's Case, 
 13 yiiJi^., 459; Hilton z^. Patterson, 18 Id., 245 — all at 
 Special Term. 
 
 But the New York Superior and Common Pleas 
 Courts held that such proceedings must be instituted 
 and continued by the judges, not the court. Bitting v. 
 Vandenburgh, ly How., 80; Cowdrey v. Carpenter, 17 
 Abb.,ioy; Shepherd f. Dean, 3 /^., 424 ; S. C, i}, How., 
 173. These last cases, however, are now superseded by 
 § 2457, so far as they denied to the court the power to 
 entertain contempt proceedings. But whether, in case 
 a judge entertains supplementary proceedings upon an 
 execution not issued out of the court of which he is a 
 member, the court may notwithstanding punish a dis- 
 obedience to his order because of its inherent general 
 power to do so, qusere. 
 
 In Wisconsin the court also has concurrent power 
 with an ofificer to punish a disobedience of an order 
 of the latter. Nieuwankamp v. Ullman, 47 Wis., 
 168. 
 
212 REFEREE CANNOT PUNISH CONTEMPT. 
 
 Referee. 
 
 A referee in these proceedings has no power to pun- 
 ish any disobedience of his own order, subpoena, or direc- 
 tion. See ante, ch. ii, § i, "Referee." He must 
 report the offence to the judge who appointed him, or 
 to the court out of which the execution was issued. 
 
 In CaHfornia, under the statutes of that State, a 
 justice of the peace may entertain proceedings and 
 punish as for a contempt, and imprison the offender 
 until he comphes with the order. Ex parte Latimer, 
 47 Cal., 131. 
 
 In Ohio a probate judge may order a judgment 
 debtor verbally to deliver property to a receiver, and 
 on his refusal to obey commit him to jail till he purges 
 himself of such contempt. In the Matter of Lilliland, 
 4 Cin. L. BuL, 733. 
 
 Who may be Punished as for a Contempt. 
 
 Any person who refuses or, without sufficient excuse, 
 neglects to obey an order or oral direction or a subpoena 
 of a judge or referee, mentioned in § 2457 of the pres- 
 ent Code, may be punished as for a contempt. Also 
 Page V. Randall, 6 Cal., 33. 
 
 A partner not served with the summons in the action, 
 and against whose sole or individual property no judg- 
 ment is entered, may be examined in proceedings con- 
 cerning the joint property of his partnership, and pun- 
 ished as for a contempt in refusing to obey an order for 
 his examination. Perkins v. Kendall, 3 Civ. Pro. R., 
 240, Marine Ct., General Term. 
 
 Where the order appointing a referee to take the ex- 
 amination of a judgment debtor names no place or 
 time, but merely directs the debtor to appear at such 
 time and phce as the referee may duly appoint, he may 
 issue his summons to the debtor to appear at a time 
 and place specified therein ; and if he fails to attend he 
 
JUDGMENT DEBTOR MAY BE PUNISHED. 2I3 
 
 will be guilty of contempt. Redmond v. Goldsmith, 2 
 N. Y. M. L. Bull., 19, N. Y. Common Pleas, Special 
 Term, Van Hoesen, J. 
 
 A judgment debtor may be punished as for a con- 
 tempt in failing to attend for examination, pursuant to 
 an order served upon him, although he shows by affi- 
 davit that he had not been served with the summons in 
 the original action ; for this question cannot be con- 
 sidered in proceedings of contempt. His remedy is 
 to move the court to set the judgment aside and ask 
 for a stay of the supplementary proceedings in the 
 mean time. So held in Keller v. Zeigler, 5 N. Y. M. L. 
 Bull., 15, N. Y. Common Pleas, Special Term, Beach, J. 
 See post in this section as to a judgment debtor 
 served by a wrong name. Muldoon v. Pierz, i Abb. 
 N. C, 309, and Matter of Johns, i N. Y.M.L. Bull. 76. 
 
 Where proceedings which lapsed are subsequently 
 restored without qualification, by the party appearing 
 and submitting to the jurisdiction of the officer he may 
 thereafter be punished for a violation of the injunction 
 order. See Reynolds v. McElhone, 20 How., 454. 
 
 A person interfering with the possession of a re- 
 ceiver will be punished therefor if not done in a legal 
 manner in a direct proceeding against the receiver. 
 People's Bank v. Moody, i N. Y. M. L. Bull., 52, 
 Donohue, J. 
 
 Witnesses. 
 
 Section 2457 also expressly authorizes the judge to 
 punish a witness for disobeying the command of a 
 subpoena duly served upon him, which § 302 of the 
 former Code did not do. See The People v. Dutcher, 
 3 Abb. {N. S.), 151, Supreme Ct., General Term ; for the 
 subpoena was issued out of the court from which the 
 execution against property was issued, and that court 
 only could punish a witness for disobeying it. But 
 
214 OFFICER OF CORPORATION MAY BE PUNISHED. 
 
 now a judge or the court may punish a witness for dis- 
 regarding a subpoena, which under the present Code 
 is issued by a judge or referee. § 854. Andrews 
 V. Andrews, 2 Johns Cas., 109. 
 
 Where a corporation has been enjoined by the ser- 
 vice of an injunction order upon the president, and he 
 conceals the fact thereof from the other officers and 
 members of the corporation, he is punishable for all 
 acts of violation committed by them. See Bank Com- 
 missioners V. City Bank of Buffalo, cited in i Barb. Ch. 
 Prac, 62,6, and approved in People v. Sturtevant, 
 9 N. v., 263, 277. 
 
 A party against whom an injunction order has been 
 issued is bound not only to abstain from violating it in 
 person, but also to endeavor in good faith to prevent its 
 violation by his agents or employes ; otherwise he will be 
 in contempt. A party is bound to abstain from violat- 
 ing an injunction order directed to himself from the 
 time he knows of its issue, although it may not yet 
 have been served upon him. Poertner v. Russell, 33 
 Wis., 193. 
 
 An injunction addressed exclusively to a corporation 
 operates upon those of its members and ofificers by 
 whom its corporate will is manifested and corporate 
 acts are performed, and creates a duty for which they, as 
 parties to the suit, are personally responsible, and any 
 or all of them may be punished. Davis v. The Mayor, 
 etc., of N. Y., I Duer, 451, afifirmed as. The People 
 V. 'Sturtevant, supra. 
 
 But the attorneys, agents, or servants of a person 
 against whom an order of injunction is granted and 
 served upon him are not punishable for disobeying 
 the same, where they have no knowledge of its issue. 
 Poertner v. Russell, supra. 
 
 Where, however, an injunction order is issued against 
 a party named therein and his attorneys, agents, and 
 
ATTORNEYS, AGENTS, AND SERVANTS PUNISHED. 21 5 
 
 servants, and is served upon him, if they know of its ex- 
 istence and contents, and knowingly and designedly 
 violate it, or do the acts prohibited thereby, they may 
 be punished. See Livingston v. Swift, 23 How., i, 
 Supreme Ct., General Term ; The People v. Compton, 
 I Duer, 512, 553 ; Same v. Brower, 4 Paige, 405 ; Hull 
 V. Thomas, 3 Edw., 236 ; Batterman v. Finn, 32 How., 
 501, Supreme Ct., General Term ; S. C., 34 Id., 108, 
 General Term. 
 
 These last above authorities hold that a party may be 
 punished as for a contempt where he has knowingly and 
 designedly done acts which he knew at the time that 
 the court had prohibited him from doing by order, even 
 although no order had then been served upon him, but 
 merely directed to be entered. Also the Mayor, etc., of 
 N. Y. V. N. Y. and S. I. Ferry Co., 40 N. Y., Superior Ct., 
 300, General Term, affirmed 64 N. V., 623. A person 
 enjoined may be punished for violating it, although he 
 is acting by the command or direction of a superior. 
 Krom V. Hogan, 4 How., 225 ; S. C, 2 Code R., 144, 
 Parker, J. 
 
 Who may Apply for Punishment. 
 
 The person seeking the punishment of another, as for 
 a contempt, must show that he has some interest in the 
 subject-matter or that he has a right to prosecute him for 
 the misconduct or other injury complained of, except in- 
 fants, lunatics, etc. See Hawley v. Bennett, 4 Paige, 165. 
 
 Whether a receiver could in his own name prosecute 
 a contempt committed after his appointment, was raised, 
 but not decided in Rodman v. Henry, 17 N. Y., 482. 
 
 What Acts are Punishable— Failure to Appear. 
 
 Although an order to appear for examination served 
 upon a party may be irregular and would be set aside on 
 motion, yet until set aside he is bound to obey it and 
 appear at the time and place specified therein. If he 
 
2l6 FAILURE TO APPEAR IS PUNISHABLE. 
 
 fails to attend he is guilty of contempt. Schultz v. 
 Andrews, 54 How., 378, Supreme Ct., Special Term. 
 Also Hilton v. Patterson, 18 Ai>lj., 245. 
 
 An irregular service of the order does not excuse ap- 
 pearance for examination. Newell v. Cutler, 19 Hun, 
 74 ; Billings V. Carver, 54 Barb., 40. Where the referee 
 has the power to issue his summons, requiring the debt- 
 or or other person to appear before him at a time and 
 place named for examination, and the person served 
 fails to' obey the sumrnons, he may be punished as for 
 a contempt. Redmond v. Goldsmith, 2 N. Y. M. L. 
 Bull., 19, N. Y. Common Pleas Court Ch. 
 
 A judgment debtor when served with an order for 
 examination is bound to appear, and if he neglects, he 
 will be guilty of contempt, although he has been dis- 
 charged from the judgment under the Insolvent Acts 
 of the State. His course is to appear with his dis- 
 charge, procure a suspension of the proceedings, and 
 compel the creditor to sue on the judgment if the latter 
 disputes the validity of the discharge. If, instead of 
 this course, he omits to appear, he will be guilty of 
 contempt, and his discharge will not purge the con- 
 tempt on a proceeding to punish him therefor. Cour- 
 sen V. Dearborn, 7 Robt., 143, General Term. 
 
 After an order was served upon the judgment debtor 
 for him to show cause why he should not be punished 
 for failing to appear and be examined, he filed a peti- 
 tion in bankruptcy and procured an injunction staying 
 proceedings. Held he was in contempt, and was 
 punished. Spaid v. Hoge, i N. Y. W. Digest, 2J^,'^.Y. 
 Com. Pleas, Special Term. 
 
 The failure of a party to appear on an adjourned day 
 may be punished as for a contempt, although the ad- 
 journment was made in his absence on the consent of 
 his attorney and no written notice thereof was served 
 upon him. Parker v. Hunt, 15 Abb., 410, note. Supreme 
 
INABILITY TO COMPLY IS AN EXCUSE. 21/ 
 
 Ct., Special Term, INGRAHAM, J. Also Ammidon v. 
 Wolcott, 15 Id., 314, Supreme Ct., General Term. 
 
 But a party will not be punished for failing to appear 
 and be examined where the order served upon him was 
 obtained on an a£fidavit jurisdictionally defective. 
 Kennedy v. Weed, 10 Abb., 62. Such an order is void. 
 It was in effect granted without an affidavit. No valid 
 order can be made except upon proof of the requisite 
 facts by affidavit or other competent written evidence. 
 §§ 2435. 2436, 2437, 2441 of the present Code. 
 
 A party will not be punished when he shows his in- 
 ability to comply with the order, Meyers v. Trimble, 
 3 E. D. Smith, 607; S. C, i Abb., 399; or where he 
 was incapacitated by the acts of the adverse party, al- 
 though such acts were lawful, McCartan v. Van 
 Syckel, 10 Bosw., 694; nor where his violation of an in- 
 junction is accidental and not intentional. Hazard v. 
 Caswell, Z N. Y. W. Digest, 492. Here the violation 
 was trivial, and the defendant claimed that he honestly 
 intended to conform to the injunction. The court 
 would not sustain contempt proceedings for this viola- 
 tion ; nor should an attachment as for contempt for not 
 paying money be granted where it appears that the fail- 
 ure to pay arose from the person's inability, and it does 
 not appear that such inability was wilfully caused and 
 where imprisonment for contempt is in the discretion 
 of the court. Cochran v. Ingersoll, 13 Hun, 368, General 
 Term; and appeal dismissed, 73 TV. F., 613. But where 
 a person voluntarily disables himself from complying 
 with an order, the disobedience of which subjects him 
 to proceeding as for contempt, he is punishable never- 
 theless. In such case the creation of the inability is 
 itself contumacious. See above authorities. Also the 
 People V. Bergen, S3 A^. Y., 404; S. C, 15 Abb. {N.S), 
 97 ; 6 Hun, 267 ; Perkins v. Taylor, 19 Abb., 146, 150; 
 People V. Kearney, 21 How., 74, Brown, J. 
 
2l8 A WITNESS MAY BE PUNISHED. 
 
 Not Answering. 
 
 Refusal to answer a proper question in the examina- 
 tion before a referee is punishable as for a contempt. 
 Lathrop v. Clapp, 40 N. Y., 328, affirming 23 How., 
 423. A witness may be punished for refusal to answer 
 a material or competent question, although he attended 
 the examination and was sworn without a subpoena. 
 People V. Marston, 18 Abb., 257. 
 
 But where a judgment debtor was asked as to the 
 amount and value of encumbrance upon his property- 
 six months before the examination, held that such 
 question was not necessarily within his power to answer, 
 and an answer in substance that he was unable to give 
 the information asked for was not necessarily evasive, 
 or a refusal to comply with the order requiring him to 
 answer the question ; for it did not look to a discovery 
 of property, but to a discovery of encumbrances. 
 Weeker v. Dresser, 14 How., 46^, Supreme Ct., Special 
 Term. 
 
 A witness examined before a referee declined to 
 answer a question by advice of counsel, although the 
 referee ordered him to answer. He stated he would 
 answer if the cour*- so ordered. An order was obtained 
 requiring him to answer, or show cause why he should 
 not be punished ai. for contempt. Prior to the return 
 of this order he attended before the referee, and an- 
 swered. Held he could not be punished. Foley v. 
 Rathbone, 4 iV. V. IV. Digest, 71, Supreme Ct., Gen- 
 eral Term, ist Judicial Department. 
 
 A refusal to produce books pursuant to order, and to 
 allow a witness to examine them while testifying, may 
 be punished as for a contempt ; but the refusal to leave 
 them with the referee when the order does not require 
 that cannot be so punished. Sudlow v. Knox, 7 Abb. 
 {N. S.), 411, Court of Appeals. 
 
 A refusal to produce papers in the possession of the 
 
VIOLATION OF INJUNCTION IS PUNISHABLE. 219 
 
 witness when ordered to do so is punishable as for a 
 contempt. Mitchell's Case, 12 Abb., 249, N. Y. Com. 
 Pleas. 
 
 Violating Injunction. 
 
 Violation of the injunction order by the person upon 
 whom it is served, and whose duty it is to obey it, may 
 be punished. See ajtte " Injunction," § I of this chapter. 
 
 A corporation may be restrained by injunction, and 
 punished for violating it. The Mayor v. N. Y. and S. I. 
 Ferry Co., 64 N. Y., 622, affirming 40 N. Y., Superior 
 Ct., 300; People V. Albany and Vt. R. R. Co., 12 Abb., 
 iji ; S. C, 20 How., 358, HOGEBOOM, J. ; Atlantic 
 and Pac. Tel. Co. v. Balto. and O. R. R. Co., 46 N. Y, 
 Superior Ct., 377. 
 
 A person enjoined may be punished as for a contempt 
 where he suffers and allows a forbidden thing to be 
 done by others under his control or for his benefit. 
 Neale v. Osborne, 15 Uoiu., 81, E. D. Smith, J. 
 
 A person may be punished for violating an injunc- 
 tion before it is actually served upon him, in a case 
 where he knows of its existence and is informed of its 
 contents, or is present in court when it is granted, and 
 knowingly and designedly disobeys it, where such dis- 
 obedience affects or impairs the pecuniary rights of the 
 judgment creditor. See Livingston v. Swift, 23 How., 
 I ; The People v. Compton, i Duer, 512, 553 ; Same v. 
 Brower, 4 Paige, 405 ; Hull v. Thomas, 3 Edw., 236. But 
 the court said, in Livingston v. Swift, supra, that so far 
 as it concerned the dignity of the officer whose order 
 had been disregarded, he would require personal service 
 of the injunction before he would punish as for a con- 
 tempt, and that punishment in such case was discretion- 
 ary with him ; but where by disobedience of an order 
 or process a party's pecuniary rights have been affected 
 or impaired, the court or judge had no discretion, 
 
220 APPEAL FROM ORDER NO EXCUSE. 
 
 but must impose a fine sufficient to indemnify the 
 party. 
 
 Where proceedings were stayed by an order to show 
 cause, and the judgment was thereupon vacated, but 
 on appeal to the General Term the order of vaca- 
 tion was reversed and the judgment restored, held that 
 a violation of the injunction by the judgment debtor 
 after the decision of the Special Term and before the 
 reversal thereof by the General Term, was punish- 
 able as for a contempt, that the injunction in the 
 mean while remained in full force, although the pro- 
 ceedings had not been adjourned. Woolf v. Jacobs, 
 36 N. Y., Superior Ct. (4 /. & 5/.), 408. 
 
 An appeal taken from the order without a stay is 
 no excuse for disobeying it. The People v. Bergen, 
 S3 N. v., 404. 
 
 Not Paying or Delivering Property. 
 
 It was held that under §§ 296 and 301 of the former 
 Code the judge might order the judgment debtor to pay 
 costs of the proceedings out of any property found in 
 his hands, if sufficient for that purpose, and that his de- 
 fault to obey the order was punishable as for a con- 
 tempt. People V. Kelly, 22 How., 309 ; S. C, sui>. nom. 
 Kearney's Case, 13 Abb., 459. 
 
 In Brush v. Lee the judgment debtor appeared ac- 
 cording to an order upon him to show cause why he 
 should not be punished as for a contempt, and admitted 
 that he had money enough to pay the judgment. He 
 was thereupon ordered to pay the judgment and $30, 
 costs of the proceedings, within five days. A personal 
 demand for payment thereof was made of him. He 
 refused to pay. He was then adjudged in contempt 
 and fined for non-payment of both the judgment and 
 the costs. This decision was affirmed in the Court 
 of Appeals, i Abb., App., Dec. 238; S. C, 6 Abb. 
 
DISOBEDIENCE OF AN ORDER TO PAY. 221 
 
 {JV. S.), 50, and 2 Trans. Appeals, 95. This decision 
 authorizes punishment for non-payment of costs, as 
 Kearney's case, supra, does ; but the order directed 
 payment to be made in a different way from the 
 latter. However, this case of Brush v. Lee does 
 not appear to be well considered. The point dwelt 
 upon in the argument and chiefly discussed by the 
 court on the appeal, was as to the right practice in con- 
 tempt proceedings. The question as to whether or not 
 the judge had the power, upon the mere admission of 
 the debtor that he had money enough to pay the judg- 
 ment, to order him to pay it, and punish him as for a 
 contempt upon his refusal, was but casually touched. 
 This decision was made under the former Code, and 
 before the cases of the West Side Bank v. Pugsley, 47 
 N. v., 368, and Tinker v. Crooks, 22 Hun, 579, General 
 Term, were decided ; and neither cites nor alludes to 
 it. Tinker v. Crooks is a better considered decision, 
 and appears to hold the contrary. 
 
 Here the judgment debtor on his appearance for ex- 
 amination, pursuant to order, also admitted that he had 
 sufficient money and property to pay the judgment. 
 Afterward the judge made an order directing him to 
 pay the judgment, and upon his neglecting to do so, he 
 was proceeded against as for a contempt, and adjudged 
 guilty thereof. 
 
 The Supreme Court, on appeal, denied this power to 
 the judge, and held that he had no general power to 
 order the payment of a judgment ; that his power is 
 statutory and limited to directing the application of 
 property discovered by the examination to be in the 
 debtor's or other person's hands at the time the order 
 was served upon him ; and that as a foundation for con- 
 tempt proceeding, it should appear from the defendant's 
 examination or its equivalent — his admission — that at 
 the time of the service of the order he had in his pos- 
 
222 REFUSAL TO PAY SPECIFIC MONEY IS CONTEMPT. 
 
 session or under his control some specific property or 
 sum of money, and that the due application of such 
 property or sum of money, or both, toward the satisfac- 
 tion of the judgment could be lawfully directed and en- 
 forced by contempt proceedings ; that the debtor's ad- 
 mission of having money and property sufiQcient to pay 
 the judgment referred to a period subsequent to the 
 service of the order on him, and did not amount to the 
 discovery contemplated by the statute, but was little 
 more than a confession of ability to pay, and reversed 
 the judgment of contempt. 
 
 However, the case of Brush v. Lee, supra, has been 
 superseded by § 2447, Code of Civil Procedure. Now 
 the judge has no power upon any mere admission of the 
 judgment debtor to order him to pay the judgment ; he 
 can only direct him to pay the money or deliver the 
 personal property, found from the examination or testi- 
 mony taken in the proceedings to be in his possession 
 or under his control, to a sheriff designated in the 
 order or to a receiver appointed in the proceedings. 
 
 Where goods or specific money, etc., belong indispu- 
 tably to the judgment debtor, a refusal by a third person 
 who has possession thereof, and is proceeded against 
 therefor, to deliver the same as ordered would be a 
 wilful contempt, and punishable as such. The West 
 Side Bank v. Pugsley, 47 N. Y., 368; S. C, 12 AM. 
 {IV. S.), 28. This decision was made under the old Code. 
 Section 2447, Code of Civil Procedure, which provides 
 for the payment of money to a sheriff or receiver, does 
 not use the words " specific money ; " but it provides 
 that when it appears from the examination or testimony 
 taken in a special proceeding authorized by this article 
 that one or more articles of personal property capable 
 of delivery are in the possession or under the con- 
 trol of another person, the judge may make an order 
 directing him to deliver the articles of personal property 
 
WHAT IS NO EXCUSE. 223 
 
 to a sheriff or receiver. The words " one or more arti- 
 cles of personal property" fairly include a specific sum 
 of money. See § 3343, subd. 7, of the present Code. 
 This decision, The West Side Bank v. Pugsley, fully 
 supports that of Tinker v. Crooks of the Supreme 
 Court, General Term, supra, and both are in harmony 
 with § 2447 of the Code — to wit : that the judge can only 
 order specific moneys or articles of personal property 
 which indisputably belong to the judgment debtor, and 
 are found either in his own hands or the hands of a third 
 party, to be applied through a sheriff or a receiver to 
 the payment of the judgment ; he cannot order the 
 debtor to'pay the judgment, although he may admit his 
 entire ability to do so, and then punish him as for a 
 contempt upon his refusal to pay the same. See also 
 post, ch. 6, § 4. 
 
 Where a receiver is ordered to pay over money to a 
 person, he cannot excuse himself from punishment for 
 refusing on the ground that such person owes him. 
 McGarry v. Smith, 2 TV. Y. M. L. Bull., 7, N. Y. Com. 
 Pleas, Special Term, Beach, J. 
 
 In short, disobedience of any order of a court or a 
 judge or referee made in these proceedings, and duly 
 served, may be punished as for a contempt, provided 
 the order is not void. See Re Smethurst, 2 Sandf., 724. 
 
 A judge may make an order under the statutes of 
 Wisconsin requiring the judgment debtor to deliver 
 property belonging to him, and not exempt and punish 
 his disobedience thereof as for a contempt. In re 
 Melburn, 59 Wis., 24. 
 
 Who and what are not Punishable. 
 
 A defendant sued by a wrong name cannot be pun- 
 ished as for a contempt for failing to comply with an 
 order for his examination, although he may be the real 
 person intended, where he did not appear in the action, 
 
224 WHEN A PERSON IS NOT PUNISHABLE. 
 
 and judgment was taken by default. Muldoon 7'. 
 Pierz, I Abb. N. C, 309, Supreme Ct. Ch. This deci- 
 sion appears to be based on the ground that there 
 is no judgment against such person, even in form. 
 
 But when a party appears as a judgment debtor, and 
 is examined in proceedings supplementary to execution 
 without any objection, he waives the right afterward 
 to raise the question of misnomer, even after commit- 
 ment. Matter of Johns, i N. Y. M. L. Bull., 76 N. ¥., 
 Com. Pleas, Van Brunt, J. But, quaere, if the judg- 
 ment is void, by reason of the misnomer, as the case of 
 Muldoon v. Pierz holds, how can the defendant waive 
 the objection? 
 
 Where a judgment debtor neglects or refuses to obey 
 an order for his examination, and thereupon a second 
 order, is obtained and served upon him, he cannot 
 thereafter be punished for a disobedience of the first 
 order, because that one has been superseded by the 
 second order. The judgment creditor cannot have 
 two orders in force at the same time. Gaylord z'. Jones, 
 7 UiDi, 480. 
 
 Where the proceedings are allowed to drop out of 
 court or are abandoned, a witness, though regularly 
 subpoened, cannot be punished for contempt for not 
 attending thereafter, for the reason that no proceedings 
 are then pending. Thomas v. Kircher, 15 Abb. {IV. S.), 
 342, J. F. Daly, J. 
 
 A neglect or a refusal to pay a sum of money re- 
 quired by a judgment or order to be paid is not pun- 
 ishable as for a contempt, although it is to be paid out 
 of a trust fund, where an execution against property 
 may be awarded for the collection thereof. Randall f. 
 Dusenbury, 41 N. Y., Superior Ct., 456, General Term. 
 The court base their decision expressly on the ground 
 that an execution might be issued to collect the money. 
 
 A judge cannot order a party to pay a debt and 
 
WHEN A DEBTOR CANNOT BE PUNISHED. 225 
 
 enforce the payment thereof by imprisonment, as for a 
 contempt in the absence of all fraud. He may direct 
 the application of the proceeds toward the satisfaction 
 of the judgment when collected. The Union Bank 
 of Roch. V. The Union Bank of Sandusky, 6 O. S., 254. 
 
 A judgment debtor cannot be summarily punished 
 for a breach of the injunction where he claims that 
 the property with which he interfered did not belong 
 to him. The fact that it belonged to him when he in- 
 terfered therewith must first be determined in the 
 proper way by an action, if the title thereto is sub- 
 stantially disputed, so as to raise a fair question of 
 fact for a jury trial. If, upon such trial, it is deter- 
 mined that the property he meddled with was his at 
 the time, punishment as for a contempt will follow. 
 See The People v. King, 9 How., 97. 
 
 The using, paying, or disposing of the earnings of 
 the judgment debtor for his personal services, rendered 
 within sixty days next before the institution of the 
 proceedings, etc., cannot be punished as for a contempt 
 for violating the injunction. Hancock v. Sears, 93 
 N. v., 79; S. C, 4 Civ. Pro.R., 255, and 17 N. Y. W. 
 Digest, 200, reversing S. C, 29 Hun, 96; Sanford v. 
 Goodwm, Daily Register, March 11, 1881, Marine Ct., 
 Special Term, McAdam, J. But the party enjoined 
 as to such earnings must show, when called upon to 
 pay or deliver up the same, that they were exempt by 
 § 2463 of the Code of Civil Procedure. Hancock v. 
 Sears, supra. 
 
 Where the judgment debtor had forty dollars in his 
 possession when he was served with the injunction or- 
 der, and which he afterward paid on rent of premises 
 on which he carried on business and his family resided, 
 he was held to have violated the injunction, and was 
 punishable as for a contempt. Aschemoor v. Emmvert, 
 5 N. Y. M. L. Bull., 80 N. Y. Com. Pleas, Special 
 
226 CONFESSION OF JUDGMENT. 
 
 Term, Van Brunt, J. Here the determination was 
 made on the final hearing, and it was not made to ap- 
 pear, as this section (2463) requires, that this money was 
 earnings coming within the exemption of that section. 
 
 The mere confession of a judgment is not a violation 
 of the injunction order and punishable as for a con- 
 tempt, McCredie v. Senior, 4 Paige, 378, and see Ross 
 V. Clussman, 3 Sandf. S. C, 676 ; S. C, i Code R. {N. S.), 
 91, unless the case comes within the facts and deci- 
 sions of Ross V. Clussman or Fenner v. Sanborn, 37 
 Barb., 610, or Lansing v. Easton, 7 Paige, 364. See 
 ante, § I, ch. 3. Nor will a person be punished for 
 violating an ordinary injunction by proceeding to judg- 
 ment in a suit pending at the time he was served there- 
 with. Parker v. Wakeman, 10 Paige, 485. 
 
 Disobedience of an order made by a court or judge 
 without jurisdiction to make it cannot be punished as 
 for a contempt. To make an order the basis of a con- 
 tempt proceeding if it is disregarded, the tribunal mak- 
 ing it must have jurisdiction both of the person com- 
 manded and of the subject-matter to which the com- 
 mand relates. If either is wanting, the order need not 
 be obeyed. See Reed v. Champagne, 5 N. Y. W. Di- 
 gest, 227 ; Kennedy v. Weed, 10 Abb., 62. 
 
 In the case of Reed v. Champagne, supra, a receiver 
 appointed in supplementary proceedings obtained an or- 
 der ex parte from a judge, requiring the judgment debt- 
 or to deliver and assign to him certain property. Upon 
 his refusal to comply therewith, the Special Term ad- 
 judged him guilty of contempt. The General Term 
 reversed this adjudication, holding that the judge had 
 acquired no jurisdiction of the person of the debtor to 
 make the order for him to deliver and assign the prop- 
 erty, and that he was not bound to obey it. The want 
 of jurisdiction lay in the fact that no notice of the ap- 
 plication by the receiver was served upon the debtor. 
 
AN ERRONEOUS ORDER MUST BE OBEYED. 22/ 
 
 But where the court or judge has jurisdiction both of 
 the person and the subject-matter, the order, when 
 properly served upon or brought to the knowledge of 
 the party required to obey it, cannot be disregarded, 
 however erroneous it may be. It is valid and binding 
 until reversed or superseded. Hunt v. Hunt, 72 N. Y., 
 217, 229; Erie Ry. Co. v. Ramsey, 45 N. Y., 6iy. In 
 People V. Jones, i Abb. N. C, 172 ; or Day v. Lee, 52 
 How., 95, Judge Van Brunt, N. Y. Com. Pleas, Spe- 
 cial Term, held that the failure of a third party to ap- 
 pear for examination pursuant to an order was not 
 punishable as for a contempt, if the allegation in the 
 original affidavit for the order that he (the third party) 
 has money or property of the judgment debtor is only 
 on information and belief, without stating the sources 
 of information. But this is very questionable author- 
 ity, and can hardly be followed. The accused, the pro- 
 prietor of the New York Times, defied the first order of 
 the judge, and, upon the service of the second order to 
 show cause why he should not be punished, he ap- 
 peared and raised the objection to the sufficiency of 
 the original affidavit, which, if good, he should have 
 appeared and raised on the return of the first order. 
 The judge sustained his objection, and dismissed the 
 proceedings and Mr. Jones. A person in contempt 
 must first purge himself of it before he is entitled to be 
 heard. The Court of Appeals had held in 1873 that an 
 affidavit that the person whose examination is desired 
 has property of the judgment debtor in his hands or 
 is indebted to him, as the deponent is advised and 
 believes, is sufficient to confer jurisdiction upon the 
 judge to grant the order. Miller v. Adams, 52 N. Y, 
 409. The affidavits in these two cases were quite 
 similar, neither .stating the sources of information ; and 
 it has been frequently held that any irregularity or 
 defect not jurisdictional in the affidavit or order for the 
 
228 WHAT DISOBEDIENCE OF ORDER NO CONTEMPT. 
 
 examination will not excuse the party served for dis- 
 obeying the order. He must appear and raise the ob- 
 jection at the first opportunity. See Hilton v. Patterson, 
 i8 Abb., 245; Schultz v. Andrews, 54 How., 378; 
 Hunt V. Hunt, supra. 
 
 Where it did not appear that the execution had been 
 returned unsatisfied, a motion to punish a third person 
 for failing to appear was denied. Sloane v. Higgins, 
 I N. Y. M. L. BiilL, 59, Special Term. This decision, if 
 ever made, is wrong. It has no ground to stand upon ; 
 it is based on Holbrook v. Orgler, 40 N. V., Superior 
 Ct.,33. But this latter case does not justify such a 
 decision. 
 
 In a creditor's bill it was no disobedience, punishable 
 as for a contempt, for the judgment debtor to refpse to 
 deliver property to the receiver where it was claimed to 
 be in the possession of another person and to belong to 
 him, unless the master had decided that it did belong 
 to the debtor, or was under his control, i Barb., Ch. 
 Prac, 671. So under the present Code, § 2447, if the 
 judge should make an order requiring a judgment debt- 
 or or other party to pay money or deliver other articles 
 of personal property to the judgment creditor in satis- 
 faction of the judgment, the party so ordered would not 
 be obliged to obey upon the peril of punishment, as for 
 a contempt ; for such an order would be without any 
 authority. The present Code, unlike the former, does 
 not empower a judge to make any such order. He can 
 only direct a party to pay such money or deliver such 
 property to a sheriff or a receiver. § 2447. 
 
 But if the judge should order a party to pay money 
 or deliver articles of personal property to a sheriff or 
 receiver, as prescribed in § 2447, the order will have to 
 be obeyed, and a refusal to do so will be punishable as 
 for a contempt. If the order is irregular or the judge 
 erred in making it, the party's remedy is by appeal for 
 
WHAT IS NO DISOBEDIENCE OF AN ORDER. 229 
 
 its reversal, ^rr The People, etc. v. Kelly, 22 How., 
 309; S. C, sub. nom. Kearney's Case, 13 Abb., 459; or 
 as provided in § 2433 of the Code of Civil Procedure. 
 
 So, where the judge should order a party to pay 
 money or deliver personal property to a sheriff or re- 
 ceiver as belonging to the judgment debtor, the party 
 will be obliged to obey, although the right of the judg- 
 ment debtor to the possession of it is disputed ; for 
 in all these cases the judge has jurisdiction of the per- 
 son commanded and of the subject-matter; and relief 
 from such an order, if deemed erroneous, is by appeal 
 for a reversal, or under § 2433, and a stay in the mean 
 while. 
 
 A party cannot be punished as for a contempt for 
 doing or refusing to do an act not within the terms of 
 the order, as for a refusal to pay money or deliver prop- 
 erty to a receiver, or for collecting costs, when the 
 order does not direct it or forbid it. The People v. 
 King, 9 How., 97; Watson v. Fitzsimmons, 5 Duer, 
 629. German Savings Bank v. Habel, 80 N. Y., 237, 
 5. C, 58 How., 336. So where the order appointing a 
 receiver contained no direction to the judgment debtor 
 to surrender or deliver possession of his property, real 
 or personal, to the receiver, he cannot be adjudged in 
 contempt and punished for refusing or neglecting to do 
 so. The fact that it was his duty to do this because 
 there was a change of title from himself to the receiver 
 and he refused to do it, is no contempt. Tinkey v. 
 Langdon, 60 How., 180, Supreme Ct., Special Term, 
 Backus, J. ; McKelsey v. Lewis, 3 Abb. N. C, 61, 
 N. Y. Superior Ct., Special Term, Van Vorst, J. 
 
 Where an order directs the judgment debtor to de- 
 liver property to a receiver he must make the demand 
 personally to bring the debtor into contempt for refus- 
 ing. Panton v. Zebley, 19 How., 394, N. Y. Superior 
 Ct., Woodruff, J.; McComb v. Weaver, ii Hun, 
 
230 WHAT ACTS NOT PUNISHABLE FOR CONTEMPT. 
 
 271 ; Gray v. Cook, 24 How., 432; Lorton v. Seaman, 
 9 Paige, 609. 
 
 Neglect or refusal to surrender to the receiver chat- 
 tels subject to a demand or overdue chattel mortgage 
 is not .a contempt. Griswold v. Tompkins, 7 Daly, 214 ; 
 Tinkey v. Langdon, 60 How., 1 80. These decisions must 
 be on the ground that the judgment debtor has in law- 
 no longer a right to the possession or control of the 
 chattels in such case, that being then in the mortgagee. 
 
 Where a receiver was in possession of market stands 
 and the iixtures, book accounts, etc., of the judgment 
 debtor, and the permit, issued to him by the comptroller, 
 was revoked, and the city took possession of the stands, 
 and the judgment debtor was afterward put in pos- 
 session of certain of the stands, under a license from 
 the comptroller, and the others were sold by the city to 
 one Blackford, the judgment debtor receiving some con- 
 sideration therefor, but there was no positive proof of 
 any collusion between him and the city authorities, 
 while the judgment debtor expressly swore to the con- 
 trary, it was held that the judgment debtor was not 
 guilty of contempt ; that the receiver should have re- 
 tained possession of the stands, etc., if he wished to re- 
 tain his lien, and that his rights were impaired by his 
 own omissions ; that after the stands came into the pos- 
 session of the city, the judgment debtor could hire 
 them as he could any other stands. Chappell v. Winters, 
 16 N. V. W. Digest, 89. 
 
 A person cannot be punished as for a contempt for 
 bringing an action against a receiver, without leave of 
 couil, for going upon his premises and seizing and 
 carrying away goods in his possession which such per- 
 son had bought from the judgment debtor before the 
 proceedings were instituted in which the receiver was 
 appointed ; because from the facts appearing the re- 
 ceiver had no title to the property nor any right to 
 
IS NON-PAYMENT OF MONEY PUNISHABLE? 23 1 
 
 the possession thereof or to take it from the purchaser, 
 and the order appointing him receiver did not in terms 
 extend to that property. Dewery v. Finn, 18 iV. Y. W. 
 Digest, 558, Supreme Ct., General Term, 4th Judicial 
 Department. 
 
 For Non-payment of Costs. 
 
 Can a party be punished as for a contempt in refusing 
 or neglecting to pay costs ordered to be paid by him 
 under § 2455 or §2456 of the Code of Civil Procedure? 
 These sections provide that the judge may make an 
 order allowing to a party to the proceedings a fixed 
 sum as costs, and directing the payment thereof by the 
 adverse party within a time specified in the order; 
 while § 2457 of same Code provides that a person who 
 refuses, or, without sufficient excuse, neglects to obey 
 an order of a judge or referee, made pursuant to the 
 last two sections (2455 and 2456), and duly served upon 
 him, may be punished as for a contempt. Section 15 of 
 the same Code forbids the arrest or imprisonment of any 
 person for the non-payment of costs — that is, interlocu- 
 tory or motion costs. The section does not include 
 final costs or costs in a judgment. Its provisions are 
 the same as § 2, ch. 390, Laws of 1847, slightly varied. 
 Section 15 does not therefore prohibit punishment for 
 the non-payment of final costs as a contempt. Section 14, 
 subd. 3, same Code, authorizes the court to punish as for 
 a contempt a party to an action or special proceedings 
 for the non-payment of a sum of money ordered or ad- 
 judged to be paid in a case where by law execution 
 cannot be awarded for the collection of such sum. 
 Section 779 of the same Code, as amended in 1882, 
 provides that an execution maybe issued to the sheriff 
 against personal property for the collection of costs. 
 
 Now, if these two sections (14 and 779) stood alone 
 there would be no doubt that no contempt proceedings 
 
232 AS TO THIRD PARTIES. 
 
 could be instituted for the non-payment of any costs. 
 But § 2457 expressly authorizes the court or judge to 
 punish as for a contempt a party who refuses or, without 
 sufficient excuse, neglects to obey an order for the pay- 
 ment of costs. 
 
 When this section (2457) was enacted and went into 
 effect in 1877 no execution could be issued for the col- 
 lection of costs. That was authorized by the amend- 
 ment of 1882 to § 779; and now an execution may be 
 issued to the sheriff for the collection of costs upon an 
 order made by a judge as well as by a court. Valiente 
 V. Bryan, 65 Hoiv., 203 ; S. C, 3 Civ. Pro. R., 358, 
 Marine Ct., Special Term, Hawes, J. 
 
 In Brush v. Lee the judgment debtor was ordered in 
 supplementary proceedings to pay the judgment and 
 $30 costs of the proceedings. He refused to comply on 
 demand. He was adjudged in contempt for non-com- 
 pliance, and punished. Upon appeal to the Court of 
 Appeals • this adjudication was affirmed, the court 
 holding that §2 of the above-named act, 1847, ^s to 
 costs did not apply. I Abb. App., Dec. 238 ; S. C, 
 6 Abb. {N. S.), 50; 2 Trans. App., 98. Here a party 
 ordered to pay final costs was punished as for con- 
 tempt for refusing, and this decision was made at a 
 time when an execution might be issued for the collect- 
 ing thereof. Also see Morrison v. Lester, 15 Hun, 538, 
 General Term ; Lansing v. Lansing, 4 Lans., 377, 
 reversing 41 How., 248. 
 
 As to Third Parties. 
 
 A judge cannot order a debtor of the judgment 
 debtor to pay the debt which he owes him toward the 
 satisfaction of the judgment, and punish him for failing 
 to comply. Such an order would not be merely errone- 
 ous ; it would be without jurisdiction. Under the 
 former Code this power was claimed to exist, and was 
 
AS TO THIRD PARTIES. 233 
 
 sometimes exercised. Se£ Beebe v. Kenyon, 5 N. Y. 
 Supreme Ct. R. {T. & C), 271 ; S. C, 3 Hun, 73, Gen- 
 eral Term. But the existence of this power was denied 
 by the Court of Appeals in West Side Bank-y. Pugsley, 
 47 N. v., 368; S. C, 12 Adb. {N. S.), 28, the court 
 holding that the word " property " used in § 297 (of the 
 former Code) did not include debts, but was limited to 
 goods or specific money, etc., and saying that where 
 the third person is unable or declines to pay such a 
 debt, to require him to pay it or be imprisoned, as for 
 contempt, would be reviving the remedy of imprison- 
 ment for debt in its most odious form. A judge cannot 
 imprison a person, as for contempt, who refuses to obey 
 such an order. The present Code is clear on this point. 
 It does not empower a judge to require a person in- 
 debted to the judgment debtor to pay such debt toward 
 the satisfaction of the judgment. While the occasion 
 in which Beebe v. Kenyon, supra, was decided cannot 
 now arise, yet the principle is applicable to occasions 
 which may arise. In proceedings against a third person, 
 under the former Code, the party admitted on his 
 examination that he was indebted to the judgment 
 debtor in a certain sum. Thereupon an order was 
 made requiring him to pay the same to the plaintiff. 
 On a motion to punish him for not complying with the 
 order, it appeared by affidavits in opposition that long 
 before the order was made to pay this sum to the credi- 
 tor the judgment debtor had absolutely assigned it 
 away and all his interest in it ; and the party then and 
 there moved to vacate the order requiring him to pay 
 it to the plaintiff. It was held on appeal that this 
 latter motion should have been granted ; that the valid- 
 ity and good faith of the alleged assignment could not 
 be tried on a motion ; and as the third party disclaimed 
 any intentional disregard to the court, the adjudication, 
 as for contempt, against him was reversed and the order 
 
234 PROCEDURE TO PUNISH CONTEMPT. 
 
 requiring him to pay the debt to the plaintiff was 
 vacated without costs. 
 
 SECTION IV. 
 The Procedure to Punish as for Contempt. 
 
 The procedure to punish a contempt other than a 
 criminal contempt is now governed exclusively by the 
 Co"de of Civil Procedure. See tit. 3 of ch. 17. The pro- 
 visions of this title are in the main the same as those in 
 the Revised Statutes on that subject, part 3, ch. 8, tit. 13. 
 The procedure to punish as for a contempt prescribed in 
 this article of the Code is made applicable to the de- 
 termination and punishment of a disobedience or any 
 other misconduct in supplementary proceedings which 
 partakes of the nature of a contempt. See §§ 2266 
 and 2457 of the present Code. Kelly v. McCormick, 28 
 N. K, 318 ; Re Smethurst, 2 Sattdf., 724 ; S. C, 4 How., 
 369, and 3 Code i?., 55 ; The People v. King, 9 How., 97. 
 
 All the States which authorize this summary remedy 
 to reach the property of a judgment debtor, have 
 statutory provisions to punish disobedience to orders, 
 subpoenas, etc., similar to those of New York, and 
 make the procedure applicable to a misconduct com- 
 mitted in the course of this remedy. 
 
 Where the offence in New York is committed in the 
 immediate view and presence of the court or of the 
 judge or the referee, upon a trial or hearing, it may be 
 punished summarily. For that purpose an order must 
 be made by the court or judge or refei'ee, stating the 
 facts which constitute the offence and bring the case 
 within the provisions of this section, and plainly and 
 specifically prescribing the punishment to be inflicted 
 therefor. § 2267 of Code of Civil Procedure. 
 
TO PUNISH FOR NON-PAYMENT OF MONEY. 235 
 
 But the power to punish a contempt is not conferred 
 upon a referee appointed in supplementary proceedings. 
 5^^ §2459of present Code and ««^^, ch. 2, § i, "Referee." 
 Hence, although the offence may be committed in 
 the immediate view and presence of the referee, it 
 cannot be thus summarily punished. It must be regu- 
 larly brought before the court or the judge who has 
 jurisdiction to hear and determine the alleged offence 
 and to mete out due punishment therefor. 
 
 Non-payment of Money. 
 
 So where the offence consists of a neglect or refusal 
 to obey an order requiring the payment of costs or a 
 specified sum of money, the court, on being satisfied 
 by proof by affidavit that a personal demand therefor 
 has been made, and that payment thereof has been 
 refused or neglected, may issue without notice a war- 
 rant 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. See § 2268. . This process or warrant of com- 
 mitment is not to require the offender to appear and 
 answer, but to arrest for the purpose of punishment. 
 The People v. King, supra. The sum of money should 
 be liquidated in the order or decree requiring the pay- 
 ment, so that a specific demand of a specific sum may 
 be made, in order to punish the accused as for con- 
 tempt for his refusal. Goodenough v. Davids, 3 N. Y. 
 M. L. Bull., 57, Supreme Ct., Barrett, J. The order 
 should specify the time within which the costs or other 
 sum of money is to be paid. 2 Barb. Ch. Prac, 272. 
 
 This section (2268) does not mention a judge as hav- 
 ing the power to commit to prison, etc., for neglecting or 
 refusing to pay costs or other sum of money ; neither 
 did § 4 of the Revised Statutes' on proceedings as for 
 contempt, from which this Code section was taken ; 
 
236 TO PUNISH MISCONDUCT IN PRESENCE OF COURT. 
 
 yet it was held under this latter statute and the former 
 Code that a judge has the power to punish as for a 
 contempt the disobedience of any order made in these 
 proceedings. Re Smethurst, supra, and § 2457 of the 
 present Code expressly confers this power upon him. 
 
 Instead of pursuing the summary remedy provided 
 for in §§ 2267 and 2268, where an offence is committed 
 in the immediate view and presence of the court, or 
 where a party neglects or refuses to obey an order re- 
 quiring the payment of money, the court or judge may 
 in its or his discretion institute proceedings as for con- 
 tempt against the accused by an order to show cause or 
 a warrant of attachment. See § 2269. This provision 
 supersedes The People v. King, 9 How., 97, where it was 
 held that a warrant of attachment was not a proper 
 remedy in such a case. 
 
 The proceeding to punish a witness for disobeying a 
 subpoena duly served upon him in these proceedings, for 
 refusing to be examined or to answer a legal or perti- 
 nent question, etc., is prescribed by §§ 855-858 of the 
 present Code. 
 
 The warrant of commitment is similar to that here- 
 inafter mentioned. In all other cases of contemptuous 
 misconduct the only course of procedure is either by 
 order to show cause or by a warrant of attachment, 
 or a writ of habeas corpjis instead. 
 
 Where a receiver is charged with contempt for not 
 paying a sum of money out of a fund in his possession 
 as an officer of the court, the proper practice is, not to 
 issue a precept, but to proceed against him by order 
 to show cause. Clark v. Bininger, 75 N. Y., 344. 
 
 To obtain an order to show cause or a warrant of 
 attachment, proof by aiifidavit must be made in every 
 case to satisfy the court or judge of the commission of 
 the offence charged. See § 2269. Ward' v. Arenson, 
 10 Bosw., 589, General Term; Gerregani v. W'heel- 
 
AFFIDAVIT TO OBTAIN ORDER TO SHOW CAUSE. 237 
 
 Wright, 3 Abb. {N. S), 264. The affidavit must fur- 
 nish sufficient proof. An affidavit of the complain- 
 ant's attorney that the sheriff served the order per- 
 sonally upon the accused is not sufficient ; nor is it 
 sufficient to state in the affidavit that some of sev- 
 eral orders have been duly served. De Witt v. Dennis, 
 30 How., 131, Supreme Ct., Special Term, MOR- 
 GAN, J. 
 
 It must be verified before an officer who had author- 
 ity to take the affidavit ; if not, the subsequent pro- 
 ceedings are void, and will be set aside on motion to 
 the court which made the adjudication. The People 
 V. Murphy, i Dafy, 462, General Term. Where the 
 disobedience charged is of an order made by a judge or 
 referee, it must be proved that it was duly served upon 
 the accused. § 2457 of the present Code. 
 
 If the affidavit does not designate the particular of- 
 fence or misconduct complained of, the order to show 
 cause or warrant of attachment is void. De Witt v. 
 Dennis, supra. See also Potter v. Low, 16 How., 549, 
 Supreme Ct., Special Term. But a person merely de- 
 scribing himself as the attorney of the complainant may 
 make the affidavit without further proving his authority 
 to make it. Miller v. Adams, 52 jV. Y., 409, affirming 
 S. C, 7 Lans. 13. That is, 3. prima facie case must be 
 made out, so that if the accused makes default, and does 
 not appear on the return day, the court or judge may 
 at once proceed to pronounce judgment against him, 
 and impose such a penalty upon him as the circum- 
 stances may warrant, unless further evidence be re- 
 quired to assess the damages for the loss or injury 
 which has been produced to the complainant by the 
 offender's misconduct, or to determine the amount of 
 the costs and expenses to which he may be entitled. 
 In such case the court or judge will receive further 
 proof on these questions, or order a reference to ascer- 
 
238 THE ORDER TO SHOW CAUSE. 
 
 tain the facts, and report, before the adjudication is 
 made and the penalty imposed. 
 
 Service of Papers, etc. 
 
 A copy of the affidavits and papers upon which the 
 order to show cause or the warrant of attachment was 
 granted must be served upon the accused a reasonable 
 time before the return thereof, to enable him to make 
 his defence. Ward v. Arenson, 10 Bostv., 589, supra. 
 It is sufficient if such copy is served simultaneously 
 with the order to show cause or the warrant of attach- 
 ment. See Re Smethurst, 2 Sandf., 724 ; S. C, 4 How., 
 369, supra. 
 
 When the alleged contempt was committed before a 
 referee or of his order or subpoena, the moving papers, 
 it seems, should contain the order of examination and 
 reference, or at least enough thereof to show the ref- 
 eree's authority. Wicker v. Dresser, 14 How., 465. 
 
 What Objection cannot be Raised. 
 
 On proceedings to punish as for contempt, the ac- 
 cused cannot object to the regularity of the affidavit on 
 which the order for his examination was made. Such 
 objection should have been taken on the return of the 
 order of examination and before refusing to obey it or 
 submitting thereto. Kelley v. McCormick, 28 N. Y., 
 318 ; S. C, 2 E. D. Smith, '503 ; Hilton v. Patterson, 18 
 Abb., 245 ; Schultz v. Andrews, 54 How., 378, both Su- 
 preme Ct., Special Term, decisions ; Lehmaier v. Gris- 
 wold, 46 N. V. Superior Ct. (14 J. & Sp^R., 11, General 
 Term ; Keller v. Zeigler, 5 N. Y. M. L. Bull., 15, N. Y. 
 Com. Pleas, Special Term, BEACH, J. 
 
 By Order to Show Cause. 
 
 The order to show cause is equivalent to a notice of 
 motion, and the subsequent proceedings thereupon are 
 taken in the supplementary proceedings in which the 
 
WHO MAY MAKE IT. 239 
 
 offence was committed, as upon a motion made therein. 
 See % 2273 of Code. 
 
 Wlien the order to show cause is returnable before the 
 court, it may be made by any judge authorized to grant 
 an order without notice in an action pending in that 
 court, and it must be made returnable at a term of the 
 court at which a contested motion may be heard. See 
 § 2271 of Code. ' 
 
 But this section cannot fully apply to a case of disobe- 
 dience in supplementary proceedings, as they are not an 
 action nor pending in a court. Supplementary proceed- 
 ings in contemplation of law are pending before the 
 judge by whose order they are instituted or before whom 
 it is made returnable under the exception specified in 
 § 2434 of the Code of Civil Procedure, or before the judge 
 who is continuing or may continue them. .S'f^§ 2462 of 
 the present Code. The order to show cause mentioned 
 in § 2269 is a proceeding in the supplementary proceedings 
 in which the disobedience occurred, and is equivalent to a 
 notice of motion therein, § 2273. Hence, no judge 
 can make the order to show cause returnable before 
 the court designated in § 2271 but he who may con- 
 tinue the proceedings at the time the order is made. 
 To illustrate, an execution is issued out of the City 
 Court of Brooklyn to the county of New York, where 
 the judgment debtor resides, and proceedings are taken 
 against him there before a judge of the N. Y. Court of 
 Common Pleas. He is guilty of a disobedience of an 
 order. Section 2457 of the Code of Civil Procedure pro- 
 vides that the court out of which the execution was 
 issued — namely, the City Court of Brooklyn, in such case 
 may punish the offence as for a contempt. But no statute 
 gives a judge of that court any authority to continue 
 proceedings pending before a judge of the N. Y. Com- 
 mon Pleas, or make an order therein. Hence, the order 
 to show cause returnable before the court out of which 
 
240 NATURE OF THE ORDER TO SHOW CAUSE. 
 
 the execution was issued cannot always be made " hya 
 judge authorized to grant an order without notice in an 
 action pending in the court," as mentioned in § 2271. 
 It must always be made by a judge who could continue 
 the supplementary proceedings in which the offence 
 was committed. 
 
 An order to show cause why the accused should 
 not be punished for the alleged offence and made re- 
 turnable before a judge, as provided in § 2269, may be 
 granted by any judge who could continue the supple- 
 mentary proceedings in which the alleged offence was 
 committed, but he must make it returnable before him- 
 self at a time and place specified, the place being where 
 the proceedings are prosecuted or pending. Kelly v. 
 McCormick, 28 N. Y., 308, affirming S. C, 2 E. D. 
 Smith, 503. 
 
 The court also out of which the execution was issued 
 may grant this order to show cause, and make it return- 
 able before itself (see § 2269) at a term thereof at which 
 a contested motion may be heard. The order is an or- 
 dinary one, and served like any other similar court 
 order. And the court or judge must, in every case of al- 
 leged disobedience, grant such an order, to show cause or 
 a warrant of attachment, upon being satisfied by affidavit 
 of the commission of the offence, except in a case 
 specified in § 2267 or 2268. See § 2269. 
 
 Nature of the Order. 
 
 This order to show cause is not for the accused to 
 show cause why a warrant of attachment should not be 
 issued against him to bring him before the court or 
 judge, but to show cause why he should not be punish- 
 ed for the alleged offence. § 2269. It is equivalent to 
 a notice of motion, and the subsequent proceedings 
 thereupon are taken in the supplementary proceedings 
 as upon a motion made therein. See § 2273. 
 
TITLE — SERVICE OF THE ORDER. 24I 
 
 Formerly, when on a reference before a master in 
 chancery a party or witness was in default, the practice 
 was to procure and serve an order on the offending per- 
 son, requiring him to appear before the master on a day 
 and hour named, and answer or perform what was de- 
 manded of him, or' to show cause at a subsequent time 
 and place designated why he should not be punished. 
 The thing to be done had to be specifically set forth. 
 This practice is convenient, and might be adopted in 
 these proceedings in cases of reference. It is not 
 abolished or superseded by the Code practice. 
 
 Title. 
 
 The title of the proceeding on an order to show cause 
 is that of the supplementary proceedings in which the 
 alleged offence was committed. See § 2273. 
 
 Service of the Order, 
 
 It is not necessary to make personal service of this 
 order to show cause upon the accused. It may be 
 served upon his attorney, Pitt v. Davison, 37 N. Y., 
 235 ; S. C, 34 How., 355 ; and 3 Abb. {N. S), 398 ; and 
 4 Trans. App., 266, reversing S. C, 37 Barb., 97, and 
 affirming 12 Abb., 385, Special Term. The court 
 (in Pitt V. Davison) bases its decision on the ground 
 that a contempt proceeding to enforce a civil remedy 
 is a proceeding in the original action. So also held in 
 Seeley v. Black, 35 How., 369; and see Brush' z/. Lee, 
 6 Abb. {N. S), 50, supra. 
 
 The Code of Civil Procedure is explicit on this 
 point — namely, that the proceeding on an order to show 
 cause is a part of or in the supplementary proceedings 
 {see § 2273) ; and, as it does not prescribe a mode of ser- 
 vice, service of the order on the attorney of the accused 
 must be sufficient, and a copy of the affidavit and other 
 written proof on which the order was made should be 
 served with the order to show cause. 
 
242 PROCEEDING ON RETURN OF ORDER. 
 
 On Return of Order. 
 
 Upon the return of the order to show cause, the 
 questions which arise must be determined as upon any- 
 other motion, and if the determination is to the effect 
 that the accused has committed the offence charged, and 
 that it was calculated to, or actually did, defeat, impair, 
 impede, or prejudice the rights or remedies of the judg- 
 ment creditor, the court or judge must make a final 
 order accordingly, and direct that he be punished by 
 fine or imprisonment, or both, as the nature of the case 
 requires. Upon a certified copy of this order, the of- 
 fender may be committed without further process. See 
 §2283 of Code. 
 
 If the accused appears, but does not deny the con- 
 tempt, or makes default, or fails to show cause, he may 
 be punished without further proceeding. Re Smeth- 
 urst, 2 Sandf., 724 ; Albany City Bank v. Schermerhorn, 
 
 9 Paige, 372. The denial of the accused must be on 
 oath or affidavit. No interrogatories need be filed on an 
 order to show cause, even if the accused denies the con- 
 tempt. Pitt V. Davison, 37 N. ¥., 235, supra, reversing 
 S. C, 37 Barb., 97, and overruling Albany City Bank 
 V. Schermerhorn, supra. Also Watson v. Fitzsimmons, 
 
 5 Dtier, 629, affirmed by the Court of Appeals. See 
 
 10 Boszv., 697 ; also The Mayor, etc., of N. Y. v. The 
 N. Y. and S. I. Ferry Co., 64 N. Y., 622 ; Brush v. Lee, 
 
 6 Aib. {N. S.), 50; S. C, I Abb. App., Dec. 238, supra. 
 The practice does not call for interrogatories. 
 
 The proceeding by order to show cause is intended 
 by the statute for a summary remedy. If the judg- 
 ment creditor wishes to obtain the written answers of 
 the accused under oath to interrogatories, and to cross- 
 examine thereon, he must pursue the more formal and 
 protracted remedy by warrant of attachment. Brush v. 
 Lee, supra. Interrogatories may, however, be filed, and 
 the accused be required to answer them under oath. 
 
REFERENCE MAY BE ORDERED. 243 
 
 Watson V. Fitzsimmons, stipra. The court or judge 
 may also order a reference to a referee in any case, 
 whether the accused makes default or does not deny 
 the contempt or appears and denies the complainant's 
 accusations. The reference may be to take evidence 
 upon the damages for the complainant's loss or injury 
 produced by the misconduct of the accused, or to take 
 proof upon any other question in the premises, and re- 
 port the same or the facts found, to enable the court or 
 judge to determine the motion or to impose the proper 
 penalty. Such a reference is plainly authorized by 
 §§ 2273 and 2443 of the Code of Civil Procedure. 
 
 It is the duty of the referee to take proof so as to 
 determine the extent of the loss or injury by violation 
 of the injunction suffered by the complainant. 
 Harteau v. Deer Park Blue Stone Co., i Hun, Oi-C^i. 
 
 The complainant must make out a clear and complete 
 case against the accused on the return of the order to 
 show cause to entitle him to relief, whether the accused 
 makes default, or appears and fails to show cause, or 
 denies the charge made against him. Fischer v. Raab, 
 81 N. v., 236. In Tinkey v. Langdon, 60 How., 180, 
 Supreme Ct., Special Term, the court had adjudged 
 the accused guilty of contempt, and imposed a 
 penalty upon him by default. On a motion to set aside 
 the order, the court held that the plaintiff was bound to 
 make out a case for granting it upon the merits, the 
 same as if the accused had been present and objected 
 to the proceeding ; and if he failed to make out his case, 
 the accused might and should move to set the same aside. 
 
 Where a judgment debtor was proceeded against by an 
 order to show cause for refusing to pay a sum of money 
 required to be paid, instead of the more summary way 
 authorized by §§ 2267 and 2268 of the present Code, 
 the Court of Appeals held that such order was an 
 ordinary one, and not the order to show cause prescribed 
 
244 WHEN A DEBTOR CANNOT BE PUNISHED. 
 
 by the Revised Statutes to inaugurate proceedings 
 to punish as for contempt, and upon the return thereof, 
 it was not necessary to adopt the practice as to proof, 
 which prevails in the latter case. Brush v. Lee, i Abb. 
 App., Dec. 238; S. C, 6 Abb. {N. 5.), 50, and 2 Trans. 
 Appeals, 95. In Tinker v. Crooks, 22 Hun, 579, General 
 Term, the judgment debtor had appeared before the 
 judge pursuant to order, and instead of submitting 
 to examination admitted the possession of money and 
 property sufficient to satisfy the judgment, and 
 requested and obtained a postponemeftt of the pro- 
 ceeding to a future day, to enable him to apply such 
 money and property upon the judgment. It was held 
 that the judge could not, in the order so postponing 
 the proceedings, adjudge the debtor, in default of 
 such payment, guilty of contempt, fine him a specified 
 sum of money, and commit him to the common jail 
 until the fine be paid ; that the consequences of dis- 
 obedience could not be thus summarily declared ; the 
 defendant could only be convicted of contempt in the 
 manner pointed out by the law, by the regularly and 
 orderly proceeding under an attachment or order to 
 show cause. He is entitled to an independent hearing 
 in the proceeding. In stating the practice, the court 
 here appear to have overlooked the statutory provision 
 allowing a precept of commitment to issue ex parte in 
 case of a disobedience to an order to pay money. 
 However, this fact does not affect the correctness of 
 the decision as to the impropriety of the order appealed 
 from in these proceedings. 
 
 Where the accused appears upon the return of an 
 order to show cause, denies the contempt, and joins is- 
 sue with the complainant, the affidavits and papers by 
 which the proceeding was instituted are not competent 
 evidence upon the issues thus made ; the common law 
 rules of evidence must prevail. Matter of Eldridge, 82 
 
WHAT COMPLAINANT MUST SHOW. 245 
 
 N. Y., 161. In this case the issues formed by the an- 
 swer of the accused on an order to show cause why he 
 should not be disbarred for unprofessional misconduct 
 were referred to and heard by a referee. 
 
 In a charge made against a judgment debtor for vio- 
 lating the injunction served on him by interfering with 
 property, the complainant must show affirmatively that 
 the property was acquired prior to the service of the 
 injunction. Potter v. Low, 16 How., 549, Supreme Ct., 
 Special Term, Balcolm, J. Gerregani v. Wheelwright, 
 3 Abb. (TV. S.), 264, N. Y. Com. Pleas, Special Term. 
 So it must also be shown that the legal title to the 
 money in question was in the judgment debtor. Dean 
 V. Hyatt, 5 N. Y. IV. Digest, 67, Supreme Ct., General 
 Term. In this last case the money, the proceeds of an 
 insurance policy taken out in the name of the judgment 
 debtor, but upon his wife's property, was deposited in 
 bank in her name, and he, at her request, after the service 
 of the injunction, drew a check upon the deposit in her 
 name in favor of another person. At best for the 
 judgment creditor, it was a question of fact whether- 
 the money belonged to the debtor or to his wife, 
 and this issue could not be tried in a contempt pro- 
 ceedings, but by the ordinary procedure in an action. 
 If therefore any doubt arises in the course of the con- 
 tempt proceeding, the accused gets the benefit thereof. 
 
 To punish one as for contempt in not paying money 
 or delivering property pursuant to an order made there- 
 for, it must not only appear that the order or judgment 
 was served upon him, and he made fully aware of its ef- 
 fect, but in addition thereto that a compliance with the 
 order or judgment was explicitly demanded by a person 
 who had the right to make the demand ; and when the 
 order is to pay money or deliver property to a receiver, 
 it must appear that the receiver personally made the 
 demand therefor ; because the proceeding as for con- 
 
246 SUSPICIOUS CIRCUMSTANCES MAY BE PROVED. 
 
 tempt is strict i Juris, and the rights of the defendant 
 must be carefully preserved, and no conviction should 
 be had unless upon clear evidence. McComb v. Wea- 
 ver, II Hun, 271, General Term. Also Tinkey v. Lang- 
 don, 60 How., 180, supra. Panton z/. Zebley, 19 How., 
 394, and Gray v. Cook, 24 Id., 432, both N. Y. Superior 
 Ct., Special Term, cases ; Lorton v. Seaman, 9 /kz^i?, 609. 
 
 In a proceeding as for contempt suspicious circum- 
 stances unexplained may in some cases be sufBcient 
 proof of the offence ; but they cannot overcome positive 
 and explicit testimony to the contrary, or fully clear 
 the suspected party. Slater v. Merritt, 75 N. Y., 268 ; 
 Chappell V. Winters, 16 TV. Y. W. Digest, 89. So 
 where a motion is made that the debtor be ordered to 
 pay the judgment, or be committed to jail, the creditor 
 must establish that he has the money or means to pay, 
 before such order can be made. He cannot be com- 
 mitted on suspicion ; nor can an order be made that 
 would have that result, unless it is admitted or proven 
 that he can comply with such order. Peters v. Kerr, 
 ■22 How., 3. But the judge may determine that the 
 debtor has property or money which should be applied 
 upon the judgment, although he denies under oath 
 that he has any, and may imprison him upon his refusal 
 to obey the order so to apply the same. In the Matter 
 of Pester, 2 Code R., 98 ; see ante, p. 128. 
 
 These two decisions were made in the early period 
 of the former Code. 
 
 Where a person is proceeded against for failing to 
 attend before a judge pursuant to an order made and 
 served upon him, no proof of his failure to appear is 
 necessary to enable the judge to punish him as for a 
 contempt. The judge has judicial knowledge of that 
 fact. See Miller v. Adams, 52 N. Y, 409 ; affirming 
 S. C, 7 Lans., 131. 
 
 In a proceeding against a third party for not appear- 
 
PROOF OF DAMAGES. 247 
 
 ing in obedience to an order for his examination, if the 
 allegation in the original aiifidavit, that he has money 
 or property of the judgment debtor, was sworn to 
 upon information andbehef, without stating the sources 
 of information, the order to show cause should be dis- 
 missed. So held by Van Brunt, J., in The People v. 
 Jones, I Abb. N. C, 172, N. Y. Com. Pleas, Special 
 Term. This decision is doubtful ; for the defect in the 
 original affidavit seems a mere irregularity, which was 
 waived by failing to appear on the examination and 
 object. Kelly v. McCormick, 28 N. V., 318 ; Hilton v. 
 Patterson, iS Abb., 24s. See Miller v. Adams, stipra, 
 Grover, J. 
 
 A sufficient continuity of the supplementary proceed- 
 ings should also be shown, in order that it may appear 
 that the disobedience has not been waived or the pro- 
 ceedings lapsed for some reason. See Ammidon v. 
 Wolcott, 15 Abb., 314. This case has been largely 
 superseded by § 2454 of the Code of Civil Procedure. 
 
 Proof of Damages, etc. 
 
 If the complainant seeks indemnity for his loss or 
 injury produced by the misconduct of the accused, and 
 for his costs and expenses, and an allowance in addition 
 thereto, he must prove the same by competent evi- 
 dence. As to such loss or injury, it must be proved by 
 like evidence and by the same rules of law as would be 
 required on the trial of an action brought for the same 
 loss or injury. Sudlow v. Knox, 7 Abb. {N. S.), 411, 
 Ct. of Appeals ; Dejonge v. Brenneman, 23 Hun, 332, 
 General Term. As to expenses, it is held that the 
 complainant may be allowed what he paid out for 
 counsel fees or attorney's services in the contempt 
 proceeding as an expense, but he must show what 
 they were and the amount which he actually paid. 
 See People v. The Roch. and State Line R. R. Co., 76 
 JV. v., 294. 
 
248 WHAT THE ACCUSED MAY SHOW. 
 
 What the Accused may Show. 
 
 The accused may show his inability to comply with 
 the order as an excuse for not obeying it. Meyers v. 
 Trimble, 3 E. D. Smith, 607; S. C, i Abb., 399; 
 McCartan v. Van Syckel, \o Bosw., 694; Goodenough v. 
 Davids, 4 N. Y. M. L. Bull., 35, Supreme Ct. Ch., 
 Barrett, J. ; Doran v. Dempsey, i Bradford, 490. 
 Also Beebe v. Kenyon, 5 N. V., Supreme Ct. R. {T. &■ 
 C), 271 ; S. C, 3 Il2m, 73, General Term; Cochran v. 
 Ingersoll, 13 Hun, 368, General Term; appeal dis- 
 missed, 73 Al. v., 613. Where he is accused of a' vio- 
 lation of an injunction served upon him, he may show 
 that the violation was accidental, ■ and not intentional, 
 and that he honestly intended to conform to the in- 
 junction. Hazard v. CasVvell, 8 iV. V. W. Digest, 492. 
 Here the violation related to a few items only. Also, 
 Knowles v. De Lozere, 8 N. Y. Civ. Pro. R., 386, N. Y. 
 Com. Pleas, Special Term. If he is accused of neglect- 
 ing or refusing to obey an order for his examination, 
 he may show, if such is the fact, that the order has 
 been since superseded by another, or otherwise. Gay- 
 lord V. Jones, 7 Hicn, 480. If as a witness he is 
 accused of failing to attend pursuant to a subpcena, 
 he may show that no proceedings were pending 
 at the time he was required to attend. Thomas v. 
 Kircher, 15 Abb. N. S., 342, N. Y. Com. Pleas, J. F. 
 Daly, J. He may dispute and show to the contrary 
 any fact which the complainant is bound to prove to 
 maintain his charge against him. 
 
 No Defence. 
 
 But it is no defence to a proceeding for contempt 
 against a judgment debtor for failing to appear for 
 examination, to prove that the summons by which the 
 action was commenced was not served upon him. His 
 course was to apply to the court in which the judgment 
 
WARRANT OF ATTACHMENT — NATURE OF. 249 
 
 was recovered to set it aside on that ground. Keller 
 V. Zeigler, N. Y. Com. Pleas, 5 N. Y. M. L. Bull., 15, 
 Beach, J. 
 
 Inability to comply with the order disobeyed is no 
 defence, where it is voluntarily caused. The People v. 
 Bergen, 53 iV. K, 404; S. C, 15 Abb. {N. S.), 97; 6 
 Hitn, 267 ; Perkins v. Taylor, 19 Abb., 146 ; People v. 
 Kearney, 21 How., 74, BROWN, J. 
 
 In a proceeding as for contempt to enforce a civil 
 remedy, it is no defence that the act complained of was 
 done under advice of counsel. Erie Ry. Co. v. Ram- 
 sey, 45 Al. Y., 637, affirming 3 Lans., 178 ; The People 
 V. Compton, i Dueri, 512; Grimm v. Grimm, i E. D. 
 Smith, 190. It may be a defence in a proceeding for 
 criminal contempt if properly shown. See above cases. 
 It is no defence in a proceeding to punish as for con- 
 tempt a disobedience to an order, that an appeal has 
 been taken therefrom which is pending when no stay 
 has been obtained. The People, etc. v. Bergen, 53 
 N. Y., 404; ic. Abb. {N. S.), 97; nor is it a defence to 
 a violation of an injunction that it was done by the 
 command or direction of a superior. Krom v. Hogan, 
 4 How., 225 ; S. C, 2 Code R., 144, Parker, J. 
 
 Waiver. 
 
 Where the accused appeared on the return day of a 
 notice of motion to punish him as for contempt, and 
 submitted himself to the proceeding without objection, 
 held that he could not afterward object that an order 
 to show cause and not a notice of motion was the 
 proper mode to. initiate such proceeding ; that this 
 irregularity was waived by appearing and answering 
 without objection. Wilson v. Greig, 12 N. Y. IV. 
 Digest, 73. 
 
 By Warrant of Attachment — Nature of. 
 
 A warrant of attachment is a mandate whereby an 
 
250 WHO MAY ISSUE IT. 
 
 original special proceeding is instituted against the 
 accused in behalf of the people upon the relation of the 
 complainant. § 2273 of Code. It is a mode of bring- 
 ing the accused before the court or judge, and gives it 
 or him control of his person. But it is not issued for 
 the purpose of punishment after a final adjudication. 
 Re Smethurst, -.2 Sandf., 724 ; Albany City Bank v. 
 Schermerhorn, 9 Paige, 372. It is directed to the sheriff 
 of a particular county or, generally, to the sheriff of 
 any county where the accused may be found, command- 
 ing him to arrest the accused and bring him before the 
 court or judge either forthwith or at a time and place 
 therein specified, to answer for the alleged offence. 
 § 2269 of Code. 
 
 Who may Issue the Warrant of Attachment. 
 
 See ante, this section, under " By Order to Show 
 Cause." The court out of which the execution was 
 issued may issue the warrant of attachment, and make 
 it returnable before itself. § 2269. A judge may also 
 issue it, and make it returnable before the court, but, 
 quaere, must a judge who can continue the supplemen- 
 tary proceedings in which the alleged offence was com- 
 mitted issue this warrant of attachment, or must a 
 judge of the court or a judge authorized by statute 
 to grant an ex parte order, etc., for that court issue the 
 warrant ? The warrant of attachment is different from 
 an order to show cause : it is a mandate whereby an 
 original special proceeding is instituted in behalf of the 
 people, etc. See § 2273 of Code. 
 
 A judge who could continue the supplementary pro- 
 ceedings in which the offence was committed may also 
 issue this attachment, and make it returnable before 
 himself out of court, at a time and place specified in 
 the warrant of attachment, which is usually the place 
 where the supplementary proceedings are pending, so 
 
TITLE OF THE WARRANT. 25 1 
 
 that if he is not there upon the return thereof, the judge 
 acting in his stead will have jurisdiction to entertain 
 the proceeding. See § 2269. The judge should make 
 such a warrant of attachment returnable before himself, 
 and not before one of the judges. Kelly v. McCormick, 
 28 N. v., 318, affirming 6". C, 2 E. D. Smith, 503. 
 
 Title. 
 
 The title of proceedings by warrant of attachment 
 is : The People upon the relation of the complainant 
 or judgment creditor against the accused, § 2273, 
 Seeley v. Black, 35 How., 369, is superseded so far as 
 it held that contempt proceeding by attachment was a 
 proceeding in the action ; so also Stafford v. Brown, 4 
 Paige, 360; The People v. Craft, 7 Id., 325; Brown 
 V. Andrews, i Barb., 227, are superseded where they 
 state that if the contempt proceeding is against a party 
 to the action, the affidavits, warrant of attachment, and 
 all the other proceedings are properly entitled in the 
 original cause. 
 
 However, the affidavits and order for a warrant of 
 attachment to issue are entitled in the supplementary 
 proceedings in which the alleged offence was com- 
 mitted. Matter of Bronson, 12 Johns., 460; Folger 
 V. Hoogland, 5 Id., 235. 
 
 It was stated that the practice in the New York Com- 
 mon Pleas was not to issue a warrant of commitment 
 in the first instance for a default ; but a bailable attach- 
 ment is allowed. See Fisher v. Doyle, 2 N. Y. M. L. 
 Bidl, 43, Larremore, J. 
 
 Proceeding by a warrant of attachment is not the 
 proper remedy for a refusal or neglect to obey an order 
 for the payment of a sum of money. A precept of 
 commitment ought to issue. The People v. King, 9 
 How., 97. 
 
 It is the practice in the ist Judicial Department and 
 
252 PROOF REQUIRED FOR A WARRANT. 
 
 in some other parts of the State not to issue a warrant 
 of attachment in the first instance, but to require a 
 notice of motion or order to show cause to be served on 
 the accused for an attachment, so as to enable the 
 accused to explain or excuse his default, if he can, 
 before resorting to the harsh remedy of an attachment. 
 The notice of motion or order to show cause is accom- 
 panied with a copy of the affidavit or proof upon which 
 the complainant expects to move. Upon the hearing 
 of such motion, if the offence is not excused or some 
 other way disposed of, and the affidavits of the parties 
 are conflicting, a warrant of attachment will properly 
 issue to bring the accused into court, so that he may be 
 examined on interrogatories and witnesses may be com- 
 pelled to attend. McCredie v. Senior, 4 Paige, 378. 
 
 Proof. 
 
 To entitle the complainant to a warrant of attach- 
 ment, the court or judge must be satisfied by affidavit 
 of the commission of the offence ; and on being so sat- 
 isfied, an order to show cause must be granted or a war- 
 rant of attachment issued, except in a case specified in 
 § 2267 or 2268, which may be summarily punished. 
 There must be due proof of all the facts required for 
 the issuance of the warrant. See ante, under " By 
 Order to Show Cause," this section. 
 
 No warrant of attachment for a refusal to answer a 
 question before a master in chancery could be had, 
 unless the master decided the question to be proper. 
 Fobes V. Meeker, 3 Edw., 452. 
 
 The Warrant of Attachment. 
 
 Where the warrant is issued by order of the court, 
 the clerk issues it under its seal. Where it is issued 
 by a judge out of court, it requires neither the sig- 
 nature of the clerk nor the impression of the seal of 
 
INDORSEMENT ON WARRANT. 253 
 
 a court to give it validity, no more than the warrant 
 of arrest, authorized by § 2437 of the Code of Civil Pro- 
 cedure does, or the order of arrest, or the warrant of 
 attachment against property when made by a judge in 
 provisional remedies. It is simply the order of a judge, 
 acting in another capacity than as a member of the 
 court, and needs but his own signature thereto to give 
 it force. In fact, the signature of a clerk or the seal of 
 a court to the warrant seems improper ; for it may 
 appear to be issued by the court, when the court, in fact, 
 has no jurisdiction to issue it, for the reason that it did 
 not issue the execution upon which the supplementary 
 proceedings are based. 
 
 The warrant of attachment should recite the succes- 
 sive steps of the proceedings, or, at least, enough of 
 them to show jurisdiction on its face. It should not 
 contain an adjudication of the offence, but only com- 
 mand the sheriff to whom it is directed or delivered to 
 arrest the accused and bring him before the court or 
 judge, either forthwith or at a time and place therein 
 specified, to answer for the alleged offence. See § 2269. 
 
 Indorsement upon Warrant. 
 
 The court or judge may, in its or his discretion, by an 
 indorsement on the warrant of attachment, fix the sum 
 in which the accused may give an undertaking for his 
 appearance to answer. See § 2275. 
 
 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. § 2274. Ward 
 V. Arenson, 10 Bosw., 589. 
 
 See §§ 2276 and 2277, as to how the sheriff is to exe- 
 cute the warrant of attachment, whether it is indorsed 
 by the court or judge or not, as prescribed in § 2275. 
 A bond taken from a party arrested upon a warrant of 
 attachment in proceeding as for contempt, with one 
 
254 HABEAS CORPUS INSTEAD OF WARRANT. 
 
 surety instead of two, is irregular, not void ; but if 
 the sheriff should discharge him on such a bond, he 
 would no doubt be liable as for an escape. Morton v. 
 Campbell, 14 Abb., 410. 
 
 Waiver. 
 
 The accused waives any irregularity in the proceed- 
 ings as for contempt in which he was arrested, by giv- 
 ing bail to obtain his discharge ; and his sureties are 
 not in a position to make any such objection when he has 
 waived it. Kelly v. McCormick, 28 N. Y., 318, afifiirm- 
 ing S. C, 2 E. D. Smith, 503 ; Park v. Park, 80 N. V., 
 156, affirming S. C, 18 Hun, 466. 
 
 Habeas Corpus instead of Warrant. 
 
 If the accused is in the custody of the sheriff or 
 other officer by virtue of an execution or a mandate 
 for another contempt or misconduct, etc., a warrant 
 of attachment cannot be issued, but a writ of habeas 
 corpus instead must be issued by the court. See 
 § 2278. This section does not seem to confer author- 
 ity upon a judge to issue the writ of habeas corpus in 
 such case. 
 
 Return of the Warrant, etc. 
 
 The sheriff or other officer must file the undertaking, 
 if any, taken by him, with the return to the warrant or 
 writ of habeas corpus. § 2279. If there is any irregu- 
 larity in the proceeding in which the accused was ar- 
 rested, he must raise the objection, and move to vacate 
 it on that ground, upon the return of the warrant or 
 writ. He cannot wait until the proceedings upon the 
 warrant or writ are closed and a motion for judgment 
 is made, and then raise the objection. Hilton v. Pat- 
 terson, 18 Abb., 245, Supreme Ct., Special Term. See 
 Kelly V. McCormick, supra, as to waiver of irregularities 
 by giving bail. 
 
INTERROGATORIES AND PROOF. 255 
 
 Where a warrant of attachment is regular on its face, 
 and contains the necessary recitals to confer jurisdic- 
 tion, a party moving to set it aside for defects in 'the 
 proceeding must affirmatively show the defects, or 
 enough to throw the onus on the other party. Baker 
 V. Stephens, 10 Abb. {N. S.), i N. Y. Com. Pleas, Gen- 
 eral Term. 
 
 Interrogatories and Proof. 
 
 Where the accused is produced by virtue of a war- 
 rant or a writ of Jiabeas corpus, or appears upon the 
 return of a warrant, the court or judge must, unless 
 he admits the offence charged, cause interrogatories 
 to be filed specifying the facts and circumstances of 
 the offence charged against him. The accused must 
 make written answers thereto, under oath, within such 
 reasonable time as the court or judge allows therefor ; 
 and either party may produce affidavits or other proofs 
 contradicting or corroborating any answer. Upon the 
 original affidavits, the answers, and subsequent proofs 
 the court or judge must determine whether the accused 
 has committed the offence charged. See § 2280. De 
 Witt V. Dennis, 30 How., 131 ; Watson v. Fitzsim- 
 mons, 5 Duer, 629 ; Re Smethurst, 2 Sandf., 724 ; Mc- 
 Credie v. Senior, 4 Paige, 378. 
 
 When, on the return of the warrant of attachment, 
 the accused denies nothing that is alleged against 
 him, no interrogatories need be propounded. Lathrop 
 V. Clapp, 40 N. v., 328, affirming S. C, 23 How., 423. 
 
 Where interrogatories are filed, the better practice is 
 to serve a copy of them upon the accused, and give 
 him a reasonable time to answer them, on oath. 
 DeWitt V. Dennis, supra. The Code of Civil Proced- 
 ure does not in terms require the service of a copy of 
 the interrogatories upon the accused, but it prescribes 
 that he must make written answers thereto, under 
 
256 PRACTICE AS TO FILING INTERROGATORIES. 
 
 oath, within such reasonable time as the court, etc., 
 allows therefor. 
 
 The order directing the accused to answer the inter- 
 rogatories filed against him should be in writing, so 
 that he may know what he is required to do. DeWitt 
 V. Dennis, supra. 
 
 The former practice was to file interrogatories within 
 four days after the return of the attachment, and the 
 defendant either remained in custody, or put in bail, or 
 his recognizance was taken to appear from day to day, 
 until the court determined the case. Herring t'. Tylee, 
 I Johns. Cas., 3 1 ; The People v. Teff t, 3 Com., 340. 
 
 If the interrogatories were not exhibited within that 
 time the defendant might move to be discharged out of 
 custody, or if out on bail, for the discharge of his re- 
 cognizance. But the prosecutor might exhibit his in- 
 terrogatories any time before the motion was actually 
 made, i Graham s Pr. (2d ed.), 696 ; Crarys Sp. Pro., 
 p. 405. This practice, it is said, still prevails in the 
 Supreme Court ; except when the attachment is re- 
 turnable at a special term, the interrogatories must be 
 filed within two days. The People v. Munro, 15 How., 
 i\(^A,. The court will direct the defendant to make 
 written answers to the interrogatories upon oath, and 
 file the same within a specified time. If he refuses to 
 make such written answers within the time directed, he 
 may be recommitted ; or if out on bail, and he fails to 
 attend to be examined, the court may award another 
 attachment, or may order the bond taken on the arrest 
 to be prosecuted, or both. 2 R. S., p. 537, § 13 ; Id., 539, 
 § 27. The interrogatories must be confined to the sub- 
 ject-matter of the misconduct alleged. If they are im- 
 proper, the defendant may except or demur to them. 
 Thus, he may demur if they relate to other alleged con- 
 tempts than that for which he was arrested. Crarys 
 Sp. Pro., p. 406. If they are defective, they may be 
 
REFERENCE TO EXAMINE PARTY, ETC. 257 
 
 amended where that is necessary to explain an ambi- 
 guity or to obtain a full answer to matters already 
 stated. Herring v. Tylee, supra; People v. 'Brown, 
 6 Cow., 41. But it seems no amendment will be 
 allowed for the purpose of introducing any new matter. 
 Herring v. Tylee. 
 
 All the interrogatories material to show the alleged 
 misconduct must be answered, as well as those which 
 are designed to show by the answers of the accused the 
 true nature and character of the misconduct. People 
 V. Compton, i Duer, 512. 
 
 Reference to Examine Party, etc. 
 
 § 2280 of the present Code, which prescribes the mode 
 of proceeding to determine the guilt of the accused 
 after the return of the warrant of attachment, is silent 
 as to ordering a reference. The practice, if still in force, 
 is substantially as follows : 
 
 The court may also order a reference to some suit- 
 able person to take the answers of the defendant to the 
 interrogatories, and to take and report such other proof 
 as either party may wish to produce in respect to the 
 alleged contempt. Gumming v. Waggoner, 7 Paige, 
 603 ; 2 Barb. Ch. Prac, 277 ; Crarys Sp. Pro., 407. The 
 court will not, as a general rule, z^Xoyn ex parte affidavits 
 to be used on such reference, but will compel the par- 
 ties to produce and examine the witnesses before the 
 referee, so that they may be cross-examined by the ad- 
 verse party. If the answers of the accused are short and 
 evasive, they may be excepted to ; and if they appear 
 to be insufficient, the court will order them to be sent 
 back to the referee, that they may be fully an- 
 swered. Id. 
 
 After the answers of the accused and the other proofs 
 have been taken, the referee must report the same to 
 the court. It is not enough that he report merely his 
 
258 ADJUDICATION — PUNISHMENT. 
 
 opinion upon such proofs. Albany City Bank v. Scher- 
 merhorn, 9 Paige, 372. 
 
 See above, under " Order to Show Cause," as to proof. 
 These various proceedings require alike satisfactory 
 proof. 
 
 Adjudication. 
 
 The determination of the court or judge is similar, 
 whether the proceedings to punish as for a contempt 
 are instituted by an order to show cause, or a warrant 
 of attachment, or writ of habeas corpus. In either case 
 it is to be determined from the proofs submitted,, as 
 above mentioned, whether or not the accused has com- 
 mitted the offence charged, §§ 2280, 2282, and 2283, 
 and the extent of the penalty ; for the proceeding being 
 a proceeding to enforce a civil remedy, the court or 
 judge must also ascertain and determine from the evi- 
 dence whether or not the oflence charged was calculat- 
 ed to, or actually did, defeat, impair, impede, or preju- 
 dice the rights or remedies of the complainant and the 
 amount of fine to be imposed therefor, if any, as an in- 
 demnity to the aggrieved party. And where an order 
 requires a receiver to pay out of a fund officially in his 
 possession to a party having a sum of money for which 
 he has a lien dn such fund, and he disobeys, the justifi- 
 able inference is that such conduct impedes and impairs 
 rights and remedies of the party. Clark v. Bininger, 
 75 N. Y., 344. 
 
 The Punishment. 
 
 If it is determined that the accused has committed 
 the offence charged, and that it was calculated to, or 
 actually did, defeat, impair, impede, or prejudice the 
 rights or remedies of the complainant in the supplement- 
 ary proceedings, the court or judge must make the 
 final order accordingly, and direct that he be punished by 
 fine or imprisonment, or both, as the nature of the case 
 
WHAT THE PENALTY MAY BE. 259 
 
 requires. A warrant of commitment must issue ac- 
 cordingly {see § 2281) ; and in proceedings instituted by 
 an order to show cause, the questions which arise upon 
 the return thereof must be determined as upon any 
 other motion ; and if the determination is to the effect 
 above specified, the order thereupon must be to the same 
 effect as the final order above prescribed — to wit : direct- 
 ing punishment by a fine or imprisonment, or both. 
 Upon a certified copy of the order so made, the offender 
 may be committed without further process. See § 2283. 
 That is, in proceeding instituted by a warrant of at- 
 tachment, if the accused is found guilty and ordered 
 to be committed, a warrant of commitment issues 
 against him ; and in proceedings instituted by an order 
 to show cause, where he is found guilty and ordered 
 to be imprisoned, he may be committed to prison upon 
 a certified copy of the final order made in the proceeding. 
 For punishment on return of habeas corpus, see 
 § 2282 of the Code. 
 
 Penalty. 
 
 The penalty may be a fine or imprisonment in the 
 common jail, or both, according to the nature of the 
 case. §§ 2281 and 2283. 
 
 If the accused on the return of an order to show 
 cause or a warrant of attachment for an alleged con- 
 tempt in not appearing for examination submits to ex- 
 amination without further trouble or delay he is usually 
 discharged on easy terrns. Hilton v. Patterson, 18 Abb., 
 245. 
 
 Where the facts show that the defendant is clearly 
 in contempt, but he purges himself of any intentional 
 disobedience to the order of the court, the court ordered 
 in its discretion the rule to be discharged upon the 
 payment of costs. Bond v. Bond, 69 N. C, 97. 
 
 The penalty is the same whether the proceedings as 
 
26o AMOUNT OF FINE. 
 
 for contempt have been instituted by one or another of 
 the several modes prescribed by the Code of Civil Pro- 
 cedure. 
 
 Amount of Fine. 
 
 If an actual loss or injury has been produced to the 
 complainant by reason of the misconduct proved against 
 the offender, and the case is not one where it is special- 
 ly prescribed by law that an action may be maintained 
 to recover damages for the loss or injury, a fine sufficient 
 to indemnify the aggrieved party must be imposed 
 upon the offender, and collected and paid over to the 
 aggrieved party, under the direction of the court. The 
 payment and acceptance of such fine constitute a bar 
 to an action by the aggrieved party to recover damages 
 for the loss or injury. 
 
 Where it is not shown that such an actual loss or in- 
 jury has been produced, a fine must be imposed, not ex- 
 ceeding the amount of the complainant's costs and ex- 
 penses, and two hundred and fifty dollars in addition 
 thereto, and must be collected and paid in like manner. 
 A corporation may be fined as prescribed in this sec- 
 tion. See § 2284. 
 
 Where an actual loss or injury is shown by the evi- 
 dence to have been produced to the aggrieved party, 
 the fine to be imposed must be sufficient to indemnify 
 him for such loss or injury. The statutes make it the 
 duty of the court to impose that amount of fine. The 
 People, etc. v. Compton, i Duer, 512, affirmed g N. ¥., 
 263 ; Lansing v. Easton, 7 Paige, 364 ; People v. Spal- 
 ding, 2 Id., 327 ; Ross V. Clussman, 3 Sandf., 6^6 ; S. C, 
 I Code R. {N. S.), 91 ; Fenner v. Sanborn, 37 Barb., 
 610 ; Livingston v. Swift, 23 How., i. 
 
 The actual losses are losses pecuniary in their nature, 
 and capable of being estimated as such with reasonable 
 certainty. The People v. Compton, supra. 
 
complainant's costs and expenses. 261 
 
 The fine for disposing of property in violation of an 
 injunction must be regulated as to amount, according 
 to the value of the property so disposed of, when it is 
 less than the amount of the judgment. Feely v. Glen- 
 nen, 2 N. Y. M. L. Bull., 19 N. Y. Com. Pleas Ct. 
 
 For violation of an injunction the court may impose 
 a fine ; and where the violation consisted in drawing 
 $356.25 out of bank, and the court fined the offender 
 $400, it was held not an unreasonable amount. People 
 V. Kingsland, 3 Keyes, 325 ; S. C, 5 Abb. {N. S.), 90. 
 
 Complainant's Costs and Expenses. 
 
 Where the complainant shows that the offender's 
 misconduct has produced actual loss or injury to him, 
 he is also entitled as part of the fine to be imposed upon 
 the offender to indemnify him, an amount not exceed- 
 ing his costs and expenses of the contempt proceeding, 
 and two hundred and fifty dollars in addition thereto, to 
 be collected and paid over to him under the direction of 
 the court or judge. 
 
 Although this section (2284) of the Code does not in 
 terms mention costs and expenses, as the Revised Stat- 
 utes did, yet the same must be necessarily included 
 in the fine, in order fully to indemnify the aggrieved 
 party. 
 
 The costs when allowed are to be awarded at the 
 rates allowed for similar services in an action brought 
 in the same court and in like manner, § 3240 of Code 
 of Civil Procedure superseding, it would appear, Seeley 
 V. Blake, 35 How, 369; and Gray v. Cook, 15 Asli, 308. 
 See SudlowT/. Knox, y Abb. {N. S.), 411, Ct. of Appeals. 
 
 Under the practice existing before the Code^ System 
 came in force, the costs were allowed according to the 
 fee bill. Sudlow v. Knox, supra; People v. Nevins, 
 I Hill, 1 54 ; Albany City Bank v. Schermerhorn, 9 Paige, 
 372. 
 
262 SERVICES IN SUPPLEMENTARY PROCEEDINGS. 
 
 Actual expenses necessarily laid out in the contempt 
 proceedings, and proved, are allowed. Reasonable coun- 
 sel fees or a fair compensation to an attorney for his 
 services therein may be allowed by the court, as an ex- 
 pense. People, etc. v. The Roch. and State Line R. R. 
 Co., "]& N. v., 294, affirming S. C, lAfHiot, 2,71 ; People 
 V. Compton, i Duer, 512, affirmed S. C, giV. Y. ; Davis 
 V. Sturtevant, 4 Duer, 148 ; Van Valkenburgh v. Doo- 
 little, 4 Abb. N. C, 72, Supreme Ct., Special Term, 
 Barrett, J. Also see Tremain v. Richardson, 68 N. Y., 
 617. The court in The People v. Jacobs, 5 Hic9t, 428, 
 at General Term, held the contrary. This case was af- 
 firmed in 66 N. Y., 8, but the point as to the allowance 
 of counsel fee was not considered, while in a subsequent 
 case, The People v. The Roch. and State Line R. R. Co., 
 supra. Court of Appeals, expressly held that a fair com- 
 pensation to an attorney for his services may be allow- 
 ed. But no fees or compensation for attorney's services 
 in the supplementary proceedings can be allowed. Van 
 Valkenburgh v. Doolittle, supra. Also see The People 
 V. The Roch. and State Line R. R. Co., supra. 
 
 In Ross V. Clussman the costs of the supplementary 
 proceedings were allowed. 3 Sandf., 676 ; S. C, i Code 
 {N. S.), 91. In Van Valkenburgh v. Doolittle, supra, 
 the judge held that to entitle the complainant to 
 compensation for the referee's time in making up his re- 
 port in the contempt proceeding he should obtain a de- 
 tailed specification thereof from the referee ; for- the 
 court, on finding a party in contempt, will adhere to 
 what is strictly proved, taking nothing upon inference, 
 and giving the party in contempt the benefit of every 
 reasonable doubt or defect of proof. 
 
 Where it is not shown that an actual loss or injury 
 has been produced by the misconduct of the offender, 
 a fine must be imposed notwithstanding, but it is to be 
 limited to a sum not exceeding the amount of the com- 
 
NO FINE TO BE ARBITRARILY IMPOSED. 263 
 
 plamant's costs and expenses of the contempt proceed- 
 ing, and two hundred and fifty dollars in addition 
 thereto. §2284 of the Code. In such a case the fine 
 cannot exceed that amount, while it may be less in the 
 discretion of the court. Clark v. Bininger, 75 N. V., 
 344, afifirming S. C, 43 N. Y. Superior Ct., 126; 
 Sudlow V. Knox, 7 Add. {N. S.), 411, Ct. of Appeals; 
 Simmonds v. Simmonds, 6 N. Y. W. Digest, 263, 
 Supreme Ct., General Term ; People v. Compton, 
 I Duer, 512; Tinkey v. Langdon, 60 How., 180, 
 Supreme Ct., Special Term. 
 
 No fine exceeding two hundred and fifty dollars can 
 be arbitrarily or capriciously imposed. A fine above 
 that sum must be based upon proof of damages or in- 
 jury to the complainant. Clark v. Bininger ; Tinkey v. 
 Langdon ; Simmonds v. Simmonds, supra. Also Fischer 
 V. Raab, 81 N. Y., 235. These last decisions were 
 made before § 2284 of the present Code went into ef- 
 fect. They can hardly mean that where no loss or in- 
 jury is shown to have been produced that the com- 
 plainant could not recover more than two hundred and 
 fifty dollars, although he does prove costs and expenses 
 above that amount. He is certainly entitled to all his 
 expenses incurred in the contempt proceedings, which 
 he shows were necessarily and properly incurred, and 
 which may exceed two hundred and fifty dollars. As 
 to the fine of two hundred and fifty dollars additional 
 to costs and expenses, that sum is like an additional al- 
 lowance granted in the trial of an action, to meet an 
 extraordinary case, and is in the discretion of the court 
 or judge. 
 
 A fine imposed upon a party for failure to appear for 
 examination in supplementary proceedings should be 
 limited to such sum as will reimburse the judgment 
 creditor for his costs and expenses ; a fine to the full 
 amount of the judgment is excessive. Reynolds v. 
 
264 WITNESS CANNOT ARBITRARILY BE FINED. 
 
 Gilchrist, 9 Hun, 203. Here there was no proof of 
 any loss or injury caused to the creditor by the debt- 
 or's failure to appear. 
 
 The judgment debtor failed to appear for examina- 
 tion in supplementary proceedings upon a judgment 
 for $2606. He was fined $500, and committed to jail, 
 without bail, in default of payment of the fine. Wat- 
 ers V. Miller, 3 N. Y. M. L. Bull., loi, N. Y. Common 
 Pleas, Van Brunt, J. The facts in this case are not 
 given, whether or not loss or injury to the judgment 
 creditor was shown or what amount of costs and ex- 
 penses of the contempt proceeding was proved. 
 
 Where it does not appear that the misconduct of the 
 accused of itself or alone produced the loss or injury 
 complained of, the court will not impose a fine there- 
 for ; and the court on appeal will not interfere with a 
 fine of two hundred and fifty dollars, imposed below on 
 the judgment debtor for violating an injunction, al- 
 though such violation was not shown to have produced 
 any loss or injury to the judgment creditor. Lehmaier 
 V. Griswold, 46 N. Y., Superior Ct. (14 J. and Sp^, 11, 
 General Term. 
 
 A witness found guilty of contempt in refusing to 
 answer a question in supplementary proceedings cannot 
 be arbitrarily fined the amount of the judgment. Fo- 
 ley V. Rathbone, 4 N. Y. IV. Digest, 71, Supreme Ct., 
 General Term. 
 
 Where the court or judge finds that the misconduct 
 of the offender was calculated to defeat, impair, im- 
 pede, or prejudice the rights or remedies of the com- 
 plainant, but that no pecuniary loss or injury was pro- 
 duced thereby to him, and the act complained of was not 
 wilful, no fine beyond the necessary costs and expenses 
 of the prosecution or contempt proceeding should be 
 imposed. The People v. Compton, i Ducr, 512, afifirmed 
 S. C, 9 N. Y., 263 ; The People v. The Roch. and 
 
WHERE THERE IS NO CONTEMPT, NO FINE. 265 
 
 State L. R. R. Co., 14 Hun, 371, affirmed j6 N. F, 
 294 ; People V. Spalding, 2 Paige, 327 ; Lansing v. 
 Easton, 7 Id., 364. Where it is found that the miscon- 
 duct was merely calculated to defeat, impair, impede, or 
 prejudice a right or remedy of the complainant, and 
 was not wilful, it was held that the fine should be lim- 
 ited to two hundred and fifty dollars. Erie Ry. Co. 
 V. Ramsey, 45 N. ¥., 637 ; S. C, 3 Lans., 178. 
 
 Where the court does not find that the misconduct 
 of the offender had produced actual loss or injury to the 
 complainant, or was calculated to, or actually did, de- 
 feat, impair, impede, or prejudice his rights or remedies, 
 it may still impose a fine, but it is limited to the 
 amount of his costs and expenses. People, etc. v. Oliver, 
 66 Barb., 570, General Term. Also Reynolds v. Gil- 
 christ, 9 Hun, 203 ; S. C, 4 N. Y. W. Digest, 107. 
 
 Where a disobedience to an order of a court or judge 
 is not contempt, no fine will be imposed upon the ac- 
 cused. Fischer v. Raab, 81 N. Y., 235. 
 
 A misconduct which can be treated and punished as 
 a contempt must be such as to defeat, impair, impede, or 
 prejudice a right or remedy of a party to a civil action, 
 and it must be found that the alleged misconduct did 
 have such effect, must be made to appear and be adju- 
 dicated. Fischer z/. Raab, %\ N. Y., 235. These deci- 
 sions seem somewhat conflicting. 
 
 Length of Imprisonment, etc. 
 
 Where the misconduct proved consists of an omission 
 to perform an act or duty, which it is yet in the power 
 of the offender to perform, he shall be imprisoned only 
 until he has performed it and paid the fine imposed. 
 In such a case the order and the warrant of commit- 
 ment, if one is issued, must specify the act or duty to 
 be performed and the sum to be paid. In every other 
 case where special provision is not otherwise m,ade by 
 
266 PUNISHMENT BY IMPRISONMENT. 
 
 law the offender may be imprisoned for a reasonable 
 time, not exceeding six months, and until the fine, if 
 any, is paid ; and the order and the warrant of com- 
 mitment, if any, must specify the amount of the fine 
 and the duration of the imprisonment. § 2285 of Code 
 of Civil Procedure. 
 
 For aiding and abetting a violation of an injunction 
 order, a fine may be imposed sufficient to indemnify the 
 aggrieved party and satisfy his costs and expenses, and 
 the court may order the offender to be imprisoned, not 
 exceeding six months, and until such fine and expenses 
 are paid ; it cannot imprison him till he does a desig- 
 nated act, unless he had been previously required to 
 do it by the court, and omitted to do it. Simmons 
 V. Simmons, 4 N. Y. W. Digest, 130, Supreme Ct., Gen- 
 eral Term. As to imprisonment, see also The People 
 V. Compton, i Duer, 512; affirmed 9 N. Y., 26;^; Lan- 
 sing z'. Easton, 7 Paige, 364. 
 
 A person committed to prison for contempt must be 
 committed without the jail liberties. Clark v. Clark^ 
 2 N. Y. M. L. Bull. II, Supreme Ct., Special Term, 
 Lawrence, J. 
 
 Discharge from Imprisonment. 
 
 Where an offender, imprisoned as for contempt, is 
 unable to endure the imprisonment, or to pay the sum, 
 or perform the act or duty required to be paid or per- 
 formed, in order to entitle him to be released, the court 
 or judge committing him, 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. 
 See § 2286 of Code. This section includes substan- 
 tially the latter part of § 302 of the former Code. Before 
 the amendment of 1851 to this § 302 of the former 
 Code and which is re-enacted in § 2286 of the present 
 
MOTION TO DISCHARGE FROM PRISON. 267 
 
 Code, it was held that the time of imprisonment ordered 
 by a judge in supplementary proceedings was unlimited. 
 Matter of Pester, 2 Code R., 98. 
 
 The motion is made on affidavits and notice. The 
 affidavits must fully bring the case before the court or 
 judge ; must fully set forth the circumstances which 
 call for the intervention of the court, and bring the case 
 indisputably within one or other of the conditions 
 required by § 2286 of the present Code. 
 
 The complainant may resist the motion, and offer 
 Elffidavits to disprove the moving party's statements, 
 or show a state of facts under which the imposition of 
 terms will be proper and also tending to show the nature 
 of the terms that ought to be imposed, which rest in 
 the discretion of the court or judge. 2 Whit., 703 ; also 
 Crary's Sp. Pro. on Contempt, p. 416-7. The New 
 York Common Pleas, Special Term, held that a person 
 imprisoned should not be discharged on account of his 
 inability to pay the debt, or give the security, or make 
 the assignment provided by the statute, when his pro- 
 ceedings have not been just and fair, and his inabil- 
 ity is not clearly made out. Maas v. La Torre, 6 Abb. 
 (vV. 5.), 219. Here the debtor was imprisjoned under 
 the Non-imprisonment Act. 
 
 Loss of Jurisdiction. 
 
 Where the contempt proceedings before the judge 
 had been closed, and he had arrived at a decision, and 
 time was given the plaintiff till a set day to file an 
 affidavit showing the amount due on the judgment, 
 but nothing was done on that day, held this was no 
 such adjournment that the judge lost jurisdiction. 
 Myers v. Janes, 3 Abb., 301, Supreme Ct. Ch. In this 
 proceeding an order to show cause was made returnable 
 at the office of the county judge, and on the return day 
 he was in the court room holding court ; the debtor 
 
268 THE FINAL ORDER. 
 
 called at his office at 12 M., and finding the judge ab- 
 sent, departed ; and in the course of the afternoon an 
 order adjudging him guilty of contempt was made. 
 Held that this order was not void ; at most, it was 
 merely irregular; for the judge derived his power from 
 the supplementary order, upon which the contempt 
 proceedings were based, and which was still pending 
 before him, and not from the order to show cause. 
 
 Where the Accused does not Appear. 
 
 Where the accused, arrested on a warrant of attach- 
 ment, has given an undertaking, and fails to appear on 
 the return day, the court may either issue another war- 
 rant or make an order directing the undertaking to be 
 prosecuted, or both. See § 2288. As to prosecuting 
 the undertaking, sec §§ 2289-2291. 
 
 The Final Order. 
 
 The final order determines the controversy ; and if it 
 is found that the accused has commit|ed the ofifence 
 charged, and that it was calculated to, or actually did, de- 
 feat, impair, impede, or prejudice the rights or remedies 
 of the complainant, the court or judge must make the 
 final order accordingly, and direct that he be punished 
 by fine or imprisonment, or both, as the nature of the 
 case requires. See%22Z\ of the Code. 
 
 This order is about the same, whether made in pro- 
 ceedings instituted by order to show cause, or by war- 
 rant of attachment, or writ of habeas corpus. 
 
 When made by a court of general jurisdiction it need 
 not state all the facts. It is sufficient if jurisdiction 
 appears on the face. Pitt v. Davison, 37 N. ¥., 235 ; 
 S. C, 34 Bozi'., 355; 13 AM., 129; Lathrop t-. Clapp, 
 40 A^. v., 328, affirming S. C, 23 Now., 423 ; Seaman 
 V. Duryea, 11 N. V., 324; People ?'. Nevins, I Hi//, 154. 
 It need not recite that the misconduct of the accused 
 
RECITALS IN THE ORDER. 269 
 
 was calculated to, or actually did, defeat, impair, im- 
 pede, or prejudice the rights or remedies of the com- 
 plainant. Lathrop v. Clapp, supra ; Woods v. De Figa- 
 niere, i Robt., 607; S. C, 16 Abb., i. General Term; 
 Ruggs V. Spencer, 59 Barb., 383, General Term ; nor 
 need it recite that such misconduct produced loss or 
 damage to the complainant, if the order in terms im- 
 poses a fine to indemnify him for the loss and damage 
 sustained. Every reasonable intendment will be made 
 to uphold the adjudication, where it is clearly within the 
 jurisdiction of the tribunal to do what has been done. 
 It will be presumed, unless the contrary is shown by the 
 party alleging invalidity, that all the necessary facts 
 were found which might have been found to support 
 the judgment. So held in Ruggs v. Spencer, supra. 
 The judgment must, however, properly describe the 
 particular misconduct of which the accused is con- 
 victed. If it does not designate the particular miscon- 
 duct, it is void. De Witt v. Dennis, 30 How., 131, 
 Supreme Ct., Special Term. Also People v. Conner, 
 15 Abb. {N. S.), 430; Matter of Clark, 2 N. Y. M. L. 
 Bull., 22, DONOHUE, J. Where a witness is found 
 guilty, and punished for refusing to answer a question, 
 the final order must show that the question was per- 
 tinent or legal and proper. 2 N. Y. M. L. Bull., 38, 
 DONOHUE, J. It must substantially show that the 
 accused was found guilty and convicted of an act or 
 misconduct which in law is a contempt, and the in- 
 fliction of punishment therefor. If the order shows 
 this, it is sufficient, although it may be informal. 
 Reynolds v. McElhone, 20 How., 454, Supreme Ct., 
 General Term. 
 
 In Kearney's case, 13 Abb., 459, 5. C, 22 How., 209, 
 an order requiring the judgment debtor to pay a fixed 
 sum of money within a specified time, and that in de- 
 fault a precept to commit be issued against him, was 
 
270 DEFECTIVE RECITALS. 
 
 held sufficient in a proceeding on a writ of habeas cor- 
 pus, Leonard, J. 
 
 For defective recitals held sufficient, see also Ruggs 
 V. Spencer ; Reynolds v. McElhone, supra ; Yates v. 
 Lansing, 9 Johns., 395, reversing S. C, 6 Johns., 337 ; 
 afifirming 4 Johns., 317. 
 
 In Wisconsin it is held that the order disobeyed 
 should be recited in the writ : the statute authorizing 
 punishment as for a contempt in disobeying an order 
 should be strictly construed ; if the order recited in 
 the writ is void on its face for want of jurisdiction, it 
 affords no protection to the officer executing it. Smith 
 V. Weeks, 60 Wis., 94. 
 
 Under the former practice it was held that the or- 
 der for a warrant of commitment should recite the sub- 
 stance of the misconduct, the adjudication of guilt, 
 that the misconduct was calculated to, or actually did, 
 defeat, impair, impede, or prejudice the rights or remT 
 edies of the prosecutor in the cause, and direct payment 
 of a fine, stating its several items, if any, sufficient to 
 indemnify the party injured and to satisfy the costs 
 and expenses of the proceedings, and where anything 
 remains to be done to purge the contempt the order 
 should specify what he is to do, and the manner of 
 doing it. The costs should be taxed and inserted in 
 the order as part of the fine imposed. Albany City 
 Bank v. Schermerhorn, 9 Paige, 372, reversing S. C, 
 I Clarke, 297, but reversed on another point. S. C, 
 10 Paige, 263. 
 
 The order must specify the punishment imposed — 
 that is, the amount of the fine imposed, if any, and 
 the length of imprisonment inflicted, if any. See above 
 authorities. 
 
 When the final order is made by a judge out of 
 court, qujEre, should it not show on its face all the 
 facts necessary to confer jurisdiction upon him and 
 
WARRANT OF COMMITMENT. 271 
 
 the facts which legitimately lead up to the determina- 
 tion of the controversy and the imposition of the pun- 
 ishment specified therein ? as he is not a court of gen- 
 eral jurisdiction, in whose favor every reasonable in- 
 tendment will be made to uphold the adjudication. 
 
 See § 2282 of the Code, as tb the final order, where the 
 accused is brought up by virtue of a writ of habeas 
 corpus, and is found guilty of the offence charged, and 
 directed to be punished. 
 
 Warrant of Commitment. 
 
 If the contempt proceedings have been instituted by 
 an order to show cause, the offender may be com- 
 mitted upon a certified copy of the final order, without 
 any further process. See § 2283. If the proceedings 
 have been instituted by a warrant of attachment, and 
 the final order is a court order, the warrant of commit- 
 ment is issued by the clerk of the court, under the seal 
 thereof, to the sheriff in whose custody the offender is, 
 either actually or in law, by virtue of the warrant of at- 
 tachment, A warrant of commitment tested in the 
 name of a judge of the court and signed, and indorsed 
 by the clerk under the words, " by special order of the 
 court," held to be the order of the court, and regularly 
 marked by the clerk. Kearney's Case, \'^ Abb., 459; 
 S. C, sub nom. People v. Kelly, 22 How., 309. 
 
 A judge in supplementary proceedings out of court 
 is empowered by §§ 2457 ^'^^ 2266 to entertain a pro- 
 ceeding as for contempt, and inflict a punishment 
 upon the offender by fine or imprisonment, or both ; 
 but the final order is not a court order, nor is the war- 
 rant of commitment issued by order of court. Both 
 are made by the judge, and signed by him. 
 
 No Contempt. 
 
 Where no contemptuous conduct is proved the pro- 
 ceeding must be dismissed. 
 
272 IRREGULARITIES. 
 
 Final Order, Void or Irregular. , 
 
 Where the final order or warrant of commitment is 
 void, the proper course of the accused is to apply to 
 the court which granted it to have the same set aside 
 and to release him if in custody. The People v. 
 Murphy, I Daly, 462, General Term ; Davison's Case, 
 13 Abb., 129 ; S. C, sub. nom. ; Pitt v. Davison, 37 Barb., 
 97, reversing S. C, 12 Abb., 385, and reversed on another 
 point ; S. C, 37 N. Y., 235 ; S. C, 3 Abb. {N. S.), 398 ; 
 34 How., 355 ; 4 Trans. A pp., 266 ; Tinkey v. Langdon, 
 60 How., 180; De Witt v. Dennis, 30 How., 131. And 
 on a motion to set aside such orders, no proof can be sub- 
 mitted to overcome this defect. Tinkey v. Langdon. 
 
 But an irregularity not misleading affords no reason 
 for setting aside an order to punish the offender. 
 People V. Kenny, 2 Hun, 2,46, General Term. Where 
 the court has jurisdiction in a proceeding as for con- 
 tempt, and to ascertain the amount of the complain- 
 ant's costs and expenses of the proceeding, and in- 
 cludes therein an item of expense not properly allow- 
 able, such allowance is merely an error in a matter 
 submitted to the judgment of the court — not an excess 
 of jurisdiction, and does not render the commitment 
 thereon void, nor can it be reviewed on habeas corpus. 
 The People v. Jacobs, 66 N. Y., 8 ; S. C, 2 N. Y. W. 
 Digest, 507, affirming S. C, 5 Hun, 428. Also Tweed v. 
 Liscomb, 60 N. Y., 559 ; Myers v. Janes, 3 Abb., 301. 
 
 Appeal. 
 
 An order adjudging a party in contempt and punish- 
 ing him therefor is appealable. Forbes v. Willard, 54 
 Barb., 520; S. C, 37 How., 193. Also Balston Spa 
 Bank v. Marine Bank of Milwaukee, 18 Wis., 490; La- 
 ment V. Pierce, 34 Wis., 483. In Minnesota such an 
 order is held not appealable. Minage v. Lustfield, 30 
 Minn., 487. 
 
CRIMINAL CONTEMPT. 273 
 
 An appeal lies to the Court of Appeals from an ad- 
 judication in a contempt proceeding. Sudlow v. Knox, 
 •J Abb. {N. S.), 417, Ct. of Appeals; Watrous v. 
 Kearney, 11 Hthi, 584; appeal dismissed, 79 N. Y., 496. 
 
 It was held in the above case (Sudlow v. Knox) that 
 the fact that it does not affirmatively appear from the 
 case that proof by affidavit was not given and notice 
 served, is no ground for reversal of the order of pun- 
 ishment in the Court of Appeals. 
 
 No appeal lies from an order denying a motion to 
 direct the application of property to the payment of the 
 judgment and to punish as for a contempt ; for such 
 order is discretionary, and not appealable. Joyce v. 
 Holbrook, 2 Hi/t., 94; S. C, 7 Abb., 338. 
 
 In the Court of Appeals the objection cannot be 
 raised that no competent order was made for issuing 
 the warrant of attachment, if the objection was not 
 made at Special Term. It is waived. Park z'. Park, 80 
 N. Y., 156, affirming 18 Hu7t, 466. 
 
 Criminal Contempt. 
 
 The court or judge may also punish a misconduct in 
 supplementary proceedings, and impose a fine not ex- 
 ceeding two hundred and fifty dollars and imprisonment 
 not exceeding six months. Holstein v. Rice, 15 Abb., 
 307. But it is not the purpose of this work to treat of 
 criminal contempt. 
 
 Unconstitutionality. 
 
 Imprisonment for disobedience to an order of Court 
 upon a summary hearing, and without trial by jury, is 
 a case by due process of law and not obnoxious to 
 the State Constitution. State of Minnesota v. Becht, 
 23 Minn., 41 1 ; In re Melburn, 59, Wis., 24. An attach- 
 ment issued against a debtor for refusing to answer in- 
 terrogatories is not unconstitutional. Lewis v. Roster, 
 19 W. Va., 61. 
 
274 PROCEEDINGS AGAINST JOINT DEBTORS. 
 
 SECTION V. 
 Proceedings when Judgment is against Joint Debtors. 
 
 §2461. "Where the execution was issued as pre- 
 scribed in § 1941 of this Act, a debt due to, or other 
 personal property owned by one or more of the defend- 
 ants not summoned, jointly with the defendants sum- 
 moned, or with any of them, may be reached by a spe- 
 cial proceeding, instituted as prescribed in this article, 
 and founded upon the judgment." 
 
 This section embraces substantially the first clause of 
 the last sentence of § 294 of the former Code. 
 
 This section seems to be restricted to cases the reverse 
 of its plain meaning, if § 1941 is to determine what 
 those cases are. That section refers to cases where de- 
 fendants not served in the first action are afterward 
 proceeded against. § 1934, and not § 1941, must be the 
 one intended. See Throop's Code. 
 
 A creditor's action may be maintained upon a judg- 
 ment against joint debtors, although only some of them 
 had been served or brought into court, but the suit can 
 only reach the joint property and the individual prop- 
 erty of those debtors who had been served with process 
 or appeared. Billhofer v. Heubach, 15 Abb., 143; 
 Produce Bank v. Morton, Sj N. Y., 199. 
 
 In Produce Bank v. Morton, 62 N. Y., 199, the sum- 
 mons had not been served upon all the members of the 
 partnership, but the judgment had been entered in 
 form against all, and the execution had been issued 
 against the joint property of all. Held that the plain- 
 tiff had before the commencement of this action suffi- 
 ciently exhausted its remedy at law, against the judg- 
 ment debtors, to entitle it to proceed in equity to reach 
 joint property. 
 
 But to entitle a plaintiff to proceed in equity (by 
 
PROCEEDINGS AGAINST JOINT DEBTORS. 2/5 
 
 judgment creditor's action) to reach joint or partnership 
 property,- there must be a judgment against the firm, 
 and execution issued against joint property and return- 
 ed unsatisfied. Produce Bank v. M.ox'io'a., supra ; Lewis- 
 hon V. Drew, 15 Hun, ^67, General Term, 1st Depart- 
 ment. 
 
 In the latter case a creditor of a firm had recovered 
 judgment against one member of the firm upon his 
 guaranty of a joint or partnership debt, and issued exe- 
 cution thereon, and upon the return thereof commenced 
 a creditor's action to reach the equitable assets of 
 the firm. Held that this could not be done upon these 
 facts. 
 
 The General Term of the Supreme Court, 1st District, 
 held, upon the facts in the case before it, that the cred- 
 itor's action could not be maintained to reach prop- 
 erty, because the legal remedy against the firm assets 
 had not been sufificiently exhausted. 
 
 Field V. Chapman, 15 Abb., 434, overruling S. C, 14 
 Abb., 133. The facts in the case were as follows: H 
 and C were in partnership. H sold and transferred all 
 his interest in the firm and the joint property to his 
 partner C. C some time thereafter sold and transferred 
 the entire property to defendant Chapman. After- 
 ward a creditor of the firm recovered judgment by 
 the service of the summons only upon H. The Su- 
 preme Court, at General Term, held that the creditor 
 had not exhausted his legal remedy to entitle him to 
 maintain an action to reach the partnership property 
 transferred to the defendant ; that when C transferred 
 the property to Chapman it belonged to her, and H 
 had no interest in it then, and the creditors could not 
 reach it through him ; that they could only do so by re- 
 covering judgment against C, and have execution there- 
 on issued and returned unsatisfied. Since that decision 
 § 294 of the former Code was amended, enlarging the 
 
2/6 PROCEEDINGS AGAINST JOINT DEBTORS. 
 
 remedy of creditors against the joint property of debt- 
 ors ; and the Court of Appeals in Menagh v. Whitwell, 
 etc., 52 N. v., 149, held that a creditor of a partnership 
 might under execution seize firm property in the hands 
 of a third person, to whom it had been transferred by 
 one of the partners, in payment of an individual debt, 
 on the ground that the partners had separately no in- 
 terest in the corpus of partnership effects. Such in- 
 terest is only in what is left after the firm debts are 
 paid. 
 
 And these proceedings may be taken in any case 
 where a judgment creditor's action would lie ; for the 
 same condition precedent of exhausting legal remedy is 
 applicable to both alike. It was held under the former 
 Code, before the amendment of 1863 to § 294, which 
 provided for a judgment upon a joint liability, that pro- 
 ceedings might be instituted against joint debtors upon 
 a judgment where all had not been served with the 
 summons in the action, nor appeared therein, but so far 
 only as to reach the joint property of all and the sole 
 property of those served with the summons, or who had 
 appeared and had been served with the order in the 
 proceedings. See Emery v. 'En\e.ry,g How., 130; Jones 
 V. Lawlin, i Sandf., 722 ; S. C, i Code R., 94. 
 
 But in order to reach joint property of debtors who 
 were not served with the summons in the action, and 
 who did not appear therein, the judgment must be 
 taken in form against all the defendants thus jointly in- 
 debted, and the execution against property upon such 
 judgment must be issued in form against all the de- 
 fendants, as prescribed in §§ 1932, 1934, and 1935 of the 
 Code of Civil Procedure. 
 
 Upon a judgment against joint debtors, where one 
 was not served with the summons by which the action 
 was commenced, and did not appear therein, it was 
 held that proceedings might be instituted against him 
 
PROCEEDINGS BEFORE ANOTHER JUDGE. 277 
 
 as a judgment debtor, and be examined concerning 
 property owned by him jointly with another who had 
 been served with the summons, or did appear in the 
 action, and he might be punished as for a contempt for 
 disobedience of an order made in such proceeding, 
 provided the judgment was taken and the execution 
 issued as prescribed in the above sections. Perkins 7>. 
 Kendall, 3 N. Y. Civ. Pro. R., 240, N. Y. Marine Ct., 
 General Term. 
 
 As these are special proceedings, and independent of 
 the original action, they may be instituted against one 
 or more of several joint debtors alone. All need not be 
 joined in the same proceedings. 
 
 If the proceedings are taken against one who was 
 served with the summons or appeared in the action and 
 another who was neither served nor appeared, the 
 former is bound to answer concerning both his sole 
 property and the joint property, while the latter is only 
 required to answer concerning the property owned by 
 him jointly with the former; but as to such property he 
 may be examined as fully as if the judgment bound 
 him individually. 
 
 SECTION VI. 
 Proceedings Continued before another Judge. 
 
 §2462. " Sections 26, 52, and 279 of this Act ap- 
 ply to a special proceeding, instituted as prescribed 
 in this article; and the judge before whom it is con- 
 tinued, as prescribed in either of those sections, is 
 deemed to be the judge to whom an order or warrant 
 is returnable for the purpose of any provisions of this 
 or the next article." 
 
 This section is new in form ; it is not contained in 
 
278 PROCEEDINGS BEFORE ANOTHER JUDGE. 
 
 the chapter on Supplementary Proceedings in the for- 
 mer Code. The section, however, only re-enacts what 
 had been statutory provisions before. Section 26 of 
 the Code of Civil Procedure, mentioned in this section, 
 is substantially § 27 of the former Code, and § 52 
 includes the provision of § 51 of Revised Statutes, part 
 3, ch. 3, tit. 2, art. 2, and § 279 includes § 25 of ch. 96 
 of the statute of 1854, as amended in 1857, ch. 361, 
 §§ 6 and 14 of ch. 470, of the Laws of 1870, as amended 
 in 1872, ch. 688, § 3. This section (2462) applies the 
 provisions contained in the sections therein named to 
 every part of the practice in supplementary proceed- 
 ings, and it makes them to be pending before the judge 
 who for the time being is continuing them as if he 
 were the judge to whom the order or warrant commenc- 
 ing the proceedings was returnable. The judge thus 
 continuing the proceedings has the power to make any 
 order therein required in the orderly progress of the 
 same. He may appoint a referee provided in §§ 2442 
 and 2443, make an order under §§ 2446 or 2447, grant 
 an injunction, punish disobedience to a command or 
 order, appoint a receiver, or make any other order in 
 the course of the proceedings. 
 
 .In Ball V. Goodenough, -^J How., 479, N.Y. Superior 
 Ct., Special Term, 1869, McCUNN, J., held that the ap- 
 plication for the appointment of a receiver must be 
 made to the judge who granted the order of reference 
 and appointed the referee to take the examination. 
 But this is an erroneous decision ; it was not then law 
 or practice in that court, and has not been since. 
 
APPLICATION OF PROPERTY. 279 
 
 CHAPTER IV, 
 
 TSE APPLICATION OF PROPERTY UPON JUDGMENTS. 
 
 Section i. What property may be applied upon judgments. 
 
 2. What property cannot be reached through these pro- 
 ceedings. 
 
 3. Order permitting a debtor of judgment debtor to pay to 
 the sheriff. 
 
 4. Order requiring delivery of money or property to sher- 
 iff or receiver. 
 
 5. When and what property cannot be applied by order. 
 
 6. Duty and power of the sheriff, etc., herein. 
 
 SECTION I. 
 
 What Property may be Applied upon Judgments. 
 
 Anything which has a marketable value may be 
 reached and applied toward the payment of a judgment. 
 The title in the Code of Civil Procedure which author- 
 izes proceedings supplementary to execution uses the 
 terms " property," " real property," and " personal prop- 
 erty" as things which may be reached through these 
 proceedings and applied to the payment of a judgment 
 in one or other of the means prescribed by the Code ; 
 and these terms are defined to include lands, tenements, 
 hereditaments, money, goods, chattels, things in action, 
 and evidences of debt, § 3343, subds. 6, 7, and 8. Also 
 see Indiana as to what the term " Property " includes. 
 The Revised Statutes, 2 R. S., p. 174, §§ 38 and 39, which 
 provided for the filing of a creditor's bill to reach and 
 apply the property of a debtor toward the payment 
 of a judgment against him, used the terms property. 
 
28o WHAT PROPERTY MAY BE REACHED. 
 
 money, and things in action, all of which arc included in 
 the word " property'' in the present Code. Hence 
 whatever things could be reached and applied by a cred- 
 itor's bill may be reached by supplementary proceed- 
 ings through one or other of the means provided there- 
 in. See Drought v. Curtiss, 8 How., 56. But the 
 surplus income arising from a trust estate or fund can- 
 not be reached by these proceedings or by a receiver 
 appointed therein, although it might have been reached 
 by a creditor's bill, ^^^/^jj/, this chapter. Every spe- 
 cies of property could be reached and applied upon a 
 judgment by means of a creditor's bill. Edmeston v. 
 Lyde, I Paige, 637. 
 
 In supplementary proceedings, the judge, having 
 jurisdiction of the same, may, in certain cases, order 
 money or other personal property belonging to the 
 judgment debtor, and in his possession or under his 
 control, or that of a third party, and not exempt by 
 law, to be immediately paid or delivered to a sheriff 
 designated in the order or to a receiver appointed 
 in the proceedings, so that it may be applied toward 
 the payment of the judgment. §2447 of present 
 Code. But if the title or right of possession to such 
 money or other property is disputed, or any other ques- 
 tion appears, so that a complete title and lawful posses- 
 sion thereto cannot be given to the sheriff or receiver 
 by such an order, then the judge has no power to 
 make it under § 2/^47, but a receiver may be appoint- 
 ed to determine the title and possession thereof through 
 an ordinary action against the person claiming the same 
 or an interest therein, and by either of those means any 
 and every species of property of marketable value, and 
 not exempt by law, may be reached by or through sup- 
 plementary proceedings, except the surplus income of a 
 trust estate or real estate on which the judgment is a 
 lien or to which the judgment debtor has the legal title. 
 
WHAT PROPERTY MAY BE REACHED. 28 1 
 
 In Wisconsin every species of property belonging to 
 the debtor may be reached, and apphed to the satisfac- 
 tion of the judgment. In re Melburn, 59 Wis., 24. 
 
 In most of the other States, where proceedings of this 
 kind are authorized, the law is similar to that of New 
 York as to what property may be reached and applied 
 upon a judgment by means of these proceedings. Where 
 there is a difference, it turns chiefly upon a statutory 
 or judicial difference in the matter of first exhausting 
 the legal remedy before proceedings can be instituted. 
 Wherever in these States proceedings may be instituted, 
 any species of property, not exempt by law, can be 
 reached thereby either by a summary order or through 
 a receiver. 
 
 As to Real Estate. 
 
 It has been held that an estate as tenant by the 
 courtesy, owned by a judgment debtor, passes to the 
 receiver appointed in these proceedings, and entitles 
 him to receive all the rents due at the time of his ap- 
 pointment and all rents accruing afterward until his 
 receivership ceases, the same to be applied to the 
 payment of the judgment in which he was appoint- 
 ed receiver. Beamish v. Hoyt, 2 Robt., 307, General 
 Term. 
 
 So, where the wife's real estate was sold in partition, 
 and the proceeds thereof brought into court, the hus- 
 band's inchoate interest therein as tenant by the cour- 
 tesy could be reached in a creditor's bill filed against 
 him as a judgment debtor. Ellsworth v. Cook, 8 
 Paige, 643. Surplus money arising from the sale of real ' 
 estate in a partition suit, and in the hands of a com- 
 missioner appointed to sell the same, belonging to the 
 judgment debtor, may be reached. Sherman v. Carvill, 
 73 Ind., 123. 
 
 The right of dower to which a widow, a judgment 
 
282 WHAT PROPERTY MAY BE REACHED. 
 
 debtor, is immediately entitled may be reached al- 
 though it is not yet assigned. Tompkins v. Fonda, 4 
 Paige, 448 ; Stewart v. McMartin, 5 Barb., 438 ; Moak 
 V. Coats, 33 Id., 498. It is liable in equity for her debts, 
 and passes to a receiver before it is admeasured or as- 
 signed. Payne v. Becker, 87 N. Y., i J3, reversing S. C, 
 22 Hun, 28. _^ ^ 
 
 Where the executors in a will are directed to re- 
 tain from the estate and invest a given sum of money, 
 and pay the annual interest thereof to the debtor for 
 life, but are also directed to pay the fund and all 
 arrears of interest to him whenever he shall demand 
 the sa'-ie in writing, it was held that this was not a 
 trust within the statute ; that the debtor had the abso- 
 lute control and ownership of the fund, and that a 
 judgment creditor could reach such fund. Hallett v. 
 Thompson, 5 Paige, 583. 
 
 So, where the testator absolutely devised his proper- 
 ty, and charged it (not the income thereof) with the 
 payment of an annuity of seven hundred dollars, and 
 bequeathed to his wife in lieu of dower, it was held that 
 this was not a trust within the Revised Statutes, and 
 the annuity could be reached by a creditor's bill. She 
 could dispose of it by anticipation. Degraw v. Clason, 
 II Paige, 136. 5f? also Ten Broeck v. Sloo, 2 Abb., 
 234 ; S. C, 13 How., 28. 
 
 So, where the cestui que trust is also the trustee, the 
 trust cannot be supported, and the property can be 
 reached. Craig -u. Hone, 2 Edw., 554. 
 
 A legacy in the hands of an executor upon no other 
 trust than to pay it over to the legatee, is not a trust 
 fund within the meaning of the statutes, and may be 
 reached. Bacon v. Bonham, 27 N. J., 209. 
 
 The use, rents, and profits of the judgment debtor's 
 real estate, sold on execution, for the fifteen months 
 allowed to redeem after the sale could be reached by 
 
WHAT PROPERTY MAY BE REACHED. 283 
 
 a creditor's bill, whether the same had accrued before 
 or after filing the bill. Farnham v. Campbell, 10 Paige, 
 598 ; Albany City Bank v. Schermerhorn, 9 Id., 372. 
 The rents and profits of real estate which accrue after 
 the filing of the bill are held to be but the natural 
 product of an interest which the debtor had when the 
 bill was filed, and not within the meaning of after- 
 acquired property. 
 
 The judgment debtor's right to redeem the real 
 property of his debtor, sold on execution, may be 
 reached through a receiver. See §§ 1449-1454 of pres- 
 ent Code ; Van Rensselaer v. Sheriff of Onondaga, i 
 Cow., 443. So the right of the debtor to redeem his 
 own thus sold may be reached by the same means. It 
 was held in Phyfe v. Riley, 15 Wend., 251, that trus- 
 tees of a non-resident, etc., debtor were grantees of the 
 latter within the statute (2 R. S., p. 370, §46, subd. 3, 
 repealed and substantially re-enacted in §§ 1446 and 
 1447 of the present Code), and could redeem, but that 
 they acquired no greater rights or powers than the de- 
 fendant himself would have had if he had redeemed. 
 This clearly applies to a receiver appointed in these 
 proceedings. But he takes such property subject to 
 all liens which had attached thereto, prior to the time 
 when such real estate vested in him. See Chautauqua 
 County Bank v. Risley, 19 JV. Y., 369, 374. 
 
 Real Property without the State may also be Reached. ^n,4^^ 
 And a justice of the Supreme Court or a county 
 judge, it has been held, may exercise the powers which 
 a court of equity has to compel a debtor, of whose per- 
 son he has acquired jurisdiction, to execute such for- 
 mal conveyance or assignment of his property without 
 the State as will be necessary to pass the title where it 
 is situated, and on the debtor's default to do so, he may 
 be punished as for a contempt. Fenner v. Sanborn, 37 
 
284 WHAT PROPERTY MAY BE REACHED. 
 
 Barb., 6io; Sickels v. W&vX&y , i^ Abb . N . C, 231, Su- 
 preme Ct. While some earlier decisions deny this pow- 
 er to a judge. Sec The People v. Hulburt, 5 How., 446 ; 
 S. C, I Code R. {N. S.), 75 ; 9 iV. Y. Leg. Obs., 245, Su- 
 preme Ct., General Term ; Ten Broeck v. Sloe, 2 Abb., 
 234; S. C, IT) How., 28, Supreme ■ Ct. Ch. ; Ball v. 
 Goodenough, 37 How., 479, N. Y. Superior Ct., Special 
 Term, and obiter ; and its existence is doubted in Tin- 
 key V. Langdon, 60 How., 180, Supreme Ct., Special 
 Term. 
 
 If it exists, this power may be exercised of course by _ 
 any judge who has jurisdiction of supplementary pro- 
 ceedings as well as a Supreme Court justice or a. coun- 
 ty judge in a like case. 
 
 Personal property situated without the State may also 
 be reached and applied toward the payment of the judg- 
 ment in like manner. Bunn v. Fonda, 2 Code R., 70. 
 But the judgment debtor cannot be compelled to de- 
 liver property thus situated. Id. 
 
 The interest of a judgment debtor in a contract for 
 the purchase of real estate was reachable by a cred- 
 itor's bill. Ellsworth V. Cuyler, g Paige, 418; Figg ?'. 
 Snook, 9 Ind., 202. 
 
 Void Assignment. 
 
 Property held by a third person under a void assign- 
 ment may be reached and applied upon a judgment. 
 Eden v. Everson, 65 Ltd., 113. 
 
 Goods and Chattels. 
 
 A watch is liable to execution unless necessary to the 
 judgment debtor's use in his vocation, and may be 
 reached and applied toward the payment of the judg- 
 ment in supplementary proceedings. Sec The Deposit 
 Nat. Bank v. Wickham, 44 How., 421, Supreme Ct., 
 General Term. It was held that a cheap watch and 
 
WHAT PROPERTY MAY BE REACHED. 285 
 
 chain belonging to an unmarried cloth cutter was a 
 necessary tool in his business, and exempt ; that he was 
 entitled to all tools and implements necessary for his 
 occupation, of which a watch may weU be one. In the 
 Matter of Edlunds, 35 Hun, 367, General Term. Also 
 Merriam v. Hill, i N. Y. W. Digest, 260, N. Y. Marine 
 Ct., Special Term, McAdam, J. 
 
 A patent granted by the United States Patent Office 
 may be reached by these proceedings ; and if an assign- 
 ment of the letters patent be necessary, the court has 
 power to order it to be made. Barnes v. Morgan, 
 3 Him, 703 ; S. C, 6 N. Y. Supreme Ct. R. {T. & C), 
 105, General Term. Also Thorne v. Thomas, i N. Y. 
 M. L. Bull., 53, Supreme Ct. Pacific Bank v. Robin- 
 son, 57 Cal., 520. It may be reached even if the patent 
 is invalid. Gillett v. Bates, 86 N. Y., 87. 
 
 A Seat or Membership in a Board of Trade. 
 
 A seat or membership in the New York Cotton Ex- 
 change is property, and not a mere license or privilege. 
 It may be transferred to a certain class of purchasers 
 under prescribed rules and conditions of sale, and passes 
 to the receiver appointed in these proceedings, to be ap- 
 plied toward the payment of the judgment. Powell v. 
 Waldron, 89 N. Y., 328 ; S. C, 14 N. Y. W. Digest, 545. 
 In this case the seat had been pledged by the judgment 
 debtor for a certain sum of money. It was held that 
 upon a tender of such sum to the pledgees, all their rights 
 to retain it and the certificate disappeared, and they were 
 bound to restore and assign it to the receiver. Id. And 
 upon the sale thereof by the receiver to a purchaser 
 who is a member, the court will direct the judgment 
 debtor to make an assignment thereof to him ; and the 
 receiver may take proceedings to compel the judgment 
 debtor to transfer the seat to the member or member 
 elect with whom he may contract for its purchase. 
 
286 WHAT PROPERTY MAY BE REACHED. 
 
 Ritterband v. Baggett, 42 N. Y. Superior Ct. (10 /. 
 &■ Sp), 556 ; S. C, 4 Abb. N. C, 67, Special Term. 
 
 The same was held as to a seat in the New York 
 Stock • Exchange. The Grocers' Bank v. Murphy, 
 10 Daly, 168; S. C, 11 N. Y. W. Z'?;^^^;', 538, General 
 Term ; Londheim v. White, 67 How., 467, N. Y. City 
 Court, Special Term, Hall, J. Sewell v. Jones, 
 61 How., 54. 
 
 Alimony Directed to be Personally Paid to a Woman. 
 
 A judgment debtor, by a decree of divorce in her 
 favor, for the payment of money to her personally, 
 may be reached in proceedings against her, and the re- 
 ceiver appointed therein becomes vested with the right 
 to receive payment of sums which fall due in the future 
 under the terms of the judgment. Such alimony is not 
 held in trust for her under § 2463 of the Code of Civil 
 Procedure. Stevenson v. Stevenson, 34 Hun, 157; 
 S. C, 20 N. Y. W. Digest, 182, General Term. 
 
 The proceeds of a policy taken out upon the life of 
 the husband for the benefit of his widow, to be paid to her 
 after his death, and which were deposited by her in a 
 bank to her own order, may be reached in proceedings 
 against her as a judgment debtor. Crosby v. Stephan, 
 32 Hun, 478, General Term. 
 
 The interest of the mortgageor, a judgment debtor, 
 in personal property in possession of the mortgagee — • 
 that is, the right to have it on payment of the debt to 
 the mortgagee, may also be reached in these proceedings. 
 But the receiver cannot maintain replevin for it against 
 the mortgagee, no more than the mortgageor could. 
 Campbell v. Fish, 8 Daly, 162, General Term ; and the 
 sheriff by execution cannot levy on or sell more than 
 that. See R. S., part 3, ch. 6, tit. 5, art. 2. 
 
 Personal property belonging to the judgment debtor, 
 but mortgaged to another with the right of possession 
 
WHAT PROPERTY MAY BE REACHED. 287 
 
 reserved to the debtor for a definite time, may also be 
 reached — that is, the judgment debtor's interest may 
 be reached, and applied toward the satisfaction of the 
 judgment. See Manning v. Monaghan, 23 N. Y., 539. 
 Also Hull V. Carnley, 17 N. Y., 202. 
 
 Joint Property. 
 
 Property jointly owned by debtors may also be 
 reached, although the proceedings are not prosecuted 
 against all of them, and the judgment may not have 
 been entered up against the sole property of all, but 
 against the joint property of all and the sole property 
 of some. § 2461, Code of Civil Procedure. 
 
 Things in Action. 
 
 Certain rights or things in action arising on a breach 
 of contract or on tort in favor of a judgment debtor 
 may be reached in these proceedings. Rights of action 
 arise either from injuries to the person, personal feel- 
 ings or reputation, or from injuries to the estate. The 
 former die with the person, and are not assignable, nor 
 pass to the personal representatives, whether they are 
 on contract, as a breach of promise to marry, or on a 
 tort, as an assault and battery. Of the latter, those 
 which arise from a breach of contract or from a tort 
 whereby the estate of the assignor has been diminished 
 or destroyed survive the person, and pass to the 
 personal representatives, and are assignable. The 
 power to assign and the power to transmit to the per- 
 sonal representatives are convertible propositions. 
 The People v. Tioga C. P., 19 Wend., 73 ; McKee v. 
 Judd, 12 N. Y.,622; Zabriskie ii. Smith, 13 Id., 232; 
 Butler z^. N. Y. and Erie R. R. Co., 22 Barb., no; 
 Gould V. Gould, 36 Id., 275 ; Robinson v. Weeks, 6 How., 
 161. Thurman v. Wells, 18 Barb., 500, to the contrary, 
 is thus overruled. In these cases the right of action 
 arose from injury to, or destruction, or conversion of per- 
 
288 WHAT PROPERTY MAY BE REACHED. 
 
 sonal property. It is further held that the same rights 
 that are assignable under the statutes of insolvency will 
 upon the owner's death pass to his personal representa- 
 tives. The People v. Tioga C. P. and Zabriskie v. 
 Smith, supra. See what passes in cases of insolvency, 
 2 R. S., p. 41, § 7. Now, whatever rights of action are 
 assignable or transmissible to the personal representa- 
 tives may be reached by these proceedings through a 
 receiver, unless exempt by law. Also choses in action 
 in the hands of third person belonging to the judg- 
 ment debtor may be reached. Butler v. Jaffray, 12 
 Ind., 504. It is also clear that whatever thing in action 
 will pass to assignees or trustees appointed in case 
 of insolvency, or the cases embraced in § 7 of 2 i?. S., 
 p. 41, will vest in a receiver appointed herein. See 
 Ten Broeck v. Sloo, 2 AM., 234; S. C, 13 How., 28, as 
 to the creditor's right to reach a claim for damages for 
 a breach of contract. See Hudson ?/. Plets, 11 Paige, 
 180; S. C, 3 jV. Y. Leg. Obs., 120; Drought v. Curtiss, 
 8 Hoiv., 56, and Gillet v. Fairchild, 4 Denio, 80, where- 
 in it is held that rights of action for injuring or convert- 
 ing personal property of the debtor while the same yet 
 belonged to him vest in the receiver, because such act 
 has diminished or destroyed the value of property to 
 which the creditor had a right to resort for the payment 
 of his judgment. See also Brouwer v. Hill, i Sandf. S. 
 Ct., 629-649. . 
 
 So a right of action for an injury done to the judg- 
 ment debtor's real estate may no doubt be reached by 
 these proceedings, through a receiver appointed therein, 
 and may be enforced by him. Such a right is vested 
 by statute in executors and administrators for trespass 
 on the real estate of the deceased. 2 R. S., p. 114, § 4. 
 
 A judgment (not a mere verdict) recovered for a per- 
 sonal tort may be reached and applied to the payment 
 of a judgment against the owner of it. Davenport v. 
 
WHAT PROPERTY MAY BE REACHED. 289 
 
 Ludlow, 3 Code R., 66; Crouch v. Gridley, 6 Hi//, 
 250. 
 
 The judgment debtor's interest in an estate as next 
 of kin could be reached by a creditor's bill. McArthur 
 z: Hoysradt, 1 1 Paige, 495. Supplementary proceed- 
 ing is the proper remedy to reach a distributive share 
 of the judgment debtor in the hands of an adminis- 
 trator. Rand v. Rand, 78 N. C, 12. So his interest 
 in a partnership after the payment of the firm debts 
 and satisfaction of all prior equities in favor of the 
 other partners might be reached. Eager v. Price, 
 2 Id., 333. The same may be done in supplementary 
 proceedings. Webb v. Overmann, 6 Abb., 92. Claims 
 and choses in action may be reached by supplementary 
 proceedings. Fowler v. Grififin, 83 Ind., 297. A judg- 
 ment recovered by an administrator .upon a note be- 
 longing to the estate, and with which he was charged 
 on the final settlement, belongs to him, and may be 
 reached in these proceedings. 
 
 In like manner, where one had made advances and 
 incurred liabilities to enable a debtor to carry on a busi- 
 ness, without any benefit to himself, but under an agree- 
 ment that he should, as security for such advances, 
 have the control and disposition of the property thus 
 acquired, such property, while in the debtor's possession, 
 was held liable to be taken for his debts under a cred- 
 itor's bill. Taylor v. Perkins, 26 Wend., 124. See also 
 Levy V. Cavanagh, 2 Boszv., 100, as to the effect upon 
 the title to money which a customer of a judgment 
 debtor permits him to mingle with his own money on 
 the sale of property for him. 
 
 Money due from boarders may be reached by these 
 proceedings. Whalen v. Tennison, i N. Y. M. L. Bu//., 
 21, N. Y. Superior Ct., Special Term. The provision 
 of § 297, referred to here, is contained in § 2463 of the 
 present Code. A debt by a promissory note not yet 
 
290 WHAT PROPERTY CANNOT BE REACHED. 
 
 due to the debtor is property, and may be reached. 
 Pursell V. Poppenheimer, 1 1 Ind., 328 ; Dunning v. 
 Rogers, 69 Id., 272. 
 
 The earnings of a judgment debtor, except those for 
 his personal services, rendered within sixty days next 
 before the institution of the proceedings in a certain case, 
 may also be reached, and he can make no arrangement 
 to deprive the creditor of the same. Tripp v. Childs, 14 
 Barb., 85. See Gerregani v. Wheelwright, 3 Abb. {N. 
 S.), 264 ; Woodman v. Goodenough, iS Abb., 265 ; Potter 
 v. Low, 16 How., 549. In the case of Tripp v. Childs, 
 the debtor, who was a physician in New York, hired 
 himself to his son, who lived in Baltimore, but was no 
 physician, to carry on his profession in New York for 
 the son's benefit, and the latter therefor was to support 
 him and his wife during life. This was held to be a 
 fraudulent arrangement. Money wholly earned, though 
 by agreement not payable at the time the creditor's 
 bill was filed, could be reached. It was held to be an 
 existing debt at that time, although payable in futuro. 
 But see Albright v. Kempton, 4 N. Y. Civ. Pro. R., 16, 
 N. Y. City Ct., Special Term, McAdam, J. 
 
 SECTION H. 
 
 What Property cannot be Reached through these 
 Proceedings. 
 
 § 2463. " This article does not apply where the 
 judgment debtor is a corporation created by or under 
 the laws of the State, or a foreign corporation specified 
 in § 18 12 of this Act.* Nor does it authorize the seizure 
 of, or other interference with, any property which is 
 expressly exempt by law from levy and sale by virtue 
 of an execution ; or any money, thing in action, or 
 other property held in trust for a judgment debtor, 
 
 * Except in those actions or special proceedings brought by or 
 against the people of this State. 
 
WHAT PROPERTY CANNOT BE REACHED. 29 1 
 
 where the trust has been created by, or the fund so held 
 in trust has proceeded from, a person other than the 
 judgment debtor or the earnings of the judgment 
 debtor for his personal services rendered within sixty- 
 days next before the institution of the special proceed- 
 ing ; tvhere it is made to appear, by his oath or other- 
 wise, that those earnings are necessary for the use of a 
 family, wholly or partly supported by his labor." 
 
 This section embodies the provision of § 297 of the 
 former Code, except as to earnings. It dates the 
 sixty days' exemption of earnings from the institution 
 of the proceeding, and not from the date of the order, 
 as § 297 did, thus superseding Bush v. White, 12 Abb., 
 21, N. Y. Superior Ct. 
 
 As already mentioned, no proceedings can be insti- 
 tuted for the purpose of reaching property of a corpora- 
 tion or joint stock association, created by or under the 
 laws of this State, or of a foreign corporation or joint 
 stock association which does business within this State, 
 or has within the State a business agency, or a fiscal 
 agency, or an agency for the transfer of its stock. See 
 §§ 1 81 2 and 2463 of the Code of Civil Procedure. 
 
 Nor can money in the hands of a receiver of a cor- 
 poration, as such, be reached by these proceedings. 
 Smith V. McNamara, 15 Hun, AfA^y, General Term. 
 
 Here proceedings were taken against the receiver of 
 the New Jersey Central Railroad Company as a third 
 party, to reach money in his hands alleged to be due 
 the judgment debtor, and a motion was made for an 
 order requiring him as such receiver to pay the same to 
 the judgment creditor. Held, that the courts of this 
 State would not make an order requiring the receiver 
 to pay over money in such a case, because he is the 
 officer of the court which appointed him, and which 
 has the winding up of the affairs of the corporation ; it 
 would be interfering with the prerogatives of that court. 
 
2g2 WHAT PROPERTY CANNOT BE REACHED. 
 
 and would tend to great embarrassment and perplexity 
 if property of a corporation held by a receiver should 
 be allowed to be divested and distributed through the 
 agency of such proceedings. 
 
 The court further say : it is clearly against the policy 
 of the law to justify such an irregular and vexatious 
 interference with the duty and customary method of 
 adjusting and winding up the affairs of a corporation 
 after a receiver has been appointed. 
 
 When a court of competent authority has assumed 
 control in such a case and possesses a jurisdiction ade- 
 quate to grant proper relief to all parties interested, 
 such court should be applied to, and the fact that in 
 conducting the affairs of this receivership certain of its 
 business must necessarily be transacted in the city of 
 New York, does not, under the circumstances developed 
 in this case, vary the general rule. Here all the parties 
 were residents of New Jersey, the railroad company 
 was there, and the services had been rendered there. 
 Moreover, the receiver had been appointed such of this 
 foreign corporation by a court of the State of New 
 Jersey. The proceedings had been taken against him 
 as a third party. 
 
 Where money was given by a third person to a judg- 
 ment debtor to redeem some real estate of his, with the 
 express understanding that the same was to be de- 
 posited with the clerk of the court as a special deposit for 
 that purpose, and the ownership of the money was not 
 to pass out of the third person, unless for the redemp- 
 tion of such real estate, and then he was to have a 
 mortgage thereon for such advance, held that this 
 money could not be reached in the hands of the clerk 
 of the court and applied to a different purpose from 
 what it was intended. Terry ?'. Deitz, 49 Ind., 293. 
 
 Where the judgment debtor bought property with 
 money of his wife for her, and held it in trust for her. 
 
WHAT PROPERTY CANNOT BE REACHED. 293 
 
 but the deed taken in- his name did not express the 
 purposes of the trust therein, through the inadvertence 
 or want of skill of the scrivener, cannot be reached as 
 the property of the judgment debtor. Lathrop v. Gil- 
 bert, 2 Stockton {N. J. E. R.), 344. 
 
 Exempt Property. 
 
 Some property is exempt by law because owned by 
 a householder, and others because they constitute the 
 necessary tools or implements with which he earns a 
 livelihood, and in other cases his earnings for his per- 
 sonal services rendered within sixty days next before 
 the institution of the proceedings where it is made to 
 appear by his oath, or otherwise, that these earnings 
 are necessary for the use of a family, wholly or partly 
 supported by his labor. The exemption of earnings 
 for sixty days is the law of New York, while in other 
 States an exemption for the same number of days, or a 
 longer or shorter time obtains. 
 
 Householder. 
 
 In New York certain personal property, when owned 
 by a householder (man or woman), is exempt from levy 
 and sale by virtue of an execution, and is also exempt 
 from being reached by supplementary proceeding, and 
 also the right of action for taking the same is exempt. 
 These exemptions as found in §§ 1 389-1404 of Code of 
 Civil Procedure. 
 
 In Indiana it is held that a widower living with his 
 three children at the house of his father-in-law, and 
 paying their board and supplying them with clothing 
 and other necessaries for which they are dependent upon 
 him, is a householder within the meaning of the law. 
 Lowry v. McMaster, 86 Ind., 543. 
 
 But the property owned by the wife and used jointly 
 by her husband for the support of the family, composed 
 of himself, his wife, and her children by a former hus- 
 
294 WHAT PROPERTY CANNOT BE REACHED. 
 
 band, does not make her a householder, nor exempt 
 her property from seizure upon execution against her. 
 Van Doran v. Marden, 48 Iowa, 186. 
 
 Reaching Property. 
 
 In New Jersey wearing apparel is exempt, and the 
 only inquiry which can be made as to an article, as a 
 shawl, is whether the judgment debtor holds it in good 
 faith as wearing apparel, or purchased it for the purpose 
 of putting the price beyond the reach of creditors. 
 Rings and jewelry are not wearing apparel, and must be 
 given up to satisfy a debt. Frazier v. Bowman, 4 C. E. 
 Gr. {igN.f. Eg. R), 316. 
 
 Property exempt by the laws of the State, as belong- 
 ing to a householder, cannot be reached or applied upon 
 a judgment. Bunn v. Fonda, 2 Code R., 70 ; Finnin v. 
 Malloy, 33 N. Y. Superior Ct. (i /. &■ Sp.), 382 ; Hough- 
 ton V. Lee, 50 Cal., loi. Here a homestead was held 
 to be exempt. 
 
 The exemption of property is determined by the law 
 of the forum, and not by that of the place where it is 
 situated or where the judgment debtor resides. Hence, 
 property without the State is beyond the reach of these 
 proceedings, if within the terms of an exemption, by 
 the laws of New York, the same as if in the State. 
 Bunn V. Fonda ; while property exempt by the laws 
 of the State where the judgment debtor resides, but 
 not exempt by the laws of New York, may be reached 
 and applied upon the judgment in proceedings against 
 him in the latter States. Buchanan v. Hunt, 33 Htin, 
 329, General Term. So a judgment recovered for dam- 
 ages for taking and converting exempt property can- 
 not be reached ; because it stands for and represents 
 the property which was exempt from levy and sale un- 
 der execution ; nor can a right of action for such tak- 
 ing and conversion be reached, § 1394, Code of Civil Pro- 
 
WHAT PROPERTY CANNOT BE REACHED. 295 
 
 cedure. Tillotson v. Wolcott, 48 N. Y., i88 ; Andrews 
 V. Rowan, 28 How., 126, Supreme Ct. Also j^^ Hudson 
 V. Plets, II Pat^e, 180. But such exemption is limited 
 to one year after the collection of the same. § 1394 of 
 Code. 
 
 For the same reason the insurance money obtained 
 for the loss or destruction of exempt property insured 
 should not be liable to seizure for a year after collec- 
 tion of it. Andrews v. Rowan, sujira ; Sands v. Rob- 
 erts, 8 Abb., 343. 
 
 A share in the N. Y. Law Institute, worth about $150, 
 is exempt from execution and seizure in these proceed- 
 ings, when owned by a lawyer in actual practice and who 
 has a family for which he provides, on the ground that 
 such share and the privilege which it confers consti- 
 tute his necessary working tools and library as a mem- 
 ber of the legal profession. Keiher v. Shipherd, 
 AN. Y. Civ. Pro. R., 274, N. Y. City Ct., Special Term, 
 McAdam, J. 
 
 But the proceeds of exempt property voluntarily sold 
 by the owner are not exempt ; it is specific property 
 which is exempt by statute and not the proceeds of 
 such property if voluntarily sold by the debtor. Harrier 
 V. Fassett, 56 Iowa, 264. Also Smith v. Gore, 23 Kas., 
 488, being a similar decision as to the proceeds of a 
 homestead voluntarily sold by the judgment debtors. 
 
 A watch is exempt as a working tool or household 
 furniture, where the daily vocation of the judgment 
 debtor or of his family is of such a nature that a time- 
 piece is indispensable, and they have no clock, but use 
 the watch instead. Bitting v. Vandenburgh, 17 How., 
 80. A watch in possession of the judgment debt- 
 or, being a present to his dead wife from her mother, 
 will not be ordered to be delivered up. Id. 
 
 A cheap or common watch, although owned by a sin- 
 gle man, cannot be reached by execution or these pro- 
 
296 WHAT PROPERTY CANNOT BE REACHED. 
 
 ceedings, if it is necessary to the prosecution of the em- 
 ployment by which he gains his livelihood, or where he 
 cannot properly discharge his duties in his employment 
 without a watch. In such case it is a necessary tool or 
 implement for his occupation. Matter of Edlunds, a 
 judgment debtor, 35 Hitn, 367, General Term ; Merriam 
 V. Hill, I N. Y. W. Digest, 260, N. Y. Marine Ct., Special 
 Term, McAdam, J. In these last two cases the judg- 
 ment debtors were not householders within the mean- 
 ing of the statutes of New York ; for the chief idea that 
 enters into the meaning of " householder" is being the 
 head of a family which he is legally bound to support. 
 Bowne v. Witt, 19 Wend., 475 ; Bumpus %•. Maynard, 
 38 Barb., 626, General Term. But at common law the 
 necessary wearing apparel of a debtor is exempt from 
 levy and sale on execution. Bumpus v. Maynard, supra. 
 So also are the necessary wearing apparel of his wife 
 and children. This is so from public policy ; the pro- 
 prieties of social life require it. But in these latter cases 
 the courts have extended this common law exemption 
 to a watch when it appears to be a necessary tool or im- 
 plement to the prosecution of the debtor's employment. 
 In Minnesota it is held that where proceedings of con- 
 tempt have been had in a court of general jurisdiction, 
 and it is required that the adjudication should find that 
 the property was not exempt by law, or should find all 
 such minor facts, it is to be taken to include an adjudi- 
 cation upon whatever minor facts are necessary to au- 
 thorize the same. State v. Becht, 23 J//«;/.,4ii. That 
 is, such a determination will adjudge upon the question 
 whether the property meddled with was exempt or not. 
 Pension money granted by the United States Pen- 
 sion Office is also exempt from execution, and cannot 
 be reached by these proceedings. § 1393 of the Code of 
 Civil Procedure, and Wildrick v. De Vinney, 18 iV. Y. 
 W. Digest, 355, Supreme Ct., General Term. 
 
WHAT PROPERTY CANNOT BE REACHED. 297 
 
 Trust Property. 
 
 Money or other property held in trust for the judg- 
 ment debtor cannot be reached in these proceedings 
 where the trust has been created by, or the fund so held 
 has proceeded from, a person other than the judgment 
 debtor. §2463 of Code of Civil Procedure. Such prop- 
 erty does not belong to the judgment debtor. The 
 only right which he has in it is that of compelling the 
 execution of the trust, and this right is inalienable. 
 2 R. S., p. 730, § 63. Also Scott V. Nevius, 6 Duer, 672 ; 
 Campbell v. Foster, 16 How., 275. To the same effect 
 is Stewart v. Foster, i Hilt., 505, which is incorrectly 
 and loosely cited in Campbell v. Genet, 2 Hilt., 290 ; 
 also Stewart v. McMartin, 5 Barb., 438 ; Frazier v. Bow- 
 man, 4 C. E. Gr. (19 N. J. Eg. R.), 316. 
 
 The judgment debtor has even no title to or dis- 
 posable interest in the accrued income of such prop- 
 erty while it remains in the hands of the trustee. It 
 belongs to the latter in law and equity. No part of the 
 income, although it has accrued and remains unappro- 
 priated in the trustee's hands at the time proceedings 
 are instituted, can be reached therein, nor does it vest in a 
 receiver appointed therein, nor can it be reached through 
 an action brought by him. Such surplus income above 
 what is necessary for the purposes of the trust may be 
 reached by a judgment creditor, but only in an action 
 brought by himself in a court of equity, to which the 
 trustee and all other interested persons may be parties. 
 Williams v. Thorn, 70 N. Y., 270; Locke v. Mabbett, 
 2 Keyes, 457 ; S. C, 3 Abb., App. Dec. 68 ; Campbell 
 V. Foster, 35 N. Y., 361 ; Graff v. Bonnett, 31 N. Y., 
 9; Manning v. Evans, 19 Hun, 500; McEwen v. Brew- 
 ster, 17 Id., 223 ; Morgan z'. Von Kohnstamm, 60 How., 
 161 ; S. C, II iV. Y. W. Digest, 181, N. Y. Com. Pleas, 
 General Term. 
 
 There may be a trust created of personal property 
 
298 WHAT PROPERTY CANNOT BE REACHED. 
 
 as well as of real estate for the benefit of a judgment 
 debtor, and the same rules govern both. 2 R. S., ch. 10, 
 tit. 4, §2 ; Hallett v. Thompson, 5 Paige, 583 ; Clute v. 
 Bool, 8 Id., 83 ; Hawley v. James, 16 Wend., 118, 165, 
 262 ; Scott V. Nevius, supra. 
 
 Where the cestui que trust is a married woman, such 
 surplus income cannot be reached except for a debt 
 contracted by her before coverture. L'Amoureux v. 
 Van Rensselaer, i Barb. Ch., 34. The acts of the 
 Legislature upon the rights of married women since 
 passed, no doubt have modified this decision consider- 
 ably. 
 
 In the same manner the surplus of an annuity from 
 personal and real property which is not necessary for 
 the support of the annuitant and his family may be 
 reached and appropriated to the payment of a judg- 
 ment against him unless there is a provision for accu- 
 mulation. Rider 7^. Mason, ^ Sandf. Ch., 351 ; Craig 
 V. Hone, 2 Edw., 554. 
 
 Where, however, the money or other property is not 
 wholly the proceeds of a trust estate or fund, but in 
 part represents the labor of the judgment debtor, it is 
 subject to levy and sale on execution, and may be 
 reached by these proceedings, or a receiver appointed 
 therein. Salsbury v. Parsons, 36 Hun, 12, General 
 Term. In this case the plaintiff was the cestui que trust 
 of a farm held in trust for his benefit. He was on the 
 farm, and raised wheat thereon, which the defendant, as 
 sheriff, seized and sold on an execution against him. It 
 was held that the wheat in part represented the labor 
 of the plaintiff, and was not exempt. And where the 
 trust fund was created by the judgment debtor himself, 
 if the fund arose from the sale of his own property, 
 and he is the beneficiary of the trust, the same may 
 be reached. 
 
WHAT PROPERTY CANNOT BE REACHED. 299 
 
 Earnings. 
 
 The earnings of the judgment debtor for his personal 
 services rendered within sixty days next before the in- 
 stitution of the proceedings are also exempt, and can- 
 not be reached by these proceedings. § 2463 of present 
 Code. Hancock v. Sears, 4 N. V. Civ. Pro. R., 255 ; 
 also McCulIough z'. Carrogan, 24 Hiin, 157. 
 
 Section 297 of the former Code exempted such earn- 
 ings for sixty days next preceding the order ; and the 
 order referred to in that section was held to be the one 
 made by the judge applying the debtor's property upon 
 the judgment or appointing a receiver — that is, the 
 final order. Bush v. White, 12 Abb., 21, N. Y. Superior 
 Ct. The Code of Civil Procedure changes the time from 
 which this exemption is to date. In South Carolina 
 the earnings for personal services rendered within sixty 
 days preceding the order requiring the application of 
 earnings to the satisfaction of the judgment, only are 
 exempt. Union Bank v. Northrop, 19 5. C, 473. 
 
 The judgment debtor is entitled to this exemption, 
 whether the proceedings are instituted against himself 
 or against his bailee or debtor ; but to obtain it, it must 
 be shown or must affirmatively appear by the oath of 
 the judgment debtor, or otherwise, that these earnings 
 are necessary for the use of a family, wholly or partly 
 supported by his labor. It must be shown that he has 
 a family dependent upon him, and for which he is 
 bound to provide by law, and that he supports them 
 wholly or partly by his labor, and that he has no other 
 means to do it, except such earnings. Martin v. Sher- 
 idan, 2 Hilt., 586. The housekeeper of the judgment 
 debtor and her children are not such a family within 
 the meaning of this provision. To bring a case within 
 it, the debtor must sustain such a relation to the family 
 that it is his legal duty to support them, without regard 
 to their rendering him any compensation. Van Vechten 
 
300 WHAT PROPERTY CANNOT BE REACHED. 
 
 V. Hall, 14 How., 436, Saratoga County Court. In 
 Cummings v. Timberman, 49 How., 236, N. Y. Com. 
 P'.eas, Daly, C. J., held that a family consisting of the 
 judgment debtor's father, mother and sister, wholly 
 supported by him, was such a family. 
 
 This provision of the Code should be liberally con- 
 strued in favor of the judgment debtor. Miller v. 
 Hooper, 19 Hun, 394; S. C, 9 N. Y. W. Digest, 157, 
 General Term. See Sanford %>. Goodwin, Daily Regis- 
 ter, March 11, 1881, Marine Ct., Special Term, 
 McAdam, J. 
 
 In this last case (Sanford v. Goodwin) a married 
 man, supporting his family, sold goods on commission, 
 which were consigned to him at a fixed price, and the 
 excess received on sales was his commissions. It was 
 held that his personal earnings were the net profits 
 realized from the business, and that these were exempt ; 
 that it was not contempt to pay them away in dis- 
 charging expenses necessarily incurred in running his 
 business ; that his business was necessary to provide for 
 his family, which he could only do through some form 
 of remunerative employment, and, if carried on with the 
 assistance of others, his personal earnings are the net 
 profits realized from the business, and that it is not 
 contempt to use money to pay labor and expenses in 
 one's business after the order of injunction in supple- 
 mentary proceedings has been served. 
 
 The chief question discussed in this case was whether 
 or not, under the above-mentioned facts, net profits 
 were earnings of the judgment debtor for his personal 
 services. A like decision was arrived at under similar 
 circumstances in Wisconsin. Brown v. Hebard, 20 
 Wis., 326. 
 
 In Aschemoor v. Emmvert, S N. Y. Jll. L. Bull., 80, 
 N. Y. Com. Pleas, Special Term, Van BRUNT, J., held 
 that the proceeds of a business were not personal earn- 
 
WHAT PROPERTY CANNOT BE REACHED. 30I 
 
 ings, and exempt. The judgment debtor was the pro- 
 prietor of a private school. His terms required the 
 payment of tuition fees quarterly in advance. He had 
 no other source of income, but depended wholly upon 
 the profits of this school to support himself and his 
 family, consisting of wife and five children. The prod- 
 uce of his school appeared to be about twelve hundred 
 dollars a year. It was held that these tuition fees were 
 earnings for sixty days preceding the application for the 
 supplementary order, and were necessary for the sup- 
 port of his family, and therefore exempt ; that the ser- 
 vices for which the money was paid to him were in 
 effect rendered each day during the quarter, the money 
 to carry out this theory being in his hands ; and, fur- 
 ther, that this exemption should be liberally construed 
 in favor of the debtor. Miller v. Hooper, supra. This 
 is a new and liberal view of this species of exemption. 
 It means that where money for personal services is paid 
 in advance, although the payment may have been made 
 over sixty days before the institution of the proceed- 
 ings, yet if the services so paid for have been rendered 
 within the sixty days, the money cannot be reached, 
 because it is deemed a fund in the debtor's hands to be 
 applied upon his personal services as they are rendered. 
 This is, however, a fair and no doubt a just construc- 
 tion of that clause of § 2463 of the Code. This decision 
 was made under the former Code. 
 
 In Iowa it was held that a widower continuing to 
 l:eep house after the death of his wife, as before, his 
 son and son's wife living with him, as before, but paying 
 him no board or compensation, he having the full charge 
 of the household affairs, and employing a domestic, was 
 the head of a family, and his earnings for his personal 
 services were exempt. Tyson v. Reynolds, 52/1737(7,431. 
 The earnings for personal services of professional men 
 are exempt as well as those of mechanics and laborers. 
 
302 WHAJ PROPERTY CANNOT BE REACHED. 
 
 McCoy V. Cornell, et al., 40 Iowa, 457 ; Banks v. Ro- 
 denbach, 54 Id., 695. An aged mother and unmarried 
 sister were living with the judgment debtor, who sup- 
 ported the family principally by his personal earnings 
 and services ; held this to constitute a family and the 
 debtor's earnings were exempt. Earnings for personal 
 services within three months next preceding the issuing 
 of process for the collection of a debt are exempt. 
 Seymour, Sabin, etc. v. Cooper, 26 Kas., 539. 
 
 Real Estate. 
 
 Real property upon which the judgment is a lien, and 
 against which it may be enforced by an execution at 
 law, cannot be reached in these proceedings, nor 
 can it be sold by a receiver appointed therein. 
 Bunn V. Daly, 24 Hun, 526, General Term ; Albany 
 City Nat. Bank v. Gaynor, 6"/ How., 4.21, Supreme Ct., 
 Special Term. Also Tinkey v. Langdon, 13 iV. F. W. 
 Digest, 384, Supreme Ct., General Term. The reason 
 assigned is that the statute gives the judgment debtor 
 and his other creditors the right to redeem his real es- 
 tate so situated when sold upon execution at law, while 
 this right would be cut off if sold in an equitable pro- 
 ceeding. But, quaere, may real property on which the 
 judgment has ceased to be a lien be reached in these 
 proceedings through a receiver appointed therein or 
 otherwise? 
 
 Future Earnings and Acquisitions. 
 
 Money and property earned or acquired after the 
 service of the order for examination cannot be reached 
 in proceedings upon that order. Du Bois v. Cassidy, 
 8 N. Y. W. Digest, 132, Court of Appeals, affirming 
 S. C, 5 -^"^v 210; Woodman v. Goodenough, 18 Abb., 
 265 ; Caton v. Southwell, 13 Barb., 335 ; Potter i'. Low, 
 \6 How., 549; Campbell zi. Foster, Id., 275 ; Sands v. 
 Roberts, 8 Abb., 343. In this last case property which 
 
"WHAT PROPERTY CANNOT BE REACHED. 303 
 
 had been insured was destroyed by fire after the pro- 
 ceedings had been commenced. It was held that the 
 insurance money subsequently paid could not be 
 reached by the proceedings previously instituted, on 
 the ground that the insurance money was after-acquired 
 property. But Avas it such ? Was it not rather the 
 same property in another form ? After-acquired prop- 
 erty may be reached by commencing a second pro- 
 ceeding. In a creditor's suit after-acquired property 
 was reached by filing a supplemental bill. McCoun v. 
 Dorsheimer, i Clarke, 144. 
 
 Where compensation for services was to be paid 
 only upon their completion, and they were not all per- 
 formed at the time of filing the .bill, compensation for 
 the work already done could not be reached, provided 
 the debtor himself could have had no legal or equit- 
 able right to demand payment for what he had done, if 
 he had then neglected to complete the services. 
 Browning v. Bettis, 8 Paige, 568 ; Thompson v. Nixon, 
 3 Edw. Ch., 457 ; McCoun v. Dorsheimer, supra. A salary 
 payable periodically cannot be reached before the 
 time of payment, although earned. 3 Edw., 457, supra. 
 Salary and commissions not payable at the time the pro- 
 ceedings are instituted cannot be reached in them. Al- 
 bright V. Kempton, a,N. Y. Civ. Pro. R., 16, N. Y. City 
 Ct., Special Term, McAdam, J. Also Browning v. 
 Bettis, 8 Paige, 568. In this case (Albright v. Kemp- 
 ton) the salary and commissions which it was sought to 
 reach had not been fully earned at the time the pro- 
 ceedings were instituted. But money earned or fees for 
 work done by the job or piece may be reached, although 
 not payable until a future day. Thompson v. Nixon, 
 supra. 
 
 Money not yet due to the judgment debtor at the 
 time the order of examination is served upon his debtor 
 or bailee cannot be reached. First Nat. Bank v. Beards- 
 
304 WHAT PROPERTY CANNOT BE REACHED. 
 
 ley, 8 N. Y. W. Digest, 7, Supreme Ct., General Term. 
 Here the order was served upon the third party on 
 September 30, while the salary of the judgment debtor 
 sought to be reached was not due until the close of 
 that day, and had therefore not in fact been fully 
 earned. Also Gerregani v. Wheelwright, 3 Abb. {N. S), 
 264, N. Y. Com. Pleas, Special Term ; Merriam v. Hill, 
 I N. V. W. Digest, 260. In this last case there was an 
 executory contract, and at the time of instituting the 
 proceedings there was nothing shown to be due under it. 
 
 Money to become due or payable on a contingency 
 or on an executory contract cannot be reached, as 
 where a debtor had a contract with an owner of certain 
 lots to erect houses on them. The owner was to ad- 
 vance him money by instalments as the buildings pro- 
 gressed. At the time of commencing proceedings all 
 instalments then payable had been paid, and the 
 work had not progressed far enough for another instal- 
 ment. It was held that there was nothing under this 
 contract to be reached. McCormick v. Kehoe, 7 N. Y. 
 Leg. Obs., 184. 
 
 So, 3.JUS precarium, or a right resting in courtesy, or 
 a bare possibility of having an interest could not be 
 reached, as the possibility of the debtor outliving an- 
 other person, and obtaining an interest in his property 
 as next of kin. Smith v. Kearney, 2 Barb. Ch., 533 ; 
 Munsell v. Lewis, 4 Hill, 642. 
 
 So, personal property assigned by the debtor for the 
 benefit of his creditors while the execution is alive 
 and in the hands of the sheriff cannot be reached by 
 proceedings instituted upon the return of that execu- 
 tion, provided there is no fraud to vitiate the assign- 
 ment. For by the return the lien of the execution is 
 lost, and supplementary proceedings do not revive it. 
 Watrous v. Lathrop, 4 Sandf., 700 ; Weed v. Pierce, 9 
 Cow., 728. 
 
WHAT PROPERTY CANNOT BE REACHED. 305 
 
 A right of action in the judgment debtor for a per- 
 sonal tort, as slander, cannot be reached ; nor can a 
 right of action for any injury, which but generally or 
 indirectly affects the estate of the debtor, be reached, 
 as a right of action for deceit. See Zabriskie v. Smith, 
 13 jV. v., 332, and cases cited above. 
 
 A right of action in a wife or a parent for killing hus- 
 band or a child cannot be reached. 
 
 It was held by the Special Term, New York Superior 
 Court, that a permit granted by the authorities of the 
 city of New York to occupy a market stand is not 
 property that can be reached by a judgment creditor. 
 
 Equitable Appropriation. 
 
 A custom-house officer received a loan equal to the 
 amount af his salary for the month before it was paya- 
 ble, and gave therefor a draft upon the paying officer 
 for the salary. This draft was to be deposited with 
 the latter, and the former was to indorse it when the 
 salary became payable. Thereafter, and before such 
 salary became payable, a creditor's bill was filed against 
 the debtor, and he enjoined. When the salary became 
 due he endorsed the draft, as per agreement, and the 
 payee drew the money. Held that salary could not 
 be reached. It had been equitably appropriated to the 
 payee of the draft, with the knowledge of the disburs- 
 ing officer. Ireland v. Smith, i Barb., 419 ; S. C, 3 
 How., 244. 
 
 Where A purchased land from B, and gave C's 
 note in payment, and then executed to the latter a 
 bond and a mortgage on the land for the amount of 
 the note, it was held that the creditors of C could not 
 reach this bond and mortgage, so long as the note given 
 to B remained unpaid. Vail v. Foster, \N. Y., 312. 
 
 Money in the Hands of Disbursing Officers. 
 
 Salary or wages due or payable to a judgment debtor 
 
306 W?IAT PROPERTY CANNOT BE REACHED. 
 
 while in the hands of a public disbursing officer, as a 
 comptroller, treasurer, clerk, etc., cannot be reached by- 
 proceedings taken against such officer. Remmey v. 
 Gedney, 57 How., 217 ; S. C, i City Court R., 28, N. Y. 
 Marine Ct., McAdam, J. ; Waldman v. O'Donnell, 57 
 Hoiv., 215 ; S. C, I N. Y. M. L. Bull., 47, N. Y. Com. 
 Pleas, Special Term ; Lowber v. The Mayor, etc. of 
 N.Y., "J Abb., 252 ; Conrell v. Funk, i City Court R., 35, 
 note. Also see Nagle v. Stagg, 15 Abb. {N. S.), 348; 
 Buchanan v. Alexander, 4 How. {U. .S.), 20; Tracy v. 
 Hornbuckle, 8 Bush, 336 ; Drane v. McGavock, 7 
 Humph., 132 ; Averill?'. Tucker, 2 Crunch. {U. S. C. C), 
 544 ; Bulkley v. Eckert, 3 Penn. St., 368 ; Simpson v. 
 Turner, 76 JV. C, 115. See ante, ch. i, § 4, pp. 49-51. 
 
 So, in proceedings on a judgment against an assignee 
 in bankruptcy, taken against a bank, the depository of 
 United States funds, it cannot be required to pay 
 over to the judgment creditor money belonging to the 
 estate of the bankrupt, and deposited there by the as- 
 signee. Havens v. The Nat. City Bank of Brooklyn, 
 ^Hun, 131 ; S. C, 6 Supreme Ct. (T. & C), 346, Gen- 
 eral Term. 
 
 In Ohio salaries of officers of incorporated cities, and 
 due and unpaid in the hands of disbursing officers, may 
 be reached by judgment creditors of such officers under 
 the provision of the Ohio Code of Civil Procedure. 
 The City of Newark v. Frank, 15 O. S. 462. 
 
 SECTION III. 
 
 Order Permitting a Debtor of Judgment Debtor to Pay 
 the Sheriff. 
 
 § 2446. " At any time after the commencement of a 
 special proceeding authorized by this article, and be- 
 fore the appointment of a receiver therein or the exten- 
 
ORDER PERMITTING TO PAY SHERIFF. 307 
 
 sion of a receivership thereto, the judge by whom the 
 order or warrant was granted, or to whom it is return- 
 able, may, in his discretion, upon proof by affidavit to 
 his satisfaction that a person or corporation is indebted 
 to the judgment debtor, 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 ac- 
 count 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 indebt- 
 edness, except as against the transferee from the judg- 
 ment debtor, in good faith and for a valuable consid- 
 eration, of whose rights the person or corporation had 
 actual or constructive notice when the payment was 
 made." 
 
 This and the following four sections of the Code are 
 intended to form together a scheme for the application 
 of money and other personal property of the judgment 
 debtor in a summary way upon the judgment against 
 him. This section permits a debtor of the judgment 
 debtor to pay his debt toward the satisfaction of the 
 judgment against his creditor, while the next section 
 empowers a judge to compel a person having in his 
 possession, or under his control, any article of personal 
 property capable of delivery, and whereof the judgment 
 debtor's right of possession is not substantially disputed, 
 to deliver the same to a sheriff or receiver. In drafting 
 these two sections the codifiers followed the Court of 
 Appeals in the West Side Bank v. Pugsley, 47* N. Y., 
 368, and other concurring decisions. Section 2446 is 
 intended as a substitute for § 293 of the former Code, 
 but differs from it in detail and in procedure. Its pro- 
 visions apply only after a proceeding has been institut- 
 ed, and before the appointment of a receiver therein 
 or the extension of the receivership thereto. The pro- 
 
308 ORDER TO PERMIT PAYING SHERIFF. 
 
 ceeding may be against the judgment debtor or against 
 his debtor or bailee. It need not be against the person 
 who is permitted thus to pay his debt. No proceeding 
 against him appears to be contemplated by this section. 
 But the proof of the indebtedness must be made by af- 
 fidavit, and it must be satisfactory to the judge. Facts 
 must be stated as in a proceeding under § 2441 of Code, 
 against a third person. Under the former statute such 
 payment might be made to the sheriff after the issue of 
 execution against the property of the judgment debtor 
 and without reference to the pendency of any proceed- 
 ing. The payor obtained the sheriff's receipt, which 
 was his only protection. Now, the order of the judge 
 permitting the payment is added to that receipt. 
 
 In California a debtor of the judgment debtor may 
 pay to the sheriff having an execution against the judg- 
 ment debtor, as in New York, but the payment is not by 
 permission of a judge, as in New York. 
 
 In Ohio the provision that where a sheriff has an 
 execution in his hands against a debtor, a person in- 
 debted to him may pay the amount, or so much as will 
 be necessary to extinguish the judgment, to the sheriff, 
 and his receipt shall be a sufficient discharge for the 
 amount so paid, is applicable to a judgment of a justice 
 when the execution is issued to a constable. Hallahan 
 V. Crow, 15 C. S., 176. The same has been held in 
 Wisconsin, Kibbee v. Howard, 7 Wis., 150, and is not 
 unconstitutional. Judd v. Littlejohn, 11 Wis., 176; 
 Dunbar v. Harnesberger, 12 Id., 373. 
 
 Notice. 
 
 The provision as to notice is the same as that of 
 the next section (2447). It is wholly discretionary with 
 the judge whether or not notice shall be given, how 
 and to whom it shall be given. 
 
 Under § 293 of the former Code payment to the 
 
ORDER TO PERMIT PAYING SHERIFF. 309 
 
 sheriff was purely voluntary, and without the sanc- 
 tion of a judge's order. See Lyman v. Cartwright, 
 3 E. D. Smith, 117. It was held to be money paid on ac- 
 count of the judgment debtor ; and if sued therefor, 
 the person paying might set up the payment as money 
 paid to his use. Calkins v. Packer, 21 Barb., 275, 283. 
 
 What Cannot be so Paid. 
 
 A debt due to a judgment debtor as earnings for 
 his personal labor, or trust money, or any other debt 
 exempt by law cannot be paid to the sheriff, so as to 
 discharge the person paying it. 
 
 Where a person's property, exempt from execution, 
 is levied on and taken, and he brings an action for 
 the value of it, instead of an action of replevin for the 
 property itself, he takes the risk of the judgment recov- 
 ered being paid to the sheriff under this section. Id. 
 But see Hudson v. Plets, 11 Paige, 180; S. C, 3 N. Y. 
 Leg. Obs., 120. Also Andrews v. Rowan, 28 How., 126. 
 
 The amount of a verdict in tort, as for assault and bat- 
 tery, paid to the sheriff will not discharge it. Daven- 
 port V. Ludlow, 3 Code R., 66. But where such ver- 
 dict is perfected into a judgment, it may be paid to 
 the sheriff. Davenport v. Ludlow, supra ; Mallory v. 
 Norton, 21 Barb., 424. 
 
 The sheriff who has collected money on an execution 
 is not a debtor within the meaning of this section. 
 He cannot be permitted to apply money thus col- 
 lected from one individual to the payment of an exe- 
 cution in favor of the same person. Baker v. Ken- 
 worthy, 41 N. v., 215; Adams v. Welsh, 43 .A^. Y. 
 Superior Ct., 52, General Term ; Smith v. McMillan, 
 84 N. C, 593. 
 
 A debtor who, in ignorance of bankruptcy pro- 
 ceedings, begun within four months of an attachment, 
 paid to the sheriff after judgment the debt which 
 
3IO ORDER PERMITTING PAYMENT TO SHERIFF. 
 
 was attached thereby in his hands before bankruptcy, 
 was held not discharged by such payment. Duffield 
 V. Horton, 73 N. Y., 218, affirming S. C, 10 Hun, 140. 
 It is held in North Carolina that where the judg- 
 ment is against several debtors, a debtor of one of the 
 judgment debtors is not authorized to pay his debt to 
 the sheriff under the statute of that State. Howery v. 
 Miller, 67 N. C, 459. 
 
 Effect of the Order. 
 
 The order is valid and conclusive against the judg- 
 ment debtor to the extent of the payment made 
 under it, and that far discharges the indebtedness 
 (§ 2446 of Code), unless the debt so paid was ex- 
 empt by law. It is also valid against a transferee 
 of the claim or debt, although he becomes such be- 
 fore the order is made, and is owner in good faith 
 and for a valuable consideration ; and it precludes 
 him from ever after demanding the same from the 
 person thus paying, unless he proves that such person 
 had actual or constructive notice of his rights at the 
 time he paid ; and it also precludes him from recov- 
 ering back the money after it has reached the judg- 
 ment creditor, unless he proves against him a like 
 notice. These legal propositions are sustained by 
 § 2446 of the Code and the decisions of the Court of 
 Appeals. By this section a payment under a permissive 
 order is valid, except as against a transferee from the 
 judgment debtor in good faith and for a valuable 
 consideration, of whose right the person or corporation 
 paying had actual or constructive notice at the time of 
 payment. To defeat the effect of the order as a pro- 
 tection, the transferee must prove good faith and valua- 
 ble consideration in the transfer to him, and notice 
 actual or constructive to the payor of the claim. In 
 Gibson v. Haggerty, 37 N. Y., 555, it appeared that pro- 
 
ORDER PERMITTING PAYMENT TO SHERIFF. 3 II 
 
 ceedings had been instituted against third persons under 
 the old Code, and an order made requiring them to pay- 
 to the judgment creditor a debt due by them to the 
 judgment debtor. They complied with the order. No 
 notice of the proceedings or of the application for the 
 order had been given the judgment debtor. The plaintiff 
 claimed that the debt had been assigned to him before 
 the proceedings had been instituted against the third 
 person, and that therefore he was not bound thereby. 
 But it appeared that he had failed to notify the defend- 
 ants, the debtors of the judgment debtor, of such 
 transfer. The court held that the payment was valid 
 against the judgment debtor, although no notice had 
 been given him of the proceeding, and that it was also 
 valid against the assignee of the debt, because he had 
 neglected to give the debtors notice of the assign- 
 ment, and, under the circumstances, such payment 
 was not depriving the assignee of his property with- 
 out due process of law, as was contended by him. 
 These decisions overrule a number of cases, as Adams 
 z'. Welsh, 43 TV. Y. Superior Ct., 52; Huse v. Guyot, 
 3 N. Y. Supreme Ct. {T. & C), 790; Richardson 
 V. Ainsworth, 20 How., 521 ; Robinson v. Weeks, 6 Id., 
 161 ; S. C, I Code iJ. (iV. 5.), 311; Countryman v. Beyer, 
 2 Code R., 4, which held that when the judgment debtor 
 had transferred his claim against a third person, the 
 latter was no longer indebted or liable to him, and 
 therefore could not discharge his indebtedness by pay- 
 ing it to the sheriff, whether notice of such transfer had 
 been given to him or not. 
 
 It is thus seen that as to notice this section (2446) 
 follows the decision of Gibson v. Haggerty, 37 N. Y, 
 555, but supplements it by allowing the transferee to 
 defeat the effect of the order by proving actual or 
 constructive notice of his rights to the payor, no matter 
 how that notice may have been brought home to him. 
 
312 ORDER PERMITTING PAYMENT TO SHERIFF. 
 
 But in no case, whether the transferee appears before 
 the judge when this order is asked for, or not, is he 
 concluded thereby, if he is a bona fide transferee for a 
 valuable consideration, and the person paying has actual 
 or constructive notice of his rights. § 2446. And if 
 the judgment creditor had notice of the transferee's 
 rights, or did not act in good faith in procuring such 
 debt to be paid to him through the sheriff, the trans- 
 feree may no doubt recover the money back. See 
 State of Michigan v. Phcenix Bank, 33 N. Y., 25 ; 
 Fowler v. Lowenstein, 7 Lans., 167. 
 
 The Proof. 
 
 It was held under the former Code that when a 
 person who has thus paid his debt is sued to recover 
 the same, he can only set up the payment by way of 
 counter-claim as money paid to the use of the judgment 
 debtor, and on the trial he must produce the sheriff's 
 receipt and prove the judgment, by the production of 
 the best evidence — the record itself, or a certified copy 
 thereof, and the issuing of an execution thereon. 
 Calkin V. Packer, 21 Barb., 275 ; Handly v. Greene, 
 15 Id., 601, Special Term. See Beebe v. Kenyon, 3 Hiui, 
 73 ; S. C, 5 N. V. Supreme Court R. {T. & C), 271. 
 
 But under § 2446 of the present Code, where those 
 provisions have been fully followed, the money so paid 
 becomes a payment upon the judgment, and not a 
 mere counter-claim ; and § 2446 transforms the money 
 paid under a permissive order of the judge to the pay- 
 ment upon the judgment, even against a transferee of 
 the debt or claim. But the transferee, in order to de- 
 feat the effect of payment to the sheriff under the 
 judge's permissive order, must prove that he is such in 
 good faith and for a valuable consideration, and that 
 the defendant had actual or constructive notice of his 
 rights at the time of the payment. He must prove 
 
ORDER REQUIRING DELIVERY OF PROPERTY. 313 
 
 both propositions ; if he fails in either, he cannot re- 
 cover. If he proves both the defence of payment fails. 
 In Wisconsin the receipt of the sheriff for the money 
 paid to him on account of the execution in his hands 
 against a judgment debtor by a debtor of the latter, is 
 a sufificient discharge. Kibbee v. Howard, 7 Wis., 1 50. 
 
 SECTION IV. 
 
 Order Reqiiiring Delivery of Money or Property to 
 Sheriff or Receiver. 
 
 % 2447. " Where it appears from the examination or 
 testimony, taken in a special proceeding authorized by 
 this article, that the judgment debtor' has in his pos- 
 session, 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 dis- 
 cretion, and upon such a notice given to such persons 
 as he deems just, or without notice, make an. order, 
 directing the judgment debtor, or other person, im- 
 mediately to pay the money or deliver the articles of 
 personal property to a sheriff designated in the order, 
 unless a receiver has been appointed or a receivership 
 has been extended to the special proceeding, and in 
 that case to the receiver." 
 
 This section includes the provisions of § 297 of the 
 former Code. It defines, however, more carefully the 
 power of the judge in the premises, and settles the 
 point as to whether or not the judge can compel a 
 person indebted to the judgment debtor to pay the debt 
 
314 ORDER REQUIRING DELIVERY OF PROPERTY. 
 
 upon the judgment against him. Under the former 
 Code this power was claimed and exercised by some 
 judges, and even the Court of Appeals and the Com- 
 mission of Appeals at first held that it existed. See 
 Durand v. Hankerson, 39 N. Y., 296; Lynch v. John- 
 son, 48 N. v., 27, 33, affirming 46 Barb., 56 ; and Brush 
 V. Lee, I Abb. App. Dec. 238 ; S. C, 6 Abb. {N. S.), 50; 
 and 2 Trans. Appeals, 95. 
 
 But later on the Court of Appeals denied the exist- 
 ence of this power, as against the debtor of the judg- 
 ment debtor, declaring that to hold that the authority 
 of the judge extends to the collection by these sum- 
 mary proceedings of an ordinary debt due the judg- 
 ment debtor invests a judge with a justly dreaded 
 power over the liberty of an embarrassed or insolvent 
 debtor. Inability to pay is thus made punishable 
 with imprisonment. West Side Bank v. Pugsley, 47 
 N. Y., 368. See also the earlier decisions of Peters v. 
 Kerr, 22 How., 3; Sandford v. Moshier, 13 Id., 137; 
 Patten v. Connah, 13 Abb., 418 ; Sheldon v. Weeks, 
 7 N. Y. Leg. Obs., 57; and the later case of Tinker v. 
 Crooks, 22 Hun, 579. 
 
 The Code of Civil Procedure follows these decisions : 
 it does not invest the judge with this dreaded power, 
 and supersedes all decisions to the contrary on this point. 
 The new Code also makes another important change. 
 
 Under the former statute the money or other per- 
 sonal property of the judgment debtor was usually 
 ordered to be paid or delivered to the creditor, and by 
 him applied upon his judgment. This practice led to 
 injustice and fraud. The Court of Appeals in West 
 Side Bank v. Pugsley, supra, pointed out the propriety 
 of having the property delivered to the sheriff for levy 
 and sale under execution in the usual way; and the 
 Supreme Court, General Term, in Dickinson v. Onder- 
 donk, \?> Hun, 4'jg, held that the judge had no authority 
 
ORDER REQUIRING DELIVERY OF PROPERTY. 315 
 
 to order the judgment debtor to deliver a chattel, like a 
 horse, to a creditor to be applied on the judgment upon 
 the latter's tendering him a receipt therefor ; that the 
 proper way was to have the property sold under execu- 
 tion or by a receiver. Also Heroy v. Gibson, 10 
 Bosw., 59 1. 
 
 The present Code follows this view, and prescribes 
 that the money or other personal property of the 
 judgment debtor, either in his possession or control 
 or in that of another person, which is applicable to the 
 payment of the judgment against him, and capable of 
 delivery, must be paid or delivered to a sheriff or a 
 receiver, and that immediately ; thus superseding The 
 People V. King, 9 How., 97 ; Rodman v. Henry, 
 17 N. v., 482, and all other decisions to the contrary on 
 this point, and also those decisions which prescribed a 
 time within which such money or property was to be 
 paid or delivered by the judgment debtor or his bailee 
 or debtor. 
 
 The judge has no power under the present Code to 
 order money to be paid or property to be delivered to 
 the judgment creditor. Birnbaum v. Thompson, 
 5 N. V. M. L. Bull., 30, Supreme Ct. Ch., BARRETT, J. 
 The power of the judge, as prescribed in this section 
 (2447) of the Code, is limited, first, to requiring the 
 judgment debtor to pay or deliver to a sheriff or 
 a receiver money or other personal property as- 
 certained to belong to him and in his possession or 
 under his control ; second, to requiring a third 
 party having in his possession or under his control 
 an article of personal property capable of delivery to 
 payor deliver the same to a sheriff or receiver, provided 
 that the judgment debtor's right to the possession 
 thereof is not substantially disputed. This section 
 (2447) does not in terms require that it shall appear in 
 the proceeding that the money or other personal prop- 
 
3l6 ORDER REQUIRING DELIVERY OF PROPERTY. 
 
 erty in the possession or under the control of a third 
 person belongs to the judgment debtor ; but such own- 
 ership must appear notwithstanding. 
 
 The expression " articles of personal property " in- 
 cludes a specific sum of money belonging to the judg- 
 ment debtor, mentioned in West Side Bank v. Pugsley, 
 47 N. v., 368. See § 3343, subd. 7, of Code of Civil 
 Procedure. A debtor of the judgment debtor may 
 pay his debt to the sheriff toward the satisfaction of the 
 judgment against his creditor, by virtue of § 2446 of 
 the present Code ; but he cannot be compelled to do so 
 under the penalty of imprisonment as for contempt. 
 So also if the article of personal property found in his 
 possession or under his control, belonging to the judg- 
 ment debtor, is incapable of delivery, for any cause 
 whatever, he cannot be required to deliver it, under 
 the penalty of contempt proceedings against him for 
 not complying ; and in no case can he be required to 
 pay money or deliver other personal property to the 
 judgment creditor himself. And the judgment debtor 
 can only be required to pay money or deliver to a 
 sheriff or receiver the money or other personal property 
 which appears from the examination or testimony 
 taken in the proceedings to belong to him and to be in 
 his possession or under his control. § 2447 of the Code. 
 He cannot be compelled to pay the judgment, although 
 he may admit his ability to do so. Tinker z>. Crooks, 
 22 IIujz, 579, supra; Bailey v. Buell, 50 N. Y.,662; 
 Drake v. Shurtliff, 24 Hun, 422. The judge can only 
 deal with the money or other personal property of the 
 judgment debtor which the examination or testimony 
 taken in the proceedings shows to be in his possession 
 or under his control. He may order that to be applied 
 upon the plaintiff's judgment, either through a sheriff 
 or a receiver. He can make no other order looking tow- 
 ard the payment of the judgment. 
 
ORDER REQUIRING DELIVERY OF PROPERTY. 317 
 
 In Ohio a judge cannot order a judgment debtor to 
 pay a debt and enforce payment by imprisonment as 
 for contempt where there is no fraud. He may direct 
 the application of the proceeds upon the judgment 
 when collected. The Union Bank of Rochester v. 
 The Union Bank of Sandusky, 6 O. S., 254. In Wis- 
 consin a court commissioner has no authority to make 
 an order that the judgment debtor's property be 
 applied on the judgment in satisfaction thereof, nor 
 that the judgment debtor deliver the same to the 
 creditor's attorney. The order for the delivery of the 
 property to the attorney is absolutely void. Neeure- 
 kamp V. Ullmer, 47 Wis., 168. 
 
 Again, to authorize the judge to make the order 
 under § 2447, 't must appear beyond any reasonable 
 doubt that the property, the subject of the order, be- 
 longs to the judgment debtor and that he is entitled to 
 the possession thereof. All the facts necessary for the 
 order must appear. None can be taken for granted or 
 on presumption. 
 
 When these facts, or any of them, are substantially 
 disputed, the order should not be made. West Side 
 Bank v. Pugsley, supra. In such case a receiver should 
 be appointed. See post, next section. 
 
 The presumption of ownership of personal property, 
 arising from possession, does not obtain in these pro- 
 ceedings. It is not enough that the property is found 
 in the hands of the judgment debtor : it must also 
 appear to be his. Rodman v. Henry, ij N. Y., 482. 
 In this case, however, evidence was given that the 
 property belonged to another person, and had been put 
 in his hands to dispose of. 
 
 The making of this order under § 2447 is in the 
 discretion of the judge. But where it is clear that the 
 money or other personal property in question belongs 
 to the judgment debtor, and is in his possession or 
 
3l8 ORDER REQUIRING DELIVERY OF PROPERTY. 
 
 under his control, or his right to the possession there- 
 of is not substantially disputed, and it does not appear 
 to be exempt by law, and is capable of delivery, the 
 proper order to make is that prescribed in § 2447, 
 rather than an order appointing a receiver, and putting 
 the judgment creditor to the useless expense and trouble 
 and uncertainty of a receivership. See West Side 
 Bank v. Pugsley, 47 N. Y., 368 ; Rodman v. Henry, 
 supra; People v. King, 9 How., 97. Also Goodyear 
 V. Betts, 7 Id., 187; Dorr v. Noxon, 5 How., 29; 
 Corning v. Tooker, Id., 16. 
 
 In California it is held that in an action against a 
 garnishee, it was simply the duty of the court to 
 render a judgment against him for the amount found 
 due ; and an order to pay the sum into court is im- 
 proper. Smith V. Brown, 5 Cal., 118. Also Brumma- 
 gen V. Baucher, 6 Id., 16. 
 
 Nor can a judgment debtor be required to pay 
 over the amount of his indebtedness, the object of 
 such proceedings being to reach funds of the judgment 
 debtor. Hathaway v. Brady, 26 Cal., 581 ; Hartman 
 V. Olvera, 5 Cal., 501. 
 
 Nor can a judge make any order against or affecting 
 a person who is not a party to the proceedings in 
 which it is made. Hathaway v. Brady, supra. 
 
 In Minnesota the court say the judge has power to 
 make an order requiring the application of property of 
 the judgment debtor not exempt by law, in his own 
 possession, or in that of a third person or corporation, 
 alleged to belong to him or to be indebted to him 
 toward the satisfaction of the judgment ; but if the 
 third person claims an adverse interest in the property 
 or denies the debt, then the judge may appoint a re- 
 ceiver. Knight V. Nash, 22 Minn., 452. 
 
 Further held that the order of a judge requiring the 
 judgment debtor to give to the plaintiff an order upon 
 
ORDER REQUIRING DELIVERY OF PROPERTY. 3I9 
 
 his debtor for money due toward the payment of the 
 judgment operates merely as an assignment of the 
 debt or claim. Knight v. Nash, supra. 
 
 In North Carolina it is held that the order of the 
 court directing property to be applied to the satisfac- 
 tion of the judgment, the plaintiff thereby acquires a 
 lien on such property. Perry v. The Merchants' Bank 
 of New Berne, 70 N. C, 309. 
 
 The court may require the judgment debtor to 
 convey to a receiver real estate situated without the 
 State for the benefit of a creditor. Bailey v. Ryder, 10 
 N. y., 363. It may also require him to assign personal 
 property situated without the State, but it cannot com- 
 pel him to deliver it when out of the State. Bunn 
 V. Fonda, 2 Code R., 70. 
 
 It was held that a justice of the Supreme Court or a 
 county judge had this same power to compel such con- 
 veyance or assignment in supplementary proceedings. 
 Fenner v. Sanborn, 37 Barb., 610, General Term. This 
 decision was made under § 299 of the former Code, and 
 the reasoning by which the court arrives at this con- 
 clusion appears satisfactory. Earlier decisions had 
 denied this power to the judge, while the court in 
 Tinkey v. Langdon, 60 How., 180, doubted its existence. 
 
 But the provisions contained in the present Code on 
 this point are different, and it is doubtful whether a 
 judge has now the power to compel a judgment debtor 
 to convey land situated without the State to a receiver. 
 
 It was held under the former Code that in proceed- 
 ings before return of execution, no order could be made 
 directing the application of personal property to the 
 payment of the judgment, unless it appeared by 
 affidavit that a demand had been previously made upon 
 the debtor to apply such property toward the payment 
 of the judgment, and that he refused to do so. First 
 Nat. Bank of Rome v. Wilson, 13 Hun, 232. The 
 
320 ORDER REQUIRING DELIVERY OF PROPERTY. 
 
 present Code has modified the authority of this deci- 
 sion to some extent. While under the former Code 
 only the property specified and demanded of the judg- 
 ment debtor could be reached in proceedings before 
 return of execution, under the present one any personal 
 property belonging to the debtor, and in his possession 
 or under his control, whether it has been demanded of 
 him or not, may be reached and ordered to be paid or 
 delivered to a sheriff or receiver in such proceedings, 
 provided the proceedings themselves will lie. See ante, 
 ch. 2, § 3, p. 146. In South Carolina the order of a 
 judge upon the judgment debtor to pay to a receiver 
 funds in his hands or under his control is not unconsti- 
 tutional, being in effect an order to deliver a specific 
 thing, as specie or bank bills, and order an attachment 
 in case of disobedience ; but the order should only 
 require so much of the money to be paid over as will 
 satisfy the judgments represented by the receiver and 
 the costs ; but it is error to include in the same order 
 that the judgment debtor pay over the money within 
 a specified time or be attached. He has a right to be 
 heard before attachment issues against him. Kernshaw 
 Mills Co. V. Walker, 19 5'. C, 104. 
 
 It was held that this order may be in the alternative — 
 require the judgment debtor to pay — or that an attach- 
 ment be issued against him. Crouse v. Wheeler, 
 33 How., 337. 
 
 In a proper case, it was held, the judge may make an 
 order directing the payment of money or delivery of 
 other personal property under this section (2447), and 
 also appoint a receiver of such property as is incapable 
 of delivery. See Corning v. Tooker, 5 How., 16. 
 
 No valid order can be made against a person who 
 is not a party to the proceedings in which it is granted. 
 To bind a person, the order must be made in proceed- 
 ings instituted against him, and he must be duly served 
 
NOTICE FOR DELIVERY OF PROPERTY. 32 1 
 
 with the order whereby the proceedings are commenced, 
 under §§ 2435, 2436, 2437, or 2441 of the Code of Civil 
 Procedure ; or he must appear therein ; otherwise the 
 judge has no jurisdiction to make the order. Cooman 
 V. Board of Education of Rocliester, 37 Hun, 96, 
 General Term. 
 
 The order should specifically designate the money or 
 other personal property which is to be paid or delivered 
 over by the judgment debtor or third party, because a 
 non-compliance therewith is a contempt. § 2457 of the 
 present Code. West Side Bank v. Pugsley, 47 N. Y., 
 368. 
 
 Notice. 
 
 The giving of notice, and how and to whom, is 
 wholly in the discretion of the judge. He may also 
 make the order without notice. § 2447 of Code. Ward 
 V. BeEbe, ij Abb., i. The notice is solely a precaution- 
 ary measure ; it establishes or determines no rights. 
 The claimant of the property or of an interest therein, 
 if he is not a party to the proceeding, is not bound to 
 appear on the motion to have it applied upon the judg- 
 ment ; and if the judge, whether upon or without 
 notice to the claimant, makes an unauthorized order, 
 the latter is not affected thereby. Gibson v. Haggerty, 
 37 N. v., 555; Griswold v. Tompkins, 7 Dafy, 214; 
 Schrauth v. The Dry Dock Savings Bank, 86 N. V., 390. 
 
 However, the notice is a wise precaution ; it will save 
 much hardship and litigation, and should be given in 
 every case where an outstanding claim appears. This 
 provision contemplates notice to any and every person 
 who has, or is said to have, a claim to or interest in the 
 property sought to be reached. See Waldheim v. 
 Bender, 36 How., 181, Supreme Ct., General Term. 
 
 A two days' notice of the motion, as for the appoint- 
 ment of a receiver, would be sufficient. But no notice 
 
322 ORDER REQUIRING DELIVERY OF PROPERTY. 
 
 is necessary where the party or his attorney is present 
 when the motion is made. The articles of personal 
 property are to be paid or delivered to the sheriff or 
 receiver named in the order at the place where they 
 are situated. That was the practice in a creditor's bill. 
 See Dickerson v. Van Tine, i Sandf. S. Ct., 724, 728. 
 The judgment debtor cannot object to an order requir- 
 ing a third person to pay money due him upon the 
 judgment. Chandler v. The City of Fond du Lac, 
 56 How., 449, Supreme Ct., Special Term, BARRETT, J. 
 
 Restitution of Money. 
 
 Where an order for the payment of money by third 
 parties was made upon the false procurement of the 
 plaintiff, and the money was thereupon paid over, it was 
 held that the court had the power, upon discovering the 
 imposition practised upon it by the plaintiff, to order a 
 restitution of the money. Fowler v. Lowenstein, 
 7 Lans., 167, General Term. See -also State of Michigan 
 V. Phcenix Bank, 33 N. Y., 25. 
 
 When a third party is required by order to pay over 
 money to be applied toward the satisfaction of a 
 judgment against the debtor, he is only protected 
 thereby to the extent that he has complied with the 
 order. If he pays over less than the amount of money 
 in his hands, he may be sued for the balance. See 
 Hauptman v. Catlin, i E. D. Smith, 737, Daly, J. 
 Nor does the order interfere with his disposition of any 
 money or property not embraced in it. Id. 
 
 In Minnesota an order of a judge requiring the judg- 
 ment debtor to apply debts or claims toward the satis- 
 faction of the judgment against him operates as an as- 
 signment of the same to the judgment creditor. Knight 
 V. Nash, 22 Minn., 452. 
 
 In North Carolina, when the court directs property 
 to be applied to the satisfaction of the judgment, the 
 
WHAT CANNOT BE DELIVERED. 323 
 
 plaintiff acquires a lien therein. Perry ^. The Merchants' 
 Bank of New Berne, 70 N. C, 399. But the N. Y. 
 Court of Common Pleas held that no action could be 
 based on an order requiring a third person to pay to 
 the judgment creditor a sum of money which he admits 
 he owes to the judgment debtor, and to which he has 
 no offset or defence upon his refusal to comply with 
 such order. Potter v. Connah, 13 Abb., 418. Under 
 the present Code of Civil Procedure of New York such 
 an order would be a nullity for every purpose. 
 
 SECTION V. 
 
 When and what Property cannot he Applied "by Order. 
 
 Where it appears from the examination or testimony 
 taken in a supplementary proceeding that the title of 
 the judgment debtor to the money or other personal 
 property sought to be reached, or his right of possession 
 or control thereof, is substantially disputed, this sum- 
 mary order, under § 2447 of the Code, should not be 
 made ; and if made, it will be reversed on appeal, or it 
 may be vacated. So also if it appears that some other 
 person claims an interest in or lien upon such property, 
 or claims joint ownership or possession or control thereof 
 with the judgment debtor, and adverse to him, this order 
 should not be made. In any case where a question of 
 fact appears in the proceedings as to the judgment debt- 
 or's complete title, or his immediate and exclusive right 
 of possession or control of the personal property sought 
 to be reached, and which will require a determination 
 of conflicting evidence, the order should not be made. 
 For the purpose of this order, actual possession of the 
 property at the time of making it is not conclusive evi- 
 dence of ownership or right of possession. The claimant 
 
324 WHAT CANNOT BE DELIVERED. 
 
 of the property or of an interest therein may not have 
 possession of it, or it may be in the actual possession 
 of the judgment debtor himself at the time ; yet the 
 question raised in respect to the property or the claim 
 made thereto may render the order, if granted, erro- 
 neous, and subject to reversal on appeal. In such 
 case the right of title or the right of possession can 
 only be determined in an ordinary action by a receiver, 
 or the sheriff, or the judgment creditor himself, accord- 
 ing to the practice authorized in the respective States. 
 Hageman v. Tong Lee, 12 Nev., 331 ; Barnard v. 
 Kobbe, 54 iV. Y., 516, affirming S. C, 3 Daly, 373; 
 West Side Bank ?^. Pugsley, 47 N. Y., 368; S. C, 12 
 AM. {N. S.), 28; Durand v. Hankerson, 39 JV. Y., 
 296; Rodman ■(7. Henry, 17 Id., 482; Alexander v. 
 Richardson, 7 Roht., 63 ; Teller v. Randall, 40 Barb., 
 242 ; S. C, 26 How., 155 ; Crounse v. Whipple, 34 Id., 
 333 ; Schrauth v. The Dry Dock Savings Bank, 8 Daly, 
 106 ; reversed S. C, 8 N. Y. W. Digest, 417 ; Sherwood 
 V. Buffalo and N. Y. City R. R. Co., 12 How., 136; Peo- 
 ple 57. King, g Id., 97; Sackett z'. Newton, 10 /i^., 560; 
 Gasper ■y. Bennett, 12 Id., 307; Sandford v. Moshier, 
 II Id., 137; Campbell i^ Foster, 16 /i/., 275; Clapp z/. 
 Lathrop, 23 Id., 423; Genet v. Foster, 18 Id., 50; 
 Joyce V. Holbrook, 2 Hilt., 95 ; S. C, 7 Abb., 338 ; Hall 
 V. McMahon, 10 Id., 103 ; Stewart v. Foster, i Hilt., 505 ; 
 Corning v. Tooker, 5 How., 16; The People v. Hul- 
 burt, 5 Id., 446; S. C, I CodeR. {N. S.), 75 ; 9 i\^. Y. Leg. 
 Obs.,24.S; Winters w. McCarthy, 2 Abb. N. C, 357; 
 Peters v. Kerr, 22 How., 3 ; Watrous v. Lathrop, 
 4. Sandf., 700; Locke v. Mabbett, 3 Abb. App. Dec, 
 68; S. C, 2 Keyes, 457; Manice v. Smith, 5 N. Y. 
 W. Digest, 255; Dewey t'. Finn, 18 Id., 558; McCrea 
 V. Cook, I City Court R., 385 ; Page v. Randall, 6 Cal.. 33 ; 
 Parker v. Page, 38 Cal., 525 ; Cahoon v. Leary, 5 Cal., 
 294; Ehlers v. Staeckler, 37 Alieh., 261. Nor can a 
 
WHAT CANNOT BE DELIVERED. 325 
 
 judge decree that an assignment is void when the 
 assignee was not even a party to the proceedings, and 
 appoint a receiver. Reed v. Parker, 42 Mich., 272. 
 Nor should a court order accounts to be sold on ex- 
 ecution, but should make an order enjoining the 
 defendant from transferring them. Brisco v. Askey, 
 12 Ind., 666. An order directing that accounts belonr- 
 ing to the judgment debtor be delivered to the sheriff 
 for sale under execution, instead of appointing a re- 
 ceiver to collect the same, was held erroneous. Chand- 
 ler V. Caldwell, 17 Ind., 256 ; Colton v. Bigelow, 
 41 N. J. Law, 266 ; Edgarton v. Hanna, 11 O. S., 325 ; 
 Corson v. Oatis, 64 N. C, 115. 
 
 In some of the above cases the property in question 
 was in the possession of the claimants ; in some it was 
 in that of persons other than claimants or the judgment 
 debtor. In Teller z;. Randall it was in the hands of the 
 judgment debtor, who converted it into money during 
 the continuance of the proceedings. In Sherwood v. 
 Buffalo and N. Y. City R. R. Co., 12 How., 136, the 
 attorney who recovered the judgment gave notice that 
 he had a lien for his fees on the judgment. In Rodman 
 V. Henry, 17 TV. Y., 482, the court says: To authorize 
 a judge to order property or money in the judgment 
 debtor's hands to be delivered up and applied on the 
 judgment, it is not enough that it is found in his hands ; 
 it must appear to be his. Here the claimant of the 
 property showed in the proceedings that she was in 
 possession of the property by virtue of a chattel 
 mortgage executed to her by the judgment debtor ; 
 but at the time the proceedings were commenced she 
 had delivered the same to him as her agent to sell 
 it for her. See also Robeson v. Ford, 3 Edw., 441. 
 
 In all such cases the right of title or the right of pos- 
 session can only be determined in an ordinary action by 
 a receiver or the sheriff or the judgment creditor him- 
 
326 WHAT CANNOT BE DELIVERED. 
 
 self according to the practice authorized in the respec- 
 tive States. Hageman z;. Lee, 2 iVi?z/., 331. The reason 
 of this rule, which requires a judgment creditor, by an 
 action through a receiver, or otherwise, to seek to re- 
 cover property claimed by another person, or who 
 claims a lien therein, or some other right, in good faith, 
 is stated by the court, in Rodman v. Henry, that the 
 section (297 of the former Code) precludes the idea that 
 a third person who claims the property as his own is to 
 be placed, in virtue of these proceedings, in a position 
 where his rights can only be asserted in a suit in which 
 he is plaintiff. The rights of third persons are not to 
 be brought into litigation, except in a regular way by 
 suit. 
 
 But possession of the personal property by the judg- 
 ment debtor must be sufificient presumptive evidence 
 of ownership in him to authorize the making of this or- 
 der, in the absence of any proof that he holds it as 
 agent or bailee for some one else, or that some other 
 person has an interest in it, or that some other person 
 substantially disputes the judgment debtor's title or 
 right of possession to the property. Where it appears 
 that the personal property is incapable of delivery, 
 the order should not be made. Where the property is in 
 the possession of another who claims title thereto, it was 
 held that the order could not be made, however fraud- 
 ulent might be the transfer. Town v. The Safeguard 
 Ins. Co. of N. Y. and Penn., 4 Bosw., 683 ; Watrous v. 
 Lathrop, 4 Sandf., 700 ; for the question of a fraudu- 
 lent transfer can only be tried in an action. 
 
 Where a third person claims an offset to money of 
 the judgment debtor in his hands, he will not be or- 
 dered to pay it over. Grassmuck v. Richards, 2 Abb. 
 N. C, 359, Supreme Ct. 
 
 So where it appears that the third person would incur 
 a risk by paying over money pursuant to an order, it 
 
WHAT CANNOT BE "DELIVERED. 327 
 
 should not be made. Hentz v. McGehee, i N. Y. M.L. 
 Bull., 3, Supreme Ct. Ch. ; for an erroneous order is no 
 protection. Barnard . Kobbe, 3 Daly, 373, General 
 Term. 
 
 No order should be made where the ability of the 
 party to comply therewith is doubtful. Alexander 
 V. Richardson, 7 Robt., 63; Winters v. McCarthy, 
 2 Abb. N. C, 357, Robinson, J. ; Tinker v. Crooks, 
 22 Hun, 579. 
 
 Where it is doubtful whether the money in question 
 was earned before or after proceedings were instituted 
 against the judgment debtor, he is entitled to the ben- 
 efit of the doubt, and no order should be made. Pot- 
 ter V. Low, 16 How., 549, Balcom, J. Also Gerregani 
 V. Wheelwright, 3 Abb. {N. S), 264. 
 
 Only personal property in the possession of the debtor 
 himself, or of others, and conceded to be his, can be 
 reached by an order. Stewart v. Foster, i Hilt., 505. 
 Where property is discovered in'the possession of the 
 judgment debtor, but is claimed by him to be exempt 
 from execution, it cannot be applied by order, under 
 this section, upon the judgment. His claim is analo- 
 gous to a claim of title, and is only triable in an ordi- 
 nary action. Dickinson v. Onderdonk, 18 Hun, 479 : 
 S. C, 8 N. Y. W. Digest, 526, General Term. 
 
 In all cases of doubt as to the title or right of posses- 
 sion in the judgment debtor to the personal property in 
 question, or as to an interest in or lien upon it, adverse- 
 ly claimed by a third person, or any other fact which 
 showed that the making of the order might unjustly 
 prejudice the rights of any person or party, the order 
 should not be made. The proper order to make in such 
 a case is to appoint a receiver. People v. King, 9 How., 
 97 ; Teller v. Randall, 40 Barb., 242 ; S. C, 26 How., 
 155 ; Manice v. Smith, 5 N. Y. W. Digest, 255, Supreme 
 Ct., General Term. 
 
328 WHAT CANNOT BE DELIVERED. 
 
 The above decisions were made before the present 
 Code on supplementary proceedings went into effect. 
 A third party was indebted to the judgment debtor 
 $24, to be paid in corn, at fifty cents a bushel ; it was 
 held that the court could not adjudge that the third 
 party deliver to the judgment creditor a specific quanti- 
 ty of corn, amounting in value to this sum, according to 
 the contract, for the plaintiff could not claim the benefit 
 of a good contract which his debtor may have made, 
 nor be liable for a bad contract which he may have 
 made with the third party. The corn should have 
 been sold and the proceeds applied to the judgment. 
 In re Davis, 81 N. C, 72. 
 
 In some of the States it is held that a question of 
 law as to whether property should be applied toward 
 the payment of the judgment by order ousts the judge 
 of jurisdiction, and prevents him making it. Quaere, is 
 this the law in New York ? 
 
 Where a third person is in possession of personal 
 property, and claims to own it, it cannot be taken from 
 him by a receiver of a judgment debtor, nor can he be 
 ordered to deliver it to the receiver. Dewey v. Finn, 
 18 iV^. Y. W. Digest, 558, Supreme Ct., General Term. 
 
 The judge has no power upon the appointment of a 
 receiver to adjudicate upon the receiver's right to money 
 or other property in dispute, whether it belongs to the 
 judgment debtor or another person. Manice v. Smith, 
 5 N. Y. IV. Digest, 255, Supreme Ct., General Term. 
 
 In Wisconsin an order of the court commissioner 
 upon the judgment debtor to deliver property to the 
 attorney of the judgment creditor is absolutely void, 
 and affords no protection to him against an injunction 
 of another commissioner in another proceeding. He 
 should have appointed a receiver and ordered the 
 property to be delivered to him. Smith v. Weeks, 60 
 Wis., 94. 
 
WHAT CANNOT BE DELIVERED. 329 
 
 Mortgaged Property. 
 
 ■ The personal property of the judgment debtor was 
 subject to a demand mortgage, and subsequently to 
 the entry of the order appointing a receiver in supple- 
 mentary proceedings, and before the receiver made a 
 demand of the debtor for the property, the sheriff 
 levied upon it under an execution issued in favor of a 
 third party, which levy was in force when the receiver 
 made his demand. The judge who appointed the 
 receiver had ordered the debtor to deliver this property 
 to the receiver, after such levy. It was held by Daly, 
 Ch. J., that this order of the judge was wrong, because 
 the mortgagee was not a party to the proceedings, and 
 she could not be divested of her title to the property 
 therein. And also held, that after the levy by the 
 sheriff in favor of another creditor, the property was not 
 in the debtor's custody, but in that of the sheriff, and 
 the debtor could not therefore be punished for not de- 
 livering up the property in pursuance of the order of 
 the judge. The receiver must bring an action. Gris- 
 wold V. Tompkins, 7 Daly, 214, General Term. Rob- 
 inson and Larremore, JJ., concurred in the result. But 
 when the mortgageor of personal property has the 
 right to the possession and use thereof for a definite 
 time, the property may be seized by the sheriff, and the 
 interest of the mortgageor sold under execution. Hull 
 V. Carnley, 17 N. Y., 202 ; Saiil v. Kruger, (^ How., 569, 
 N. Y. Superior Ct. ; Hall v. Samson, 19 How., 481, 
 Supreme Ct., General Term ; Manning v. Monaghan, 
 23 N. Y., 539. 
 
 In Baltes v. Ripp, 3 Kcyes, 210, seemingly to the 
 contrary, the mortgage was on demand. 
 
 It then seems clear that the judge would, in such 
 case, have the power to order the mortgageor to deliver 
 the property to a sheriff or receiver, to be sold as under 
 execution in mass or bulk. 
 
330 WHAT IS SUBSTANTIALLY DISPUTING. 
 
 So far as any of the foregoing decisions hold that a 
 judge may in any case make a compulsory order and 
 require a debtor of the judgment debtor to pay a debt 
 due the latter upon the judgment, they are overruled 
 in West Side Bank v. Pugsley, 47 N. ¥., 368, and super- 
 seded by § 2447 of the Code of Civil Procedure. 
 
 " Substantially Disputed." 
 
 The question is, what facts or evidence must appear 
 in the proceedings to justify a refusal of the order under 
 § 2447, o'^ the ground that some person other than the 
 judgment debtor has the title or possession of the per- 
 sonal property sought to be reached, or has some claim 
 to or interest in it adverse to the debtor ? The former 
 Code, § 299, provided that " if it appear that a person or 
 corporation, alleged to have property of the judgment 
 debtor, or indebted to him, claims an interest in the 
 property adverse to him, or denies the debt, such in- 
 terest or debt shall be recoverable only in an action 
 against such person or corporation by the receiver." 
 This is replaced by the provision contained in § 2447 of 
 the present Code, that the order may be made where 
 " one or more articles of personal property capable of 
 delivery, his (the judgment debtor's) right to the pos- 
 session whereof is not substantially disputed, are in the 
 possession or under the control of another person." 
 Under neither provision does the mere verbal assertion 
 of title, or right of possession, or of a claim to the prop- 
 erty, or an interest in it by another person adverse to 
 the judgment debtor, prevent the judge from making 
 the order. The assertion must be supported by some 
 facts, or some ground must be given for the claim 
 which will go to show that a substantial question or an 
 issue of fact may be made for adjudication by action ; 
 especially is this so where the claimant is a party to the 
 proceedings, and has therefore the opportunity to ex- 
 
WHAT IS SUBSTANTIALLY DISPUTING. 33 1 
 
 plain or show the source of his title or the grounds of his 
 claim. In all the above cited cases where it was held that 
 this sumnnary order could not be made, some evidence 
 of a more or less substantial character appeared to show 
 an adverse claim to the property. Under the former 
 Code various decisions adverted to this adverse claim, 
 and held that to authorize the making of this order, it 
 must be clear, beyond a reasonable doubt, that the prop- 
 erty is in the possession or under the control of the 
 judgment debtor. Alexander v. Richardson, 7 Robt., 63 ; 
 People V. Hulburt, 5 How., 446 ; S. C, 9 N. Y. Leg. Obs., 
 245 ; I Code R. {N. S.), 75 ; Corning v. Tooker, 5 How., 
 16. The plaintiff must clearly establish that the debtor 
 has the money or means to pay. Locke v. Mabbett, 3 
 Abb. App. Dec, 68 ; S. C, 2 Keyes, 457. The proof 
 should be clear. Peters v. Kerr, 22 How., 3. Where it 
 is alleged that another person, in whose possession the 
 property is said to be, and who claims it, it must be 
 shown beyond a reasonable doubt that his claim is un- 
 founded, and used merely as a cover. Hall v. Mc- 
 Mahon, 10 Abb., 103, N. Y. Com. Pleas, Special Term. 
 These various decisions and opinions show that more 
 than a naked verbal assertion of title or adverse claim 
 by a third person in or to personal property was held ne- 
 cessary to prevent the making of the summary order 
 under § 299. The judge was called upon to exercise 
 the judicial mind to some extent, and determine from 
 facts before him whether or not the adverse claim of 
 title or interest set up in favor of a third person was 
 made in good faith or was a mere cover or pretence. 
 Under § 2447, if the right of the judgment debtor's 
 possession to the personal property is disputed, the 
 judge is to determine from the evidence before him 
 whether or not the dispute is a substantial one, or 
 a mere cover or pretence to protect the judgment 
 debtor, or drive the creditor to a receivership and an ac- 
 
332 WHAT IS SUBSTANTIALLY DISPUTING. 
 
 tion, or for some other sinister purpose, or is made in 
 good faith. 
 
 In the following cases the court held that the judg- 
 ment debtor's right of possession was substantially dis- 
 puted : 
 
 Real estate of a judgment debtor had been sold for 
 taxes, and a surplus from the sale came into the hands 
 of the county treasurer. A judgment creditor institut- 
 ed supplementary proceedings to reach this surplus, 
 and made a motion that the treasurer pay it to the 
 sheriff to be applied upon his judgment. On the 
 motion it was shown that there were mortgages upon 
 this real estate unsatisfied and unpaid at the time of 
 the tax sale which were prior to the judgment, of which 
 the county treasurer had been notified. It was held 
 that, without passing on the merits of the question 
 raised, whether or not the tax sale displaced the lien of 
 the mortgages, the alleged right of the judgment creditor 
 to this surplus was substantially disputed within the 
 meaning of § 2447 of the present Code, and that the 
 issue made could not be disposed of upon a summary 
 application. Moller v. Wells, 29 Hun, 587 ; S. C, 
 If N. V. W. Digest, 86, General Term. 
 
 The recorder of Cohoes took $200 from a judgment 
 debtor, who had been arrested as a disorderly person, in 
 lieu of a bail bond. This money was left in his hands. 
 A judgment creditor took proceedings against the re- 
 corder to reach the money, contending that the re- 
 corder had no authority to take it from the debtor, 
 and that his taking it was void, and moved that it 
 be applied to the payment of his judgment, while 
 the recorder claimed that it belonged to the city of 
 Cohoes, and that he held it for that city. The court 
 decided that the defendant's right to the possession of 
 this money was substantially disputed, and an order 
 requiring the recorder to pay any part of it to the 
 
EFFECT OF JUDGE'S ORDER. 333 
 
 plaintiff upon his judgment was erroneous — that if the 
 defendant had demanded this money back from the 
 recorder, and he had refused, the defendant's remedy 
 would have been by a common law action against 
 him, in which the recorder would have been entitled 
 to a jury trial. Hayes v. McClelland, 20 N. Y. W. 
 Digest, 393, Supreme Ct., General Term. 
 
 In the following case the Supreme Court of Cahfornia 
 held that the judgment debtor's right to the posses- 
 sion of property was not substantially disputed. A 
 garnishee or third party had funds or property in his 
 hands in which he claimed no interest, but alleged 
 that he held the same for the benefit of others, whose 
 names or residence he was unable to give ; and where 
 it appeared that this garnishee was acting in bad faith, 
 and for the purpose of delay, in order to drive the judg- 
 ment debtor to an action, the court or referee may or- 
 der him to apply the funds or property toward the satis- 
 faction of the judgment ; for the denial of the debtor 
 or the adverse claim contemplated by the statute is 
 a claim or denial in good faith, and not a mere fraudu- 
 lent sham, resorted to for the purpose of delay. 
 Park V. Page, 38 Cal., 522. 
 
 Effect of the Order. 
 
 The order requiring money to be paid or other per- 
 sonal property to be delivered to a sheriff or receiver 
 has the effect of a levy under an execution, and pro- 
 tects the sheriff or receiver who receives the money or 
 other property and applies it toward the payment of 
 the judgment in the proceedings, unless a want of ju- 
 risdiction in the judge making it appears on the face of 
 the order, or he is notified that a third person claims 
 ownership to or an interest in the money or property. 
 
 An order made without jurisdiction of the person 
 against whom it is made or of the subject-matter to 
 
334 EFFECT OF JUDGE'S ORDER. 
 
 which the order relates, is void, and does not affect him, 
 and need not be obeyed. Reed v. Champagne, 5 jV. Y. 
 W. Digest, 227, Supreme Ct., General Term. 
 
 An order requiring the judgment debtor to pay the 
 judgment against him, or to pay or deliver money or 
 other personal property to his creditor to be applied on 
 the judgment, or requiring his debtor or bailee to pay a 
 debt due the judgment debtor to the creditor or to a 
 sheriff or receiver, or to deliver other personal property 
 to the creditor to be applied upon the judgment, would 
 be void ; and a non-compliance therewith would not 
 subject him to punishment as for contempt. See Birn- 
 baum V. Thompson, 5 N. Y. M. L. Bull., 30 ; and ante, 
 §4, of this chapter. But a final order in contempt pro- 
 ceeding, adjudging the judgment debtor guilty, and im- 
 posing a fine upon him equal to the amount of the 
 judgment, and requiring him to pay the same, may be 
 valid as a fine. A judge can make no order under 
 § 2447 o^ the present Code against any person or corpo- 
 ration against whom the supplementary proceedings 
 have not been instituted, and who has not been served 
 with the order commencing such proceedings. Cooman 
 V. The Board of Education of Rochester, 37 Hun, g6. 
 General Term. Such order would be void as to him, 
 and need not be obeyed. 
 
 An order made under § 2447 cannot affect or prejudice 
 the rights of a person not a party to the proceedings 
 in which it is made ; and he is not bound to take any 
 notice of it. In Corning v. Glenville Woollen Co., 14 
 Abb., 339, the court held that a stranger to the action, 
 who had a lien on a fund sought to be reached, was en- 
 titled to notice, or to be made a party to the proceed- 
 ings. 
 
 But such person is not bound to obey or heed such 
 notice at the peril of losing his lien or any other right. 
 He can no more be made a party to proceedings, and 
 
EFFECT OF JUDGE'S ORDER. 335 
 
 be bound by an order under § 2447 where he does not 
 appear, than he can be bound by a judgment or decree 
 in an action upon a notice simply served upon him, and 
 he does not appear. He can only be bound by a judg- 
 ment or decree in an action where he is made a party 
 thereto, and served by summons, or regularly appears 
 therein. So he can only be bound by an order made 
 under § 2447, where he is made a party to the proceed- 
 ing by an order of a judge, as prescribed in those pro- 
 ceedings, or by appearing therein on a motion for 
 such order. 
 
 But if the judge has jurisdiction of the person — that 
 is, if the proceedings in which the order is to be made 
 have been instituted against a party, and he has been 
 served with the order within the territorial jurisdiction 
 of the judge, or has appeared therein, and the judge 
 has jurisdiction of the subject-matter, the property dis- 
 covered and sought to be reached therein, and grants an 
 order under § 2447, the party served must obey it if pos- 
 sible. It may be erroneous and highly improper, but it 
 is not void, and must be obeyed. The only escape 
 from it is to procure its reversal by appeal or its vaca- 
 tion by the same judge or the court. See § 2433, Code 
 of Civil Procedure. 
 
 This proposition of law applies equally to the judg- 
 ment debtor and to his bailee or debtor, against whom 
 the proceedings are instituted in which the order is 
 made. It also applies to the judgment creditor. He, too, 
 is bound by the order, the same as parties to an action 
 are bound by a judgment or decree entered therein. 
 
 Again, the order is no protection to the part)^ against 
 whom it is made as to the rights of any person who is 
 not a party to the proceedings in which it is made, un- 
 less he has been guilty of some laches. If, however, 
 he is the transferee of the sum of money or other ar- 
 ticles of personal property which the order requires the 
 
336 EFFECT OF JUDGE'S ORDER. 
 
 third party to pay or deliver to the sheriff or receiver, 
 and the latter has no actual or constructive notice of 
 such transfer, the order protects him, unless the trans- 
 feree notified him of such transfer before the money is 
 paid or the property delivered, and also proves good 
 faith and valuable consideration in the transfer. See 
 § 2446 of the present Code. Gibson v. Haggerty, 
 37 N. y., 555. Also Lynch v. Johnson, 48 N. Y., 27; 
 Bishop V. Garcia, 14 Abb. {N. S.), 69, N. Y. Superior Ct., 
 Special Term. See ante, this chapter, § 3. 
 
 But if the person who has a claim, title, or an interest 
 in or to the money or personal property which the third 
 party is required to pay or deliver over is also a party 
 to the same proceedings, the order is a protection 
 against him, and he is bound thereby until it is reversed 
 on appeal or vacated in the manner above stated. See 
 Schrauth v. The Dry Dock Savings Bank, 8 Daly, 106, 
 Special Term. This decision was reversed, but not on 
 this point. S. C., 8 N. Y. W. Digest, 417, General 
 Term ; and also 86 TV. Y., 390. The reason of this rule is 
 that the person being a party to the proceedings might 
 have asserted his rights on the motion for the order, 
 and may appeal therefrom or have it vacated. No bona 
 fide owner of property can be deprived thereof by an 
 order of a judge or court in any case if he has not been 
 guilty of laches in regard to his ownership. Sec Gibson 
 V. Haggerty, 37 N. Y., 555. Such, as above stated, is 
 the effect of an order for the payment of money and 
 delivery of other personal property, made under § 2447, 
 not only as against the formal parties to the proceed- 
 ings, but as against any person who comes in, obtains 
 the opportunity to be heard, and is heard on the motion 
 which results in granting the order. Jay v. De Groot, 
 2 Hun, 205, General Term ; Gould v. Root, 4 Hill, 554. 
 See Porter v. Purdy, 29 N. Y., 106. 
 
 Where a third party was proceeded against to reach a 
 
EFFECT OF JUDGE'S ORDER. 337 
 
 specific sum of money in his hands, knew that the plaintiff 
 claimed this money by assignment from the judgment 
 debtor for advances made to him, and the testimony 
 taken in the proceedings disclosed that fact to the 
 judge, who notwithstanding made the order requiring 
 him to pay the money to the judgment creditor, which 
 he did, it was held that this order was erroneous, and 
 did not protect the defendant, the third party in com- 
 plying therewith as against the plaintiff ; that he should 
 have seen that the order was reviewed or reversed, and 
 that he obeyed it at his peril. Roy ■y. Baucus, 43 Barb., 
 310. This decision was made under the former Code, 
 and was based on the fact that the testimony taken in 
 the proceedings disclosed a claim to the money adverse 
 to that of the judgment debtor, and not upon the fact 
 that the order required the money to be paid to the 
 judgment creditor. Where the third party had notice 
 that the money in his hands, sought to be reached by a 
 judgment creditor, belonged to or was claimed by an- 
 other person, and he failed to bring the fact of such 
 notice to the knowledge of the judge, but swore that 
 he owed the money to the judgment debtor, and there- 
 upon an order was made requiring him to pay it to the 
 judgment creditor, held he was not protected by the 
 order, but must pay it over again to the claimant, upon 
 his establishing his title thereto. Wright v. Cabot, 47 
 N. Y. Superior Ct., 229, General Term, affirmed S. C, 
 89 N. v., 570. Also Schrauth v. The Dry Dock Sav- 
 ings Bank, 8 N. Y. IV. Digest, 417, General Term, af- 
 firmed 86 N. Y., 390, supra. Here the third party, 
 the Savings Bank, knew that the plaintiff claimed the 
 money in question, having "deposited it." 
 
 The judgment creditor had assigned his judgment to 
 his attorney ; the judgment debtor thereafter obtained 
 a judgment against the creditor, and assigned it to her 
 attorney, who instituted proceedings thereon against 
 
338 EFFECT OF JUDGE'S ORDER. 
 
 her as a third party. She swore that she owed this 
 judgment to the former ; an order was thereupon ob- 
 tained requiring her to pay a part of it in satisfaction 
 of the judgment which she had assigned to him. It 
 was held that this order was erroneous, and must be re- 
 versed ; that at the time the same was made the first 
 judgment and the proceeds thereof belonged to the at- 
 torney by assignment, and the fact that she swore on 
 her examination that she owed the amount of the judg- 
 ment to the assignor, and not to the attorney, did not 
 affect him, as he was not a party to the proceedings. 
 Lee V. Delehanty, 25 Hun, 197, General Term. Here 
 the third party knew before the making of the order 
 that the judgment against her had been assigned to the 
 attorney. 
 
 After the service of a summons and complaint in an 
 action upon defendant to reach a specific sum of money 
 in his hands belonging to the plaintiff, he paid it to a 
 creditor of the latter in supplementary proceedings, 
 without notice to the plaintiff ; held that this payment 
 was no defence to the action. Waldheim v. Bender, 
 
 36 How., 181, Supreme Ct., General Term. But this 
 decision is practically overruled in Gibson v. Haggerty, 
 
 37 7V. Y., 555. 
 
 If the judgment creditor knows or is notified that a 
 third person claims to own or have an interest in the 
 money or personal property adverse to the judgment 
 debtor, and he does not disclose that fact to the judge 
 in proceedings taken against a third party, but procures 
 an order under § 2447, requiring the same to be paid or 
 delivered to a sheriff or receiver, the order may not 
 protect him against the claimant if he establishes his 
 claim to or interest in the money or personal prop- 
 erty. See State of Michigan v. Phoenix Bank, 33 
 N. v., 25 ; Fowler v. Lowenstein, 7 Lans., 167. 
 
 Proceedings under ch. 361 of the laws of 1867 were 
 
EFFECT OF JUDGE'S ORDER. 339 
 
 instituted against a delinquent tax-payer for the collec- 
 tion of a personal tax. The judge made an order 
 therein requiring the defendant to pay the tax and the 
 costs within ten days, or an execution should issue there- 
 for. He paid the same in obedience to the order, and 
 then brought an action against the assessors to recover 
 back the money paid or the damages which he had sus- 
 tained, claiming that the assessor had no right to assess 
 him. Held that the order was unauthorized ; the judge 
 had no power to make it ; that the payment of the 
 money under it was voluntary, and could not be recov- 
 ered back; and the fact that the action was for damages, 
 sustained by reason of the unlawful assessment, did not 
 help the plaintiff. Drake v. Shurtliff, 24 Hun, 422, 
 General Term. Also Bailey v. Buell, 50 N. Y., 662, re- 
 versing S. C, 59 Barb., 158 ; Tinker v. Crooks, 22 Hun, 
 
 S79- 
 
 If an order to pay money or deliver other personal 
 property is made in proceedings against a third party, 
 and it comes to his knowledge thereafter, and before 
 compliance with it, that some one else claims title to or 
 an interest therein, the court will, on due application, 
 relieve him from the order. See Beebe v. Kenyon, 
 3 Hun, 73 ; S. C, 5 Supreme Ct. R. {T. & C), 2."/!, 
 General Term. 
 
 But a judgment creditor, by duly commencing pro- 
 ceedings against his debtor, acquires a priority to all 
 the reachable personal property of the latter, and by 
 commencing proceedings in like manner against a third 
 person he obtains a priority to the personal property of 
 the ^'udgment debtor then in the hands of or under the 
 control of such third person, and upon the debts due by 
 him to such debtor; and on conducting the proceeding 
 to a final order for the payment or application of such 
 money or property upon the judgment, the order reaches 
 back to the commencement of the proceedings, and cuts 
 
340 EFFECT OF NOTICE. 
 
 off all judgment creditors in junior proceedings and all 
 transferees of such property or debts due from the judg- 
 ment debtor who became such transferee, or a debtor of 
 the judgment debtor who paid such debt after the in- 
 stitution of the proceedings in question, and who does 
 not prove that he is such in good faith and for a valua- 
 ble consideration, and that the person paying the money 
 or delivering over the property had actual or construc- 
 tive notice of their rights at the time of complying 
 with the order. 
 
 Where no such notice or fact appears in the course 
 of the proceedings, the order is rightly made. But 
 where the same does so appear, the order should not be 
 made, however fraudulent may appear the transfer, but 
 the creditor must proceed through a receiver to recover 
 such debt or property by action. If the order is made, 
 notwithstanding such notice, it is valid until set aside, 
 against the party so ordered, subject only to being over- 
 ruled in an action brought by the transferee to enforce 
 his claim. If on the trial of such action the transferee 
 proves notice to the third person of his rights at the 
 time he complied with the order, whether such notice 
 actually appeared in the proceedings or not, in addition 
 to proving good faith and a valuable consideration, the 
 order is avoided, otherwise not. So also should the 
 transferee prove that the judgment creditor had notice 
 of his rights at the time he obtained the order for the 
 application of the money or personal property upon his 
 judgment ; he has a remedy against such creditor, if 
 otherwise entitled to recover. Sft' State of Michigan 
 V. Phoenix Bank, 33 JV. V., 25 ; Fowler v. Lowenstein, 
 7 Lans., 167 ; and perhaps he has a remedy, even if he 
 proves such notice to the judgment creditor before the 
 money or the proceeds of the personal property reach 
 him. He no doubt can reach the money or property 
 while yet in the hands of the sheriff or receiver. No 
 
DUTY AND POWER OF SHERIFF. 34I 
 
 notice need be given to the judgment debtor of the 
 proceedings against the third person, or of an applica- 
 tion for the order of payment or dehvery of property. 
 As to these propositions, see §§ 2446, 2447, and 2469 of 
 the Code of Civil Procedure ; Gibson v. Haggerty, 37 
 ^V. F., 555 ; Lynch v. Johnson, 48 N. ¥., 27, affirming 
 S. C, 46 Barb., 56; Bishop v. Garcia, 14 Abb. {N. S.), 
 69, N. Y. Superior Court, Special Term, and other cases 
 cited in this section. But when the judge does not 
 make this order, or it is set aside because an adverse 
 claim is made to the money or other personal property, 
 the only way for the judgment creditor to preserve the 
 lien of his proceedings is to have a receiver appointed 
 \vho will be able to work out this lien by an action. If 
 he discontinues his proceedings, and himself brings a 
 creditor's action, he will lose his lien and the vantage- 
 ground which his proceedings gave him. 
 
 SECTION VI. 
 
 Duff and Power of the Sheriff, etc. 
 
 §2448. "If the sheriff, to whom money is paid or 
 other property is delivered, pursuant to an order made 
 n.s prescribed in either of the last two sections, does 
 not then hold an execution upon the judgment against 
 the property of the judgment debtor, he has the same 
 rights and powers, and is subject to the same duties 
 and liabilities, with respect to the money or property, as 
 if the money had been collected, or the property had 
 been levied upon by him, by virtue of such an execu- 
 tion ; except as otherwise prescribed in the next sec- 
 tion." 
 
 This is a new provision ; and so are the following sec- 
 tions (2449 and 2450). 
 
342 DUTY AND POWER OF SHERIFF. 
 
 How Money or Property Applied to Pay the Judgment. 
 
 § 2449. " After a receiver has been appointed, or a re- 
 ceivership has been extended to the special proceeding, 
 the judge must, by order, direct the sheriff to pay the 
 money, or the proceeds of the property, deducting his 
 fees, to the receiver ; or, if the case so requires, to de- 
 hver to the receiver the property in his hands. But if 
 it appears, to the satisfaction of the judge, that an or- 
 der appointing a receiver, or extending a receivership, 
 is not necessary, he may, by an order reciting that fact, 
 direct the sheriff to apply the money so paid, or the 
 proceeds of the property so deHvered, upon an execu- 
 tion in favor of the judgment creditor, issued either be- 
 fore or after the payment or delivery to the sheriff." 
 
 §2450. "Where money is paid or property is de- 
 Hvered, as prescribed in the last four sections, and after- 
 ward the special proceeding is discontinued or dismissed, 
 or the judgment is satisfied without resorting to that 
 money or property, or a balance of the money, or of 
 the proceeds of the property, or a part of the property, 
 remains in the sheriff's or the receiver's hands, after 
 satisfying the judgment, and the costs and expenses of 
 the special proceeding, the judge must make an order, 
 directing the sheriff or receiver to pay the money or 
 deliver the property so remaining in his hands, to the 
 judgment debtor, or to such other person as appears to 
 be entitled thereto, upon payment of his fees and all 
 other sums legally chargeable against the same." 
 
THE RECEIVER. 343 
 
 CHAPTER V. 
 
 THE RECEIVER. 
 
 Section i. When and how a receiver may be appointed. 
 " 2. Notice to other creditors. 
 
 " 3. Only one receiver. Former receivership extended. 
 " 4. When property is vested in the receiver. 
 " 5. How receiver's title to personal property extended by 
 
 relation. 
 " 6. Receivers subject to the control of the court. 
 " 7. Nature of the receiver's office. His powers, rights, and 
 
 duties. 
 " 8 Actions by the receiver. 
 
 SECTION I. 
 When and how a Receiver may be Appointed. 
 
 % 2464. " At any time after making an order requir- 
 ing 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 or- 
 der or warrant is returnable may make an order ap- 
 pointing a receiver of the property of the judgment 
 debtor. 
 
 " 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 a no- 
 tice to be given in any manner which the judge thinks 
 proper. But where the order to attend and be ex- 
 amined, or the warrant, has been served upon the judg- 
 
344 WHEN RECEIVER APPOINTED. 
 
 ment debtor, a receiver may be appointed upon the 
 return day thereof, or at the close of the examination, 
 without further notice to him." 
 
 §§ 2464-2467, being the whole of article 2d, of title 
 12, of chapter 17, of the Code of Civil Procedure, in- 
 clude the various provisions of § 298 of the former 
 Code, and to that extent are substantially the same 
 therewith. 
 
 In some of the other States which authorize this 
 kind of remedy, the statutes provide for the appoint- 
 ment of the sheriff, or some other person, receiver of 
 the property of the judgment debtor, while in others 
 the judgment creditor may be directed by the court or 
 judge to bring an action to determine the title in a 
 disputed claim to property alleged to belong to the 
 debtor ; and in the mean time, until such action can be 
 instituted and terminated, the party having possession 
 or control of the property may be enjoined. Wher- 
 ever the appointment of a receiver is provided for in 
 those proceedings in other States, he is an officer of the 
 court, with the like powers and duties, as in the State 
 of New York, and appointed under like circumstances. 
 
 In 'what Cases Appointed. 
 
 In every case in New York where available property 
 of a judgment debtor is sought to be reached and ap- 
 plied toward the satisfaction of a judgment by means 
 of this remedy, and it cannot be done by a summary 
 order made under § 2447 of the Code of Civil Proced- 
 ure, a receiver must be appointed or the i-eceivership of 
 one already existing must be extended to the proceed- 
 ing in question, in order to accomplish that object. 
 Where there are debts and claims due, or rights of ac- 
 tion, or an equitable interest belonging to the judg- 
 ment debtor, a receiver must be appointed, in order to 
 reduce the same to money, in order that the same may 
 
WHEN RECEIVER APPOINTED. 345 
 
 be applied toward the satisfaction of the judgment ; or 
 where the judgment debtor's title or right of possession 
 to the property discovered is substantially disputed, or 
 some other adverse claim is made thereto by a third 
 person, or the debtor claims that it is exempt by law 
 from execution, or he denies his indebtedness to the 
 judgment debtor, the proper order to make is the ap- 
 pointment of a receiver. See Bunacleugh v. Poolman, 
 I Daly, 236; Dickinson v. Onderdonk, 18 Hun,47g; 
 S. C, 8 N. Y. W. Digest, 526, General Term ; Rodman 
 V. Henry, 17 N. V., 482; The People v. Hulburt, 
 5 How., 446 ; S. C, I Code R., N. S., 75 ; 9 i\^. Y. Leg. 
 Obs., 245. 
 
 Where the only property discovered in the proceed- 
 ings was a balance of an account in bank standing in 
 the name of the judgment debtor, and there was some 
 prima facie evidence that it belonged to him, but his 
 wife, who was examined as a witness, testified that the 
 money was hers, held that the judgment creditor was 
 entitled to a receiver, in order that the conflicting 
 claims to this money might be tried in an action to be 
 brought by him for that purpose. Ormes v. Baker, 17 
 N. Y. W. Digest, 104, Supreme Ct., General Term. 
 
 If available property is discovered in the proceedings 
 which cannot be reached by a summary order under 
 § 2447, or a transaction is disclosed which wears a badge 
 of fraud against the judgment debtor, a receiver will 
 be appointed ; and it is no answer to a motion for a 
 receiver in such case that the property sought to be 
 reached can be levied upon and the title can then 
 be tried in an action in the nature of replevin ; for the 
 creditor is entitled to a receiver, and is not obliged to 
 have the property levied upon in order to test the right 
 to it in that manner. Toddz'. Crooke, 4 Sandf., S. Ct., 
 694 ; 5. C, I Code R., N. S., 324. Also Heroy v. Gib- 
 son, 10 Bosw., 591. 
 
34^ WHEN RECEIVER APPOINTED. 
 
 Nor is it any answer to a motion for a receiver that 
 the judgment debtor had offered to turn out to the 
 sheriff sufficient property to satisfy the judgment ; for 
 he has his remedy against the sheriff if the latter made 
 a false return. Balde v. Smith, 5 Ck. Sent., No. 2, p. 
 II. Nor is it any objection that the property, as 
 things in action or an interest in an existing partner- 
 ship disclosed on the examination, is alleged by the 
 debtor to be of no value. Webb v. Overmann, 6 Abb., 
 92. It was also held that it is no answer to an applica- 
 tion for the appointment of a receiver that the judg- 
 ment debtor has no other property than an equity of 
 redemption in some real estate, heavily mortgaged, 
 which he has always been willing that the sheriff should 
 sell on execution, so that the right of redeeming it un- 
 der the Revised Statutes might be preserved to him. 
 Bailey v. Lane, 15 Abb., 373, note, Supreme Ct., Gener- 
 al Term. This case has been overruled by subsequent 
 decisions, which hold that a receiver should not be ap- 
 pointed of real estate thus situated, in order to sell the 
 same absolutely, and thus cut off the judgment debt- 
 or's statutory right to redeem the same. See post. 
 
 He may also be appointed in proceedings against a 
 foreign corporation upon a judgment recovered against 
 it in personam, although the better practice would be 
 to have the appointment made in a creditor's action. 
 The way by motion on affidavit is at most an irregular- 
 ity only. De Bemer v. Drew, 57 Barb., 438; S. C, 
 39 Hozv., 466, General Term. Here the motion was 
 made in the original action for a receiver of the com- 
 pany's assets in the State of New York, and the notice 
 was served upon the attorney. 
 
 Under a recent amendment to § 2463 of the Code of 
 Civil Procedure by the Legislature of 1886, proceed- 
 ings upon a judgment or determination in a special 
 proceeding in favor of the people and against a do- 
 
AS TO RETURN OF EXECUTION. 347 
 
 mestic corporation may be instituted and a receiver ap- 
 pointed of the assets of such corporation. 
 
 As to Return of Execution, etc. 
 
 Under the former Code there was a diversity of 
 opinion in the courts as to whether a receiver could be 
 appointed in proceedings brought before the return of 
 execution issued against property, or in proceedings 
 against a third party, or not. The N. Y. Court of Com- 
 mon Pleas, at General Term, held that no receiver 
 could be appointed in proceedings before return of exe- 
 cution. Darrow v. Lee, 16 Abb., 215 ; and the N. Y. 
 Superior Court, General Term, held that no receiver 
 could be appointed in proceedings against a third party 
 before return of execution, because until such re- 
 turn the creditor had not exhausted his remedy at law, 
 which he was first bound to do before filing a creditor's 
 bill ; nor could he be appointed in proceedings merely 
 against a third person, thus overruling Hanson v. Trip- 
 ler, 3 Sandf., 733, an earlier case in the same court ; 
 Holbrook v. Orgler, 40 N. Y. Superior Ct. (8 /. &■ Sj>.), 
 33 ; S. C, 49 How., 289 ; I N. Y. W. Digest, 3. 
 
 A similar decision was made in Andrews v. Glenville 
 Woollen Co., 11 Abb., N. S. , 78, Supreme Ct., Special 
 Term. On the contrary, in the Union Bank of Troy v. 
 Sargeant, 53 Barb., 422 ; S. C, 35 How., 87, the Su- 
 preme Court held that a receiver could be appointed 
 in proceedings instituted before return of execution. 
 Section 2464 settles this question. It authorizes the 
 appointment of a receiver in proceedings taken before 
 return of execution against property and in proceed- 
 ings taken solely against a third party, under §2441 of 
 the Code, and thus supersedes all decisions to the con- 
 trary ; and the objection that the judgment creditor had 
 not yet exhausted his remedy at law, or that a receiver 
 could not be appointed of particular debts or of a spe- 
 
348 WHEN RECEIVER NOT APPOINTED. 
 
 cific part or article of the debtor's property is of no 
 force. 
 
 A receiver may be appointed upon the examina- 
 tion of a third party and before the return of exe- 
 cution. De Vivier v. Smith, 6 N. Y. Civ. Pro. R., 
 394 ; S. C, I How., N. S., 48, N. Y. City Court, Mc- 
 Adam, J. 
 
 Not Appointed. 
 
 But a receiver is not appointed where the only prop- 
 erty discovered is a freehold estate, and it does not ap- 
 pear that an execution was issued and returned since 
 the judgment debtor acquired the property ; for the in- 
 tent of the Code is to give this summary remedy only 
 after the legal remedy has been exhausted, and the ap- 
 pointment of a receiver would deprive the debtor of 
 his statutory right to redeem the property within one 
 year after its sale under execution. Bunn v. Daly, 24 
 Hun, 526 ; S. C, 12 TV. Y. W. Digest, 395, General 
 Term ; Ashley v. Turner, 22 Hun, 226 ; Tinkey v. 
 Langdon, 60 How., 180; S. C, 13 N. Y. W. Digest, 
 384, Supreme Ct. Also Petition of Inglehart, I Shel- 
 don (Buffalo Superior Ct.), 514. To the contrary is 
 Bailey ■z/. Lane, 15 Abb., 373, note, supra, which must 
 be deemed overruled by the more recent and equitable 
 decisions above cited. 
 
 In a creditor's suit the receiver was not allowed to 
 sell real estate when it was bound by the lien of the 
 judgment, and no impediment existed to its being taken 
 and sold by virtue of execution. Petition of Englehart, 
 supra, and 78 of the general rules of Practice forbid 
 a receiver appointed in a creditor's action from sell- 
 ing any real estate of the debtor without the special 
 order of the court until after judgment in the court. 
 
 Section 2468 of the Code of Civil Procedure vests 
 the real estate of the judgment debtor in the receiver, 
 
WHEN RECEIVER NOT APPOINTED. 349 
 
 and gives him control thereof for all purposes except 
 that of sale. In Bunn v. Daly, 24 Hun., 526, at Gener- 
 al Term, the court held that the statutes in relation to 
 these proceedings and the statute in relation to the 
 sale of real estate and personal property are in pari 
 materia, and must be construed together. Also Tin- 
 key V. Langdon, i^ N. Y. W. Digest, 384, General 
 Term. 
 
 These statutes when construed together therefore 
 have the following effect : as to the judgment debtor's 
 real estate the same vests in the receiver, and at once 
 gives him the right to the possession and control there- 
 of ; the tenants must attorn to him, and he is entitled 
 to an order, of course, that they so attorn and pay their 
 rents to him ; he is entitled to the rents and profits 
 which had accrued at the time of his appointment and 
 to all the rents and profits thereof while the prop- 
 erty remains vested in him ; but the sale thereof, which 
 is to transfer the title from the judgment debtor to an- 
 another person, is to be effected according to the process 
 and practice of a sale by virtue of execution, so as to se- 
 cure to the judgment debtor the right of redemption ; 
 and as to the personal, a safe practice is to incorporate 
 into the order appointing the receiver that part of Rule 78 
 which provides that the receiver shall not sell any real 
 estate of the property subject to levy and sale on execu- 
 tion. While the receiver has the exclusive control and is 
 entitled to the use and profits of the same, he is bound to 
 sell it according to the statutes and the practice which 
 would govern the sheriff in making the sale of the same 
 property. It would, however, be a safe course to incor- 
 porate into the order appointing the receiver that part of 
 Rule 78 which provides that the receiver shall not sell 
 any real estate of the judgment debtor without the 
 special order of the court. 
 
 As to the personal property of the judgment debtor 
 
350 WHEN RECEIVER NOT APPOINTED. 
 
 which is subject to levy and sale by virtue of execution 
 while the receiver obtains the exclusive control and is 
 entitled to the use and profits of the same, he must sell 
 it according to the statutes and the practice which 
 would govern the sheriff in making sale of the same 
 property. 
 
 In Wisconsin it has been held that when the pro- 
 ceedings disclosed property belonging to the judgment 
 debtor liable to execution sufficient to satisfy the judg- 
 ment, the court has no authority to appoint a receiver. 
 Second Ward Bank v. Upmann, 12 Wis., 499. No 
 such rule of law prevails in the State of New York. Here 
 the return of execution unsatisfied furnishes the proof 
 that the remedy at law has been exhausted, and § 2447 
 of the Code carefully provides that the personal prop- 
 erty is to be delivered to a sheriff or receiver for sale 
 impliedly, according to the rules and practice which 
 obtained in a sheriff's sale. 
 
 In New Jersey it is held that the appointment of a 
 receiver must be largely left to the discretion of the 
 judge ; where the evidence shows that the debtor has 
 no property, or the property discovered is exempt, no 
 receiver should be appointed ; but in a case of a dis- 
 puted or contested -right, or where there is probable 
 ground for the belief that property exists, which the 
 receiver may obtain, a receiver should be appointed. 
 Colton V. Bigelow, 12 Vr. (41 N.J. L. Ji.), 266. 
 
 Again, if the evidence is such as to give the justice 
 power to appoint a receiver, it is enough ; the court on 
 certiorari will not reverse his decision, unless the order 
 is illegal. They will not weigh the evidence. Journeay 
 V. Brown, 2 Diitcher (26 N. J. L. 7?.), 11 1. 
 
 In Minnesota, in any case where property not exempt 
 from execution is discovered, but cannot be applied by 
 order toward satisfaction of the judgment, the judge 
 may appoint a receiver, with the usual powers of such 
 
WHEN RECEIVER NOT APPOINTED. 351 
 
 officer. He may also appoint him immediately on 
 granting the order for the examination, the appointment 
 being in the sound discretion of the court having ju- 
 risdiction of the proceedings. Flint v. Webb, 25 Minn., 
 263. Where the third person or corporation alleged to 
 have property belonging or indebted to the judgment 
 debtor claims an adverse interest therein, or denies the 
 debt, the judge may appoint a receiver. Knight v. 
 Nash, 22 Minn., 452. 
 
 The appointment of a receiver in a creditor's bill was 
 almost a matter of course, especially if the debtor was 
 under an injunction. See ante, p. 2. 
 
 In the early period of the practice under the Code of 
 Procedure in New York, this course was pursued in 
 supplementary proceedings. See Myres' Case, 2 Abb., 
 476. But later on the courts departed from this prac- 
 tice, and declined to appoint a receiver when the ex- 
 amination or evidence in the proceedings disclosed no 
 property or rights of property to receive or litigate 
 about. The practice in these proceedings is the reverse of 
 that in the creditor's suit on this point. In the latter 
 the receiver was appointed in the first instance, and the 
 examination was taken afterward ; while here the ex- 
 amination precedes the application for a receiver, and 
 traverses the whole field of inquiry more thoroughly 
 than could be done in a creditor's suit, for the purpose 
 of informing the judge whether there is any occasion 
 for the appointment of this officer or not. If no prop- 
 erty or rights of property applicable toward the satis- 
 faction of the judgment is discovered, no receiver 
 should be appointed. See above. This has been the 
 practice in the Superior Court of the city of New York 
 for many years, where the proceedings are dismissed 
 and injunction vacated if no property is discovered 
 or no ground shown for a receiver. See Hoffman's Prov. 
 Rem., p. 524-5. 
 
352 BY WHOM RECEIVER APPOINTED. 
 
 By Whom and When Appointed. 
 
 In New York the judge to whom the order or 
 warrant by which the proceedings are instituted is 
 returnable or who may continue them has the power 
 to appoint a receiver therein. No other judge can 
 make the appointment. See Smith v. Johnson, 
 7 How., 39. 
 
 In North Carolina the resident judge, or the one as- 
 signed to the district, or the one holding the courts there 
 by exchange at the pleasure of the party may appoint 
 the receiver. Corbin v. Berry, 83 N. C, 27. 
 
 The judge and not the clerk of the court must appoint 
 the receiver. Parks v. Sprinkle, 64 N. C, 637. 
 
 In New York the court has no power to appoint a 
 receiver in the first instance, nor in Wisconsin. Only 
 a judge or court commissioner can appoint a receiver. 
 Clark V. Bergenthal, 52 Wis., 103. A county judge 
 possessing civil jurisdiction, although he has no general 
 equity power, may appoint a receiver in a proper case. 
 Second Ward Bank v. Upmann, 12 Wts., 4gg. 
 
 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 these 
 proceedings, an order appointing a receiver may be 
 granted. See §§ 2464 of N. Y. Code of Civil Procedure. 
 Groot V. Greeley, 5 N. Y. M. L. Bull., 69, Superior Ct., 
 Ingraham, J. The People v. Mead, 29 Hoiv., 360, 
 Supreme Ct., decided under the former Code. In this 
 latter case, which the codifiers seem to have followed in 
 drawing this section, the court say that it is advisable to 
 make the appointment of a receiver as soon as any 
 property is disclosed of such a nature that it might be 
 otherwise dissipated during the delay which often at- 
 tends the progress of these proceedings, and that the 
 inquiry may be continued and the debtor and witnesses 
 examined after the appointment, the same as in a cred- 
 
NOTICE BEFORE APPOINTING RECEIVER. 3S3 
 
 itor's bill. See also Flint v. Webb, 2$ Minn., 263, as 
 to the practice in that State. 
 
 The rule appears to be now that a receiver may be 
 appointed at any stage of the proceedings when prop- 
 erty is discovered which will justify the appointment 
 and to allow the proceedings to go on in every other 
 respect to their termination. 
 
 Where the judge may have jurisdiction of the subject- 
 matter, he can appoint a receiver upon the judgment 
 debtor's voluntary appearance and submission to an 
 examination, without an affidavit or order, or upon his 
 consent. Bingham v. Disbrow, 37 Barb., 24; S. C, 14 
 Abb., 251. 
 
 The application for the appointment of a receiver is 
 summary, and may follow directly upon the close of the 
 examination, if the judgment debtor and other neces- 
 sary parties are present or duly represented, and with- 
 out further notice. See Todd v. Crooke, 4 Sand/., 694 ; 
 S. C, I Code R., N. S., 324. 
 
 Notice. 
 
 Section 2464 contemplates personal notice to the 
 judgment debtor of an application for a receiver in all 
 practicable cases ; except where the order to attend and 
 be examined or the warrant has been served upon him, 
 a receiver may be appointed upon the return day 
 thereof or at the close of the examination without fur- 
 ther notice to him. Also Ashley v. Turner, 22 Hun, 
 226 ; S. C, 10 N. Y. W. Digest, 444, General Term. 
 In the State of New Jersey, where the statute pro- 
 vision as to the appointment of a receiver in these pro- 
 ceedings is similar to that of the State of New York, 
 it is held that if upon the return of an order s'erved 
 upon the judgment debtor he fails to attend, the plain- 
 tiff may examine witnesses in his absence, and upon 
 their testimony move and have a receiver appointed 
 
354 NOTICE BEFORE APPOINTING RECEIVER. 
 
 without further notice to the judgment debtor, and 
 without waiving the right to institute proceedings as for 
 contempt against him for failing to attend upon his 
 examination. Colton v. Bigelow, 12 Vr. (41 N. J. L. R!), 
 266. The appointment of a receiver in such a case is, 
 no doubt, also authorized in proceedings in New York. 
 It conforms to the practice of appointing receivers in 
 actions. See § 714 of the Code of Civil Procedure. 
 
 In all other cases where the judgment debtor is not 
 present or represented by attorney when the motion 
 for a receiver is made, the notice prescribed in § 2464 
 of the Code must be given him. If the examination 
 has been taken before a referee, the judgment debtor 
 must have notice of the time and place of the applica- 
 tion for a receiver. Strohn v. Epstein, 6 N. Y. Civ. 
 Pro.R.,2>6\ S. C, 14. Abb., N. C, ^22, N.Y. CityCt., 
 Special Term, McAdam, J. ; Todd v. Crooke, 4 Sandf., 
 694; S. C, I Code R., N. S., 324; Heroy v. Gibson, 10 
 Bosw., 591. 
 
 This rule of notice to the judgment debtor holds 
 good in proceedings against a third party. Morgan v. 
 Von Kohnstamm, 9 Daly, 355; S. C, 60 How., 161; 
 II N.Y. W. Digest, 181, General Term. It holds, 
 although the judgment debtor is a non-resident of the 
 State. Whitney v. Welch, 2 Abb., N. C, 442 ; S. C, 
 5 N. Y. W. Digest, 156. 
 
 Under the former Code the judgment debtor was 
 entitled to notice. Clark v. Savage, 5 N. Y. W. Digest, 
 193, Supreme Ct., General Term ; Andrews v. The 
 Glenville Woollen Co., 11 Abb., N. S., 78 ; Vandeburgh 
 V. Gaylord, 7 N. Y. IV. Digest, 1 36 ; and no receiver 
 could be appointed without such notice. Kemp v. 
 Harding, 4 Hoio., 178 ; Dorr v. Noxon (?), 5 Id., 29. 
 
 Under the present Code, where the judgment debtor 
 cannot with reasonable diligence be found within the 
 State, so as to serve personal notice upon him, the judge 
 
NOTICE MUST BE IN WRITING. 355 
 
 has the power, on being satisfied of this fact, to dis- 
 pense with notice, or may direct a notice to be given 
 him in any manner which he thinks proper. But the 
 order appointing the receiver in such case must recite the 
 fact why no personal notice was served upon the judg- 
 ment debtor. § 2464 of Code. 
 
 A receiver was appointed without notice to the judg- 
 ment debtor. The latter thereupon gave notice of a 
 motion to vacate the order. The judgment creditor 
 within two days of the return of such motion served a 
 notice upon the debtor of an apphcation for the ap- 
 pointment of another receiver, should his notice be 
 granted and the order appointing the first one be 
 vacated. 
 
 The ex parte order was vacated, and the creditor's 
 alternative motion for another receiver was granted at 
 the same time. It was held on appeal, that such coun- 
 ter-notice of motion was proper, and the appointment 
 of the second receiver upon vacating the appointment 
 of the first was authorized ; the fact that this notice 
 was in the alternative did not render it insufhcient ; the 
 objection that the judgment debtor's order to show 
 cause contained a stay upon the plaintiff not being 
 taken below could not avail the debtor on the appeal, 
 and that he had waived the objection that another 
 receiver in another county had been appointed, he hav- 
 ing known that fact, but failed to disclose it at the 
 time the second receiver was appointed. Clark v. Clark, 
 1 1 Abb., N. C, 333, City Ct. of Brooklyn, General Term. 
 Also Strohn v. Epstein, 6 N. Y. Civ. Pro. R., 36 ; S. C, 
 14 Abb., N. C, 322, N. Y. City Ct., McAdam, J., on 
 similar facts. 
 
 This Notice must be in Writing. 
 
 Where the examination was had before a referee, and 
 at the close thereof a verbal notice was given to the 
 
356 LENGTH OF NOTICE AND ORDER. 
 
 judgment debtor of an application to the judge for a 
 receiver, it was held that such notice was insuiificient ; 
 that the debtor was entitled to written notice. Ashley 
 V. Turner, 22 Him, 226. 
 
 Service and Length of the Notice. 
 
 It may be served upon the attorney of the judgment 
 debtor in the proceedings. It must be a notice of two 
 days at least. § 2464 of Code. The motion is made 
 upon the proceedings and the evidence taken therein, 
 or upon the proceedings and the referee's report. No 
 copy of the examination or evidence need be served on 
 the judgment debtor or on any other person entitled to 
 notice. See Todd v. Crooke, supra. 
 
 But where a referee is appointed to find and report 
 the facts found by him from the evidence, should not 
 a copy of his findings be served when his report is not 
 filed ? For in such case the application for a receiver is 
 based on the report. In People v. Mead, 29 How., 360, 
 the court thought that a receiver might be appointed on 
 the return of the supplementary order without an ex- 
 amination. But there must be some evidence of the 
 existence of property or some ground shown which will 
 ju.'-.tify the appointment. See above authorities. The 
 judgment debtor may consent to the appointment of a 
 receiver without an examination or any evidence if the 
 consent is not collusive. 
 
 The Order. 
 
 The order is a chamber order, and must be filed and 
 recorded in the office of the clerk of the county where- 
 in the judgment-roll in the action is filed, etc. Sec 
 § 2467 of the Code of Civil Procedure. Also Ball v. 
 Goodenough, 37 How., 479, N. Y. Superior Ct. 
 
 The order may simply appoint the receiver, leaving 
 him thereafter to such proceedings as maybe necessary 
 to acquire possession or control of the judgment 
 
IRREGULARITY IN APPOINTMENT OF RECEIVER. 357 
 
 debtor's property, or it may contain in addition thereto 
 the order provided for in § 2447 of the Code in 
 a proper case. This latter order should require the 
 party proceeded against to deliver up the personal 
 property to the receiver or sheriff upon due demand. 
 See ante, ch. 10, § 4. But where the title or the right 
 of possession to the property is in dispute, the order 
 should simply appoint the receiver. It should not 
 direct him to take possession of such property or to 
 collect money in which it is claimed that the judgment 
 debtor has no interest ; for the judge cannot adjudicate 
 the receiver's right to the money. Manice v. Smith, 
 5 N. Y. W. Digest, 255, Supreme Ct., General Term. 
 Also Tinkey v. Langdon, 13 Id., 384, same court. But 
 the judge may restrain the third person from disposing 
 of the property or paying away the money until the 
 receiver can bring an action to determine the title or 
 right of possession thereto. Manice v. Smith, supra; 
 Teller v. Randall, 40 Barb., 242 (?) ; Dewey v. Finn, 18 
 N. V. W. Digest, 558 (?). 
 
 Irregularity in Appointment. 
 
 A third person when sued by a receiver cannot ob- 
 ject to the regularity of the appointment when the 
 judgment debtor has' waived the irregularity. Tyler 
 V. Wilhs, 33 Barb., 327; S. C, Tyler v. Whitney, 
 12 Abb., 465 ; Underwood v. Sutcliffe, 10 Hun, 453, 
 reversed in yy N. Y., 58, but not on this point. Powell 
 V. Waldron, 89 N. Y., 328; Bangs v. Duckinfield, 18 
 N. Y, 592; Morgan v. Potter, \y Hun, 403 ; Hobart v. 
 Frost, 5 Duer, 672 ; Wright v. Nostrand, 94 N. Y., 31, 
 reversing S. C, 47 N. Y. Superior Ct., 441 ; Oakley v. 
 Becker, 2 Cowen, 454; Bacon v. Cropsey, 7 N. Y., 195 ; 
 Dobson V. Pearce, 12 Id., 164 ; Richards v. Allen, 3 E. D. 
 Smith, 399 ; Peters v. Carr, 2 Dem., 22 (?). Also Green v. 
 Bookhart, 19 5. C, 466. 
 
358 FRAUD IN APPOINTMENT OF RECEIVER. 
 
 But it seems a third person might successfully object 
 for want of jurisdiction in the appointment. See Tyler 
 V. Willis, supra; Richards v. Allen, 3 E. D. Smith, 399. 
 Also Bangs v. Duckinfield, 18 N. Y., 592. 
 
 In Jacobson v. The Doty Plaster Manuf. Co. judg- 
 ment had been recovered in Kings County, and supple- 
 mentary proceedings were instituted thereon in the 
 county of New York, and an order appointing a re- 
 ceiver was there made and filed in the clerk's office of 
 Kings County. The point was made that the proceed- 
 ings were void, that they could not be instituted in a 
 different judicial district from that in which the judg- 
 ment had been recovered. The court overruled the 
 point, and held proceedings need not be taken in the 
 same district, and that the order appointing the receiver 
 was valid. 32 Hun, 436, General Term. 
 
 Waiver of Irregularity. 
 
 By taking an appeal from the order appointing a re- 
 ceiver, the objection to the regularity thereof is waived. 
 Tinkey v. Langdon, 60 How., 180, Supreme Ct., Special 
 Term. Where the debtor's attorney appeared on the 
 motion for a receiver, but made no objection, held all 
 objections to the regularity of the proceedings are 
 waived. Underwood v. Sutcliffe, 10 Hun, 453. 
 
 It is held in South Carolina that an irregularity in 
 the appointment of a receiver is waived by not season- 
 ably objecting thereto. Union Bank v. Northrop, 19 
 5. C, 473. 
 
 Fraud in the Appointment. 
 
 The appointment of a receiver procured by fraud or 
 collusion will be revoked ; and the court will not stop 
 to inquire whether it is a suitable appointment or not. 
 The fact that it was thus procured presumes it to be an 
 improper one. Lottimer v. Lord, 4 E. D. Smith, 183. 
 An order appointing a receiver and granting an injunc- 
 
WHO MAY BE APPOINTED. 359 
 
 tion upon a judgment against a debtor discharged in 
 bankruptcy will be set aside, unless the judgment is 
 not included in the discharge. Gibson v. Gorman, 15 
 Fr. (44iV./. Z. i?.), 325. 
 
 Who may be Appointed Receiver. 
 
 The judgment creditor may be appointed, but a non- 
 resident cannot be. Chamberlain v. Greenleaf, a^ Abb., 
 N. C, 92. No person holding the office of clerk, 
 deputy clerk, special deputy clerk, or assistant in the 
 clerk's office of a court of record, or of the surrogate's 
 court within either of the counties of New York or 
 Kings, can be appointed receiver except by the written 
 consent of all the parties to the proceedings who have 
 appeared. See § 90 of the Code of Civil Procedure. 
 Justice Lawrence of the Supreme Court, in the 1st 
 Judicial Department, announced that he would not 
 appoint a person receiver who is in any way connected 
 with a party or his counsel, or who occupies offices in 
 the same building with the moving party. Fraser v. 
 Hunt, Daily Register, December 19, 1882, p. 1152, 
 Supreme Court Chambers. The receiver's appoint- 
 ment is not complete so as to empower him to act 
 before executing and filing a bond. 
 
 Receiver's Bond. 
 
 § 715 of the Code of Civil Procedure prescribes the 
 kind and character of the bond which the receiver must 
 execute and file. It must be executed to the people of 
 New York, with at least two sureties in a penalty fixed 
 by the judge. The judge adjudicates upon the suffi- 
 ciency of the bond and the sureties, although the re- 
 ceiver is subject to the control of the court after the 
 appointment is completed. 
 
 § 810 of Code requires the bond to be acknowledged 
 or proved and certified in like manner as a deed to be 
 recorded. And see further, §§ 811, 812, and 813 of 
 
360 receiver's bond. 
 
 Code, as to the manner of executing the bond and the 
 sureties thereto. § 815 of Code provides that the bond 
 shall continue in force after the substitution of a new 
 party or any other change of parties, etc. 
 
 When the bond is not under seal, it is irregular ; but 
 only the judgment debtor can take advantage of the 
 irregularity. 
 
 Morgan v. Potter, 17 Hun, 403, General Term, 4th 
 Judicial Department; also Underwood v. SutclifTe, 10 
 Hun, 453; Tyler v. Willis, 33 Barb., 327; S. C, 12 
 Abb., 465. But where the order appointing the re- 
 ceiver required a bond with sureties, and he executed a 
 bond with only one surety, without seals, held, upon 
 objection made by a third party, that no title to the 
 property of the judgment debtor passed to the receiver, 
 and he had no authority to act until he complied with 
 the order appointing him, and he was properly non- 
 suited in an action which he brought as receiver. 
 Johnson v. Martin, i N. Y. Supreme Court {T. & C) 
 R., 504, General Term, 4th Judicial Department. The 
 court in Morgan v. Potter, supra, say that the decision 
 in this case is not necessarily in conflict with that in 
 Johnson v. Martin, supra, because the objection to the 
 defect in the bond in the latter may have been taken by 
 the judgment debtor, and the receiver may have ob- 
 tained leave to sue, which he did not do in Morgan v. 
 Potter. These decisions were made under the old 
 Code. This seems a very delusive foundation on which 
 to base a distinction. If there is a difference, it arises 
 out of the orders and the bonds given thereunder. In 
 one case the bond was without seals. That was its 
 only defect. In the other the bond did not substan- 
 tially comply with the order under which it was 
 executed. 
 
 In Underwood v. Sutcliffe, 10 Hun, 453 ; S. C, 4 
 N. Y, IV. Digest, 387, the date of the bond was 
 
receiver's bond to be filed. 361 
 
 prior to the appointment of the receiver. Held, this 
 did not affect the appointment, and the bondsmen 
 could not question it, because the bond was afterward 
 acted upon by them. This decision was made at 
 General Term, 4th Judicial Department. 
 
 The question of a defective bond cannot be raised ex- 
 cept in the court which appointed the receiver. Peters 
 V. Carr, 2 Dem., 22. 
 
 To be Filed. 
 
 § 816 of Code requires the bond to be filed with the 
 clerk of the court. 
 
 The bond is executed by two sufficient sureties to 
 the people of the State of New York in such amount 
 as the judge may deem the circumstances of the case 
 may require to protect the property which will come 
 into the hands of the receiver, and each justifies in 
 double the amount of the bond. 
 
 Under the former Code it was held that security 
 might be dispensed with in a proper case therefor, but 
 the bond could not. Banks v. Potter, 21 How., 469, 
 N. Y. Com. Pleas. But the present Code appears to 
 require security in every case. It provides that the 
 receiver must execute a bond to the people, with at 
 least two sureties. § 715 of the Code. It makes no 
 exception. 
 
 This section also provides that in a special proceed- 
 ing a judge who appointed the receiver or his successor 
 may at any time remove him, or direct him to give a 
 new bond with new sureties, but that this provision 
 does not apply where special provision is made by law 
 for the removal of the receiver. § 2471 of the Code of 
 Civil Procedure makes the receiver after his appoint- 
 ment and qualification subject to the direction and 
 control of the court out of which the execution was 
 issued ; and the Supreme Court, in construing those 
 
362 PAPERS WHERE FILED. 
 
 provisions, held that a motion for the removal of a 
 receiver is properly made to the court, and not to a 
 judge. Lippincott v. Westray, 6 N. Y. Civ. Pro. R., 74, 
 Supreme Court, General Term. Here the receiver had 
 qualified and had entered upon his duty. 
 
 Papers where Filed. 
 
 Under the former Code the practice was to file the 
 receiver's bond and all other papers in a supplementary 
 proceeding with the clerk of the court out of which the 
 execution was issued, except the order appointing a 
 receiver ; that was required to be filed in the ofSce of 
 the clerk of the county where the judgment-roll in the 
 action or the transcript from the justice's judgment 
 upon which the proceedings were taken were filed. 
 The present Code classifies these proceedings among 
 special proceedings. It has, therefore, been held that 
 the papers therein must now be filed, like those of other 
 special proceedings, in the ofifiice of the clerk of the 
 county where the proceedings are taken, according to 
 § 825 of the Code of Civil Procedure. Fiske v. Twigg, 
 5 N. Y. Civ. Pro. R., 41, N. Y. Superior Ct., Special 
 Term, affirmed at General Term, 50 N. Y. Superior 
 Ct., 69 ; S. C, Foster v. Twigg, li, N. Y. W. Digest, 563. 
 
 SECTION II. 
 
 Notice to Other Creditors. 
 
 § 2465. " The judge must ascertain, if practicable, 
 by the oath of the jugdment debtor or otherwise, 
 whether an action, specified in article first of title fourth 
 of chapter fifteenth of this Act, or a special proceeding 
 instituted as prescribed in article first of this title, is 
 
NOTICE TO OTHER CREDITORS. 363 
 
 pending against the judgment debtor. If either is pend- 
 ing, and a receiver has not been appointed therein, 
 notice of the application for the appointment of a re- 
 ceiver, and of ail the subsequent proceedings respecting 
 the receivership, must be given, in such a manner as the 
 judge directs, to the judgment creditor prosecuting it." 
 
 This section includes the provision in § 298 of the 
 former Code, in respect to notice to the plaintiff in 
 other like proceeding ; but it goes further, and requires 
 notice to be given to the plaintiff of a pending judg- 
 ment creditor's action. 
 
 If a receiver has already been appointed, and the ap- 
 plication is merely that his receivership be extended to 
 the proceeding before the judge, as provided for in 
 § 2466, the party who had the receiver appointed or had 
 his receivership already extended needs no notice of 
 the application, because he has no adverse interest. 
 
 Failing to give notice to other creditors does not 
 avoid the order appointing the receiver. Lattimore v. 
 Lord, 4 E. D. Smith, 183. Also Corbin v. Berry, 83 
 N. C, 27, when some of the judgment creditors hav- 
 ing proceedings appeared, and all had opportunity to 
 interpose upon the final distribution of the fund. 
 
 Length of. 
 
 This notice need not be eight days long. Leggettz'. 
 Sloan, 24 How., 479. 
 
 A stranger who has no action or proceedings pend- 
 ing against the judgment debtor is not entitled to notice, 
 on the ground that he has or claims to have a lien on 
 the funds sought to be reached. See Corning v. Glen- 
 ville Woollen Company, 14 Abb., 339. 
 
364 FORMER RECEIVERSHIP EXTENDED. 
 
 SECTION III. 
 Only one Receiver — Former Receivership Extended. 
 
 § 2466. " Only one receiver of the property of a 
 judgment debtor shall be appointed. Where a receiver 
 thereof has already been appointed, the judge, instead 
 of making the order prescribed in the last section but 
 one, must make an order extending the receivership to 
 the special proceeding before him. Such an order gives 
 to the judgment creditor the same rights as if a receiver 
 was then appointed upon his application, including the 
 right to apply to the court to control, direct, or remove 
 the receiver, or to subordinate the proceedings in or 
 by which the receiver was appointed to those taken 
 under the judgment." 
 
 Only one receiver shall be appointed. Myrick v. 
 Selden, 36 Barb., 15. This provision does not apply 
 where one of the applications for a receiver is made in 
 an action, In such case the court may or may not 
 appoint the same person receiver who is such in the 
 supplementary proceedings against the same debtor. 
 State Bank v. Gill, 23 Hun, 410. 
 
 If two or more receivers happen to be appointed, and 
 there is a conflict between them, the date of appoint- 
 ment or of the order of reference to select will deter- 
 mine the priority between them. Deming v. The N. Y. 
 Marble Co., 12 Abb., 66; Lattimore v. Lord, 4 E. D. 
 Smith, 183. 
 
 In Wisconsin, when several proceedings are pending 
 at the same time, the proper practice is held to be to 
 appoint the receiver in the one first instituted, espe- 
 cially when it is diligently prosecuted, and to suspend the 
 appointment in the other until then. Kellogg v. Col- 
 ler, 47 Wis., 649. 
 
ORDER TO BE FILED AND RECORDED. 365 
 
 The receiver first appointed is entitled to the pos- 
 session of all the property not previously bound. 
 Parks V. Sprinkle, 64 A''. C, 637. 
 
 Order to be Filed and Recorded. 
 
 § 2467. ■' An order appointing a receiver or extend- 
 ing a receivership 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." 
 
 See Germer v. Hepburn, i N. V. M. L. Bull., 39, N. Y. 
 Com. Pleas Ch. ; Ball v. Goodenough, 37 How., 479. 
 
 The provision in this section as to filing the order 
 of receivership, and where it is to be filed, is substan- 
 tially the same as that in § 298 of the former Code. But 
 it does not expressly provide for the recording of the 
 order, as the former did. Yet subsequent section (2468) 
 implies that the order is recorded in the office where 
 filed. Nor does it provide for the delivery of A certi- 
 fied copy of the order to the receiver, as the former did. 
 
 SECTION IV. 
 When Property is Vested in Receiver. 
 
 % 2468. " 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 follow- 
 ing exceptions : 
 
 " I. Real property is vested in the receiver onl.y from 
 
366 WHEN PROPERTY IS VESTED IN RECEIVER. 
 
 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 property 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." 
 
 This section contains the substance of the provisions 
 of § 298 of the former Code, in respect to vesting the 
 title of the debtor's property in the receiver, but differs 
 from it as to the condition of vesting the property in 
 the receiver. Under the former Code, as amended in 
 1862 and 1863, when the order of appointment was 
 filed and recorded in the office, prescribed in § 298, and 
 a certified copy thereof was also filed and recorded in 
 the office of the clerk of the county in which any real 
 estate of such judgment debtor sought to be affected by 
 such order is situated, and also in the office of the clerk 
 of the county in which such judgment debtor resides, 
 and a certified copy of said order is delivered to the re- 
 ceiver named therein, he shall be vested with the prop- 
 erty and effect of the judgment debtor from the time 
 of the filing of the order, as aforesaid. The filing of 
 security was not made a requisite to the vesting. But 
 under the present Code of Civil Procedure, when the 
 judgment debtor at the time when the order is filed 
 resides in another county, the vesting is only complete 
 as to personal property from the time when a copy of 
 the order appointing the receiver, certified by the clerk 
 in whose office it is recorded, is filed with the clerk of 
 the county where he resides ; and, besides, he must ex- 
 ecute and file the required bond in the proper office 
 before he is fully vested with the judgment debtor's 
 property. Thus the Code of Civil Procedure has re- 
 
WHEN PROPERTY IS VESTED IN RECEIVER. 367 
 
 turned to practice in this matter as it obtained under 
 creditor's bill and under the former Code before the 
 amendment of 1862. Banks v. Potter, 21 How., ^6g; 
 Porter v. WiUiams, 9 N. Y., 142 ; Voorhees v. Seymour, 
 26 Barb., 569. 
 
 Under the former Code, it was held that when the 
 judgment debtor resides in the same county where the 
 judgment-roll is filed, a certified copy of the order need 
 not be filed and recorded there, and when the real 
 estate sought to be affected by the order is situated in 
 the same county in which the judgment-roll is filed, a 
 certified copy of the order need not be also filed and re- 
 corded in the register's office of the same county. 
 Fredericks v. Niver, 28 Hun, 417; S. C, 16 N. Y. W. 
 Digest, 13, General Term; and Wright v. Nostrand, 
 47 N. Y. Superior Ct., 441, General Term, reversed 
 94 N. Y., 31, but not on this point. 
 
 Before the amendments of 1862 and 1863 to § 298 of 
 the former Code, it was held in Porter v. Williams, 
 9 N. Y., 142, affirming 5 How., 441, that the order ap- 
 pointing the receiver vested in him the judgment 
 debtor's real property, without the necessity of filing 
 and recording the order in any particular clerk's office 
 or in the county where the real estate was situated, 
 and without a formal conveyance from the judgment 
 debtor equally with the personal property. This de- 
 cision was based upon the definition of the term 
 " property" used in the Code at that time, which 
 included both real and personal property. The de- 
 cision, to say the least, was exceedingly strained. It 
 was dissented from in the Chautauqua County Bank 
 V. Risley, 19 N. Y., 369, and in Moak v. Coats, 
 33 Barb., 498, where it was held that the receiver 
 became vested with the real estate of the judgment 
 debtor only by virtue of an actual conveyance to him 
 by the debtor, which the court had power to compel 
 
368 WHEN PROPERTY IS VESTED IN RECEIVER. 
 
 him to execute, and it led to the amendments of 1862 
 and 1863 above mentioned. 
 
 Since these amendments, all the decisions on this 
 point, except one, held that the receiver is vested with 
 the real estate of the judgment debtor upon compliance 
 with the statutes, and without any conveyance or 
 assignment to him by the debtor. Manning v. Evans, 
 19 Hun, 500 ; S. C, 9 N. Y. W. Digest, 311 ; Wing v. 
 Disse, 15 Hun, 190; Cooney v. Cooney, 65 Barb., 524; 
 Hayes v. Buckley, 53 How., 173. To the contrary is 
 Scott V. Elmore, 10 Hun, 68, General Term, 2d 
 Judicial Department, which was decided upon the 
 authority of Moak v. Coats, supra. But as this last 
 case had been decided before the above-named amend- 
 ments went into effect, it had ceased to be an authority 
 at that time. This is a singular instance of judicial 
 oversight. These provisions of the amendments of 
 1862 and 1863 are incorporated in § 2468 of the present 
 Code. 
 
 But before the property of the judgment debtor is 
 vested in the receiver, he must duly qualify. He must 
 execute the bond required by the order of appointment, 
 mentioned in § i of this chapter, and have it approved 
 and filed in the proper clerk's office, as prescribed by 
 law. See this section (2468). 
 
 He must do this before he can act and take posses- 
 sion or control of the debtor's property. Voorhees v. 
 Seymour, 26 Barb., 569 ; Conger v. Sands, 19 How., 8 ; 
 Banks v. Potter, 21 Id., 469. 
 
 He is restrained from taking possession or control of 
 the judgment debtor's property, or exercising any of the 
 functions or powers of his office as receiver, until the 
 required bond is given and filed. If he fails in this, the 
 order is not thereby invalidated, but the effect is the 
 same as if he had instantly complied and had after- 
 ward been removed and another one appointed in his 
 
WHEN PROPERTY IS VESTED IN RECEIVER. 369 
 
 place. The title of his successor relates back to the 
 first appointment. Sec Steele v. Sturges, 5 Add., 442. 
 This rule applies, no matter when the supersedure takes 
 place. If a receiver does not give the requisite bond 
 within a reasonable time after notice of his appoint- 
 ment, or within such further time as the court may- 
 give him, he will be superseded and another appointed 
 in his stead, who, on giving and filing the required bond, 
 becomes the substitute of the one who has been super- 
 seded, and his title is that o,f the receiver whom he 
 succeeds. 
 
 After the receiver has given and filed the required 
 bond, and the conditions contained in § 2468 of the 
 Code have been complied with as to filing and record- 
 ing the order of appointment and a certified copy, where 
 that is necessary, the property of the judgment debtor 
 is at once vested in him, and neither the court nor a 
 judge can divest it out of him by a mere order in a pro- 
 ceeding to which he is not a party. Rogers v. Corning, 
 44 Barb., 229. 
 
 In the State of New Jersey it is held that the re- 
 ceiver is vested with the title to the personal property, 
 choses in action, and equitable interests of the judgment 
 debtor by virtue of his appointment, without any formal 
 assignment by the debtor to him. Harrison v. Max- 
 well, IS Vr. (44 N.J. L. R), 316. 
 
 As above stated, whatever property of the judgment 
 debtor which may be legally vested in the receiver by 
 virtue of the particular appointment in question is 
 vested in him immediately upon his qualifying and 
 complying with the terms contained in § 2468 ; but he 
 is not always entitled to the immediate possession or 
 control of such property ; for another person, may have 
 the temporary right of possession or control, and in 
 such case the receiver cannot have the property while 
 such possession or control continues. 
 
370 ENTITLED TO POSSESSION OF PROPERTY. 
 
 Under this section (2468), it is intended to state not 
 only what property vests in the receiver, but of what 
 property he is entitled to the immediate possession or 
 control, and when he has not the right of such imme- 
 diate possession, etc. 
 
 (i) Property to which he is Entitled to the Immediate Possession. 
 
 He has the right to the immediate possession or con- 
 trol of all the personal property of the judgment debtor 
 which belonged to him at the date of vesting and 
 of instituting the particular proceedings, and which 
 was then in his possession or under his control, or 
 was then in the possession of any other person, and 
 the right of the judgment debtor to the possession 
 thereof is not substantially disputed. See § 2447 of the 
 present Code. See Van Rensselaer v. Emery, 9 How., 
 136. 
 
 But he has no right to the possession of property ex- 
 empt by law. Such property does not vest in him. 
 
 He is also entitled to the use, rents, and profits of 
 the judgment debtor's real estate sold on execution 
 during the year's time allowed him for redemption. 
 Such rents and profits could be reached by a creditor's 
 bill, although they had accrued after the filing of the 
 bill. They were regarded as merely the natural prod- 
 ucts of an interest which the judgment debtor had 
 when the bill was filed. See Farnham v. Campbell, 10 
 Paige, 598. 
 
 For the same reason he is entitled to the rents and 
 profits which have accrued at the date of the vesting 
 of the debtor's real estate, and which will accrue up to 
 the time of the sale thereof by virtue of execution. 
 
 An estate as tenant by the courtesy of a judgment 
 debtor vests in the receiver, and entitles him to receive 
 all the rents due at the time of his appointment, and to 
 all the rents accruing thereafter until the receivership 
 
ENTITLED TO POSSESSION OF PROPERTY. 37 1 
 
 is superseded. Beamish v. Hoyt, 2 Robt., 307, General 
 Term. 
 
 He is also entitled to the judgment debtor's right to 
 redeem his debtor's real estate sold on execution. See 
 §§ 1449-1454 of the Code of Civil Procedure. Van 
 Rensselaer v. Sheriff of Onondaga, i Cow., 443 (?). 
 
 So where the real estate of the wife is sold in parti- 
 tion, and the proceeds brought into court, the receiver 
 is entitled to the inchoate interest therein as tenant by 
 the courtesy of the husband, a judgment debtor. Such 
 interest could be reached by a creditor's bill. Ellsworth 
 V. Cook, 8 Paige, 643. He is also entitled to the right 
 of dower to which a widow, a judgment debtor, is im- 
 mediately entitled, although it is not yet assigned. 
 Tompkins v. Fonda, 4 Paige, 448 ; Stewart v. McMartin, 
 5 Barb., 438 ; Moak v. Coats, 33 Id., 498 ; Payne v. 
 Becker, 87 N. Y., 153, reversing S. C, 22 Hun, 28. 
 
 Where the executors in a will were directed to retain 
 from the estate and invest a given sum, and pay the 
 annual interest thereof to the judgment debtor for life, 
 but were also directed to pay the fund and all arrears 
 of interest to him whenever he should demand the 
 same in writing, it was held that this direction did not 
 create a trust within the intendment of the statute, and 
 that the debtor had the absolute control and ownership 
 in the fund, and a judgment creditor could reach such 
 fund. Hallett v. Thompson, 5 Paige, 583. A receiver 
 of the judgment debtor is entitled to this fund. Where 
 the testator absolutely devised his property, and charged 
 it with the payment of an annuity of seven hundred 
 dollars, bequeathed to his wife in lieu of dower, it was 
 held that this was not a trust within the Revised 
 Statutes, and the annuity could be reached by a 
 creditor's bill. Degraw v. Clason, 11 Paige, 136. 
 Also Ten Broeck v. Sloo, 2 Abb., 234; S. C, 13 How., 
 28. A receiver of the wife, being a judgment debtor, 
 
372 ENTITLED TO POSSESSION OF PROPERTY. 
 
 has a right to such annuity, unless exempt by law. 
 Where the judgment debtor is both trustee and cestui 
 que trust, the trust cannot be upheld, and the property 
 may be reached. Craig v. Hone, 2 Edw., 554. A re- 
 ceiver of the judgment debtor has a right to such 
 property. 
 
 A receiver of a judgment debtor is entitled to his 
 real estate situated without the State, and a Court of 
 Equity has the power to compel the debtor to convey 
 the same to the receiver. Chautauqua County Bank v. 
 Risley, 19 N. V., 374. Whether or not a judge has this 
 power, ^1?,? ante, ch. 4, § I, p. 281. Whether a court of 
 New York, when called on to compel the judgment 
 debtor to convey his real estate situated without the 
 State to a receiver, will recognize a statutory right 
 given him by the State where the property is situated 
 to redeem it when sold on execution within a certain 
 time, as the courts of New York do in regard to prop- 
 erty situated in that State, has never been determined 
 in any reported case. The receiver of a judgment 
 debtor is also entitled to his personal property without 
 the State of New York. Bunn v. Fonda, 2 Code R., 70. 
 
 See further, ante, ch. 4, § i, p. 281, as to what per- 
 sonal property the receiver of a judgment debtor who 
 owns the same is entitled to have possession or con- 
 trol of. (i). He is also entitled to the immediate pos- 
 session or control of all the personal property which was 
 owned by and in the possession of the. judgment debtor 
 at the time when it vested in the receiver, according to 
 the provisions of § 2468 of the Code, although since 
 then transferred to and claimed by another person. 
 See Steele v. Sturges, 5 Abb., 442. 
 
 He is also entitled to the immediate possession or 
 control of the joint or partnership property of several 
 debtors, when the judgment was recovered upon a joint 
 indebtedness against all the owners, although some were 
 
ENTITLED TO POSSESSION OF PROPERTY. 373 
 
 not served with the summons or did not appear in the 
 action. 
 
 In McEwen v. Brewster, 19 Hun, 337, it appeared 
 that the income of a trust estate in the hands of an 
 executor had been verbally transferred to the judgment 
 debtor for a fair consideration, with the knowledge and 
 acquiescence of the executor; held that the amount of 
 this income then in the hands of the trustee passed to 
 the receiver of the judgment debtor. This is a Gen- 
 eral Term decision, and reverses S. C, 17 Him, 223. 
 
 At the time the receiver was appointed, the judg- 
 ment debtor owned a note for eight hundred dollars ; 
 but thereaffer he received two other notes from the 
 maker for two hundred and fifty and two hundred dol- 
 lars respectively, and then destroyed the eight-hundred- 
 dollar note. Held that the eight-hundred-dollar note 
 vested in the receiver, and he could enforce its payment, 
 notwithstanding its destruction ; but the other two 
 notes did not vest in him. Thorn v. Fellows, 5 N, Y. 
 W. Digest, 473, Supreme Ct., General Term. 
 
 A chattel mortgage was executed at the time the 
 plaintiff was simply a contract creditor of the mort- 
 gageor, but it was not filed, and the articles of property 
 remained in his possession, as before. Afterward the 
 plaintiff obtained judgment against him on this claim, 
 and instituted supplementary proceedings thereon, and 
 had a receiver appointed of the judgment debtor's 
 property. The mortgage was filed for the first time 
 after the proceedings had been instituted. Held that 
 the mortgage was absolutely void as against the re- 
 ceiver, and the articles included therein vested in him, 
 free from the mortgage, and that his title extended 
 back to the commencement of the proceedings before 
 the filing of the mortgage. Clark v. Gilbert, 10 Daly, 
 316; S. C., 14 jV. Y. W. Digest, 241, General Term. 
 
 But where a chattel mortgage is regular and on file 
 
374 ENTITLED TO POSSESSION OF PROPERTY. 
 
 at the time of the institution of the proceedings, the 
 receiver takes only such right or interest in the prop- 
 erty mortgaged as the judgment debtor then has, and 
 this right or interest is not enlarged by the failure sub- 
 sequently to refile the mortgage. Gardner v. Smith, 
 2g Barb., 74; Campbell v. Fish, 8 Daly, 162, General 
 Term. Also Tinkey v. Langdon, 60 How., 180; re- 
 versed, S. C., 13 N. Y. W. Digest, 384, Supreme Ct., 
 General Term, but not on this point. In this latter 
 case the mortgage was overdue, and there was there- 
 fore here a question as to whether the receiver had any 
 right to have possession, and this question could not 
 be determined on a motion. 
 
 And if the mortgageor is entitled by the terms of the 
 mortgage to the chattels included therein for a definite 
 time, the receiver succeeds to that right, and may sell 
 the property ; but he must sell it in mass to one person, 
 so as not to prejudice the rights of the mortgage. 
 Manning v. Monaghan, 23 N. K, 539. 
 
 In all these and similar cases the receiver is entitled 
 to the immediate possession or control of the money or 
 other articles of personal property ; and if the judgment 
 debtor or his bailee refuses to pay or deliver the same 
 to him, he must obtain an order, if he has none already, 
 from the judge or court, upon due notice, and serve that 
 upon the recusant party, and make a proper demand 
 therefor, as stated in section seventh. 
 
 But in many instances the receiver is not entitled to 
 the immediate possession or control of personal prop- 
 erty, although it is vested in him. 
 
 (2) He cannot have the immediate possession or con- 
 trol where money or other personal property is so situ- 
 ated that it requires a special order of court or judge to 
 obtain it. Here the receiver can only acquire posses- 
 sion of it by such order. 
 
 Money in the hands of the sheriff, being a surplus 
 
ENTITLED TO POSSESSION OF PROPERTY. 375 
 
 arising from the sale of the judgment debtor's property, 
 vests in the receiver. Salter v. Bowe, 32 Hun, 237, 
 General Term. But the receiver can only obtain pos- 
 session of it through an order of court. 
 
 The owner of a chattel mortgage foreclosed it, and 
 sold more property than was needed to satisfy his debt 
 and expenses, and bought it in, took possession thereof, 
 and claimed the property by virtue of that sale. It 
 was held that the receiver succeeding to the rights of 
 the mortgageor could enforce the payment to himself of 
 the surplus resulting from the sale in excess of what 
 was actually needed to pay off the mortgage debt, etc. 
 Davenport v. McChesney, 86 N. V., 242. 
 
 A receiver who is appointed in supplementary pro- 
 ceedings, and qualifies his prior right to the judgment 
 debtor's property over an assignee in bankruptcy sub- 
 sequently appointed and over an assignee to whom the 
 property is assigned after such appointment. Swar- 
 tout V. Schwerter, 5 Red/., 497. But this last decision 
 must be taken with the qualification that the supple- 
 mentary proceedings in which the receiver was ap- 
 pointed were duly instituted before the bankruptcy 
 proceeding. In all such cases it seems evident that 
 possession can only be obtained by the receiver upon 
 application to the court or judge on' notice for an order, 
 or, in some cases, perhaps, only by means of an action, 
 regularly instituted, against all claimants. So when, 
 although the title to the property is vested in the re- 
 ceiver, a third person claims the right to the possession 
 thereof by bailment, or otherwise substantially dis- 
 putes the judgment debtor's right to the possession of 
 the property for some reason, is not capable of delivery, 
 or the extent of the title, or the amount or quantity of 
 the property which belongs to the judgment debtor is 
 uncertain, the receiver is not entitled to the immediate 
 possession or control of the property. A motion or 
 
3/6 ENTITLED TO POSSESSION OF PROPERTY. 
 
 an action will be necessary. If the possession of the 
 property in the third person is temporary, the receiver 
 must wait until this possessory right expires, unless he 
 is advised that it is fraudulent and set up merely to 
 delay his obtaining possession thereof ; then he should 
 resort to his action to acquire possession. 
 
 (3) When the judgment debtor transfers his property 
 or things in action, as debts, to another person, or exe- 
 cutes or places thereon some lien which is fair and valid, 
 he is bound thereby, and the receiver is also bound by 
 it to the same extent as the judgment debtor, if such 
 was the situation of the property at the time the pro- 
 ceedings were instituted in which he was appointed 
 receiver ; and he takes only such interest in the prop- 
 erty as the judgment debtor then has, subject to 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, after the proceedings 
 were commenced. See § 2469 of the present Code. 
 Also Gardner v. Smith, 29 Barb., 68 ; Voorhees v. Sey- 
 mour, 26 Id., 585. 
 
 Nor is the receiver entitled to the immediate posses- 
 sion of such property so situated at the institution of 
 the proceedings, unless the judgment debtor is; for 
 here the element of fraud is lacking. 
 
 See ante, ch. 10, § S, as to cases where immediate 
 possession cannot be required. 
 
 The receiver cannot have the immediate possession 
 of personal property alleged to belong to the judgment 
 debtor, but then in the hands of a third person, who 
 substantially disputes his title or right of possession 
 thereto of the debtor. § 2447 of Code. Dewey v. 
 Finn, iZ N. Y. W. Digest, 558. No order can be made 
 requiring the third person to deliver to the receiver ; 
 and if the latter forcibly seizes it and carries it away 
 without an order therefor, the former is entitled to the 
 
ENTITLED TO POSSESSION OF PROPERTY. 377 
 
 usual remedies given him by the common law for assert- 
 ing his rights, when he has not been made a party to 
 a previous proceeding, or had no notice thereof. In 
 such case he ought not to be punished as for a con- 
 tempt for suing the receiver without permission of the 
 court, as the order appointing the receiver did not 
 justify such taking. Dewey v. Finn, supra. 
 
 Where the judgment debtor in fraud of his creditors 
 transferred property of his to another at any time before 
 it became vested in the receiver, according to § 2469 of 
 the Code, and since the debt of the judgment creditor 
 was incurred, his title thereto is gone forever. He 
 cannot reclaim it, however fraudulent or gratuitous may 
 have been such transfer. So, after the actual institution 
 of proceedings against him, he may transfer personal 
 property of his to another person, and give him a legal 
 title thereto, or receive the payment of a debt due him, 
 and give a valid receipt therefor. So also a third party 
 proceeded against as debtor or bailee of the judgment 
 debtor, no matter whether he has possession of personal 
 property of the judgment debtor as mere bailee or 
 claims the ownership of it by a transaction however 
 fraudulent, may after the institution of proceedings 
 against him transfer such property to another person, 
 and give him a legal title thereto. Such transfers or 
 payments may be made at any time before the property 
 of the judgment debtor is vested in the receiver, 
 according to § 2468 of the present Code, and be legal. 
 In other words, the institution of supplementary pro- 
 ceedings creates no lien of which the world is bound in 
 law to take notice. The judgment creditor during the 
 pending of the proceedings must depend on his in- 
 junction. But after the receiver has completed his ap- 
 pointment as prescribed in § 2468 of the present Code, 
 any transfer of personal property belonging to the 
 judgment debtor made by him or by his bailee against 
 
378 ENTITLED TO POSSESSION OF PROPERTY. 
 
 whom the proceedings are instituted, is utterly void. 
 So is also the payment of a debt due the judgment 
 debtor made after such appointment. 
 
 The prosecution of supplementary proceedings and 
 the appointment of a receiver therein do not vacate or 
 affect a prior assignment or transfer of personal property 
 of the judgment debtor, however fraudulent. Where one 
 judgment creditor began proceedings against his debtor, 
 a fraudulent assignor, and had receiver appointed, other 
 judgment creditors brought creditors' actions against 
 the same debtor and his assignee, for the purpose of 
 setting aside the assignment for fraud, and succeeded. 
 The same receiver was appointed in these actions, and 
 the proceeds of the assigned property came into his 
 hands for distribution. It was held that the creditor 
 who had merely prosecuted supplementary proceedings 
 against the fraudulent assignor to the appointment of 
 a receiver merely had acquired no lien on the funds in 
 the receiver, and could not share in the distribution 
 thereof ; and the fact that the same person had been 
 appointed receiver both in the proceedings and in the 
 actions did not affect the question. To obtain a lien on 
 behalf of the creditor in the proceedings, the receiver 
 must bring a creditor's action to set the assignment 
 aside, like the other creditors, and until that was done 
 said instrument was valid, and the receiver was bound 
 to pay over the remainder of the assets to the assignee. 
 Field 7'. Sands, 8 Boszv., 685, General Term. 
 
 However, all personal property which belonged to the 
 judgment creditor, and all debts due him at the time 
 of the institution of the proceedings wherein he was 
 appointed receiver, and of which he was so appointed, 
 vest in him conditionally ; but he is not entitled to the 
 immediate possession of the same. If he wishes to 
 attack the title of the transferee or claimant and ac- 
 quire possession, he must bring an action to set aside the 
 
CAN CONTEST FRAUDULENT TRANSFERS. 379 
 
 transfer, on the ground that the same was made to 
 hinder, delay, or defraud creditors ; and the action 
 is finally determined in his favor, his conditional title 
 at once becomes absolute, and as between him and all 
 persons made parties to the action, his title to the 
 property or debt extends back by relation to the date; 
 of the institution of the proceedings in which he was 
 appointed receiver, and gives him the right of immedi- 
 ate possession as against all the defendants. See 
 § 2469 of the present Code. 
 
 If the final determination is against the receiver, his 
 conditional title is divested out of him. 
 
 Where the judgment debtor had transferred personal 
 property, with the intent to hinder, delay, or defraud 
 the judgment creditors among other creditors of his at 
 the time the proceedings were instituted against him, or 
 his debtor, or bailee, the receiver appointed therein 
 acquires in the first instance only the right to bring an 
 action to vacate such fraudulent assignment or transfer ; 
 and if the final determination of the action is in his 
 favor, his title extends back to the date of commencing 
 his creditor's action, and vests the property absolutely 
 in him, and entitles him to the immediate possession of 
 the same. Field v. Sands, 8 Bosw., 685, which decides 
 that the receiver only represents the judgment creditor 
 in respect to property which the judgment debtor had 
 transferred at the time proceedings are instituted, and 
 has no longer any title thereto. But this appears to be 
 overruled in Wright v. Nostrand, 94 A^. Y., 31. 
 
 But if the subject of the litigation is real estate, and 
 it is finally determined in his favor, his title thereto 
 extends back only to the date of filing and recording 
 the notice of the pendency of action provided for by 
 the statute ; for the judgment debtor may alienate his 
 real estate, and give a legal title thereto to a grantee 
 at any time prior to the date when it would otherwise 
 
380 THE RECEIVER. 
 
 vest in the receiver, according to § 2468 of the present 
 Code, and the same does in no manner vest in him so 
 as to prevent the grantee or ahenee from conveying 
 the property to a third person and giving him a good 
 and valid title, provided the purchaser is such in good 
 faith, without notice and for a valuable consideration. 
 After the receiver's appointment is completed, according 
 to § 2468, the judgment debtor is incapacitated from 
 conveying his real estate and giving a legal title to the 
 grantee. Such a conveyance is void. But a grantee 
 who received title from the judgment debtor before 
 that date may convey the property to a third person by 
 a valid deed after that date, and if he is a purchaser in 
 good faith, without notice of any fraud, and for a valu- 
 able consideration, his right thereto cannot be disturbed 
 by the receiver. For the filing and recording of the 
 order of receivership can be no notice to a third person 
 as against a person not a party to the supplementary 
 proceedings. 
 
 Before the present Code went into effect it was held 
 that where the receiver brings an action to set aside an 
 assignment of property on the ground of fraud, and 
 succeeds, his title extends back only to the time of 
 commencing his action, like an action brought by a 
 judgment creditor ; that he only represented the 
 creditor in whose proceedings he was appointed, and 
 has no other rights. Fields v. Sands, 8 Bosw., 685, 
 General Term; Conger v. Sands, 19 How., 8; Coope 
 V. Bowles, 28 Id., 10. But these decisions have been 
 partly superseded by § 2469 of the present Code, which 
 extends the receiver's title back by relation, so as to 
 include the personal property of the judgment debtor 
 at the time of the commencement of the proceedings 
 where he succeeds in setting aside a transfer of per- 
 sonal property made by the judgment debtor there- 
 after. 
 
WHAT HE IS NOT ENTITLED TO. 38 1 
 
 (4) With what the Receiver is not Vested. 
 
 He is not vested with property of which the judg- 
 ment debtor has the mere naked possession as a ten- 
 ancy at sufferance. Gardner v. Smith, 29 Barb., 68 ; 
 nor with property which the judgment debtor holds 
 ■solely as a trustee under the Revised Statutes ; for this 
 latter is a personal trust. 
 
 Exempt Property. 
 
 The receiver is not vested with property of the judg- 
 ment debtor, exempt by law from levy and sale by 
 virtue of an execution. See § 2463 of the Code of Civil 
 Procedure. Court of Appeals, 93 N. Y., 79. 
 
 He interferes with such property at his peril, although 
 the order of receivership appears to include it. The 
 owner thereof is not bound to apply to the court for a 
 modification of an order of receivership which appears 
 to include such property, or do anything whatever to 
 enable him to enjoy his statutory exemption. Finnin 
 V. Malloy, 33 N. Y. Superior Ct. {if. ^Sp), 382, General 
 Term. Such order will not be construed to include 
 exempt property, nor is the receiver vested with the 
 policy of insurance on exempt property, nor can he 
 require the judgment debtor to assign it to him. 
 Cooney v. Cooney, 65 Barb., 524. But the court in 
 this case allowed the receiver to make a motion to be 
 made a party to an action brought by the judgment 
 debtor on the policy against the insurance company. 
 Nor does he become vested with the right of action for 
 taking and converting property exempt, nor with the 
 recovered pay. Andrews v. Rowan, 28 How., 126. 
 
 The judgment debtor has for a reasonable time a 
 right to the money paid by the insurance company 
 upon exempt furniture destroyed to replace the same 
 therewith, if he has not used other means for that pur- 
 pose. Cooney v. Cooney, supra. Of course, if he used 
 
382 THE RECEIVER. 
 
 other means or money not exempt, to replace his furni- 
 ture with, the receiver is entitled to so much of the in- 
 surance money as is equal to the sum of other means 
 used to replace his furniture. 
 
 So a judgment, recovered for converting or selling 
 exempt property on execution, does not vest in the . 
 receiver. It stands for and represents the exempt 
 property. Where the receiver collected such a judg- 
 ment, the court on motion made an order requiring him 
 to pay the proceeds to the judgment debtor, and the 
 Commission of Appeals sustained the order. Tillotson 
 V. Wolcott, 48 N. Y., 188. In Finnin v. Malloy, su/>ra, 
 the court said the judgment debtor has the right to 
 claim exemption for any portion of his property that 
 falls within the class or character defined by the statute 
 as exempt. If he has two teams working in his busi- 
 ness, he has the right to claim either as exempt, and 
 say : " I claim this team as exempt by law from execu- 
 tion " ; and the property so designated is thereupon 
 protected by the statute. So, if he owns several articles 
 of property or animals falling within the statutory de- 
 scription of exempt property, but greater in number 
 or value than those exempted by the statute, he may 
 claim as exempt any number or portion of them to the 
 extent or value specified in the statute ; and where there 
 are several articles that answer to the descriptive words 
 in the statute, as working tools or working teams, " or 
 necessary household furniture," and the same exceed 
 in value the sum stated in the statute, he has the right 
 to separate and divide the articles and break up the 
 combination and retain any number or portion of the 
 same whose total value does not exceed the statutory 
 sum. If he has two teams working in his business, he 
 may claim either as exempt. It is his right to make 
 the choice and designation. 
 
 Team. — It was also held in this case, that a horse or 
 
TRUST ESTATE. 383 
 
 other animal trained and used for labor and service, 
 when it constitutes the motive power to accomplish 
 such labor and service, is a team according to the 
 popular and statutory meaning, without being asso- 
 ciated or used with any other specified article of prop- 
 erty — that is, the laboring horse is of itself a working 
 team. 
 
 After Acquired Property. 
 
 Property which the judgment debtor acquired after 
 the proceeding was instituted does not pass to the re- 
 ceiver. Thorn v. Fellows, 5 iV". Y. W. Digest, 473, 
 Supreme Court, General Term, 2d Judicial Depart- 
 ment ; Merritt v. Sawyer, 6 N. V. Supreme Court {T. &■ 
 C.) R., 160, General Term, ist Judicial Department ; 
 Graff V. Bonnett, 25 How., 470. See Du Boisz^. Cassidy, 
 75 N. v., 298 ; Campbell v. Genet, 2 Ilt/t., 290. Much 
 less does property pass to the receiver which the judg- 
 ment debtor acquired after the appointment. Graff v. 
 Bonnett, supra ; Genet v. Foster, 18 How., 50. 
 
 Trust Estate. 
 
 The beneficial interest of the judgment debtor in the 
 rents and profits of lands and in the income of personal 
 property, cannot be reached by a receiver appointed in 
 these proceedings. The surplus only of such interest 
 above what is necessary for the debtor's support can be 
 subjected to the payment of his debts, and that can 
 only be done in an action where direct issues can be 
 made on the amount necessary for the judgment 
 debtor's support, and all persons interested can be made 
 parties. 
 
 Manning z/.' Evans, 9 N. Y. W. Digest, 311, Supreme 
 Ct., General Term, 4th Judicial Department ; Campbell 
 V. Foster, 35 N. Y., 361 ; and see Graff v. Bonnett, 31 
 N. Y., 9, affirming S. C, 2 Robt., 54 ; Scott v. Nevius, 
 6 Duer, 672. 
 
384 THE RECEIVER. 
 
 Neither can the receiver maintain an action to enforce 
 the trust in favor of creditors declared by the statute on 
 Uses and Trusts in Part 2, ch. i, tit. 2, art. 2, §§ 51 and 
 52, R. S. ; because no such right vests in him. He 
 derives no such right through the judgment debtor, 
 who has no interest, legal or equitable, in the land so 
 conveyed. This trust does not result to the creditors 
 through the debtor, but directly to the creditors them- 
 selves. 
 
 Underwood v. Sutcliffe, "j"] N. Y., 58, reversing S. C, 
 10 Hun, 453. 
 
 The sections of the above-mentioned statute on Uses 
 and Trusts provide that where a grant for a valuable 
 consideration shall be made to one person, and the con- 
 sideration therefor paid by another, no use or trust 
 shall result in favor of the person by whom such pay- 
 ment shall be made, etc., but every such conveyance 
 shall be presumed fraudulent as against the creditors at 
 that time of the person paying the consideration ; and 
 when a fraudulent intent is not disproved, a trust shall 
 result in favor of such creditors to the extent that may 
 be necessary to satisfy their just demands. 
 
 The argument of the Court of Appeals in Underwood 
 V. Sutcliffe, supra, against the receiver's right to main- 
 tain an action to enforce the trust declared in that 
 statute, is equally cogent against his maintaining an 
 action to set aside a fraudulent transfer of property 
 made by the judgment debtor; for as between the par- 
 ties, such transfer is valid, and the judgment debtor has 
 no more interest, legal or equitable, in the property 
 transferred than he has in property bought and paid 
 for with his money when the conveyance is made to 
 another person. Porter v. Williams, 9 N. Y., 142, ac- 
 cords to the receiver the power to impeach an assign- 
 ment of property made by a judgment debtor by fraud, 
 on the ground that he represents creditors — that is, 
 
CLAIM AGAINST AN EXECUTOR. 385 
 
 that he derives his power to impeach such transfers of 
 property from creditors. An inconsistency in the 
 reasoning in these two cases would seem to exist. 
 However that may be, a receiver has now the right by 
 statute to impeach, on behalf of creditors, a fraudulent 
 transfer of property made by a judgment debtor. 
 See ch. 314 of session laws of 1858. 
 
 The receiver has no such title that he can bring an 
 action for the partition of real estate of which the judg- 
 ment .debtor is part owner or in which he is interested. 
 Du Bois V. Cassidy, 5 N. Y. IV. Digest, 210, Supreme 
 Ct., General Term, 3d Judicial Department ; S. C. 
 affirmed, 75 TV. Y., 298, and 8 N. Y. W. Digest, 132 
 (but the Court of Appeals did not decide this question) ; 
 Miller v. Levy, 46 N. Y. Superior Ct. R. (14 ./. &■ Sj>.), 
 207 ; S. C, 10 N. Y. W. Digest, 326, General Term. 
 See also Payne v. Becker, 22 Hicn, 28 ; to the contrary 
 is Powelson v. Reeve, 2 N. Y. W. Digest, 375, Supreme 
 Ct., Special Term, 2d Judicial Department, in which it 
 was held that a receiver appointed in these proceedings 
 might maintain an action for the partition of real prop- 
 erty against the other tenants in common. But when 
 money or other property is not wholly the proceeds of 
 a trust estate or fund, but in part represents the labor 
 of the judgment debtor, it is subject to levy and sale 
 on execution, and may be reached by a receiver. 
 Salsbury v. Parsons, 36 Hun, 12. 
 
 Claim against an Executor. 
 
 The receiver of an executor judgment debtor has 
 not such an interest in the estate of the deceased as 
 will entitle him to an accounting by the executor in a 
 Surrogate's Court. The commissions due the executor 
 from the estate are not ascertained until upon a proper 
 accounting ; it cannot therefore be said that there is any- 
 thing due him from the estate until then. Worrall v. 
 
386 THE RECEIVER. 
 
 Driggs, I Redf., 449, Chas. P. Daly, Acting Surrogate. 
 Here the receiver sought to reach the commissions 
 which would be coming to the judgment debtor as 
 executor of an estate on a final accounting. 
 
 SECTION V. 
 
 How Receiver s Title to Personal Property Extended 
 by Relation. 
 
 § 2469. " Where the receiver's title to personal prop- 
 erty has becom-e 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 proceed- 
 ing was instituted, as follows : 
 
 " I. 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 receivership, the receiver's title ex- 
 tends back, so as to include the personal 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 specified in the foregoing subdivision, but an order 
 has been made, requiring a person to attend and be ex- 
 amined concerning property belonging or a debt due to 
 the judgment debtor, the receiver's title extends to the 
 personal property belonging to the judgment debtor 
 which was in the hands or under the control of the per- 
 son 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 applica- 
 
TITLE EXTENDED BY RELATION. 387 
 
 tion for the appointment of the receiver was given to 
 the judgment debtor, the receiver's title extends to the 
 personal property of the judgment debtor, at the time 
 when the notice was served, either personally or by 
 complying with the requirements of an order, prescrib- 
 ing a substitute for personal service. 
 
 "4. Where the case is within two or more of the fore- 
 going subdivisions of this section, the rule most favor- 
 able to the judgment creditor must be adopted. 
 
 " But this section does not affect the title of a pur- 
 chaser in good faith, without notice, and for a valuable 
 consideration ; or the payment of a debt in good faith, 
 and without notice." 
 
 This section is new. It makes the receiver's title to 
 personal property relate back to the time of the service 
 of the order or warrant, and affects the personal prop- 
 erty which he then owned, subject to the intervening 
 rights of purchasers in good faith, etc., and the payment 
 of a debt in good faith, and without notice. Under the 
 former Code it was held that the receiver's title to per- 
 sonal property only relates back to the date of his ap- 
 pointment. Becker v. Torrance, 31 N. V., 631 ; Fillmore 
 V. Horton, 31 How., 424, Supreme Ct., General Term ; 
 Lattimore v. Lord, 4 E. D. Smith, 183 ; Banks v. Potter, 
 21 How., 469. 
 
 The Court in Du Bois v. Cassidy, 75 N. Y., 298 ; 
 S. C, 8 N. y. W. Digest, 132, in 1879, say incidentally 
 that the receiver became vested with such property as 
 the judgment debtor had at the time of the commence- 
 ment of the proceeding. Whatever doubt there may 
 have been upon this point produced by these contrary 
 decisions has been cleared away by this section of the 
 new Code. 
 
 This provision of § 2469 of the Code still further as- 
 similates these proceedings to the creditor's bill of the 
 Court of Chancery. By filing a bill, if followed up with 
 
388 THE RECEIVER. 
 
 the service of the subpoena on the defendant, the judg- 
 ment creditor acquired a hen on his debtor's equitable 
 assets. This hen dated from the time of filing the bill, 
 and was good against all the world ; but no lien was 
 thus gained on property subject to levy. This section 
 is an improvement upon the above-named rule. It is 
 more comprehensive ; it includes equitable assets and 
 leviable personal property, and places them upon the 
 same level. It is more just ; it protects a person who 
 in good faith and without notice pays a debt which he 
 owes, either to the judgment debtor or his assignee, 
 equally with the person who in good faith, for a valu- 
 able consideration and without notice, takes title to 
 personal property after proceedings are instituted. 
 
 Clarke/. Gilbert, lo Daly, 316, General Term, holds 
 that the title of receiver to the personal property of the 
 judgment debtor relates back to the commencement of 
 the proceedings in which he was appointed, and takes 
 chattels included in a mortgage duly executed, although 
 not filed until after the proceedings had been instituted. 
 Here the articles mentioned were not accompanied by 
 an immediate delivery or followed by an actual or con- 
 tinued change of possession. In New Jersey the same 
 law prevails as to the receiver's title. It relates back to 
 the institution of the proceedings, and takes all property 
 and choses in action then belonging to the judgment 
 debtor, and avoids any transfer of property made to an- 
 other person, with notice of the proceedings. Colemar 
 V. Roff, 16 Vr. (45 N.J. Law), 7. 
 
 Clerk to Record Orders, etc. — Penalty for Neglect. 
 
 § 2470. " Each county clerk must keep in his office 
 a book, indexed to the names of the judgment debtors, 
 styled ' Book of Orders Appointing Receivers of Judg- 
 ment Debtors.' A county clerk, in whose office an 
 
ORDER TO BE RECORDED. 389 
 
 order or a certified copy of an order is filed as prescrib- 
 ed in § 2467 or § 2468 of this act, must immediately 
 note thereupon the time of filing it, and, as soon as 
 practicable, must record it in the book so kept by him. 
 He must also, upon request, furnish forthwith to any 
 party or person interested one or more certified copies 
 thereof. For each omission to comply with any pro- 
 vision of this section, a county clerk forfeits to the 
 party aggrieved two hundred and fifty dollars, in addi- 
 tion to all damages sustained by reason of the omis- 
 sion." 
 
 SECTION VI. 
 Receiver Subject to the Control of the Court. 
 
 § 2471. "A receiver, appointed as prescribed in this 
 article, is subject to the direction and control of the 
 court out of which the execution was issued. Where an 
 order has been made, extending a receivership to a 
 special proceeding founded upon a subsequent judg- 
 ment, the control over and direction of the receiver^ 
 with respect to that judgment, remain in the court to 
 whose control and direction he was originally subject." 
 This section substantially includes the provisions of 
 § 298 of the old Code on that subject. 
 
 Prior to 1862 the receiver was subject to the order 
 of the judge who appointed him. See Webber v. Hob- 
 ble, 13 How., 382. This decision was superseded by the 
 amendment of 1862 to § 298 of the former Code, and 
 § 2471 of the present Code contains a like provision 
 that the receiver is subject to the direction and control 
 of the court. 
 
 The judge appoints the receiver in the first instance, 
 and passes upon and approves his bond^ but there his 
 
390 THE RECEIVER. 
 
 authority generally ends. The receivership thereafter 
 is under control of the court out of which the execution 
 was issued. See Pool v. Safford, 14 Hun, 369, General 
 Term, and Lane v. Lutz, i Keyes, 203. A motion to 
 set aside an order appointing a receiver, on the ground 
 of irregularity, is properly made to the court, and not 
 to a judge. Lippincott v. Westray, 6 N. V. Civ. Pro. R., 
 74, Supreme Ct., General Term. Here the receiver had 
 qualified and entered upon his duties. The judge, 
 however, has the power to accept the resignation of 
 one receiver and to appoint another in his stead. Wing 
 V. Disse, 15 Hun, 190. So held under the former Code. 
 See § 715 of the present Code. 
 
 If he has been appointed or his receivership extended 
 to several proceedings based upon executions issued 
 out of different courts, he will be subject to the direc- 
 tion and control of the court upon whose execution he 
 was first appointed. See Banks v. Potter, 21 How., 469. 
 
 Generally all motions by or against the receiver after 
 his appointment has been completed, and he has quali- 
 fied, must be made to the court whose officer he is. If 
 he desires leave to sue or defend, he must apply to that 
 court. He must account to the same tribunal. The 
 court has power to direct him as to whom he shall pay 
 the assets in his hands. If any part thereof is the pro- 
 ceeds of exempt property, it can order him to pay it to 
 the judgment debtor. Tillotson v. Wolcott, 48 N. Y., 
 188. 
 
 But the court has no power to order the receiver to 
 pay over money to a party in an action to which neither 
 he nor the parties in the proceedings in which he was 
 appointed are parties ; especially so where it is not 
 shown that the court has jurisdiction of the receiver or 
 the fund in his hands. It is only in the same action (?) 
 where he was appointed, and upon notice to all 
 parties interested in the subject-matter of the motion, 
 
SUBJECT TO CONTROL OF COURT. 39I 
 
 where courts have granted orders on receivers to pay 
 or deliver over money or property in their hands to 
 third persons claiming it. Galster v. Syracuse Savings 
 Bank, 29 Hun, 594, General Term. 
 
 The court will not order him to distribute funds in 
 his hands among creditors, while he is personally liable 
 and threatened with an action for false imprisonment 
 in proceedings instituted in his name for the benefit of 
 the estate which he represents. The funds should re- 
 main in his hands to meet this contingency. Morris v. 
 Hiler, 57 How., 322, N. Y. Com. Pleas, Special Term. 
 
 The court will not enjoin the receiver in a separate 
 action from taking possession of the execution debtor's 
 property. Van Rensselaer v. Emery, g How., 135, Ch. 
 Nor will it order him to pay trust funds in his hands to 
 the judgment creditors in supplementary proceedings, 
 especially where such funds were paid to him upon an 
 order made by another tribunal. Genet v. Foster, 18 
 Hoiu., 50. Here a judge of the Court of Common 
 Pleas appointed a receiver, and ordered that the income 
 of a trust be paid to him to abide the event of an action. 
 Proceeding was thereafter taken by another creditor 
 in the N. Y. Superior Court and the same receiver ap- 
 pointed, and an application was made for an order that 
 he pay the income which had thus accumulated in his 
 hands to the latter judgment creditor. This motion was 
 denied, as above stated. According to the decisions since 
 rendered, no court or judge can in these proceedings 
 order such money to be paid to a judgment creditor, 
 no matter how it came into the receiver's hands. 
 
 Where the receiver had the supposed value of sixty 
 thousand dollars of property in his hands, and the 
 amount likely required to satisfy the demand in suit 
 was only about one thousand dollars, the court re- 
 strained him from making sale of the whole property. 
 Wardell v. Leavenworth, 3 Edw., 244. Where the 
 
392 THE RECEIVER. 
 
 receiver seized goods apparently in the debtor's pos- 
 session, but claimed by another not a party to the 
 suit, he was ordered to restore them on claimant's 
 undertaking to hold them subject to the order of the 
 court, and a reference was directed as to title. Dick- 
 erson v. Van Tine, i Sandf., 724, N. Y. Superior' Ct. 
 Chambers. 
 
 The court at Special Term has the power to remove 
 one receiver appointed herein and set the proceedings 
 aside, on the ground of collusion with the judgment 
 debtor, and appoint another receiver, and require the 
 first one to hand over to him the property received. 
 Such order is discretionary and not reviewable in the 
 Court of Appeals. Connolly v. Kretz, 78 N. Y., 620; 
 S. C, 9 N. Y. W. Digest, 211. Before- the court can 
 entertain a motion for the removal of a receiver, due 
 notice must be given of the motion in writing, 
 which should set forth specifically the grounds upon 
 which the removal is sought. Bruns v. Stewart Manu- 
 facturing Co., 31 Hun, 195, General Term. But after 
 the property and effects of the judgment debtor are 
 vested in the receiver, neither a court nor a judge can 
 divest him thereof by a mere order in a proceeding to 
 which he is not a party. 
 
 Rogers z^. Corning, 44 Barb., 229. It is not sufficient 
 ground for the removal of a receiver, that he has em- 
 ployed the judgment debtor to make collections for him 
 where it appears that no part of the assigned fund has 
 been used for the benefit of the debtor. 
 
 Ross V. Bridge, 24 How., 163 ; S. C, 15 Abb., 150, 
 Supreme Ct., General Term, 1st District. 
 
 His Commissions. 
 
 The receiver is now entitled, besides his lawful ex- 
 penses, to such a commission, not exceeding five per cen- 
 tum upon the sums received and disbursed by him, as 
 
HIS COMMISSIONS. 393 
 
 the court or judge that appointed him allows. § 3320 
 of the Code of Civil Procedure. 
 
 Before this provision was enacted, it was held that 
 the court whose officer the receiver is had authority, in 
 the absence of legislation on the subject, to determine 
 his compensation ; and the court in fixing it was not 
 limited by the statute regulating the compensation of 
 executors, administrators, and guardians, or by § 244 of 
 the old Code. 
 
 Gardiner v. Tyler, 3 Transcript Appeals, 161 ; S. C, 
 2 Abb. App. Dec, 247 ; 4 Abb., N. S., 462, ; 3 Kefes, 505 ; 
 Baldwin v. Eazler, 2 J. &■ Sp. (34 N. Y. Superior 
 Court R.), 274. 
 
 SECTION VII. 
 
 Nature of the Receiver s Office — His Rights and Duties, 
 etc. — Nature of the Order. 
 
 The order of receivership is an equitable execution. 
 It is like an execution against property in the hands of 
 a sheriff. The lien and the title are similar in both 
 cases. Both the sheriff and the receiver acquire title 
 to the debtor's property for a specific purpose — the pay- 
 ment of the judgments which they represent — and 
 when these and the official charges are paid, the execu- 
 tion and the order of receivership have spent their 
 force ; the property or proceeds unappropriated to this 
 purpose revert to and reinvest in the original owner 
 or the party from whom the property had been taken, 
 without any formal retransfer. See Manning v. Mon- 
 aghan, 28 N. Y., 585 ; Lanigan v. Mayor, etc., of 
 New York, 70 Id., 4^,4, 459 ; Becker v. Torrance, 31 Id., 
 631. 
 
 Delay or negligence on the part of the receiver to 
 
394 THE RECEIVER. 
 
 take possession of the personal property will not impair 
 his title, unless the delay is the result of fraud or col- 
 lusioil between the creditor and the receiver. If that 
 fact is made to appear, the creditor's priority under this 
 receivership, like a dormant execution, will be postponed 
 to subsequent proceedings, which are diligently pur- 
 sued. So an unreasonable delay of the receiver to take 
 possession of property, though without the active par- 
 ticipation of the creditor, would postpone the receiver's 
 prior right as against third party, especially if it inter- 
 fered with rights subsequently acquired in good faith. 
 But when the receiver's title is unimpaired through de- 
 lay, or any other cause, all subsequent levies and liens 
 are subject thereto. Wilson v. Allen, 6 Barb., 542 ; 
 Fessenden v. Woods, 3 Bosw., 550. This is so, although 
 the sheriff makes a levy on the property between the 
 appointment of the receiver and the filing of his bond. 
 Steele v. Sturges, 5 Abb., 442. § 2468 of the present 
 Code provides that the judgment debtor's property 
 vests in the receiver who has duly qualified from the 
 time of filing the order appointing him, etc. The re- 
 ceiver or attorney obtaining the order must have a 
 reasonable time within which to file the order in the 
 proper office or offices and have the bond executed, ap- 
 proved, and filed, and during such interval it is clear 
 that the sheriff cannot step in with an execution and 
 acquire a prior lien by his levy on the personal prop- 
 erty in favor of another creditor. 
 
 When the receiver has completed his appointment, 
 as prescribed in § 2468 of the Code, and duly qualified, 
 the receivership is a notice to all the world, first, against 
 the judgment debtor, whose property is affected there- 
 by; second, as against the debtor or bailee of the 
 judgment debtor, who has property belonging or is in- 
 debted to the latter, if the order of receivership was 
 made in proceedings against him. 
 
NATURE OF HIS OFFICE. 395 
 
 Although, as stated above, when the judgment cover- 
 ed by the order of receivership is satisfied and all the 
 official charges paid, the property remaining unappro- 
 priated in the receiver's hand reverts to and reinvests in 
 the party from whom it was originally taken ; yet it is 
 important, for the benefit of all persons interested, that 
 an order be entered discharging the receivership ; for 
 the payment of the judgment after a receiver has been 
 appointed does not ipso facto discharge the receivership ; 
 it merely ends the litigation, and entitles the judgment 
 to an order discharging the receiver on payment of his 
 lawful fees, etc. ; but until he is so discharged, he holds 
 (the legal) title, as before, to any property in his hands. 
 Crooks V. Findley, 60 How., 377, Marine Ct., Special 
 Term, McAdams, J. Also see the opinion of Mr. 
 Justice Daniels, at Supreme Ct., Special Term ; Id., 375. 
 The receivership remains a cloud on the title, although 
 it is functus officia, which is removed by an order dis- 
 charging it. 
 
 Another authority holds that an assignment to a re- 
 ceiver is in the nature of a mortgage, and becomes void 
 on payment of the judgment in which he was appoint- 
 ed, and the property which passed under it reverts to 
 the assignor or his grantee without any reassignment. 
 Anderson v. Treadwell, i Edm. Sel. Cases, 201. 
 
 It is quite clear that the unappropriated property or 
 proceeds which had vested in the receiver upon his ap- 
 pointment reverts in equity to and reinvests in the 
 party out of whom it had been divested ; but the ap- 
 pointment of the receiver and the filing and recording 
 of the order, as prescribed in § 2468 of the present Code, 
 vested the receiver with the legal title thereto, and en- 
 abled him to give a valid title to a purchaser ; ^nd there- 
 fore nothing short of an order of the same solemnity 
 can reinvest the legal title to any part thereof in the 
 party out of whom it was divested. 
 
396 THE RECEIVER. 
 
 His Office. 
 
 The receiver is a trustee of an express trust. When he 
 is appointed, and the order of receivership is filed and 
 recorded as prescribed in § 2468 of the present Code, and 
 he has given and filed the required bond, he represents 
 both the judgment debtor and the creditor at whose in- 
 stance he was appointed. He can therefore impeach 
 fraudulent or illegal transfers of property made by the 
 debtor as effectually as the creditor himself could do. 
 He can sue in his own name as plaintiff. Porter v. 
 Williams, 9 TV". K, 142; S. C, 12 How., 107, affirming 
 S. C, 5 Id., 441 ; I Code R., N. S., 144 ; 9 TV. F. Leg. 
 Obs., 307 ; Seymour v. Wilson, 15 How., 355, Court of 
 Appeals, reversing S. C, 16 Barb., 294, and overruling 
 Hayner v. Fowler, Id., 300. Also Bostwick v. Menck, 
 40 N. Y., 383, reversing Bostwick v. Beizer, 10 Abb., 197. 
 He is an officer of the court under whose control he is, 
 and the estate in his possession is in the care and custody 
 of that court. See § 2471 of the present Code; The 
 People 7'. King, 9 Hoiv., 97 ; Edw. Receivers in Eq., p. 3. 
 But he is not a general trustee. He represents those 
 creditors only over whose judgments his receivership 
 has been extended. When these are satisfied, he must 
 return the remainder of the property or the proceeds 
 to the judgment debtor, or his assignee, or to the party 
 from whom the same was received. See Porter v. Wil- 
 liams, supra ; Banks v. Potter, 21 How., 473. 
 
 His Power. 
 
 Under the former Code he was vested by statute 
 with the same rights and powers as if appointed by the 
 court according to § 244 of the same Code — that is, as 
 if appointed in an action. This provision is not con- 
 tained in the Code of Civil Procedure. It was held in 
 Verplanck v. Mercantile Ins. Co., 2 Paige, 452, that 
 the receiver has no powers, but such as are conferred 
 
THE RECEIVER. 397 
 
 on him by the order of his appointment and the prac- 
 tice of the court. Also Edw. Receivers in Equity, 5. 
 Since then several statutes have conferred additional 
 power upon him. See Session Laws of 1845, ch. 112, 
 p. 90-1 ; Laws of 1858, ch. 314, §§ i, 2, and 3 or 
 3 R. S. (3d Cd.), p. 226. He may disaffirm, treat as 
 void, and resist all acts done, transfers and agreements 
 made, or fraud of the rights of any creditor, including 
 himself or others interested in any estate as property 
 held by or of right belonging to him as such receiver. 
 Session Laws of 1858, ch. 314, § i. See also Supreme 
 Court Rule 78 as to his powers and duties. But he has 
 no extra territorial powers of official action. He can- 
 not pursue the debtor's property into a foreign juris- 
 diction. Booth V. Clark, 17 How., 322, U. S. Supreme 
 Ct. 
 
 The receiver's rights and duties in these proceedings 
 are very nearly analogous to those of a receiver ap- 
 pointed by the Court of Chancery in a creditor's bill. 
 See Petition of Inglehart, i Sheldon (Buffalo Superior 
 Court), 514. 
 
 He may maintain an action to set aside a transfer of 
 property made in fraud of the creditors whom he repre 
 sents. Bostwick v. Menck, 40 N. Y., 383, reversing 
 S. C, 10 Abb., 197; Underwood z/. Sutchffe, 77 A^. V., 
 58, reversing S. C, 10 Efun, 453. Where the mortgagee 
 of a chattel mortgage sold more property than was 
 needed to pay his debt, and bought it in ; held, that the 
 receiver could sue the mortgagee for the excess or sur- 
 plus. Davenport v. McChesney, 86 N. Y., 242 ; S. C, 
 13 TV. Y. W. Digest, 33 ; Porter ^. Williams, 9 iV. K, 142. 
 He may maintain an action to recover surplus money. 
 Davenport v. McChesney^ 86 N. Y., 242. 
 
 When regularly appointed and not restricted by a 
 special order of the court, he possesses the general 
 power to sue for and collect the debts, etc., of the 
 
398 HIS POWER, 
 
 judgment debtor in any court, otherwise possessing 
 jurisdiction over the subject-matter of the action. 
 Rockwell V. Merwin, i Sweeny, 484; S. C, 8 Abb., 
 N. S., 330, General Term ; also see Fessenden v. 
 Woods, 3 Bosw., 550; Miller v. Mackenzie, 2 Stewart 
 (29 N. J. Eq. R.), 291 ; Barker v. Dayton, 28 Wis., 367. 
 He may maintain an action in his own name, to re- 
 cover back usurious premiums paid by the judgment 
 debtor, and the latter need not be a party to such ac- 
 tion. Palen v. Bushnell, 18 Abb., 301. But in an ac- 
 tion to set aside a transfer of property for fraud 
 against creditors, the judgment debtor is a necessary 
 party, and also where there are grounds for claiming 
 that the property belonged to an estate of which the 
 debtor is a personal representative ; as such, he is en- 
 titled to be a party. Miller z/. Hall, 70 iV. F., 250. 
 
 In respect to a fraudulent act of the debtor, he has 
 no greater or other rights than his judgment creditor 
 has. Hence, when a person is guilty of fraud in con- 
 tracting a debt, and the creditor waives the same, and 
 brings his action on contract and recovers a judgment, 
 his right to go upon the fraud is gone forever ; and a 
 receiver appointed in proceeding based on such judg- 
 ment cannot allege this fraud for the purpose of de- 
 feating an assignment made by the judgment debtor for 
 the benefit of creditors, although the assignment was 
 made in furtherance of the fraud, with full notice 
 thereof by the assignee. Kennedy v. Thorp, 51 iV. Y., 
 174, reversing S. C, 2 Balj, 258, and 3 Abb., N. S., 131. 
 But if the receivership is extended so as to include 
 other creditors who have not waived the fraud, the re- 
 ceiver may allege and prove the same in order to set 
 aside a fraudulent transfer of property ; and in mar- 
 shalling and distributing the assets, on being successful 
 the creditor who had waived the fraud would never- 
 theless come in and share in the same as a creditor. 
 
THE RECEIVER. 399 
 
 See Savage v. Murphy, 34 N. Y., 508 ; Richardson 
 V. Sm3.\\-wood, Jacob, 552-556; Botts v. Cozine, i Hoff- 
 man Ch. R., 79; Parish v. Murphree, 13 How. {U. S.), 
 99 ; Waher v. Lane, i Mc Arthur (D. C), 275. 
 
 But where the receiver by legal process obtained 
 from the judgment debtor a note which had been given 
 him upon a fraudulent transfer of his property, it was 
 held that the bargain was not thereby ratified and 
 sanctioned so as to estop the judgment creditor from 
 impeaching the transfer on the ground of fraud and in- 
 sisting that the purchaser acquired no title to the prop- 
 erty as against him ; because the receiver is not a bona 
 fide hdlder for value of the note, and could not enforce 
 the collection thereof against the maker, and because 
 the judgment creditor was not a party to the fraudu- 
 lent transaction and not bound by it. Briggs v. Mer- 
 rill, 58 Barb., 389, General Term. Here the judgment 
 debtors had transferred their property to the plaintiff, 
 who gave them his note in part payment thereof. The 
 judgment creditor had the property levied upon and 
 sold, and the proceeds applied upon his claim. He 
 then instituted supplementary proceedings for the un- 
 paid balance of his judgment, and discovered this note 
 of plaintiff's in the debtor's possession. A receiver was 
 appointed, to whom the note was delivered, but noth- 
 ing further had been done with the note at the time 
 this action was brought. In this action the judgment 
 creditor was sued for the wrongful taking and conver- 
 sion of the property by the levy and sale as above 
 mentioned, and he set up that the transfer to the 
 plaintiff was fraudulent and void. 
 
 The receiver cannot replevin mortgaged chattels 
 rightfully in possession of the mortgagee, because 
 then the mortgageor has no interest in them ex- 
 cept the right of redemption, which does not include 
 that of possession, and the receiver succeeds only to 
 
400 HIS POWER, 
 
 this right. Campbell v. Fish, 8 Daly, 162, General 
 Term. 
 
 On the same principle that the receiver succeeds to 
 the rights of the judgment debtor, it was held that a 
 chattel mortgage was good as to him, although void as 
 to creditors, because a copy had not been refiled as re- 
 quired by statute. It was further held that, after the 
 receiver was appointed and the mortgage chattels 
 vested in him, the judgment creditor was no longer a 
 creditor as to this property within the statute requiring 
 the refiling of a personal mortgage. Gardner v. Smith, 
 29 Barb., 68, General Term. 
 
 The foregoing decisions only reiterate the well-estab- 
 lished rule of law, that as to all the property and rights 
 of property of the judgment debtor and all fair trans- 
 actions with his property and rights of property, the 
 receiver stands only in the place of the judgment debt- 
 or, and has no rights in respect thereto which the lat- 
 ter did not have ; but as to property and rights of and 
 interest in property, which the judgment debtor trans- 
 ferred or disposed of in fraud of the creditor on whose 
 behalf the receiver was appointed, the latter acquires 
 more than the property and rights of property which 
 the judgment debtor owned at the date of the appoint- 
 ment ; he acquires the right to impeach these transfers 
 and dispositions of property for fraud and have them 
 set aside, and the property delivered or accounted for 
 to him by the fraudulent transferee. He may do what 
 the judgment debtor cannot do — to wit, undo the fraud- 
 ulent acts of the latter. In this capacity of his office 
 he represents the creditor for whom he acts, and is 
 vested with his rights. If the creditor has waived the 
 fraud, as was done in Kennedy v. Thorp, 51 jV. Y., 
 174, supra, his representative cannot afterward revive it, 
 simply because the creditor could not do it. 
 
 The receiver has no power to waive the equitable 
 
THE RECEIVER. 40I 
 
 rights of his judgment creditor. Keiley v. Dusenbury, 
 10/. <&■ Sp.\i,2 N. Y. Superior Ct. R), 238, General 
 Term. 
 
 When the receiver sets aside a conveyance made by 
 the judgment debtor to his wife, on the ground of 
 fraud, he must sell the property subject to her inchoate 
 right of dower. He cannot sell that and pay to her 
 the estimated value thereof in lieu of dower. Lowry 
 V. Smith, g Hujt, 514, General Term. 
 
 He may employ the judgment debtor to make col- 
 lections for him, provided no part of the assigned fund 
 is used for the benefit of the debtor. At most such 
 employment is not sufficient ground for removal of the 
 receiver. Ross v. Bridge, 24 How., 163 ; S. C, 15 
 Abb., 150, Supreme Ct., General Term. 
 
 Attorney of the Judgment Creditor. 
 
 The receiver may in the course of his receivership 
 employ the attorney of the judgment creditor. Baker 
 V. Van Epps, 60 How., 79, General Term, reversing 
 in part and afifirming in part S. C., 58 Hoiv., 401 ; and 
 overruling Branch v. Harrington, 49 How., 196 ; and 
 Gumming v. Egerton, 9 Bosw., 684, both Special Term 
 decisions. 
 
 At Special Term in Baker v. Van Epps, 58 How., 
 401, the motion to set aside the summons and com- 
 plaint was denied on the ground that all of the de- 
 fendants did not join in the application. 
 
 In Gumming v. Egerton the employment of the at- 
 torney of the judgment creditor was held to be an ir- 
 regularity ; but if the parties did not object, a stranger 
 could not. 
 
 His Duties. 
 
 The receiver is not only a trustee of an express 
 trust, but he is a bailee for him, and as such he is bound 
 to that degree of diligence over the estate he represents 
 
402 HIS ATTORNEY. 
 
 as a careful bailee in such a case usually exercises. 
 Ordinary, not extraordinary, diligence is required of 
 him. But if he fails to use this ordinary diligence, he 
 is liable for any loss caused thereby. 
 
 It is his duty, without unnecessary delay, to serve 
 upon the judgment debtor and upon other parties 
 entitled thereto a copy of the order of receivership 
 and of the bond which he filed, with notice that both 
 have been filed as the law requires, and all other neces- 
 sary papers and notices. These papers may be served 
 upon the attorney of the party in the proceedings. 
 
 He should at once proceed to obtain possession c. 
 all the personal property of the judgment debtor to the 
 possession of which he is immediately entitled, whether 
 it is his bonds or the bonds of third parties, to collect 
 debts due, and reduce to his possession things in action 
 belonging to the judgment debtor. The judgment 
 debtor, or the party in whose possession money or other 
 articles of personal property are, or who owes a debt, 
 is not required to seek out the receiver in order to pay 
 or deliver to him the money or property with which he 
 has been invested. The receiver or his agent must call 
 on these persons for the property or money at their 
 residence or usual place of business. He must go or 
 send persons prepared to receive the personal property 
 and receipt therefor. 
 
 Under a creditor's bill, the master ascertained specifi- 
 cally, by taking examinations and proofs, what effects 
 the debtor had in his possession or under his control, 
 and then made his order designating such effects, and 
 directing the debtor to deliver them to the receiver. 
 He also appointed the time and place for the debtor to 
 attend and deliver the property to the receiver. If it 
 consisted of ponderous articles, the debtor was required 
 to attend and make delivery where they were situated. 
 The receiver was not permitted under a general direction 
 
THE RECEIVER. 403 
 
 to take possession of the debtor's property, to go and 
 seize such as he, acting on his own judgment, should 
 deem to fall within the scope of the order. His duty was 
 simply to attend at the time and place appointed, pre- 
 pared to receive and take into his keeping certain 
 specified property and effects. In case of household 
 furniture or other ponderous goods, he was to provide 
 himself with the requisite assistance to remove them to 
 a suitable depository. If the debtor refused to deliver 
 the property, the plaintiff in the suit applied for an 
 attachment ; and upon this motion the debtor, by way 
 of appeal from the master's order, was at liberty to show 
 that his direction for the delivery of all or any of the 
 chattels was erroneous. Dickerson v. Van Tine, Sandf. 
 724. These rules are not in all respects followed in sup- 
 plementary proceedings. Here the practice is more 
 direct ; and the receiver is the chief actor. After the com- 
 pletion of his appointment, he takes into his possession 
 or under his control the debtor's property wherever he 
 finds it within the State as his own by virtue of his 
 receivership ; and any party wrongfully hindering him, 
 after being duly informed of his character, is guilty of 
 contempt. But he has no more right to break into 
 dwellings or commit a breach of the peace to get pos- 
 session of the property than the sheriff has with an 
 execution. 
 
 When the order of receivership requires the judg- 
 ment debtor or other party having in his possession 
 money or other personal property of the former to pay 
 or deliver the same to the receiver, the latter must 
 himself make the demand therefor. McComb v. 
 Weaver, 11 Hun, 271, General Term. Also Tinkey v. 
 Langdon, 60 How., 180; Panton v. Zebley, 19 How., 
 
 394- 
 
 When the order does not require the judgment 
 debtor or other party to pay or deliver money or other 
 
404 HIS DUTIES. 
 
 personal property to the receiver or to his duly author- 
 ized agent, he need not regard any demand made there- 
 for upon him at the risk of contempt proceedings for 
 disobedience of the order. 
 
 It is always advisable, however, to insert in the order 
 of receivership a direction to the judgment debtor or 
 the party against whom the proceedings were instituted 
 in which the receiver was appointed, that he pay the 
 money or deliver the personal property to which the 
 receiver is entitled upon notice of the completion of' 
 his receivership and upon demand. Watson v. Fitz- 
 simmons, 5 Duer, 629. 
 
 This course will save time and labor. If no such 
 direction is contained in the order, then the receiver 
 cannot gain possession of such personal property, if the 
 judgment debtor or third party is not disposed to sur- 
 render it, unless he obtains an order requiring the 
 debtor or third party to deliver it to him immediately. 
 So also if there is any doubt as to the debtor's title or 
 right of possession he should apply for an order. 
 Although the receiver is subject to the control of the 
 court, § 2471 of the Code, yet a judge who could 
 entertain the proceedings in which he has been ap- 
 pointed may make this order. See § 2447 of the 
 present Code. Also Webber v. Hobble, 13 How., 382 ; 
 The People v. Mead, 29 Id., 360. The order is made 
 on notice, and it may be made without notice. § 2447. 
 
 The order should specifically designate the articles of 
 property which the party is required to pay or deliver 
 to the receiver ; not only must it be duly served upon 
 the party against whom it is made, but he must be 
 made fully acquainted with its effect, and a compliance 
 therewith must be explicitly demanded by the receiver 
 or a person who has the right to make such demand, in 
 order to bring the party in contempt for refusing ; 
 because proceedings as for contempt are stricti juris. 
 
THE RECEIVER. 405 
 
 McComb V. Weaver, 11 Hun, 271, General Term ; 160 
 How., 180 ; 19 Id., T^g/^., supra. A refusal to deliver up 
 the personal property in such case also makes the party- 
 guilty of a conversion. Livingston v. Stoessel, 3 Bosw., 
 19, Whittle General Practice, § 66. This demand 
 may be verbal ; but it is more prudent that it should be 
 in writing, where the order recites many articles, and a 
 copy delivered to the party required to obey it. 
 
 If a conveyance or assignment is necessary to enable 
 the receiver to acquire title and possession of prop- 
 erty, as when it is situated without the State, the 
 court which has jurisdiction of the judgment debtor 
 may compel him to make such conveyance or assign- 
 ment. The court has this inherent power. Chautauqua 
 Co. Bank v. Risley, 19 N. Y., 374. A court like the 
 City Court of New York, which has no general equity 
 jurisdiction, has this special power as a necessary in- 
 cident to these proceedings, which the Code of Civil 
 Procedure confers upon that court and the justices 
 thereof. 
 
 In Fenner v. Sanborn, 37 Barb., 610, and Sickels v. 
 Hanley, 4 Abb. N. C, 231, the Court at General Term 
 held that the judge also had this power. But see 
 Bunn V. Fonda, 2 Code R., 70. The following cases 
 deny this power to him. The People v. Hulburt, 5 
 How., 446 ; S. C, I Code R., N. S., 75, and 9 N. Y. Leg. 
 Obs., 245, Supreme Ct., General Term, in ordinary cases ; 
 Ten Broeck v. Sloo, 2 Abb., 234; S. C, it, How., 28, Su- 
 preme Ct. Ch. ; Ball v. Goodenough, 37 How., 479, 
 N. Y. Superior Ct., Special Term and obiter. In Tin- 
 key V. Langdon, 60 How., 180 (?), Supreme Ct., Special 
 Term, the justice doubted the existence of this authority, 
 saying: " There is a serious question whether the coun- 
 ty judge has any power to order the conveyance and de- 
 livery of the property by the debtor to the receiver. If 
 he may do so, this right and power must be found in 
 
406 HIS DUTIES. 
 
 some statute, as he is confined to the exercise of stat- 
 utory authority." 
 
 But as to property to which the receiver is not en- 
 titled to the immediate possession, as shown ante, § 4, of 
 this chapter, because of some dispute as to the title, or of 
 some claim thereto, or for any other reason, the proper 
 course is to obtain an injunction against him, restraining 
 him from making or suffering any transfer or other dispo- 
 sition of or interference with the property in question 
 until further direction in the premises. But no such 
 injunction may be issued against any person or corpo- 
 ration, although not a party to the proceeding in which 
 the receiver is appointed or his receivership extended. 
 § 245 X of the Code. And the court cannot protect a re- 
 ceiver by summary proceeding against a person not a 
 party to the action, who seizes property not in the re- 
 ceiver's or his agent's possession. See Albany City 
 Bank v. Schermerhorn, 9 Paige, 372. 
 
 If such injunction should not be deemed sufficient 
 protection, the court may on motion, and on giving 
 further security, if necessary, extend the receivership 
 over the property in litigation pending the action, and 
 order the same into the possession of the receiver. Ed- 
 wards on Receivers in Equity, p. 390. Robeson v. Ford, 
 3 Edw., 441. 
 
 This is like the ordinary application in equity suits 
 for a receiver to protect the property during the litiga- 
 tion. The People v. King, 9 How., 97, holds that if any 
 money or other article of property capable of delivery, 
 belonging to the debtor, is in the possession of a third 
 person who makes some claim thereto, the receiver 
 should obtain an order directing him to deposit it in 
 court to abide the event of the action. 
 
 But he is not obliged to bring an action for the pur- 
 pose of recovering such property or to remove the claim 
 or lien made against it, unless the judgment creditor in 
 
THE receiver's AGENTS. 407 
 
 whose behalf he was appointed shall make a written re- 
 quest that such action be brought ; and even then there 
 maybe good reason to justify him to refuse. See Gen- 
 eral Rule of Court 79. 
 
 Where the judgment debtor is plaintiff in a suit and 
 has an interest in the further prosecution thereof, the 
 receiver is entitled to be substituted in his place as 
 plaintiff ; and if the security which he gave is not suffi- 
 cient, it may be increased before the entry of the order 
 of substitution. The court may also, in its discretion, 
 direct that the order provide that the receiver shall 
 make no change of attorney of record for the plaintiff 
 without application to the court, showing satisfactory 
 cause therefor. Matter of Wilds, 6 Abb., N. C, 307 ; 
 but in re John Lansing, receiver, 17 iV. Y. W. Digest, 
 288, the Supreme Court, at General Term, held that 
 the receiver was not entitled to a substitution in such a 
 case as a matter of right, and that it rested in the sound 
 discretion of the court. 
 
 Agents- 
 He may appoint agents to assist him in the business 
 
 of his receivership. v.Umdsey,!'^ Vesey,g\. But 
 
 the agent must show his authority. See People v. King, 
 9 How., 97 ; 2 Barb. Ch. Prac, 272, which should be in 
 writing. Unless the order requires the party having 
 personal property of the judgment debtor to pay it or 
 deliver it to the receiver personally, he may authorize 
 an agent to demand and receive it. In such case the 
 agent must show his authority to the party against 
 whom the order is made, and deliver to him a copy 
 thereof, together with a copy of the order of receiver- 
 ship or order which requires him to deliver up the 
 property on demand, and show him the original, if he 
 seeks to base a proceeding as for contempt upon his 
 refusal. 
 
408 HIS PRIVILEGES. 
 
 Accounting. 
 
 The receiver must account to the court to which 
 he is subject and receive his discharge there whfen he 
 is entitled thereto. His duty is to appropriate the 
 property of the judgment debtor to the satisfaction of 
 the judgment under which he is appointed, and to 
 any other to which his receivership may be duly ex- 
 tended, and to restore the surplus, if any, to the judg- 
 ment debtor. Goddard v. Stiles, 90 N. V., 199. And 
 no order requiring him to pay other claims or judg- 
 ments would protect him upon an accounting called 
 for by the judgment debtor. Id. He is not compelled 
 to pay back moneys 
 
 His privileges. 
 
 The receiver cannot be sued without permission of 
 court. To do so is a contempt, and the proceedings 
 will be stayed. Taylor z;. Baldwin, 14. Add., 166; Riggs 
 V. Whitney, 15 Id., 388; De Groot v. Jay, 30 Barb., 
 
 483- 
 
 Where he is in the rightful possession of the debtor's 
 property it is contempt of court for a third person to 
 attempt to deprive him of that possession without the 
 permission of the court whose officer he is. Noe v. 
 Gibson, J Paige, 513; Parker v. Browning, 8 Id., 388. 
 The proper course for a person who claims such prop- 
 erty is to apply to the court by petition for an order 
 that the receiver pay or deliver the same to him. 
 Riggs V. Whitney, supra ; also Noe v. Gibson, 'supra. 
 This application is made on notice to the receiver. 
 Id. Nor can he be enjoined. The proper way to 
 restrain him when engaged in the discharge of his 
 oiificial trust is by applicatioa to the court for in- 
 structions, and not by making him a party to an 
 action, and obtaining an injunction against him. For 
 to restrain him is to restrain the court. Van Rens- 
 
SPECIAL RECEIVER. 409 
 
 selaer v. Emery, 9 How., 135. A creditor who obtains 
 a judgment against the debtor after the receiver's ap- 
 pointment cannot maintain an action against the former 
 to set aside a fraudulent mortgage ; for such judgment 
 is no Hen on the property, as it had then been vested 
 in the receiver. But where the judgment is a lien on 
 the debtor's property at the time of the receiver's ap- 
 pointment, the owner thereof may maintain such action, 
 and make the receiver a party defendant, although he 
 owns the judgment upon which the latter was appoint- 
 ed. Gere f. Dibble, 17 T/iJW., 31. In Ten Broeckz'. Sloo, 
 13 Id., 28 ; S. C, 2 Abb., 234, wherein the property con- 
 sisted of an annuity and an action pending for damages 
 arising on a breach of contract, the receiver was ordered 
 not to dispose in any manner of the annuity or claim in 
 suit without special leave of court obtained on notice 
 to all interested parties, and not to interfere with the 
 conduct of the action without leave similarly obtained ; 
 and the debtor was also enjoined from compromising 
 such claim without leave in like manner obtained. 
 
 The receiver must apply the efTects of the debtor 
 faithfully to the payment of the debts, according to 
 their legal or equitable priority. Porter v. Williams, 9 
 N. v., 142. 
 
 Special Receiver. 
 
 A special receiver is one who is appointed in proceed- 
 ings against a debtor or bailee of the judgment solely 
 to receive or take charge of personal property alleged 
 to belong to the latter or to be due to him. But within 
 that range he has the same power and owes the same 
 duties, and the preceding sections apply to him as fully 
 as to a general receiver. He is an officer of the court and 
 entitled to its instructions. Curtis v. Leavitt, i Abb., 
 274. 
 
4IO ACTION BY RECEIVER. 
 
 SECTION VIII. 
 
 Action by the Receiver. 
 
 The receiver may bring an action against any person 
 who has, in fraud of the rights of the creditors and 
 others represented by him, received, taken, or in any 
 manner interfered with the estate, property, or effects 
 of the judgment debtor, and may recover the same or 
 the value thereof, and all damages caused by such acts 
 to the trust estate. 
 
 Session Laws of 1858, ch. 314, §2; Underwood v. 
 Sutchffe, ji N. Y., 58, reversing S. C, 10 Htm, 453 ; 
 Bostwick V. Menck, 40 N. Y., 383 ; Henderson v. 
 Brooks, 3 N. Y. Supreme Ct. R. {T. & C), 448; 
 Britton v. Lorenz, 3 Daly, 23 ; Barclay v. The Quick- 
 silver Mining Co., 6 Lans., 25 ; Hamlin v. Wright, 23 
 Wis., i\i:)\. And in this last case the court say all the 
 fraudulent grantees of property holding by separate 
 deeds, and each one charged with fraud only in respect 
 to his particular purchase, may all be united in one 
 action. Barker v. Dayton, 28 Wis., 367 ; Fellows v. 
 Fellows, 4 Cowen, 682. 
 
 Before the passage of the above act, in 1858, it was 
 held that the receiver might sue to recover real or per- 
 sonal property transferred by the judgment debtor in 
 fraud of his creditors. Porter v. Williams, 9 N. Y., 
 142. 
 
 But the receiver can treat as void and as vacated 
 such transfers only so far as may be necessary to satis- 
 fy the judgments which he represents and the costs. He 
 has no right to interfere with a transfer of property be- 
 yond that ; and when such judgments and costs and 
 expenses are paid, the transfer is valid as to him as it 
 is to other persons, and his rights and powers to act 
 further on behalf of the creditors cease as to the prop- 
 
ACTION BY RECEIVER. 411 
 
 erty transferred by the debtor by virtue of the order of 
 receivership. Bostwick v. Menck, supra, reversing 
 S. C, as Bostwick v. Beizer, 10 Abb., 197. 
 
 The receiver may bring the action in any court which 
 he selects. Rockwell v. Merwin, 45 N. Y., 166, af- 
 firming S. C, I Sweeny, 484, and 8 Abb., N. S., 330. 
 He may continue an action in the name of the corpo- 
 ration which he represents. Albany City Ins. Co. v. 
 Van Vranken, 42 How., 281, Supreme Ct., Special 
 Term. But in such case he is chargeable with costs in 
 like manner as if he were made a party plaintiff. Co- 
 lumbian Ins. Co. 11. Stevens, 37 N. V., 536. He has 
 also been entitled to be substituted as plaintiff in an 
 action brought by the judgment debtor, where the lat- 
 ter has an interest in its further prosecution. Matter 
 of Wilds, 6 Abb., N. C, 307. But he is not entitled to 
 be substituted as plaintiff in an action brought by the 
 judgment debtor for a mere personal wrong, as for 
 assault and battery. Ten Broeck v. Sloo, 2 Abb., 234; 
 S. C, 13 How., 28, Special Term ; Davenport v. Lud- 
 low, 3 Code R., 66 ; S. C, 4 How., 337, Special Term ; 
 Hudson V. Plets, 11 Paige, 180. 
 
 An action to recover back usurious premiums paid 
 by the debtor may be brought in the receiver's own 
 name without joining with him the judgment debtor. 
 Palen v. Bushnell, 18 Abb., 301, Supreme Ct., Special 
 Term. But when he seeks to set aside a transfer of 
 property for fraud against creditors, the judgment debt- 
 or is a necessary party. Miller v. Hall, 70 N. Y., 250. 
 
 He may also bring an action against the judgment 
 debtor for conversion of personal property after it be- 
 capie vested in him. Gardner v. Smith, 29 Barb., 68. 
 
 In order to guard against a personal liability for 
 costs of the action, the receiver should obtain leave 
 from the court whose officer he is to bring the action. 
 If he neglects to do so, and judgment is recovered 
 
412 ACTION BY RECEIVER. 
 
 against him, he will not as a general rule be exempted 
 from personal liability for costs, as a restraint upon him 
 against bringing vexatious or useless suits, and charging 
 the estate with the costs. Smith v. Woodruff, 6 Abb., 
 65; Phelps V. Cole, 3 Code R., 157, both at Special 
 Term. General Rule 79 requires him to obtain leave, 
 and the omission to do so of itself would seem to be 
 sufficient to charge him personally with the costs of 
 the action. 
 
 See Rule 79 as to the application for and obtain- 
 ing of leave. See post, " Personally charged with 
 costs." 
 
 When he is authorized by the court to sue, he is gen- 
 erally bound to proceed with the action, and he should 
 not be restrained by an injunction issued out of an- 
 other court. The proper method of restraining him is 
 by application to the court whose officer he is for in- 
 structions. Winfield v. Bacon, 24 Barb., 154, Special 
 Term ; Van Rensselaer v. Emery, 9 How., 135, Ch. 
 
 Where he has made a demand for property as being 
 that of the judgment debtor, and the demand is suf- 
 ficient in other respects, the objection cannot be taken 
 at the trial that he did not exhibit the evidence of his 
 appointment, if the refusal to deliver was not based 
 upon that ground. Livingston z/. Stoessel, iBosw., 19, 
 General Term. 
 
 Where a third party claims an interest in the prop- 
 erty alleged to belong to, or denies the debt due the 
 judgment debtor, the court or judge in California may 
 by order authorize the judgment creditor to institute 
 an action. 
 
 Where there are grounds for claiming that the prop- 
 erty sought to be reached belongs to an estate of which 
 the judgment debtor is a personal representative, as 
 such he is entitled to be a party. Miller v. Hall, 70 
 N. v., 250. 
 
ACTION BY RECEIVER. 41 3 
 
 The receiver in an action by him need not prove that 
 the execution was issued to the county where the judg- 
 ment debtor resided or where he has an office, etc., as 
 prescribed in § 1872 of Code, because his appointment 
 presumes that the execution was issued to the proper 
 county. 
 
 It was held under the former Code of Procedure of 
 New York that where a person was appointed receiver 
 under § 298 of a judgment debtor in proceedings against 
 him, but the order of receivership has not been filed or 
 recorded in the office of the clerk of the county where 
 the real property of th^ judgment debtor sought to be 
 effected by the order is situated, that he did not in such 
 case become vested with the real property nor repre- 
 sent the judgment debtor in respect thereto, but he rep- 
 resented the judgment creditor, and has the rights and 
 powers of the latter in regard to the property of the 
 judgment debtor. Like the judgment creditor, he may 
 commence and prosecute a creditor's action, for the 
 purpose of removing a cloud upon the debtor's title, 
 so as to enable the sheriff under an execution at law to 
 levy upon and sell it and give a clear title thereto to 
 the purchaser ; but that the real property did not vest 
 in him, so that upon the removal of the cloud he could 
 sell it and vest valid title in the purchaser no more 
 than his judgment creditor could do. The sheriff 
 only could give a valid title by levy and sale thereof 
 under execution at law. Wright v. Nostrand, 94 
 N. v., 31, reversing S. C, 47 JV. V. Superior Ct., 
 441. 
 
 But upon a compliance with § 2468 of the Code of 
 Civil Procedure of New York, the property of the 
 judgment debtor vests in the receiver, without any fur- 
 ther order, and he may give a valid title thereto to a 
 purchaser after a removal of a cloud thereupon or any 
 defect by action. 
 
414 PLEADINGS — PRIVITY. 
 
 Pleadings. 
 
 The receiver's only allegation of his appointment was 
 that he was by an order of one of the justices of the 
 Supreme Court duly appointed receiver upon the appli- 
 cation of a judgment creditor of B. Held, that his ap- 
 pointment was sufficiently alleged in the complaint ; 
 that the use of the word " duly" gave him the right to 
 show on the trial all the facts conferring jurisdiction, 
 to make the appointment, citing § i6i of the former 
 Code (§ 532 of the present Code). Rockwell v. Merwin, 
 45 N. v., 166, affirming S. C, i Sweeny, 484, and 8 Abb., 
 N. S., 330 ; Scroggs v. Palmer, 66 Barb., 505. The ap- 
 peal in this case was dismissed, 55 A^. Y., 643. Also 
 Manley v. Rassiga, 13 Hun, 288, General Term, 2d 
 Judicial Department. 
 
 As to what allegations concerning the issue of an exe- 
 cution are unnecessary in the complaint, see Campbell 
 V. Foster, 35 iV. Y., 364. 
 
 Where the receiver is also appointed in other pro- 
 ce'tedings after he has commenced an action, he cannot 
 bring into it these subsequent claims or causes of ac- 
 tion by a supplemental complaint. He must institute 
 a separate action. Bostwick v. Menck, 40 N. Y, 387 ; 
 same title, 4 Dafy, 68, General Term, reversing S. C, 
 &A66.,N.S., 169. 
 
 Death or Removal of Receiver. 
 
 The death or removal of a receiver does not abate an 
 action or special proceeding. He is merely the agent 
 or representative of the court. His functions devolve 
 on the court, which may appoint a new receiver ex parte. 
 § "J^G of the present Code. Nicoll v. Boyd, 90 TV. Y., 
 516. 
 
 Privity of Estate. 
 
 Receivers successively, appointed of the same judg- 
 ment debtor, although at the instance of different judg- 
 
COSTS, WHEN PERSONALLY LIABLE. 415 
 
 ment creditors — one being appointed in the place of the 
 other — are privies in estate or law. They represent 
 the same estate, and each takes all the property of the 
 debtor, the one succeeding the other in title and possess 
 sion ; and an action by the former receiver is not an 
 action between different parties from the one brought 
 by the second receiver against the same defendants. 
 Verplanck v. Van Buren, •/& N. V., 247, distinguishing 
 the case of Bostwick z>. Menck, 40 N. Y., 383, in this, 
 that the latter refers to property in which the debtor 
 has no longer any interest, having transferred the same 
 in fraud, however, of his creditors. 
 
 Costs of Action. 
 
 A creditor is not liable for the costs of an action 
 brought by a receiver appointed in supplementary pro- 
 ceedings, even where he is solely interested in any re- 
 covery which may be had therein, unless such action 
 was commenced at his instance and was substantially 
 conducted under his direction — that is, when the action 
 has been virtually carried on by him, he is liable. Ward 
 V. Roy, 69 N. Y., 96. Also McHarg v. Donelly, 27 
 Barb., 100; Cutter v. Reilly, 31 //ow., 472, Supreme 
 Court, Special Term. 
 
 Receiver Personally Charged with Costs. 
 
 In Gumming v. Egerton, 9 Bosw., 684, the court said 
 that bringing an action against a third person without 
 funds in hand to pay contingent costs ought to be con- 
 clusive evidence against the receiver of bad faith within 
 the provisions of § 317 (of the former Code), when he is 
 unsuccessful in such action. But, in the absence of a 
 special order to that effect, a receiver is not personally 
 liable for costs of an action in which he is unsuccess- 
 ful. To make him so liable, a specific application must 
 be made for such order founded upon notice to him, so 
 that he may have an opportunity to repel the charge 
 
4l6 SECURITY FOR COSTS. 
 
 of mismanagement or the imputation of bad faith. 
 Slocum V. Barry, 38 N. Y., 46 ; Dodge v. Crandall, 30 
 N. Y., 294; Lindslay v. Deafendorf, 43 Now., 90; 
 Devendorf v. Dickinson, 21 How., 275, both at Supreme 
 Ct., Special Term; Woodruff v. Cook, 14 How., 481, 
 Supreme Ct., General Term. The above decisions were 
 in actions brought by executors and administrators, but 
 they are applicable to receivers also. 
 
 When the receiver has no funds in his hands to pay 
 costs if defeated in an action brought by him against a 
 third person, he ought to be required to file security 
 for costs, although he has obtained ex parte an order 
 allowing him to sue. Welch v. Bogert, 3 N. Y. W. 
 Digest, 402, Buffalo Superior Ct., Special Term. 
 
 Security for Costs. 
 
 § 3268 of the Code of Civil Procedure does not seem 
 to apply to a receiver, but § 3271 does. He is a trustee 
 of an express trust ; and the order requiringhim to file 
 security for costs is discretionary with the court. Welch 
 V. Bogert, 3 N. Y. W. Digest, 402, supra, 93 N. Y., 353. 
 
 General Rule 79 provides that unless the receiver, 
 when he applies for leave to bring an action, shall pre- 
 sent and file with his application the written request of 
 the creditor in whose behalf he was appointed that such 
 action be brought, or shall give the bond prescribed in 
 said rule, no leave shall be granted him. 
 
 Where the defendants had judgments against the 
 judgment debtors of whose property the plaintiff was 
 appointed receiver, with executions returned unsatis- 
 fied, he was ordered to give security. Smith v. Clarke, 
 I N. Y. M. L, Bull., 83, N. Y. Supreme Ct., Special 
 Term. 
 
 No Action by Receiver. 
 
 Where the sheriff has attached the property and debts 
 
NO ACTION. 417 
 
 of a judgment debtor, either he or the attaching cred- 
 itors are the proper persons to sue for and collect these 
 debts, and not the receiver appointed on a judgment 
 recovered by one of the attaching creditors. Andrews 
 V. The Glenville Woollen Co., 11 Abb., N. S., 78, 
 Supreme Ct., Special Term. 
 
 It was held by the Supreme Court, General Term, in 
 Fillmore v. Horton, 31 How., 424, that the receiver could 
 not maintain an action as for conversion against the 
 mortgagee of the judgment debtor's personal property 
 for taking and selling the same before his appointment. 
 The court based its decision on the ground that the re- 
 ceiver's legal title dates only from his appointment, 
 and does not relate back to a time anterior thereto, and 
 that the conversion, although it took place after the 
 supplementary proceedings had been instituted, was 
 not a conversion of the property as against the receiver 
 for which as such he could maintain an action. The 
 decision in this case was correct, but the reasoning is 
 very unsatisfactory. The facts were simply these : after 
 supplementary proceedings had been commenced, and 
 before the receiver was appointed, the mortgagee of the 
 debtor's chattels foreclosed his mortgage and had the 
 property sold, as he had a right to do. The receiver 
 then sued him for conversion of the property, and on the 
 trial his complaint was dismissed. The General Term 
 afifirmed the judgment. Now, under § 2469 of the 
 Code of Civil Procedure, the receiver's title does relate 
 back to the institution of proceedings, subject only to 
 intervening bona fide rights. 
 
 The N. Y. Common Pleas, General Term, held that a 
 judgment creditor could not maintain an action after 
 return of execution, to set aside a bill of sale of personal 
 property executed by the judgment debtor in fraud of 
 his creditors ; that he must first issue an execution so 
 as to obtain a specjfic lien upon it, and then, while that 
 
41 8 THE RECEIVER. 
 
 is in the sheriff's hands, a suit might be brought to 
 reach such property. 
 
 Briswell v. Linlcs, 9 N. Y. W. Digest, 249, citing 
 Cuyler v. Moreland, 6 Paige, 273. 
 
 This decision is hardly borne out by the case in 
 6 Paige, 273. But in no view of it is this decision of any 
 force in a receiver's action ; because a creditor's bill was 
 primarily filed to reach equitable assets and not leviable 
 property, while under the Code of Civil Procedure 
 every species of personal property is equally reachable 
 by supplementary proceedings ; and the receiver may 
 impeach a fraudulent transfer of personal property as 
 well as such a transfer of real property, whether 
 he is appointed before the execution has been returned 
 or after it is ret^irned unsatisfied. 
 
 A. conveyed real property to his wife without consid- 
 eration, and by his request thereafter she executed 
 mortgages upon the property to several of his creditors 
 for the amount of notes which they held against him. 
 They were bona fide creditors, and had no knowledge 
 of his insolvency or of the nature or intent of his con- 
 veyance to his wife. Held, in an action by the receiver 
 of A., that the conveyance was not fraudulent as to the 
 creditor ; it amounted to an assignment, with a prefer- 
 ence in favor of the creditor. Murphy v. Briggs, 
 II i\^. Y. W. Digest, 207, Supreme Ct., General Term. 
 
 A judgment creditor is not bound to prosecute his 
 supplementary proceeding to a receivership. After the 
 examination of the judgment debtor and third persons, 
 or either, he may drop or discontinue the proceedings, 
 and himself commence a creditor's action under art. 
 I, tit. 4, of ch. 15 (§ 1 87 1, etc.) of the Code of Civil 
 Procedure, to set aside a fraudulent transfer of property 
 or for any of the purposes mentioned in § 1871. See 
 Bennett v. McGuire, 5 Lans., 183 ; S. C, 58 Barb., 625, 
 General Term; Gere v. Dibble, 17 H.ow., 31. 
 
WHEN CANNOT RECOVER. 419 
 
 A receiver appointed in supplementary proceedings 
 cannot maintain an action under § 52 of the article of 
 the Revised Statutes of New York relating to Uses 
 and Trusts, to enforce a trust in favor of creditors ; 
 because the judgment debtor who pays the considera- 
 tion for the conveyance never had and never could 
 have any interest, legal or equitable, in the property. 
 The right conferred by this statute is not derived 
 through the judgment debtor. Underwood v. Sutcliffe, 
 
 77 ^- y-, 58. 
 
 An action will not lie by a receiver against a married 
 woman, to recover the value of her husband's services 
 (a judgment debtor), rendered in managing her separate 
 business, when no express agreement had been" made 
 or no understanding existed between theni as to salary. 
 That as between members of the same family the 
 law will not imply a promise to pay for services ren- 
 dered, or board and lodging furnished, but will assume 
 that they were rendered gratuitously unless an express 
 promise is shown or evidence given showing that there 
 was an expectation on both sides that they should be 
 paid for. Pettibone v. Drakeford, 21 N. Y. W. Digest, 
 96, Supreme Ct., General Term. 
 
 He cannot sue in a foreign jurisdiction for the prop- 
 erty of the judgment debtor. Booth v. Clark, 17 How. 
 
 [U S.),2,22. 
 
 These proceedings are only for the benefit of those 
 who institute them. When a receiver is appointed in 
 proceedings, and the judgment debtor pays the judg- 
 ment before he files security and brings an action, he 
 becomes functus officio, and cannot bring an action for 
 the benefit of other judgment creditors who have insti- 
 tuted no proceedings. Righton v. Pruden, 73 N. C, 61. 
 
420 LIENS. 
 
 CHAPTER VI. 
 
 LIENS, PRIORITIES, APPEALS, ETC. 
 
 Section i. Liens and priorities. 
 " 2. Appeals and reviews. 
 " 3. Irregularities, jurisdictional defects, etc. 
 " 4. Power of a judge in these proceedings. 
 " 5. Second proceedings. 
 
 SECTION I. 
 
 Liens and Priorities. 
 Liens. 
 
 By §2469 of the Code of Civil Procedure of New 
 York, the service of the order or warrant commencing 
 the proceedings creates a lien upon the personal prop- 
 erty of the judgment debtor and upon debts due him 
 which are sought to be reached, subject only to the in- 
 tervening rights of bona fide purchasers without notice 
 and for a valuable consideration, and to the payment of 
 a debt due the judgment debtor in good faith and 
 without notice. 
 
 If the proceeding is instituted against the judgment 
 debtor, this lien extends to all his personal property 
 and debts due him, wheresoever situated or in whose 
 hands soever the same may be, or who the debtor is. 
 
 If the proceeding is taken against his debtor or 
 bailee, the lien is limited to the debt due and the per- 
 sonal property in his hands belonging to the judgment 
 debtor. 
 
 The section (2469), however, in terms limits this lien 
 to the receiver who is subsequently appointed in the 
 
LIENS. 421 
 
 same proceedings, or whose receivership is extended 
 thereto. But Lynch v. Johnson, 48 N. V., 27, affirming 
 S. C, 46 Bard., 56, holds that by the institution of supple- 
 mentary proceedings, a lien upon the judgment debtor's 
 personal- property is obtained, which is rendered effect- 
 ual by the final order requiring him to pay or de- 
 liver up the property, or a third party to pay or de- 
 liver up the property, and a compliance therewith or 
 a liability to being compelled to do so is a defence to 
 an action. So in proceedings against a third party a 
 lien is acquired by the institution of proceedings against 
 him which is rendered effectual by the final order re- 
 quiring him to pay or deliver up the personal property, 
 and that a compliance therewith or a liability to being 
 compelled to do so is a defence to an action against 
 him by the judgment debtor or an assignee who is not 
 shown to be a dona fide purchaser for value. Lynch 
 V. Johnson, supra. So also Edmonston v. McLoud, 16 
 N. v., 545 ; Jeffres v. Cochrane, 47 Barb., 557. 
 
 Hence when it is not substantially disputed that the 
 purchaser had actual or constructive notice of the pro- 
 ceedings, and the judgment creditor pursues his pro- 
 ceedings with due diligence to their consummation or 
 to an order for the delivery of the debtor's personal 
 property to a receiver or sheriff under § 2447 of the 
 Code of Civil Procedure, the judge should be author- 
 ized to make the order prescribed in the last-named 
 section, and require such purchaser in direct proceedings 
 against him as bailee of the judgment debtor to deliver 
 immediately the property so obtained, if capable of de- 
 livery, to a receiver or sheriff, and enforce the same, al- 
 though he may have paid a valuable consideration 
 therefor; and the creditor should not be remitted to 
 the dilatory and expensive course of an action through 
 a receiver to make this lien effectual ; for in such case 
 the purchaser has in fact no title to the property, he 
 
422 LIENS. 
 
 cannot hold it as against the judgment creditor, for the 
 possession of notice, actual or constructive, vitiates his 
 ownership under this section (2469), and destroys his 
 right of possession thereto. 
 
 In a creditor's bill, the chancellor held that if a 
 stranger has notice that the title to any property is in 
 litigation, he takes xt pendente lite, although no subpoena 
 has yet been served. Hayden v. Bucklin, 9 Paige, 
 
 514-15- 
 
 Also Weed v. Smull, 3 Sandf. Ck., 273, the same was 
 held as to proceedings under the Non-imprisonment 
 Act. Hall V. Kellogg, 12 N. Y., 335 ; Spear v. Ward- 
 ell, I jV. v., 161. But if the transfer is dona fide with- 
 out notice, he ought to be protected. Lynch v. John- 
 son, 46 Barb., 56. 
 
 Where, however, there is a doubt, so that it becomes a 
 question of fact whether or not the purchaser had no- 
 tice, either actual or constructive, of the proceedings 
 when he bought personal property of the judgment 
 debtor, and the other conditions of the purchase are in 
 his favor, no such order of course could be made ; but 
 the receiver can only recover the property, if at all, by 
 an ordinary action against the purchaser. However, to 
 retain this lien, whether a purchaser intervenes or not, 
 the proceedings will have to be continued to a final 
 termination, and where it is necessary to appoint a re- 
 ceiver in the proceedings to bring an action against an 
 intervening purchaser, such appointment is essential to 
 retain the lien. If the proceedings are discontinued, 
 the lien acquired thereby is lost ; and it is not retained 
 or revived by the commencement of a creditor's action 
 on the part of the creditor himself. The receiver in 
 such case holds a vantage-ground over the judgment 
 creditor as proof. He need only prove the institution 
 of the proceedings and his subsequent appointment of 
 receiver therein in order to establish his right to recover 
 
ONUS UPON PURCHASER TO DEFEAT. 423 
 
 the property from the purchaser. The onus will then 
 be on the purchaser, not merely to show that the trans- 
 fer to him was in good faith and for a valuable con- 
 sideration, but that he had no notice of the proceedings, 
 either actual or constructive, when he purchased 
 the property from the judgment debtor ; while the 
 judgment creditor in his action would have to prove the 
 contrary of all this — to wit, fraud or want of good faith 
 in the purchase or want of valuable consideration, and 
 the fact of notice of the proceedings on the part of the 
 purchaser would be of little benefit to the plaintiff. 
 
 It is to be remarked that in any case where a debt- 
 or of the judgment debtor pays the debt due him after 
 the institution of proceedings, whether with notice 
 of such proceedings or not, the debt can only be re- 
 covered by a receiver appointed therein in an action 
 against such debtor ; for a judge has no power in any 
 event to order the debtor to pay a debt. The West 
 Side Bank v. Pugsley, 47 N. Y., 368 ; § 2447 of the 
 present Code. 
 
 The valid lien of a stranger on the judgment debtor's 
 property cannot be divested or affected in any way by 
 supplementary proceedings. He is therefore not en- 
 titled to notice or to be made a party. Corning v. The 
 Glenville Woollen Co., 14 Add., 339. But if upon his 
 application he is granted an opportunity to be heard, 
 on a motion to have property applied toward the 
 satisfaction of his lien or judgment, thus making him- 
 self virtually a party to the proceeding, he is bound by 
 the order the same as if the proceeding had been in- 
 stituted against him. Jay v. De Groot, 2 Hun, 205, 
 General Term, ist Jud. Department. See Schrauth 
 V. The Dry Dock Savings Bank, 86 JV. ¥., 390. 
 
 In Ohio the Supreme Court has decided that the 
 service of the order upon a third party has the effect of a 
 lis pendens, and the third party thereafter cannot dis- 
 
424 LIENS. 
 
 charge himself by paying the debt due the judgment 
 debtor. The Union Bank of Rochester v. The Union 
 Bank of Sandusky, 6 Ohio St., 254. The same doc- 
 trine held in Indiana. Cooke v. Ross, 22 Ind., 157; 
 Graydon v. Barlow, 15 Ind., 197; Butler z/. Jaffray, 12 
 Ind., 504; Hoadley v. Caywood, 40 Ind., 239. 
 
 An assignment, for the benefit of creditors pending 
 supplementary proceedings was held to be inoperative 
 in New Jersey, as against the lien of the creditor. 
 Journeay z/. Brown, 26 N. J. L. R., in ; Coleman v. 
 Roff, 45 N. J. L. R., 7. 
 
 In New Jersey it has also been held that service of 
 an order for discovery may be made beyond the juris- 
 diction of the court in which the judgment is recovered, 
 and even out of the state. Seyfert v. Edison, 47 A^. /. 
 Law. R., 428. 
 
 It is doubtful if such a service out of the state would 
 give any lien on the property of the judgment debtor 
 which was then situated outside of the state. 
 
 The lien upon equitable assets of a judgment debtor 
 acquired by the commencement of a creditor's action 
 survives the death of the debtor and attaches to the as- 
 sets in the hands of his executor or administrator. 
 Brown v. Nichols, 42 N. Y., 26 ; S. C, 9 Abb. 
 {N.S), I. 
 
 From the similarity which exists between a cred- 
 itor's suit and these special proceedings, it is safe to 
 say that this decision is authority here ; and that the 
 lien acquired by these proceedings in the lifetime of 
 the judgment debtor attaches not only to the equi- 
 table assets, but to other leviable personal property of 
 the debtor in the hands of his personal representative. 
 See Hazewell v. Penman, 13 How., 114; S. C, 2 Abb., 
 230. 
 
 Where proceedings supplementary to execution in 
 the Supreme Court, with the service of an order pro- 
 
NOT PROCEEDINGS ALONE. 425 
 
 viding that the "judgment, injunction, etc., stand as 
 security," but the judgment debtor thereafter dies be- 
 fore a receiver can be appointed or an order made un- 
 der § 2447 : Held, the judgment creditor cannot ef- 
 fectuate his lien or priority on decedent's assets in the 
 surrogate's court, but he must seek relief in the Su- 
 preme Court ; that his proceedings then are a lien on 
 the decedent's assets which will be retained there till 
 the lien is satisfied, and then come to the surrogate's 
 court. Estate of Stewart, 8 N. V. Civ. Pro. R., 354. 
 
 After order and injunction had been served upon a 
 judgment debtor, he handed his watch, not exempt 
 from execution, to his attorney in payment of services 
 to be rendered : Held, the creditor's lien on the watch 
 was prior to that of the attorney, and that he was just- 
 ly punished for violating the injunction. The Deposit 
 Nat. Bank v. Wickham, 44 How., 421, Supreme Court, 
 General Term, 2d Judicial Department. 
 
 But the commencement of proceedings against the 
 judgment debtor alone does not create a lien upon 
 property which he had then transferred, although in 
 fraud of his creditors. Field v. Sands, 8 Bosw., 685, 
 General Term ; Conger v. Sands, 19 How., 8, Sp. T. 
 § 2469 of the Code does not touch such a case ; and 
 otherwise, the law is that as to property fraudulently 
 transferred before the commencement of proceedings 
 against the judgment debtor, the receiver acquires only 
 the right of bringing an action to test the legality of 
 such transfer and of having the same set aside if il- 
 legal or fraudulent. See Conger v. Sands, 19 How., 8 ; 
 Field V. Sands, supra. Hence the only way to prevent 
 the transferee from selling or disposing of the property 
 in such case during the pendency of the litigation is 
 to enjoin him or have it placed in the custody of a re- 
 ceiver appointed in the action, if it is personal prop- 
 erty, or filing notice of lis pendens, if it is real estate. 
 
426 LIENS. 
 
 On the other hand, the lien of an execution upon 
 personal property subject to levy is not preserved or 
 revived by the institution of supplementary proceedings 
 after the return of the execution ; and any such prop- 
 erty which the judgment debtor owned and possessed, 
 but which he assigned to another while the execution 
 was in the sheriff's hands, cannot be ordered upon the 
 judgment. The lien of the execution is lost by the 
 return thereof without a levy and sale, and the assign- 
 ment gave the assignee a claim thereto superior to that 
 of the proceedings. Watrous v. Lathrop, 4 Sandf., 700. 
 
 When an attorney takes an assignment of the whole 
 judgment from the judgment creditor, his attorney's 
 lien is merged in his assignment. Bishop v. Garcia, 14 
 Abb. {N. S.), 6g, N. Y. Superior Court, Special Term. 
 One who obtains money in the keeping of the court 
 by collusion or fraudulent concealment of facts, ac- 
 quires no legal title to it, and the person entitled 
 thereto has his remedy against him. Keiley v. Dusen- 
 bury, 10 J. &• Sp. (42 N. Y. Superior Court R.), 238. 
 
 The title to the personal property of a judgment 
 debtor residing in another county than that in which 
 the judgment roll in the action is filed, is not vested in 
 a receiver in supplementary proceedings until the or- 
 der appointing him has been filed in the ofifice of the 
 clerk of the county where the judgment roll is filed, 
 and a copy of the order, certified by that clerk, is filed 
 with the clerk of the county where the judgment debtor 
 resides. 
 
 And until then the receiver is not entitled to an or- 
 der requiring the judgment debtor to deliver his per- 
 sonal property to him. Staats i'. Wemple, 2 How. 
 Pr. {N. .S.), 161. 
 
 The court or judge cannot order a judgment debtor 
 to pay money where he is a resident of another state, 
 and the money was then in that state. It seems the 
 
PRIORITY AMONG CREDITORS. 427 
 
 most the court had power to do was to require the 
 debtor to transfer his title to the money to a receiver. 
 Buchanan v. Hunt, 98 N. Y., 560, reversing 33 Hun, 
 329. See Adams v. Hackett, 7 Cal., 187. 
 
 A court having power to and which appoints a re- 
 ceiver of the assets of an insolvent corporation may, in 
 aid of that appointment, forbid any after interference, 
 by way of levy and seizure by attachment or execu- 
 tion, with the property in his possession. Woerishoffer 
 V. North River Construction Co., 99 N. Y., 398. 
 
 The Lien of an Order under § 2441. 
 
 Where property is ordered to be delivered to the 
 creditor, toward the satisfaction of the judgment, there 
 is no lien upon it until it is in the creditor's possession, 
 or under his control, unless there is actual notice ; for 
 nothing is on record to give a constructive notice of 
 the order, nor any law making the filing of such order 
 a notice. It is like an execution delivered to the sher- 
 iff, which will not divest the title of an innocent pur- 
 chaser, acquired before actual levy. 2 R. S., p. 366, 
 § 17. See also Gibson v. Haggerty, 15 Abb., 406 ; S. C, 
 23 How., 260. 
 
 SECTION II. 
 
 Priority among Creditors. 
 
 It was a rule in chancery, that the judgment creditor 
 who first commenced his suit against the debtor was en- 
 titled to be paid first. But if he abandoned the pursuit 
 or lingered by the way before he obtained a specific 
 lien, and permitted another creditor to outstrip him in 
 the race of legal diligence, he lost that priority. 
 Edmeston v. Lyde, i Paige, 637 ; Myrick v. Selden, 
 
428 PRIORITY. 
 
 2,6 Barb., 15. This rule governs in proceedings under the 
 Non-imprisonment Act {ante, p. 74). It also prevails in 
 these proceedings ; so that he who first institutes this 
 remedy has a preference over others who commence 
 subsequently. But to retain this priority, the creditor 
 must not linger on the way, or quietly fold his arms 
 and take no further steps, but allow a second order to 
 be obtained, an examination had, and a receiver ap- 
 pointed over his head. He must press his proceedings 
 with due diligence to their consummation in an order 
 under §2441, or a receivership, or both. Voorhees v. 
 Seymour, 26 Barb., 569, and Myrick v. Selden, supra ; 
 Fessenden v. Woods, 3 Bosw., 550; Edmonston v. 
 McLoud, 16 A^. K, 545; Hall v. Kellogg, 12 N. Y., 
 332, 335 ; Banks v. Potter, 21 How., 469. This last 
 case is not in conflict with this rule, when it holds 
 that the distribution of the debtor's assets among the 
 creditors shall be in the order of time that the receiver 
 was appointed in the several proceedings. The ques- 
 tion as to whether preferences shall be determined by 
 the dates when the respective proceedings were taken 
 was not raised ; and it seems from the case that the 
 latter date's corresponded with the former. It is also 
 evident from the context, that the judge assented to 
 this rule. He states that the creditor, by commencing 
 proceedings, acquires an inchoate lien ; which can only 
 be so, if he is permitted to retain his preference over a 
 creditor who begins subsequently, though by the favor 
 of the debtor obtains the first appointment of the 
 receiver. If this were not the rule, the debtor could 
 in nearly all cases defeat the creditor by procuring 
 a friendly creditor to take proceedings, and have a 
 receiver appointed on the spot. However, Myrick v. 
 Selden holds that this appointment settles nothing as 
 to priority. See also Edwards on Receivers in Equity, 
 p. 12. 
 
HOW DETERMINED. 429 
 
 How Determined. 
 
 Priority is summarily determined by the court on 
 motion. It is improper to bring an action to deter- 
 mine it. Myrick v. Selden, 36 Barb., 15. 
 
 The Commencement 
 
 Of proceedings (for the purpose of determining this 
 priority) would be the actual service of the order on 
 the debtor. A bona fide attempt to do so, in analogy 
 to the filing of the creditor's bill, and the proceedings 
 in the Non-imprisonment Act may, perhaps, be suffi- 
 cient ; though in the creditor's bill, by an attempted 
 service was meant leaving the subpoena at the dwelling 
 of the defendant. It is then as among creditors insti- 
 tuting these proceedings, and as against the debtor, 
 that the receiver's title relates back to the date of com- 
 mencement, and holds the debtor's property for the 
 payment of the several creditors, according to their 
 priority. Kellogg v. Coller, 47 Wis., 649. 
 
 Priority between Supplementary Creditors and Plaintiffs in 
 Creditor's Actions. 
 
 The Supreme Court, in Myrick v. Selden, supra, ap- 
 plied this rule of priority between a judgment creditor 
 who sought to reach the debtor's property by means of 
 an equitable action, and a creditor who pursued this 
 remedy. But' as between these, the rule can prevail 
 only in respect to property which belongs to the debtor 
 at the time the receiver is appointed. As to property 
 which he had alienated at that time, priority belongs to 
 him, whether a judgment creditor or a receiver, who 
 first institutes an action to set aside the alienation for 
 fraud or illegality. For, as was stated before (p. 150), 
 the receiver, by his appointment, acquires merely the 
 capacity and rights of a judgment creditor in respect to 
 alienated property. 
 
430 PRIORITY. 
 
 Thus a judgment creditor institutes supplementary- 
 proceedings to reach his debtor's property and effects 
 by order under §2441, and for a receiver to impeach by 
 action the fraudulent transfers of property made by the 
 latter. Another judgment creditor, after return of ex- 
 ecution, commences an action to reach the same prop- 
 erty by a decree, and for judgment setting aside the 
 fraudulent transfer, and applying the property to the 
 satisfaction of his claim. This action, let us say, is 
 commenced after the proceedings are taken. Now, the 
 equities of these two creditors stand thus, neither party 
 being guilty of laches: the supplementary creditor has 
 the preference to all the debtor's property which be- 
 longed to him at the time the proceedings were com- 
 menced and continues to be his at the time the order is 
 made under §2441, or the receiver appointed, while the 
 other creditor has the preference to all the property, 
 the transfer of which he seeks to set aside by his action 
 on the ground of fraud, provided he commenced his 
 suit before the receiver did his for the same purpose. 
 
 The creditor who secures actual service of the order 
 instituting proceedings, upon the judgment debtor or 
 the third party, has the preference, and is entitled to be 
 first paid, although another creditor may have obtained 
 an order or injunction before him. Bevans v. Pierce, 
 I City Court R., 259, General Term. 
 
 That it is actual service of the supplementary order 
 which determines the priority as between creditors. 
 
 When assets come into the receiver's hands from 
 property whose fraudulent transfer he has set aside by 
 action, he must still distribute them among the cred- 
 itors whom he represents, according to their respective 
 priorities before stated. Creditors who come in under 
 the receivership after the receiver has commenced his 
 action to set aside a fraudulent transfer of property, 
 may be entitled to share in the assets according to their 
 
IN REAL PROPERTY. 43 1 
 
 priority, if, when such action was brought, they could 
 themselves have instituted similar suits. See Parmelee 
 V. Egan, J Paige, 610; Mattison v. Demarest, 19 Abb., 
 356; Phillips V. O'Connor, i City Court R., 372; 
 Estate of Stewart, 8 N. Y. Civ. Pro. R., 354. 
 
 Priority the Reward of Diligence. 
 
 Priority is not the result of a lien created by these 
 proceedings, but the reward of diligence. Equity favors 
 the vigilant. Edmeston v. Lyde, i Paige, 637. 
 
 Priority in Real Property. 
 
 This would seem to follow the rule as above stated, 
 without regard to the dates of the respective judgment 
 liens. For where a creditor, instead of availing him- 
 self of the legal remedy by enforcing such lien through 
 a sale on execution, resorts to the equitable remedy of 
 a receivership, he abandons the lien of his judgment, 
 and seeks satisfaction of his debt out of the debtor's 
 property generally, and subjects himself to the rules of 
 priority, which govern in these proceedings. Such, at 
 least, seems to be the consequence of the principle 
 laid down in the Court of Appeals (Chautauqua Co. 
 Bank v. Risley, 19 N. ¥., 369), where it was held that 
 when a fraudulent conveyance is set aside, a receiver 
 appointed, and the defendant conveys the property to 
 him by order of the court, the receiver's title " rests 
 upon the debtor's own conveyance made under the di- 
 rection of the court, and. has no relation to the judg- 
 ment" which formed the basis of the equitable action. 
 " When the creditor takes this course, instead of falling 
 back upon his legal remedy, he abandons the lien of 
 his judgment, and seeks a satisfaction of his debt out 
 of the debtor's property generally." 
 
 The court further held in this case, that the title de- 
 rived from the receiver " must in the absence of actual 
 
432 PRIORITY. 
 
 or constructive notice of the suit, be a title subject to 
 all liens existing at the time of that conveyance (to the 
 receiver) in favor of persons who are in no way con- 
 nected with the proceedings ; and in no case can such 
 title relate to any period of time anterior to the filing 
 of the bill, so as to affect the legal rights of persons 
 who do not voluntarily waive them by uniting in that 
 remedy." This rule evidently applies to the title of 
 the receiver appointed in supplementary proceedings. 
 § 2468 of the Code of Civil Procedure vests the 
 title of the debtor's real property in the receiver as ef- 
 fectually as an actual conveyance could do ; and the 
 latter, therefore, takes such property subject to all liens 
 existing at the time the order of his appointment is 
 filed and recorded, as that section now requires. The 
 court, in the case above cited, thought that actual no- 
 tice of the suit, or a lis pendens filed with the bill, 
 might, perhaps, subject all subsequent liens to the su- 
 perior rights of the receiver and his grantee. There is 
 no lis pendens in these proceedings, as we have seen ; 
 and as to actual notice, see above under " Liens." In 
 other words, these equitable proceedings make no dis- 
 tinction between real and personal property. The re- 
 ceiver's title to the debtor's realty can no more relate 
 to a time anterior to the appointment than his title to 
 the personalty can. Persons may in good faith acquire 
 interests in the one kind of property precisely as in the 
 other during the progress of the supplementary pro- 
 ceedings, superior to that of the receiver and the cred- 
 itor whom he represents. Hence, if any liens obtain 
 subsequent to the date of the judgment on which the 
 proceedings are based, it is best not to appoint a re- 
 ceiver of real property, but to sell it on execution. 
 This is the better course, even where there is a fraudu- 
 lent or illegal conveyance of the property. For, 
 though the receiver may have such conveyance set 
 
ACCORDING TO DATE. 433 
 
 aside, and may dispose of the property, yet his title 
 does not relate back of his appointment, and his grantee 
 will still take such property subject to all liens ac- 
 quired in good faith prior to the appointment. Judg- 
 ments are equitable liens on the debtor's real property, 
 which he has fraudulently disposed of ; and the pur- 
 chaser of the property on execution sale has the cred-' 
 itor's right to impeach the debtor's conveyance for 
 fraud ; and if it is set aside, his title relates back to the 
 judgment on which the sale was made. 
 
 Priorities generally attend upon liens, preferring them 
 in the order of their respective dates ; but sometimes 
 they are the mere outcome of the power which a court 
 of equity has in marshalling and distributing assets. 
 
 Before the present statute on supplementary pro- 
 ceedings went into effect, the courts distinguished be- 
 tween the general lien of these proceedings and the 
 specific liens which other remedies gave, and held that 
 the latter had^ priority over the former. So that if, for 
 instance, between the institution of proceedings and 
 the appointment of a receiver therein, another creditor 
 issued execution and had the same levied on personal 
 property of the debtor subject to levy, he acquired a 
 priority in such property, notwithstanding the other 
 judgment creditor diligently pursued his proceedings to 
 a receivership. 
 
 Becker v. Torrance, 31 N. Y., 631. 
 
 Van Alstyne v. Cook, 25 JV. Y., 489. 
 
 Voorhees v. Seymour, 26 Barb., 569. 
 
 It was further held, in the first of these cases, that a 
 judgment debtor acquired no right by these proceed- 
 ings as against other creditors pursuing different rem- 
 edies, until a receiver was appointed. This rule, based 
 upon the distinction between general and specific liens, 
 acquired in the pursuit of different judicial remedies, 
 is not abrogated by the Code of Civil Procedure ; 
 
434 PRIORITY. 
 
 for such pursuit is but a race between creditors equally 
 entitled to be paid out of their debtor's property. The 
 court in Becker v. Torrance, supra, hardly meant that a 
 judgment creditor in supplementary proceedings would 
 lose his priority if another creditor subsequently took 
 and pursued a different remedy, like a creditor's ac- 
 tion, which at most could only give him a general lien 
 upon equitable assets, before the appointment of a re- 
 ceiver. 
 
 The rules of priority between creditors seeking pay- 
 ment of their respective judgments out of the property 
 of a common debtor, through remedies which create a 
 general lien only, appear to be as follows : 
 
 As between creditors instituting these proceedings 
 against the debtor, he who commences first and pur- 
 sues his remedy to a final determination without un- 
 reasonable delay, acquires a priority in the debtor's 
 personal property over another creditor who begins his 
 proceeding subsequently, although the latter may first 
 obtain an examination or an order of the judge for the 
 application of property toward the payment of a judg- 
 ment or the appointment of a receiver. The creditor 
 first in the field is entitled to be first paid. This is so 
 not only upon the well-known maxim, " First in time, 
 strongest in right," but it results necessarily from the 
 lien which the regular commencement of a proceeding 
 of this kind gives the creditor. 
 
 If after the institution of proceedings the judgment 
 debtor tra!nsfers personal property of his or receives 
 payment of a debt due him in fraud of his creditor in 
 the proceedings, this priority is not affected thereby ; 
 but the receiver, on recovering the property or the debt 
 in an action, is bound to distribute the same or the 
 proceeds among the creditors whom he represents, ac- 
 cording to the same rule of priority. But this priority 
 is limited by the nature of the remedy. A proceeding 
 
NOTWITHSTANDING FRAUDULENT TRANSFER. 435 
 
 against a third person as debtor or bailee of the judg- 
 ment debtor will give the creditor a preference only in 
 the debt or personal property which he seeks to reach, 
 and not in the personal property of the judgment debtor 
 generally. 
 
 Where the debtor transferred personal property of 
 his in fraud of his creditors before any proceedings are 
 taken against him, so that the legal title is then no 
 longer in him, and no lien can be acquired in it, the re- 
 ceiver will nevertheless be required to distribute the 
 proceeds of such property according to the above rule 
 of priority, should he succeed in recovering it from the 
 fraudulent transferee, upon the maxim of " first in time, 
 strongest in right," which equity observes in the distri- 
 bution of assets among creditors. The same rule ob- 
 tains as to real property. Supplementary proceedings 
 create no lien on real estate before the appointment of 
 a receiver, according to §§ 2464-2468 of Code. If a re- 
 ceiver is appointed and the judgment debtor's real 
 property is vested in him, or he successfully prosecutes 
 an action against a fraudulent grantee of the debtor's 
 realty and obtains a decree setting the conveyance 
 aside, every creditor who comes in under the receiver- 
 ship abandons the lien of his judgment, and must ac- 
 cept payment out of the proceeds of the property ac- 
 cording to the priority of his proceedings, the same as 
 if it were personalty. The real estate in such case is 
 sold and the purchaser acquires title thereto, free from 
 the lien of the judgment. Chautauqua Co. Bank v. 
 Risley, 19 N. Y., 369. Where the creditors pursue dif- 
 ferent remedies, some adopting supplementary proceed- 
 ings and others a judgment creditor's action, the rule of 
 priority is somewhat changed. 
 
 It is quite clear that under the Code of Civil Pro- 
 cedure, which assimilates these proceedings more to the 
 old creditor's bill and the modern creditor's action than 
 
436 PRIORITY. 
 
 the former Code did, and besides endows them with 
 powers which the others do not possess, supplementary 
 proceedings and a creditor's action stand on an equal 
 footing as to priority in some cases, while in others they 
 do not ; for the Code intends these proceedings in con- 
 nection with the appointment of a receiver and an ac- 
 tion by him, if necessary to effectuate the proper re- 
 lief, as a continuous remedy, and that the advantage 
 which the creditor gains by instituting his proceeding 
 shall be secured to him until the final termination of 
 the controversy and the distribution of the debtor's 
 assets. The scheme, including examinations, orders of 
 the judge applying personal property upon judgments, 
 the appointment of a receiver and an action by him to 
 clear away claims made upon property, is a complete 
 substitute for the creditor's suit. As to the equitable 
 assets of the judgment debtor, the creditor's action and 
 supplementary proceedings stand on an equal footing 
 in regard to priority. The creditor who first com- 
 mences his action or proceeding against the judgment 
 debtor obtains a preference in the equitable assets 
 over another who subsequently institutes a like action 
 or proceeding. But as the institution of the judgment 
 creditor's action does not create a lien upon the debt- 
 or's leviable personal property, while that of supple- 
 mentary proceedings does, it seems evident that no 
 priority by a creditor's action in such property can be 
 gained as against a creditor pursuing the other remedy, 
 although subsequently instituted. 
 
 Held, that as to equitable property, the judgment 
 creditor who first instituted his proceeding by obtaining 
 the order and serving it on judgment debtor has the 
 first claim therein, although a receiver may be first 
 appointed in proceedings subsequently instituted ; but 
 that as to the leviable personal property, priority goes 
 according to the date of the appointment of the re- 
 
NOTWITHSTANDING FRAUDULENT TRANSFER. 437 
 
 ceiver. Sherman v. Fowler, Daily Reg., May 25, 1881, 
 Marine Court, Special Term, jAMES, J. 
 
 This principle is not changed by the fact that, after 
 the creditor's action and the proceedings are commenced, 
 the debtor fraudulently transfers his personal property 
 or receives payment of a debt due to him. If such 
 transfer or payment is held void in an action, priority 
 attaches as if no such transfer or payment had been 
 made. 
 
 As to personal property which the judgment debtor 
 had fraudulently transferred at the time of the com- 
 mencement of the creditor's action and the supplement- 
 ary proceedings, so that the legal title thereto is then 
 no longer in him, it is not entirely clear what the rule 
 of priority is as between creditors pursuing these dif- 
 ferent remedies. In Field v. Sands, 8 Bosw., 685, the 
 General Term held that the institution of supplement- 
 ary proceeding did not create a lien or right upon such 
 property, because, the court says, the fraudulent trans- 
 feree is not a party to the proceeding. This decision 
 was made under the former Code, when no receiver 
 could be appointed in a proceeding against a third per- 
 son. But now a receiver may be appointed in such a 
 proceeding; and if this remedy, including the receiver- 
 ship and the action by the receiver to set aside the 
 fraudulent transfer, is one continuous proceeding, as 
 seems clearly to be the intention of the statute, then 
 when this proceeding is taken against a fraudulent 
 transferee of the debtor and in the regular course there- 
 of a receiver is appointed, who, through an action, has 
 the fraudulent transfer set aside and the property de- 
 livered to him for the purposes of the receivership, no 
 valid reason can be given why the priority of right to 
 such property between the creditors should not be de- 
 termined according to the dates of commencing their sup- 
 plementary proceedings and judgment creditor's actions, 
 
438 PRIORITY. 
 
 placing in this respect the creditors who pursue these dif- 
 ferent remedies on an equal footing. The same rule of 
 priority ought to apply where a receiver, appointed in 
 proceedings under § 2464 of Code, or in a creditor's ac- 
 tion under § 1877 of Code, converts the judgment debt- 
 or's real property into a fund for the benefit of creditors, 
 or by action against his fraudulent grantee has the con- 
 veyance to the latter set aside and the real property so 
 fraudulently transferred turned into a fund for the like 
 purpose ; because in both these cases the legal status is 
 the same. Neither a supplementary proceeding nor a 
 judgment creditor's action creates a lien on personal or 
 real property which the judgment debtor had transferred 
 at the commencement of the action or proceeding ; nor 
 does either create a lien upon the real property of the 
 debtor ; and every creditor who comes in under the re- 
 ceivership abandons his judgment lien upon the real 
 estate ; and the fund in legal effect is the same as to 
 him as if it had come from personal property. 
 
 The simplicity and superiority of supplementary pro- 
 ceedings as compared with a judgment creditor s action 
 are quite apparent. The judgment creditor institutes 
 his proceedings, and in this summary manner obtains 
 a discovery of his debtor's property. If it is such that 
 it may be applied upon the judgment by an order un- 
 der § 2447 of the Code, he is entitled to the order, and 
 his lien reaches back to the time when he commenced 
 his proceeding, subject only to bona fide intervening 
 rights. If the order cannot reach the property, then 
 he gets a receiver who may reach it through an action 
 against the claimant, while the injunction and the 
 priority of his proceeding continue in force. 
 
 An action to set aside a chattel mortgage, not prop- 
 erly filed, may be maintained by a receiver of the prop- 
 erty of the mortgageor appointed in proceedings sup- 
 plementary to execution against him under Code of 
 
WHEN IT DATES. 439 
 
 Civil Procedure, ch. 17, tit. 12, art. 2, notwithstanding 
 the mortgage was duly filed before the appointment of 
 the receiver, if it was not so filed before the service 
 upon the mortgageor of the order requiring him to ap- 
 pear and be examined as a judgment debtor in the pro- 
 ceeding in which the receiver was appointed, and even 
 though the mortgage was executed and delivered be- 
 fore the enactment of the provisions of the Code re- 
 ferred to, by which the title of such a receiver is made 
 to relate back to the time of the service of such order. 
 Clark 2'. Gilbert, 10 Daly, 316, N. Y. Common Pleas. 
 
 In a judgment creditor's action as now authorized by 
 §§ 1871 to 1879 inclusive of the Code of Civil Pro- 
 cedure, provision is made for the examination of the 
 judgment debtor, but the property discovered can only 
 be applied upon the plaintiff's debt by the final judg- 
 ment in the action. 
 
 Property levied upon was ordered to be sold in bulk, 
 under the executions, and the proceeds brought into 
 court to await further orders; the sale to be subject to 
 the approval of the court. This was done, but the prop- 
 erty was not delivered, nor a bill of sale given imme- 
 diately. The purchaser gave a bond to pay the purchase 
 money into court, or to such person as the court might 
 direct. Before the property or a bill of sale thereof was 
 delivered to the purchaser or the bond given, another 
 execution was issued to the same sheriff. Thereafter, 
 a receiver of the judgment debtor was appointed, who 
 qualified and then demanded that this surplus of the 
 purchase money should be paid to him, rather than 
 upon the last-named execution. Held, he was not en- 
 titled to it as against said execution creditor. The 
 First National Bank of Whitehall v. The White- 
 hall Transportation Co., 18 Hun, 161, General Term, 
 3d Jud. Department. 
 
 As between an assignee in bankruptcy and a receiver 
 
440 APPEALS. 
 
 in supplementary proceedings, the same rule of priority 
 holds. Where the debtors filed their petition in a 
 court of banl<ruptcy before the creditor recovered judg- 
 ment against them, held that the assignee had priority 
 over the receiver appointed in proceedings on the judg- 
 ment, although he was appointed after the receiver ; 
 because, by the United States Bankruptcy Act, the as- 
 signee's appointment related back to the commence- 
 ment of the bankrupt proceeding. Morris v. First Na- 
 tional Bank of N. Y., 68 N. Y., 362. 
 
 The liens and priorities above mentioned may be lost 
 by laches. The judgment creditor, whatever remedy 
 he adopts, must pursue it with due diligence, or another 
 more alert in the race will outstrip him. 
 
 Through superior diligence a prior creditor loitering 
 by the way and failing to make his equitable lien ef- 
 fectual by an equitable action, he is postponed to the 
 claim of another, who brings his equitable action first. 
 Bridgman v. McKissick, 15 Iowa, 260. 
 
 So the receiver may lose his right by laches, like a 
 plaintiff in an execution against property may lose his, 
 by allowing it to become dormant. 
 
 When a judgment is rendered in favor of several dis- 
 tributors in final settlement of an estate, and only 
 some take supplementary proceedings and find prop- 
 erty, it would seem that the property should go to 
 them only. Rhodes v. Casey, 20 S. C, 491, supra. 
 
 SECTION III. 
 
 Reviews and Appeals. 
 From Referee. 
 
 A motion in the nature of an appeal lies from an or- 
 der of the referee to the court or judge that appointed 
 him (Dickerson v. Van Tine, i Sandf. S. Ct., 724) ; and 
 
FROM A JUDGE. 441 
 
 also from his finding of facts, where he is appointed to 
 find and report the facts. But no direct appeal lies 
 from the referee to the General Term, as in actions. A 
 motion to vacate an order supplementary to execution 
 may in the first instance be made to the court. Lind- 
 say V. Sherman, 5 How., 308, S. C, i Code R. {N. 5.), 
 25- 
 From a Judge. 
 
 An appeal lies to the General Term of the court and 
 district to which an appeal from the judgment would lie. 
 Vide Code, §§ 1355, 1356, 1361, Gould v. Torrance, 19 
 How., <^6o; Mallory ^. Gulick, 15 Abb., ^oj, note. Ac- 
 cording to this rule, if, for instance, proceedings were 
 instituted before a judge of the Court of Common Pleas 
 for the city and county of New York upon a judgment 
 of the Superior Court of the City of Buffalo, the appeal 
 would lie to the latter court. 
 
 Order First Entered. 
 
 Before an appeal can be taken from a judge's order, 
 it must be entered with the clerk of the court where the 
 judgment roll, or the transcript of the justice's judg- 
 ment, is filed. Code, §1304, Pool z^. Saflord, 10 Hiin, 
 497 ; S. C, 4 N. V. Weekly Digest, 482, General Term. 
 In the Supreme Court it must be entered with the clerk 
 of the county where the judgment roll is filed. Mar- 
 shall V. Francisco, 10 How., 147. In the New York 
 Common Pleas, in proceedings upon a justice's judg- 
 ment, the order must be entered with the clerk of that 
 court, notwithstanding the transcript has been filed with 
 the county clerk. It is the same with the Superior 
 Court of Buffalo. 
 
 In the 7th Judicial District it was held that to get 
 rid of an order improperly made in a litigated motion 
 by a judge at chambers, the right practice was to 
 move the court at Special Term to set it aside. The 
 
442 
 
 APPEALS. 
 
 General Term in the same district dismissed an appeal 
 from such an order made in supplementary proceed- 
 ings upon that ground. See Bank of Genesee v. Spen- 
 cer, 15 JIow., 14 (1857). But the course by appeal 
 from such order is permissible by the Code, and is cer- 
 tainly more rational. For in the other mode one judge 
 merely reviews the order of another judge, who is 
 frequently a member of the same court. The course 
 by appeal is the one followed in the first district. 
 
 Ex-parte Orders. 
 
 To get rid of an improper ex-parte order, a motion 
 may be made to vacate or modify it to the judge who 
 granted it, or to the Special Term of the court to which 
 the judgment belongs. Code, § 2433 ; Conway v. 
 Hitchins, 9 Barb., 378 ; Blake v. Locy, 6 How., 108 ; 
 Lindsay v. Sherman, 5 Id., 308 ; S. C, i Code R. 
 {N. S.), 25 ; Bassett v. Wheeler, 84 N. V., 466. 
 
 If the judgment is in the Supreme Court, the appli- 
 cation is made to that Special Term to which any other 
 motion in the action or on the judgment would be 
 made. Vide Gould v. Torrance, 19 How., 560. From 
 the order of the judge or Special Term on such motion, 
 an appeal lies, no doubt, to the proper General Term, 
 if the order is otherwise appealable. 
 
 It was held in Lancaster z/. Boorman, 20 How., 421, 
 that an appeal lies directly from an ex-parte order of a 
 county judge to the General Term, thus differing from 
 Conway v. Hitchins, supra, which holds the contrary. 
 
 In What Cases an Appeal Lies. 
 
 An appeal lies from an order made in supplementary 
 proceedings by a judge to the General Term of the 
 proper court. §§ 1356 and 1357 of Code. 
 
 In Joyce v. Holbrook, 7 Abb., 338, it was decided 
 that an order for the application of the debtor's prop- 
 erty under Code, § 297, and an order to punish him 
 
IN WHAT CASES. 443 
 
 for contempt in disposing of it, were discretionary, and 
 no appeal lay from a refusal to grant either ; while in 
 The People v. King, 9 How., 97, it was doubted 
 whether an appeal lay from an order discharging a 
 debtor from an attachment as for contempt. But in 
 the later cases of Holstein v. Rice, 15 Abb., 307 ; S. C, 
 24 How., 135; and Livingston v. Swift, 23 How., i 
 (Supreme Court, General Term), it is held that when 
 the creditor has an interest in the enforcement of the 
 penalties for contempt against an offending party, as 
 where his pecuniary rights are affected by the miscon- 
 duct of the latter {vide ch. 4, § 3, ante), an appeal lies 
 from an order denying a motion to punish for con- 
 tempt ; because such order defeats the creditor of a 
 substantial right. So also an appeal lies from an order 
 dismissing supplementary proceedings. Livingston v. 
 Swift, supra ; O'Neil v. Martin, i E. D. Smith, 404. 
 
 An appeal also lies from an order denying a motion 
 made for the appointment of a receiver, where prop- 
 erty has been discovered. Bailey ?'. Lane, 15 Abb., 373, 
 note ; Heroy v. Gibson, 10 Bosw., 591. 
 
 An appeal also lies from an order refusing an at- 
 tachment against a witness for disobeying a subpcena 
 duces tecum requiring him to produce documentary 
 evidence material and necessary to the party subpoena- 
 ing him, because a party has the right to have the 
 remedies provided by law to secure the attendance of 
 material and necessary witnesses, or the production of 
 material and necessary evidence, enforced in his behalf. 
 La Farge v. The La Farge Fire Insurance Co., 14 How., 
 26. And generally an appeal lies from any order that 
 comes within the meaning of Code, § 349. 
 
 Under the Code of Civil Procedure, as the proceed- 
 ings were in the original action, the appeal lay to the 
 same court and judicial department that an appeal 
 from the judgment would lie. 
 
444 APPEALS. 
 
 An appeal lies from an order made by a county 
 judge to the Supreme Court, General Term. Crounse 
 V. Whipple, 34 How., 333, and § 2433 of Code. 
 
 An appeal lies from an order denying a motion made 
 for the appointment of a receiver; because it affects a 
 substantial right, although the granting of the motion 
 rests in the discretion of the court. Dollard v. Taylor, 
 1 /. &• Sp. (33 N. Y. Superior Court R.), 496. That is, 
 an erroneous, arbitrary, or otherwise improper exercise 
 of discretion may be reviewed on appeal to the General 
 Term. Matter of Duff, 41 How., 350, 353, Court of 
 Appeals. 
 
 So also an appeal lies to the General Term from an 
 order that a commitment issue, committing the judg- 
 ment debtor to jail and imposing a fine upon him for 
 refusing to answer questions. Forbes v. Willard, 
 ■54 Barb., 520; S. C, 37 How., 193, General Term; 
 and Newell v. Cutler, 19 Hun, 74, General Term. 
 
 In Carter v. Clarke, 7 Robt., 490, General Term, the 
 court held that no appeal lies from an order of a judge 
 before whom the examination is taken, excluding a 
 question put to the judgment debtor, when no final 
 order in the proceeding has yet been made, because 
 until such final order the proceeding is not disposed 
 of, and no appeal should be allowed from every refusal 
 to permit a question to be put. Such procedure would 
 be harassing and oppressive to the judgment debtor. 
 
 In this case the court expressed a doubt as to its 
 power to resume jurisdiction of the proceeding if the 
 order appealed from should be reversed, so as to make 
 any direction in regard to continuing it. The court 
 thought that if a proceeding is not kept alive by 
 adjournment, all jurisdiction is lost. The same doubt 
 and view were expressed by the same judge in Hawes 
 V. Barr, 7 Robt., 452. But that court at General Term 
 in a latter case abandoned this view and held that 
 
IN WHAT CASES. 445 
 
 proceedings which are stayed need not b? adjourned 
 to keep them ahve. Woolf t/. Jacobs, 4 /. (&■ Sp. 
 (36 N. Y. Superior Court R.), 408. It was decided by 
 the same court some time before the above decisions, 
 that staying proceedings until an appeal be disposed 
 of did not affect their validity. The stay only sus- 
 pended the proceedings, and the judge could not in 
 the mean while dismiss them ; that the appeal with the 
 stay only suspended the judgment creditor's right to 
 obtain the benefit of his lien in the mean time ; it did 
 not take this right away. Cowdrey v. Carpenter, 
 2 Robt., 601. § 2454 of the Code of Civil Procedure 
 puts all doubts on this point at rest. Now a proceed- 
 ing once instituted continues like an action until dis- 
 missed or discontinued. 
 
 A judgment debtor cannot appeal from an order 
 directing a witness to attend and be examined ; such 
 order does not affect him. Kaufman v. Thrasher, 
 10 Hun, 438; S. C, 4 N. Y. W. Digest, 312, General 
 Term. 
 
 In Joyce v. Holbrook, 7 Abb., 338, N. Y. Common 
 Pleas, General Term, it was held that as the order 
 applying money or personal property upon a judgment 
 under § 297 of the former Code was discretionary, no 
 appeal lay therefrom to the General Term. But as a 
 discretionary order affecting a substantial right is ap- 
 pealable in certain cases according to later decisions, 
 an order of this kind must be so also. Dollard v. 
 Taylor, 1 J. Sr Sp., 496, and matter of Duff, 41 How., 
 3SO. 
 
 Service of notice of argument by plaintiff of the 
 appeal taken by the defendant from the judgment 
 does not stay supplementary proceedings so long as 
 defendant has not filed the proper undertaking. Ar- 
 noux V. Homans, 32 How., 382. 
 
 In Nevada it is held that an order requiring a third 
 
446 WHO MAY APPEAL. 
 
 party to pay over money toward the satisfaction of a 
 judgment is appealable, and such third party may 
 appeal, although in contempt for not paying over the 
 money. The only course for the judgment creditor in 
 such case was to apply for leave to prosecute the third 
 party, and for injunction in the mean time. Hagerman 
 V. Tong Lee, 12 Nevada, 331. 
 
 No Appeal. 
 
 But no appeal lies to the General Term from an order 
 made by a county judge in proceedings on a judgment 
 which originated in a justice's or county court. Smith 
 V. Hart, II How., 203. 
 
 The New York Superior Court has recently decided 
 that no appeal will lie from the decision of a judge ex- 
 cluding questions put to the judgment debtor upon 
 examination. Carter v. Clarke, 7 Robt., 490. 
 
 As the examination is in the nature of a discovery, 
 the proceedings before the referee, county judge, or 
 judge at chambers is in the nature of the old exami- 
 nation before a master in chancery, on a creditor's bill. 
 If the officer unreasonably restricts the examination, 
 it must be that the creditor would have a right to 
 review the proceedings. A motion could be made 
 before the court, founded upon affidavit or the certifi- 
 cate of the examining officer, to compel a further ex- 
 amination ; if that motion was denied, and an order 
 rendered thereupon, we see no reason why an appeal 
 would not lie from that order, as in the case of Green 
 V. Hicks, I Barb. Ch. R., 309. 
 
 Who may Appeal ? 
 
 An assignee of a judgment who becomes such after 
 the order appealed from was made may appeal in his 
 own name. Livingston v. Swift, 23 How., i. But the 
 attorney in the action cannot appeal. Section 325 of 
 the Code applies only to parties to the record and 
 
TO COURT OF APPEALS. 447 
 
 their representatives, and not to any person who may 
 feel himself aggrieved. Martin v. Kanouse, 2 Abb., 390. 
 It seems the representative of a deceased party cannot 
 appeal until he is made a party. Beach v. Gregory, 
 Id., p. 203. 
 
 Where proceedings are taken under § 294 against a 
 third party, the judgment debtor cannot appeal from 
 an order made therein on the ground that the proceed- 
 ings were not brought in the proper county. Foster 
 V. Prince, 8 Abb., 407, 411. The reason is, the debtor 
 has no right to require that the proceedings under 
 § 294 should be brought in any particular county. 
 
 What Order the Appellate Court will Make. 
 
 In contempt cases the court will merely reverse the 
 order, and remit the parties to the court below, where 
 the creditor may take such further proceedings as he 
 may be advised to vindicate and enforce his rights. 
 The Appellate Court will not try the question of con- 
 tempt, nor impose any penalty. Livingston v. Swift, 
 supra. 
 
 In O'Neil v. Martin, i E. D. Smith, 404, which was 
 an appeal from an order dismissing supplementary 
 proceedings, the Appellate Court reversed the decision 
 of the judge, and made an order requiring the debtor 
 to attend before the judge at chambers on such day 
 as he by order should appoint, for such further pro- 
 ceedings as the plaintiff should move for therein. 
 
 When an Appeal Lies to the Court of Appeals. 
 
 The Code of Civil Procedure, § 190, subd. 3, pro- 
 vides : where a final order, affecting a substantial right, 
 has been made in a special proceeding, or upon a sum- 
 mary application in an action, after judgment, and, 
 upon such an appeal, to review any intermediate order, 
 involving the merits, and necessarily affecting the order 
 appealed from, an appeal to the Court of Appeals is 
 
448 IRREGULARITIES. 
 
 allowed. See the following cases which have been 
 heard in the Court of Appeals : Campbell v. Foster, 
 35 N. v., 361 ; Gibson v. Haggerty, 37 N. Y., 555 ; 
 Lathrop v. Clapp, 40 N. V., 328 ; West Side Bank v. 
 Pugsley, 47 N. Y., 368 ; Lynch v. Johnson, 48 N. Y., 
 27; Tillotson V. Wolcott, 48 N. Y, 188; Barnard v. 
 Kobbe, 54 N. Y, 516; Bartlett v. McNeil, 60 N. Y, 
 53 ; Locke v. Mabbett, 2 Kej/es, 457 ; People v. Kings- 
 land, 3 Kejes, 325. 
 
 No appeal lies to this court where court below makes 
 an order to protect the possession of a receiver. 
 Woerishoffer v. The North River Construction Co., 99 
 iV. Y, 398. 
 
 A receiver appointed in supplementary proceedings 
 is not entitled to be substituted as defendant in pkce 
 of the judgment debtor in an action brought by other 
 creditors against him. Ross v. Wigg, 100 N. Y., 243. 
 
 SECTION IV. 
 
 Of Irregularities and Jurisdictional Defects. 
 
 There are certain errors that may arise in the progress 
 of these proceedings, as in their commencement or con- 
 tinuation, which are termed irregularities, and may be 
 entirely cured by the adverse party not objecting there- 
 to in due season ; while there are other defects called 
 jurisdictional which are not thus waived. The distinc- 
 tion is this : where a fact material to the jurisdiction 
 really exists, though erroneously, or not at all, set forth 
 in the proof, or where a tribunal can have jurisdiction 
 of a given subject-matter, because all the essential facts 
 for that exist, although the order or process bringing 
 the same before it may be erroneous ; such defect may 
 
JURISDICTIONAL DEFECTS. 449 
 
 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 ofificer who has, or 
 assumes to take, charge of the proceedings. But where 
 a fact necessary to give a tribunal jurisdiction does not 
 exist, the defect cannot be waived ; for consent cannot 
 confer jurisdiction not vested by law. Beach v. Nixon, 
 9 N. Y. (S Seld>), 35 ; also Dudley v. Mayhew, 3 N. Y. 
 (3 ComsL), 9. 
 
 Thus, for instance, if all the facts exist which are 
 necessary to vest a judge with jurisdiction in proceed- 
 ings under subd. i of § 292, he will acquire juris- 
 diction of the judgment debtor's person, and of the 
 subject-matter of the proceedings (which is the discov- 
 ery of property, and its application toward the pay- 
 ment of the judgment), either by the proper proof of 
 the necessary facts and the due service of the order 
 made upon such proof, or by the debtor's voluntary 
 appearance and submission to the control of the judge ; 
 for, by so doing, he admits to the officer the existence 
 of all the requisite facts, and is as fully bound to obey 
 every subsequent order of the judge as if he had been 
 originally brought before him by an order based on a 
 proper affidavit. A receiver of his property may be 
 appointed upon such a voluntary appearance and sub- 
 mission to examination. He is effectually estopped 
 from afterward raising the objection that he was not 
 brought up on an order, or that the order was defec- 
 tive. Bingham v. Disbrow, 14 AM., 251 ; S. C, 37 
 Barb., 24 ; citing and approving of Viburt v. Frost, 3 
 Abb., 119; S. C, sub. nom. Hobart v. Frost, 5 Duer, 
 672. It is like a voluntary appearance in an action. 
 
 Accordingly, in a case of this kind, the affidavit or 
 supplementary order may be ever so defective or erro- 
 neous, yet if the debtor appears, and submits to the 
 direction of the officer having charge of the proceed- 
 
450 DEFECTS WAIVED. 
 
 ings, without objecting in due season, he waives the 
 error, and stands precisely as if he had voluntarily 
 appeared. Dresser v. Van Pelt, 15 How., 19; Viburt v. 
 Frost ; Bingham v. Disbrow, supra. So the objection 
 that the person making the affidavit for the order after 
 the return of execution did not know the facts, or 
 stated them on his belief merely, must be made in due 
 season by a motion to dismiss the proceedings. Hilton 
 V. Patterson, 18 Ahb., 247. The affidavit in this case 
 was valid on its face. But the debtor did not appear 
 on the return of the order for his examination ; and 
 raised the above objection for the first time on a motion 
 made to punish him after interrogatories had been filed 
 and answered. So, also, if in a case of this kind any 
 irregularity or defect should occur in an adjournment, 
 or in any subsequent part of the proceedings whatever, 
 and the adverse party should not object at the proper 
 time, but go on as if no error existed, he effectually 
 waives it, and cannot afterward raise this objection. 
 Ammidon v. Wolcott, 15 Abb., 314; Hilton v. Patter- 
 son, \ZAbb., 247 ; Reynolds z/. McElhone, 20 How., \'^^. 
 
 Such irregularities or defects only render the pro- 
 ceedings voidable at the first opportunity ; and the 
 advantage not being then taken, but waived, the pro- 
 ceedings become whole and complete throughout, as if 
 no defect had occurred. When the debtor has waived 
 an irregularity, a third person cannot avail himself of 
 it. Tyler v. Whitney, 12 Abb., 465 ; Richards v. Allen, 
 3 E. D. Smith, 399. 
 
 An affidavit for an order supplementary to execution 
 which does not comply with general rule 25 is irregu- 
 lar; but it need not comply with general rule 37 or 
 with § 780 of the Code of Civil Procedure. Diossy v. 
 West, I N. Y. M. L. Bull, 23, N. Y. Com. Pleas, 
 Special Term. 
 
 An affidavit used to obtain an order as provided in 
 
IN WHAT CASES. 45 I 
 
 § 2436 of the Code of Civil Procedure requiring a judg- 
 ment debtor to appear and be examined as to property 
 alleged to be held by him which he unjustly refuses to 
 apply toward the satisfaction of the judgment is defec- 
 tive if it fails to show that the execution was issued 
 within the five years allowed by § 1375 of the said Code, 
 or if after the expiration of five years that an execution 
 had been issued within that time or that the present exe- 
 cution was issued pursuant to the order of the court 
 granted under § 1377 of the said Code. 
 
 Such affidavit is also defective if it fails to state that 
 a demand for the application of the property to the 
 payment of the judgment has been made upon and 
 refused by the judgment debtor. Hutson v. Weld, 
 38 Hu7i, 142, N. Y. Supreme Ct., General Term. 
 
 In Bean v. Tonnelle, 24 Hun, 353, General Term, it 
 was held that the omission to comply with general rule 
 25 did not entitle the judgment debtor or party pro- 
 ceeded against to a dismissal of the order, while in 
 Schanck v. Conover, 56 How., 437, Supreme Ct., Special 
 Term, the court decided that general rule 25 was not 
 intended to apply to orders in supplementary proceed- 
 ings ; or if intended to apply to them, such intent was 
 inoperative, citing Lakey w. Cogswell, 3 Code R., 116; 
 Winston v. English, 14 Abb. {N. S.), 124 ; Rice v. Ehele, 
 55 N. v., 524 ; Glenney v. Stedwell, 64 N. Y., 120. 
 
 It is irregular to make the order instituting the pro- 
 ceedings returnable before one of the justices of the 
 court instead of the judge who grants it. 
 
 See Ammidon v. Wolcott, 15 Abb., 314, Supreme Ct., 
 General Term ; Haggerty v. Rogers, 15 Abb., 314, note, 
 N. Y. Superior Ct., Special Term. In this latter 
 case the order required the debtor to appear before 
 the judge making it or one of the other justices of the 
 court. This was held irregular, and the order was dis- 
 missed on motion upon the return thereof. 
 
452 OBJECTIONS WHEN TAKEN. 
 
 But the N. Y. Common Pleas at General Term de- 
 cided that the words " or some other justice of this 
 court" in an order is mere surplusage, which could not 
 possibly mislead the judgment debtor, and that the 
 order was not therefore irregular. The Bank for Sav- 
 ings in the City of N. Y. v. Hope, 8 Daly, 316; S. C, 
 8 N. Y. W. Digest, 452. See also Dresser v. Van Pelt, 
 15 How., 19, N. Y. Superior Ct., General Term. 
 
 An order made by a Supreme Court justice, under 
 § 292 of the former Code, which required the judgment 
 debtor to appear for examination before a referee, but 
 failed to specify some justice in the debtor's judicial 
 district before whom all subsequent proceedings were 
 to be had, as prescribed in that section, was held irregu- 
 lar, and vacated on that ground. Shults v. Andrews, 
 54 How., 376; S. C, 6 N. Y. W. Digest, 156, Supreme 
 Ct., Special Term. 
 
 Entitling papers in a wrong court, as " in Justice's 
 Court," in proceedings before a county judge, is a mere 
 irregularity. The People v. Oliver, 66 Barb., 570. 
 
 An omission to show the original order to the person 
 proceeded against is an irregularity. Newell v. Cutler, 
 19 Hmi, 74; Billings v. Carver, 54 Barb., 40. 
 
 It is irregular to dismiss proceedings with costs 
 against the creditor, or make any order therein before 
 the referee has made his report, when the examination 
 is taken by a referee. Kennedy z". Norcott, 54.^i9Z£/., 87. 
 
 An appeal was taken on the same day that the judg- 
 ment was entei-ed, but actually before the costs were 
 adjusted and the judgment-roll filed. Held by the 
 Court of Appeals that as a general rule the court will 
 not inquire into the fractions of a day except to guard 
 against injustice. Blydenburgh v. Cotheal, 5 How., 200. 
 
 When to be Taken. 
 
 An objection on the ground of irregularity in the 
 
AMENDMENT. 453 
 
 proceedings, to be valid, must be taken at the earliest 
 possible opportunity — that is, when the exercise of 
 jurisdiction is first claimed by the officer. If not then 
 taken, it is deemed to be waived. Viburt v. Frost, 
 3 Abb., 119. The question upon this point in any part 
 of these proceedings is : Would the court or judge have 
 had jurisdiction to grant the order or warrant, provided 
 all the necessary existing facts had been properly 
 brought before him at the time ; or to proceed in the 
 matter in controversy, if it had duly come before him, 
 as it could have come ; and did the debtor or adverse 
 party fail to object to the irregularity complained of in 
 due season ? If both questions are affirmatively 
 answered, the error is but an irregularity, and has been 
 waived ; and the proceedings are regular. 
 
 Erroneous Order. 
 
 An order cannot be disregarded on the ground that 
 it is erroneous or irregular. The party whom it affects 
 must appear and object to it for that reason. Kelly v. 
 McCormick, 2 E. D. Smith, 503 ; The Arctic Fire In- 
 surance Co. V. Hicks, 7 Abb., 204. Because such an 
 order is only voidable. See also the case of Hilton v. 
 Patterson, 18 Abb., 247, as to the duty of the debtor to 
 obey the order and appear on the return thereof ; 
 though he claims that the affidavit was made by a 
 person who knew none of the facts. But if the order 
 is null and void on its face, he need not regard it 
 (Arctic Fire Ins. Co. v. Hicks, supra) ; as where it re- 
 quires him to appear on a Sunday 
 
 Amendment. 
 
 In Kennedy v. Weed, 10 Abb., 62, the affidavit on which 
 the order supplementary was granted did not describe 
 the judgment correctly. Objection having been taken 
 thereto in due season, it was held that the affidavit 
 could not be amended in that particular, as this defect 
 
454 WAIVER OF IRREGULARITIES. 
 
 was a radical error; and the judge, by reason thereof, 
 had never required jurisdiction of the person or subject- 
 matter. In fact, it was as if he had made the order 
 without any affidavit. This rule applies to every case 
 under similar circumstances, where an essential fact has 
 been misstated or omitted in the proof, upon which an 
 order or warrant is based. If such fact does not exist, 
 the objection may be taken at any time, but if it does, 
 then, as we have seen, the objection must be made in 
 due season. 
 
 But the omission of a fact in the affidavit, which is 
 not jurisdictional, but merely required by the practice, 
 may be supplied by amendment after objection made. 
 Goodall V. Demarest, 2 Hilt., 534. Vide ante, " Second 
 Proceedings" p. 236. 
 
 The judge, as is thus seen, has no power to allow the 
 affidavit to be amended ; nor is any authority given 
 him to amend an erroneous or defective order or 
 warrant. 
 
 The court, however, may amend an order or warrant 
 issued by it in any particular except in the return day. 
 Kelly V. McCormick, 2 E. D. Smith, 503. But the 
 court cannot supply a jurisdictional defect. Waived 
 irregularities or defects are not appealable. 
 
 Waiver. 
 
 An irregularity may be waived, and it is effectually 
 waived, unless objected to at the first opportunity. 
 Thus, an irregularity in an affidavit, as want of venue, 
 cannot be first raised on appeal ; this objection must 
 be made below. Hart v. Stearns, 4 N. Y. IV. Digest, 
 540, Supreme Ct., General Term ; People v. Oliver, 
 66 Barb., 570. The same in regard to an affidavit not 
 complying with general rule 25. Diossy v. West, i 
 N.. Y. M. L. Bull., 23. So also as to an irregularity in 
 the issue of execution ; it cannot be first raised on 
 
WHEN WAIVED. 455 
 
 appeal. The Union Bank of Troy v. Sargeant, 53 Barb., 
 422; S. C, 35 How., 87; Ammidon v. Wolcott, 15 
 Abb., 314; Dresser v. Van Pelt, 15 How., 19, both 
 General Term decisions; and Haggerty z/. Rogers, 15 
 Abb., 314, note. 
 
 An omission to show the original order to the judg- 
 ment debtor for his examination is a mere irregularity, 
 and if he wishes to take advantage of it, he must ap- 
 pear and raise that objection to the proceeding. If 
 he fails to appear for examination or to object on the 
 return of the order, he has waived the objection. Bil- 
 lings V. Carver, 54 Barb., 46 ; Newell v. Cutler, 19 Hun, 
 74- 
 
 So an order to show cause why the judgment debtor 
 should not be attached as for contempt, using the word 
 " attached" instead of " punished," is at most a mere 
 irregularity, and when the debtor does not show that 
 he was misled or failed to appear and oppose the appli- 
 cation or excuse his default in consequence of the use 
 of that word instead of the more appropriate term 
 " punished," and the motion to vacate the order does 
 not specify this irregularity as the ground of it, as re- 
 quired by general rule 46, the application should be 
 denied. The People v. Kenny, 4 N. Y. Supreme Ct. R. 
 {T. &• C".), 572, General Term, ist Judicial Department. 
 A failure to appear on a motion to punish, as for con- 
 tempt, does not waive the right to have the adjudica- 
 tion set aside for irregularity ; for the moving party is 
 bound to make a case for the granting of the order on 
 the merits, the same as if the debtor had appeared and 
 objected. Tinkey v. Langdon, 60 How., 180, Supreme 
 Ct., Special Term. 
 
 An appeal from an order waives all irregularities not 
 brought up by it for review. Tinkey v. Langdon, 60 
 Hoiv., 180. 
 
 But where a party appears merely to object to a pro- 
 
456 WHO CANNOT OBJECT. 
 
 ceeding, it is not such an appearance as will give the 
 judge or court jurisdiction where it does not otherwise 
 exist. Henderson v. Stone, 40 How., 333, N. Y. Su- 
 perior Ct., General Term. Here the order for examina- 
 tion was served after the return day specified therein, 
 and the debtor thereafter appeared only to object. 
 But if the debtor appears and submits to an examina- 
 tion, he waives objection to the preliminary affidavit. 
 It is equivalent to a voluntary appearance ; and a valid 
 order may be made appointing a receiver founded on a 
 voluntary appearance and examination. He cannot 
 thereafter raise this objection. The Union Bank of 
 Troy V. Sargeant, 53 Barb., 422; S. C, 35 How., 87, 
 supra. 
 
 So where an order made on a motion for a warrant 
 of attachment for failing to appear and be examined 
 relieved the debtor on condition that he appear and 
 submit to an examination ; held that the intention of 
 such an order is merely to require a personal appear- 
 ance in the proceedings so as to restore jurisdiction to 
 the justice. Hence, if he does appear and is sworn in 
 the usual manner, he has complied with the condition 
 named in the order, and then upon presenting his dis- 
 charge from his debts under the insolvent laws of the 
 State, he may obtain a suspension of the proceedings, 
 and compel the plaintiff to ^ue upon the judgment if 
 he disputes its validity. Coursen v. Dearborn, 7 Robt., 
 
 143- 
 
 Who cannot Object. 
 
 A third person cannot object to an irregularity in 
 the proceedings to appoint a receiver, especially so 
 when the judgment debtor appears on the motion, and 
 makes no objection to the appointment ; nor can he 
 object to an irregularity in the return of the execution. 
 
 Underwood v. Sutcliffe, 10 Hu7t, 453, General Term. 
 This case was reversed in the Court of Appeals, but 
 
JURISDICTIONAL DEFECTS. 457 
 
 not on this point. Bollard v. Taylor, i /. &■ Sp. (33 
 N. Y. Siiperior Court R.), 496 ; Tyler v. Willis, 33 
 Bard., 327, S. C. as Tyler v. Whitney, 12 Add., 465. 
 
 A person affected by an order cannot disregard it be- 
 cause of any irregularity. He must appear and make 
 his objection to it. Diossy v. West, i N. Y. M. L. 
 Bull., 23, supra. 
 
 If the irregularity is in the order appointing the ref- 
 eree, the objection on that ground cannot be raised 
 before the referee. He has no power to pass upon it. 
 The objector must either obey the order or bring the 
 matter before the judge by a motion to set it aside. 
 Wilcox V. Harris, 59 How., 262, Special Co. Judge, 
 Monroe Co. 
 
 What Objection cannot be Raised. 
 
 The regularity of a judgment or execution cannot be 
 inquired into on these proceedings ; as, for instance, the 
 objection that the execution was issued five years after 
 the recovery of judgment without leave of court first 
 obtained. This objection must be made by a direct 
 application to the court to set the execution aside. 
 The Union Bank of Troy v. Sargeant, 53 Barb., 422; 
 S. C, T,<,.How., 87 ; Gardner v. Lay, 2 Daly, 113, Gen- 
 eral Term ; Diossy v. West, 8 Daly, 298 ; S. C, 8 N. Y 
 W. Digest, 411, General Term ; U. S. Land and Emig. 
 Co. V. Pike, 2 N. Y. M.L. Bull., 31. 
 
 Jurisdictional Defects. 
 
 These are not waived by the debtor's voluntary ap- 
 pearance and submission to the direction of the officer 
 without objection. As, for instance, if it appears at 
 any stage of the proceedings that any of the facts nec- 
 essary to give the judge jurisdiction does not exist, the 
 proceedings must be dismissed. The objection can be 
 taken any time during the progress of the proceedings ; 
 and it is the duty of the judge to dismiss them, even 
 
458 COLLATERAL PROCEEDINGS. 
 
 on his own motion, in such case. Sackett v. Newton, 
 lo How., 560 ; see Dudley v. Mayhew, 3 N. ¥., 9, 
 and Beach v. Nixon, 9 N. Y., 35. 
 
 In an action brought by a receiver appointed in sup- 
 plementary proceedings to set aside as fraudulent a 
 conveyance of real estate, executed by the judgment 
 debtor, so as to subject the property to levy and sale 
 on execution, where the receiver simply proves his ap- 
 pointment without showing the proceedings necessary 
 to vest in him title to the real estate, he is not entitled 
 to recover the rents and profits. Wright v. Nostrand, 
 98 JV. v., 669. 
 
 When a person is sued by a wrong name, and fails to 
 appear, the judgment entered up is without jurisdiction 
 as against him, although he is the real person intended ; 
 and he cannot be punished in proceedings instituted 
 upon such judgment for not complying with an order 
 made therein in this wrong name. He has not waived 
 his right to object to the misnomer after judgment and 
 execution, and he is not in conteriipt for failing to 
 comply with an order directed in the wrong name. 
 Muldoon V. Pierz, i Add. N. C, 309, Supreme Ct. Ch. 
 
 But if the person sued by a wrong name appears and 
 defends the action, he waives this objection, and cannot 
 afterward complain if he is proceeded against by the 
 wrong name. Farnham v. Hildreth, 32 Barb., 277 ; 
 Matter of Johns, i N. Y. M. L. Bull., 76, N. Y. Com. 
 Pleas Ch. 
 
 The Question of Jurisdiction in Collateral Proceedings. 
 
 This distinction is made : where the matter consti- 
 tuting jurisdiction is the same with that which is to be 
 judicially heard and determined on the trial of the very 
 issue in the cause — i. c, makes a part of the merits — it 
 is not the subject of collateral objection, but is reversi- 
 ble by direct proceedings only, as on appeal. Thus, 
 
FORMAL IRREGULARITIES. 4S9 
 
 the determination of the judge in these proceedings, 
 that the debtor has property, or that he is guilty of a 
 contempt, is such matter. But where the matter of 
 jurisdiction does not form part of the merits of the 
 case, as where a warrant is issued upon an affidavit 
 jurisdictionally defective, and objection on that ground 
 is made in due season, this question may be raised in 
 any collateral proceedings. See Broadhead v. McCon- 
 nell, 3 Barb., 175, 187; also Porter v, Purdy, 29 N. V., 
 106. 
 
 Formal Irregularities — Immaterial. 
 
 Return of execution after sixty days, that the sheriff 
 found no personal property out of which to make the 
 said execution or any part of the same, but then levied 
 thereunder upon the real estate mentioned in the an- 
 nexed notice of sale and advertised the same for sale. 
 Held sufficient return to take proceedings in that the 
 levy on real estate was but the execution of a process 
 to sell. Forbes v. Spaulding, 8 N, Y, Civ. Pro. R., 
 
 135- 
 
 Execution issued after five years without leave of 
 court should not be set aside whenever the equities 
 have been ascertained by a full and careful judicial 
 inquiry. Nat. Bank of Port Jervis v. Hansee, 15 Abb. 
 N. C, 488. 
 
 Under § 2435 of the Code, an order in supplement- 
 ary proceedings is justified by the return, unsatisfied, 
 of a second execution, regularly issued on the judg- 
 ment, though such order be issued more than ten years 
 subsequent to the return of the first execution. Levy 
 V. Kirby, 5 1 iV. Y. Superior Court R., 69. 
 
 It is not necessary to state in the affidavit to obtain 
 order for examination of a judgment debtor in pro- 
 ceedings supplementary to execution, that the city 
 court of New York is a court of record, that no pre- 
 
460 POWERS OF JUDGE. 
 
 vio.us application for an order to examine judgment 
 debtor has been made in the action, or that the judg- 
 ment was rendered upon the judgment debtor's ap- 
 pearance or personal service of the summons upon him. 
 Sayer v. MacDonald, 2 How. Pr. {N. S.), 1 19. 
 
 The sheriff's return which shows substantially that 
 the defendant has no property to satisfy the execution 
 is sufficient to authorize supplementary proceedings, 
 although not in form. Forbes v. Spaulding, 52 iV. Y. 
 Superior Ct., 166. See contra Marx v. Spaulding, 16 
 Abb. N. C, 309, affirmed, 99 N. Y., 675. 
 
 An omission not going to the jurisdiction does not 
 invalidate an order ; such defect cannot be availed of 
 in habeas corpus ; the irregularity or omission can only 
 be taken advantage of by means of a direct proceeding 
 therefor. In re Perry, 30 Wis., 268. 
 
 Omitting to state in the affidavit or proof of facts other 
 than the recovery of 'the judgment issue and return of 
 execution unsatisfied and residence of judgment debt- 
 or, is a mere irregularity, not going to the jurisdiction 
 of the officer granting the injunction. In re Perry, 
 supra. 
 
 SECTION V. 
 
 Of the Powers of the Judge in Supplementary Pro- 
 ceedings. 
 
 It was held at chambers (Webber v. Hobbie, 13 
 How., 382) that a judge could exercise no power not 
 expressly given or clearly implied in the chapter of 
 the Code treating of supplementary proceedings ; but 
 that its several provisions should be liberally construed, 
 so as to effect the object intended by them. The 
 same proposition was announced in Squire •;:■. Young, 
 
HAS GENERAL POWERS. 461 
 
 I Bosw., 690, 696, at General Term. But these decisions 
 must be accepted with some qualification. For ordi- 
 narily, whenever a general power is given by a statute 
 to a judge out of court, he may exercise it in these 
 proceedings, unless it is inconsistent with the provi- 
 sions of the chapter above named. This applies espe- 
 cially to a judge when he entertains the proceedings 
 upon a judgment of his own court, or made such by 
 docketing a transcript from an inferior court. Upon 
 this principle, a Supreme Court justice, as we have seen 
 in Bingham v. Disbrow, 37 Barb., 24, can institute the 
 proceedings, and make a subsequent order therein in any 
 part of the State ; and a judge in the ist Judicial Dis- 
 trict can continue them when commenced by another ; 
 neither of which powers is expressly given or clearly 
 implied in the above-named chapter. Other instances 
 could be cited. The Superior Court of the city of 
 New York, in a case at General Term, seems to have 
 gone even further than this. It held " that the judge 
 has the same general power over these proceedings 
 that the court would have, if the authority to make 
 the order and conduct thfe examination had been con- 
 ferred upon the court," and that " his power over the 
 proceedings is absolute, only subject to review on ap- 
 peal." Cowdrey v. Carpenter, 17 Abb., 107. It is, 
 however, very doubtful whether, in holding that the 
 judge has this general power over these proceedings, 
 the court meant to adopt as law all the logical deduc- 
 tions from this opinion. For when the cognizance of 
 a new subject is conferred upon a court, the powers 
 incident to its general jurisdiction, so far as applicable, 
 at once attach to the new subject. Matter of Canal 
 and Walker Streets, 12 N. Y., 410. Thus, this decision 
 would go to the extent of holding that a judge has in 
 these proceedings the general powers of his court ; that 
 of amendment among others. 
 
462 STAYING PROCEEDINGS. 
 
 His Power in Commencing the Proceedings. 
 
 In the case of Bingham v. Disbrow, 14 Abb., 251; 
 S. C, 37 Barb., 24, the judgment was rendered in the 
 Supreme Court in one county, and the execution issued 
 to another. The proceedings were taken before a 
 justice of the court, but the afifidavit for the order failed 
 to aver that a transcript had been filed in the clerk's 
 office of the county to which the execution had been 
 issued. The court held that the affidavit was sufficient. 
 In an early case (The People v. Hulburt, 5 How., 446 ; 
 S..C-, I Code R. {N. S.,) 75), where the proceedings had 
 been taken before a county judge on a judgment in the 
 Supreme Court, it was held that nothing is to be pre- 
 sumed in favor of the jurisdiction of an inferior officer 
 (like a county judge) ; that the facts upon which juris- 
 diction rests must be shown affirmatively. In Bingham 
 V. Disbrow the proceedings were taken after the return 
 of execution. In the other proceedings under §§ 292 
 and 294 of the formerCode, the proof of certain facts 
 is expressly made a condition precedent to give the 
 officer jurisdiction, and must undoubtedly be made in 
 every case. 
 Staying Proceedings. 
 
 Many of the decisions cited above were made under 
 the former Code. 
 
 That Code prescribed : " If it appear that a person 
 or corporation alleged to have property of the judg- 
 ment debtor, or indebted to him, claims an interest in 
 the property adverse to him, or denies the debt, such 
 interest or debt shall be recoverable only in an action 
 against such person or corporation by the receiver." 
 
 §299- 
 
 Under this provision some decisions held that where 
 an adverse claim to the property appeared in the pro- 
 ceeding, the judge had no jurisdiction to make the 
 order applying the same upon the judgment. 
 
ADVERSE INTEREST. 463 
 
 See Barnard v. Kobbe et al., 54 N. V., 516 ; in which, 
 however, the facts in the proceeding showed that the 
 judgment debtor had not even d. prima facie title to the 
 money in question. See also Schrauth v. The Dry 
 Dock Savings Bank, 8 N. Y. Weekly Dig., 417 ; S. C, 
 20 Alb. L.J., 197, Common Pleas, General Term. In 
 this latter case the court held that the simple claim of 
 interest by a third person ousted the jurisdiction of 
 the judge, and his order thereafter was void. This de- 
 cision is not given in full in the above report. It is 
 found in full among the appeal records in the Court of 
 Appeals ; for the case finally reached that court, and is 
 reported in 86 N. Y., 390. But the court of last resort 
 declined to decide this question of jurisdiction. 
 
 Hosier v. Lees, N. Y. Superior Court, Special Term, 
 appears to take a juster view of the question. It holds 
 that a mere verbal assertion of claim, independent of 
 facts proven, is not the claim of interest meant by § 299 ; 
 that it must be an assertion supported by facts which 
 show that a substantial question can be made to be 
 submitted for adjudication. Bliss's " Annotated Code," 
 vol. 2, p. 554. According to this decision, it is not 
 enough to oust the jurisdiction of the judge for a per- 
 son merely to assert that he owns the property in ques- 
 tion or an adverse interest therein ; he must adduce 
 some evidence of ownership or interest which will go 
 to show that there is in the matter a substantial question 
 for judicial determination by due process of law. 
 
 But this provision of § 299 is not re-enacted in the 
 Code of Civil Procedure. It was intentionally omitted. 
 See Throop's notes on §§ 2446-2450, Annotated Code 
 of Civil Procedure. 
 
 § 2447 of the present Code provides that the judge 
 may order the payment of money or the delivery of 
 articles of personal property to a sheriff, etc., which is 
 in the possession or under the control of a third person 
 
464 SUBSTANTIALLY DISPUTED. 
 
 when the debtor's right of possession thereof is not 
 substantially disputed. 
 
 This is now the only provision on the subject. 
 
 It is worth mentioning that possession, not title, is 
 here spoken of, because this is a possessory remedy : 
 the judgment creditor seeks to obtain the delivery to 
 the sheriff or receiver of a specific sum of money or 
 other article of personal property. If the judgment 
 debtor has not the right of possession to the property, 
 as where it is pledged, the order cannot be made, 
 although he may own it beyond all dispute. The judg- 
 ment creditor must pursue some other course to reach 
 his debtor's interest in it. Under this section (2447) a 
 person who seeks to prevent an order being made for 
 the delivery of personal property to a sheriff or receiver, 
 must substantially dispute the judgment debtor's right 
 to the possession thereof. He must produce some 
 evidence to show that a substantial question exists for 
 determination in an ordinary action ; mere assertion or 
 pretence is not enough. The judge is then to deter- 
 mine whether such a substantial dispute appears from 
 the evidence or not ; and this is a judicial act. 
 
 If the judge, therefore, has jurisdiction of the person 
 and of the subject-matter, or general question as it is 
 called in Hunt v. Hunt, 72 N. Y., 217, he has jurisdic- 
 tion to determine the question of substantial dispute ; 
 and his order in no case can be void. He may err ; he 
 may be as thoroughly wrong as the judge was in Bar- 
 nard V. Kobbe, 54 N. Y., 516 ; still his order is merely 
 erroneous, not void, and must be obeyed or corrected 
 by appeal or review. Any other course would lead to 
 confusion ; for it must be conceded that somewhere 
 along the line of evidence the judge has jurisdiction to 
 decide whether the debtor's right is substantially dis- 
 puted or not. Then at what point on that line is he 
 ousted of jurisdiction and his order rendered void ? 
 
ADVERSE INTERESTS. 465 
 
 What amount of evidence, what degree of proof will 
 turn the scales and make that void which otherwise 
 would be valid or merely erroneous ? The inevitable 
 consequence of this position is that a person against 
 whom such an order was made would have to decide 
 for himself the grave question of jurisdiction, and de- 
 termine whether he should obey or disregard it. The 
 safest and soundest rule is to hold that a judge's order 
 made under § 2447 of Code is always valid, provided 
 he has the required jurisdiction of the person and sub- 
 ject-matter, and must be got rid of, if erroneous, by 
 appeal or review, like valid orders generally. 
 
 Another branch of this question is what evidence 
 should a third party, against whom the order is sought, 
 be required to furnish to prevent its being made, 
 when he himself claims an adverse title or interest ? 
 Should he not make out a prima facie case, such as 
 would prevent a nonsuit or entitle him to go to the 
 jury on a trial? 
 
 The order of the judge will not afTect a person who 
 is neither a party nor privy to the proceeding unless he 
 is guilty of laches. See Gibson v. Haggerty, 37 N. V., 
 
 555- 
 
 An inquiry growing partly out of this question con- 
 cerning the power of the judge is, what issues may be 
 made in an action by a claimant against a third person 
 for the money or other personal property which the 
 latter paid or delivered up upon an order of the judge ? 
 If the third person paid his debt to the sheriff under 
 the permissive order of the judge, pursuant to § 2446 
 of Code, the claimant is bound to prove that he is a 
 transferee thereof from the judgment debtor in good 
 faith and for a valuable consideration, and that the 
 person paying had actual or constructive notice of his 
 rights when the payment was made. 
 
 When a third person pays a specific sum of money or 
 
466 BONA FIDE PURCHASER. 
 
 delivers an article of personal property to a sheriff, etc., 
 upon the mandatory order of the judge, he should have 
 at least the same protection, and the claimant as a trans- 
 feree from the judgment debtor should be required to 
 make like proof. 
 
 He is in any event required to prove that the person 
 paying the money or delivering the property had actual 
 or constructive notice of his claim or rights when the 
 money was paid or the property delivered. 
 
 See Gibson v. Haggerty, 37 N. K, 555. 
 
 If as such a transferee he is not bound to make this 
 additional proof in the iirst instance, it appears clear 
 that the third party, as defendant in the action, ought 
 to be allowed to prove the negative, that the claimant 
 is not a bona fide transferee for valuable consideration 
 of the money or property claimed ; that the transfer to 
 him was made to hinder, delay, and defraud the cred- 
 itors of the judgment debtor. He ought to have the 
 right to make this defence, because in a proceeding 
 presumptively at least in invitinn, he has been com- 
 pelled by judicial process to surrender the money or 
 property in his hands for the benefit of the judgment 
 creditor, who would be entitled in an action of inter- 
 pleader or creditors' action to make such proof against 
 the claimant, and he should be held subrogated to the 
 rights of the judgment creditor. Besides the law allows 
 a defendant to set forth in his answer as many defences 
 or counter-claims or both as he has. See § 507 of Code. 
 
 When the claimant becomes a transferee or purchaser 
 from the judgment debtor of goods or a debt after 
 proceedings have been instituted to reach the same, he 
 is bound to prove affirmatively to maintain his action 
 therefor, that he is a purchaser in good faith for a 
 valuable consideration, and that at the time of such 
 purchase he had no notice of the proceedings. § 2469 
 of Code. 
 
RESIDENCE. 467 
 
 A county judge of the county in which the attorney 
 of the applicant resides can make an order under § 772 
 of the Code to show cause before a Special Term of the 
 Supreme Court why an order in a supplementary pro- 
 ceeding should not be made. Vandeburgh v. Gaylord, 
 7 N. V. IV- Digest, 136, Supreme Court, Special Term. 
 
 A judge may also enforce a parol agreement for an 
 adjournment made in these proceedings. People v. 
 Oliver, 66 Barb., 570. 
 
 In Questions of Residence or Place of Business. 
 
 The judges in the first district inquire into questions 
 of residence and place of business, when raised in these 
 proceedings, and determine the same in the ordinary 
 way — on affidavits or testimony. See McEwan v. Bur- 
 gess, 15 Abb., 473 ; S. C, 25 How., 92 ; Belknap v. Has- 
 brouck, 13 Abb., 418, note. This power seems neces- 
 sarily implied in the conduct of supplementary pro- 
 ceedings, and may be exercised by any judge in any 
 case. If not, then the debtor may prevent an exam- 
 ination in many an instance ; he need but state by 
 affidavit that he has not the residence or place of busi- 
 ness alleged by the creditor to compel the officer to 
 dismiss the order. Nor does the debtor of necessity 
 perjure himself ; for the terms residence and place of 
 business are matters of opinion, or law, rather than of 
 fact. 
 
 The rule appears to be this : when in any stage or 
 part of supplementary proceedings the existence of an 
 alleged jurisdictional fact is denied, the judge has the 
 power to inquire into the issue thus made, so far at 
 least as to satisfy himself whether he has jurisdiction 
 in the matter or not. For every officer who is called 
 upon to act in a judicial capacity has this inherent 
 power to inquire into and determine for himself the 
 question whether he has authority over the subject- 
 
468 MAY INQUIRE INTO PRIOR ACTS. 
 
 matter. He is not bound, and ought not to take the 
 assertion of any party upon this point ; because other- 
 wise it is plain that he could be ousted of jurisdiction 
 at the pleasure of a party. 
 
 Such inquiries are constantly made. Thus, if the 
 debtor denies the existence of the judgment on which 
 the proceedings are based, the judge can inspect the 
 records and determine that fact, as was done in Ken- 
 nedy V. Weed, lo Abb., 62. So, if the existence of the 
 execution, its issuance into the proper county, its re- 
 turn, or any other essential allegation about it is de- 
 nied, such fact may be investigated by the judge. 
 Vide Hersenheim v. Hooper, i Duer, 594 ; Jones v. 
 Porter, 6 How., 286. Nor is the case of Smith v. Paul 
 (20 How., 97) in conflict with this rule. Here the 
 debtor moved to dismiss the proceedings on the ground 
 that he had been discharged from the judgment under 
 the insolvent act. It was held that the creditor could 
 not show in opposition to the motion that he was not 
 included in the schedule of debts, had received no 
 notice of application for a discharge, was not a citizen 
 of the State at the time, etc.; that his course was to 
 obtain leave to sue on his judgment. For it is clear 
 that an inquiry into the legality of an insolvent's dis- 
 charge is beyond the scope of supplementary proceed- 
 ings, or any other proceedings except an action. The 
 judge cannot look beyond the discharge. 
 
 So the judge has the power to determine questions 
 of regularity when raised, and dismiss the proceedings 
 if improperly brought. Courtois v. Harrison, i Hilt., 
 109 ; S. C, 12 How., 359 ; 3 Abb., 96. 
 
 Baldwin v. Perry, I N. Y. Civ. Pro. R., 118, Supreme 
 Ct., General Term; S. C, 12 N. V. W. Digest, 398; 
 61 How. Pr. R., 289. Held that the Judge of the 
 Supreme Court has power to grant a plaintiff's motion 
 for costs and disbursements of supplementary proceed- 
 
NO POWER. 469 
 
 ings, and to have same paid out of fund in the receiver's 
 hands, and to have costs of a motion from the same fund. 
 
 No Power. 
 
 But he cannot look beyond a judicial determination ; 
 and in no case can he review the merits of the original 
 action, or inquire into the correctness of the judgment 
 or its entry. Id.; O'Neil v. Martin, i E. D. Smith, 
 404 ; Sherwood v. Buffalo & N. Y. City R. R. Co., 
 12 How., 136; Collins v. Ryan, 32 Barb., 64^; Saun- 
 ders V. Hall, 2 Abb., 418. So the weight of authorities 
 is against, at least, the propriety of his reviewing the 
 return to the execution. At any rate, he cannot re- 
 view such return so long as it is considered the official 
 act of the sheriff, and made on his own responsibility, 
 without the interference of the creditor. Nor can the 
 judge review any other official act of a court ofificer done 
 outside of these proceedings. 
 
 The application for relief in cases like those above 
 named must be made to the court which has control 
 over the judgment or execution ; and the judge can 
 adjourn the proceedings to enable the aggrieved party 
 to apply to the proper tribunal. Frederick v. Decker, 
 18 How., 96. 
 
 The judge has no power to authorize an affidavit, 
 order, or process in supplementary proceedings to be 
 amended. The statutes allowing amendments {Code, 
 § 723), refer to courts only ; and a judge out of court 
 " may do just what the legislature has authorized 
 him to do, and whatever he does more than this 
 is done without jurisdiction." Bangs v. Selden, 13 
 How., 374. The proceedings are defective in this re- 
 spect. But where a mere rule of practice requires cer- 
 tain proof to be made, the judge may allow it to be 
 supplied by amendment after objection. Goodall v. 
 Demarest, 2 Hilt., 534. But it seems the judge may 
 
470 WHERE SUBSTANTIALLY DISPUTED. 
 
 amend a defective bond or undertaking given in sup- 
 plementary proceedings upon the application of all the 
 obligors. 2 R. S., p. 556, § 34. 
 
 The judge has no power to order the payment of 
 money or the delivery of personal property to a sheriff 
 or receiver when the judgment debtor's right of pos- 
 session thereof is substantially disputed as seen above, 
 nor has he the right under § 2446 of Code to authorize 
 a debtor of the judgment debtor to pay his debt to the 
 sheriff, when it appears that the debt has been trans- 
 ferred in good faith and for a valuable consideration 
 to another. He cannot try in those proceedings the 
 validity or good faith of an alleged assignment of 
 property. Beebe v. Kenyon, 3 Hun, y^i > S. C, 5 Su- 
 preme Ct. {T. & C.) R., 271 ; Schrauth v. The Dry 
 Dock Savings Bank, 8 N. Y. W. Digest, 417 ; nor in- 
 quire into the validity of an insolvent's discharge under 
 the insolvent laws of the State. Coursen v. Dearborn, 
 7 Robt., 143 ; Smith v. Paul, 20 How., 97 ; and when 
 the judgment debtor appears on the return of the order 
 with his discharge, and moves to dismiss the proceed- 
 ings on that ground, the motion must be granted, and 
 the creditor remitted to his action upon the judgment. 
 Smith V. Paul, supra. But where upon conceded facts 
 it is only a question of law whether the judgment in the 
 proceeding is included in the discharge or not, the judge 
 may decide it on the motion. Gardner v. Lay, 2 Daly, 
 
 113- 
 
 The judge has no power to inquire into the juris- 
 diction of the court which rendered the judgment on 
 which the proceedings are based. People, etc. v. Oli- 
 ver, 66 Barb., 570; nor has he power to order a judg- 
 ment debtor to pay the judgment against him, nor a 
 person to pay a tax assessed upon him. Tinker v. 
 Crooks, 22 Hun, 579; Bailey v. Buell, 50 N. Y., 662 ; 
 Drake v. Shurtliff, 24 Hun, 422. 
 
EXEMPT PROPERTY. 47 1 
 
 If he orders the person proceeded against under the 
 tax laws to pay the tax assessed upon him, and the party 
 compHes, the payment is voluntary ; the order is with- 
 out jurisdiction. Bailey v. Buell ; Drake v. Shurtliff, 
 supra. The judge has no power to order a third person 
 proceeded against to pay to the judgment creditor or 
 to a sheriff or receiver a debt due by him to the judg- 
 ment debtor. The West Side Bank v. Pugsley, 47 
 N. v., 368. 
 
 The judge cannot require a receiver to render his ac- 
 count to him ; for that officer, after his appointment, is 
 subject to the control of the court. Pool v. Safford, 14 
 Hun, 369; S. C, 6 N. Y. W. Digest, 538, General Term. 
 But by § 715 of the Code of Civil Procedure the judge 
 appointing the receiver or his successor in ofifice may 
 at any time remove him or direct him to give a new 
 bond with new sureties. The judge may accept his 
 resignation and appoint another. Wing v. Disse, 15 
 Hu7t, 190, General Term. 
 
 It has been variously decided whether a judge can 
 order the judgment debtor to execute an assignment of 
 his property or not. In Fenner v. Sanborn, 37 Barb., 
 610, and Sickels v. Hanley, 4 Abb., N. C, 231, both at 
 General Term, it was held that the judge had such 
 power. In People, etc. v. Hulburt, 5 How., 446 ; S. C, 
 I Qode R., N. S., 75, and 9 JV. Y. Leg. Obs., 245, Gen- 
 eral Term, and in Ball v. Goodenough, 37 How., 479, 
 it was held that he had no such power. The same 
 view was expressed at Special Term in Tinkey v. Lang- 
 don, 60 How., 180. Ball V. Goodenough, supra, is of lit- 
 tle value. It is a decision by McCunn, J., and is 
 obiter. 
 
 The judge cannot interfere with exempt property. 
 Hancock v. Sears, 93 N. Y., 79. Nor can he order 
 judgment debtor to bring personal property from an- 
 other State. Buchanan 71. Hunt, 98 JV. Y., 560. 
 
472 EXCLUSIVE CONTROL. 
 
 The Judge's Exclusive Control. 
 
 When supplementary proceedings have been once 
 duly instituted before a judge, his jurisdiction over 
 them is exclusive as respects all other judges, and re- 
 mains until the examination is ended ; and all orders 
 made by him in regard to the debtor's property or 
 otherwise are fully executed. So held in Webber v. 
 Hobbie, 13 How., 382; see also Hulsaver v. Wiles, 11 
 Id., 446 ; Allen v. Starring, 26 Id., 57; President, etc. 
 Bank of Genesee v. Spencer, 15 Id., 14; Cowdrey v. 
 Carpenter, 17 Abb., 107. Of course this is with the ex- 
 ception of the continuances mentioned in ch. i,§3. It 
 was also held in Bank of Genesee v. Spencer, 1 5 How., 
 14, that where the proceedings are had before a 
 county judge upon a judgment in the Supreme Court, 
 that a justice of that court could at chambers make 
 an order staying such proceedings until the applicants 
 were able to apply to the court for an order to stay 
 them indefinitely; but he had no authority beyond 
 that. 
 
 Adjournments. 
 
 Code of C. P., § 2444, expressly provides that " the 
 judge or referee may adjourn any proceedings, under 
 this article, from time to time, as he thinks proper.'' 
 
 This settles a question much disputed under the for- 
 mer Code. 
 
 Staying Proceedings. 
 
 There is no doubt that a judge before whom the pro- 
 ceedings were pending would upon proper application 
 stay the proceedings, to enable the debtor to appeal 
 from the judgment, or make any other application for 
 rehef upon proper terms. If he should decline to do so, 
 there would be no doubt power in another judge upon 
 proper motion papers to grant a stay of proceedings 
 until the court could hear the motion. Frederick v. 
 
CONTINUANCE BEFORE ANOTHER OFFICER: 473 
 
 Decker, 18 How., 96; Bank of Genesee v. Spencer, 15 
 How., 14; Lowber v. The Mayor of N. Y., 5 Abb., 
 268. 
 
 Discontinuance. 
 
 Supplementary proceedings may be discontinued by 
 abandonment as well as by order. Squire v. Young, i 
 Bosw., 690. 
 
 They will not be discontinued by a vacancy or 
 change of the judge. Code C. P., §25. 
 
 Continuance of Proceedings before Another Officer. 
 
 § 2434 of the Code C. P. provides for the institution 
 of proceedings before certain judges, as hereinbefore 
 stated. §268, Code C. P. § 349 Code. 
 
 §52 Code provides for the continuance of proceed- 
 ings before another judge when the one acting becomes 
 disqualified or disabled. 
 
 § 53 Code provides that notice of the change must 
 be given to the parties. 
 
 §342 Code provides that if the county judge is from 
 any cause incapable to act he must make and file a 
 certificate of the fact, and thereupon the special county 
 judge, if any, and if not disqualified, must act as county 
 judge in that action or special proceeding. 
 
 This section also provides for continuing the pro- 
 ceedings before a justice of the Supreme Court in cer- 
 tain cases therein specified. 
 
 Po-wers of the Judges of Superior City Courts. 
 §263, subd. 9, Code C. P., §268 Code. 
 
 Powers of County Judge. 
 §349CodeC. P. 
 
 Non-Attendance of the Debtor. 
 
 Justice Harris, in Edmonston v. McLoud, 16 N. Y., 
 543, thought that where the debtor was duly served. 
 
474 OPENING DEFAULTS. 
 
 and failed to appear in obedience to the order, the pro- 
 ceedings might nevertheless be had. Some judges fol- 
 low this course, and permit the examination of witnesses, 
 and make such orders as they deem just for the appro- 
 priation of the debtor's property toward the satisfac- 
 tion of the judgment, the same as if the debtor had ap- 
 peared. This practice is entirely regular ; for the judge 
 acquires complete jurisdiction of the debtor's person 
 and of the subject-matter, if within the State, by the 
 due service of the order ; and the debtor fails to appear 
 at his peril. Also Sherwood v. Buffalo and N. Y. City 
 R.R. Co., 12 How., 136. He might make an order under 
 § 297 of former Code, applying the discovered property 
 upon the judgment, or appoint a receiver under §298, 
 to take possession of it, or, in a proper case, to seek its 
 recovery by action from a third person who claims it ; 
 and this without notice to the debtor, and as was done 
 in Bingham v. Disbrow, 37 Barb., 24, and held good. 
 For in no case in supplementary proceedings is the giv- 
 ing of notice of a motion to the debtor or any other 
 party a jurisdictional necessity. 
 
 Opening Defaults, etc. 
 
 The wants of supplementary proceedings require that 
 when the creditor or his counsel fails to attend at the 
 time and place designated for the return of the order, 
 or for proceeding upon it, they should not be deemed 
 to have fallen through, and the injunction dissolved ; 
 but the creditor should be permitted to resume the pro- 
 ceedings if he promptly applies for an order upon the 
 debtor to show cause, and excuses his negligence or de- 
 fault, and the officer might impose such terms as are 
 just. The case of Reynolds v. McElhone, 20 Hoiv., 
 454, favors this view. Such power has been exercised 
 by justices of the Supreme Court in the first district ; 
 and, as before stated, the case of Cowdrey v. Carpenter, 
 
OPENING DEFAULTS. 475 
 
 17 Abb., 107, warrants this same practice by its general 
 language ; but I believe the justices of that court (New 
 York Superior) still adhere to the rules announced in 
 Squire v. Young, i Boszv., 690 — to wit : if the creditor, 
 for any cause whatever, be it involuntary or intentional, 
 fails to appear on any day that the proceedings are set 
 down for, they fall through, and no judge can restore 
 them. The creditor must obtain a new order, and in 
 addition to the ordinary affidavit for that, he must ex- 
 cuse his default, and upon this new order he can ob- 
 tain only such relief as it would be proper to grant, if 
 the former proceedings had never been instituted. 
 
 It is needless to say that such a power in the officer 
 is one of the most essential in the administration of 
 justice ; and without it any judicial proceedings must be 
 harsh and imperfect. So thoroughly does this power 
 inhere in the idea of judicial procedure, that when any 
 tribunal is invested with the cognizance of a new subject, 
 the authority to open defaults attends as a matter of 
 course, unless prohibited expressly or by implication. 
 Does such authority exist in these proceedings ? Surely 
 there is nothing in the Code, or in any statute, nor in 
 the nature of supplementary proceedings, against the 
 exercise of this very important discretion. The nature 
 of these proceedings is summary, but how does that 
 clash with the discretion, if promptly sought, of per- 
 mitting a creditor to resume the proceedings, who has 
 been prevented by some uncontrollable circumstance 
 from attending at the time and place appointed? 
 
 Neither the debtor nor third parties need be preju- 
 diced. If the former has in good faith disregarded the 
 injunction, or the latter have acquired rights in the 
 debtor's property in the mean while, all may be pro- 
 tected in the order allowing the creditor to resume the 
 proceedings. 
 
 Again, these proceedings are a substitute for an equit- 
 
476 TO PUNISH DISOBEDIENCE. 
 
 able suit, and are governed by many of its rules. They 
 are classed among the remedies provided by the Code, 
 and are entitled to share its liberal spirit of construc- 
 tion. 
 
 Moreover, the chapter creating these proceedings, 
 like most statutes, is general in its provisions. It leaves 
 the details to be supplied by the practice. Thus, prac- 
 tice has furnished the rule of adjournments, and that 
 of compelling both parties to wait a certain time before 
 a default can be taken ; neither of which is expressly 
 granted in the chapter, or more necessarily implied than 
 the one contended for here. Wherefore, it seems to 
 me that in view of the relations and similarity of these 
 and other proceedings in the Code, from the fact that 
 these constitute an important remedy in that act, and 
 are expressly entitled to share its liberal rules of inter- 
 pretation, they should not be deemed as having fallen 
 through, simply because the creditor failed to appear 
 at the time and place designated for the return of the 
 order, or for proceeding thereupon, but he should be 
 permitted to resume the proceedings upon just terms 
 and his prompt application to the judge for such per- 
 mission. 
 
 Power to Punish Disobedience of Orders. 
 
 The general rule is, as already stated, that to bring a 
 party into contempt for disobeying any process or 
 order, the same must be personally served on him. 
 Coddington v. Webb, 4 Sandf., S. Ct., 639 ; Becker v. 
 Hager, 8 How., 68 ; Watson v. Fuller, 9 Id., 425. 
 
 But to this rule there are exceptions, at least so far 
 as the pecuniary rights of the creditor are concerned. 
 For instance, " a party may be punished as for con- 
 tempt when he has knowingly and designedly done acts 
 which he knew at the time the court had by order 
 prohibited him from doing, although at the time no' 
 
WHAT IS A CONTEMPT. 477 
 
 order had been served, or in fact entered, but had only 
 been directed to be entered." The People v. Compton, 
 I Duer, 512,553; Livingston t/. Swift, 23 /A^w., i. So, 
 if an order is served on the attorney, and knowledge 
 thereof is brought home to the party whose duty it is 
 to obey it, he may be punished for a wilful disobedience 
 of it in the same manner as if it had been personally 
 served on him. The People v. Brower, 4 Paige, 405. 
 
 It is also contempt of court for a person who knows 
 of the existence of an order in the hands of an officer 
 intending to serve the same upon him wilfully to pre- 
 vent the service of such order by open force, either 
 made or directed. Conover v. Wood, 5 Abb., 84, 88. 
 But in all such cases it appears the party must have 
 knowledge of the order and its contents ; and this fact 
 must be shown before the judge can punish for con- 
 tempt. In the case of Livingston v. Swift, supra, the 
 court seemed to limit the punishment on such excep- 
 tional service to cases wherein the pecuniary rights of 
 the plaintiff had been actually prejudiced by the dis- 
 obedience. 
 
 Section 802 of the Code is not in conflict with these 
 authorities. That section does not prescribe the manner 
 of service of an order to bring a party into contempt. 
 It merely declares that the chapter of the Code which 
 provides for the service of " notices, etc." shall not 
 apply to the service of any paper to bring a party into 
 contempt, and thus leaves the practice as it existed 
 under the old system. 
 
 It has also been seen that in Parker z/. Hunt, 15 Abb., 
 410, note, a party was punished as for contempt for not 
 appearing on an adjourned day, though the adjourn- 
 ment was made in his absence by the consent of his 
 attorney, and no memorandum of the adjournment 
 served on him. The attorney of the plaintiff in this 
 case has informed me that the justice placed his deci- 
 
478 WHEN PUNISHED. 
 
 sion on the ground that if a person sends an attorney 
 to court when it is his duty to go himself, he is bound 
 to know what order is made. The case appears excep- 
 tional, when measured by the rule of the foregoing 
 decisions, in this ; that there was no proof that knowl- 
 edge of the adjournment had actually been brought home 
 to the party. However, there is much good sense in the 
 -position that when a party, whose duty it is to attend 
 or be personally present, authorizes counsel to appear 
 instead, and which circumstance of itself may necessi- 
 tate the adjournment, he is bound to know what order 
 is made ; and the creditor should not be put to the 
 trouble of serving notice upon him of an adjournment 
 caused by his own act. 
 
 But it is held where a party is directed by an order 
 of court to do something, as to pay money, deposit 
 papers, etc., and his whole obligation to act at all de- 
 pends not only on the existence of the order, but also 
 upon its being served in a particular manner, the rule 
 is, that the order must be shown him, and a copy 
 delivered to him. The People ■y. Compton, i Duer, 512. 
 
 It is evident, from the nature of supplementary pro- 
 ceedings, and the decisions under the creditor's bill, 
 that where the referee, under the authority of his 
 appointment, summons the debtor or third party to 
 attend before him for examination, the latter is not 
 compelled to attend at the risk of being guilty of con- 
 tempt, unless he has also been personally served with 
 the supplementary order. However, if the examina- 
 tion is referred with such authority after the proceed- 
 ings have been instituted, then it is no doubt sufficient 
 to serve the order of reference with the summons, or it 
 may be sufficient to refer to the order in the summons, 
 and that the debtor is to submit to an examination. 
 Holcomb V. Jackson, 2 Edw., 620 ; St. John v. Sewall, 
 3 Id., 248. 
 
ADJOURNMENT. 479 
 
 From the cases and rules cited in ch. 3, §§ 3 and 4, and 
 those mentioned in this section, the following are the 
 rules of procedure in supplementary proceedings "as re- 
 gards their continuity. The judge or referee may regu- 
 larly adjourn the proceedings from time to time, as the 
 case may require, in the presence of the debtor or third 
 party, but without his consent. He may so adjourn them 
 also in the absence of the adverse party, and though 
 no one is present to represent him, as was done in 
 Reynolds v. McElhone, 20 How., 454, and which was 
 held a valid adjournment. But to bring the party into 
 contempt if he does not attend on the adjourned day, 
 the order of adjournment should be personally served 
 upon him, except as stated above. The officer or referee 
 may also thus adjourn the proceedings and examine 
 witnesses in the absence of the adverse party. But the 
 latter should have notice of such continuance, or else 
 he might be justified in treating the proceedings as 
 abandoned, or object to the testimony of the witnesses 
 being in the attorney to act for the party. As a fact, 
 in the majority of cases counsel do appear for both 
 parties, not merely upon the examination, but through- 
 out the proceedings. Any notice or paper may there- 
 fore be served on the attorney who appears for the 
 creditor, or debtor, or third party, and manages the 
 proceedings for him ; and generally his acts, such as 
 admissions of the service of papers, and notices, con- 
 sents, etc., will bind the party as fully as in any other 
 proceedings in an action. This practice has also con- 
 venience in its favor. A consent adjourning the pro- 
 ceedings to a certain day, signed by the attorney in or 
 out of court, is sufficient to continue them ; but such 
 consent alone would not be sufficient to compel the 
 party's attendance on the adjourned day. To do that 
 an order of adjournment must be obtained upon such 
 consent, and personally served on the party ; unless the 
 
480 SECOND EXECUTION. 
 
 case comes within the rule of Parker v. Hunt, 15 Abb., 
 410, note, when such service might be dispensed with. 
 Where the proceedings have fallen through by the 
 creditor's default, or for any other reason, the attorney's 
 consent without the party's acquiescence will not re- 
 store them. For if they have lapsed, the attorney's 
 retainer in them has ceased, and he can no further bind 
 his client. If, however, they are merely in abeyance, 
 and may be resumed upon proper application therefor, 
 then it would seem the attorney may give a binding 
 consent to that end. 
 
 A stipulation signed by the attorney for the attend- 
 ance of the party at the office of one of the counsel 
 is not obligatory upon him ; because he cannot be com- 
 pelled to appear at any other place than before the 
 judge, or a referee appointed by him. 
 
 But no process or paper to bring the party into con- 
 tempt can be served on the attorney, except it may 
 be in the cases mentioned in Pitt v. Davison, 37 
 N. Y., 235. 
 
 Second Execution. 
 
 It is no objection to these proceedings that a second 
 execution had been issued and was in the sheriff's hands 
 at the time the proceedings were commenced, unless it 
 clearly appears that the property levied upon indisput- 
 ably belongs to the debtor, and is abundantly sufficient 
 to satisfy the debt. Nor will the proceedings be super- 
 seded by the issue of a second execution, unless the 
 same facts appear ; and then the creditor may be com- 
 pelled to elect between the execution and the proceed- 
 ings. Fellerman's Case, 2 Abb., 155; S. C, sub nom. 
 Lilliendahl z/. Fellerman, II How., 528; Farqueharson 
 7;. Kimball, 18 Id., 33; S. C, g Abb., 2,^^,, note. Also 
 Hanson v. Tripler, i Code R. {N. S.), 154; S. C, 3 
 Sand/., S. Ct., 733; Owen v. Dupignac, 9 Abb., 180; 
 
FILING PAPERS. 48 1 
 
 Conway v. Hitchins, 9 Barb., 378. To the contrary- 
 seems to be McArthur v. Lansburgh, i Code R. {N. 5.), 
 
 2X1. 
 
 Presumption of Payment 
 
 Of a judgment after the lapse of twenty years, as 
 declared in 2 R. S., p. 301, § 47, does not abate supple- 
 mentary proceedings commenced before the expiration 
 of that period. So held by Clerke, J., at chambers. 
 Driggs V. Williams, 15 A 66., 477. 
 
 Concurrent Remedies. 
 
 Supplementary proceedings may be instituted, and 
 at the same time an action may be commenced on the 
 same judgment by the creditor to set aside an assign- 
 ment as fraudulent. Taylor v. Persse, 15 How., 417. 
 
 Filing of Papers. 
 
 § 825 Code C. P. provides that " a return or other 
 paper in a special proceeding, when no other disposi- 
 tion thereof is prescribed by law, must be filed, and an 
 order therein must be entered with the clerk of the 
 county iji which the special proceeding is taken, if it is 
 before a county ofificer, or a judge of a court established 
 in a city ; if before a justice of the Supreme Court, with 
 the clerk of a county designated by the justice ; or if 
 no designation is made by him, of a county where one 
 of the parties resides." 
 
 Depositions, etc., taken before a judge of the Superior 
 Court of New York must be filed in the office of the 
 clerk of the city and county of New York. 
 
 Fiske V. Twigg, 50 N. Y. Super. Ct. R., 69, General 
 Term. 
 
 This case further held that although a deposition or 
 examination may not have been in fact used on a mo- 
 tion to appoint a receiver yet they must be filed as 
 directed by § 825. 
 
482 SECOND PROCEEDINGS. 
 
 SECTION VI. 
 Second or Further Proceedings. 
 
 These may be instituted upon an ex parte application, 
 but " the affidavit on which the order is asked should 
 state the previous proceedings, and the fact that the de- 
 fendant had subsequently acquired property, or circum- 
 stances from which such fact should be presumed." 
 If the affidavit is deficient in this respect, the omission 
 may be supplied by amendment after objection is made, 
 as it is one of practice and not of jurisdiction. The 
 examination must be limited to the time when the 
 previous one was concluded. So held in Goodall v. 
 Demarest, 2 Hilt., 534. 
 
 Some judges, as the judge of Kings County, require 
 the creditor to obtain an order upon the debtor to show 
 cause, if he desires further proceedings. This was the 
 practice under the creditor's bill. Hudson v. Plets, 1 1 
 Paige, 180. But the proceedings are not parallel. In 
 the latter the injunction continued between the exam- 
 inations ; but here it falls with the proceedings ; and if 
 the creditor is compelled to notify the debtor of a mo- 
 tion for a second order against him, it is but obliging 
 him to warn the latter to put his property out of reach ; 
 for the judge has no power to grant a preliminary in- 
 junction in the order to show cause. 
 
 Res judicata. 
 
 Supplementary proceedings instituted and prosecuted 
 to a determination before the court or referee estops 
 parties from again litigating the same matter in another- 
 form of action. The proper remedy is to appeal. Mc- 
 Cullough V. Clark, 41 Cal., 298. 
 
 An affidavit in the following form — namely, " that the 
 defendant has been at divers times heretofore examined 
 under an order in supplementary proceedings granted 
 
WHEN FIRST RES JUDICATA. 483 
 
 and no property discovered, but since the last exam- 
 ination the defendant hath become possessed of certain 
 personal property." Such an affidavit is not sufificient 
 to entitle creditor to a second order of examination. 
 It does not state what the property referred to is : 
 whether it remains in possession of defendant or 
 whether it may be applied to the payment of the judg- 
 ment. Railings v. Pitman, 49 N. Y. Superior Ct., 307, 
 General Term. 
 
 Facts must be alleged to enable the justice to de- 
 termine whether or not there is property applicable to 
 the payment of the judgment. 
 
 Where the order supplementary is set aside on motion 
 of the debtor, on the ground that the execution had 
 not been returned at the time, and the examination 
 was not concluded, a second proceeding was allowed. 
 Methodist Book Concern v. Hudson, I How, Pr. N. S., 
 
 517- 
 
 Second proceedings against same debtor not allowed 
 unless some good reason be given, although it is upon 
 another judgment. Canavan v. McAndrew, 20 Hun, 
 46, General Term ; also Hudson v. Plets, 11 Paige, 180 ; 
 3 N. V. Leg. Obs., 120. 
 
 Proceedings voluntarily abandoned by consent of 
 both parties and never terminated by a decree or order, 
 or the merits do not become res Judicata that defend- 
 ant had no property when the proceedings were begun. 
 Carter v. Clarke, 7 Robt., 490, General Term, Code C. P., 
 
 § 2454- 
 
 Where an order or examination is outstanding, based 
 on a prior judgment between same parties, no reference 
 whatever being made in this application to such order, 
 there being no allegation of subsequently acquired 
 property, held plaintiff not entitled to a second exam- 
 ination. Cromwell v. Spofford, 4 N. Y. Civ. Pro. R., 
 273, N. Y. City Ct., Haws, J. 
 
484 WHEN SECOND ALLOWED. 
 
 On first order defendant appeared and submitted to 
 examination ; subsequently the proceedings were aban- 
 doned by the parties. Held that under such circum- 
 stances before another examination should be allowed 
 some facts must be shown to exist which called for a 
 new examination. Citing Jurgenson v. Hamilton, 5 
 Abb., N. C, 149 ; Irwin v. Chambers, 40 N. Y. Superior 
 Ct., 435 ; Sellig v. Mclntyre, 5 M. L. Bull. 69, N. Y. Su- 
 preme Ct. Chambers. Ingraham, J., July, 1882. 
 
 In New Jersey when an order had been fully exe- 
 cuted, the proceedings heard on its merits, the case was 
 res judicata. 
 
 The only ground on which a judgment creditor could 
 ask a new examination was that after the judgment of 
 the court in the previous proceedings the debtor had 
 become possessed of property, in respect to which the 
 creditor is entitled to examine him. Clarke v. Londri- 
 gan, II Vroom, 40; N.J. L. R., 310. 
 
 No second proceeding will be allowed while a first 
 proceeding is yet pending. Brockway v. Brien, 37 
 How., 270, N. Y. Com. Pleas ; Gaylord v. Jones, 7 Hun, 
 480, General Term. But this does not mean that on 
 finding that the judgment debtor obtained property 
 after the first order was served, the creditor may 
 not have an order to discover and reach that. The 
 two proceedings may be consolidated. Under the old 
 practice of the creditors' bill, if the complainant wished 
 to reach property acquired by the judgment debtor 
 after the bill was filed, he had to file a supplemental 
 bill. Caton v. Southwell, 13 Barb., 335. 
 
 A judgment creditor is entitled to examine his debt- 
 or as fully as may be once. When the examination is 
 closed, the case is res judicata as to all matters prior to 
 the examination, or rather prior to the institution of 
 the proceedings. 
 
 A second order will not be granted as a matter of 
 
WHEN DISCRETIONARY. 485 
 
 course, although it may be asked by the creditor upon 
 another judgment ; for the right to examine is granted, 
 not as attaching especially to the judgment, but as the 
 privilege of the particular plaintiff. To secure a second 
 order the affidavit should disclose the first proceeding, 
 and give some good reason for again invoking the power 
 of the judge ; such as subsequently acquired property, 
 etc. Facts by afifidavit must be stated, affording a rea- 
 son for a second examination. The second order is 
 discretionary. Canavan v. McAndrew, 20 Hun, 46 ; 
 S. C. as Canavan v. Coyne, 9 N. Y. W. Digest, 342, 
 General Term ; Grocers' Bank v. Bayaud, 21 Hun, 203 ; 
 S. C, \o N. Y. W. Digest, 124, General Term ; Carter 
 V. Clarke, 7 Robt., 43 ; Hamilton v. Morange, 2 N. Y. 
 M. L. Bull., 58, N. Y. Common Pleas Ch. ; Irwin v. 
 Chambers, 2> /. & Sp. (40 N. Y. Superior Ct. R.), 432. 
 
 But in Grocers' Bank v. Bayaud, supra, Barrett, J., 
 stated that when much time has elapsed since the first 
 examination, and the application is made by a receiver 
 in the performance of his duty, a second examination 
 should be granted and upheld upon very slight evi- 
 dence of a change in the defendant's position, or other 
 facts calling for the exercise of discretion. 
 
 See also Clarke z'. Londrigan,40 A'^y. Law, 310. And 
 this rule is enforced, although a new judgment has been 
 recovered on the former one, and the examination is 
 asked for on this new judgment. Irwin v. Chambers, 
 % J. &■ Sp. (40 N. Y. Superior Court R.), 432, General 
 Term. 
 
 This rule was enforced against the assignee of a judg- 
 ment where the original order had four years before 
 examined the debtor. Jurgenson v. Hamilton, 5 Abb., 
 N. C, 149. But where the first proceeding has inad- 
 vertently fallen through, a second proceeding is allowed 
 without requiring the creditor to show newly acquired 
 property. Jurgenson v. Hamilton, supra. So also 
 
486 WHEN FIRST ORDER SET ASIDE. 
 
 when the former proceeding is discontinued by consent, 
 no bar exists to a second proceeding. Carter v. Clarke, 
 7 Robt., 43, Special Term, and S. C. on appeal, 7 Robt., 
 496, being in conformity with the practice in creditor's 
 bills. 
 
 Also when the first order was set aside on the debt- 
 or's motion, a second order will be granted, although 
 the order setting aside the first proceeding was not en- 
 tered, through the neglect of the debtor's attorney, to 
 whom the written decision had been handed, and whose 
 duty it was to enter it. Shults v. Andrews, 54 How., 
 380, Supreme Court, Special Term. The court in this 
 case also stated that the Code did not require the entry 
 of such an order in the clerk's ofifice, except for the 
 purpose of an appeal therefrom. 
 
 See also Hamilton v. Morange, 2 N. Y. M. L. 
 Bull., 58. 
 
PROCEEDINGS UNDER § 650. 487 
 
 CHAPTER VII. 
 
 PROCEEDINGS UNDER § 650. 
 
 SECTION I. 
 
 Of Proceedings in Aid of an Attachment or Execution 
 under § 650. 
 
 § 650 Code C. P. provides that a corporation or debt- 
 or shall furnish to the sheriff holding an attachment a 
 certificate showing the amount of the debt or property 
 held for the debtor, as will more fully appear by refer- 
 ence to the section. 
 
 The proceedings authorized by this section are in aid 
 of the execution in certain cases, as stated below ; and 
 for this reason I have thought it proper to insert them 
 in this treatise. 
 
 The property referred to here is that mentioned in 
 the preceding sections of the same chapter of the Code 
 of Procedure. 
 
 In what Cases Applicable. 
 
 This proceeding, as an aid to the execution, is only 
 available where an attachment in provisional remedies 
 has been issued. In such a case the sheriff has the 
 same power with the execution that he had with the 
 attachment, and is authorized to levy upon any rights, 
 shares, debts, or other property incapable of manual 
 delivery, and to require a certificate to be delivered to 
 him by the debtor of the defendant or the holder of 
 such property, the same as with an attachment. Mc- 
 Bride v. The Farmers' Branch Bank, 7 Abb., 347. 
 
438 HOW ORDER APPLIED FOR. 
 
 Hence, in cases of this kind the rules of procedure un- 
 der this section apply equally to attachments and 
 executions. 
 
 Where and How the Order is Applied for. 
 
 The application for the order requiring the attend- 
 ance and examination of the person named may be 
 made to the court in which the judgment is rendered, 
 or to a justice thereof. When the application is to the 
 Supreme Court, it should be made in the district where 
 a motion upon notice in the action would have to be 
 made (Code, § 769) ; or, at least, the order must be re- 
 turnable in such district. Code C. P., §651. 
 
 The order is obtained upon proof of the facts required 
 to entitle the plaintiff thereto. Such proof is furnished 
 by the affidavit of any person who knows the facts to 
 be sworn to. 
 
 These proceedings are in the action, and bear the 
 same title. 
 
 What Must be Shown to Obtain the Order. 
 
 This is a proceeding to compel the person moved 
 against to furnish the sheriff a certificate under his 
 hand of the defendant's property in his possession, or 
 his indebtedness to him. 
 
 In Hoagland v. Stodolla, i Code R. {N. S), 210, the 
 sheriff served an attachment on R., alleged to be a 
 debtor of the defendant, and demanded a certificate. 
 He certified having in his hands seventy-five dollars. 
 The plaintiff obtained an order for his examination. 
 The order was held to be invalid ; it could not be al- 
 lowed when a certificate had been given ; the plaintiff's 
 remedy was by action. 
 
 In Carroll v. Finley, 26 Barb., 61, the parties upon 
 whom an attachment was served gave a certificate to 
 the sheriff that they had no property of the defendant 
 in their hands. An order was made at special term va- 
 
WHAT MUST BE SHOWN. 489 
 
 eating an order for their examination. On appeal, the 
 order of the Special Term was affirmed ; but the ma- 
 jority of the court held that the plaintiff might im- 
 peach the truth of the certificate. He might establish 
 to the satisfaction of the judge, by the former admis- 
 sions of the party, that the certificate was untrue ; and 
 this might be regarded as a refusal to give a certificate. 
 Mitchell, J., said : 
 
 " There must be proof of the party being a debtor to 
 the defendant, or having property of his. Of this there 
 was not proof when a party certifies he has nothing, 
 and this is met only by information and belief that he 
 has." Clerke, J., in the same case said : " Two 
 things must concur to subject the third party to an ex- 
 amination : he must be a debtor of the defendant, or 
 have property of his in his control, and he must refuse 
 a certificate." The Code C. P., §651, now authorizes 
 the certificate to be controverted. 
 
 So in Hopkins 7/. Snow, 4. Abb., 368, MITCHELL, J., 
 held that a certificate furnished under this section stat- 
 ing the amount and description of property possessed 
 was conclusive, and no examination could be allowed ; 
 thus concurring with the court in Hoagland v. Stodolla, 
 supra. 
 
 But where the certificate was, that the party held no 
 property of the defendant, and an affidavit was produced 
 of a previous admission of having held such property, 
 the order for his examination was made. The learned 
 justice said : " The remedy is a special one, and is 
 limited to the cases clearly provided for. It is only 
 when the individual refuses to give a certificate desig- 
 nating the amount and description of the property held 
 by him that he can be examined." But " the oath of 
 the witness is proof that the person holds the property. 
 M.'s certificate not given under oath does not invali- 
 date that proof, and is no evidence of the fact." 
 
490 WHEN DEBTOR EXAMINED. 
 
 So also in Beebee v. Rogers, Special Term, N. Y. 
 Superior Court {Hoffman on Pro. Rem., p. 449), the 
 party gave a certificate that he had no property of the 
 debtor; but upon an affidavit that he had a few 
 days previously admitted that he owed the defendant, 
 an order was granted for his examination. 
 
 In Schieb v. Baldwin, 13 Abb., 469; S. C, 22 How., 
 278, it was held that a party was not bound to give a 
 certificate unless he was apprised by the sheriff that he 
 had an attachment or execution against the defendant ; 
 and therefore no order would be granted under such 
 circumstances. It was further held in this case that no 
 attachment could be levied on property after judgment 
 in the action. 
 
 From these decisions the following rules, for the pur- 
 pose of obtaining the order, are deducible. It must be 
 averred that the person moved against has property of 
 the defendant, or is indebted to him. The property 
 should be described, and the amount of the indebted- 
 ness stated, as far as can be done. The proof should 
 also allege that the sheriff applied to such person with 
 a warrant of attachment, or an execution, as the case 
 may be, and, apprising him thereof, demanded a cer- 
 tificate designating the amount and description of the 
 property in his hands belonging to the defendant, or 
 of the indebtedness to him ; and that the party refused 
 to do so, or, if he did furnish one that he held no prop- 
 erty of, or was not indebted to, the defendant, the 
 plaintiff must then establish by the former admission of 
 the party, or perhaps otherwise, to the satisfaction of 
 the court or judge, that such certificate is untrue. If a 
 certificate of property is furnished, it is conclusive upon 
 the plaintiff in this proceeding, although he may think 
 that it does not contain the whole amount of the de- 
 fendant's effects in the party's hands. However, it is 
 difficult to see why the plaintiff may not impeach this 
 
THE ORDER. 49I 
 
 certificate for untruthfulness, as well as a certificate of 
 no property. 
 
 The Order 
 
 Should contain the substance of the affidavit, unless 
 that is served with it, and require the party to attend 
 at a time and place specified, and be examined on oath 
 concerning his refusal to furnish a certificate. When 
 the order is made by a judge, it must require the party 
 to attend before him or a referee. Code, § 651. It 
 may be served anywhere in the State, no matter from 
 what court or judge it emanates. It is served in the 
 same manner as an order under § 2452. 
 
 Proceeding upon the Return of the Order. 
 
 The examination is on oath, and, according to the 
 decisions, very limited. Mitchell, J., in Hopkins v. 
 Snow, supra, held that if the party is examined, and 
 denies the facts alleged in the affidavit on which the 
 order is granted, or denies that he holds property of 
 the defendant, the examination must end ; or, if in 
 response to a motion, he by affidavit alleges similar 
 facts, the motion must be denied. The learned justice 
 likens this proceeding in this respect to those under 
 § 294. It will be remembered that the case of Van 
 Wyck V. Bradly (3 Code R., 157), decided by the same 
 justice at Special Term, holds very similar views con- 
 cerning the examination under § 294. However, the 
 examination in proceedings under § 294 is not so limit- 
 ed (as I have endeavored to show) as the case of Van 
 Wyck V. Bradly holds ; but that under this section (650) 
 seems not to admit of any greater extent than the de- 
 cision of Hopkins v. Snow, supra, accords to it. 
 
 Witnesses. 
 
 No provision is made for the attendance and exam- 
 ination of witnesses in this proceeding. 
 
492 PROCEEDINGS AGAINST FOREIGN CORPORATIONS. 
 
 The Determination. 
 
 If the court or judge find that the party has property 
 of, or is indebted to, the defendant, and did refuse to 
 give a certificate on a proper demand made for one, or 
 that the one which he gave that he had no property or 
 was not indebted, is false, then he will be ordered to 
 furnish to the sheriff the certificate required by this 
 section, and his disobedience to such an order may be 
 punished as for a contempt. If the above facts, or any 
 of those which are essential to the proceeding, do not 
 exist, the order must be discharged. 
 
 Disobedience to Orders. 
 
 A disobedience to any order made in this proceeding 
 may be punished as for contempt by the court, though 
 it was granted by a judge ; for the latter has no au- 
 thority given him herein to punish such offence. The 
 procedure to ascertain and punish a misdemeanor here- 
 in as for contempt is that described under " Enforce- 
 ments of Orders" etc., ch. 3, § 4, ante. Orders to bring 
 the party into contempt must be served as provided in 
 § 2452, Code of Civil Procedure. 
 
 The Proceeding against Property of Foreign Corporations. 
 
 The proceeding authorized by § 650 of the Code was 
 no doubt suggested by that against foreign corpora- 
 tions. The law of 1842, ch. 197, p. 227 (3 R. S., 5 ed., 
 P- 7S7> " Foreign Corporations"), provides that the rights 
 and shares which a foreign corporation may have or own 
 in the stock of any bank, banking association, etc., and 
 all other property of any name or kind, which it may 
 have or own in this State, shall be liable to be attached 
 and sold on execution for the satisfaction of a judgment 
 against such corporation. The same law (§ 3) provides 
 that the cashier, secretary, or clerk of such bank, etc., 
 or the individual holding the defendant's property, shall 
 furnish the sheriff with a certificate similar to that de- 
 
EXTENT OF EXAMINATION. 493 
 
 scribed in Code, § 236. The law of 1848, ch. 53, p. 69 
 (3 R. S., 5 ed., p. 760, " Foreign Corporations"'), amen- 
 datory of that of 1842, provides that upon the party's re- 
 fusal to give the required certificate, proceedings similar 
 to that under § 236 of the Code may be instituted be- 
 fore an officer of the court out of which the attachment 
 or execution issued; and that the provisions of §§ 12, 
 13, 14, 15, and 16, of article 8, tit. i, ch. 5, part 2, of the 
 Revised Statutes, in relation to the mode of examina- 
 tion there provided, shall apply to and govern the ex- 
 amination in these proceedings, so far as the same may 
 be applicable. 
 
 The examination authorized by the last-named stat- 
 ute is thorough and extensive. Power is given the 
 officer to commit to prison without bail any person 
 brought before him who shall refuse to be sworn, or to 
 answer satisfactorily all lawful questions put to him, or 
 shall refuse to sign his examination. 
 
494 OF FORMS. 
 
 CHAPTER VIII. 
 
 OF FORMS. I 
 
 Sfxtion I. For proceedings before examination. 
 " 2. For proceedings on the examination. 
 " 3. For proceedings to apply property toward the satisfaction 
 
 of the judgment [§ 297]. 
 " 4. For proceedings in receivership. 
 " 5. For proceedings to punish disobedience of process and 
 
 orders. 
 
 SECTION I. 
 
 For Proceedings before Examination. 
 
 I. Affidavit by the Plaintiff to Obtain Order from a Justice of the 
 
 Supreme Court upon a Judgment in that Court, after Return 
 
 of Execution [§ 2435]. Vide ante, p. 87. 
 
 No. I. 
 Supreme Court. 
 
 A. B. 
 
 V. 
 
 C. D. 
 
 State of New York, City and ) 
 County of New York, \ ^^" 
 
 A. B., being duly sworn, says that he is the above- 
 named plaintiff ; that judgment was duly rendered in this 
 action in deponent's favor, and against the above-named 
 defendant in this court, in and for the said citj and 
 county, on the \2th day oi June, in the year one thousand 
 eight hundred and sixty-four, for the sum of one thousand 
 dollars damages and costs ; that the judgment was re- 
 covered upon personal service of the summons upon 
 the judgment debtor (or upon his personal appear- 
 
AFFIDAVIT. 495 
 
 ance) ; that the judgment-roll was duly filed on said 
 day in the office of the clerk of said city and county ; 
 that an execution upon said judgment against the 
 property of the defendant was thereafter on the same 
 day duly issued to the sheriff of the said city and 
 county where the defendant then resided; that the 
 sheriff has returned said execution wholly unsatisfied, 
 and that said judgment remains wholly unpaid, and that 
 no other application has been made for an order sup- 
 plementary. 
 
 Sworn to before me this ) r n ^ ..' • ^ t 
 
 day of , i86 . f IPeponents signature.} 
 
 [Signature of Officer.'] 
 
 2. A General Form of Affidavit to Obtain an Order of Exami- 
 nation of Debtor on a. Judgment in the Supreme Court. 
 Vide ante, p. 87, et seq. 
 
 No. 2. 
 [Title of Cause.] 
 
 [ Venue.] 
 
 I. A. B., being duly sworn, says that he is the above- 
 named plaintiff \or one of the above-named plaintiffs, 
 or the above-named defendant, or the attorney or agent 
 of the above-named plaintiff or defendant, or the 
 assignee of the judgment hereinafter mentioned, the 
 same having been duly assigned to him by an instru- 
 ment in writing on the day of , 
 18 , or that he is acquainted with all the facts herein- 
 after stated, having been at the time the managing 
 clerk of , the attorney of the plaintiff in 
 the above-entitled action, and that he makes this affi- 
 davit at the request of the plaintiff ■ or whatever may 
 be the facts].* 
 
 * If a personal representative of a deceased creditor seeks to insti- 
 tute the proceedings (§ 1376), he must allege the decease of the cred- 
 itor and his appointment as executor or administrator. 
 
496 AGAINST JOINT DEBTORS. 
 
 II. That judgment was duly rendered (*) in this 
 action in favor of the plaintiff, and against the defend- 
 ant \or defendants, and each of them, or defendants 
 to be enforced against the joint property of all the 
 defendants, and the individual property of the defend- 
 ant, C. D., or the above-named plaintiff], in this court, 
 (f) in and for the County of , on the 
 
 day of , 18 , for the sum of 
 
 damages and costs ; that the judgment-roll was duly 
 filed in the ofifice of the clerk of said county on 
 
 the last-named day [and a transcript of the docket of 
 said judgment, duly filed in the ofifice of the clerk of 
 the County of on the day of 
 
 18 J. 
 
 III. That an execution upon said judgment against 
 the property of the said defendant [or defendants, 
 C. D. and E. F., or against the joint property of all the 
 above defendants, and the individual property of the 
 said defendant, C. D., or the said plaintiff, or, etc.] was 
 thereafter on the day of 18 , 
 duly issued to the sheriff of the County of 
 
 IV. That the defendant, C. D., then resided [or that 
 at the time of the commencement of this proceeding the 
 judgment debtor has a place for the regular transaction 
 of business in person ; to wit, an ofifice as broker, at 
 No. Street, in the City of ] in 
 the last-named county. 
 
 Or, that the defendant, C. D., did not then (and does 
 not now) reside in this State, but in the State of 
 
 V. That the sheriff has returned said execution 
 wholly unsatisfied [or, unsatisfied, except the sum of 
 
 dollars], and that said judgment remains wholly 
 unpaid [except the sum of dollars paid 
 
 thereon]. That no previous application for an order has 
 been made. 
 
 \Deponenf s Signature ^ 
 \,J'uratI\ 
 
AFFIDAVIT FOR INFERIOR COURTS. 497 
 
 3. Affidavit for an Order upon a Judgment of any Court of 
 
 Record. Vide ante, p. 87, et seq., and as to Court 
 Title, p. 24. 
 
 {Title of the Cause. \ 
 
 {Proceed as in Form 2 to the (f ), then continue .•] on 
 the day of , 18 , for the sum of 
 
 dollars damages and costs ; that the 
 judgment-roll was duly filed in the ofifice of the clerk of 
 the said court, and a transcript of the docket of said 
 judgment duly filed in the office of the clerk of the 
 
 County of on the day of , 18 . 
 
 III. That an execution, etc. {Proceed to the end, as 
 in Form 2.] 
 
 4. Affidavit for an Order upon a Judgment of a Justice's Court 
 
 or any other Court not of Record. Vide ante, p. 87, et 
 seq., as to Court Title, vide ante, p. 24. 
 
 {Title of the Cause. \ 
 
 {Proceed as in Form 2 to the (*), then continue .•] and 
 given in an action in the Marine Court of the City of 
 New York [or an action in the District Court for the 
 judicial district in the City of New York ; or in 
 an action in a justice's court of the town of , in 
 
 the County of , held by and before , Esq., 
 
 a justice of the peace of the said town], on the day of 
 ,18 , in favor of the above-named plaintiff, 
 and against the above-named defendant {or as in Form 
 2] for the sum of dollars — to wit : dam- 
 
 ages and costs ; that a transcript of said judg- 
 
 ment was duly filed and docketed in the ofifice of the 
 clerk of the County of on the day of , 
 
 18 {and if the order is applied for in a county other 
 than in which the judgment was rendered, continue :\ 
 that a certified transcript of said judgment was duly 
 filed and docketed in the ofifice of the clerk of the 
 County of on the day of , 18 . 
 
498 AFFIDAVIT BY ASSIGNEE. 
 
 III. \Then allege issue of execution, etc., as in Form 2 
 to the end.l 
 
 S. Affidavit for Order when the Name of an Assignee is Sub- 
 stituted for that of the Creditor. Vide ante, p. 35, et seq. 
 
 Title of the Court. 
 Y. Z. 
 
 V. 
 
 C. D. 
 
 [ Venue. \ 
 
 [Proceed as in Form 2, with slight modifications to the 
 end of Part I . ; then continue :'\ II. That judgment was 
 duly rendered [and given, see Form, 4] in an action in 
 favor of A. B., and against the above defendant, C. D. 
 [same as in Form 2, 3, or 4, except at the end thereof add :'\ 
 that the said judgment was on the day of , 
 
 18 , duly assigned by an instrument in writing to the 
 said Y. Z., who is now the owner thereof. 
 
 {Deponent's signature.^ 
 
 [Jurat.'] 
 
 6. Order for the Examination of the Debtor on a. Judgment of 
 
 a Court of Record after Return of Execution. Vide 
 
 ante, p. 98. 
 
 Court. 
 
 A. 
 
 B. 
 
 
 V. 
 
 C. 
 
 D. 
 
 It appearing to my satisfaction by the affidavit of 
 
 that judgment was duly rendered in 
 
 this action against the above-named defendant [briefly 
 
 recite the facts as they are] in this court on the 
 
 day of ,18 , for dollars damages and costs 
 
ORDER UNDER § 2435. 499 
 
 [that a transcript thereof was duly filed in the clerk's 
 office of the County of ] ; that an execution 
 
 upon said judgment against the property of the said 
 defendant {according to the facts in the affidavit'] has 
 been duly issued to the sheriff of the proper county, 
 and returned wholly unsatisfied [or unsatisfied except 
 the sum of :] (*) I hereby order and require the 
 
 said defendant to appear in person before me at my 
 chambers in the village of \or before me at the 
 
 chambers of the Supreme Court at the City Hall ; or 
 before R. S., Esq., of , counsellor-at-law, whom 
 
 I hereby appoint referee to take and certify the exam- 
 ination herein to me (or to take the examination herein 
 and report the facts to me), at his office, No. 
 Street] in the City of , on the day of 
 
 ,18 , at o'clock noon, and 
 
 such further days as I, or a referee duly appointed [or 
 the said referee] shall name, to be examined and make 
 discovery on oath concerning his property [or concern- 
 ing the joint property of all the above-named defendants, 
 and the separate property of the said C. DI\. And the 
 said defendant, C. D., is hereby forbidden to transfer, 
 or make any other disposition of any property belong- 
 ing to him [or of the joint property of the above de- 
 fendants, or the separate property belonging to him], 
 not exempt by law from execution ; or in any manner 
 to interfere therewith until further order in the premises. 
 
 Dated at , the day of , 18 . 
 
 [Signature of judge.] 
 
 [Signature of attorney.] 
 
500 ORDER APPOINTING REFEREE. 
 
 7. Order on a Judgment of a Justice's or any; Other Inferior 
 Court. Vide ante, p. 98. 
 
 N. Y. Court of Common Pleas. 
 
 A. 
 
 B. 
 
 z 
 
 
 C. 
 
 D. 
 
 It appearing to my satisfaction by the affidavit of 
 , that judgment was duly rendered and given in 
 (*) this action against the above-named defendant 
 [briefly recite the facts as they are] in the Marine Court 
 of the City of New York, on the day of , 
 
 18 , for dollars damages and dollars 
 
 costs ; that a transcript thereof was duly filed in the 
 clerk's ofifice of the City and County of New York ; that 
 an execution upon said judgment, etc. {continue to the 
 end as in Form 6]. 
 
 8. A Fuller Order Appointing Referee, with Power to Issue 
 
 Summons for the Attendance of the Debtor or Third 
 
 Party. Vide ante, pp. loi and 128. 
 
 [Proceed as in Form No. 6 or 7, according as the judg- 
 ment is of a court of record or not, except, instead of the 
 clause requiring the debtor to appear before the judge, 
 say .-] to appear in person before R. S., Esq., of the 
 City of New York, counsellor-at-law, at his office (No. 
 Broadway, in said city^ on the day of , 
 
 18 , at o'clock in the noon, and on such further 
 days as the said referee shall name [or on such day and 
 hour as the said referee shall require by his summons 
 duly issued and served, and on such further days as he 
 shall name], to be examined, etc. [continue to the end 
 of injunction clause as in No. 6, then add .■] and I hereby 
 appoint the said R. S., referee, to take and certify to 
 me the examination herein, or I hereby appoint the said 
 R. S., referee, to take the examination herein, and to 
 
AFFIDAVIT UNDER § 2436. 50I 
 
 find and report to me the facts, whether the said debtor 
 has any property applicable to the payment of the 
 judgment herein, its nature and situation, and whether 
 it may be directly applied upon the judgment or 
 whether a receiver should be appointed. [And what- 
 ever else the referee is to find and report.'] 
 [Date and signature as in No. 6.] 
 
 9. Order when the Proceedings are Instituted in the Name of the 
 
 Assignee. Vide ante, pp. 35, 99. 
 
 [Proceed as in Form 6 or 7, according as the judgment 
 is of a court of record or not to (*), then continue .•] an ac- 
 tion in the Supreme Court in favor of A.B., and against 
 the above-named defendant [briefly recite the facts'] on 
 the day of, etc. [continue to the end as in Form 6 
 
 or 7]. 
 
 10. Affidavit for Order before Return of Execution (Code, § 2436). 
 
 Vide ante, p. 104. 
 
 [Proceed as in Forms 1-5, according to the facts, to the 
 end of paragraph IV., then continue :] that the said de- 
 fendant now resides at , in the County of , 
 and has property which he unjustly refuses to apply 
 toward the satisfaction of the aforesaid judgment — to 
 wit : a bond and mortgage of the value of five hundred 
 dollars on real estate situated in the County of , 
 and promissory notes of divers persons of the value of 
 dollars [or a horse of the value of four hun- 
 dred dollars, which is not exempt by law from execu- 
 tion, and which he keeps concealed somewhere in the 
 County of , so that the said sheriff cannot, with 
 ordinary diligence, find the same, as will appear by his 
 affidavit hereto annexed] that on the day of , 
 18 , at , in the County of this, 
 deponent did [or by the direction of the plaintii? did] 
 request the said defendant to apply the said property 
 
502 ORDER. 
 
 toward the satisfaction of the said judgment, which he 
 then and there refused to do. [ Then allege the non-pay- 
 ment of the judgment, and continue to the end as in Form 
 
 2.] 
 
 11. An Order for the Examination of a Judgment Debtor, Made 
 
 by a Judge before the Return of Execution 
 (Code, § 2436). Vide ante, p. 104. 
 
 {Proceed as in Form 6, 7, or 9, accorditig to the facts, to 
 and including the recital of the issue of execution, and 
 then continue .•] that the said defendant resides at 
 in the County of , that being the county of my 
 
 residence ; that he has property which he unjustly 
 refuses to apply toward the satisfaction of the said 
 judgment ; I do hereby order and require the said 
 defendant to appear in person before me \or, same as in 
 Forms 6-9] to be examined, and to answer on oath con- 
 cerning such property. And the said defendant, C. D., 
 is hereby forbidden to transfer or make any other dis- 
 position of the said property, or in any manner to 
 interfere therewith until further order in the premises. 
 \If a referee is to be appointed add reference clause as in 
 No. 6 or 8.] 
 
 {Date.^ \Signature of judge. ^ 
 
 {Signature of attorney. '\ 
 
 12. A Court Order for the Examination of a Judgment Debtor 
 
 before Return of Execution. Vide ante, p. 104. 
 
 At a Special Term of the Supre^ne Court, held in 
 and for the City and County of New York, 
 at the City Hall in said city, on the 
 day of , 18 , 
 
 Present : Hon. , Justice. 
 
 [ Title of the Cause. ^ 
 
 It satisfactorily appearing to the court {then proceea 
 as to recitals as in Form 6, 7, or 9, according to the facts, 
 
AFFIDAVIT FOR WARRANT. 503 
 
 to and including the recital of the issue of execution, and 
 then continue .-] * that he has property which he unjustly 
 refuses to apply toward the payment of the said judg- 
 ment, the said defendant is hereby ordered and required 
 to appear before this court at a Special Term thereof 
 appointed to be held at , in the 
 
 City of , County of 
 
 , on the day of , 18 , at 
 
 o'clock noon, and on such further days as the court 
 or referee duly appointed shall name \or before R. S., 
 Esq., of the , counsellor-at-law, who is 
 
 hereby appointed] [reference clause the same as in Form 
 6 or 8], to be examined, and to answer on oath concern- 
 ing said property. \The injunction clause the same as 
 in Form 11 .j 
 
 13. Affidavit to Obtain the Warrant of Arrest against a Debtor 
 
 -who is about Leaving the State or Concealing Himself 
 
 (Code, § 2437). Vide ante, p. 116. 
 
 [Proceed as in Form 1-5, according to the facts, to the 
 end thereof, if the execution has been returned ; if not, 
 then omit that allegation, and add that of the debtor s 
 present residence, as in Form 10, then continue :'\ that the 
 said defendant is about to leave this State to go to the 
 State of [or that deponent has to-day in- 
 
 quired at the store of the said defendant, and was then 
 and there informed by a clerk of said defendant that said 
 defendant had started for , to get out of reach 
 
 of his creditors, or that he has lately threatened and 
 given out that he will speedily leave this State and go 
 into the State of ]; that he has property which 
 
 he unjustly refuses to apply to said judgment — to wit : 
 [same as in Form 10; or he lately owned and possessed 
 
 * As this proceeding may be taken before the court, no matter in 
 what county the debtor resides, or though he is a non-resident of the 
 State (see p. 59), the recital of residence is not material. 
 
504 WARRANT. 
 
 a stock of jewelry at his store, No. Street, in 
 
 , which he has removed and concealed, and 
 is about to carry to the State of J: that on the 
 
 day of , i8 , at , in the 
 
 , County of , this deponent 
 
 did (by the direction of the plaintiff) request the said 
 defendant to apply the said property toward the pay- 
 ment of said judgment, but the said C. D. then and 
 there refused to apply any portion of his said property 
 to pay said judgment. 
 
 [Deponent's signature,] 
 {Jurat.~\ 
 
 14. Warrant of Arrest (Code, § 2438). Vide ante, p. 116. 
 [ Title as in an Order.] 
 
 The People of the State of New York to the 
 Sheriff of the County of 
 
 greeting : 
 Whereas, a judgment was duly rendered and given 
 in this action against the above-named defendant \yary 
 the recitals as to the judgment, execution, etc., according 
 to the case made by the affidavit, as in the order 6 or 11]; 
 and whereas proof has been furnished to the judge issu- 
 ing this warrant, to his satisfaction, by the affidavit of 
 that there is danger of the said C. D. 
 leaving the State \or concealing himself, or both] ; and 
 whereas it in like manner appears to the satisfaction of 
 said judge that said C. D. has property which he un- 
 justly refuses to apply to said judgment ; now, therefore, 
 we do warrant and command you that you arrest the 
 said C. D., and bring him forthwith \or on the day 
 
 of , 18 ] before the undersigned, J. J., 
 
 a justice of the court, at \state where ; see Form 
 
 6], to be examined on oath, and proceeded with pursu- 
 ant to § 2435 of the Code of Civil Procedure. And 
 
AFFIDAVIT UNDER § 2441. 505 
 
 have you then there this writ. Given under my 
 
 hand at , in the County of , the 
 
 day of 18 . 
 
 {Signature ofjudgeP^ 
 {Signature of attorney. \ 
 
 15. Affidavit for an Order to Examine a Third Party. (§ 2441.) 
 Vide ante, p. 123. 
 
 {Title of the Cause. \ 
 
 { Venue.'\ 
 
 A. B., being duly sworn, says that he is the above- 
 named plaintiff {proceed as in Forms i — 5, according to 
 the facts, to the end thereof, with or without the allega- 
 tion of the return of execution, according to the fact ; 
 then continue .•] G. H., who resides {or has a place of busi- 
 ness] in the County of , has property 
 belonging to the above-named defendant, consisting- of 
 a quantity of furniture, fixtures, counters, shelves, 
 chairs, etc., etc., of a store in , formerly oc- 
 cupied by said C. D., and some money — the proceeds of 
 sales made by said G. H. of a part of such property {or 
 that the said G. H. is indebted to the said C. D. in an 
 amount exceeding ten dollars — to wit : the sum of 
 dollars, being the price of some merchandise sold to said 
 G. H. by said C. 2?.] 
 
 * That supplementary proceedings pursuant to § 2435, 
 Code of Civil Procedure, have been instituted upon the 
 said judgment, and are now pending against said C. D., 
 before the Hon. , Justice of the Supreme Court 
 
 at the County of {or that the said C. D. 
 
 is not and has not been at any time within the last 
 months a resident of the State of New York, but has 
 resided during all that time, and still resides in 
 
 * Neither of these latter averments seem necessary in the first dis- 
 trict, except only so far as to serve for a guide to the judge as to 
 whether and how notice shall be given to the debtor. 
 
5o6 ORDER. 
 
 , but in what part thereof deponent has not 
 been able to ascertain, though he has made due inquiry ; 
 or that the said C. D. has absconded, or concealed him- 
 self out of reach of his creditors, and deponent has not 
 been able to acertain where he is, though he has made 
 due inquiry, or said C. D. is a corporation]. 
 
 [^Deponent's signature.'] 
 [Jurat.'] 
 
 16. Order for the Examination of a Third Party (Code, § 2441). 
 Vide ante, p. 123. 
 
 [Proceed as in Form 6—9, with or without recital of 
 the return of execution, according to the fact ; then con- 
 tinue :] that G. H. of the City of has prop- 
 erty of the said defendant, C. D. [or is indebted to him 
 in amount exceeding ten dollars]. I hereby order and re- 
 quire the said G. //., [or S. K., the cashier of said G. H.] 
 to appear before me [same as in Form 6], to answer on 
 oath concerning the same ; and the said G. H. is [or 
 the said G. H. and all its officers and agents are] hereby 
 forbidden to transfer, or make any other disposition of 
 such property of the said judgment debtor C. D. [or of 
 said indebtedness], or in any manner to interfere there- 
 with until further order in the premises. [If the exam- 
 ination is to be referred, add a reference clause as in Fonn 
 6 — 8. If notice is to be given to the debtor, add:] and I 
 hereby direct that a copy of this order and annexed 
 affidavit be personally served on the said C. D. 
 days before the examination [or upon O. P., his attor- 
 ney of record, or by mailing the same to said C. D., at 
 ; properly addressed, and the postage paid 
 thereon ; or any other mode of notice that the officer may 
 direct]. 
 
 [Date.] [Signature of judge.] 
 
 [Signature of attorney.] 
 
REFEREE S SUMMONS. 507 
 
 17. Referee's Summons Requiring the Attendance of Judgment 
 Debtor or Third Party before him. Vide ante, p. 134. 
 
 \Title of the Cause.] 
 
 {Address to defendant or third party.] By virtue of 
 an order in this cause made by the Honorable /. /., 
 Justice of the Supreme Court, dated the day of 
 
 , 18 , I, , the referee appointed 
 
 therein to examine you and witnesses as to your prop- 
 erty \or as to any property of the above-named defend- 
 ant in your possession, or as to any debt due from you 
 to the above-named defendant], do hereby summon and 
 require you to attend in person before me at my office. 
 No. Street, in the of , on the 
 
 day of ,18 , at o'clock noon, to be 
 
 examined, and to make discovery on oath concerning 
 your property \or to answer on oath concerning any 
 property of the above-named defendant in your hands ; 
 or concerning any debt due from you to the above- 
 named defendant]. And hereof fail not at your peril. 
 
 Dated the day of , 18 . 
 
 [Referee's signature.] 
 
 I direct that this summons be personally served upon 
 the said C. D., at least days before the return 
 
 thereof. 
 
 IDate.] {.R. S.] Referee. 
 
 18. Affidavit of Service of Order, or Summons for the Examina- 
 tion of the Debtor or Third Party. 
 
 [ Title of the Cause.] 
 
 A. B., being duly sworn, says that he did on the 
 day of ,18 , at No. Street, in the City 
 
 of , personally serve upon C. D. the annexed affi- 
 davit and order \or summons] by delivering to and 
 leaving with him a true copy thereof, and at the same 
 time and place exhibiting to him the annexed original. 
 And deponent further says that he knew the person so 
 
5o8 REFERENCE. 
 
 served as aforesaid to be the person mentioned and de- 
 scribed in said order [or summons, as the defendant or 
 one of the defendants therein] and to whom the same 
 
 is directed. 
 
 [Deponent' s signature.^ 
 [Jurat.'] 
 
 SECTION II. 
 For Proceedings on the Examination. 
 
 19. Order of Reference (§ 2443). Ante, p. 128. 
 
 [Title of the Cause.] ' 
 
 The judgment debtor having appeared [or been 
 brought] before me in supplementary proceedings in 
 this action [upon the consent of the parties therein] I 
 hereby appoint R. S., Esq., of the City of , 
 
 referee to take the evidence therein and report the 
 same to me [or to take the evidence therein and report 
 to me the facts [as in Form 8]. And the said C. D. [or 
 G. H.] is hereby ordered and required to attend in per- 
 son before the said R. S., at his ofifice, No. Street, 
 in the City of , on the day of , 
 18 , at o'clock in the noon [or on such day 
 and hour as said referee shall direct by his summons 
 duly issued and served], and on such further days as he 
 shall name, to be examined and to make discovery on 
 oath concerning his property [or to answer on oath 
 concerning any property of the defendant, C. D., in 
 his possession, or any debt due the defendant, C. i?.]. 
 [Date.] [Signature of judge.] 
 
 20. Subpoena for the Attendance of Witnesses. Ante, p. 151. 
 
 The People of the State of New York to [insert 
 names of witnesses]. Greeting : 
 We command you, that all business and excuses 
 
SUBPCENA. 509 
 
 being laid aside, you, and each of you, appear and at- 
 tend before (*) the Hon. J. J., ^justice of the Supreme 
 Court, at his chambers \pr at the chambers of the 
 Court, at the City Hall, or before R. S., referee ap- 
 pointed by the Hon. J. J., a justice of the Supreme 
 Court, at his office, No. Street], in the City of 
 
 , on the day of , 18 , at o'clock noon, 
 
 to testify and give evidence in certain proceedings sup- 
 plementary to execution, now pending before the said 
 justice, and the examination therein to be then taken 
 between A. B., plaintiff, and C. D., defendant, on the 
 part of the plaintiff; and for a failure to attend you 
 will be deemed guilty of a contempt of court, and will 
 be liable to pay all loss and damages sustained thereby 
 to the party aggrieved, and forfeit fifty dollars in addi- 
 tion thereto (f). 
 
 Witness, J. J., Esquire, one of the justices of our said 
 court \or judge of our County Court of County], 
 
 at , the day of , 18 . 
 
 \_Signature of clerk?^ 
 
 [Signature of attorney. ^ 
 
 21. Subpoena to Attend before an Officer who may Continue 
 Proceedings as in the 1st District. 
 
 [Same as in Form 20 to the (*), then continue .•] one 
 of the justices of the Supreme Court sitting at the 
 chambers thereof at the City Hall, in the City of New 
 York, on the day of ,18 , at o'clock, noon, 
 to testify and give evidence in certain proceedings sup- 
 plementary to execution now pending, and the exam- 
 ination therein to be then taken between [continue to 
 the end as in Form 20]. 
 
 22. Subpoena Duces Tecum.* Ante, p. 152. 
 
 [Saine throughout as in Form 20, except after the (f) 
 
 insert this clause .■] and that you bring with you, and 
 
 * A copy of this subpoena instead of a ticket is served on the witness. 
 
5IO PRODUCTION OF BOOKS, ETC. 
 
 then and there produce SJtere designate the documents 
 fully — e. g., thus /] the books of the firm of B. & D., 
 containing the entries of the moneys paid by said firm 
 to the said C. D. from the day of , i8 , to the 
 day of , i8 , now in your possession or under your 
 control. 
 
 23. Subpoena Ticket. 
 
 By virtue of a writ of subpoena to you directed and 
 herewith shown to you, you are commanded, that all 
 business [continue as in the subpoena. Form 20, to (f)]. 
 
 \Date.\ \_Signature of attorney^ 
 
 [Address to witness.] 
 
 24. Order Requiring the Production of Books, etc. Ante, p. 152. 
 [Title of the Cause.] 
 
 It appearing to my satisfaction by the affidavit of 
 [or from the examination of J that the pro- 
 
 duction of the bank-book of the defendant C. D., con- 
 taining his account with the bank of , for 
 the year , is necessary and material upon the exam- 
 ination in the supplementary proceedings in this action ; 
 I hereby order and require the said C. D. to bring with 
 him and produce the said book on the examination be- 
 fore me [or before ,Esq., the referee appointed 
 to take the examination herein], on the day of 
 ,18 , at o'clock noon. 
 
 [Date.] [Signature of judge.] 
 
 25. Proof of Service of Subpoena by Affidavit. 
 
 [ Title of the Cause.] 
 [ Venue.] 
 
 A. B., being duly sworn, says that on the day of 
 
 ,18 , at No. Street, in the City of 
 
 , he served the within subpoena personally on 
 
 M. N., the person [or respectively the persons] named 
 
SERVICE OF ORDER. 511 
 
 therein as witnesses, (*) by then and there showing to 
 him [or to each of them] the said subpcena, and dehver- 
 ing to him [or to each of them] a subpoena ticket contain- 
 ing the substance of the said subpoena [or delivering to 
 him a true copy thereof, tf tt is a subpoena duces tecuni\, 
 and paying [or tendering] to him at the same time and 
 place dollars for his fees for travelling to and re- 
 
 turning from the place where he is required to attend, 
 and the fees allowed for one day's attendance. 
 
 [Deponent' s signature.] 
 [Jurat.'] 
 
 26. Another Form ; by Official Certificate. 
 
 [ Title of the Cause.] 
 
 [ Venue.] 
 
 I certify that on the day of , 18 , at 
 
 , I subpoenaed the within named M. N. 
 [continue as in previous form from the (*)] . 
 
 [Date.] [Officer s signature.] 
 
 27. Affidavit of Service of Order to Produce Books, etc. 
 
 [ Title of the Cause.] 
 
 A. B., being duly sworn, says that he did on the 
 day of ,18 ,atNo. Street, in the 
 
 City of , personally serve upon C. D. the an- 
 
 nexed [affidavit and] order for the production of his 
 bank-book upon the examination herein, by delivering 
 to and leaving with him a true copy thereof, and at the 
 same time and place exhibiting to him the annexed 
 original. And deponent further says that he knew the 
 person so served as aforesaid to be the person mentioned 
 and described in said order as the defendant therein, 
 and to whom the same is directed. 
 
 [Deponent's signature.] 
 
 [Jurat.] 
 
512 EXAMINATION. 
 
 28. Examination of a Judgment Debtor, a Third Party, or 
 Witness, before a Judge. Vide ante, p. 156. 
 
 [ Title of the Cause. \ 
 
 The examination of C. D., a judgment debtor 
 [or of G. H., a third party, examined under 
 § 2441, or S. T., a witness for the plaintiff], 
 in supplementary proceedings in this ac- 
 tion, taken before the Hon. J. J., a justice 
 of the Supreme Court, at the chambers of 
 said Court at the City Hall, City of 
 
 , on the day of , 
 
 18 . 
 Said C. D., being duly sworn by the said justice, says : 
 [Here follows the examination^^ 
 
 [Signature of party or witness. "^ 
 
 Taken, subscribed, and sworn ' 
 to before me this 
 day of , 18 . 
 
 [Signature of judge ^ 
 
 29. The Same, by a Referee. Ante, p. 156. 
 
 [ Title of the Cause.] 
 
 The examination of C. D., a judgment debtor 
 [or G. H., a third party examined under 
 § 2441, or S. T, a witness produced on 
 the part of the creditor] in supplement- 
 ary proceedings in this action, taken by 
 R. S., Esq., referee appointed to take 
 the same, at his office. No. 
 Street, in the City of , on the 
 
 day of , 18 . 
 
 Said C. D., being duly sworn- by the said referee, says 
 as follows : [Here follows the examination, as .•] 
 
REFEREES REPORT OF EVIDENCE. 513 
 
 1st Ques. Where do you reside, and what is your 
 occupation ? 
 Ans. 
 
 \Signature of party or witness!\ 
 
 Taken, read over, subscribed and ] 
 sworn to before me this l 
 
 day of 18 . J 
 
 [Signature of referee.^ 
 
 30. Adjournments by the Officer Indorsed on the Order. Vide 
 ante, p. 140. 
 
 [Defendant] C. D., sworn and examined ; adjourned 
 [or the within proceedings are hereby adjourned] to the 
 instant, at o'clock noon [at which time 
 
 and place the defendant, or G. H., is required to at- 
 tend]. 
 
 \_Date.\ [Signature of judge or referee.\ 
 
 31. Adjournment by Consent. 
 
 We hereby consent that the within proceedings \or the 
 examination upon the within order] be adjourned to the 
 day of , 18 , at o'clock noon. 
 
 \I)ate.\ {Signature of parties. ^ 
 
 Adjourned accordingly. 
 
 {Officer s signature^ 
 
 32. Referee's Report of the Evidence. Ante, p. 132. 
 
 [ Title of the Cause. '\ 
 
 To the Court of {or to the Honorable 
 
 J. J., a justice of the Supreme Court] : 
 
 I, the undersigned, pursuant to an order of this Court 
 {or of the Hon J. J.], made in the above-entitled 
 action, dated the day of , 18 , 
 
 and hereto annexed, whereby it was referred to me 
 to take (*) and certify the examination in the supple- 
 mentary proceedings instituted herein, respectfully 
 
514 REPORT OF FACTS. 
 
 report : that I have been attended by the defendant, 
 C. D. [or G. H., a third party], and the counsel for 
 the respective parties ; that I have taken the exami- 
 nation of said C. D. [or G. H7\ and of the witnesses pro- 
 duced before me by both parties ; which examination 
 [with schedule A annexed], and the whole of it, is hereto 
 annexed. All of which is respectfully submitted. 
 {DateP^ {Signature of referee.] 
 
 33. Shorter Form, which may be Subjoined to the Examination. 
 
 I hereby certify that the above [with schedule A an- 
 nexed] is the testimony, and the whole of the testimony, 
 of C. D. [the defendant, and E. F., a witness] given on 
 the examination taken, pursuant to the annexed order in 
 supplementary proceedings, this day of , 18 . 
 
 {Signature of referee.] 
 
 34. Referee's Report of Facts. Ante, p. 133. 
 
 [ Title of the Cause ^ 
 
 {Proceed as in Form 32 to the (*), then continue .■] the 
 examination in the proceedings supplementary to execu- 
 tion herein, and to report the facts ; respectfully report : 
 that I have been attended upon such reference by the 
 judgment debtor, C. D. {or G. H., a third party], and 
 the counsel for the respective parties ; that I have taken 
 the examination of said C. D. {or G. H.~\ and of the wit- 
 nesses produced before me by both parties, which exam- 
 ination [with schedule A annexed], and the whole of it, 
 is hereto annexed ; that from such examination I find 
 the following facts: {here state the facts found, as :'] the 
 judgment debtor owned at the time these supplementary 
 proceedings were commenced — to wit : on the day 
 
 of , 18 , and still owns and possesses {or has 
 
 under his control], a horse worth three hundred dollars, 
 and a carriage worth two hundred and fifty dollars, 
 which are now at a livery stable at No. Street, 
 
CERTIFICATE OF NON-ATTENDANCE. 515 
 
 in the City of , and are not exempt from exe- 
 
 cution ; and no person claims any adverse interest in 
 either \or, except 0. P., whose examination is hereto 
 annexed, and who claims the sum of dollars, 
 
 for keeping said horse and carriage]. I also find and 
 report that this property may be directly applied toward 
 the satisfaction of the judgment by an order requiring 
 the same to be delivered to the sheriff or receiver [upon 
 the creditor's paying to the said O. P. the sum of 
 dollars claimed by him as aforesaid]. 
 
 All of which is respectfully submitted. 
 
 [JDateJ] [Signature of referee.] 
 
 35. Referee's Certificate of a Party's or Witness's Non-attend- 
 ance.* Ante, pp. 235, 236. 
 
 \Title of the Cause.] 
 
 I, the undersigned referee, named in the annexed 
 order, do certify that I attended in my office, named in 
 said order [or annexed summons, or subpcena] on the 
 return thereof [or on the day of , 18 , 
 
 at o'clock in the noon, to which time the 
 
 examination had been duly adjourned], attended by the 
 attorney and counsel of the plaintiff, prepared to work 
 said order, but said defendant, C. D. [or E. F., the wit- 
 ness named in said subpcena f] came not, but made de- 
 fault, although a full hour was allowed for him to 
 appear after the time required in and by said order [or 
 summons or subpoena]. 
 
 [Date.] [Signature of referee.] 
 
 * A referee's certificate alone is not sufficient proof of a. fact of 
 misconduct to base proceedings as for contempt upon. Tfie statute 
 requires proof by affidavit. 2 R. S., p. 535, § 3 ; i £arl>. Ch. Pr., 483. 
 
 \ A disobedience of subpoena is certified to the court. Altliougfi 
 proof is required by affidavit, it is very proper to hiave the certificate, 
 
5l6 CERTIFICATE OF DISOBEDIENCE. 
 
 36, Another Form of Referee's Certificate of Disobedience to 
 
 Summons.* 
 
 \Title of the Cause. '\ 
 
 I, R. S., of the City of , do hereby certify 
 
 that pursuant to an order made in the above-entitled 
 cause, by Hon. J. J. [county judge], of the County of 
 , and bearing date the day of , 
 
 18 , 1 duly issued the summons hereto annexed. That 
 at the time designated therein for the appearance of the 
 defendant, I attended at my office, but that the said^i?- 
 fendant did not attend, either in person or by his attor- 
 ney or counsel. 
 
 SJDate.\ [Signature of referee.} 
 
 37. Referee's Certificate of a Party's or Witness's Refusal to 
 
 Answer a Question or being Sworn, etc. Ante, p. 212. 
 
 [ Title of the Cause. \ 
 
 I, the undersigned referee named in the annexed 
 order, do certify that I attended in my office mentioned 
 in said order, on the return thereof \or on the day 
 
 of , 18 , at o'clock noon, to which 
 
 time the proceeding thereupon had been duly ad- 
 journed], attended by the counsel for the plaintiff, pre- 
 pared to work said order, and the said defendant, C. D. 
 [or G. H., a third party, or E. F., a witness subpoenaed 
 on the part of the plaintiff], also attended before me, but 
 refused to be sworn or to be examined upon said order, 
 though requested thereto by me [or refused to answer 
 the following question, which I allowed and directed him 
 to answer on his examination {here state the question 
 tn full), or refused to answer the questions numbered 
 four3.ndfve in the examination, hereto annexed, which 
 questions I allowed and directed him to answer]. 
 
 [Date.'\ ' [Signature of referee.~\ 
 
 * This was the master's form of a certificate in such a case. 
 
ARREST AND UNDERTAKING. 517 
 
 38. Order Requiring Debtor under Arrest to Give Undertaking 
 
 (Code C. P., § 2440). 
 
 [ Title of the Cause. '\ 
 
 The defendant, C. D., having been arrested upon a 
 warrant issued according to § 2437 of the Code of 
 Civil Procedure, and brought before me, and examined 
 on oath ; and it appearing that there is danger of his 
 leaving the State, and that he has property of the value 
 of dollars,* which he has unjustly refused to 
 
 apply to the judgment in this action ; I hereby order 
 that said C. D. enter into an undertaking with [two] 
 sufficient sureties approved by me, pursuant to the 
 aforesaid section of the Code of Procedure ; and that in 
 default thereof he be committed to prison by warrant 
 as for a contempt. 
 
 [Date.'] [Signature of Judge.] 
 
 39. Undertaking by Debtor when Arrested.f Code C. P., § 2440. 
 
 [ Title of the Cause ^ 
 
 Whereas the above-named defendant, C. D., has been 
 arrested by the sheriff of the County of , upon 
 
 a warrant issued by the Hon. J. J. [a justice 'of the Su- 
 preme Court], according to § 2437 of the Code of 
 Procedure, and brought before said justice [or before 
 the Hon. , a justice of the said court, con- 
 
 * The value of the property should be stated, or some amount fixed 
 upon in order that the sureties may justify in a given sum. The legis- 
 lature seem to have had in mind the provisions of §§ 9 and 10 of 
 the Non-imprisonment Act, and chapter 377 of the laws of 1840, 
 amendatory of that Act, wherein the penalty of the bond to be given 
 is required to be at least twice the amount of the debt. While the 
 amount in which the sureties are to justify is in the discretion of the 
 judge, rule 6 of the Supreme Court requires that they justify, and the 
 undertaking be proved or acknowledged, before it can be approved 
 by the officer. 
 
 f On giving this undertaking the debtor is discharged from the 
 custody of the sheriff. 
 
5l8 ACKNOWLEDGMENT, ETC. 
 
 tinuing the proceedings] ; and whereas said justice, after 
 an examination of said C. D., on oath, has ordered him 
 to enter into an undertaking, pursuant to the aforesaid 
 section, or in default thereof, that he be committed to 
 prison as for contempt : 
 
 Now, therefore, we, the said C. D., of No. 
 Street, in the City of , and E. F., of No. 
 
 Street, and G. H., of No. Street, in 
 
 the same city, as sureties, do hereby undertake pursuant 
 to said section, that said C. D. will attend from time to 
 time before the said justice [or the justice duly continu- 
 ing the proceedings] as he shall direct during the pen- 
 dency of the proceedings supplementary to execution 
 instituted against him upon the judgment in this action, 
 and that he will not, in the mean time, dispose of any 
 portion of his property not exempt from execution. 
 
 \Pate.\ {Signatures^ 
 
 40. Affidavit of Sufficiency. 
 
 [ Venue. ^^ 
 
 E. F. and G. H., above named, being severally duly 
 sworn, say each for himself that he is a resident and 
 holder within the State of New York, and 
 is worth the sum of dollars,* over and 
 
 above all debts and liabilities, and exclusive of property 
 exempt from execution. 
 
 {Signature of sureties. '\ 
 {Jurat^ 
 
 41. Acknovrledgment. 
 
 [ Venue. '\ 
 
 I certify that on this day of , 18 , 
 
 C. D., E. F., and G. H., above named, to me known to 
 be the persons described in, and who executed the above 
 undertaking, personally appeared before me, and sever- 
 
 * The sum justified in should be double the value of the property. 
 See note to Form 38. 
 
WARRANT OF COMMITMENT. 519 
 
 ally acknowledged that they executed the same, as their 
 own free act, for the uses and purposes therein men- 
 tioned. 
 
 ^Signature.] 
 
 42. Another Form — Proof by Witness. 
 
 [ Venue.] 
 
 On this day of ,18 , before me came 
 
 /. S., of [said city] the subscribing witness to the within 
 undertaking, with whom I am personally acquainted 
 who, being by me duly sworn, did depose and say that 
 he resides at No. Street, in the City of ; 
 
 that he knew C. D., E. F., and G. H., the persons de- 
 scribed in and who executed the above undertaking ; 
 that they severally acknowledged they executed the 
 same, and that he, the said /. S., thereupon subscribed 
 his name as a witness thereto. 
 
 [Signature.'] 
 
 43. Indorsement of Approval. 
 I approve the within undertaking, and the sufficiency 
 of the sureties therein named. 
 
 \_Datc.] [Signature of officer.] 
 
 44. Warrant of Commitment. Ante, p. 271. 
 
 [Title of the Cause.] 
 
 The People of the State of New York to the Sheriff of 
 the County of , greeting : 
 
 Whereas, judgment was recovered in the above-enti- 
 tled action in favor of the plaintiff, A. JB., and against 
 the defendant, C. D. [recite the facts as they are], and 
 execution was thereupon duly issued to the sheriff of 
 the proper county [and returned unsatisfied] ; and 
 whereas the defendant, C. D., was thereafter arrested 
 according to § 2437 of the Code of Civil Procedure, 
 and brought before the undersigned [a justice of the 
 Supreme Court] upon the annexed warrant, and ex- 
 
520 AFFIDAVIT FOR COSTS, ETC. 
 
 amined on oath, and it then appearing that there was 
 danger of his leaving the State, and that he had prop- 
 erty which he unjustly refused to apply to the judg- 
 ment in this action, the said defendant was ordered to 
 enter into the undertaking prescribed by the section 
 aforesaid, or in default that he be committed to prison 
 as for a contempt ; and whereas he has failed and 
 neglected to enter into such undertaking, and such mis- 
 conduct was calculated to, or actually did, defeat, impair, 
 impede, or prejudice the rights of the plaintiff herein ; 
 now, therefore, we command you that you take the body 
 of the said C. D., and him safely and closely keep in 
 your custody, in the common jail of the County of 
 
 , until he shall give such undertaking, or until the 
 further order herein. 
 
 Given under my hand, this day of ,i8 . 
 
 \Signature of Judge] 
 
 SECTION III. 
 
 For Proceedings to Apply Property toward the Satis- 
 faction of the Judgment . 
 
 45. Affidavit of Costs, Ante, p. 195. 
 
 [Title of the Cause. \ 
 
 [ Venue.] 
 
 M. N., being duly sworn, says that he is the attorney 
 of the plaintiff in the above-entitled action ; that supple- 
 mentary proceedings have been instituted upon the 
 judgment and execution herein, against the defendant, 
 C. D., before the Hon. J. J., a justice of this court [that 
 it was referred to R. S., Esq., to take and certify the 
 examination therein ; or to take the examination, and 
 report the facts ; and that said referee has made and 
 delivered or filed his report]; that there have been [five] 
 different meetings herein when evidence was taken, 
 
NOTICE OF MOTION. 52I 
 
 and [three] different meetings when adjournments were 
 obtained by the said C. D.; that deponent has actually 
 laid out and expended in necessary disbursements in 
 said proceedings for witnesses' and referee's fees, affi- 
 davits, exemplification of records, etc., the sum of 
 dollars. 
 
 {^Deponent's signature.'] 
 {Jurat.'] 
 
 46. Notice of Motion for Order that the Debtor Pay the Judg- 
 ment, or Deliver Money or Property to the Sheriff or 
 Receiver (Code 2447). 
 
 [ Title of the Cause.] - 
 
 Sir : Please to take notice that on the affidavit of 
 M. N., plaintiff's attorney, a copy of which is herewith 
 served, the supplementary proceedings in this action, 
 and the evidence taken therein [or the report of R. S., 
 Esq., referee therein, a copy of which is herewith served], 
 a motion will be made before this court at a Special 
 Term thereof, to be held at the [county court-house] in 
 the City of [or to the Hon. J. ]., judge 
 
 of County, at his chambers in the village of 
 
 , in said county], on the day of , 
 
 18 , at o'clock in the noon, or as soon there- 
 
 after as counsel can be heard, for an order that the de- 
 fendant pay the money, or deliver the property dis- 
 closed on the examination herein, or reported by said 
 referee, to belong to him and to be under his control, to 
 the sheriff or receiver, to be applied upon the judg- 
 ment in this action and the costs herein ; and for 
 dollars costs of these proceedings. 
 
 [Date.] [Signature of attorney.] 
 
 [Address.] 
 
 To 
 
 O. P., Esq., Deft's Att'y. 
 
 or To 
 
 C. D., Defendant. 
 
522 ORDER TO SHOW CAUSE. 
 
 47. Order to Show Cause for the Same Purpose as in Previous 
 Form (Code 2447). 
 
 {Title of the Cause. \ 
 
 Upon the affidavit of M. N., plaintiff's attorney, the 
 supplementary proceedings in this action, and the evi- 
 dence taken therein [or the report of R. S., Esq., 
 referee therein], let the defendant, C. D., or his attorney, 
 show cause before this court, at a Special Term thereof, 
 to be held at the court-house in the village of , 
 
 County of [or before me at my chambers in the 
 
 village of J, on the day of , 
 
 18 , at o'clock in the noon, or as soon there- 
 after as counsel can be heard, why the defendant, C. D., 
 should not pay the money, or deliver the property 
 disclosed on the examination herein, or reported by 
 the said refei'ee to belong to him and to be under 
 his control, to the sheriff or receiver, to be applied 
 upon the judgment in this action, and to the payment 
 of the costs herein, and why the plaintiff should not be 
 allowed dollars for his costs and 
 
 dollars disbursements herein. Let a copy of said affi- 
 davit and of this order be served upon the defendant (or 
 his attorney) on or before 18 , which shall 
 
 be deemed timely service. 
 
 [Z'a/f.J [Signature of Judge.'] 
 
 [A ddress.] 
 
 48. Affidavit of Service of Notice of Motion.* 
 [ Title of the Cause.] 
 
 [Venue.] ,t ' 
 
 A. ^., being duly sworn, says that on the day 
 
 of , 18 , at (the City of Albany) he served the 
 
 [designate the papers] hereto annexed on said (*) C. D., 
 
 * This and the next two forms, when slightly varied, will suffice 
 as affidavits of service of notices, and orders to show cause, for the 
 appointment of receivers. 
 
AFFIDAVIT OF SERVICE. 523 
 
 known to him to be the defendant herein, by delivering 
 
 a copy thereof to him personally, and leaving the same 
 
 with him, or by leaving a copy thereof at his residence. 
 
 No. Street, in the City of , between 
 
 the hours of six in the morning and nine in the evening — 
 
 to wit, at about o'clock, with a person of suitable 
 
 age and discretion — namely [a woman who represented 
 
 herself to be the wife of the said defendant.] 
 
 [Deponent' s signature.] 
 [Jurat.'] 
 
 49. The Same, when the Papers are Served on Defendant's 
 Attorney. Ante, p. 129. 
 
 [As in Form 48 to the (*), then continue .•] O. P., the 
 attorney for the defendant, C. D., by delivering a copy 
 thereof to him personally at No. Street, in 
 
 , and leaving the same with him. 
 
 Or by delivering a copy thereof to a clerk of the said 
 O. P., at his office [or to a person having charge of the 
 office of said O. PP\, at No. Street, in , 
 
 and leaving the same with him, the said O. P. being 
 absent at the time. 
 
 Or by leaving a copy thereof in a conspicuous place 
 in the office of said O. P., at No. Street, in 
 
 , between the hours of six in the morn- 
 ing and nine in the evening — to wit : at about 
 o'clock in the noon, there being no person in said 
 
 office at the time of such service. 
 
 Or by leaving a copy thereof at the residence of the 
 said O. P., at No. Street, in the City of , 
 
 with a person of suitable age and discretion, deponent 
 having immediately theretofore called at the office of 
 the said O.P., at No. Street, in the said city, 
 
 in order to serve the same, but said office not being 
 then open so as to admit of such service. 
 
 [Deponent's signature.] 
 
 [Jurat.] 
 
524 ORDER TO PAY. 
 
 SO. Affidavit of Service by Mail. 
 
 {Title of the Cause. '\ 
 
 [ Venue. \ 
 
 B. A., being duly sworn, says that he Is the manag- 
 ing clerk of M. N., attorney of the plaintiff herein ; that 
 on the day of , i8 , he deposited into the 
 
 post-office, at (that being the residence of the 
 
 plaintiff's attorney), a letter containing a copy of the 
 [designate the papers'] hereto annexed, addressed to the 
 defendant, C. D. [or to O. P., the defendant's attor- 
 ney], at , his place of residence, and paid the 
 postage thereon. 
 
 [Deponent's signature.] 
 
 [Jurat.] 
 
 51. Order that Debtor Pay the Judgment.* Vide ante, p. 123. 
 
 [ Title of the Cause.] 
 
 On reading [and filingf] the afifidavit and order for 
 the examination of C. D., the judgment debtor herein, 
 and the evidence taken thereupon [or the referee's 
 report of the facts],* and the order to show cause why 
 the said debtor should not pay to the sheriff or receiver 
 the amount of the judgment in this action with costs 
 [or the notice of motion, etc.], and after hearing M. N., 
 attorney for the plaintiff, in support of such motion, 
 and O. P., in opposition thereto, it is ordered that said 
 C. D. pay to the sheriff or receiver the amount of the said 
 judgment, with the interest due thereon, and 
 dollars costs and disbursements of the supplementary' 
 proceedings herein, within days, upon said M. N. 
 
 delivering or tendering to him a satisfaction piece of 
 said judgment, duly executed, and a receipt for said 
 
 * This farm is modelled on No. 1876 of Abbott's Fo?-ms. 
 
ORDER TO APPLY MONEY. 525 
 
 costs and disbursements ; or in default thereof, that a 
 precept to commit do issue.* 
 
 \_Date.\ {Signature of judge.\ 
 
 52. Order that Debtor Apply Money upon the Judgment 
 (Code 2447). 
 
 [ Title of the Cause.] 
 
 On the afifidavit and order for the examination of 
 C D., the judgment debtor herein \or warrant of ar- 
 rest], and the evidence taken thereupon [or the ref- 
 eree's report of the facts], whereby it appears that the 
 said debtor has in his possession [or under his control 
 (*)] the sum of dollars belonging to him \or to 
 
 the above-named defendants jointly f] [and due proof 
 of notice of this application having been made], on 
 motion of M. N., plaintiff's attorney, and after hearing 
 O. P., defendant's attorney, in opposition [or no one 
 opposing], it is ordered that said C. D. pay to the sher- 
 iff or receiver the above-named sum of money within 
 days after the due service on him of this order, 
 and upon said M. N. delivering or tendering to him a 
 receipt for dollars received on account of the 
 
 judgment in this action, and for dollars received 
 
 for the costs and disbursements of the supplementary 
 proceedings herein, which last-named sum is hereby al- 
 lowed for such costs and disbursements ; or that in de- 
 fault thereof a precept of commitment issue. 
 
 [Date.] [Signature of judge.] 
 
 * When this or any of the next three orders is made by the court, 
 it is substantially the same as the above ; only it is entered, and a 
 certified copy served or shown. 
 
 \ If the proceedings are taken before return of execution, it will 
 be proper to add : and which he unjustly refused to apply upon the 
 judgment herein. 
 
526 ORDER TO DELIVER PROPERTY. 
 
 53. Order on Debtor to Apply Property upon the Judgment. 
 
 [^.s- -in Form 52 to the (*), then continue .-] certain 
 property hereinafter mentioned belonging to him \or 
 to the above-named defendants jointly] [and due proof 
 of service of notice of this application having been 
 made], on motion of M. N., plaintiff's attorney, and 
 after hearing O. P., in opposition [or no one opposing], 
 it is ordered that the said C. D. deliver to the sheriff 
 or receiver herein, at No. Street, in the City of 
 
 , the following goods and chattels [here specify 
 the property], being of the value of dollars, at 
 
 o'clock noon, of the (second) day after [or upon] 
 
 the due service on him of this order, and upon the 
 plaintiff delivering or tendering to him a receipt there- 
 for ; for dollars received on account of the 
 judgment in this action, and for dollars re- 
 ceived for the costs and disbursements of the supple- 
 mentary proceedings herein, which last-named sum is 
 hereby allowed for such costs and disbursements. 
 
 [Date.] [Signature of fudge.] 
 
 54. Order upon the Debtor to Deliver Concealed Property to the 
 Sheriff.* Ante, p. iii. 
 
 \As in Form ^})to the (f), then continue :] sheriff of the 
 County of , on demand, the follow- 
 
 ing personal property [here specify the same] at ; 
 
 or as much of said property as will be sufficient to sat- 
 isfy the amount of the execution in this action with 
 the officer's fees, to be by him applied toward the sat- 
 isfaction of the judgment herein. It is further ordered 
 that the said C. D. pay to M. N., the plaintiff's attor- 
 ney, the sum of dollars, for the costs and dis- 
 bursements of the supplementary proceedings herein, 
 upon the due service on him of this order, and upon 
 said M. N. delivering or tendering to him a receipt 
 
 * A similar order may be made against a third party. 
 
ORDER AGAINST THIRD PARTY. 527 
 
 therefor ; or in default of such payment, that a precept 
 of commitment issue.* 
 
 [Daie.j . \Signature of judge ^^ 
 
 55. Order that a Third Party Pay Money of the Debtor in his 
 Hands, or Due him f (Code 2441 and 2447). 
 
 [ Title of the Cause. ^ 
 
 On the affidavit and order for the examination of 
 G. H., a third party, and the evidence take i thereupon 
 [^rthe referee's report of the facts], whereby it appears 
 that the said G. H. has in his hands (*) the sum of 
 dollars, belonging to the above-named defendant 
 [^r is indebted to the above-named defendant in the sum 
 of dollars] [and due proof of the service of 
 
 notice of this application upon the defendant \ and 
 said G. H. having been made], on motion of M. N., 
 plaintiff's counsel, and after hearing O. P., defendant's 
 [or G. H.'s] attorney in opposition, it is ordered that said 
 G. H. pay to the sheriff or receiver the above-named 
 sum of money \or indebtedness with the interest] 
 within days after the due service on him of this 
 order, and upon said M. N. delivering or tendering to 
 him a receipt therefor ; or that in default thereof a 
 precept of commitment issue. § It is further ordered 
 
 * It is only when the party is required to pay money other than 
 costs that the time within which he is to pay it should be stated. 2 Barb. 
 Pr. ch., 272. As to imprisoning as for contempt for non-payment 
 of costs, see ante, p. 234. 
 
 f The notice of motion, or order to show cause, where required 
 for this or subsequent orders on a third party, and the affidavit of 
 service are substantially the same as Forms 46-50. 
 
 I Notice to the judgment debtor is discretionary with the judge. 
 Code 2441. 
 
 §'When the third party has a sum of money in his hands belonging 
 to the judgment debtor, its delivery can undoubtedly be enforced by 
 a precept of commitment. So where he is indebted to him and can 
 pay, there seems no valid reason why payment may not also be thus 
 enforced. 
 
528 ORDER AGAINST THIRD PARTY. 
 
 hereby, that (f) of the said money, the said M. N. apply 
 the sum of dollars to the payment of the costs 
 
 and disbursements of the supplementary proceedings 
 herein ; which sum is hereby allowed for the same ; 
 and that he apply the remainder, the sum of 
 dollars, toward the satisfaction of the judgment in this 
 action. 
 
 [Date.] [Signature of Judge.] 
 
 56. Same, that a Third Party Deliver up Property of the 
 Debtor in his Hands (Code 2447, 2441). 
 
 [As in Form SS to the (*), then continue .•] certain per- 
 sonal property hereinafter mentioned belonging to the 
 above-named defendant [and due proof of notice of 
 this application upon the defendant and said G. H. 
 having been made], on motion of M. N., plaintiff's 
 attorney, and after hearing O. P., defendant's [or 
 G. H.'s] attorney in opposition, it is ordered that said 
 G. H. deliver to the plaintiff, A. B., at , in the 
 
 village of , the following goods and chattels 
 
 [here specify the same], being of the value of 
 dollars, at o'clock noon of the [third] day 
 
 after [or upon] the due service on him of this order, and 
 upon the said A. B. delivering or tendering to him a 
 receipt therefor. It is further ordered hereby, that (f) 
 of the value of said property, said A. B. apply the sum 
 of dollars to the payment of the costs and dis- 
 
 bursements of the supplementary proceedings herein, 
 which sum is hereby allowed for the same ; and that he 
 apply the remainder, the sum of dollars, toward 
 
 the satisfaction of the judgment in this action. 
 
 [DateP\ [Signature of judge.] 
 
INJUNCTION. 529 
 
 57. Order that a Third Party Pay Costs by Reason of his 
 Vexatious Defence.* 
 
 {Proceed as in Form 55 or 56 to the (f), then continue .•] 
 said G. H. personally pay to the plaintiff, A. B. [or to 
 M. N., plaintiff's attorney], the sum of dollars 
 
 for the costs and disbursements of the supplementary 
 proceedings herein taken against him. 
 
 [Date.] [Signature of judge. \ 
 
 58. Interim Injunction under § 2451. Ante, p. 180. 
 [ Title of the Cause. \ 
 
 It appearing to me that G. H. has certain property 
 in his hands, alleged to belong to the above-named 
 defendant, C. D., a judgment debtor — to wit [here 
 describe such property] ; and said G. H. claims an interest 
 in the same adverse to said C. D. 
 
 Or that G. H. is alleged to be indebted to C. D., the 
 above-named defendant, in the sum of 
 dollars, but that he denies such debt. 
 
 And R. C, of , etc., having been duly appointed 
 
 receiver of the estate and effects of the said judgment 
 debtor, by order made in this cause, bearing date the 
 day of , 18 ; now, therefore, I 
 
 do hereby order and enjoin you, G. H., from delivering 
 or transferring to the said C. D., or any other person 
 whatsoever, any portion of the aforesaid property [or 
 from paying, etc., any part of the aforesaid debt], or in 
 any manner interfering therewith, until a sufficient 
 opportunity be given to the said receiver to commence 
 an action against you, said G. H., for the recovery of 
 the said property [or debt], and to prosecute the same 
 to judgment and execution, and until after such action 
 shall have been commenced and prosecuted to judg- 
 
 *The motion for this order should be on notice to the third party, 
 unless he is present when it is made. 
 
530 DISSOLVING INJUNCTION. 
 
 ment and execution ; or until the further order in the 
 premises. 
 
 [Da/e.] [^Signature of Judge.] 
 
 59. Notice of Motion to Dissolve or Modify Interim Injunction, 
 
 § 2451. Ante, p. 187. 
 
 [ Title of the Cause. \ 
 
 Please take notice that on [designate the papers], a 
 copy of which is herewith served, the undersigned will 
 apply to the Hon. , [county judge] of 
 
 County, at his chambers in the village of , 
 
 on the day of ,18 , at o'clock in the 
 
 noon, that the injunction order made by him 
 herein, and dated the day of , 18 , be 
 
 dissolved \or modified so as to permit said G. H., etc.], 
 on such security as he shall direct, or for such other 
 order or relief as he shall deem just. 
 
 [Date.] [Signature of attorney for G. H.] 
 
 [Address.] 
 To 
 
 A. B., plaintiff. 
 Or, 
 
 R. €., receiver, etc. 
 
 60. Order Dissolving [or Modifying] the Injunction. Ante, p. 187. 
 
 [ Title of the Cause.] 
 
 On reading [and filing] the affidavit of G. H., and 
 on motion of M. N., counsel for said G. H., and after 
 hearing O. P., counsel for R. C, receiver, in opposition, 
 it is ordered that the injunction granted by me on 
 the day of , 18 , be, and the 
 
 same is hereby dissolved [or modified, state %vherein], 
 upon the said G. H. delivering to said R. C, the receiver 
 of the property of the above-named defendant, C. D., a 
 written undertaking, executed by two sufificient sure- 
 ties, approved by me, to the effect that they are bound 
 
UNDERTAKING THEREON. 53 I 
 
 in double the value of the property \or debt], restrained 
 by the aforesaid injunction, for the delivery of the said 
 property, or the value thereof \or the payment of said 
 debt, etc.], to the said receiver, if such delivery \or 
 payment] shall be adjudged in the action now pending 
 \or to be brought] against said G. H., for the recovery 
 of said property ; or for the delivery [c>r payment] of 
 so much of said property \or debt] as shall be so ad- 
 judged ; and for the payment to said R. C. such dam- 
 ages as the estate he represents may sustain by reason 
 of the dissolution \or modification] of said injunction.* 
 \Pate.\ [Signature of Judge.] 
 
 61. Undertaking to Obtain Dissolution or Modification of In- 
 junction. § 2451. Ante, p. 187. 
 
 [ Title of the Cause. \ 
 
 [Date.] 
 
 Whereas the undersigned, G. H., has applied to the 
 Hon. J. J. [county judge], of the County of , 
 
 for an order dissolving the injunction made against him 
 in this action, according to § 2451 of the Code of Pro- 
 cedure [or modifying, etc., state wherein], and the 
 said judge has granted said motion, upon condition that 
 the said G. H. deliver to R. C, the receiver of the 
 property of the above defendant, C. D., an undertaking 
 executed by two sureties for the delivery to him of the 
 property enjoined by said injunction [or the payment 
 of the debt, etc.], if such delivery [or payment] shall be 
 adjudged in an action now pending [or to be brought] 
 for that purpose, or of so much of said property [or 
 debt] as shall be so adjudged, and damages ; now, there- 
 
 * The kind and amount of security are in the discretion of the judge. 
 I have framed this form and the next upon sections of the Code — 
 " Claim and delivery of personal property," there being some siiiilar- 
 ity between the two proceedings. 
 
532 MOTION FOR RECEIVER. 
 
 fore, we, the undersigned, said G. H., of the town of 
 , County of ; E. F., of the same 
 
 place, farmer ; and J. N., of the village of , 
 
 same county, merchant, in consideration of the premises, 
 do hereby undertake and become bound to said R. C, 
 receiver as aforesaid, in the sum of dollars for 
 
 the delivery to him of the property or the value thereof 
 [or the payment of the debt] mentioned and enjoined 
 ih and by the aforesaid injunction, if such delivery \or 
 payment] shall be adjudged to him in the action now 
 brought \or to be brought] for the recovery of the same, 
 or for the delivery of so much of said property \or debt] 
 as shall be so adjudged ; and for the payment to him of 
 such damages as the estate of the defendant, C. D., of 
 which he is receiver, may sustain by reason of the disso- 
 lution \or modification] of said injunction. 
 
 [Signatures.] 
 Signed and delivered in the presence of 
 
 [ Witness.] 
 
 Affidavit of sufficiency, acknowledgment, or proof, and 
 proval by the judge, as in Forms 40-43. 
 
 SECTION IV. 
 Forms in Receivership. 
 
 62. Notice of Motion for the Appointment of Receiver (Code 
 2461). Ante, p. 353. 
 
 {Title of the Cause.] 
 
 Sir : Please to take notice that on the affidavit of 
 
 M. N., plaintiff's attorney, a copy of which is herewith 
 
 served, the supplementary proceedings in this action, 
 
 and the evidence taken therein \or the report of R. S., 
 
 Esq., the referee therein], the undersigned will apply 
 
ORDER TO SHOW CAUSE. 533 
 
 to the Hon. J. J. [judge of County], at his 
 
 chambers in the village of , County of 
 
 [or to the justice of this court, sitting at the chambers 
 thereof at the City Hall in the City of New York], on 
 the day of ,18 , or as soon thereafter as 
 
 counsel can be heard for an order appointing R. C, Esq., 
 of the , receiver (*) of all the debts, property, 
 
 equitable interests, rights and things in action of the 
 judgment debtor, C. D. [and also of the joint property 
 of the defendants, C. D. and E. F7\, with the usual 
 powers, and for an allowance of dollars for 
 
 the costs and disbursements in the supplementary pro- 
 ceedings herein. And for such other or further order 
 or relief as may be just. 
 
 [Date.] [Signature of attorney.'] 
 
 [Address to debtor or his attorney.] 
 
 63. Order to Show Cause why a Receiver should not be Ap- 
 pointed. Ante, p. 354. 
 
 [ Title of the Cause.] 
 
 Upon the affidavit of M. N., plaintiff's attorney, the 
 supplementary proceedings in this action, and the evi- 
 dence taken therein [or .the report of R. S., Esq., the 
 referee therein], let the defendant, C. D., show cause 
 before me at my chambers in the City of [or 
 
 at the chambers of this court, at the City Hall, City ^of . 
 ], on the day of ,18 , at 
 
 o'clock in the noon, or as soon thereafter as 
 
 counsel can be heard, why R. C, Esq., of the City of 
 , should not be appointed receiver (*) of the 
 debts, property, equitable interest, rights and things in 
 action of the defendant, C. D. [and the joint property 
 of C. D. and E. i^], with the usual powers, and why the 
 plaintiff should not be allowed the sum of dol- 
 
 lars for his costs and disbursements in the supple- 
 
534 NOTICE TO OTHER CREDITORS. 
 
 mentary proceedings herein, and such other relief as 
 may be just. 
 
 [Daie.] [Signature of judge.] 
 
 64. Notice of Motion, or Order to Show Cause, for Special Re- 
 
 ceiver. Ante, p. 409. 
 
 [Proceed as in Form 62 or 63 to the (*), then continue .•] 
 of the property of the judgment debtor, C. D., mentioned 
 in said referee's report \or disclosed by the evidence 
 aforesaid ; or found in the hands of G. H.,* or to 
 bring an action against G. H., for the recovery of certain 
 property of said C. D., claimed by him. J [The clause for 
 costs is the same as in 62 and 63 .J 
 
 65. Notice to Other Judgment Creditors having Similar Pro- 
 
 ceedings Pending. § 2465. Ante, p. 362. 
 
 [ Title of the Cause.] 
 
 Please to take notice that I shall apply to the Hon. 
 J. J., judge of County, at his chambers in the 
 
 village of [or to the justice of this court, sitting 
 
 at the chambers thereof, at the City Hall in ] 
 
 on the day of inst., at o'clock noon, 
 
 for an order appointing R. €., Esq., of , receiver 
 
 of the property of the above-named defendant, C. D., 
 with the usual powers. 
 
 [Date.] [Signature of attorney.] 
 
 [Address.] 
 
 66. Affidavit of Service of the Preceding Notices of Motion and 
 
 Orders to Show Cause, for a Receiver. 
 
 [ The same as Forms 48, 49, 50.J 
 
 * When the receiver is to be appointed in proceedings under § 2441, 
 the notice should be served upon the third party, and the order to 
 show cause should include him, if he is to be affected by the appoint- 
 ment. 
 
ORDER APPOINTING RECEIVER. 535 
 
 67. Order Appointing Receiver.* Ante, p. 356. 
 [ Title of the Cause. \ 
 
 Supplementary proceedings having been instituted 
 upon the judgment in this action against C. D., the 
 judgment debtor, by an order heretofore made by me 
 \or by Mr. Justice J. J., of this court, and regularly 
 continued before me], which was served on the judg- 
 ment debtor, and the said C. D. having been examined 
 therein on oath concerning his propertyf, now, on filing 
 the affidavit and order of examination herein, and the 
 evidence taken therein \or the referee's report of the 
 evidence, or the facts and proof of service of notice of 
 this application], and on motion of M. N., of counsel 
 for the plaintiff, after hearing O. P., opposed [or de- 
 fendant consenting], I hereby order that R. C, of the 
 , be and he hereby is appointed receiver of 
 all the debts, property, equitable interests, rights, and 
 things in action of the said judgment debtor; that 
 such receiver, before he enter upon the execution of his 
 trust, execute to the people of the State of New York 
 a bond with sufficient sureties, to be approved by me, 
 in the penalty of dollars, conditioned that he will 
 
 faithfully discharge the duties of such trust, and file 
 the said bond with the clerk of the County of 
 [or with the clerk of the court to which the judgment be- 
 longs], and that the said receiver upon filing such bond 
 be invested with all the rights and powers as receiver 
 according to law. And I also order that the plaintiff 
 recover dollars costs, and dollars, 
 
 his disbursements in these proceedings, to be paid to 
 
 * When the appointment is made by the court under § 713, the order 
 is entitled at court or at a Special Term, and requires but slight changes 
 in the phraseology from the above one. 
 
 \ When the order is made on the testimony of witnesses merely, 
 or upon the debtor's consent, without examination, this recital in the 
 order needs but little modification. See Form 68, 
 
536 SPECIAL RECEIVER. 
 
 him or his attorney out of the funds of the said judg- 
 ment debtor, that come into the hands of the receiver. 
 
 * And the said C. D. is hereby restrained from trans- 
 ferring or disposing of his property, or in any manner 
 interfering therewith, until further order in the prem- 
 ises. 
 
 f It is further ordered that , the said judg- 
 
 ment debtor, on being duly notified that the receiver 
 has completed his appointment, deliver to the latter 
 all moneys and other property now in his possession or 
 under his control, belonging to him, and not exempt 
 from execution, or by § 2463 of the Code of Procedure. 
 
 \Pate.\ {Signature of judge. \ 
 
 68. Order Appointing a Special Receiver. Ante, p. 409. 
 \Title of the Cause. \ 
 
 Whereas supplementary proceedings before return 
 of execution were duly instituted upon the judgment 
 in this action against the defendant ., C. D., by an order 
 heretofore made by me [or by Mr. Justice J. J., of this 
 court, and are regularly continued before me] ; and 
 whereas it appears by the evidence taken therein that 
 the said C. D. has property which he did unjustly re- 
 fuse to apply upon the said judgment, and which can- 
 not be so applied directly \or had property at the time 
 the demand was made of him to apply the same upon 
 the said judgment ; that he refused to apply it, but there- 
 after fraudulently transferred it beyond his control]. 
 
 Or whereas supplementary proceedings, under § 2441 
 of the Code of Procedure, were duly instituted upon 
 the judgment in this action against G. H., a third 
 party, by an order heretofore made by me \or by Mr. 
 Justice J. J., of this court, and are regularly continued 
 before me] ; and whereas it appears by the evidence 
 
 * This restraining clause is needless, if the debtor is already under 
 injunction. 
 
SPECIAL RECEIVER. 537 
 
 taken therein that the said G. H. has property of [or 
 is indebted in a sum exceeding ten dollars to] the 
 defendant, C. D., which property cannot be directly ap- 
 plied upon said judgment \or and said G. H. claims 
 an adverse interest in said property] ; now, on filing 
 the affidavit and order of examination herein, and the 
 evidence taken therein \or the said referee's report of 
 the evidence, or the facts and proof of notice of this 
 application], and on motion of M. N., of counsel for the 
 plaintiff, after hearing O. P., in opposition {^or no one 
 appearing to oppose], I hereby order that R. C, of the 
 
 , be, and he hereby is appointed receiver to 
 collect and receive the following property [here specify 
 the same~\ belonging to the defendant, C. D., and under 
 his control \or in the hands of the said G. //'.] ; and to 
 apply the same, or the proceeds thereof, under direc- 
 tion of the court, toward the satisfaction of the afore- 
 said judgment and the costs hereinafter named; or so 
 much thereof as will be necessary for that purpose, and 
 to hold the remainder, if any, subject to the further or- 
 der of the court \or to bring an action against said 
 G. H. to recover the following property in his posses- 
 sion {Jiere specify the same), in which property said G. H. 
 claims an adverse interest ; and after its recovery to 
 apply the same or the proceeds thereof [same as above)]. 
 That such receiver, before he enters upon the execu- 
 tion of his said trust, execute to the people of the State 
 of New York a bond with sufficient sureties, to be ap- 
 proved by me, in the penalty of dollars, con- 
 ditioned that he will faithfully discharge the duties of 
 such trust, and file the said bond with the clerk of the 
 
 , County, of [z. e., with the clerk of the 
 
 court in which the judgment-roll or the transcript of the 
 justices judgment is filed], and that the said receiver, 
 upon fihng such bond, be invested with all the right ; 
 and powers as receiver of the said property, according 
 
538 receiver's bqnd. 
 
 to law. [Add clause allowing the plaintiff' s costs, as in 
 Form 67.] 
 
 [Date.] [Signature of judged 
 
 69. Receiver's Bond with Security. Ante, p. 359. 
 
 * Know all men by these presents, that we, R. C, of 
 the , E. F., of the , and K. L., of 
 
 the same place, are held and firmly bound unto the 
 people of the State of New York, in the sum of 
 
 dollars lawful money of the United States. For 
 which payment well and truly to be made, we bind our- 
 selves respectively, and our respective heirs, executors 
 and administrators, estates and effects, firmly by these 
 presents. Sealed with our seals. Dated the day of 
 , 18 . 
 Whereas, by an order dated the day of , 
 
 18 , made by , Esq., a justice of' the 
 
 court, in supplementary proceedings in an action 
 in said court, wherein A. B. was plaintiff, and C. D. de- 
 fendant, the above-bounden R. C. was appointed re- 
 ceiver of the property and effects of the said C. D., a 
 judgment debtor. Now the condition of this obligation 
 is such that if the above-bounden R. C. shall faithfully 
 discharge his duties as such receiver, under the statutes, 
 rules and practice, and otherwise perform his office in 
 all things according to the true intent and meaning of 
 the said order, then this obligation to be void ; other- 
 wise to remain in full force. 
 
 Sealed and dehvered in the ) [Signature.] 
 
 presence of J 
 
 70. Affidavit of Sufficiency to Bond by Sureties. 
 State of New York, County of , ss.: 
 
 E. F. and K. Z., of , being severally duly 
 
 sworn, say, each for himself, that he is a resident and 
 
 * This form is from Edwards on Receivers in Equity, p. 380. 
 
APPOINTMENT OF AGENT. 539 
 
 holder in , in the County of 
 
 State of New York, and is worth dollars {amount 
 
 of penalty] over and above all his debts and liabilities, 
 and property exempt from execution. 
 
 [Jurat.'] {Signatures.] 
 
 {Acknowledgment or proof of bond, as in Form 41 or 
 42, substituting " bond" for " undertaking."] 
 
 71. Indorsement of Approval. 
 
 I approve the within bond as to its form and man- 
 ner of execution, and as to the sufficiency of the sure- 
 ties. 
 
 {Date.] {Signature of judge.] 
 
 73. Appointment of Agent.* Ante, p. 402. 
 {Title of the Cause.] 
 
 I hereby authorize and empower N. O., of the 
 
 , to demand and receive for me, in my name and 
 stead, from the defendant, C. D. {or G. H.], the money 
 {or property] mentioned in the annexed order {or the 
 following personal property {Jiere state the same), to 
 which I am entitled as receiver of the said C. D.], and 
 to deliver my receipt therefor to him. 
 Given under my hand and seal at the on the 
 
 day of , 18 . 
 
 R. C. , Receiver of, etc. [l. S.J 
 Signed, sealed and delivered in I 
 
 the presence oi A. B. j 
 
 {Acknowledged or proved as in Form 4.1 or 42 .J 
 
 * This form will do as a power of attorney by the plaintiff to a 
 third person, to demand and receive money or property from the 
 debtor, which the latter has been ordered to pay or deliver. 
 
540 RECEIVER S NOTICE, ETC. 
 
 74. Notice to Debtor, etc., of the Completion of the Receiver's 
 
 Appointment. Ante, pp. 370, 402. 
 
 [ Title of the Cause.] 
 
 Sir : You will please to take notice, that the fore- 
 going is a copy of the order of receivership, heretofore 
 made in the above-entitled action, by Hon. J. J. ; that 
 the same was filed and recorded in the ofifice of the 
 clerk of the , County of , on the 
 
 day of , 18 , that I have given and filed se- 
 
 curity as required by said order, approved by the said 
 judge [or by Mr. Justice , of the same court]. 
 
 [Date.] [Signature of receiver.] 
 
 [Address to defendant, or third party, or his attorney.] 
 
 75. The Receiver's Demand upon the Debtor or Third Party 
 
 to Deliver up Property. Ante, pp. 370, 401. 
 
 [Title of the Cause.] 
 
 Sir : By virtue of my appointment as receiver here- 
 in, I hereby demand that you forthwith deliver to me 
 [or to , the bearer hereof, who is fully author- 
 
 ized by me to demand and receive the same] the fol- 
 lowing personal property [here specify the articles]. 
 
 [Date]. [Signature of receiver.] 
 
 76. Receiver's Notice. Ante, pp. 370, 402. 
 
 [Title of the Cause.] 
 
 Please to take notice that the foregoing is a copy of 
 an order of receivership heretofore made in the above- 
 entitled action, by the Hon. J. J. [a justice of this 
 court] pursuant to § 2464 of the Code of Civil Proced- 
 ure, that the same has been filed and recorded in the 
 clerk's office of the , County of , that 
 
 being the county where the judgment-roll [or the 
 transcript from the justice's judgment] in this action 
 is filed ; that I have given and filed security as required 
 by said order, approved by said judge [or by the Hon. 
 
NOTICE TO THIRD PARTY. 541 
 
 J. J., a justice of the same court, who continued the 
 proceedings] ; and that (*) I claim from you, and each of 
 you, by virtue of said appointment, all and any debts, 
 property, equitable interests, rights, and things in 
 action which belonged to the above-named C. D., or 
 in which he had any interest on the day of 
 
 ,18 , being the day the said order was filed and 
 recorded as above stated, and which also, or its repre- 
 sentative, belonged to him, or in which he had any 
 interest on the day ,18 , being the day 
 
 when the supplementary proceedings herein were in- 
 stituted ; and an accounting for the proceeds thereof. 
 
 \Pate7\ {Signature of receiver. \ 
 
 To \Y. Z. and all other persons indebted to C. D., 
 
 the judgtnent debtor, or who have property or 
 
 equitable interests of said C. Z?.] 
 
 [Signature of attorney of receiver. ^ 
 
 77. Another Form of Notice to Charge a Person with Wrong- 
 fully Detaining Property. Ante, pp. 370, 402. 
 
 [ Title of the Cause. \ 
 
 \As in Form 76 to the (*), then continue .■] by virtue 
 of said appointment, I hereby demand and require you 
 to deliver to me \or to , the bearer, who is 
 
 fully authorized by me to demand and receive the same 
 from you] the following goods and chattels SJiere specify 
 the same] which belonged to the above-named C. D., on 
 the day of , 18 , the day the said 
 
 order of receivership was filed and recorded as above 
 stated, and which, or its representative, also belonged 
 to him on the day of , 18 , the date 
 
 of the commencement of the supplementary proceed- 
 ings herein ; and by virtue of said appointment now 
 belong to me. 
 
 And if you have any lawful lien or claim upon the 
 said goods and chattels, I hereby require you to state 
 
542 REFUSAL TO DELIVER. 
 
 the same, and I give you notice that I am ready and 
 willing to pay the same.* And in case it should occa- 
 sion you any inconvenience immediately upon the re- 
 ceipt hereof to deliver up the said goods, then I hereby 
 give you notice that I will attend at the premises where 
 the said goods now are at any time you may appoint ; 
 and in default of your appointing, I then will attend 
 on the day of next, between the hours 
 
 of and o'clock in the noon, then and 
 
 there to receive and remove the said goods. But in 
 default of your compliance with this notice, by giving 
 up and delivering to me [or to the said , or 
 
 to me] said goods and chattels on receipt hereof, or as 
 aforesaid, I hereby give you notice that I shall imme- 
 diately by order of this court commence and prosecute 
 an action against you, for such your conversion and 
 unlawful conduct, 
 
 [Date.] [Receiver's signature.^ 
 
 [Attorney's signature.] 
 To 
 
 [F.Z.] 
 
 78. Affidavit of Receiver, that a Debtor or a Third Party Refuses 
 to Deliver Property to him. Ante, pp. 220, 372. 
 
 [Title of the Cause.] 
 
 R. C, being duly sworn, says that on the day 
 
 of , 18 , by the order of the Hon. , 
 
 made at , in supplementary proceedings in 
 
 this action, he was duly appointed receiver of the prop- 
 erty and effects of C. D., the above defendant ; that 
 said order has been duly filed and recorded in the office 
 of the clerk of the , County of , 
 
 where the judgment-roll [or the transcript of the jus- 
 tice's judgment] in this action is filed ; that deponent 
 
 * If the receiver has any doubt as to his authority to pay off such 
 lien, or claim, he should apply to the court for instructions. 
 
ORDER TO SHOW CAUSE. 543 
 
 has given and filed the security required by said order, 
 and approved by the Hon. ; that on the 
 
 day of , 18 , at , he person- 
 
 ally served on said C. D. [or G. H.'] a copy of said order 
 of receivership, together with a written notice that 
 deponent had completed his appointment as such re- 
 ceiver, and then and there personally demanded of him 
 the following personal property \_here specify the same]. 
 
 Or that N. O., who was fully authorized thereto by 
 deponent, served a copy of said order of receivership, 
 etc., as will appear by his afifidavit hereto annexed. 
 
 That the said C. D. [or G. i/.] refused and still re- 
 fuses to deliver said property or any part thereof to 
 this deponent. 
 
 {Signature of receiver i\ 
 [Jurat.] 
 
 79. Order to Show Cause why Property should not be Delivered 
 to the Receiver. Ante, pp. 212, 220. 
 
 [Title of the Cause.] 
 
 On the annexed afifidavit of R. C, received of the 
 property of C. D., and the evidence taken in the supple- 
 mentary proceedings herein [add any other papers to be 
 used on the motion], let the defendant, C. D, [or G. H.], 
 show cause before me, at my chambers, in the 
 
 [or at the chambers of this court, in the City 
 Hall] in the City of , on the day of 
 
 ,18 , at o'clock in the noon, 
 
 why he should not be required to deliver to the said 
 R. C. the property mentioned in the aforesaid afifidavit. 
 Let a copy of this order be served upon the defendant 
 or his attorney on or after 18 , which shall 
 
 be deemed sufificient service. 
 
 [Date.] [Signature of Judge.] 
 
 [Address^] 
 To C. D. or G. H. 
 
544 ORDER TO DELIVER. 
 
 80. Order that Debtor or Third Party Deliver Property to the 
 Receiver. Ante, p. 313. 
 
 {Title of the Cause. \ 
 
 On the affidavit of , and the evidence taken 
 
 in the supplennentary proceedings herein, whereby it 
 appears that the following articles of personal property- 
 belong to the defendant, C. D., and are in his posses- 
 sion \or are in the possession of G. H., a third party], 
 and are not exempt by law from execution — to wit : 
 [here specify the property] ; and due proof of notice of 
 this application having been made ; on motion of M. N., 
 counsel for plaintiff, after hearing O. P., in opposition, 
 it is hereby ordered that said C. D. [or G. H.] deliver 
 the aforesaid property to the receiver, H. C, or to his 
 agent duly authorized, at No. Street, in the 
 
 City of , on the day of , 
 
 inst., at o'clock noon, and that the said 
 
 R. C. , or his agent thereupon, deliver to him a receipt 
 for the same. 
 
 [Date.] [Signature of judge.] 
 
 81. Receiver's Petition for Leave to Sue.* Ante, p. 411. 
 
 To the Supreme Court of the State of New York 
 [or other court whose officer he is], 
 [Title of the Cause.] 
 
 The petition of R. C, receiver of the property of 
 C. D., a judgment debtor, respectfully shows : 
 
 I. That by an order made in supplementary proceed- 
 ings in this action, by the Hon. J. J. [a justice of this 
 court] at , on the day of , 
 
 18 , your petitioner was duly appointed receiver of 
 
 * All applications by or against a receiver in regard to the estate 
 in his hands, must be made to the court whose officer he is, and not 
 to the judge who appointed him. 
 
receiver's petition. 545 
 
 the property and effects of the above-named judgment 
 debtor, C. D. ; that said order was duly filed and re- 
 corded in the clerk's office of the County of , 
 where the judgment-roll [or transcript, etc.] herein was 
 filed (*) ; that thereafter your petitioner gave the req- 
 usite bond with sureties approved, and filed the same 
 as required in said order. 
 
 II. [State briefly the cause or causes of action, as they 
 would be stated in a concise complaint , thus :] that 
 among other debts due the said C. D. is one of 
 dollars, due from Y. Z.,ol etc., the particulars of which 
 are set forth in a schedule hereto annexed. 
 
 III. That your petitioner, as such receiver, has re- 
 peatedly demanded the payment of said debt from said 
 Y. Z., both personally and by letter, but has always 
 been met by evasive answers ; and that the debt still 
 remains due and unpaid. 
 
 IV. That your petitioner has made diligent inquiry 
 in relation to the pecuniary standing of the said Y. Z., 
 and from such inquiry believes that the said debt so due 
 from the said Y. Z. would be likely to become avail- 
 able by an action ; that from every information he has 
 been able to obtain, he believes the said Y. Z. to be 
 solvent, and that he has sufficient available property to 
 pay said debt. 
 
 Your petitioner, therefore, prays that he may be al- 
 lowed, as such receiver, to commence, continue, and 
 perfect an action in one of the courts of record of this 
 State, against the said Y. Z., for the recovery of said 
 debt of dollars, and in such form of action as 
 
 counsel may advise. 
 
 {Pate.\ {Signature. \ 
 
 Werification the same as to a complaint. 1 
 
546 GRANTING LEAVE TO SUE. 
 
 82. Order Granting Leave to Sue.* Ante, p. 412. 
 At a [same as Form 12]. 
 Present, Hon. J. J., justice. 
 [Title of the Cause. \ 
 
 On reading and filing the petition of R. C, receiver 
 herein of C. D., a judgment debtor, asking for leave to 
 (*) bring an action for a claim amounting to 
 dollars, due from Y. Z., of ; and this court 
 
 deeming such petition to contain sufficient evidence to 
 authorize such action, on motion of 5. S., of counsel 
 for the said receiver, ordered that the said R. C, as 
 such receiver, is hereby authorized and directed to com- 
 mence and prosecute an action in one of the courts of 
 record of this State, and in such form as counsel may 
 advise against the said V. Z., to recover the said debt 
 of dollars. f 
 
 83. Order Granting Leave to Sell Desperate Debts.:]: 
 
 \As in Form 82 to the (*), then continue .•] sell certain 
 alleged desperate or bad debts, due to the estate over 
 which he is receiver, consisting of certain bonds, prom- 
 issory notes, and book debts hereinafter more particular- 
 ly referred to ; and the court deeming it proper and 
 best that such debts should be sold, now, on motion 
 of , of counsel for the said petitioner, it is 
 
 ordered that the said R. C, as receiver herein, do and 
 he is hereby authorized and allowed to sell at public 
 auction at \_the Exchange Salesroom, in the City of Neiv 
 Yorkl all and every the said bonds, promissory notes, 
 and book debts — namely [here describe them']. And it 
 
 * This and the previous form are from Abbott's Forms, 36 and 
 37, with slight modifications. 
 
 f The receiver sues in his own name. There is no need of an 
 order allowing him to sue in the name of another. 
 
 X This is required by Supreme Court rule. 
 
SALE OF BAD DEBTS. 547 
 
 is also ordered that the said sale shall be for cash, and 
 that the said receiver shall give at least ten days' notice 
 of the said sale by publishing the same for weeks 
 
 in one or more newspapers printed and issued in the 
 said City of New York. 
 
 84. Notice of Sale of Bad Debts. 
 
 [ Title of the Cause. \ 
 
 Notice is hereby given, that by virtue of an order of 
 the Court, , the subscriber, as 
 
 receiver in the above-entitled action, will sell at public 
 auction at [the Exchange Salesroom, No. 1 1 1 Broadway, 
 in the City of New York] on the day of 
 
 next, at o'clock noon, the following bonds, 
 
 promissory notes, and book accounts — namely [here de- 
 scribe them accitratsly and minutely^, which sale is to be 
 entirely for cash. 
 
 \Date^ [Signature of receiver. '\ 
 
 85. Skeleton Form for Complaint by a Receiver.* 
 \CourtI\ 
 
 R. C. 
 as receiver of the property of C. D. 
 
 V. 
 
 C. D. and 
 Y. Z. 
 
 The complaint of the plaintiff respectfully shows : 
 I. That on the day of 18, , in 
 
 an action in the Court of , A. B. 
 
 * The receiver must establish two positions to give him a standing 
 in court. I. The same substantially that the judgment creditor whom 
 he represents would have to establish. 2. His right to represent the 
 creditor. The allegations of the judgment and execution are substan- 
 tially the same as those in the affidavit on which the supplementary 
 order was made. 
 
548 COMPLAINT BY RECEIVER. 
 
 duly recovered a judgment [which was duly given 
 after personal service of the summons on the defendant 
 or his personal appearance] against the above-named 
 defendant, C. D., for the sum of dollars, and 
 
 the judgment was on the same day docketed in the 
 office of the clerk of the said county \or court] [and on 
 the day of i8 , a transcript thereof 
 
 was filed, and the judgment docketed in the County of 
 ] ; that thereafter, on the day of 
 
 , i8 , an execution in due form upon said 
 judgment was duly issued against the personal and 
 real property of the defendant, C. D., to the sheriff of 
 the said \or last-named] county in which the said de- 
 fendant then resided [^rhad a place of business], which 
 execution was afterward returned wholly unsatisfied ; 
 and the said judgment remains wholly unpaid. 
 
 II. That after the return of said execution, and upon 
 an affidavit containing the aforesaid facts, supplementary 
 proceedings were duly instituted in the said action, 
 against the above-named defendant, C. D., at the in- 
 stance of said A. B., by an order dated the day 
 of , i8, made by the Hon. J. J., a justice of 
 the said court [or county judge of the County of 
 ], at the City of ; that such pro- 
 ceedings were regularly had therein, that on the 
 day of , i8 , at , by an order of 
 of the said J. J. [or the Hon. , a justice of 
 the same court, before whom the proceedings were regu- 
 larly continued] this plaintiff was duly appointed re- 
 ceiver of all the property and effects of the said defend- 
 ant, C. D. That said last-named order was filed and 
 recorded on the day of , i8 , in 
 the office of the clerk of the .County of , 
 that being the county where the judgment-roll \or, etc.] 
 is filed ; and a certified copy thereof delivered to this 
 plaintiff, who thereupon, and before the commencement 
 
ORDER FOR RECEIVER TO PAY. 549 
 
 of this action, gave his bond required by said order, as 
 such receiver, approved by the said justice and filed the 
 same with such approval in the office of the clerk of the 
 said court [or the County of ]. 
 
 III. {Here allege the cause of action. \ 
 
 IV. {The prayer of relief. ] 
 
 86. Order for Receiver to Pay off a Judgment.* f 
 
 [At a special, etc. {as in form 12. J 
 [ Title of the Cause. '\ 
 
 It appearing to the satisfaction of the court, that the 
 defendant, C. D., is indebted to the plaintiff on the judg- 
 ment herein, in the sum of dollars, with interest 
 from the day of , 18 , and that R. C, 
 the receiver appointed in supplementary proceedings 
 herein, has money sufficient to satisfy the same, it is 
 hereby ordered that the said receiver, on having 
 tendered to him a satisfaction piece [properly ac- 
 knowledged] of such judgment, pay its amount with 
 interest, and cancel the said judgment ; also pay the 
 plaintiff on his receipt, or that of his attorney 
 dollars for his costs ; that the said receiver retain 
 
 dollars for his charges and commissions ; and that 
 he deliver and pay all balance of moneys and effects in 
 his hands to the said defendant. And that he take re- 
 ceipts for all he shall so pay, upon a certified copy of 
 this order, which shall be a full discharge ; and he add- 
 ing, also, thereon a receipt for his own commissions and 
 charges. That he file the same with the clerk where 
 his bond is filed [and that the said clerk thereupon 
 
 * This form is from Edwards on Receivers, p. 391. But the court 
 will not order the bond to be surrendered to the receiver in all cases. 
 
 f The receiver is not obliged to pay the funds to any party or per- 
 son, without an order of court. Edwards on Receivers, pp. 391, 497. 
 
5 so PETITION BY RECEIVER. 
 
 cancel the receiver's said bond, and deliver the same to 
 him.]* 
 
 87. Petition that Receiver Apply Money upon the Judgment, 
 or for Order Determining Priority among Creditors. 
 
 To the Supreme, etc. [as in Form 81 J. 
 [ Title of the Cause.\ 
 
 The petition of the above-named plaintiff respect- 
 fully shows : 
 
 I. That supplementary proceedings were instituted 
 in this action, at the instance of the plaintiff against 
 the defendant, by the order of the Hon. J. J. [a justice 
 of this court], bearing date the day of 
 
 ,18 , and personally served on the 
 day of , 18 , as appears by the affidavit 
 
 of service annexed to the same ; that on the 
 day of , 18 , an order, of which a copy is 
 
 hereto annexed, was made by the [said justice] appoint- 
 ing R. C, of, etc., receiver of the property 
 and effects of the said defendant, which order was duly 
 filed and recorded in the office of the clerk of the 
 
 , County of , where the judgment-roll 
 
 in this action [or the transcript of, etc.] is filed ; 
 that said receiver thereafter gave the requisite bond, 
 which was duly approved and filed as required by said 
 order, and entered upon the execution of his said trust. 
 
 II. That he has funds in his hands applicable to the 
 judgment and costs herein, as appears by his certificate 
 hereto annexed. 
 
 III. That the following judgment creditors of the 
 
 *The motion for this order is made on an affidavit or petition, the 
 original proceedings, and receiver's certificate of having money in his 
 hands. But the order can only be granted thus summarily where no 
 other Hens of judgment creditors exist, or where the priority of this 
 is undisputed ; otherwise notice of the motion should be given to the 
 other creditors in the receivership. Id., p. 498. 
 
NOTICE OF MOTION. 55 1 
 
 defendant, and no others, as your petitioner is informed 
 and believes, claim to have some lien on the said funds, 
 by reason of having instituted similar proceedings [or 
 having commenced creditor's actions] against the defend- 
 ant for the like purpose of reaching his property — to 
 wit [here give the names of the creditors, and when their 
 respective proceedings or actions were cominenced, and 
 whether the receivership has been extended over thetn^ 
 
 IV. Your petitioner is advised and believes that he 
 is entitled to priority in payment out of the funds afore- 
 said in preference to the said creditors. 
 
 Wherefore your petitioner prays that this court may 
 grant an order, directing the receiver herein to apply 
 the moneys in his hands to the payment of the judg- 
 ment herein with interest, and the costs allowed your 
 petitioner in the order of receivership herein, or so 
 much thereof as will be necessary for that purpose [or 
 that this court order a reference to ascertain the 
 amount of the respective judgments aforesaid, and the 
 priorities of the claimants to the said funds, and to 
 direct the application of the same accordingly] and for 
 such other or further order as may be just. 
 
 [Signature.^ 
 
 [Date.] 
 
 [Verification as in a complaint.] 
 
 [Annex receiver' s certificate.] 
 
 88. Notice of Motion for Order that Receiver Apply Funds on 
 the Judgment. 
 
 [Title of the Cause.] 
 
 Please take notice that upon the supplementary pro- 
 ceedings herein, and the petition of , a 
 copy of which is herewith served, the undersigned will 
 apply to this court [at a Special Term to be held at the 
 City Hall, in the City of New York] on the day 
 of , 18 , for an order that the receiver 
 
552 ORDER FOR RECEIVER TO APPLY FUNDS. 
 
 appointed herein apply the moneys of the estate of 
 the defendant, C. D., now in his hands, to the payment 
 of the judgment in this action, and the costs and dis- 
 bursements allowed in the order appointing him re- 
 ceiver, or for such other or further order or relief as the 
 court may deem just. 
 
 {^Date.^ [Signature of attorney. \ 
 
 [Address.] 
 R. C, receiver, and the other creditors in interest. 
 
 89. Order Directing Receiver to Apply Funds on Judgment, etc. 
 
 At a special, etc. [as in Form 12]. 
 [Title of the Cause.] 
 
 On reading and filing the supplementary order made 
 in this cause, the proof of service of the same, and the 
 affidavits and petition used on this motion, and after 
 hearing M. N., of counsel for the plaintiff in favor of 
 the motion, and O. P. and 5. T. [representing other cred- 
 itors] [or, and on proof of due service of notice of this 
 motion, no one appearing] in opposition thereto. 
 
 It is ordered that the said receiver pay to the plain- 
 tiff's attorney, M. TV., on his receipt, dollars, 
 the costs and disbursements allowed the plaintiff in the 
 supplementary proceedings in this action ; and that 
 [after retaining the sum of dollars, for his 
 charges and commissions to this date] he pay the 
 balance to the plaintiff, or his attorney, on his receipt, 
 to be applied as a payment on the said judgment. 
 
 And that he take such receipts upon a certified copy 
 of this order [and add also thereon a receipt for his 
 own commissions and charges] ; and that he, said 
 receiver, be continued in his duties both as to this 
 action and as to others over which he has been ex- 
 tended. 
 
PETITION FOR LEAVE TO SELL REAL ESTATE. 553 
 
 90. Receiver's Petition for Leave to Sell Real Property. 
 
 \_SaMe as in Form Z\ to the (*), then co7itinue .■] and 
 where the said defendant, C. D., then resided, and the 
 real estate hereinafter mentioned is situated [or, and a 
 certified copy of said order was on the day of 
 
 ,18 , also filed and recorded in the office 
 of the clerk of the , County of , where 
 
 the said defendant, C. D., then resided, and the real es- 
 tate hereinafter mentioned is situated]. That your peti- 
 tioner thereafter gave the requisite bond with sureties, 
 which was duly approved and filed ; and he is acting 
 under the trust of his said receivership. 
 
 II. That it appears that the defendant is owner of 
 certain real property known and described as follows : 
 [description of the premises ; and state also iv hat interest 
 the defendant has in it, what incumbrances on it, and its 
 value ;~\ and that your petitioner is entitled to said 
 property as such receiver. 
 
 III. [State reason for asking a sale — e. g., thus :~\ 
 that your petitioner has found no goods, or chattels, or 
 choses in action of the said C. D., out of which any 
 money can be made by collection, suit, or sale ; and 
 that said land is the only available property. 
 
 Wherefore your petitioner asks an order, allowing 
 him, as such receiver, to sell by public auction, and con- 
 vey all the right, title, and interest of the said C. D., 
 of and in the said land ; and that the said C. D. join in 
 such deed, if the purchaser require it, and for such 
 other or further order as may be just. 
 
 [Date\ [Signature of receiver i\ 
 
 [Affidavit as to a co}nplaintP\ 
 
 91. Order Allowing Receiver to Sell.* 
 
 At [same as in Forin 12]. 
 [Title of the Cause.] 
 
 On reading and filing the petition of R. C, the re- 
 
 * From Edwards on Receivers, p. 486. 
 
554 receiver's inventory. 
 
 ceiver in this action, asking leave to sell, etc. [here 
 recite sufficient of the petition to show its general charac- 
 tcr\ and proof of due service of notice of motion upon 
 the plaintiff and defendant ; and after hearing S. S., of 
 counsel for the said petitioner, it is ordered that the 
 said R. C, as receiver herein, do, and he is hereby 
 authorized and allowed to sell at public auction, at [the 
 Exchange Salesroom in the City of New York] all the 
 right, title, and interest of the said defendant, C. D., of 
 and in all that certain piece or parcel of land {describe 
 the same'] ; that the sale be made at the risk of the 
 purchaser, for cash ; that the said receiver shall give 
 [three] weeks' public notice of the time and place of 
 such sale, in [one] of the public newspapers in the [City 
 of New York] at least twice in each week ; and that 
 the receiver execute a conveyance or assignment to the 
 purchaser; and that the defendant, C. D., if required by 
 the purchaser, join in the said conveyance or assign- 
 ment. 
 
 92. Receiver's Inventory of the Debtor's Property. 
 
 [ Title of the Cause.] 
 
 A just and true inventory of the whole real and 
 personal estate committed to the care of 
 R. C, the receiver appointed herein under 
 an order made herein, dated the day 
 
 of , 18 ; and of the manner 
 
 in which any funds under his care and con- 
 trol, belonging to the estate, are invested ; 
 with the income or profits of the funds or 
 estate, and of the debts, credits, and effects, 
 so far as the same have come to his knowl- 
 edge. 
 Real and leasehold estate : 
 
 \_Here give the same in detail, as .■] 
 A house and lot, etc.. 
 
NOTICE FOR DISTRIBUTION. 555 
 
 A lease of, etc., 
 
 Merchandise and stock in trade, at No. 
 Mortgages, stock, bonds and notes : 
 A mortgage from, etc., 
 
 etc., etc. 
 Book debts, due or owing: 
 E. F., etc., owes on book account,. . ..% 
 etc., etc. 
 \Pate.\ \R. C], Receiver. 
 
 [ Venue. J 
 
 R. C, the receiver in the above action, being duly 
 sworn, says that the above is a just and true inventory 
 of the whole real and personal estate at any time in his 
 possession or committed to his care as such receiver ; 
 and also truly shows the manner in which any and all 
 funds under his care and control, belonging to the said 
 estate, are invested ; and of the whole of the income 
 and profits of the funds or estate, and of the debts, 
 credits, and effects, so far as the same have come to the 
 said deponent's knowledge. 
 
 [/icrat^ [^Signature. ~\ 
 
 93. Notice of Receiver's Petition for Directions as to Distri- 
 bution of Assets, etc.* 
 
 \Title of the Cause. \ 
 
 Please take notice that upon the petition, of which 
 the within is a copy, and upon the statement of facts, 
 and the schedules thereto annexed and therein referred 
 to, I shall apply to this court [at a Special Term thereof], 
 to be held at , on the day of , 
 
 18 , at o'clock in the noon, for an order 
 
 directing what course I am to take in reference to the 
 [uncollected notes and accounts, and the furniture in 
 
 *The petition and papers on which this motion is founded should 
 give a full account of the property in the receiver's hands, and con- 
 cerning which he asks instruction. 
 
556 ORDER TO PAY JUDGMENTS. 
 
 my possession] and also for an order directing a refer- 
 ence to take my account as receiver, and discharging 
 me from further hability, and also for an order deter- 
 mining your respective priorities, and my duties as to 
 paying your various claims out of the surplus that may 
 remain in my hands, or out of any other moneys that I 
 may collect. 
 
 [Daie.] \Signature of receiver.^ 
 
 \Address to the parties in interest or their attorney s.'\ 
 
 94. Order for an Extended Receiver to pay off Several 
 Judgments, according to Priority.* 
 
 At a Special Term, etc. [as in Form 12]. 
 [Title of all the Act ions. \ 
 
 It appearing, under supplementary proceedings herein, 
 that the receiver, R. C, has funds sufficient to satisfy 
 all the judgments of the respective plaintiffs, it is 
 hereby ordered that a reference be had to R. S., Esq., 
 of etc., who as referee shall ascertain the amounts of 
 such respective judgments and the priorities of the 
 respective plaintiffs ; that the said receiver, under the 
 direction of the said referee, on having satisfaction- 
 pieces tendered to him [properly acknowledged] pay 
 the amounts so ascertained, and cancel the judgments 
 of record ; and also pay to each of the said plaintiffs 
 the amounts allowed to him in his order of receivership, 
 as costs and disbursements of the supplementary pro- 
 ceedings therein [or, and also pay the sum of 
 dollars, as costs, to each of the said plaintiffs, A. £., 
 E. F., J. A'.J ; that he, the said receiver, pay the referee's 
 fees, and also retain such reasonable amount for his 
 own commissions and charges as the referee shall name 
 and indorse upon a certified copy of this order. Also 
 that the receiver take receipts for all he shall so pay to 
 
 *This form, with a few slight alterations, is from Edwards on Re- 
 ceivers, p. 395. 
 
AFFIDAVIT TO ACCOUNT. 557 
 
 the plaintiffs and referee upon the back of such certi- 
 fied copy, which shall be a full discharge. That he file 
 the same with the clerk where his bond was filed [and 
 that the said clerk thereupon cancel the receiver's last 
 bond and deliver the same up to him]. 
 
 95. Affidavit of Receiver to his Account.* 
 
 [ Title of the Cause.] 
 [ Venue.] 
 
 J^- C, of , receiver of the property and 
 
 effects of the defendant, C. D., a judgment debtor, 
 being duly sworn, says : 
 
 That the above is a just, full, and true inventory of 
 the whole real and personal estate and effects embraced 
 by this deponent's said receivership in this action so 
 far as the same have ever come to his knowledge and 
 possession ; and also a just and true account of all the 
 receipts and disbursements on account of the said 
 estate which have ever been received or paid by this 
 deponent, or by any other person by his order or for 
 his use. Also that the several sums of money men- 
 tioned in the foregoing accounts to have been paid or 
 allowed by him were actually paid or allowed by him, 
 this deponent, for or on account of the said estate. 
 And this deponent further says that he does not know 
 of any error or omission in the said foregoing accounts 
 to the prejudice of any of the parties in the said cause. 
 
 [Jurat.] [Signature.] 
 
 96. Reference to Pass Receiver's Account.f 
 
 [ The object of motion, or of the order, may be stated 
 thus :] to take and state the accounts of R. C, the said 
 
 * The account to which this is the affidavit is framed like the in- 
 ventory, Form 92. ' 
 
 f This and Forms 98 and 99 are irom Abboil's Forms, 1523, 1526, 
 1527. 
 
558 REPORT ON RECEIVERS ACCOUNT. 
 
 receiver in this action, and to ascertain and report to 
 the court what, if any, of the property and assets in 
 question in this action remain undisposed of ; and the 
 balance of cash remaining in his hands, after making 
 all just allowances to said receiver for the costs and 
 expenses of said receivership, and his commissions, as 
 well as for other disbursements and payments, properly 
 made by him, on account of said trust-fund [where the 
 receiver is in fault, and the motion is against him, add, 
 with costs of this motion to be paid by said receiver 
 personally]. 
 
 97. Referee's Report on Receiver's Account. 
 
 [ Title of the Cause. \ 
 
 To the Court of 
 
 In pursuance of an order made in the above action, 
 bearing date the day of , 18 , 
 
 whereby, etc. [here very briefly recite order of reference\ 
 I, the subscriber, referee aforesaid, residing in the City 
 of [Albany], have been attended by R. C, the receiver 
 in the above action, and the attorneys of the respective 
 parties ; and the said receiver having brought before 
 me his accounts, embracing the whole of his receiver- 
 ship from first to last, I have, in the presence of the 
 said receiver and of the attorneys of the plaintiff and 
 the defendant, proceeded to take and pass the said 
 accounts ; and I find that the said receiver hath received 
 by and out of the estate of C. D., over which he was 
 appointed, the several sums of money set out in his 
 said accounts, as having been received by him, amount- 
 ing together to the sum of dollars, and that 
 he has paid and is to be allowed for taxes, etc., and for 
 his commissions, or salary as receiver, and for fees and 
 charges of passing his accounl^s, and to be discharged, 
 the several sums of money set out in his said accounts 
 as having been paid by him, amounting together to the 
 
NOTICE OF MOTION TO REMOVE RECEIVER. 559 
 
 sum of dollars, which being de- 
 
 ducted from the said sum of dollars, 
 
 reduces the same to the sum of dollars, 
 
 which is the clear balance remaining in the said receiver's 
 hands, and to be paid into this court. And in pursu- 
 ance of the aforesaid order, I hereby specify 
 days within which the said balance shall be paid in by 
 the said receiver, to the credit of this action. 
 
 The particulars of his receipts, payments and allow- 
 ances, appear in the schedule marked A, hereto an- 
 nexed. All which is respectfully submitted. 
 
 [^Dafe.] [Referee s signature. \ 
 
 98. Notice of Motion to Remove Receiver. 
 
 \The object of -motion may be stated thus .■] that R. C, 
 appointed receiver in this action, be removed [and that 
 it be referred to a referee to, or that the court do, 
 appoint a substitute in his place, and take requisite 
 security], and for the costs of this motion [to be paid 
 by the said R. C. personally]. 
 
 99. Notice of Motion to Discharge Receiver. 
 
 \_The object of motion may be stated thus .•] that R. C, 
 the receiver appointed in this action, be discharged, 
 and that, on an accounting by him, and a delivery of 
 all property and other things held by him as such re- 
 ceiver, to be made as the court may direct, the bond 
 entered into by him, the said receiver and his sureties, 
 may be vacated, and for the costs of this motion. 
 
 100. Order Discharging Receiver. 
 
 At, etc. [as inform 12]. 
 [ Title of the Cause. \ 
 
 On reading and filing the report of R. S., Esq., the 
 referee appointed to pass the final accounts of R. C, 
 the receiver in this cause, and the certificate of C. L. K., 
 
S6o AFFIDAVIT OF SERVICE OF ORDER. 
 
 the clerk of this court, that the said receiver has paid 
 in the amount of balance found and reported to be in 
 his hands by the said referee, and proof of due service 
 of notice of this application ; on motion of Jf. S., of 
 counsel for the said receiver, it is ordered that the said 
 J?. C. be, and he hereby is, discharged from all the 
 duties and responsibilities of his said receivership, and 
 that the bond entered into by E. F. and K. L. as sure- 
 ties for him as such receiver be, and the same hereby 
 is, vacated, and they are, and each of them is, discharged 
 from all responsibility and liability as such sureties and 
 bondsmen. \If a new receiver is appointed, then add :] 
 and that the said R. C. hand over to the said new re- 
 ceiver all documents and papers in his power or under 
 his control relating to such receivership. 
 
 SECTION V. 
 
 For Proceedings to Punish Disobedience of Process and 
 
 Orders. 
 
 loi. Affidavit of Service of Order to Pay Money. Ante, 
 pp. 220, 231, 23s, 238. 
 
 \Title of the Cause. '\ 
 [ Venue. \ 
 
 A. B., being duly sworn, says that he is [the attor- 
 ney of] the above-named plaintiff ; that on the 
 day of , 18 , at , he served 
 
 upon C. D., above named, a copy of the order hereto 
 annexed \or upon G. H., named in the order hereto an- 
 nexed, a copy thereof], by delivering the same to and 
 leaving it with him ; and at the same time and place he 
 showed him the said order hereto annexed, with the 
 signature of the judge, and then and there he personally 
 
ORDER TO COMMIT. 561 
 
 (*) demanded of said [C. £>.] (f) payment of the mon- 
 eys [or costs] mentioned in said order ; but said [C. D.] 
 has neglected and refused to pay the same, or any 
 part thereof. 
 
 [Jurat.'] [Deponenf s signature.] 
 
 [Annex order.] 
 
 102. Same by Third Party.* 
 
 [As in Form loi to the (*), omitting allegation that lie 
 is the attorney or plaintiff, then continue :] on behalf of 
 the above named A. B. demanded of said [C. /?.] pay- 
 ment of the moneys [or costs] mentioned in said order ; 
 but said [C. DP\ has neglected and refused to pay the 
 same, or any part thereof. 
 
 Deponent further says that the said demand was made 
 on behalf of ^. B. [the attorney of] the plaintiff in this 
 action ; that deponent was duly authorized to make such 
 demand, as appears by the power of attorney hereto 
 annexed ; and at the time of making said demand de- 
 ponent stated to the said C. D. the nature of his 
 authority, and showed him the said power of attorney. 
 
 [Jurat 7] [Deponenf s signature.] 
 
 [Annex order and power of attorney.] 
 
 103. Order for Precept to Commit for Non-Payment of Money.f 
 Ante, pp. 231-235. 
 
 At, etc. [as in Form 12]. 
 
 [Title of the Cause.] 
 
 On reading and filing the afifidavit of , dated 
 
 the day of ,18 , showing due personal 
 
 service on the defendant C. D. [or G. //.] of a copy of 
 
 the order made [by Hon. J. J., a justice of this court, in 
 
 * For power of attorney, see Form 73. 
 
 f This form is used when application to punish is made to the 
 court. 
 
562 COMMITMENT BY COURT. 
 
 supplementary proceedings*] in the above action, on 
 the day of , 18 , and also showing a 
 
 demand of the payment of the money mentioned in the 
 said order of said C. D., personally, and of his neglect 
 and refusal to pay the same, or any part thereof ; and the 
 costs of this proceeding to compel such payment having 
 been fixed by the court at dollars : 
 
 Now, on motion of M. N., attorney for the plaintiff, 
 it is ordered that a precept be issued out of and under 
 the seal of this court, directed to the sheriff of the 
 County of , commanding him to take the 
 
 body of the said C. D., if he shall be found in his baili- 
 wick, and commit him to the common jail of said County 
 of , and to keep and detain him therein under 
 
 his custody, until he shall pay the sum of 
 dollars \or the amount of the judgment herein, and the 
 sum of dollars, the costs and disbursements 
 
 allowed in the supplementary proceedings herein] as 
 required by said order, and also the further sum of 
 dollars for the costs and expenses of this 
 proceeding to compel such payment, together with the 
 sheriff's fees on such precept. 
 
 104. Precept of Commitment on Previous Order. Ante, p. 271. 
 
 The People of the State of New York, to the sheriff 
 of the , County of , Greeting: 
 
 \Seal^ Whereas, on the day of , 18 , 
 
 by a certain order made in our Supreme Court \or other 
 court ; or by J. J., Esquire, a > justice of our Supreme 
 Court, in supplementary proceedings then had before 
 
 * It seems to me no more necessary, when the contempt proceed- 
 ings are before the court, to recite that the order disobeyed was made 
 in supplementary proceedings, than to recite that an injunction vio- 
 lated was issued in provisional remedies. The jurisdiction of the 
 court is presumed when it is alleged that the order was made in an 
 action in the court. 
 
COMMITMENT. 563 
 
 him], in an action in our said court, at the instance of 
 A. B., plaintiff, against C. i?., defendant, it was ordered 
 that the said C. D. pay to the said A. B. [or M. N., his 
 attorney] the sum of dollars, to be applied 
 
 toward the satisfaction of the judgment against him in 
 said action, and the costs and disbursements allowed in 
 the supplementary proceedings therein [or the amount 
 of the judgment against him in the said action, with 
 the interest thereon — to wit : the sum of 
 dollars, and the further sum of dollars, the 
 
 costs and disbursements allowed in the supplementary 
 proceedings instituted upon said judgment]. And 
 whereas we have been informed in our said court that 
 although the said sum of dollars has been 
 
 personally demanded of the said [C. D.'] by or in behalf 
 of said A. B. [or M. N.'], yet said [C. D.'] has hitherto 
 neglected and refused, and still neglects and refuses, to 
 pay the same ; and whereas the costs and expenses of 
 the proceeding on the part of the said A. B.,to compel 
 payment thereof, amount to dollars : 
 
 Now, therefore, we command you to take the body 
 of the said [C Di\ if he shall be found in your bailiwick, 
 and commit him to the county jail, of the , County 
 
 of , and keep and detain him therein under 
 
 your custody, until he shall pay the said sum of 
 dollars, for the said moneys [or for the amount of said 
 judgment and costs] so ordered to be paid ; and also 
 the said sum of dollars for the costs and ex- 
 
 penses of the proceeding to compel such payment, to- 
 gether with your fees on this writ. And you are to 
 make and return to our said court on the day of 
 ,18 , at the county clerk's office in said 
 County of [or at the clerk's office of our said 
 
 court] a certificate under your hand, of the manner in 
 which you shall have executed this our writ ; and have 
 you then there this writ. Witness J. J., one of the 
 
564 COMMITMENT BV JUDGE. 
 
 justices of our said court, at , the day of 
 
 , one thousand eight hundred and 
 \_M. N^, Attorney. \C. L. K.] Clerk. 
 
 \Endorsed.'\ 
 
 By the court, 
 
 iC. L. K.-], Clerk. 
 
 105. Precept of Commitment by a Judge. Ante, p. 271. 
 
 [ Title of the Cause. \ 
 
 The People of the State of New York, to the sheriff of 
 County, Greeting : 
 Whereas, a judgment was duly recovered [briefly re- 
 cite the facts of judgment and execution, as in an order 
 or warrant under § 2438, Forms 6, 7, 1 1, 14], and where- 
 as, on the day of ,18 , the undersigned, 
 J. J., a justice of this court, did, at the village of 
 
 , County of , upon due proof of the 
 
 aforesaid facts, make an order instituting supplement- 
 ary proceedings against the above defendant, C. D., 
 which order was duly served on the said C. D., by show- 
 ing the same to him, and leaving with him a copy 
 thereof; and whereas an order was, on the day of 
 ,18 , made in the said proceedings by the 
 said justice, requiring the said C. D. to pay to the 
 plaintiff, A. B., the sum of dollars within 
 
 days, which last-named order was duly served 
 on the said C. D. on the day of , 18 , 
 
 by showing the same to him, and leaving with him a 
 copy thereof ; and a demand of the payment of the 
 said money was personally made of the said C. D., by 
 or in behalf of the said A. B., and he has refused and 
 neglected to pay the same, or any part thereof ; and 
 whereas the costs of this proceeding to compel such 
 payment has been fixed by the said justice at 
 dollars. 
 
AFFIDAVIT OF SERVICE. $65 
 
 Now, therefore, you are commanded that you take 
 the body of the said C. D. if he shall be found in your 
 baiHwick, and commit him to the common jail of the 
 County of , and keep and detain him therein 
 
 under your custody until he shall pay the said sum 
 of dollars for the said moneys so ordered to be 
 
 paid ; and also the said sum of dollars for the 
 
 costs and expenses of the proceeding to compel such 
 payment, together with your fees on this precept, as a 
 punishment for his said contempt ; and for such arrest, 
 imprisonment, and detention, this shall be your sufficient 
 warrant. 
 
 Given under my hand, at , in the County of 
 
 , this day of , 18 . 
 
 {Signature of Judge.'] 
 
 \Signature of attorney. ] 
 
 106. Affidavit of Service of Order to Deliver up Property. Ante, 
 
 p. 238. 
 
 \As in Form loi to the (f), then continue .•] the de- 
 livery of the property mentioned in the said order \or 
 on the day of , inst., at o'clock 
 
 noon, at , in the village of , he per- 
 
 sonally demanded of said C. D. the delivery of the 
 property, etc.], but he refused to deliver the same, or 
 any part thereof. Or (at the time as above stated) this 
 deponent attended at No. Street, prepared 
 
 to receive and remove the property, etc., and waited 
 there a full hour after said time, but said C. D. 
 
 did not appear, nor any person for him, nor has said 
 property, or any part thereof, been delivered to de- 
 ponent.] 
 
 \Jurat^ [Deponent's signature.] 
 
 107. Same, by a Third Person. 
 
 [As in previous Form \o6,with the averment of agency, 
 and on whose behalf the demand was made, given in Form 
 
566 ORDER TO SHOW CAUSE. 
 
 I02 ; or in whose behalf he attended to receive the prop- 
 erty?^ 
 
 io8. Same, of Non-Attendance of the Debtor, or, etc., Pursuant 
 to Order. 
 
 [ Title of the Cause. \ 
 
 [ Venue.] 
 
 M. N., being duly sworn, says, that he is the attorney 
 for the plaintiff herein ; that he did, on the day of 
 
 , i8 , at o'clock noon, 
 
 attend before the Hon. J. J., one of the justices of this 
 court [or before R. S., Esq., the referee named in the 
 annexed order] at , and there remained for 
 
 [half an] hour, prepared to take the examination of 
 C. D. [or G. H\ pursuant to the annexed order ; that 
 during that time the said C. D. failed to appear before 
 the said judge [or referee] at the place aforesaid ; and 
 deponent further says that at the said time and place 
 he caused the said C. D. to be duly called, but said 
 C. D. failed to appear ; whereupon the deponent caused 
 his default to be duly noted by the said justice [or 
 referee]. 
 
 [Juratl\ [Deponent' s signature.] 
 
 109. Order to Show Cause why Disobedience of an Order should 
 not be Punished.* Ante, p. 238. 
 
 [ Title of the Cause.] 
 
 Upon the annexed [name the affidavits and papers 
 on which the order is founded] let [C. D., the defendant], 
 show cause before me at the chambers of this court at 
 the City Hall in the City of [New York] on the 
 day of , inst., at o'clock 
 
 noon, why he should not be punished for his alleged 
 misconduct in [here state the misconduct , as :] disobey- 
 
 * An order to show cause before court must be made by the court. 
 
 6 How,, 350 ; 7 Abb., 76, 81. 
 
ORDER TO PUNISH. 567 
 
 ing the annexed order by failing to appear before me 
 at the time and place in said order required. 
 
 I further order that copies of the papers on which this 
 motion is made be served with it on the defendant on 
 or before 18 . 
 
 [Date.] [Signature of Judge.] 
 
 [Attorney' s signature.] 
 
 no. Order thereon Adjudging the Offender Guilty, and Directing 
 Punishment by the Court.* Ante, p. 268. 
 
 At, etc. [as in Form 12]. 
 [Title of the Cause.] 
 
 C. D., the defendant [or G. H., the person named in 
 the order hereinafter mentioned], having appeared to 
 show cause why he should not be punished for certain 
 misconduct alleged against him, pursuant to an order 
 of this court, dated the day of inst., 
 
 and after hearing J/. iV., for the plaintiff, and O. P., for 
 the said [C. D.] : it is hereby considered and adjudged 
 that the said [C. D.] is guilty of a contempt in having 
 wilfully disobeyed the annexed order, dated , 
 
 18 , by failing to appear before the Hon. , 
 
 a justice of this court [or R. S., Esq., the referee named 
 in the said order] at the time and place in said order 
 required, and that such misconduct was calculated to, 
 or did actually, defeat, impair, impede or prejudice the 
 rights of the plaintiff herein. 
 
 And it is further considered and adjudged that the 
 said [C. D.] for his misconduct be imprisoned in the 
 common jail of the , County of , for 
 
 days ; and further, that he pay to the clerk 
 of this court a fine of dollars, for the plain- 
 
 tiff hereinf to satisfy his costs and expenses in the 
 
 * For process of commitment on this order, see Form 128. 
 f If the creditor has sustained any loss by the misconduct of the 
 accused, the order, in that respect, should run as in Form 124. 
 
568 NOTICE OF MOTION. 
 
 premises ; and that he stand committed to the common 
 jail of the , County of , until the said 
 
 fine be paid ; and that a warrant issue to carry this 
 judgment into effect. 
 
 III. Notice of Motion for an Attachment. Ante, p. 249. 
 
 \Title of the Cause. \ 
 
 Please take notice that upon the annexed \Jiere name 
 the papers on which the motion is to be made — thus i\ 
 order of the Hon. J. J., a justice of this court, and the 
 affidavits, of which copies are herewith served on you, 
 the undersigned will move this court, at a Special Term, 
 to be held \or the justice of this court, sitting at the 
 chambers thereof] at the City Hall, in the City of 
 , on the day of next, at 
 
 o'clock noon, or as soon thereafter as counsel can 
 
 be heard, that an attachment as for a contempt be issued 
 against you to bring you before this court \or the said 
 justice] to answer for your misconduct in disobeying 
 the annexed order by failing to appear before the said 
 J. J. \or before R. S., Esq., the referee named in the 
 said order] at the time and place in said order re- 
 quired. 
 
 \PateP\ {Signature.^ 
 
 [Address.] 
 
 112. Order to Sho-w Cause why an Attachment should not Issue.* 
 Ante, p. 238. 
 
 {Title of the Cause. \ 
 
 Upon the {here name the papers on which the order is 
 ■made — as .•] supplementary proceedings herein, the an- 
 nexed order made by me, and the affidavit of , 
 let G. H., the party mentioned in the said order, show 
 cause before me at my chambers at the county court- 
 
 * See A'ote (*), page 327. 
 
ORDER FOR ATTACHMENT. 569 
 
 house, ia the village of , County of 
 
 , on the day of 
 
 inst., at o'clock noon, or as soon 
 
 thereafter as counsel can be heara, why an attachment 
 should not issue against him, and he be punished as for 
 a contempt for his alleged misconduct in neglecting 
 and refusing to deliver to the plaintiff, ^. ^. [or the 
 receiver, R. C], the property mentioned and described 
 in the said order [or in disposing of the property men- 
 tioned in the aforesaid affidavit in violation of an in- 
 junction heretofore granted, and duly served on him]. 
 
 And it is further ordered that copies of the affidavits 
 and other papers, on which this motion is founded, be 
 served on the said defendant personally with this 
 order. 
 
 [Daie.] [Signature of Judge.] 
 
 [Signature of attorney i\ 
 
 113. Order for an Attachment by the Court.* Ante, pp. 249, 253. 
 
 At a [as in Form 12]. 
 [ Title of the Cause. \ 
 
 On reading and filing the affidavit of [A. B., above- 
 named plaintiff] showing due personal service on [the 
 defendant, C. Di\ of the order made [by Hon. J. J., a 
 justice of this court, in supplementary proceedings] in 
 this action, on the day of , 18 , re- 
 
 quiring the said C. D. to deliver certain personal 
 property therein specified to the plaintiff, A. B., and 
 also showing a demand of said property personally of 
 the said C. D., and his neglect and refusal to deliver 
 the same, or any part thereof ; and on motion of M. N., 
 
 * This is framed after Crary's Form, 274, and Barbour's, 471 ; and 
 may be used when the supplementary proceedings under subd. 2, 
 § 2g2, are taken before the court, or when, as in the Supreme Court, 
 First Judicial District, the court entertains the proceedings to punish 
 a disobedience of an order of a judge. 
 
570 ATTACHMENT BY COURT. 
 
 r 
 attorney for the plaintiff, after hearing O. P., for the 
 said defendant ; it is ordered that an attachment as for 
 a contempt be issued against the defendant, C. D., re- 
 turnable at the next \or a] Special Term of this court, 
 to be held at the [City Hall, in the City of New York] 
 on the day of , i8 . And it is further 
 
 ordered that the said C. D. be held to bail on said 
 attachment, in the sum of dollars. 
 
 114. 'Writ of Attachment ; Endorsement ; and Officer's Return. 
 Ante, p. 253. 
 
 \Seal7^ The People of the State of New York, to the 
 sheriff of the , County of , Greeting: 
 
 We command you, that you attach \C. D.~\, so as to 
 have his body before our [Supreme] Court, at a Special 
 Term thereof, to be held at the [City Hall, in the City of 
 New York] on the day of , 18 , at 
 
 o'clock noon, there to answer unto us, as well as 
 
 touching the contempt which he, as is alleged, has 
 committed against us, as also such other matters as 
 shall then and there be laid to his charge, and further 
 to perform and abide such order as our said court shall 
 make in this behalf. And have you then there this 
 writ ; and make and return a certificate, under your 
 hand, of the manner in which you shall have executed 
 the same. 
 
 Witness, J. J., one of the justices of our said court at 
 , the day of , 18 . 
 
 [C. Z. K.'] Clerk. 
 [M. N.'] Attorney. 
 
 {Attachment endorsed, thus r^ Issued by the special 
 order of the court. Hold the defendant to bail in the 
 sum of dollars. 
 
 \Clcrk's stgnature.l 
 
SHERIFF'S RETURN. 571 
 
 Sheriff's Return to Attachment. 
 
 [If the attachment is served and bail given, the return 
 is:'\ I have attached and let the defendant at large on 
 bail ; and the bond taken by me is herewith returned. 
 
 {Signature of sheriff?^ 
 
 {If the defendant cannot be found, the return is :'\ Not 
 found. 
 
 {If, upon the defendant's arrest, bail is not given, the 
 return is .•] By virtue of the within attachment, I have 
 arrested the defendant, C. D., and for want of bail have 
 him now in custody before the court. 
 
 {If the attachment has been placed in the sheriffs 
 hands at too late a time to execute it before return day, 
 the return is .•] The within attachment was not received 
 by me in time to arrest the defendant thereon, and 
 bring him before the court on the return day thereof. 
 
 {If the defendant is already in custody, the return is .•] 
 I have arrested the defendant on the within writ ; but 
 he is now, and was before such arrest, in my custody, 
 by virtue of [an execution] against his body, issued out 
 of the Supreme Court at the suit of E. F. 
 
 115. Attachment Issued by a Judge at Chambers. Ante, 
 pp. 208, 238. 
 
 {Title of the Cause?^ 
 
 The People of the State of New York to the sheriff 
 of the .County of , Greeting: 
 
 Whereas, a judgment was duly r&zov&r&A ^briefly 
 
 recite the facts of the judgment and the execution, as in 
 
 an order or the warrant under § 292]. And whereas, on . 
 
 the day of ,18 , the undersigned, J. J. 
 
 [judge of Kings County, at the City of Brooklyn in said 
 
 * When the attachment is against a person not a party to the orig- 
 inal suit, it should be entitled: "The People of the State of New 
 York ex rel. A. B. against G. H." Ante, p. 2oi. 
 
572 ATTACHMENT BY JUDGE. 
 
 county], upon due proof of the aforesaid facts [and of 
 the fact that G. H., of said county, had property of the 
 defendant, C. D., in his hands], did, at the instance of 
 the said plaintiff, make an order requiring the said C. D. 
 [or G. HJ] to appear before him [or before R. S., Esq., 
 referee named in said order], at , in the 
 
 [said City of Brooklyn], on the day of 
 
 , i8 , at o'clock noon, to make dis- 
 
 covery on oath concerning his property [or to answer 
 on oath concerning certain property, which, as alleged, 
 he unjustly refused to apply upon the said judgment ; 
 or to answer on oath concerning certain property in 
 his hands belonging to, and debts due from him to, the 
 said C. D.']. 
 
 And whereas, the said order was, on the 
 day of , i8 , duly served upon the said C. Z*. 
 
 by showing the same to him, and personally leaving 
 with him a copy thereof. 
 
 And whereas, the said did, on the said 
 
 return day of said order, and for one [half] hour after 
 the time named therein, fail to appear before the said 
 judge [or before , Esq., the referee afore- 
 
 said] at the place aforesaid : (*) 
 
 Now, therefore, you are hereby commanded to attach 
 said C. D. so as to have his body before the undersigned 
 J. J. [judge of Kings County, at his chambers in the 
 county court house. City of Brooklyn, in said County], 
 on the day of , i8 , at o'clock 
 
 noon, there to answer unto us as well touch- 
 ing the contempt which he, as is alleged, has commit- 
 ted against us, as also such other matters as shall then 
 and there be laid to his charge ; and further, to perform 
 and abide such order as the said judge shall make in 
 this behalf, and have you then there this writ, and make 
 and return a certificate under your hand, of the manner 
 in which you shall have executed the same.(f) 
 
BOND ON ATTACHMENT. 573 
 
 Given under my hand, this day of , 18 , 
 
 at the [City of Brooklyn]. 
 
 [Signature of Judge.] 
 
 [Endorsed.'] Let the defendant give security for his 
 appearance, by bond in the penalty of dollars. 
 
 [Date] [Signature of Judge.] 
 
 116. Attachment for Disobedience of Order, Issued under the 
 Seal of the Court.* 
 
 [As in Form lie, to the (f), with the seal of the court, 
 and substituting " Hon." for " undersigned," then con- 
 tinue .•] Witness, the Hon. J. J., justice of 
 
 court, at the , in the County of 
 
 , this day of , 18 . 
 
 By the court, 
 
 [Signature of clerk.] 
 [Signature of attorney?^ 
 
 [Endorsement on this writ, thus :] 
 [Title of the Cause.] 
 
 Attachment. The within writ of attachment is 
 hereby allowed. Admit to bail in dollars. 
 
 [Date.\ [Signature of Judge.] 
 
 By the special order of the court. 
 
 [Signature of clerk.] 
 
 ii'j. Bond on Attachment. Ante, p. 253. 
 Know all men by these presents, that we, C. D., of 
 the town of , and E. F. and K. L., of the 
 
 same place, merchants, are held and firmly bound unto 
 S. R. F., sheriff of the , County of 
 
 , and his assigns, in the penal sum of 
 dollars, to be paid to the said S. R. F., sheriff, as aforesaid, 
 and his assigns. For which payment well and truly to 
 
 * This form is after Abbott's Forms Nos. 1883 and 1884. It is used 
 in the first district in supplementary proceedings at chambers. It is 
 essentially a process issuing out of court, somewhat like a writ of 
 habeas corpus. I think it is not the proper warrant when the contempt 
 proceedings are before a judge at chambers. Ante, p. 208. 
 
574 ORDER FOR ALIAS. 
 
 be made, we bind ourselves jointly and severally, and 
 our, and each of our, heirs, executors, and administra- 
 tors, firmly by these presents. Sealed with our seals, 
 and dated the day of , i8 . 
 
 Whereas, the above-named C. D. has been arrested 
 upon an attachment issued out of the [Supreme Court 
 of the State of New York], \or by the Hon. J. J., 
 county judge of the County of ], in a proceed- 
 
 ing as for a contempt for disobedience to an order 
 [requiring him to deliver certain property therein men- 
 tioned to A. B.] made in supplementary proceedings in 
 an action in said court [or in the court of J, 
 
 in which said A. B. is plaintiff, and C. D. is defendant, 
 and is now in the custody of the said S. R. F., as sheriff 
 as aforesaid. Now, therefore, the condition of this 
 obligation is such that if the above-bounden C. D. will 
 appear on the return of said attachment at the next 
 \or a] Special Term of this court, to be held {or before 
 the Hon. J. J., the said judge of the County of 
 
 ] at , in the , on 
 
 the day of next [at 
 
 o'clock in the noon], and answer to 
 
 the said alleged contempt, and abide the order and 
 judgment of the court \or said judge] thereupon, then 
 this obligation to be void, otherwise to remain in full 
 force and virtue. \Sigtiatures of obligors.\ 
 
 Sealed and delivered in the ) 
 
 presence of W. S. \ 
 
 II 8. Order for Alias Attachment where Defendant Fails to 
 Appear.* Ante, p. 268. 
 
 At a, etc. \as in Form 12]. 
 [ Title of the Cause.] 
 
 The sheriff of the County of , having returned 
 
 * When the contempt proceedings are before a judge at chambers, 
 there is no need of this order, but the alias attachment should embrace 
 the substance of it. 
 
ALIAS ATTACHMENT. 575 
 
 the writ of attachment heretofore issued in this action, 
 against the above-named defendant, C. D., by which 
 return it appears that the defendant was arrested, and 
 afterward set at Hberty on bail, and that the bond given 
 by the said C. D. has been duly returned by the said 
 sheriff ; and the said defendant being now called in 
 open court, and failing to appear, it is, on motion of 
 M. N., attorney for the plaintiff, ordered that an alias 
 attachjnent issue against the said C. D., directed to the 
 said sheriff, returnable before the next {or a] Special 
 Term of this court, to be held at the , on 
 
 the day of next, at o'clock 
 
 noon. 
 
 And it is further ordered that the said C. D. be held 
 to bail on the said attachment, in the sum of 
 dollars. 
 
 1 19. Alias and Pluries Attachments. 
 
 \_Saine as in Form 114. or 115, except after the words, 
 " We command you," in Form 1 14, or " You are hereby 
 commanded," ifi Form. 115, insert, for alias attachment .•] 
 as you were before commanded ; {and for pluries 
 attachment, insert .•] as you were oftentimes before 
 commanded. 
 
 120. Order on Defendant's Appearance, and Directing Interroga- 
 tories to be filed.* Ante, p. 255. 
 
 {Title of the Cause. ']f 
 
 The defendant, CD., being now in attendance under 
 
 the attachment heretofore issued in this proceeding 
 
 * This form will suffice for an order made in court, or by a judge 
 out of court, according as the contempt proceedings are in or out of 
 court. 
 
 f If the attachment is issued, or the contempt proceedings tal^en, 
 against a person not a party to the original suit, then this order and 
 all the subsequent proceedings should be entitled : The People of the 
 State of New York ex rel. A. B. against G. H. 
 
5/6 INTERROGATORIES. 
 
 \or personally appearing upon an order to show cause 
 why he should not be punished], and denying the alleged 
 contempt, ordered that the plaintiff do forthwith \or 
 within days] file in the office of the clerk of this 
 
 court \or with me, at my chambers] interrogatories 
 touching the alleged contempt, and serve a copy thereof 
 upon the said C. D. [or upon the attorney of the said 
 C. D7\, and that the said C. D. file his answers on oath 
 to such interrogatories in said clerk's office [gr with 
 me, at my chambers] within days thereafter ; 
 
 and that the further proceedings herein stand adjourned 
 till the day of , i8 , at o'clock 
 
 noon, at [the chambers of this court, City Hall] in 
 the of 
 
 [And it is further ordered that it be referred to 
 R. S., Esq., counsellor at law, residing in the County 
 of , to examine the said defendant on oath, 
 
 upon the said interrogatories ; and to take such further 
 proofs as either party may produce before him, in rela- 
 tion to the misconduct alleged, and that he report such 
 answers and proofs to this court, or to me.] 
 
 And it is further ordered [that the said defendant 
 attend before the said referee, in the custody of said 
 sheriff ;] and that the said sheriff detain the said de- 
 fendant in his custody until the further order in the 
 premises. ^ 
 
 121. Interrogatories to be Administered to Defendant. Ante, 
 
 P- 255- 
 [ Title as in last form.] 
 
 Interrogatories to be administered to 
 C. D., above named, touching a con- 
 tempt alleged against him for the 
 [state what, thus .•] disobedience of an 
 order requiring him to deliver certain 
 property to A. B., made [in supple- 
 
ANSWERS TO INTERROGATORIES. 577 
 
 mentary proceedings] in this action ; 
 which interrogatories are hereby ex- 
 hibited pursuant to an order of [this 
 court] dated the day of , 
 
 18 . 
 First interrogatory : Were you, or were you not, on 
 or about the day of last, or at any other 
 
 and what time, served with a copy of an order requiring 
 you to dehver certain personal property to A. £., made 
 in supplementary proceedings, in this cause, on the 
 day of , 18 ? Was, or was not, such order 
 
 served upon you by showing you the original order 
 signed by the judge granting the same, and leaving 
 with you a copy thereof? [or by delivering to, and 
 leaving with you, a copy of said order, certified by the 
 clerk of this court ?] When, and by whom, was this 
 service made ? 
 
 Answer this interrogatory fully and particularly. 
 Second interrogatory. [Proceed as above with such 
 questions as will show, or tend to sitow, the defendant 
 guilty of the misconduct charged^ 
 
 122. Answers to Interrogatories. Ante, p. 256. 
 
 [Title as in the interrogatoriesJ] 
 
 The answer and examination of C. D., 
 above named, to the interrogatories 
 exhibited by the plaintiff for his ex- 
 amination, pursuant to an order dated 
 the day of ,18. 
 
 First. To the first interrogatory, this examinant an- 
 swers and says, that, etc. [insert the defendant' s answer 
 to the questions put to him.^ 
 
 [furat:\ [Signature of C. Z>.] 
 
 [R. S., referee i\ 
 
578 CONVICTION OF CONTEMPT. 
 
 123. Order Discharging Attachment.* 
 [ Title as in Form 1 20, and note.] 
 
 On reading and filing the answer of C. D. to the in- 
 terrogatories filed against him in this cause, and on mo- 
 tion of O. P., of counsel for the said C. D., it is ordered 
 that the attachment issued in this cause be, and the 
 same is hereby discharged. 
 
 124. Order Convicting Defendant of Contempt, by the Court. 
 Ante, p. 258. 
 
 At, etc. \as in Form 12]. 
 {Title as in 120, and note !\ 
 
 A writ of attachment having been heretofore issued 
 out of this court against the defendant, C. D., for his 
 contempt in disobeying the order requiring him to deliv- 
 er certain personal property to the above plaintiff, ^.^., 
 made [by the Hon. J. J., a justice of this court] in supple- 
 mentary proceedings in this action on the 
 day of ,18 ; which attachment was directed 
 
 tt) the sheriff of the County of , and 
 
 returnable on the day of inst. ; and the 
 
 sheriff having returned that he had attached the said 
 C. D., and had let him at large on bail [or, and had him 
 in custody before the court], and the said C. D. having 
 appeared personally before the court, and interroga- 
 tories, specifying the facts and circumstances alleged 
 against him, having by order of the court been filed, 
 and a copy thereof having been served on him, the said 
 C. D. [or on the attorney of said C. Z'.](*), and it hav- 
 ing been referred to R. S., Esq., to examine the said 
 C. D. on oath upon such interrogatories, and take such 
 further proofs as either party might produce before him 
 in relation to said alleged contempt ; and the said ref- 
 
 * If this order is made by the court, it is so entitled (see Form 12) \ 
 if by the judge, he signs it. 
 
WITHOUT REFERENCE. ^ 579 
 
 eree having made his report, and it appearing to the 
 court from such report and the answers and proofs 
 thereto, and the original afiSdavits on which said attach- 
 ment issued, that the said C. D. is (f) guilty of the 
 contempt charged against him in the proceedings, and 
 that such misconduct was calculated to, or did actually 
 defeat, impair, impede, or prejudice the rights of the 
 plaintiff above named : 
 
 Now, on motion of M. N., attorney for the plaintiff, 
 it is ordered that a fine of dollars be, and 
 
 the same is hereby imposed upon the said C. D., for his 
 misconduct, to be paid by him to the said plaintiff to 
 indemnify the latter for his actual loss or injury pro- 
 duced by the said misconduct ; and further, that he 
 [said C. Z>.] pay to the plaintiff the costs and expenses 
 of these proceedings, amounting to the sum of 
 dollars. 
 
 It is further ordered and adjudged that the said 
 C. D. stand committed to the common jail of the County 
 of , until the fine imposed as afore- 
 
 said, together with the said costs and expenses, shall be 
 fully paid, unless sooner discharged ; and that a warrant 
 issue to carry this order into effect. 
 
 125. Another Form of Order, -without Reference. Ante, pp. 257, 
 8 and i Duer, 571, note. 
 
 [As in Form 124 to the (*), then continue r^ and he 
 having been required to answer, and having answered 
 the same, and several affidavits and papers touching 
 the said contempt having been produced and read, and 
 counsel as well for the said [relator] as the said C. D. 
 having been heard, and mature deliberation thereupon 
 had: 
 
 It is nowhere considered and adjudged that the said 
 C. D. has been and is [proceed from (f), in Form 124, to 
 the end of ii\. 
 
58o ORDER BY COURT. 
 
 126. Same as for Criminal Contempt. Ante, p. 258. 
 
 [As in Form. 124 or 125, to the end of the finding ; the 
 judgment may run thus .•] 
 
 And it is further considered and adjudged that the 
 said C. D. for his misconduct be imprisoned in the com- 
 mon jail of the County of , for the period 
 of days ; and further, that a fine of 
 
 dollars be, and the same is hereby imposed upon 
 said C. D., for his said misconduct, and that he stand 
 committed to the common jail of the County of 
 , until the said fine be paid. 
 
 And it is further considered and adjudged that the 
 sum of dollars, part of said fine, be paid over 
 
 to the said ^.5., or his attorney, to satisfy his costs 
 and expenses in the premises ; and that the residue of 
 said fine be paid to the clerk of this court, to be dis- 
 posed of according to law, and that a warrant \etc. to 
 the end\ 
 
 127. Another Form of Order by Court.* 
 
 At, etc. \as in Form. 12]. 
 [ Title of the Cause. ^ 
 
 On reading and filing the affidavit and order for the 
 examination of the defendant, C. D., and proof of due 
 service of the same upon the said C. D., and the 
 evidence taken therein, whereby it appears that the said 
 C. D. has violated the injunction made in this action on 
 the day of , 18 , and incorporated 
 
 in, and served with the aforesaid order, by paying out 
 and disposing of the sum of dollars, since 
 
 the said order was served as aforesaid, and while it was 
 in full force, and that he is guilty of the contempt 
 charged against him, and that such misconduct was 
 
 * This form is framed after the decision of Reynolds u. McElhone, 
 20 HoiiK, 454, with such additions as are suggested by the cases of the 
 People V. Nevjns, i //;'//, 154, 158 ; and Pitt v. Davison, 37 Barb., 97. 
 
WARRANT OF COMMITMENT. 58 1 
 
 calculated to, and did actually impair, defeat, impede 
 or prejudice the rights of the plaintiff herein : Now, on 
 motion of M. N., attorney for the plaintiff, after hear- 
 ing 0. P., attorney for said C. D., who personally ap- 
 pears before the court in this proceeding, it is ordered 
 that a fine of dollars [continue as in Form 
 
 124. from the same place to the end\ 
 
 128. Warrant of Commitment.* Ante, p. 271. 
 The People of the State of New York to the sheriff of 
 the , County of , Greeting : 
 
 \Seal?\ Whereas, on the day of , 
 
 18 , by an order made by the [Supreme Court, at a 
 Special Term thereof, held] at the court-house in 
 
 , on the day of , 18 , in an 
 
 action depending therein, wherein ^.5. was plaintiff, 
 and C. D. defendant, it was ordered that the said C. D. 
 be committed to the common jail of said county, there 
 to remain, charged with the contempt mentioned in 
 said order [for the period of days, and] until he 
 
 should have paid the fine therein imposed upon him 
 for his misconduct, amounting to dollars, together 
 
 with the costs and expenses of the proceedings for such 
 misconduct, amounting to the sum of dollars ; 
 
 and that a warrant issue to carry the said order into 
 effect : 
 
 * A far more circumstantial writ is often used in supplementary 
 proceedings, similar to that in Form 129. But I think it useless verbi- 
 age, when the contempt proceedings are before the court. When 
 supplementary proceedings, under § 2435, are instituted before the 
 court, the enforcement of its orders therein comes, of course, within 
 the ordinary procedure. When the court, as in the first district, 
 assumes the authority of enforcing obedience to an order made by a 
 member thereof, then, at farthest, the only additional fact to be shown 
 is that the order was made in an action in that court, by a member 
 thereof ; and thereupon its general powers over the subject, and the 
 'ordinary intendment of jurisdiction at once attach, precisely as in any 
 other proceedings as for contempt before the court. 
 
582 WARRANT BY JUDGE. 
 
 Now, therefore, we command you that you take the 
 body of the said C. D., and him safely and closely keep 
 in your custody in the common jail of the , 
 
 County of , [for the period of days, 
 
 and] until he shall have fully paid the fine imposed, as 
 aforesaid — to wit : the sum of dollars, and also 
 
 the costs and expenses aforesaid, amounting to dol- 
 
 lars, with your fees hereon, or until the said C. D. shall 
 be discharged by the further order of the court. And 
 you are to return this writ, and to make and return to 
 our said court a certificate, under your hand, of the man- 
 ner in which you shall have executed the same. 
 
 Witness, J. J., one of the justices of our said court, at 
 , the day of , i8 . 
 
 [C. L. K., Clerk.-] 
 [M. N., Attorney.] 
 {Endorsed?^ 
 
 By the special order of the court. 
 
 \C. L. K., Clerk.] 
 
 129. Warrant of Commitment by a Judge upon Attachment. 
 Ante, p. 271. 
 
 [ Title of the Cause.] 
 
 \As in "Attachment" Form 115 /^ the (*), then con- 
 tinue :] And whereas, a warrant of attachment was 
 thereafter issued by the said judge, and directed to the 
 sheriff of the County of , commanding him 
 
 to arrest the said C. D., and bring him before the said 
 judge on the day of ,18 , at 
 
 o'clock noon, to answer the aforesaid misconduct ; 
 
 and the said sheriff returned that he had attached the 
 said C. D., and let him at large on bail, and the said 
 C. D. has appeared before said judge ; and interroga- 
 tories, specifying the facts and circumstances alleged 
 against him have been filed by the order of the said 
 judge, and a copy thereof served on the said C. D,, who 
 
UPON ORDER TO SHOW CAUSE. 583 
 
 has been required to answer, and has answered, the 
 same ; and several affidavits and papers touching the 
 said contempt have been produced and read ; and after 
 hearing(*) M. N., attorney for the said plaintiff, and 
 O. P., attorney for the said C. D., and mature deliber- 
 ation thereupon had, it is considered and adjudged that 
 the said C. D. is guilty of the contempt charged against 
 him, and that such misconduct was calculated to, or 
 actually did defeat, impair, impede or prejudice the 
 rights \or remedies] of the said plaintiff : 
 
 Now, therefore, you are hereby commanded that you 
 take the body of the said C. D., and him safely and 
 closely keep in your custody, in the common jail of the 
 County of , for the period of 
 
 days, for his said misconduct, and until he shall 
 have fully paid the sum of dollars to the 
 
 plaintiff herein, to indemnify him for his actual loss or 
 injury produced by said misconduct, which fine is here- 
 by imposed therefor, and until he shall pay to the said 
 plaintiff the further sum of dollars to satisfy 
 
 his costs and expenses of these proceedings, with your 
 fees hereon ; or until the said C. D. shall be discharged 
 by the further order in the premises; and for such 
 arrest, imprisonment, and detention, this shall be your 
 sufficient warrant. 
 Given under my hand, at the , the day 
 
 of , 18 
 
 SJ)ate.\ {Signature of judge ?[ 
 
 [Signature of attorney.^ 
 
 130. Warrant of Commitment by a Judge upon Order to Show 
 Cause. Ante, p. 271. 
 
 [ Title of the Cause. \ 
 
 {As in "Attachment" Form \\^,to the {*),then con- 
 tinue :'\ And whereas an order was thereafter made 
 that said C. D. show cause before the said justice why 
 
584 ATTACHMENT AGAINST WITNESSES. 
 
 he should not be punished for the aforesaid alleged 
 misconduct, which order, with copies of the papers on 
 which it was founded, was duly served on the said 
 C. D., who has personally appeared on the return of 
 said order before the said justice, and after \J>roceed 
 from the (*), in Form 129, to tJie end of if]. 
 
 131. Attachment against Witnesses. Ante, p. 213. 
 
 [Z. 5.] The People of the State of New York, to the 
 sheriff of the County of , Greeting: 
 
 We command you to attach E. F., of , and 
 
 forthwith [or on the day of , inst., at 
 
 o'clock noon], bring him before one of the 
 
 justices of our Court at a Special Term, at 
 
 [the place where the court isheld\ to answer for his mis- 
 conduct in not obeying our writ of subpoena to him 
 directed, and on him duly served, commanding him to 
 appear before the Hon J. J., a justice of said court, on 
 the day of , 18 , at the place aforesaid, 
 
 and give evidence on the part of the [plaintiff] in certain 
 supplementary proceedings before the said justice, be- 
 tween A. B., plaintiff, and C. D., defendant ; and have 
 you then there this writ. 
 
 Witness, J. J., Esq., one of the justices of our said court, 
 at , the day of , 18 . 
 
 [Signature of clerk.'] 
 [Signature of attorney.] 
 [Endorsed.] 
 
 Allowed the day of , 18 . 
 
 [Signature of Judge.] 
 
 132. Orders, etc., when Proceedings are Continued before 
 Different Judges. 
 
 [ When proceedings are conducted before different judges 
 of the same court, as in the first district, the presumption 
 
ORDERS, ETC. 585 
 
 seems to be that they are regularly continued, and it is 
 for the defence to impeach that regularity. To this effect 
 is Dresser v. Van Pelt, 15 How., 19. But if this pre- 
 sumption should not exist, then it is only necessary to 
 allege or recite something like this ;] that the proceed- 
 ings were regularly continued at the time and place 
 named before the Hon J. J., a justice of the same 
 court. 
 
INDEX TO FORMS. 
 
 Acknowledgment — face 
 of ^j;i?f«ft'(7K of undertaking by parties, . . . .518 
 
 " " " witness 519 
 
 Adjournment — 
 
 indorsed on order by officer .513 
 
 by consent 513 
 
 Affidavit — 
 
 of costs and disbursements 520 
 
 of non-attendance of debtor, etc. , pursuant to order, . 566 
 by plaintiff for order of examination after execution re- 
 turned on judgment of Supreme Court, . . . 494 
 by any one " " " same court, . . 495 
 " " " " any court of record, 497 
 " " " " inferior court, . . 497 
 " " " " when assignee sub- 
 stituted, . . 498 
 " " " " before execution re- 
 turned, . . 501 
 " " for warrant of arrest, . .503 
 " " order to examine third party, . 505 
 of receiver, that a party refuses to deliver property, 542 
 
 " to his account 557 
 
 of service of notice, for appointment of receiver, . 534 
 " order to show cause why a receiver should not 
 
 be appointed 534 
 
 " notice of motion, .... 522 
 
 " " same on attorney, ... 523 
 
 " " " by mail, 524 
 
 " order for examination, ..... 507 
 
 " " to produce books, etc 511 
 
 " " pay money, ..... 561 
 
 " " " same, by third person, . 569 
 
 " " deliver up property, . . . 565 
 
 of service of order to deliver same, by third person, . . 565 
 
 " subpoena to testify, . . . . .510 
 
 " summons to attend before referee, . . 507 
 
 of sufficiency to undertaking, under warrant of arrest, . 518 
 
 " receiver's bond, ..... 538 
 
588 INDEX TO FORMS. 
 
 Agent — page 
 
 appointment by receiver, 536 
 
 Answers — 
 
 to interrogatories, ........ 577 
 
 Approval — 
 
 of receiver's bond by judge 539 
 
 of undertaking given on arrest by warrant, . . .519 
 
 Attachment — 
 
 affidavit for. See " Affidavit.'' 
 
 alias and fluries, . . ..... 575 
 
 2j-j«^^by ajudgeatcliambers, . ..... 57i 
 
 " " " under seal of court, .... 573 
 
 notice of motion for. See " Notice." 
 order ioT. See "Order."' 
 
 ' ' to show cause why not to issue, .... 568 
 
 against witness, ........ 569 
 
 writ oi ; indorsement, etc 57° 
 
 sheriff's return to, ....... • 571 
 
 Bond — 
 
 on attachment, ........ 593 
 
 of receiver, with security 538 
 
 Certificate — 
 
 on serving subpoena, . . . . . . .511 
 
 See " Referee ;" " Sheriff." 
 Complaint — 
 
 by receiver, ......... 547 
 
 Contempt — 
 
 See " Order ;" " Warrant." 
 Costs — 
 
 and disbursements, affidavit of 520 
 
 Examination — 
 
 of ^i?i5/o?-, etc. , before judge, ...... 512 
 
 " " by referee, ...... 512 
 
 See " Affidavit ;" " Order." 
 
 Indorsement — 
 
 of approval by judge. See "Approval." 
 Interrogatories — 
 
 to be administered to defendant, ..... 576 
 
 answers to, ........ . 577 
 
 Injunction — 
 
 interim, under § 2451 529 
 
 Inventory — 
 
 by receiver of debtor's property 554 
 
INDEX TO FORMS. 589 
 
 Notice— page 
 
 of motion for attachment 568 
 
 " to dissolve or modify injunction (§ 2451), . 530 
 " for order that debtor pay judgment, or apply 
 
 money or property upon it, . . 521 
 " " appointing receiver, .... 532 
 " " " special receiver, . . 534 
 " to other creditors, for receiver, . . . 534 
 ■ " for order that receiver apply funds on judg- 
 ment, 551 
 
 " discharging receiver, . . . 559 
 
 " " removing " . . . . 559 
 
 to debtor thai receiver has completed his appointment, etc. 540 
 
 general, by receiver, of his appointment, . . . 54° 
 
 " of same, to charge persons with 
 
 wrongfully detaining property, 541 
 of receiver's petition for direction as to distribution of 
 
 assets, 555 
 
 of sale of bad debts by receiver, 547 
 
 Order — 
 
 appointing receiver, 535 
 
 ' special receiver 53^ 
 
 dissolving or modifying injunction, .... 530 
 for examination ai debtor after execution returned on 
 
 judgment in court of record, 498 
 " " " in inferior court, . 500 
 fuller, and appointing referee with power to issue sum- 
 mons to debtor 500 
 
 same, when assignee substituted for creditor, . . . 501 
 
 " before return of execution made by judge, . . 502 
 
 " made by court 502 
 
 " for examination of third party (§ 2441), . . 506 
 
 of reference, after proceedings commenced, . . . 508 
 
 Order — 
 
 requiring production oi hoo^s, eXc. , . . . .510 
 
 " cfeWor under arrest to give undertaking, . . 517 
 to show cause why debtor should not pay judgment or 
 
 apply money or property on it, . .522 
 " why receiver should not be appointed, . 533 
 " why special receiver " " . . 534 
 ' ' why property should not be delivered to re- 
 ceiver, 543 
 
 " why disobedience of order should not be 
 
 punished 566 
 
590 INDEX TO FORMS. 
 
 Order — page 
 
 to shoza cause why attachment should not issue, . 568 
 
 that debtor pay the judgment, 524 
 
 " apply money upon judgment, . . . 525 
 
 " " property " . . . 526 
 
 " deliver concealed property to sheriff, . 526 
 
 that third party pay money of debtor in his hands, . 527 
 
 " deliver up property " . 528 
 
 " pay costs personally, ..... 529 
 
 that debtor or third party deliver property to receiver, . 544 
 
 granting receiver leave to sell bad debts, . . . 546 
 
 " " " real property, . . 553 
 
 " " sue, . . . 546 
 
 directing receiver to apply funds on judgment, 552 
 
 discharging receiver, ..... 559 
 
 that receiver pay off judgment, . . . 549 
 that extended receiver pay off judgments according to 
 
 priority, . ....... 556 
 
 for attachment by court, ....... 569 
 
 for alias attachment, when debtor fails to appear, . 574 
 on defendant's appearing, and directing interrogatories to 
 
 be filed, 575 
 
 adjudging offender guilty, and directing punishment, . 567 
 discharging aXXAiAra^nt, . . . . . . .578 
 
 convicting defendant of contempt, by the court, 57S 
 
 same, without reference clause, ... 579 
 
 " as for criminal contempt, . 580 
 
 another, by court . . 580 
 
 for precept to commit for non-payment of money, . 561 
 Orders, etc., when proceedings are continued before different 
 
 judges, 584 
 
 Petition — 
 
 (t/ «?tr^;Wr for leave to sell real property, . .553 
 
 sue 544 
 
 that receiver apply money upon judgment, or for an 
 
 order determining priority among creditors, . . 550 
 Precept — 
 
 of commitment by court, for non-payment of money, 562 
 
 " a judge, for same 564 
 
 Process — 
 
 See " Warrant." 
 Proof— 
 
 of service of subpoena, by affidavit 510 
 
 " " sheriff's certificate, . . 511 
 See ■"Affidavit." 
 
INDEX TO FORMS. 59I 
 
 Receiver — pagb 
 
 See "Affidavit ;" "Notice;" "Order;" "Petition." 
 
 appointment of agent, ....... 539 
 
 bond, with security, ... . . 538 
 
 demandnpon debtor or third party to deliverup property, 541 
 
 j»WK/(7ri' of debtor's property 554 
 
 skeleton complaint by, .... . . 547 
 
 Referee — 
 
 on/ifr appointing. See " Orders ;" and, . . . 508 
 
 «?-ft7?<r3/^ of party s, etc., non-attendance, . . . 5^5 
 disobedience of summons, . . .516 
 " party's, etc., refusal to answer questions, or, 
 
 etc . . 516 
 
 report oi, of the evidence, ...... 5^3 
 
 " " " shorter form, . 514 
 
 facts, . . .... 514 
 
 " on receiver's account, .... 55^ 
 
 summons of, for attendance of debtor, etc 5°? 
 
 Reference — 
 
 order of, 5o8 
 
 to pass receiver's account, ...... 557 
 
 Report — 
 
 of referee. See " Referee." 
 Return — 
 
 See " Sheriff." 
 
 Sheriff — 
 
 certificate of serving subpoena 511 
 
 return to attachment 571 
 
 Subpcena — 
 
 for attendance of witnesses 509 
 
 " " '• before judge who m.-vy con- 
 
 tinue proceedings, . . 509 
 " " " duces tecum, . . 509 
 
 ticket .510 
 
 Summons — 
 
 of referee, for attendance of debtor, etc., . . 507 
 
 Undertaking— 
 
 by fl'^^/c?' under arrest upon warrant, . . . .5^7 
 to obtain dissolution or modification of injunction 
 
 (§ 2451) 531 
 
 Warrant— 
 
 of arrest (§ 2438) 504 
 
 " attachment. See "Attachment." 
 
592 INDEX TO FORMS. 
 
 Warrant — page 
 
 of commitment, 519 
 
 " for contempt by court, . . 581 
 
 " " " " judge, .... 582 
 
 " " " " " upon order to show 
 
 cause, ... 583 
 
 Writ— 
 
 of attachment. See " Attachment." 
 
GENERAL INDEX. 
 
 Abandonment terminates proceedings as well as order, 473. 
 
 not by failure to appear, 174, 184. 
 Abatement. See "Supplementary Proceedings" and, 79, 172. 
 Absence of debtor. See " Adjournments." 
 
 creditor. See " Power of Judge.'' Opening defaults, 
 judge, proceedings should not fall, 140. 
 why not, 140. 
 
 rule in first district in such case, 141. 
 ' referee, proceedings do not fall, 140. 
 Accounting by receiver, 408. 
 Acknowledgment of bond of receiver, 359. 
 Adjournments, yw^f may make, 140. 
 
 may do so by a general order posted up, 135. 
 parties may adjourn, 148. 
 so may their attorneys, 148. 
 referee may adjourn, 140. 
 may in party's absence, 140, 147, 148, 479. 
 but not indefinitely, 135. 
 
 what, a good ground for adjournment, 135, 142. 
 order of, need not be served on party if present, 479. 
 should be, if absent, to bring into contempt, 148. 
 in what case need not so be served, 479. 
 to examine witness, need not be served on debtor, 
 
 148. 
 must be regularly made, 148. 
 may be regularly made in debtor's absence, 140. 
 debtor should be notified of adjournment, 479. 
 Admissions by attorney, 241. 
 of contempt, 241. 
 Adverse claims, 330. 
 
 Affidavits, amendment oi. See "Amendments." 
 for costs, 200. 
 " injunction, 178. 
 on motion to discharge person imprisoned for contempt, 
 
 267. 
 for order under § 2435, 87. 
 
594 GENERAL INDEX. 
 
 Affidavits, who must make this affidavit ? 87. 
 
 must connect himself with the matter, 88. 
 
 how residence and place of business, or non-residence, 
 
 to be alleged, 94. 
 how judgment and execution against joint debtors, 91. 
 how facts are to be alleged, 89. 
 what must be alleged when judgment is of court of 
 
 record, 95. 
 was on appearance or personal service, 91-93. 
 judgment must be truly described, 90. 
 need not allege judgment is for $25, 90. 
 must state present residence of debtor, 95. 
 same about place of business, and non-residence, 95. 
 must allege every necessary fact for order from a county 
 
 judge, in what case ? 95, 96. 
 not so strict for order from Supreme Court justice, 93. 
 what must be alleged, when judgment of inferior 
 
 court, 90. 
 must show judgment for $25, exclusive of costs, 90. 
 sufficient if this fact appears on face of affidavit, 90. 
 should state judgment was duly given or made, 90. 
 for order under § 2436, 104. 
 same as for order under | 2435, 87, 105, 106. 
 must state where debtor resides, 87, 94. 
 must be satisfactory on two points, 106-109. 
 is similar to that in non-imprisonment act proceed- 
 ings, 105. 
 rules of proof for warrant in latter proceedings, 106. 
 on information and belief, no proof, 107. 
 when such affidavit may be used, 107. 
 degree of proof in officer's discretion, 107. 
 fact of property to be clearly stated, 109. 
 property must be described, 107-110. 
 must be equitable or concealed, loS. 
 if neither, court or judge, no jurisdiction, 107. 
 ownership of property must be shown, no. 
 what need not be alleged, 109. 
 must show debtor unjustly refuses to apply property 
 
 on judgment, 111-115. 
 no jurisdiction when this is not stated, in. 
 must allege no previous application, 93. 
 
 " be served with order, 102. 
 Demand for the property must be alleged, 111-115. 
 third party _/»r order under § 2441, 123. 
 how and by whom made, 123. 
 
GENERAL INDEX. 595 
 
 Affidavits, what facts to be alleged, 123-126. 
 
 residence of third party to be stated, 125. 
 what allegations as to notice to debtor, 127. 
 
 " " " property or debt, 124, 125. 
 
 ten-dollar clause applies to debt only, 124. 
 for order by court appointing receiver, 344. 
 
 to compel person to furnish sheriff with cer- 
 tificate, etc., § 650, 487-492. 
 proceedings as for contempt, 234. 
 service of order, 102. 
 for warrant of arrest, § 2437, 116. 
 who may make this affidavit, 118. 
 
 same facts as for the order represented by warrant, 118. 
 what two facts must be satisfactorily proven, iig. 
 facts must be positively sworn to, iig. 
 same facts as for writ ne exeat, iig. 
 same facts nearly as for order of arrest or attchment, 
 
 118-121. 
 ■what facts to be shown as to property, 119. 
 what kinds of property, 119. 
 fact of concealing, when shown, 120. 
 what may be an unjust refusal, 111-115, 121. 
 execution returned should be so stated, 121. 
 what facts cannot be stated alternately, 121. 
 Agent may be appointed by receiver, 407. 
 
 how appointed, 407. 
 Allegations. See " Affidavit." 
 Amendments, court may allow what, 64, 96, 469. 
 judge " " " 469- 
 he cannot amend what, 469. 
 
 may allow bond or undertaking to be amended, 470. 
 interrogatories may be amended, 257. 
 Annuity, surplus of, may be reached, how, 297, 298. 
 charged on real estate, reachable, 298, 371. 
 Appeals, 440. 
 
 from judge' s order to Special Term, 440. 
 " " " General Term, 441. 
 
 order must first be entered, 441. 
 order, where entered, 441. 
 from ex parte order to General Term, 442. 
 may apply to judge who made it, or to Special Term to 
 
 vacate, 442. 
 in proceedings under g 2441, to what court, 447. 
 from referee, 441. 
 how made, 441. 
 
596 GENERAL INDEX. 
 
 Appeals, in what cases appeals lie. See contempt cases, 272. 
 from order refusing to punish contempt, 443. 
 " " " to appoint receiver, 443, 444. 
 
 " " " attachment against witness, 443. 
 
 " " dismissing proceedings, 443. 
 In what cases no appeal, 145, 444, 446. 
 what orders were deemed discretionary and unappealable, 
 
 446. 
 from irregularities waived, no appeal, 454, 459. 
 who may appeal, 446. 
 assignee of judgment may, 446. 
 representative of deceased, what must do first, 447. 
 who cannot appeal, 446. 
 attorney cannot, 446. 
 
 debtor cannot in proceedings under § 2441, 445, 447. 
 order, what. Appellate Court will make in contempt pro- 
 ceedings, 447. 
 in other cases, 447. 
 
 to Court of Appeals lies in final adjudications, 273. 
 Appearance of debtor should be personal, when, 140, 141. 
 some one may appear for him, 141. 
 by attorney, 141. 
 by a party, what it means, 141. 
 Application. See "Motion." 
 Approval of receiver's bond, 359. 
 Appointment of receiver. See " Receiver." 
 Arrest. See " Warrant of." 
 Assignment of property to receiver, creditor's bill, 319. 
 
 " may be compelled, 113, 283, 372. 
 
 but is not necessary of property in this State, 283, 372. 
 Assignee of Judgment may institute proceedings, 24, 35. 
 
 may institute them in his own name, 35, 99. 
 may sue out warrant of arrest, 119. 
 may appeal, 446. 
 Attachments. See "Warrant of," to punish contempt. 
 
 against property, not after judgment, 242. 
 
 how entitled, 251. 
 
 against property does not abate proceedings under 
 
 § 2441. 
 Attorne and Counsel in supplementary proceedings, 87. 
 
 authorized under original retainer, 39. 
 
 must disclose, 154. 
 
 when not to disclose, 164. 
 
 what acts of bind party, 87, 241. 
 
 what acts of do not, 39, 241. 
 
GENERAL INDEX. 
 
 S'97 
 
 Attorney and Counsel, what papers may be served on attorney, 241. 
 what papers, etc., cannot, 241. 
 who has a lien may institute supplementary 
 
 proceedings, 37. 
 may begin supplementary proceedings, 39. 
 Bail on attachment, 253. 
 Bill. See " Creditor's Bill." 
 Bond of receiver, 359. 
 
 must give before he can act, 359. 
 what to contain, and how executed, 359. 
 to whom executed, 359. 
 how acknowledged or proved, 359. 
 must be approved, 359. 
 penalty in bond, how much, 361. 
 how many sureties, and in what to justify, 359. 
 to be filed, 361. 
 'St^Y.KCYL of contract. See "Damages." 
 
 of injunction. See " Injunction." 
 
 Code of Civil Procedure. 
 
 Section 25. Change of judge, 473. 
 
 " 26. Continuing proceedings before another judge in 
 
 N. Y., 277, 278. 
 
 52. Continuance in other counties, 2io, 277, 278, 473. 
 
 53. Notice of change, 473. 
 90. Who cannot be appointed referee, 130. 
 
 190. Appeals, 447. 
 
 263, 258. Jurisdiction city courts, § 349, 473. 
 
 342. County judge disqualified, 473. 
 
 388. Actions to be commenced within ten years, 80. 
 
 414. Applies to special proceedings, 80. 
 
 507. Defences, 466. 
 
 550. When defendant may be arrested, 116-120. 
 
 553. When woman can be arrested, 119. 
 
 555. When executor, etc., can be arrested, 119. 
 
 650. Proceedings in aid of attachment, 487, 492. 
 
 651. Person refusing certificate may be examined 
 488, 489. 
 
 769. Motions, when to be heard, 488. 
 
 772. Order to show cause, 467. 
 
 779. Costs of motion, how collected, 205, 232. 
 
 802. Service of papers, 477. 
 
 810-815. Undertakings, 359. 
 
 825. Filing papers, 481. 
 
 831. When husband and wife witnesses, 154, 166. 
 
598 GENERAL INDEX. 
 
 Code of Civil Procedure. 
 
 Section 835, 836. Attorney not allowed to disclose, 362. 
 " 842. Oath of referee, 138. 
 
 " 852-858. Subpoena by judge or referee, 151, 152. 
 " 855. Arrest for disobedience of subpoena, 236. 
 " 858. Warrant directed to sheriff, 134, 236. 
 " 865. Subpoena duces tecum^ 153. 
 " 867. Production of books, etc., 153. 
 " loii. Reference by consent, 139. 
 " 1013. " " compulsion, 139. 
 
 " 1015. " " compulsion upon incidental ques- 
 
 tion, 139. 
 " toi6. Referee to be sworn, 138, 139. 
 " 1018. General power of referee, 136. 
 " 1215. Reference to assess damages, 139. 
 " 1355-1361. Appeals, 441, 442. 
 " 1362-1368. Executions, 59. 
 " 1371. Execution against executor, 94. 
 " 1375-1377. Execution, 451. 
 " 1389-1404. Exempt property, 293. 
 " 1812. Corporations, 290, 291. 
 " 1871-1879. Creditor's action, 438-439. 
 " 1932-1941. Joint debtors, 274, 276. 
 " 2008, 2009. Habeas corpus, 152. 
 " 2266-2272. Contempt proceedings, 208, 234, 236, 238, 
 
 240, 243, 250, 251, 253, 271. 
 " 2273. Order to show cause, etc., 239, 240, 241, 243, 
 
 250, 251. 
 " 2274-2292. Proceedings on contempt, 242, 253, 254, 255. 
 
 257. 259, 260, 261, 263, 266, 267, 268, 271. 
 " 2432. Supplementary proceedings, i. 
 " 2433. Appeals, 442, 444. 
 
 " 2434. What judge may act, loi, 104, 130, 473. 
 " 2435. After return of execution, 77, 87, 89, 157, 217, 
 
 459- 
 " 2436. Before return of execution, 79, 83, 104, 120, 157, 
 
 217, 451. 
 
 " 2437. Warrant of arrest, 253. 
 
 " 2438, 2439. Warrant after order, 116, 117, 122. 
 
 " 2440. Undertaking an arrest, Ii6, 117. 
 
 " 2441. Order to execute third party, 308, 430. 
 
 " 2442, 2443. Before a referee, 129, 133, 243, 278. 
 
 " 2444. Execution under oath, loi, 135, 140, 181, 472. 
 
 " 2445. Referee's oath, 138. 
 
 " 2446. To pay sheriff, 278, 306, 310, 311, 312, 463, 470. 
 
GENERAL INDEX. 
 
 599 
 
 Code of Civil Procedure. 
 
 Section 2447. Order to deliver property, 113, 157, 183, 188, 200, 
 20I, 202, 278, 280, 308, 313, 315, 316, 317, 320, 
 321, 323, 334, 335, 336, 338, 344, 357, 438, 463, 
 465- 
 2448, 2449, 2450. Duty of sheriff, 341, 342, 463. 
 
 2451. May enjoin any party, 177, 179, 186, 187, 193. 
 
 2452. Mode of serving orders, 94, 102, 103, 127, 178, 
 181, 491, 492. 
 
 2453. Mode of serving warrant, 122. 
 2554. How proceedings discontinued, 171, 174, 445, 483. 
 2455, 2456. Costs. 195, 196, 197, 200, 201, 202, 203, 
 
 204, 231. 
 
 2457. Disobedience, 136, 205, 207, 210, 211, 212, 213, 
 231, 232, 234, 236, 237, 239, 271. 
 
 2458. Execution to what county, 15. 
 
 2459. What court debtor must attend, 235. 
 
 2460. Not excused from answering, 154, 156, 157, 161, 
 163, 164, 169, 171. 
 
 2461. Joint debtors, 274. 
 
 2462. Continued before another judge, 210, 277, 278. 
 
 2463. Exempt property, 117, 188, 189, 290, 291, 297, 
 346, 381. 
 
 2464. Receiver appointed, 201, 343, 344, 352, 353, 359, 
 
 435. 438. 
 
 2465. Notice to other creditor, 362. 
 
 2466. Only one receiver, 363, 364. 
 
 2467. 2468. Receiver's title, 234, 235, 344, 365, 368, 
 369, 380, 432, 435. 
 
 2469. Receiver's title to personal by relation, 379, 380, 
 386, 466. 
 
 2470. Clerk to record papers, 388. 
 
 2471. Receiver subject to control of court, 361. 
 3043. On justice's transcript, 54. 
 3226. Municipal Court, Rochester, 54. 
 3240. Costs on appeal, 261. 
 3343. City courts of Buffalo, Brooklyn, and C. P., 
 
 279, 316. 
 " 3352. Additional allowance of costs, 55, 56. 
 Commitment, 271. 
 Contempt, proceedings for, 205. 
 nature of, 206. 
 
 important part of supplementary proceedings, 206. 
 ■who may punish for, 207, 271. 
 (i) judge whose order has been disobeyed, 208. 
 
6oo GENERAL INDEX. 
 
 Contempt. 
 
 (2) judge who may continue proceedings, 208. 
 practice in case of continuance, 208. 
 
 (3) successor in office of judge whose order has been diso- 
 
 beyed, 209. 
 
 (4) Supreme Court justice, when the proceedings have been 
 
 transferred to him from county judge, 210. 
 
 (5) Court tot disobedience to order of a judge, 211, 230, 240. 
 but only when proceedings are in an action in the same 
 
 court, 211. 
 
 Court for disobedience to subpoena, 213. 
 
 referee, misconduct toward, is a. contempt toward the 
 court or judge that appointed him, 212, 235. 
 
 it is similarly punished, 212. 
 
 certificate of default not proper, 136. 
 
 affidavit required to found proceedings, 136, 217, 236. 
 
 ■who may prosecute contempt proceedings, 215. 
 
 acts that are thus punishable, 215. 
 
 refusal to answer a proper question, 218. 
 " produce books, 218. 
 " P^y judgment and costs, 220, 231, 232, 235. 
 
 violation of injunction, though not duly served, when, 
 215, 219. 
 
 failure to attend on an adjourned day, 216. 
 
 acts not punishable thus, 223. 
 
 inability to state encumbrance on land, 218. 
 " comply with order, when, 217, 233. 
 
 other instances, 217, 224. 
 
 third party, 232. 
 
 •what must be shown, 237. 
 
 sufficient continuity , 247. 
 
 (jr^/^r disobeyed duly served, 219. 
 
 other instances, 245. 
 
 but judge may determine against party's oath, that he 
 can obey order, and punish him, 246. 
 
 7nethod of procedure to punish, 234. 
 
 that prescribed by the Revised Statutes, 234. 
 (i) misconduct in immediate view of court summarih- pun- 
 ished, 234. 
 
 (2) disobeying order to pay money, 220, 229, 235, 245. 
 what this order should specify, 235. 
 
 (3) by order to show cause, 236, 238. 
 
 (4) " warrant of attachment, 236. 
 
 copies of moving papers to be served, 238, 241. 
 may be served on attorney, 241. 
 
GENERAL INDEX. 6oi 
 
 Contempt, proceedings by order to show cause, 240. 
 
 if party fails to show cause, he may be punished forth- 
 with, 240. 
 also if he admits the acts of contempt, 242. 
 if he denies contempt, matter may be determined without 
 
 interrogatories, 242. 
 by a reference, 243. 
 contrary views held, 244. 
 order to show cause, how served, 241. 
 proof of damages, 247. 
 attachment, 249. 
 nature of, 249. 
 
 only to bring person into court, 250. 
 may be issued in first instance, 250. 
 who may issue, 250. 
 usual course is by notice of motion, or order to show 
 
 cause, 250. 
 course in first district is by notice of motion, 251, 252. 
 copies of moving papers, when may be served, 238, 
 
 241, 251. 
 indorsement on warrant, 253. 
 habeas corpus instead, 254. 
 what accused may show, 248. 
 no defence, 248. 
 
 upon hearing of motion, when will attachment be grant- 
 ed, 252. 
 
 what must be shown to allow attachment, 252. 
 
 how issued by the court, 250. 
 
 what it should contain and recite, 252. 
 
 in proceedings before judge, how issued, 252. 
 
 needs no seal or clerk's signature, 252. 
 
 return, 254. 
 
 proceedings^ title of, 251. 
 
 " on return of attachment, 252. 
 
 when only can party be punished, 252, 255. 
 
 interrogatories, what to specify, 255. 
 
 within what time to be filed, 256. 
 
 what remedy has party if not filed, 256. 
 
 copy to be served on accused party, 255. 
 
 answers, how and within what time, 255. 
 penalty for failure to answer, 256, 263. 
 
 to what matter interrogatories to be confined, 256. 
 
 defective, may be amended, in what, 257. 
 
 all material interrogatories to be answered, 257. 
 
6o2 GENERAL INDEX. 
 
 Contempt, how court proceeds to decide after interrogatories are 
 
 answered, 255. 
 what proofs may be considered, 244. 
 reference may be ordered, 257. 
 proceedings before referee, 257. 
 witnesses to be produced and examined, 257. 
 referee's report, what must contain, 257. 
 proceeding if accused found guilty, 258. 
 fine or penalty, how much, 258, 259, 260, 263. 
 to indemnify creditor, for what, 260. 
 counsel fees may be allowed, 261. 
 what actual losses are, 262. 
 if none, creditor still entitled to his costs and expenses, 
 
 262. 
 imprisonment may be ordered till fine is paid, etc., 265. 
 discharge from, 266. 
 criminal contempt, what is, 273. 
 
 " " what penalty may be imposed, 263, 
 
 273- 
 
 No excuse acting under advice of counsel, 249. 
 
 order of conviction, etc., 258, 268. 
 
 must be entered when matter before the court, 271. 
 
 what it should recite, 265, 269. 
 
 jurisdiction should appear on its face, 267, 268. 
 
 what it should contain, 270. 
 
 penalty, 259. 
 
 how fine should be specified, 270. 
 
 no right to a jury, 273. 
 
 to whom fine directed to be paid. 258, 260. 
 proceedings before judge, no order entered, 271. 
 
 warrant of commitment, 271. 
 
 what it is, 271. 
 
 how issued, when proceedings before court, 271. 
 
 on what founded, 271. 
 
 jurisdiction should appear on its face, 271. 
 
 when issued by judge, what it should recite and show, 
 116. 
 
 needs no seal or clerk's signature, 122. 
 
 •warrant issued in the name of the people, 121. 
 
 is directed to what sheriff, 86, 118. 
 
 rules of contempt, proceedings apply equally to judge 
 and court, 252. 
 
 rule or order of commitment, defendant may be com- 
 mitted by, 271. 
 
 witness, how proceeded against, 213, 234. 
 
GENERAL INDEX. 603 
 
 Contempt, how summarily proceeded against, 234. 
 
 when attachment issues in first instance, 250. 
 
 when must proceed by order to show cause, 238. 
 
 how moving papers to be served, 241. 
 
 how to proceed in first district when the examination 
 
 before judge, 251. 
 how in other cases, 257. 
 
 at bar the same procedure as in other contempts, 246. 
 Continuance of proceedings before another judge, 277. 
 
 what only is requisite for, in first district, 208. 
 before successor of county judge, 277. 
 
 Supreme Court justice from county judge, 277. 
 under Code, § 2462, 277, 278. 
 Continuity of proceedings, 210. 
 
 what acts will destroy or preserve it, 210. 
 
 sufficient continuity to be shown for punishing contempt, 
 
 247. 
 not lost by death, retirement or absence of judge, 473. 
 Contract, damages for breach of, is reachable, 279. 
 
 so, also, debtor's interest in, for purchase of land, 281. 
 Corporations, no proceeding against under § 2435, 42. 
 
 may be proceeded against under § 2441, 177. 
 
 who must appear and answer for corporation, 
 
 foreign corporations especially, 492. 
 
 what property of, may be seized by attachment and 
 
 execution, 492. 
 how reached, 492. 
 
 certificate of, may be compelled, 493. 
 Costs. Section 2455, 195. 
 
 who may have, 196, 197. 
 
 two classes of persons, 196. • 
 
 when allowed, 198, 200. 
 
 at the close of the proceedings, 198. 
 
 when might third party have costs, though property be found 
 
 in his hands, 198, 199. 
 debtor cannot have, unless examined, 196. 
 rule as to compelling creditor to pay costs in the N. Y. Supe- 
 rior Court, relaxed, igg. 
 what appears the settled opinion in courts as to costs, 158. 
 practice at Supreme Court chambers, first district, in respect 
 
 to costs against creditor, 196, 204. 
 what allowed to creditor as costs, 200. 
 allowance of counsel fee is costs, 201. 
 disbursements should appear by affidavit, 201. 
 what allowed debtor, if entitled to costs, 204. 
 
6o4 GENERAL INDEX. 
 
 Costs, when to be applied for, 198, 200. 
 
 any time before property is applied upon the judgment, 
 
 186. 
 who may allow costs, 196. 
 
 the tribunal that has charge of the proceedings, 197. 
 the court whose officer the receiver is, 188. 
 notice of motion for, should be given, 2oi. 
 length of notice, 201. 
 how collected, 201. 
 cannot be collected by execution, 202. 
 
 may be collected by order under §§ 2455, 2456, 203, 204. 
 Counsel. See "Attorney and Counsel." 
 
 debtor or third party may have, on examination, 144. 
 mere witness cannot, 144. 
 Court. Creditor's bill filed in Court of Chancery, 2. 
 
 cannot entertain proceedings under present code, 19. 
 
 has the control of the receiver appointed in supplementary 
 
 proceedings, 389. 
 appoint receiver under § 1877, 438. 
 the manner of appointing, 439. 
 may enjoin debtor, 177. 
 allow costs, 261. 
 
 punish a disobedience of an order of a judge, 239, 240. 
 to what cases this practice is limited, 240. 
 discharge person imprisoned for contempt, 266. 
 amend order or warrant, 469. 
 entertain appeals, 440. 
 vacate or modify ex parte orders, 442. 
 entertain proceedings under § 650, 488. 
 punish disobedience of orders therein, 492. 
 distri^ courts, examination on judgments of, referred, 54. 
 Marine Court, the same, 25, 54. 
 Creditor. See " Parties." 
 Creditor's Bill, course of procedure in, 120. 
 
 not abrogated by the Code, 439. 
 injunction in, granted in first instance, 178. 
 lien of, on what assets, 2. 
 
 priority between creditors, how determined, 2, 429. 
 receiver \n, appointed as of course, 3, 351. 
 reference to master, to examine debtor and wit- 
 nesses, 3, 439, 
 to obtain an assignment and delivery of property, 6. 
 extent of examination before master, 4. 
 power of master on reference, 5, 6. 
 
GENERAL INDEX. 605 
 
 Creditor's Bill, supplementary proceedings, substitute for, 20. 
 Criminal Contempt. See " Contempt, Proceedings for." 
 
 Damages, right of action for, is reachable property, 287, 288. 
 Debts due the judgment debtor may be paid to sheriff, 306. 
 may be reached by proceedings under § 2441, 3301 
 " applied upon the judgment by § 2447, 313. 
 but not where debtor is unable to pay, 128. 
 Debt due debtor is reachable property, 279. 
 
 reachable by order under § 2447, 313, 330. 
 or through a receiver, 280, 330. 
 denied, is recoverable only by action, 330. 
 but payment of, may be enjoined, 177, 357. 
 a certificate of, may be compelled under § 650, 487-490. 
 Debtor. See " Parties." 
 Default in the proceedings, court may open, 176. 
 
 can a judge open? 176. 
 Delay in procedure discontinues proceedings, when ? 172. 
 creditor cannot lie still for indefinite time, 428, 440. 
 he will, at least, lose his priority and benefit of the injunction, 
 428. 
 Delivery of property to creditor or receiver may be compelled, 
 
 113, 313- 
 debtor not obliged to deliver to any one but receiver, 113. 
 Demand of property to constitute unjust refusal, 106, 319. 
 who may make, 108, iii. 
 how made, 108-111. 
 
 to whom should it require property to be given? 112, 113. 
 duly made, gives creditor priority in the debtor's property, 
 
 113- 
 to entitle creditor to a warrant of arrest, 116. 
 by receiver for the debtor's property and money, 402. 
 where to require delivery of property to the receiver, 402. 
 of money required, precept of commitment, Ig6. 
 " certificate, for proceedings under § 650, 487, 488. 
 Determination, whether the debtor has property, 279. 
 
 " adverse interest is claimed, 330. 
 
 accused party is guilty of contempt, 258. 
 party has refused a certificate, 492. 
 Discharge of person imprisoned for contempt, 266. 
 
 how motion made, 267. 
 Discontinuance of proceedings by abandonment, 171, 473. 
 
 " by order, 171. 
 
 Discovery, creditor's right to. 
 Disobedience of orders. See "Contempt, Proceedings for." 
 
6o6 GENERAL INDEX. 
 
 Effects. See " Property." 
 
 Errors. See " Irregularities." 
 
 Evidence. " Examination" may be read in civil action, 169. 
 
 motion for order under § 2447 is based on the evidence 
 
 in the examination, 313. 
 motion for receiver is based on the same, 352, 353. 
 on motion to punish misconduct as contempt, 236, 237. 
 " in attachment to punish the same, 252. 
 
 " for certificate, § 650, 488. 
 
 referee may be appointed to take and report the evidence, 
 
 I2g. 
 cannot he used against party or witness in criminal 
 
 action, 156. 
 Examination before master under creditor's bill, 3. 
 
 extent of it, 4 
 
 in proceedings under § 2435, 156, 159. 
 
 " what county, 80. 
 
 before a judge, how conducted, 140, 143. 
 
 by referee " " 142. 
 
 in form of deposition, 144. 
 
 of debtor and witnesses as on trials of issues, 144. 
 
 great liberality in correcting mistakes, 144. 
 
 leading questions to be allowed, 145. 
 
 of debtor need not be taken, 143. 
 
 creditor entitled to, 143. 
 
 debtor cannot stop, by offering to consent to a receiver, 
 156. 
 
 extent of, 149, 156, 158, 159. 
 
 into the characters of transfers and adverse claims of 
 property allowed, 156, 169. 
 
 witness cannot stop by claiming to own it, 156, 159, 
 160. 
 
 creditor, remediless without this right, 161. 
 
 may extend, how far back? 162, 165. 
 
 cannot extend subsequent to commencement of pro- 
 ceedings, 168. 
 
 generally, how conducted? 158. 
 
 what questions are pertinent, 163. 
 
 once closed, how to be resumed, 96, 145. 
 
 'vx proceedings under § 2136, p. 146. 
 
 in what county, 65, 86. 
 
 confined to specific property, 146. 
 
 debtor need not be examined, 146. 
 
 extent of, 146. 
 
 why should be rigid in these proceedings, 146. 
 
GENERAL INDEX. 607 
 
 Examination in proceedings under § 2441, 86, 147. 
 
 joint debtor may be examined as to joint property, 
 
 although not served, 58. 
 by consent may be examined out of county, 81. 
 
 extent of, 147, 168. 
 
 how rigid should be, 147. 
 
 witnesses may be examined, 144. 
 
 in proceedings under § 650, 487. 
 
 is limited, 489. 
 
 on warrant of arrest, 146. 
 
 where to be taken, 81. 
 
 same as order under § 2459, 86. 
 
 of wife can be taken, 154. 
 
 of debtor and witnesses in contempt proceedings, 257. 
 
 in order to show cause in same proceedings, 236, 257. 
 ExECtJTiON for creditor's bill, must have been returned, 2. 
 
 no bill filled till expiration of time limited for its return, 2. 
 
 for proceedings after return, § 2435, 55. 
 
 must issue out of court of record, 59. 
 
 to sheriff of what county? 34, 52, 59, 65, 66, 85. 
 
 when to a coroner? 21. 
 
 must be against property, real and personal, 59. 
 
 to collect a definite sum of money, 59. 
 
 must be valid, 59. 
 
 if issued without leave, where necessary, irregular, not 
 
 fatal, 64. 
 irregularity is personal — may be waived, 61. 
 may have been issued before the Code, 60. 
 returnable in sixty days, 67. 
 cannot be made returnable in less time, 67. 
 may be returned within sixty days, 67. 
 returned, must be before proceedings can be taken, 73. 
 teturn of, conclusive, 67, 68. 
 
 can only be impeached by direct motion, 60, 68, 69. 
 in what courts this is the rule, 70. 
 may be set aside as void when procured by creditor, 
 
 68, 70. 
 in proceedings under § 2436, 79. 
 same and issued to same county as for proceedings under 
 
 § 2435, 106. 
 still remains in sheriff's hands, 80, lo5. 
 for proceedings under § 2441 ,79. 
 to what county may issue, 52. 
 for proceedings under 650, 487. 
 as far-reaching as the attachment, 487. 
 
6o8 GENERAL INDEX. 
 
 Execution for warrant of arrest, 250. 
 
 , same as for the order it represents, 250. 
 
 second execution no objection to proceedings, 76, 480. 
 unless levy made on sufficient property, 480. 
 may be issued after death of creditor, 36. 
 return, form of, 72. 
 
 Facts to be alleged in proof, for order before return of execution, 
 § 2435, 87. 
 for order before return of execution, 104. 
 " " against third party under § 2441, 123. 
 " " to compel giving a certificate, § 650, 487. 
 " warrant of arrest, 119-121. 
 referee may be appointed to find and report, 129. 
 what facts entitle creditor to injunction, 178. 
 to be alleged on motion to discharge prisoner, 267. 
 Funds mixed with debtor's pass' to receiver, 108. 
 Federal courts may entertain proceedings on their judgments, 57, 
 
 Goods. See " Property." 
 
 Infant, 48. 
 
 Injunction in creditor's bill issued in first instance, 3, 182. 
 
 in supplementary proceedings, 177. 
 
 against debtor authorized by § 2451, 177. 
 
 " third party before examination, 177, 178. 
 " " " after " 177. 
 
 nature of, 179. 
 
 incident of proceedings, and continues and falls with 
 them, 184. 
 
 but not an essential part thereof, 184. 
 
 granted of course in first instance as in creditor's bill, 182. 
 
 facts which entitle creditor to, 178. 
 
 when granted, 179. 
 
 w/io may grant, 178, 179. 
 
 how long it continues to operate, 183, 184. 
 
 when, and when not, dissolved, 172, 174. 
 
 what acts dissolve it, 184. 
 
 ffoceedings restored revive it, 184, 185. 
 
 is independent of supplementary order, 186. 
 
 not necessarily void, because order is, 186. 
 
 but void, when proceedings are, 186. 
 
 voidable, when proceedings irregular, 186. 
 
 under t^ 2451, when granted, 177. 
 
 by whom, 179. 
 
 granting is discretionary, 180. 
 
GENERAL INDEX. 609 
 
 Inju.n-ction, how long it continues, 183. 
 
 may be modified or dissolved, 187. 
 
 how this may be done, iBo. 
 
 what it restrains, 188, igl. 
 
 dormant, 184. 
 
 limited, 1B4. 
 
 When it takes effect, 181, 182, 183. 
 
 against third party, what it restrains, 177, 179, 186, 188. 
 
 debtor ' 177, 188. 
 
 chancery rule 195 is the guide, 182. 
 violation of, by debtor, what is, 182. 
 what restraining power injunction has, 191. 
 
 " is no violation, 183. 
 under § 2451 requires no security, 179. 
 service of, how made, 181. 
 on corporation, what it binds, 180. 
 what is enough to bind party, when not duly served, 
 
 181. 
 when punishment for breach is discretionary, 219. 
 served on third person not a party, is binding, 186. 
 Injury to property, a right of action for, is reachable, 287, 288. 
 caused by a party's misconduct to be compensated, 288. 
 Interest, adverse, in property, recoverable only by action, -324, 397. 
 claimed by a third person, meaning of this, 323, 330. 
 to be valid must antedate receiver's appointment, 369. 
 Irregularity, definition of, 448. 
 
 renders proceedings voidable only, 60, 459. 
 court may amend, 60, 69, 453. 
 judge cannot, except one of practice, 454. 
 in execution, what is, 61. 
 
 order for party to appear and answer is irregular, 
 when ? loi. 
 
 " irregular or erroneous, not be disregarded, 453. 
 formal, immaterial, 459. 
 writ of attachment, when irregular ? 100. 
 how to get rid of irregular order or proceeding, 100, 
 
 442. 
 may be waived, 71, 81, loi, 454. 
 how waived, 71. loi> 454' 
 waived, proceedings become complete, loi. 
 objection to, when to be taken ? loi, 452. 
 
 " is a personal right, 456. 
 
 a third person cannot raise it, 456. 
 rule, whether a defect is an irregularity, 62, 448, 457. 
 joint debtors, 40, 62, 274. 
 
6lO GENERAL INDEX. 
 
 Judgments for proceedings under § 2458, 51. 
 must be for payment of money, 53. 
 
 if of inferior court, must be for $25, exclusive of costs, 53. 
 against joint debtors where all were not served, 54, 62. 
 where for costs only, 54. 
 decrees of late Court of Chancery, 53, 56. 
 must be on debtor's appearance or personal service, 51. 
 may be to collect interest unpaid, 56. 
 not judgments oi a federal court, 57. 
 nor judgments against corporations, 42. 
 nor when summons served by publication, and debtor did 
 
 not appear, 52. 
 for proceedings under § 2458, 51, 
 for warrant of arrest, same as for order, 118. 
 on payment of, creditor should be required to give a 
 
 receipt, 30S. 
 equitable lien on real property fraudulently conveyed, 
 
 431, 432. 
 the lien of, on real property, lost by resorting to supple- 
 mentary proceedings, (?) 431, 435. 
 Judges. Who may entertain proceedings under § 2434, 5, 24, 26. 
 Judge may acquire jurisdiction of debtor by affidavit and order, etc., 
 ■26, 27. 
 may acquire jurisdiction of debtor by voluntary appearance, 353. 
 may appoint receiver on a voluntary appearance, 353. 
 jurisdiction exclusive, and continues how long ? 29, 472. 
 no other judge at chambers can interfere, ig, 472. 
 this exclusive jurisdiction has exceptions, 19, 472. 
 of Supreme Court may entertain proceedings, on what judg- 
 ments and decrees, 25. 
 may make order anywhere in the State, 27, 80. 
 of the N. Y. Superior Court, on what judgments ? 29, 473. 
 the Buffalo Superior Court? 29, 473. 
 of N. V. Common Pleas? 25, 26, 30, 32, 81. 
 a county judge ? 30, 473. 
 the recorder and mayor of Troy ? 24. 
 the recorder of Oswego ? 24. 
 judge of the City Court of Brooklyn ? 24. 
 recorders of .cities, and mayor of Mayor's courts ? 24. 
 absence of, from place where proceedings to be held should not 
 
 discontinue proceedings, why ? 473. 
 ■who may entertain proceedings under § 24, 34, 5, 24. 
 where he must reside, 25, 30, 129. 
 
 who holds the court need not live in debtor's county ? 25. 
 nor who continues the proceedings, 473. 
 
GENERAL INDEX. 6l I 
 
 Judge, who may make order under § 2441 ? 123. 
 
 any judge may on execution out of his court, 29. 
 
 special court judge or surrogate, 26, 31. 
 
 may remove receiver, 361. 
 
 any judge within his jurisdiction may, 24, 26, 29, 129. 
 
 ■who may malce order under § 650? 488. 
 
 who must appoint receiver ? 352. 
 
 who to malie order requiring the delivery or payment of money, 
 
 etc., to receiver or creditor? 313. 
 who to grant injunction ? 177, 178. 
 who to allow costs ? 195. 
 who may punish as for contempt ? 207, 271. 
 may continue proceedings to punish, 247. 
 " " " and punish disobedience of an 
 
 order of his predecessor, 247. 
 who may discharge from imprisonment as for contempt ? 266. 
 who may issue warrant of arrest? 121. 
 the same judge that may make the order, 121, 
 powers of, general principle stated, 460. 
 
 " in commencing proceedings, 462. 
 adjourning and staying proceedings, 462, 472. 
 may adjourn proceedings in party's absence, 472. 
 
 " appoint a new referee, and order debtor to appear before 
 
 him, 130. 
 in questions of residence and place of business, 69, 467. 
 the rule in all such cases stated, 467. 
 may inquire into existence of judgment, etc., 468. 
 may determine questions of regularity, 69, 71, 468. 
 his exclusive control over proceedings, 472. 
 to open defaults and restore proceedings, 474. 
 to punish disobedience of orders, 476. 
 power of a judge in first district, 26-32. 
 no power to allow amendments except in matters of practice, 
 
 469. 
 nor to review a judical determination, 469. 
 or the merits of the original action, 469. 
 or to inquire into the correctness of the judgment, etc., or the 
 
 sheriff's return, 469. 
 may, perhaps, allow bond or undertaking' to be amended, 
 
 470. 
 Jurisdiction. See "Judge, Power of ; " " Court." 
 
 third person, it seems, may object to, 459. 
 Jurisdictional Defects, definition of, 448. 
 
 cannot be waived by consent, 449 
 objection of, may be taken any time, 449. 
 
bl2 GENERAL INDEX. 
 
 Jurisdictional Defects, when may be taken in collateral proceed- 
 ings, 333, 458. 
 general, 15. 
 not although execution issued after five 
 
 years, 64. 
 not lost by failure to appear, 173. 
 Justice. See "Judge." 
 
 judgment of, must be $25, exclusive of costs, to support pro- 
 ceedings, 53. 
 examination on such judgment referred in N. Y. Common 
 Pleas, 32. 
 
 Land. See " Property." 
 
 Liens, in creditor's action, how created ? 422. 
 
 creditor's bill filed created lien on equitable property only, 378. 
 
 commencement of supplementary proceedings creates, 420. 
 
 not against bona fide purchases, 377. 
 
 good against executors, etc. , 424. 
 
 nature of receiver's lien, 420. 
 
 extent of his lien, 420. 
 
 what acts or omissions will impair receiver's lien, 422, 440. 
 
 while unimpaired, all subsequent interests are subject to this 
 lien, 421. 
 
 receiver taking property, subject to lien, 423. 
 
 of the order made under § 2441, when attaches, 427. 
 
 of judgment ovi real property lost, when? 431. 
 
 receiver takes property subject to what liens, 423. 
 Limitation proceedings may be taken within ten years after return of 
 execution, 77, 80. 
 
 Married women may be party defendants in supplementary proceed- 
 ings, 40, 47, 63. 
 Master in Chancery, reference to him to appoint or select a re- 
 ceiver, 4. 
 examined debtor and witnesses, 4. 
 decided what property debtor had, 5, 402. 
 directed him to deliver it up, 6. 
 his power in the proceedings, 4, 5, 402. 
 practice, when party disobeyed master, 5, 252. 
 Maxim in construction of statutes. 
 Money, payment of, to whom under § 2447, 313. 
 
 creditor to give a receipt on receiving, 307. 
 Motion for attachment, 252. 
 " costs, 201. 
 to discharge from imprisonment, 266. 
 " dissolve injunction, 187. 
 
GENERAL INDEX. 613 
 
 Motion for order to deliver up property, 321. 
 
 " to punish for contempt, by order to show cause, 
 236, 238. 
 " receiver, 353. 
 
 " " may be made any time during examination, 353. 
 is made on the evidence taken, 356. 
 may be on debtor's consent, 356. 
 
 if creditor not ready to malce motion should get adjourn- 
 ment, 138. 
 may be made in other county, 80. 
 
 Ne exeat, issued under like circumstances as warrant of arrest, 
 119-121. 
 in what cases issued, 120. 
 Non-Imprisonment Act, proceedings under, similar to those under 
 § 2436, 105, 106. 
 the /ro/^^iff reachable thereby, 106, 108. 
 " proof for the warrant, 106. 
 " unjust refusal, 106. 
 " demand, who can make, 108, ill. 
 how made? io8, iii. 
 what is not an unjust refusal ? iii, 112. 
 certified copy of affidavit to be served with 
 
 warrant, 122. 
 procedure on return of warrant, 128. 
 the decision of the case, 327. 
 priority obtained by the demand and the 
 
 issue of the warrant, 113. 
 priority determined by the date of demand, 
 
 113- 
 no person can knowingly take the property 
 
 after demand, 113, 434. 
 but no lien is created by the proceedings, 
 
 49. 
 diligence required to preserve priority, 428, 
 440. 
 Notice, a third person not bound to take notice of supplementary 
 proceedings, 380. 
 but is after receiver is appointed, 394. 
 
 injunction served on him may be actual notice, 178, 179-181. 
 actual notice may subject his rights to those of creditor, 
 
 179, 181, 183. 
 actual notice what effect, though no bill was yet filed? 181. 
 " in proceedings under non-imprisonment act, 
 what effect ? in. 
 
6 14 GENERAL INDEX. 
 
 Notice of motion for attachment as for contempt, 252. 
 
 " " " " on whom to be served, 252, 356. 
 
 " " " costs, 201. 
 
 " " order under § 2447, 313. 
 " " " this order in proceedings under § 2441, 123. 
 " " " receiver under § 2464, 353. 
 length of, 356. 
 how served, 356. 
 may be served on attorney, 356. 
 to third party, if required, how given ? 354. 
 need not be given to a stranger, 363. 
 provision for notice to plaintiff in creditor's action, 171. 
 of proceedings under § 2441 need not be given to debtor, 127. 
 in such cases notice is in judge's discretion, 125. 
 receiver appointed on two days' notice, 343, 356. 
 need not be given if party is present, 353. 
 must be in writing, 355. 
 
 giving notice of motion not a jurisdictional necessity, 223. 
 «/>««■ appointed without notice, 129. 
 
 Oath, administered to debtor, third party, or witness, 152. 
 Order, supplementary under § 2435, 98. 
 
 what title it should bear, 24, 98, 99. 
 
 parties, how styled, 99. 
 
 made at chambers, 99. 
 
 what it should recite and contain, 99. 
 
 what it must require, 100. 
 
 what direction in it to debtor, an irregularity, 99. 
 
 when a nullity, loi. 
 
 may combine purposes of several sections, 36. 
 
 how served ? 102. 
 
 where served, 103. 
 
 proof of service by affidavit, 104. 
 
 certificate of sheriff no proof, 104. 
 
 waiver of proof, what is, 104. 
 
 creditor entitled to the order, 49. 
 
 in these proceedings no order can be made against third 
 person, 86. 
 
 before return of execution, § 2436, 104. 
 
 similar to order under § 2435, 116. 
 
 what it should recite, 99, 104, 116. 
 
 what require debtor to do, 100, 104. 
 
 how served, when made by judge, 102. 
 
 where served, 103. • 
 
 copy affidavit should be served with it, 99. 
 
GENERAL INDEX. 615 
 
 Order against third party, § 2441, 123. 
 
 what judge may make this order, 24, 26. 
 
 service of, 127. 
 
 for proceedings under § 650, 488, 491. 
 
 what to contain ? 488. 
 
 of reference, 128. 
 
 is discretionary, 129. 
 
 when made ? 129. 
 
 what it may empower referee to do, 129, 132. 
 
 on debtor to produce books, etc., 152. 
 
 not allowed for payment to judgment creditor, 315. 
 
 permitting payment to sheriff, 306. 
 
 effect of the order, 310, 333. 
 
 appointing receiver by judge, 352, 356. 
 
 made on notice, 353. 
 
 " " the evidence in the proceedings, 356. 
 who to make order of appointment? 352. 
 must be filed and recorded, where? 356, 365. 
 upon debtor or third party, to deliver property to the sheriff 
 
 or receiver, 313, 404. 
 notice proper, 321. 
 when to be applied for, 316, 404. 
 what the order should specify, 321. 
 who may make it, and on whose motion ? 3T9, 321. 
 when only can order be made against third party ? 336. 
 no such order to be made unless party can obey it, 314, 327, 
 
 331. 
 mortgaged property, 329. 
 substantially disputed, .330. 
 granting leave to sue, how made, 411. 
 lien of orders, 420. 
 of injunction. See "Injunction."' 
 for costs. See " Costs." 
 enforcement of, 201. 
 see " Contempt, Proceedings for.'' 
 
 to show cause for punishment of contempt, 236, 238, 240. 
 discharging from imprisonment for contempt, 266. 
 irregular or erroneous. See " Irregularities." 
 how to be served to bring into contempt for disobedience ? 
 
 181. 
 appeal from. See "Appeals." 
 title of, in proceedings under § 2441, 24. 
 " §650,491. 
 court may commit as for contempt by order, 211. 
 service of, to bring into contempt, 181, 241. 
 
6l6 GENERAL INDEX. 
 
 Order, general rule is personal service, i8i. 
 exceptions to this rule stated, i8i. 
 what orders must be personally served ? l8l. 
 when will judge require personal service? i8i, 241. 
 Ownership of property in debtor to be shown for order under 
 § 2447, 280, 315. 
 a jurisdictional fact, 280. 
 
 possession of property no presumption of, 327. 
 must be clearly established for order under § 2447, 327. 
 
 Papers to be filed in court where proceedings were had, 362, 481. 
 Parties to supplementary proceedings, how may be styled, 98. 
 who may institute proceedings ? 35. 
 
 the creditor, in whose favor the judgment is rendered, 35. 
 assignee of judgment, 35. 
 executor or administrator of creditor, 36. 
 same in proceedings by warrant, 35. 
 
 debtor, or person against whom proceedings are taken, 39. 
 not against a corporation, 42. 
 
 " debtor under arrest, 42. 
 
 " a foreign counsel, etc., 42. 
 
 " executors, 44. 
 
 " trustees, 45. 
 joint debtors, how proceeded against 7 40. 
 residence of debtor, how defined, 82. 
 place of business, what is? 85. 
 when debtor should not be subjected to further examination ? 
 
 145- 
 infant judgment debtor, 41. 
 lunatics, 41. 
 
 debtor's absconding does not defeat proceedings, 473, 474, 
 nor his non-attendance, pursuant to order, 140, 474. 
 proceedings may be had, and his property applied, in such 
 
 case, 474. 
 third party, under § 2441, 47, 79. 
 corporation may be such party, 37, 47. 
 clerk of court or chamberlain cannot be a party, for what 
 
 purpose ? 50. 
 married women, 40, 47. 
 
 how far protected in paying money by order? 310, 336. 
 third party, rights of, cannot be determined herein, 320. 
 will not be compelled to deliver up property, when ? 316. 
 nor to pay debt or money, when ? 316. 
 attorney who has a lien may be a party, 37. 
 not against disbursing officers, 49. 
 
GENERAL INDEX. 617 
 
 Parties, party, who may appeal, 446. 
 
 " " " prosecute for contempt proceedings, 215. 
 " how discharged from imprisonment for contempt, 266. 
 Payment of debt to sheriff by third person, 306, 311. 
 
 if debt has been assigned, cannot pay it to sheriff, 309, 310. 
 
 amount of verdict for tort cannot be paid, 309. 
 
 judgment for damages to exempt property payable to sheriff, 
 
 309. 
 the proof, 312. 
 of money. See " Money." 
 Petition of receiver for leave to sue, 411, 412. 
 
 Presumption of^payment does not operate against proceedings, 481. 
 Priority among creditors in creditor's bill, 427. 
 
 in firoceedings under non-imprisonment act, 105-111, 428. 
 
 determined by date of demand of property, 113. 
 
 but demand must be followed up by warrant, 113. 
 
 lost by want of diligence, 428. 
 
 in supplevientary proceedings , 439. 
 
 determined by date of commencing them, 429, 433. 
 
 right to, determined on motion, 429. 
 
 commencement of proceedings, what is ? 429. 
 
 date of demand determines priority in proceedings under 
 
 § 2436, 113. 
 between proceedings and creditor's actions, 429, 436. 
 same rule in regard to the debtor's property, 429. 
 but not so, .as to alienated property, 429. 
 the rules in such cases, stated, 429, 430. 
 as to assets from property fraudulently transferred, 430. 
 subsequent creditors may share in such assets, when ? 433. 
 lost, if proceedings not diligently followed up, 434. 
 reward of diligence merely, 431. 
 in real property, 431. 
 lien of judgment lost, when ? 431. 
 from what date receiver's title vests, 365, 369. 
 Procedure, method of, to punish as for contempt, 234. 
 ^ Proceedings, Supplementary, definition of, 157, 158. 
 
 substitute of creditor's bill, wherein ? 
 
 20. 
 wherein superior to creditor's bill, 
 
 157- 
 the different provisions of, compared, 
 
 157. 158. 
 object of, 96, 157. 
 nature of, 96, 97, 157. 
 to collect taxes, 39, 41, 56, 60. 
 
6l8 GENERAL INDEX. 
 
 Proceedings, Supplementary, are special proceedings, 24. 
 
 more than mere process like execu- 
 tion, 25. 
 capacity of judge who acts in them, 
 
 33. 
 title of, 24. 
 kinds of, 11. 
 not abated by statute of limitations, 
 
 79- 
 those under § 2435 are conducted at 
 chambers, but not ordinary cham- 
 ber business, 33. 
 in what county instituted, 65, 84. 
 not necessarily, where debtor then 
 
 resides, 65. 
 orwherehehasa place of business, 84. 
 need not be in district in which judg- 
 ment was recovered, 84. 
 a justice of the Supreme Court may 
 institute anywhere in the State, 27. 
 any part of proceedings, except ex- 
 amination, may be had before him 
 anywhere in the State, 27. 
 within what time after judgment ren- 
 dered ? 64, 7g. 
 within what time after execution re- 
 turned, 79-80. 
 Proceedings on return of order, 128. 
 
 parties to wait a reasonable time, 140. 
 
 may then take the other's default, 141. 
 
 how default taken, 135, 141. 
 
 debtor to attend in person, 135-141. 
 
 but some one may appear for him, 135. 
 
 may be conducted throughout in debtor's absence, 135. 
 
 order of adjournment to be served on him, 135. 
 
 debtor to attend county judge at court-room when he 
 
 holds court (?), 141. 
 See " Continuity ;" " Adjournments ;" " Delay ;" " Ab- 
 sence of Judge, etc.;" "Examination." 
 those under § 2436, 104. 
 nature of, to aid execution, 105. 
 also before the same judges, 116. 
 on return of order — same as under § 2435, I2g. 
 See " Examination;" " Determination ;" " Relief;" "Re- 
 ceiver ;" " Priority." 
 
GENERAL INDEX, 619 
 
 Proceedings those by warrant of arrest, 117, 168, 255. 
 substitute for those by order, 86. 
 on return of warrant, same as on order, 117. 
 debtor to be discharged' if facts of affidavit are not 
 
 proved, 146. 
 will it be enough if concealment is proved? 120. 
 but his property, if any, may be disposed of as on 
 
 order (?), 145. 
 those under § 2441, 123. 
 nature of, 123. 
 special in their nature, 123. 
 bring third person into court, 127. 
 summary remedy against third persons, 124. 
 should be adopted in all proper cases, 127. 
 when they may be instituted, 127. 
 how those under § 2441, 123. 
 view held in country districts, 125. 
 " first district, 124, 125. 
 notice of, to the debtor, not necessary, 125. 
 may sometimes be advisable not to give notice, 125. 
 See " Parties ;'' "Judgments ;" " Executions." 
 the judge who may institute proceedings, 24. 
 See " Judge." 
 
 proof for order. See " Affidavit." 
 the order. See "Order." 
 on return of order, 128 
 
 examination may be taken in debtor's absence, 135. 
 extent of examination, 159. 
 property discovered, how applied, 313, 
 when interest claimed or debt denied, 330. 
 void, if debtor is dead when they are taken, 425. 
 in aid of attachment or execution, § 650, 487. 
 in what cases applicable, 488. 
 what must be shown for order, 488. 
 on return of order, 491. 
 See "Determination ;" "Contempt." 
 against foreign corporations, 492. 
 by referee. See "Referee." 
 to reach property by order under § 2446, 306. 
 See " Order ;" " Property." 
 appointment of receiver, 343, 352. 
 See " Receiver." 
 to enjoin. See "Injunction." 
 forcosts. See "Costs." 
 to enforce obedience to orders, 234. 
 
620 GENERAL INDEX. 
 
 Proceedings. Sec " Contempt, proceedings for." 
 to reach after acquired property, 482. 
 second or further proceedings, how obtainable, 482. 
 Process of subpoena in creditor's bill, 2. 
 
 supplementary proceedings, not merely, 14-16. 
 of commitment for contempt, 271. 
 what to contain and recite, 271. 
 order of commitment is, 271. 
 production of books and papers, 152. 
 Property which may be reached, 279. 
 
 what could be reached by a creditor's bill, 279. 
 the same is reachable by proceedings after return of execu- 
 tion, I 2435, 280. 
 what only, can be reached before return of execution, 104. 
 an interest as next of kin may be reached, 282, 289. 
 so an interest in contract to purchase real estate, 284. 
 property bought with another's money, but in debtor's 
 
 possession, may be taken, 289. • 
 goods and chattels, 289. 
 void assignment, 289. 
 membership in Board of Trade, 285. 
 alimony, 286. 
 judgment for tort, 288. 
 
 so rents and profits of real estate sold under execution, 252. 
 " right to redeem real property, 283. 
 " " of courtesy, 281. 
 
 ' dower, 281. 
 
 property out of the State is reachable, 283. 
 
 choses in action, being assignable, are reachable, 287, 
 
 damages to real property also, 288. 
 
 funds mixed with debtor's also, 289. 
 
 joint property, also, 287. 
 
 which cannot be reached, 290, 293. 
 
 pension money exempt, 2g6. 
 
 exempt from execution, 296, 381. 
 
 so a right of action or judgment for injuring it, 3S2. 
 
 so insurance, money for, 295. 
 
 so earnings within sixty days, 291, 2gg. 
 
 from what time this dates, 291. 
 
 what must be shown to exempt earnings, 293, 
 
 all other earnings reachable, 290. 
 
 acquired since proceedings begun, cannot, 188, 302. 
 
 when money earned, though not payable, may be reached, 
 
 2go. 
 money payable on a contingency not reachable, 303, 304. 
 
GENERAL INDEX. 62 1 
 
 Property fairly assigned not reachable, 304. 
 
 so corporate property, 2gi. 
 
 so right of action for personal tort, 305. 
 
 " " " general injury to debtor's estate, 305. 
 
 " resting in courtesy, 304. 
 
 so a watch, as necessary household furniture, 295. 
 
 so a bond and mortgage, upon which another has a superior 
 equitable claim, 305. 
 
 trust property not reachable, 280, 297. 
 
 title to it and income is in trustee, 280, 297. 
 
 and remains, though he delivers the income to the receiver 
 by order of court, during the litigation, 297. 
 
 what interest a cestui que trust has in such, 297. 
 
 surplus income may be reached, 297. 
 
 but not by order — by receiver and action, 280, 297. 
 
 trust estate for married woman, for what debt surplus in- 
 come may be reached, 298. 
 
 trust estate oi personal property, follows same rules, 298. 
 
 beneficial interest in trust estate, reachable, how ? 298. 
 
 may this interest be reached through receiver ? 297. 
 
 surplus of annuity is reachable, 298. 
 
 whole annuity reachable, when ? 298. 
 
 resultant trust may be reached, 298. 
 
 so when cestui que trust has control of trust, 298. 
 
 so when cestui que trust is also trustee, 298. 
 
 but what trust not reachable, 298. 
 
 money in hands of disbursing officer, 305. 
 
 what money or property reachable by order ? 279, 284. 
 
 must be of a kind that can be delivered, 280. 
 
 when receiver entitled to possession of, 280. 
 
 what cannot be delivered to him, 323. 
 
 delivery, how compelled, 280, 313. 
 
 fairly transferred by debtor, receiver no interest in, 376. 
 
 fraudulently transferred, what interest in, 379. 
 
 receiver taking possession of, 370. 
 
 " property subject to lien, 329. 
 
 see " Liens ;" " Priorities." 
 
 real estate not sold by receiver, 78, 281, 302. 
 
 Receipt to be given when money or property is delivered up, 315. 
 Receiver in creditor's bill, how and when applied for, 3, 346, 351. 
 
 how appointed ? 3, 402. 
 
 that debtor had no property, no objection, 3, 351. 
 
 in supplementary proceedings, 343, 352. 
 
622 ' GENERAL INDEX. 
 
 Receiver in what cases ? 344. 
 
 before return of execution, 347. 
 
 what is no answer to a motion for? 346. 
 
 when appointed, 352, 353, 355, 356. 
 
 See " Notice ;" " Motion." 
 
 notice to other creditors, 362. 
 
 length of notice, 363. 
 
 who must appoint ? 352. 
 
 fraud \n appointing, 358. 
 
 lien on debtor's property, 379. 
 
 vihen property vests in him, 365, 369. 
 
 with what he becomes vested, 279-292, 365. 
 
 from what time his title dates, 365. 
 
 after appointment, no action can be brought by subsequent 
 
 creditor to set aside fraudulent mortgage, 409. 
 from what time title of his successor dates, 380. 
 when entitled to possession of property, 370. 
 bond must be given with sureties, 361. 
 title extended by relation, 386. 
 
 cannot have possession of what property? 369, 374, 3S1. 
 exempt property, 381. 
 but may have injunction, 357, 406. 
 how may he get possession ? 357. 
 delivery of property to. See " Delivery ' and " Property.'' 
 
 " " how compelled? 313, 404. 
 
 assignment of property to. See "Assignment." 
 office of, 396. 
 powers of, 396. 
 as to property fairly alienated by debtor, has no more right 
 
 to, than debtor, 376. 
 as to property fraudulently alienated, has but the right of 
 
 the creditor, 284, 379, 410. 
 that is, the right to impeach the transfer, 284, 410. 
 his duties, 401. 
 
 is to serve notices and orders, on whom ? 402. 
 where to demand the delivery of property to him ? 403. 
 may appoint agent. See " Agent," 407. 
 how to take possession of property, 402. 
 
 " " " property subject to lien, 283. 
 as to bringing actions, and liability for costs, 410, 415. 
 should obtain leave to sue, and how obtained, 411. 
 cannot maintain action against trust estate, 297. 
 his privileges, cannot be sued without leave, 408. 
 may be made party to set aside fraudulent mortgage, 
 
 409. 
 
GENERAL INDEX. ' 623 
 
 Receiver was enjoined from selling property without order obtained 
 on notice, 409. 
 to give security for costs, 416. 
 was enjoined from interfering witli an action, i5i. 
 
 how he is to apply assets to payment of debts, 396. 
 
 see also "Order ;" "Judge." 
 
 in proceedings under § 2436, 343, 351. 
 
 special, in what cases appointed, 409. 
 
 his office and powers, 409. 
 
 is an officer of court, 471. 
 
 under whose control a receiver is, 471. 
 
 one only to be appointed, 364. 
 
 extended, 364, 380. 1 
 
 how priority determined if several appointed, 378. 
 
 not appointed in creditor's bill, when ? 6, 158. 
 
 should not be appointed herein, when ? 348, 351. 
 
 cannot sell real estate without order of court, 348. 
 Receivership, generally, 343. 
 
 often made a refuge for dishonesty, 358. 
 Re-examination before master in creditor's bill, 7. 
 
 in these proceedings, 145. 
 Referee, his appointment, 128. 
 
 must be sworn, 138. 
 
 may be waived, 139. 
 
 by whom appointed, 129. 
 
 appointed without notice, 129. 
 
 appointment discretionary, 129, 130. 
 
 when appointed in N. Y. Superior Court, 132. 
 
 in N. Y. Com. Pleas, appointed on judgments of what 
 courts ? 132. 
 
 power of, 132. 
 
 may be appointed to report evidence or facts, 129. 
 " " " " issue summons to debtor, 134, 212. 
 
 summons, how issued and served, 134. 
 
 may allow corrections to examination, 136. 
 
 cannot punish misconduct, 136, 235. 
 
 nor determine any questions, except as to the examination, 
 
 136- 
 may adjourn examination, 135, 140. 
 but not indefinitely, I35- 
 may do so in debtor's absence, 135. 
 what is good ground for adjournment, _35, 142. 
 may continue proceedings, and examine witnesses in debtor's 
 
 absence, 135. 
 absence of, examination falls through, 174. 
 
624 GENERAL INDEX. 
 
 Referee, who not to be a referee, 130. 
 changing referee, 130, 131. 
 absence does not discontinue proceedings, 174. 
 but not if appointed with power to issue summons, 212. 
 when appointed by a judge, has not power of master in 
 
 what? 134. 
 proceedings before, how conducted ? 140. 
 residence of, 129. 
 may be appointed in any county by Supreme Court justice, 
 
 1 29. 
 but cannot sit outside of jurisdiction of the appointing 
 
 power, 129. 
 report, to whom certified ? I2g, 133. 
 when appointed to ascertain facts, what to report ? 133. 
 filing report, 137. 
 appealiTom, how made ? 136. 
 Reference, in creditor's bill, to a master, 3. 
 
 to select or appoint receiver, 4, 134. 
 See " Master." 
 
 extent of examination on, 4, 40-145. 
 in supplementary proceedings, 128-137. 
 nature of, 132. 
 
 ordered in contempt proceedings, 257. 
 " on return of attachment, 257. 
 Relief, what may be granted in proceedings under § 2436, 104. 
 when can no relief be granted ? 146, 348, 351. 
 property transferred after demand may be recoverable by 
 receiver's action, 410, 411. 
 Remedies, concurrent, 11, 145, 481. 
 residence, 65. 
 Colorado and Indiana, 12. 
 nature of, 14. 
 Return of execution. See " Execution." 
 
 of warrant of arrest. See " Warrant." 
 
 " " "attachment. See "Warrant of Attachment." 
 
 restitution of money, 322. 
 
 res judicata, 482. 
 
 Seal, to warrant of attachment, or commitment, when issued by court, 
 252. 
 none is required when these warrants are issued by a judge, 251'. 
 none is required to a warrant of arrest, 252. 
 sheriff — duty and power under § 2448, 341. 
 Signature of clerk not required to warrants, when issued by a judge, 
 271. 
 
GENERAL INDEX. 625 
 
 Stay of Proceedings, 445. 
 
 will be granted, when ? 472. 
 
 appeal from judgment does not, 237. 
 
 who may grant ? 472. 
 
 stay on execution, no stay under § 294, 238. 
 
 taxes, 39, 94, 142. 
 
 substitute for creditor's bill, 20. 
 
 title of proceedings, 98. 
 
 Testimony of debtor may be rebutted, 48. 
 
 Time, when proceedings after return of execution may be taken ? 
 60, 76. 
 
 when proceedings against third party ? 80. 
 
 third party may be proceeded against alone, 18, 80. 
 
 trustees, 45, 94. 
 
 Undertaking, debtor maybe required to give, when ? 117. 
 
 Waiver. See "Irregularities." 
 Warrant of arrest, § 2436, 105. 
 
 nature of, substitute for order, 86, 106, 118. 
 
 improper to accompany it with order, 116. 
 
 affidavit for, must be positively sworn to, 119-121. 
 
 based on same facts as order it represents, 120. 
 
 between same parties, 120. 
 
 what judge may issue? 121. 
 
 may it be issued against a female ? 119. 
 
 based on similar facts as writ of ne exeat, etc., 119-121. 
 
 must contain what recitals and directions ? 116. 
 how issued, 121. 
 
 issued in name of people, 121. 
 
 directed to sheriff of any county, 86, 118. 
 
 issued without seal of court, 122. 
 
 no security required before issue^, 121. 
 
 may be issued after order, § 2438, 116, 122. 
 
 service by sheriff, § 2453, 122. 
 
 may be vacated or modified, 122. 
 
 irregularity in return, what is? 254. 
 
 return, and continuance before another judge, § 2434, loi. 
 
 returnable, not before referee, 122. 
 
 procedure on return of warrant, 117, 168, 255. 
 
 See " Proceedings.'' 
 
 of attachment, a mode of bringing party into court, 236, 250. 
 
 how and when issued, 252. 
 
 if by the court, how ? 252. 
 
 if by a judge, how ? 252. 
 
626 GENERAL INDEX. 
 
 Warrant, its recitals and directions, 253. 
 
 See " Contempt, Proceedings for." 
 of commitment, 271. 
 its recitals and directions, 271. 
 how issued by tlie court, 271. 
 " " by a judge, 271. 
 Witnesses, how compelled to attend and testify, 151. 
 by duces tecum subpoena, 151, 152. 
 wife of debtor may, 154. 
 
 commission cannot issue to examine out of the State, 154. 
 on what points witness may be examined, 152. 
 may be examined in proceedings under § 2435, p. 136. 
 " " " " " by warrant, 257. 
 
 " " " " " under § 2441, 148. 
 
 cannot be examined in proceedings under § 650, 491. 
 how punished for disobeying subpoena, 151, 213. 
 privileged from arrest, 155. 
 Woman, married, for what debts only may her trust interest be 
 
 reached ? iig, 298. 
 Writ. See " Warrant."