Lots' OJnrnf U Ham ^rlynnl IGibtary Cornell University Library KFN6065.R54 3 1924 022 787 091 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022787091 THE LAW Al^D PRACTICE PEOCEEDIN^GS SUPPLEMENTAEY TO EXECUTION TINDER THE ,NEW-YOEK CODE. WITH FORMS. BY DANIEL S. KIDDLE, 07 THE KEW-YOBE BAB. NEW-YORK: DIOSSY & COCKCROFT, LAW BOOKSELLERS, 71 NASSAU STREET, CORNER OF JOHN. 1866. Entered, according to Act of Congress, in the year 1863, Bt DIOSST & COCKCEOFT, In the Clerk's Office of the District Court of the United States for the Sonthem District of New York. J. H. TOBITT, i,ah) fxlitttr, SCO Peartrat. CONTENTS. FAOS INTRODUCTION. A Summary of the Creditor's Bill 1 CHAPTER I. PROCEEDINGS UNDER SUED. 1, OF § 292 OF THE CODE OF PRO- CEDURE. Seotios 1. Nature and Kinds of Supplementary Proceedings 8 2. Whomay entertain the prooeedingsundersubd. 1, §292? 12 3. By, and against whom, may these proceedings (subd. 1, § i92) be instituted f 17 4. On what judgment may the proceedings be instituted ?. . 19 On what executions ? 21 5. Within what time must the proceedings be instituted ? . 26 Within what county ! 28 6. The proof or affidavit to obtain the order 29 What facts are to be stated : 30 (a) for proceedings on a judgment of a court of record 30 (6) for proceedings on a judgment of an inferior court 32 7. The supplementary order 33 Thetitleof 33 Where made 34 What to contain 34 How served 36 Where served 36 8. The proceedings on the return of the order, in respect to their continuity 40 Adjournments .■» 41 Opening defaults 42 Delay in proceeding 43 Absence of the ofBoer 45 " " debtor 46 Adjournments to examine witnesses 46 9. The examination 47 Re-examination 48 10. The creditor's right to a discovery 49 The extent of the inquiry ' 51 IV CONTENTS. PAGE CHAPTER II. THE OTHER KINDS OF SUPPLEMENTARY PROCEEDINGS, AND OF WITNESSES, AND REFEREES, ETC. Sectiok 1. The proceedings under subd. 2, §292 57 Their nature 67 Who may entertain them 68 By and against ■whom may they be instituted 69 On what judgments' 69 " " executions 60 In " county 61 2. Proof required for the order 61 (a) that debtor has property 61 What kind 'Of property 63 (i) tliat he unjustly refuses to apply it on the judgment 65 3. Order under subd. 2, § 292 68 Proceedings on return of this order 69 Examination upon it 69 Kxtent of inquiry 70 The determination 71 Therelief 72 Receivership in these proceedings 73 Priority of creditors herein 74 4. The warrant under subd. 4, § 292 75 Nature of.... ^ 75 The proof required to obtain 76 No security 78 What the warrant must contain 78 What judge may issue it 79 Proceedings on return of 80 Priority 83 6. Payment by third person S3 6. Proceedings against third persons 84. Nature of the proceedings S5 Relation between §§ 292 and 294 86 Notice to the judgment debtor 87 By whom, and against whom, instituted 89 On what judgments 90 " " executions 91 Where examination to be had 91 What judge may make the order 12 The proof required for the order 93 7. The order un^er §294 95 Service of it ; 95 Proceedings on return of it 95 How property discovered may be applied 97 When these proceedings may be Instituted 98 CONTENTS. V PAOK Sectiok 8. Witnesses, and their attendance 99 Production of books, etc 100 Commission IM 9. Referee 101 By whom^ appointed 102 His powers 103 Proceedings before him 105 His report 106 CHAPTER III. THE PROPEETY WHICH MAT BE REACHED, AND THE MEANS OP REACHING AND APPLYING IT UPON THE JUDGMENT. Section 1. What property may be reached 108 2. What property cannot be reached, with some exceptions 1 1 3 What trust property may be reached 117 3. How property discovered may be reached and applied upon the judgment 122 First, by order under § 297 122 What property may be applied by § 297 124 4. Second, through a receiver laO His appointment, in what cases 131 When appointed 135 Notice for appointment 136 Manner of notifying 137 Motion, how made 139 Who must appoint 140 Under whose control is receiver 140 6. When the receiver is vested with the debtor's property . 141 The bond and security l-'S When entitled to the possession of property 145 What property cannot be delivered to the receiver . 145 Delivery of property, how compelled 147 6. Receiver's office 148 His powers 149 His duties 151 What notices he should serve 152 Taking possession of property 154 Taking property subject to a lien 156 As to bringing actions, and liabilities for costs 159 Special receiver 161 7. Liens 162 Priority among creditors 165 " in real property 169 8. Appointment of receiver by the court 171 Manner of appointing 173 His title to the debtor's real property 174 Vi CONTENTS. PAOX CHAPTER IV. SUBSIDIARY PROCEEDINGS, AND COLLATERAL SUBJECTS. Sbotios 1. Actions by the reoewer ^"^^ Injunotiona Nature of ^'^^ Injunction under § 299 ^"^^ What these injunctions restrain 18" 2. Costs IS* " 3. Enforcement of orders 188 Who may punish for contempt 189 What acts are punishahle 193 " 4. The method of procedure to punish as for contempt .... 196 (o) hy order to show cause 197 (6) hy attachment 199 Proceedings on return of attachment 201 The fine or penalty 204 Process of commitment 206 Enforcement of suhpena 208 " 5. Irregularities 212 Amendments' 214 Jurisdictional defects 215 6. The powers of the judge in supplementary proceedings 216 In commencing the proceedings 217 In adjourning and staying proceedings 218 In questions of residence and place of business 219 Has no power 221 His exclusive control 222 Opening defaults 223 Powers to punish disobedience of orders 226 " 7. Appeals: to what tribunal 230 In what cases an appeal lies 232 Who may appeal 233 " 8. To what extent court may intervene 234 Attorneys and counsel in supplementary proceedings 234 Second proceedings 236 Stay of proceedings 236 " 9. Proceedings in aid of an attachment or execution 239 CHAPTER V. or FORMS. Section 1 . For proceedings before examination 246 " 2. '■ on the " 260 " 3. " to apply property on the judgment .... 273 " 4. " in receivership 256 " 5. " to punish disobedience of process, &o. 4. 316 Indbx 343 Index to Forms 375 PEEFACE. I OFFER to the profession a Treatise on the Kules, 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 sub- ject ; and if this shall in any degree accomplish that result, I shall consider myself amply compen- sated. 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 prin- ciples 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 ; whilst others have been vari- ously construed in the different courts and districts of the State. These facts increase the labor of compUing a systematic and comprehensive work on this subject. As to the proceedings themselves, they are sim- ply proceedings in the original action — as much so VIU PREFACE. as provisional 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 capacity of actions by endowing them with a new attribute, an equitable power to aid the execution at ■ law in the enforcement of judg- ments. The investing of actions 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 in the same action. Hence, all orders, &c., made in sup- plementary proceedings, are really made in the action itself. The forms added to this treatise have been care- fully 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 many 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 refer- ence 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 imperti, sinon, his utere mecum." 128 Bkoadwat, New- York, ) T) R T? June 1 1866. f -!>'. D. Xt. INTEODUOTION. PEOCEEDINQS SITPPLEMENTAET TO EXECUTION. These proceedings are created by chap. 2, title 9, 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 proceedings. Hod- man V. Henry, 17 if. T. E., 482. Creditor's Bill. Supplementary proceedings, especially those instituted after return of execution, are a substitute for the ordinary creditor's bill of the Kevised Statutes ; that is, when such bill was filed m^ely against the judgment debtor and third persons to discover property belonging to the for- mer, and not also against third persons to set aside an as- signment, or transfer of property on the ground of fraud. Hence, the rules of the ordinary creditor's bill govern in these proceedings, so far as such rules are not altered by the Code or the practice under it. Sale v. Lawson, 4 8andf., 718 ; Orr's Case, 2 J.55., 457; 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 cred- itor's bill. ^ PRIORITY — LIEN. After the return of an execution unsatisfied in wliole or part, and after the time limited for its return, the judg- ment creditor filed his bill ia the Court of Chancery against the debtor. This bill was filed under 2 B. 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 imaginable kind of equitable property and interests as belonging 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 in- junction issue against him, and a receiver of his property be appointed. This complaint was filed in Court, and a subpoena an- swering to the summons under the Code, was obtained from the Eegister or Clerk of the Court, and served on the defendant. The suit was then commenced ; 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. Eawson, 1 ClarJc, 584; Corning v. "White. 2 Paige, 668; Fitch v. Smith, 10 Pmge, 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 afterwards assigned or ti-ansferred such assets, it was subject to this lien, which was good against INJUNCTION — RECEIVER — PREFERENCE. 6 all the world. The Insurance Company v. Power, 3 Id., 365; Hayden v. Bucklin, 9 Id., 512; Eoberts* t). The Albany, &e. E. E. (?o., 25 Barh., 662. But no lien was acquired by this means on leviable property. Lansing, &c. V. Easton, 7 Paige, 364. Injunction. The creditor also sued out an injunction against the de- fendant to prevent him from disposing of his property. This injunction was generally obtained and served with the subpoena. The return of the execution unsatisiSed 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 appointment of a re- ceiver that the debtor denied that he had any property. Brovming v. Bettis, 8 Id., 568. In fact, when an injunc- tion had been gi-anted, the Court made it the duty of the complainant to move for a receiver to take care of the prop- erty during the litigation. Osborn v. Heyer, 2 Id., 342 ; Bloodgood V. Clark, supra, 1 Barh. 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 assignment and delivery upon oath of aU his property, which was in his possession or under his control. The magter was author- 4. REFERENCE. ized to examine him and witnesses for the purpose of ascertaiiing the nature, value, situation and amount of the debtor's property, so as to detera^ne what person to appoint receiver, what security to require ; 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 con- fined to these objects, for this was its sole aim ; unless when the debtor's examination was taken as a substitute for an answer to the bill by stipulation imder the rule, when it extended to every averment in the complaint. Vide Browning w. Bettis, SM^ra / 1 Bmh. Oh. Pr., Gil. The hona 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 proceed- ing was to obtain a delivery of the debtor's property to the receiver — not to elicit evidence to enable the complainant 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 examination was therefore limited to discover what property belonged to the debtor, and was in his possession, or under his control. But within this lirait a large liberty was allowed to the investigation. It was held that public policy required such a course to be pursued ; that fraudulent debtors could not cover up their property by a mere general affi- davit that they had nothing ; and that an honest debtor had nothing to fear from a thorough investigation 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 entitled under REFERENCE. O 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 particidar acconnt, and the value of such property, to ena- ole the master to determine whether it was wholly exempt or not. "When the creditor filed the bill in aid of the ex- ecution, then he was entitled to a discovery of all the real and personal property which the debtor had at the time of docketing the judgment, although it was subsequently assigned or sold. Le Koy v. Eogers, 3 Paige, 234. Upon this interlocutory proceeding, " tne master decided what property was shown to belong to the debtor, and in his possession or under his control, and directed him to deliv- er the same to the receiver. If it was present, he ordered him to deliver it on the spot. If not, and it consisted of evidences of debt, personal ornaments, and like portable articles^ 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 efiects were ponderous articles, as furniture, the master appointed 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 un- der such order the debtor refused to deliver the articles, the plaintiff in the suit (not the receiver) applied to the Court for an attachment against the debtor as for con- tempt. On the hearing of the motion, 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 receiver to act, except under the specific order of the Court. Dickinson v. Yan Tine, &c., 1 Sandf. S. CL, 724. 6 ASSIGNMENT — ^NO RECEIVER. Assignment. The debtor was also required, under the direction of the master, to execute to the rec'eiver an assignment of all hia property, although the examination disclosed none, and the appointment of itself, it was held, vested in that officer all the personal property. Chipman v. Sahha,tan,7 J^aige, 47; Storm v. Waddell, 2 Sandf. Ch., 494 ; Porter -v. Wil- liams, 1 Code E. [iV. /S.], 144. The receiver, after com- pleting his appointment by giving the required bond, be- came 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. Brown- ing V. Bettis, supra. The master also inquired whether other like proceed- ings were pending against the debtor, or a receiver had already been appointed ; and if so, the complainant in such suit was notified of the proceedings before the master 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 Mecei/vers, 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 indefi- nitely, 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 NO RECEIVER. 7 master's power under the order of reference was spent. If the creditor after that desired a further examination or direction for the delivery of property subsequently discov- ered, he could only obtain it by applying to the court on proper affidavits and notice to the debtor. Hudson v. Plets, 11 Baige, 180 ; S. C, 3 JV. T. Leg. Obs., 120. After the receiver had the possession of the debtor's prop- erty, it remained in his care and custody until the final decree in the suit, when it was appropriated pursuant 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 appointment of a receiver, and an injunction ; and here nothing sub- stantially has been gained over the creditor's bill, except the injunction under § 299. CHAPTER I. PEOCEEDINGS XTNDEE STTBDIVISION 1 OF § 292. Section 1, Of the nature and kinds of supplementary proceedings. 3. Who may entertain the proceedings under subd. 1, § 293. 3. By whom and against whom instituted ? 4. On what judgment and execution ? 5. Within what time and county must the proceedings be instituted ? 6. Of the proof to obtain the order. 7. Of the supplementary order. 8. Of the proceedings on the return of the order as respect- ing their continuity. 9. Of Hie examination. 10. Of the right to a discovery, and the extent thereof SECTION I. Of the Nature and Kinds of Supplementary Proceedings. Nature. Upon the nature of these. proceedings there has been heretofore a diversity of opinion. In the Superior Court of the City of K^ev? York, and the Supreme Court of the nird and VlHth districts, all at General Term, it has been held that they are proceedings in the original action in which the judgment was obtained — a sort of equitable execution. Dresser v. Van Pelt, 15 How., 19 ; The President, &c. of the Bank of Genesee v. Spencer, Id. 412 ; Gould v. Torrance, 19 Id., 560 ; also, 3 Sand., 676 ; 2 Abb., 155. The Supreme Court 1st district at ■ General Term decided that an appeal in these proceedings must be taken to the district where the place of trial of the action was, and where the judgment roll is filed, the same as an appeal from the judgment itself (Mallory v. Gulick, 15 Ahb., 307, note;) which clearly indicates that the Court viewed these proceedings as being in the original action. For if they were special proceedings under Code, 8 NATURE OF SUPPLEMENTARY PROCEEDINGS. 9 § 3, or were independent of the original action, the appeal ■would lie to the district in which the proceedings are had. So, also, the Legislature, in the recent amendment to § 298, whereby they direct where the order appoint- ing a receiver should be filed and recorded, and under whose control that officer is to be, give a legislative con- struction that these proceedings are in the action, the same as the issuing of an execution at law, or the pro- ceedings for leave to issue one after the lapse, of five years. But Willaed, J. in Davis v. Turner, 4 How., 190, at chambers, regarded them as special pi'oceedings under Code, § 3. Vide also Campbell v. Foster, 16 Id., 275 ; Cleeke, J. In Grifiin i). Dominguez, 2 Duer, 656, at chambers, and Driggs v. Williams, Cleeke, J., also at chambers, 15 AUb., 477, they were held to be not mere process like an execution, but in their nature a new suit ; and that they (in Driggs v. Williams) revived a judg- ment the same as an action. However, so far as these four last cases may hold that supplementary proceedings are not in the original action, they are overruled by the later decisions above named in the same courts and dis- tricts. Yide also Allen w. Starring, 26 How., 57 ; Holstein V. Eice, 15 All., 307 ; S. C, 24 E(m., 135. All the more re- cent decisions lean so decidedly in favor of regarding these proceedings, especially those under § 292, as in the action, that this point may be deemed settled. The officer who entertains the proceedings, whether he is a member of the court or not, matters nothing, acts therein by virtue of this chapter as a judge does at chambers in an action. The proceedings bear the court title of the judgment ; and the officer is amenable by appeal to that court and no other. This is not an isolated case where a judge of one court performs duties in an action pending in another by statutory authority. County judges are constantly doing this. 10 NATURE OP SUPPLEMENTAEY PROCEEDINGS. Kinds of Procfeedings. They divide themselves into four kinds : Ist, those insti- tuted after the issue and return of execution, under sub- div. 1 ; 2nd, those instituted after the issue, but before the return of execution, under subdiv. 2 ; 3d, those com- menced by warrant of arrest under subdiv. 4 — all of § 292 ; and those against third parties under § 294. Al- though these four kinds of proceedings have some rules common to all, yet each one has others peculiar to itself. It is therefore necessary to treat them separately. We will take up first the proceedings instituted after return of execution, sub. 1, § 292 SECTION 293 OF THE CODE OV PROCEDTIEE. " (1) When an execution agaiast property of the judg- ment debtor, or of any one of the several debtors in the same judgment, issued to the sheriff of the county where he resides, or has a place of business, or, if he do not re- side in the State, to the sheriff of the county where a judgment roll, or a transcript of a justice's judgment for twenty-five dollars or upwards, exclusive of costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a of judge the court, or a county judge of the county to which the execution was issued, or a judge of the Court of Common Pleas for the city and county of Ifew York, when the execution was issued to such city and county, requiring such judgment debtor to appear and an- swer concerning his property, before such judge at a time and place specified in the order, within the county to which the execution was issued. (2) After the issuing of an execution against property, and upon proof by aiBda- vit, of a party, or otherwise, to the satisfaction of the court, or a judge thereof, or county judge, or any judge of the Court of Common Pleas for the city and county of New York, that any judgment debtor residing in the NATURE OP SUPPLEMENTARY PROCEEDINGS. 11 county where such judge or ofiBcer resides, has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same ; and such pro- ceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment, as are provided upon the return of an execution. "Whenever it shall satisfactorily appear, by affidavit, to a justice of the Supreme Court, that such county judge or judge of said Court of Common Pleas is incapacitated from acting in any of the proceedings what- ever herein authorized, from any cause or causes whatso- ever, such justice of the Supreme Court shall have the same powers and authority in all cases whatever as are herein conferred upon him as to cases of judgments in the Supreme Court. (3) On an examination under this section, either party may examine witnesses in his be- half, and the judgment debtor may be examined in the same manner as a witness. (4) Instead #Df the order re- quiring the attendance of the judgment debtor, the judge may, upon proof by affidavit or otherwise, to his satis- faction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant, requiring the sheriff of any county where such debtor may be, to arrest him, and bring him before such judge. Upon being Brought before the judge, he may be examined on oath — and, if it then appears that there is danger of the debt- or's leaving the State, and that he has property which he has unjustly refused to apply to such judgment, ordered to enter into an undertaking, with one or more sureties, that he will from time to time attend before the judge, as he shall direct, and that he will not, during the pendency of 12 WHO MAT ENTERTAIN the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such imdertaking, he may be committed to prison by warrant of the judge as for a contempt. (5) No person shall, on examination pursuant to this chapter, be excused from an- swering 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 conveyance, assignment or transfer of his property for any pm-pose ; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution." This section has been amended some five diflerent times. In 184:9 and 1851, subdivisions 2, 3 and 4 were added. In 1858 the clause, " or has a place of business," was in- serted. In 1869 was added the clause authorizing a jus- tice of the Supreme Court to act in the stead of a county judge, or &c. wnen the latter was incapacitated. In 1863 the last sentence beginning with the words, " Nor shall he be excused from answering," &c., was added. SECTION n. Who may entertain the proceedings under subd. 1, § 292. I. They can only be had before a judge out of court as a separate judicial officer. His jurisdiction once acquired is exclusive, and contiaues until the examination is com- pleted, and all orders made in respect to the property of the judgment debtor or otherwise are fully executed. No other judge at chambers can interfere or mate any con- SUPPLEMENTARY PEOCEEDINGS. 13 fanning order in them. Webber v. Hobbie, 13 Sow., 382 ; Hulsaver v. "Wiles, 11 Id., 446 ; The President, &c. of the Bank of Genesee v. Spencer, 15 Id., 14. Seejpost, ch. 4, § 6, under " The judge's exclusive control." Nor can the Court entertain these proceedings. Miller v. Eossman, 15 ^ow., 10. The above rule that the judge has the exclusive control of the proceedings, has some exceptions and qualifications, as follows : (a) In the first judicial district proceedings commenced before one judge may be continued before another of the same court, with the same effect as if commenced before him. Code, § 27. The justices of the Superior Court of the city of Buffalo have the same power. 3 H. S. [5th ed.], p. 336, § 127. For such a continuance, it is only requisite that the latter justice shall be at the time and place de- signated, instead of the ofiicer who instituted the proceed- ings, and be discharging his duties. See Dresser v. Van Pelt, 15 How., 19. (b) So also, it is held, that if these proceedings are in- stituted before an officer, as a county judge, who during the pendency thereof, goes out of office, they may be con- tiaued before his successor. For if they are in. continua- tion of the ordinary proceediags in the suit, and regarded as a part thereof, they may be so continued as being sim- ply successive steps in the orderly progression of the ac- tion toward its final consummation. Or if they are regard- ed as special proceedings, then they may be so continued by authority of the statute : Ji. S., part 3, ch. 3, tit. 2, art. 2, § 51. Yide Holstein v. Kice, 15 Abb., 307; S. C, 24 Bow., 135, Supreme Court. In this case proceedings had been commenced before a county judge, and in the progress thereof a motion was made for an attachment against the debtor as for contempt, for refusing to answer a question. But the county judge went out of office before he could 14 WHO MAY ENTERTAIN dispose of the matter. The court held that his successor had the power to continue the proceedings and to punish the contempt. In deciding this case the court said that the proceeding on the attachment was not simply to pun- ish the debtor for his contempt of an order, but to enforce the plaintiff's right and collect his judgment ; that the lat- ter was entitled to an answer to the question, and there- fore to hold that the proceedings had abated by the offi- cer's retiring from office, would be manifest injustice. (c) So also the amendment of 1859 to § 292, that when the county judge, or a judge of the New York Common Pleas, is incapacitated from acting in any of the supple- mentary proceedings, &c., a Supreme Court justice shall have power to act therein, seems broad enough to embrace a case where such county judge, or &c. becomes incapa- citated after the proceedings have been commenced ; and if so, they may be removed to and continued before a justice of the Supreme Court. (d) Further, by Code, § 404, a judge having charge of these proceedings, and being unable to hear a motion therein returnable before him on notice or order to show cause, may, it seems, transfer the hearing to another judge. But if this can be done, the transfer must be to a judge of the same court, and who could have originally entertained the proceedings. n. The following officers may entertain these proceed- ings : ' '^ First. Any Supreme Court justice may entertain them •on a judgment in his own Court, and also on such final decrees of the late Court of Chancery as are not yet out- lawed ; because the Supreme Com-t has succeeded to all the powers, duties and business of the Court of Chancery and the chancellor. The justice may make the order institut- ing the proceedings in any part of the State. Bingham v. SUPPLEMENTARY PROCEEDINGS. 15 Disbrow, U AU., 251; S. C, 37 Barh., 24. But tMs would often lead to mueli inconTenience inasmticli as all tlie subsequent proceedings except the examination ■whicb may be referred, would have to be conducted be- fore him (save in the first district), and he might reside in a distant county. (a) Before the amendment of 1859 to § 292, a Supreme Court justice could not entertain proceedings on a judg- ment not in his own court. Stright v. .Yose, 1 Code B. (N. S.), 79, note. Blake -y. Locy, 6 How., 108 ; Hersen- heim V. Hooper, 1 Duer, 594; S. C, 11 N. T. Leg. Ols., 222. But by that amendment he is authorized to act in the place of a county judge or a judge of the N. T. Court of Common Pleas, in any of the proceedings whatever authorized by section 292 in which such judge could act, when it is made to appear to his satisfaction by affidavit that such judge is incapacitated from acting. And in such a case he has the same power that he possesses in pro- ceedings on a judgment of his own court. Second. Any justice of the Superior Court of the city of New Tork or of Buffalo, may entertain these proceed- ings within his city, but, as to the Superior Court of the city of New York, only on judgments in his own court. Third. Any judge of the Court of Common Pleas for the city and county of New Tork, may entertain these pro- ceedings within that city, (a) on a judgment in his own court ; (b) on a judgment in the Supreme Court. Section 292 gives him this power, though in practice it is hardly known ; since proceedings in the first district are always taken be- fore a justice of the Supreme Couft upon a judgment in that court. There is scarcely an exception to this prac- tice. So also this section gives a judge of the Common Pleas the power to entertain the proceedings on a judg- ment of the Superior Court of that city. But it is not practiced, (c) Upon a judgment rendered in the Marine 16 WHO MAT ENTERTAIN or a district court of the city of New Tork, and docketed in the county clerk's office, (d) Upon a judgment recov- ered in any local court outside of that city, when the same has been docketed in the county of New Tork, and (e) upon a judgment entered on a recognizance forfeited in a court of criminal jurisdiction iu the city of New Tork. 3 R. S. [5th ed.], p. 790, §§ 46 and 48 ; and Session Laws ofl854, chap., 198, p. 464, § 6. Fourth. Any county judge may entertain the proceed- ings within his county, (a) on a judgment in his own court, (b) on a judgment of the Supreme Court ; (c) on a judg- ment rendered by a justice of the peace, or in a justice's court of a city within his county, and docketed with the clerk of the county ; (d) on a judgment of any other local court in the State, which has been docketed in his county, whether such court is situated there or not. Fifth. The Recorder of the city of Troy may entertain the proceedings within his city, (a) on a judgment in his own court ; and (b) upon any other judgment on which the county judge of his county can entertaiu them. The Mayor of that city may act in these matters instead of the Ee- corder, in the absence or inability of the latter, and with the same authority. 3 R. 8. [5th ed.],p. 323, § 46 ; Hay- ner v. James, 17 If. Y., 316 ; in effect overruling Griffin V. Griffith, 6 How., 428. No express power, however, is given the mayor to continue the proceedings commenced by the recorder. But see Holstein v. Eiee, swpra. Sixth. The Recorder of the city of Oswego may enter- tain the proceedings within his county, (a) on a judgment in his own court ; and "(b) upon any other judgment on which the county judge bf his county can entertain them. 3 R. S., [5th ed.] p. 344, § 168 ; or Session Laws of 1857, chap. 96, p. 203, § 4. Seventh. The judge of the city court of Brooklyn may en- tertain these proceedings within his city on a judgment in SUPPLEMENTARY PROCEEDINGS. 17 his own coiirt. But it has been held that he cannot enter- tain proceedings on a judgment not. in his own court. Cushman v. Johnson, 4 Aib., 256 ; S. C, 13 ITow., 495. This decision was made at special term Supreme Court 1857. The learned Justice bases his decision on t^vo grounds ; that the legislature have not the constitutional power to invest the city judge of Brooklyn with jurisdic- tion in such cases ; and that in fact the legislature have not done it. The first position however is overruled in Hayner v. James, supra; the second is sustained by Blake V. Locy, supra. Eighth. Any recorder of a city, or Mayor of a Mayor's court, may, within his city, entertain these proceedings on a judgment in his own court. But in the city of New York, the Mayor and Recorder, although members of the Court of Common Pleas by statute, have long ago ceased to sit in that court or to exercise any judicial functions of a judge thereof. But iri all the preceding cases, the execution must have been issued to the proper county as prescribed on p. 21, post^ and the examination must be had therein. As supplementary proceedings are in no sense identical with ordinary chamber business, the granting of the powers of a justice of the Supreme Court at chambers to an officer, does not authorize him to entertain these proceed- ings. So held in Cushman v. Johnson, supra. BBOTION III. By a/nd against whom may these proceedings he insti- tuted ? I. By whom ? Any judgment creditor, be he the plaintiff or the de- fendant in the original action, or a corporation, may insti- 18 BY AND AGAINST WHOM INSTITUTED. tute the proceedings. So also may the assignee of the judgment, whether he is such by a special or a general assignment, or by law, as a receiver ; and although he be- came such assignee after the return of the execution. Orr's Case, 2 Abb., 457; Eoss v. Clussman, 3 Sandf., 676. The personal representatives, duly appointed, of a de- ceased judgment creditor, may also institute these pro- , ceedings. Vide Code, § 283, as amended in 1866. It was otherwise before this amendment. See "Wheeler v. Dakin, 12 Row., 537 ; Jay v. Martine, 2 Duer, 654. II. Against whom ? They may be instituted against any person, against whom a money judgment can be enforced by execution, including married women — with the exceptions which wiU be hereafter mentioned. Vide Thompson v. Sargent, 15 Abb., 452, as to married women, decided since sections 274 and 287 of the Code have been amended. Williams V. Carroll, 2 Hilt., 438, to the contrary, made prior to those amendments, must be regarded as overruled on this point. ■ (a) But they cannot be taken against a corporation as a judgment debtor. Hinds v. Canandaigua and Niagara Falls E. E. Co., 10 Row., 487; Hammond v. The Hudson Eiver Iron &c. Co., 11 Id., 29 ; Sherwood v. The Buffalo and New York City E. E. Co., 12 Id., 136. The winding up of a corporation and the distribution of its assets after execution has been returned unsatisfied, are imder the ex- clusive control of the Eevised Statutes. Yide 2 H. S., p. 463, §§ 36, et seq., and Code, § 471. In Com-tois v. Har- rison, 1 Rilt., 109; S. C, 3 Abb., 96 ; 12 Row., 359, it was questioned whether this statute included other bodies, such as stock companies, so as to exempt them from pro- ceedings under § 292. ON WHAT JUDGMENTS, ETC., ISSUED. 19 (b) Nor can the proceedings be instituted against a debtor while he is under arrest on execution against Ms person, issued upon the judgment. Logan v. Ferris, 1853, per Daly, J. , The reason is, that the taking of the body in execution is a satisfaction of the judgment, so long as it continues, and prevents further proceedings upon the judgment. Cooper v. Bigalow, 1 Cow., 56 ; McGuinty v. Herrick, 5 Wend., 240 ; Chapman v. Hatt, 11 Id., 41." No creditor's bill could be filed while the debtor was charged in execution. Stillwell v. Epps, 1 Paige, 615. But in case the debtor be discharged from arrest under the law of 1857, or the execution set aside for irregularity) the proceedings may be taken against him. Daly, J., swpra. (c) Neither can they be taken against a foreign consul although he permitted judgment to be recovered against himself. He and all foreign ministers are under the ex- clusive jurisdiction of the Federal courts. GriiBn v. Do- minguez, 2 Duer, 656, supra. SECTIOlf IV. On what judgments and executions ? I. WTiat judgments ? The proceedings may be taken upon any judgment or decree of any court of this State, which directs the pay- ment of a sum of money as the whole or a part of the re- lief granted ; provided the debtor can be proceeded against as above stated, and an execution can be issued thereon to a sheriff; and with the exceptions which will now be men- tioned. (a) If the judgment is of an inferior court, it must be for at least twenty-five dollars exclusive of costs, and must have been docketed into a court of record by filing and docket- ing a transcript thereof with the clerk of the county where it was rendered. Conway v. Hitchins, 9 Ba/rb., 378 ; Vulte V. Wliitehead, 2 Rilt., 596; Butts v. Dickinson, 12 20 ON WHAT JUDGMENTS ISSUED. AU., 60 ; S. 0., 20 Sow., 230 ; Anon., 33 Barh, 201 . overruling Oondee v. Gundelsheimer, lY How., 434, whicli limited the twenty-five dollar condition to judgments against non-residents of the State. Proceedings may be taken upon a judgment of a court of record irrespective of its amount. Bennett v. Doody, Sp. Term, N. Y. Trans, cript, Deo. 8, 1860 ; 2d Vol. TilUnghast c& Shearman) a ^Practice, f. 855. Because such a judgment is a lien on, and may be enforced against real estate, whatever- its amount. (b) The proceedings may also be taken upon a judg- ment recovered in an action against joint debtors in which the summons commencing the action was not served on all 'the defendants ; but only so far as to reach the joint prop- erty of all, and the separate property of those served with the summons and the order herein. Amendment of 1863 to § 294. But prior to this amendment it was held that this could be done, and without naming the defendants not sei-ved with the summons (Emery v. Emery, 9 How., 130) ; and though the judgment was recovered before the Code, and the execution issued since. Jones v. Lawlin, 1 Codo B., 94 ; S. C, 1 ISandf., 722, But only those served with the summons can be served with the order instituting the proceedings. (c) It has also been held that these proceedings may be instituted to collect the interest and disbm-sements of a judgment when the damages only have been paid. N, Y. Com..,Pleas, Genl. T., Johnson v. Tuttle, 17 Abh., 315. (d) But they cannot be taken on a judgment of a Federal Court, although such court is located in this State. No creditor's bill could be filed on such a judgment. Tarbell V. Griggs, 3 Paige, 207. (e) But query, can they be taken on a judgment of thia State, when the summons was served by publication and there was no appearance 2 This question was raised but ON WHAT EXECUTION ISSUED. 21 not passed upon in Barker v. Jolmson, 4 Ahb., 435. The test no doubt is this ; Can an execution issue on such a judgment against property generally ? If not, then nei- ther can supplementary proceedings be instituted. (f ) They can also be taken on such decrees of the late Court of Chancery, and judgments of the old Supreme Coiu-t and the Courts of Common Pleas of the diiferent counties, as are not yet outlawed. (g) They can also be taken on judgments entered in the city and county of New York on recognizances forfeited in the criminal courts of this county. See ante, § 2, p. 16. II. On vrhat execution ? The execution upon whose return supplementary pro-.. ceedings may be instituted, must be issued out of a court of record to the sheriff, or, if he is a party or interested, to a coroner of the county, where the debtor at the time resides, or has a place of business, or if he does not reside in the State, to the sheriff, (or coroner, as above stated) of the county, where the judgment roll or the transcript of the justice's judgment, is filed. The transcript here spoken of is that obtained from the justice or clerk of the inferior court, in which the judgment was rendered, and which is filed with the clerk of the county where the court is located. But since the amendment of 1858, if a debtor though a non-resident, has a place of business in this State, the execution should be required to be issued to thq county where his place of business is, in order that the sheriff may make a demand of him and thus truly exhaust the legal remedy. (a) It must be an execution against both real and per- sonal property to collect a definite sum of money. Hence no proceedings can be based on an execution issued, to a constable or marshal. Such execution does not reach real property. Dix v. Briggs, 9 Paige, 595. 22 EXECUTION MUST BE RETURNED — "WHEN. (b) Nor can proceedings be based upon an execution issued for the delivery of the possession of real or personal property merely, unless it also requires the officer to collect a definite sum of money out of the debtor's property for costs, damages, rents or profits, which were recovered by the same judgment. (c) It must be a valid execution. Hence for instance, if it be issued without leave of court where that is neces- sary, no proceedings can be instituted. Eelknap v. Has- brouck, 13 Ahi., 418, note. However, the objection on this ground may be waived by the debtor, and is waived if not taken in season. It is personal, and no one else can avail himself of it. It has been held when an execution was issued and re- turned wholly unsatisfied upon a judgment for six hundred dollars, which was afterwards reduced in amount, and both the judgment roll and the retm'ned execution were amended in that respect, it was not necessary to issue a new execution to entitle the creditor to supplementary proceedings. N. T. Superior Court, 1858, (Sluyter v. Smith,) Voorhies' Code, 1860, p. 405. (d) Proceedings may also be taken upon an execution issued before the Code. Dickinson v. Cook, 16 JBarb., 509 ; Contra, Anon., 3 Duer, 673 ; where the execution was both issued and returned before the Code went into eflect. Whea returnable. The eiecution cannot be made returnable in less than sixty days, nor can the sherifi" be compelled to return it inside of that time. Spencer v. Cuyler, 17 Row., 157 ; S. C, 9 All., 382; also 1 E. D. Smith, 414. Must be returned. The execution must be returned and the creditor's legal remedy really exhausted before supplementary proceed- EXECUTION RETURNABLE WITHIN SIXTY DAYS. 23 ings can be commenced. But in Jones v. Porter (6 How.^ 286), the sheriff endorsed the return nulla, lona upon the execution, and sent it by a person to the clerk's oflBce to be filed. The bearer however neglected to deliver it there until four o'clock in the afternoon of the same day. In the meanwhile the plaintiff's attorney having reason to suppose the execution had been returned, made an affi- davit and obtained a supplementary order some two hours before the execution was. actually delivered to the clerk. This was held 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. Sixty Daya. The officer having the execution need not keep it sixty days, but he may return it at any time within that period, and proceedings may be taken thereupon immediately. For he is presmned to have done his duty in searching for property. Spencer v. Cuyler, supra; Farqueharson v. Kimball, 9 AU., 385, note; S. C, 18 How., 33, citing and approving of Livingston v. Cleveland, 5 Id., 396 ; En- gles V. Bonneau, 2 Sandf., 6T9 ; Tyler v. Whitney, 12 Alh., 465 ; S. C, sub mm. Tyler v. Willis, 33 Barl., 327; Fen- ton V. Flagg, 24 How., 499 ; Forbes v. Waller, 25 JST. T., 430. And this is so, though the sheriff made no demand of the debtor, and there was property which he might have taken and sold. For the return, so long as it stands, is conclusive in supplementary proceedings. Fenton v. Flagg. The above authorities, Spencer v. Cuyler, and Farque- harson V. Kimball, also hold, that when the sheriff returns the execution unsatisfied before the expiration of sixty days, pursuant to the plaintiff's or his attorney's instruc- tion or solicitation, without a real attempt to effect a levy such return will be deemed the act of the party, and not 24 EXECUTION, WHEN EETUENABLE. the oiScial act of the sheriif ; and that the proceedings will be set aside upon motion when this fact is made to appear to the judge. This is on the ground that such a return is a nullity. The same views were held in Pudney v. Grif- fith, 15 Bow., 410 ; S. C, 6 Ahi., 211, Supreme Court, First District ; and Nagle v. James, 7 Id., 234, New York Supe- rior Court. Also, Fenton v. Flagg, 12 JV. Y. Leg. Ols., 158 ; 1 Code R., 85 ; 106 ; 107. These authorities hold that the judge having charge of these proceedings may in- quire into the character of the return of the execution, and thereupon dismiss the proceedings if such return was fraud- ulently obtained by the creditor. But the New York Court of Common Pleas at general term has denied this power to the judge, and held that he cannot go behind the return, no matter how it was made ; but so long as the return stands, the creditor is entitled to the proceedings ; and further, that the return can only be impeached by a direct motion made to set it aside, and not collaterally upon these proceedings. Sperling v. Le- vy, 10 Aib.,4:2Q. See also Owen v. Dupignac, 9 Id., 180, same court. The Supreme Court at general term in the First Dis- trict recently cited and adopted the rule announced in the above cases in the Common Pleas, and also held that the return can only be impeached by a direct motion made to set it aside. See also the opinion of Smith, J., in Forbes V. Waller, 25 iV. Y., 430, on this point — in which, how- ever, the other judges did not concur, but expressed no opinion. This last rule is more consistent with the prac- tice in other respects, but it is sometimes attended with in- convenience, by compelling the debtor to go to a distant county or city, to obtain relief against a fraudulent return. The rules which govern in this matter are then these, in a word : In the Supreme Court of the Fii-st District, at least, and in the Common Pleas, the debtor must apply to MOTION TO SET ASIDE RETURN. 25 the court in whicli the judgment was rendered, or into which it was docketed, for relief against a fraudulent or improper return of the execution, by a direct motion to set the same aside. He can of course procure a stay of the proceedings until he can make such motion. In the Su- perior Court of the city of New York, the justice enter- taining the proceedings will, upon motion, inquire into the lona fides of the return, so far as it involves the acts of the creditor, and, if it appears that the latter improperly procured the return, dismiss the proceedings. But if the sheriif alone is guilty of mistake or misconduct in his pro- ceeding upon the execution or in its return, or there is any other irregularity, the debtor must apply to the court by a direct motion to set aside the return, which when granted, will necessarily carry along with it the proceedings. It is, however, well settled by the above cases that no supplementary proceedings will be tolerated under the first subdivision of § 292, when the return to the execution is fraudulent or improper, as previously stated. The only question between them is, how the debtor shall avail him- self of this objection. This motion to set aside the return, or the proceedings, must be made in due season ; for the debtor can waive this objection to the return, and he does waive it if he does not raise it at the first opportunity. Bingham v. Disbrow, 14 Ahh., 251 ; S. C, 37 Barh., 24. This objection is personal with the debtor, and no one else can raise it, especially if he does not. Id. But wiU not this rule in many cases work great injustice to other creditors by enabling the debtor and a friendly creditor to conspire and thwart antecedent creditors by procuring the return of the former's execution ahead of theirs ? A witness upon appeal from an order punishing him as for contempt, cannot object to the regularity of the execu- 28 RESIDENCE AND PLACE OP BUSINESS OF DEBTOR. tion, no objection having been made before. People v. Marston, 18 Ail., 258. Residence of the Debtor. Tbe residence of the debtor referred to in § 292 is de- fined by the same rules as the residence of a party to an action. Place of Busiuess. In McEwan v. Burgess, the N. Y. Superior Court at Spe- cial Term held, that it is sufficient if the debtor has a place of business within the county, although his principal place of business and his residence are in another. Yide 15 Id., 473 ; S. C, 25 Eow., 92. The contrary, however, was held on a similar state of facts at the Supreme Court Chambers, 1st dist., Belknap v. Hasbrouck, supra. SECTION V. Withm what time and in what County are the proceed- ings to ie instituted f Within what Time ? (a) As to the judgment, they may be taken any time within twenty years after the recovery thereof, (b) As to the execution, they may be taken immediately upon the due return thereof. Livingston v. Cleveland ; Engle 4). Bonneau ; and Farqueharson v. Kimball, supra. Also Forbes v. Waller, supra. Sherwood v. Littlefield, 1 Code R., 85, is overruled by these cases. As to how long after such return, the proceedings may be instituted, it was held in Currie v. Noyse, 1 Code R. [N. S.], 198, v/here an execu- tion had been issued and returned unsatisfied within five years from the recovery of judgment, that no supplement- RESIDENCE OP DEBTOR. 27 ary proceedings could be maintained after five years from such return. In Miller v. Eossman, 15 How., 10, in the same court, the justice disapproved of the above decision, and declined to apply it to the case then before him, in which the execution was issued within five years from the entry of judgment, and proceedings were taken within five years after return of execution. Both these decisions were made before the amendment to Oode, § 28i, dispensing with leave of Court to issue execution, when one has been is- sued within five years. In Owen «. Dupignac, 9 AUb., 180, proceedings were instituted about fifteen years after return of execution. It was held that the proceedings were valid, and that there was no time limited within which they must be commenced after return of execution. This was made after the above-named amendment. Daly, J., who delivered the opinion of the Court in this case, bases his decision upon the rule in chancery which permitted a creditor's bill to be filed any time within ten years after such return (vide Corning v. Stebbins, 1 Barb. Ch., 589), and he speaks as though the proceedings in this case were taken only ten years after return of exe- cution. Beady, J., dissented because the execution had been returned fifteen years previously. Vide also Belknap v. Hasbrouck, supra, in which an execution had been issued fifteen years before the proceedings were taken ; but it did not appear to have been returned unsatisfied. A new exe- cution was issued without leave of court. Held that the creditor must show, either that the first execution had been returned unsatisfied, or that the second execution had been issued by leave of court. The courts and judges are inclined to give the words, " at any time after such return made," in § 292, their natu- ral meaning, and to hold that proceedings may be taken any time after return of execution, so long as the judgment 28 IN WHAT COUNTY PROCEEDINGS MAY COMMENCE. is still alive, wlietlier such return was made ten or nineteen years before. lu xyhat County ? The proceedings must be instituted in the county to which the execution, as before stated, was issued. Her- senheimer v. Hooper, 1 Dtier, 594. It is lield that it is immaterial in what county the debtor resides when the proceedings are commenced ; that the place of i*esidence spoken of in § 292 refers only to the time of issuing the execution. Binsrham v. Disbrow, at general term, 14 Aib., 251 ; S. C, 37 Barh., 24. " Otherwise," says the court, " the debtor could constantly defeat his creditor. He need but move into another county during the running of the execution to prevent supplementary proceedings." Vide also McEwan v. Burgess, supra ; and Jessup v. Jones, Supreme Court, N. Y. Daily Transcript, June 20, 1864. All these cases are in the first district. Wilson v. Andrews, 9 How., 39, is not in conflict with these au- thorities ; for in the latter the debtor was required to ap- pear in a county where he did not reside when the exe- cution was issued. A like rule as the above obtained in filing a creditor's bill. Varick v. Dodge, 9 Paige, 149; 2 Barb. Ch. Pr., 152. The same construction and rea- sons apply as well to the debtor's place of business as to his residence ; and equally to his non-residence in the State, referred to in § 292 ; so that if he was a non-resi- dent at the time execution was issued, the condition would be fulfilled, although at the time of instituting the proceedings, he had become a resident of the State and of anotlier county. But it seems that any part of these proceedings except the examination, when instituted before a justice of the Supreme Court, may be had by him in another county than that to which the execution was issued. In re Smethurst, 2 Sandf., T24 ; 4 How., 369. PROOF OF AFFIDAVIT. 29 SECTION TI. Of the proof or affidavit to obtain the order. The proof of the facts necessary to procure the order for the examination of the debtor, is furnished by aiBdayit, and may be made by the creditor, or his attorney or his agent, who has the collection of the judgment. Conway V. Hitchins, 9 Barh., 378. In short the aiBdavit 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 creditor, or assignee, or attorney, &c. ; or, if he is neither, that he is acquainted with the facts, and how he is so acquainted, and that the affidavit is made at the request of, or procured by the creditor or owner of the judgment or his agent. It must appear be- fore the judge that the affiant is in a position to know the facts which he states, and that he is not an intermeddler, but authorized to make the affidavit. If he is not in some such way connected with the matter, his affidavit will not give the officer jmisdiction to institifte the proceedings ; and the order obtained upon it will be set aside on motion — especially where neither the plaintiff in the judgment nor his attorney, appears in the proceedings. Lindsay v. Sherman, 1 Code E. [N. S:\, 25 ; Hough v. Kohlin, Id., 232; Frederick v. Decker, 18 How., 96. When the judgment is of a court of special jurisdiction, the facts conferring jurisdiction need no more be stated in the affi- davit than in a pleading. Conway v. Hitchins. It will not do to allege residence or place of business and non-residence in the alternative ; as, for instance, that the debtor resided in the county when the execution was issued, or was a non-resident of the State. But residence and place of business, or non-residence and place of business may be jointly alleged. 30 PROOF OF AFFIDAVIT. As to joint debtors. AlthoTigli according to Emerj v. Emery, stipra, it is unnecessary to make those defendants of joint debtors, parties to these proceedings who were not served with the Bnmmons"'in the action, yet the affidavit should refer to the judgment as it is entered — ^to be enforced against the joint property of all and the sepai'ate property of those served with the summons ; and that the execution was so issued. ■\WTiat Facts. The first subdivision of § 292 prescribes merely the gene- ral facts. But the decisions and the practice have sup- plied the details, mainly drawn from the rules of the cred- itor's bill. It is, however, sufficient to assert the general facts of judgment rendered, and execution issued and re- turned, etc., directly, without going into minor details. TTpon Judgments in Courts of Record. The affidavit must state the parties in whose favor, and against whom the judginent was rendered. It is the best way to give the names of the parties and the Court in which the judgment was recovered, or into which it was docketed, in the title, of the affidavit. "When the judgment has been assigned, the assignee is sometimes substituted for the judgment creditor, and the proceedings are taken in his name. But it seems to me, that if these proceedings are in the origiaal action, there should be a substitution by order of Court. It is held in the Superior Court of the city of New York, that the proceedings are properly brought in the name of the judgment creditor, notwith- standing the assignment. Eoss v. Clussman, 3 Sand/., 6T6. The affidavit or proof must state in what com't, and where the judgment was rendered, and for how much, damages and costs ; the county or office where the judgment roll is filed, and if it was necessary to file a transcript in a county AFFIDAVIT TO OBTAIN OBDEE. 31 clerk's ofiSce, the time and place of filing it ; also that an execution against the debtor's property was issued to the sheriff of the county where the debtor then resided or had a place of business, or where the judgment roll or tran- script of the justice's judgment is filed, if the debtor was then a non-resident of the State ; and that it has been re- turned whoUy or partly unsatisfied; and that the judg- ment remains wholly unpaid, or if partly paid, the amount yet unpaid. The statute does not expressly require this last averment, but the creditor's bill did by chancery rule 189, and the practice follows this rule. The date of issu- ing the execution should be given, or it should at least be alleged to have been issued after the judgment was dock- eted in the same county ; and where more than five years have elapsed since the recovery of the judgment, that it was issued within that time, or by leave of court. (a) The aflSdavit must truly describe the judgment, and state all the facts that are necessary to give jurisdiction to the judge who makes the order. If it does not, the pro- ceedings must be dismissed if the objection is made at the first opportunity. The defect of not describing the judg- ment correctly cannot be remedied by amendment. It goes to the jurisdiction. So held in N. T. Com. Pleas, chambers, 1859. Kennedy v. "Weed, 10 Ahl., 62. In this case the affidavit described the judgment as against Ira Weed and Mary Weed, while in the transcript, the judg- ment being of an inferior Court, the debtors were called Ira Weed and Mxs. Weed. Vide also Simpkins v. Page, 1 CodeB.,l(i1. Also The People v. Hulburt, 5 How., 4AQ ; S. C, 9 iT. Y. Leg. Ols., 245, and 1 Code E. \_]Sr. S.'], 75 ; Lindsay v. Sherman, swpra. (b) It need not be alleged that the recovery is for twenty-five dollars exclusive of costs. See ante, § 4, under "judgments." (c) It need not be alleged, at least not in the first dis- 32 UPON JUDGMENTS OF INFERIOR COURTS. trict, that the debtor still resides in the same county, And by parity of reason, it should not be necessary to allege that he still has a place of business there, or is still a non-resident of the State. But these last two points have not yet been determined by any decision. (d) Nor need it be alleged that the debtor has proper- ty. Hough V. Kolilin, supra ; Anon., Code R. pST. S.], 113 ; S. C, 3 Sandf. S. Ct., 126 ; and Hatch v. Weyburn, 8 Bow., 163, overruling Tillou v. Yere, Code R., 130 ; afid Jones v. Lawlin, 1 Sandf. 8. Ct., 722 ; S. C, Code R., 94. (e) It was held in Mc Arthur v. Lansburgh, 1 Code R. [N. S.], 211, that the affidavit need not allege that the ex- ecution was one against the debtor's property. The con- trary was held in The People v. Hulburt, supra, wliich is followed by the practice. It is also held in this last case, that nothing will be pre- sumed in favor of the jurisdiction of an inferior tribunal, 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 juris- diction rests must be affirmatively shown. Bingham v. Disbrow, supra, does not hold a Supreme Court justice, or in fact any justice, to such strictness when he institutes the proceedings upon a judgment rendered in his own court. In this case, the judgment in the Supreme Court was obtained in one county, and the execution issued to ano- ther. The affidavit failed to state that a ti'anscript had been filed in the latter county. It was held that the omis sion was not fatal. Upon judgments qf inferior courts. In addition to what must be stated when the judgment is of a court of record, the affidavit must state that the re- covery is for twenty-five dollars exclusive of costs. But it is sufficient if this fact appears on the face of the affidavit. TITLE OF SUPPLEMENTxVRY ORDER. 33 Thus, where it appeared by the affidavit that the judg- ment was in the Marine Court, and was for five hundred and eleven dollars, it was held that it sufficiently appeared that the judgment was for twenty-five dollars exclusive of costs ; because no costs could be recovered unless the re- covery was for fifty dollars at least. So also where judg- ment 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 Cage, 2 Alh., 320. According to Conway v. Hitchins, 9 Barb., 378, when the judgment is ' of a court of special jurisdiction, the affidavit, like a plead- ing, should state that the judgment was duly given or made. See 6We, § 161. ■ SECTION vn. Of the Su;pplementary Order. The Title. If these proceedings are in the original action, they must be entitled in the court to which the judgment be- longs. If the judgment is of an inferior court, they must be entitled in the court into which it has been docketed by the filing of a transcript thereof, no matter where or before what officer the proceedings are instituted. If for instance the judgment was rendered in a justice's court of Kings county, and was docketed into the Kings county court, the proceedings would bear the title of the last named court, wheresoever and before whomsoever they might be taken. If the judgment is entered upon a forfeited recogni2(- ance in the county of New York, the title is that of the Court of Common Pleas ; for that court has the exclusive control over such judgments to the same extent as over its own judgments, as we have seen. 8 p 34 SUPPLEMENTARY ORDER — ^WHERE MADE. So also the parties named in the title are the same ss those in the judgment, and may be designated in like manner as plaintiff and defendant. It is, however, more correct, and in accordance with the phraseology of the chapter on supplementary proceedings, to style the par- ties as judgment creditor and judgment debtor throughout the proceedings, wherever it can be done without produc- ing ambiguity ; or simply creditor and debtor. When the judgment has been assigned, and the assignee substituted in the place of the creditor, all the proceed- ings are conducted in his name. Vide previous section. But if these are special proceedings, then they are to be entitled not as in the court in wliich the judgment was rendered, or into which it was docketed from an inferior court, but as before the officer who institutes the proceed- ings, and other persons than those in the judgment may be named as parties thereto. Davis v. Turner, 4 How., 190. WTiere made. The order is ex-parte, and made at chambers. Hulsaver V. "Wiles, 11 How., 446. ■What it must contain. It should briefly recite the averments of the affidavit which confer jurisdiction upon the officer. It must recite the material averments correctly, or else the order will be dismissed if the objection is taken in time. It must also require the debtor to appear in person before the judge making the order, or a referee named in it,* at a specified day and hour, and at a place within the proper county, and answer concerning his property. Hatch v. Weyburn, 8 How., 163 ; and Hulsaver v. Wiles. But as to time of appearance when a referee is appointed, see post, " Eeferee," ch. 2, § 9. It is irregular to reqiure the debtor to appear before WHAT IT MUST CONTAIN. 35 one of the justices of the court, or before any other judge than him who makes the order ; and an order containing' such direction will be dismissed on motion, if made in due time. Haggerty v. Eogers, 15 Abb., 31-i, note ; Dres- ser v. Van Pelt, 15 How., 19 ; Yibert v. Frost, 3 All., 119 ; S. C, 5 Duer, 672— all in the New York Superior Court. See also Ammidon v. "Wolcott, 15 All., 314 ; and Kelly V. McCormick, 28 N. T. R. 318, where it was held that an attachment should be made returnable before the judge who makes it, thus overruling the New York Com- mon Pleas on this point. S. C, 2 E. B. Smith, 503. It is, however, universally held that all such directions are mere irregularities, and that if the objection is not taken on theretm-n of the order or attachment — that is, when- ever the exercise of the jurisdiction is first claimed, the error is waived ; for it does not affect the power of the judge to entertain the proceedings where all the requisite facts exist. Yide above authorities. So likewise if the debtor is required to appear before the judge making the order, or " one of the other justices," If this addition is an irregularity, it is waived by his ap- pe'aring and going on without objection. Dresser v. Van Pelt; Bingham v. Disbrow, 14 All., 251 ; S. C, 37 Barl., 24. What is stated above in respect to irregularities in orders applies more especially to the First Judicial Dis- trict and the Superior Court of the city of Buffalo, where a continuance is authorized. If the order should require the 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. 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 All., 204. ' Semlle, if the order is returnable on a holiday or election day. 36 SERVICE OF OEDEK, It is held in Hulsarer v. Wiles, that where the proof will warraiit it, the order may combine the purposes Bought to be attained by §§ 292, 294, and 296 ; that is, it may require the appearance of the debtor and third parties, and also appoint a referee. Service of the Order. It must be personally served on the debtor. There can be no substituted service. Barker v. Johnson, 4 Abb., 435. If no personal service can be made, and no pro- ceedings under § 294 can be instituted or made available, the plaintiff must resort to a creditor's action, which, however, cannot give him the right of discovery. ■Where Served- If the order is made by a Supreme Court justice, it may be served in any county of the State. Bingham v. Dis- brow. But there is no reported case upon the question whe- ther or not the order of a local officer as a county judge can be served outside of the territorial jurisdiction of his court. If the service is thus limited, there will be many cases in which this remedy will be denied to creditora, or its application will at least be attended with a great deal of inconvenience ; as, for instance, if the proceed- ings must be had before a judge of the Court of Common Pleas, and the debtor keeps out of the city of New York, so that he cannot be served, or at any rate, keeps away until he has disposed of his property. E"or will the creditor be nearer attaining an examination by filing a transcript and issuing an execution to the county where the debtor keeps himself; for the latter need but cross the line into another county. Nor will the warrant au- thorized in this section (292) always aid him ; for, to ob- tain that, the creditor must establish certan facts, which he cannot do in every case. {Seepost, p. 76.) Nor can a SERVICE OF ORDER. 37 justice of the Supreme Court help him under the amend- ment of 1859 to this section, for that authorizes him to act only when the county judge, or a judge of the Com- mon Pleas is incapacitated. But let us look at the legal phase of this question. If these proceedings are in the original action (ante, p. 8), the order is not process, like a summons, by which an action or a special proceeding is commenced, but simply an order in the action, as that by which a party is enjoined, or his property attached, for example. Now, an order of the latter kind may be made by a local judge, and served in any county of the State, and the party so served is liable to punishment for disobedience of the or- der. See injunction and attachment in provisional reme- dies, and §§ 401 and 403 of the Code of Procedure. So the summons of a local judge for the examination of a party before trial may be served anywhere in the State. Code, §§ 390, et seq. Likewise a notice of motion, or order to show cause, for the purpose of obtaining leave to issue execution, may be served in any county, though the motion is to be made before a local court. § 284. Surely there is much analo- gy between the latter and supplementary proceedings ; both are after judgment, and in both the order or notice must be personally served. But suppose these are special proceedings, and the or- der is process, and its service is subject to the same con- ditions and limitations as that of the summons of the court whereof the judge is a member, even then in many cases service of the order of a local oflScer could be made in any part of the State. For in every one of the local courts whose judges may entertain these proceedings, the summons can be served anywhere in the State, provided all the defendants reside within the county or city of the particular court; and in all of them except the county 38 SERVICE OP OEDEK. court the summons may be thus served when the cause of action arose in the city where the court is located, no matter where the defendants reside. See Code, §§ 30, 33, and statutes creating tlie Superior Court of Buffalo and City Court of Brooklyn, Further, if the order partakes of the nature of process, then it is clearly a substitute for the process of subpoena in the creditor's bill ; and its ser- vice is subject'to the same rules where they are applica- ble. ITow, a bill could be filed with a vice-chancellor (a local officer) in three cases: 1st, when the cause and matter arose within his circuit; 2nd, when the sub- ject matter was situated within such cii'cuit; 3d, or the defendants or persons proceeded against, or either of them, resided within such limits at the time. 2 S,. S., p. 168, § 2 ; or Edm,o'>id''s Statutes, 2 vol., p. 174-5. But in each case the subpoena of the vice chancellor could be served in any part of the State. Id. It was held tliat when a judgment was recovered, execution issued and re- turned unsatisfied within a circuit, the cause of action arose therein, and the vice chancellor thereof had juris- diction, no matter where the defendant then resided. Varick v. Dodge, 9 Paige, 149. By the rules, then, which govern the service of summonses out of the exist- ing local courts, and which governed the service of the subpoena in the creditor's bill, the order of a local judge may be served anywhere in the State, if all the debtors proceeded against reside at the time within his jurisdic- tion, or the judgment was rendered and the execution is- sued and returned unsatisfied therein. But further, wherever there is a limitation upon the service of process from a local court of record, or of a judge in special proceedings, it is by express provision of statute ; without which there would be no such restriction. Now, when a judge entertains these proceedings, he acts not as an- officer of his court, but as a separate and inde- SERVICE OF ORDER. 39 pendent tribunal (Webber v. Hobbie, 13 How., 382), and exercises an important jurisdiction which is not vested in his court. Moreover there is nothing in the Code or any statute of the State expressly limiting the service of this order, when made by a local judge, within his county or city. Is it then logical to say, in the absence of ex- press provisions of law, that the limitations of the court as to the service of a summons attach to that of the order when made by a judge of the court? Is it not more rational to hold that in anology to the express and only conditions put upon the commencement of actions in local courts, and the filing of creditors' bills with vice chancel- lors, the express conditions imposed upon the commence- ment of supplementary proceedings, to wit, the issue of an execution against real and personal property to the coimty of residence, or &c., its return unsatisfied, and the institution of the proceedings in that county, are the only conditions required to give a local judge jurisdiction and that the legislature intended that they should be the only ones ? For it is a maxim in the construction of statutes that the enumeration of certain powers or restrictions are exclusive of all others not mentioned. Wherefore, if these are proceedings in the action it is evident that the order instituting them • may be served anywhere in the State though made by a local judge ; if they are special proceedings it is clear that such order may be thus served in many cases, while it is fair to con- clude that it may be so served in all cases. How served. The order is served by delivering a copy thereof to the debtor personally and leaving it with him, and at the same time exhibiting to him the original. A copy of the affidavit on which the order was made need not be served with it, though it usually is. Green v. Bullard, 8 How., 40 PROCEEDINGS ON EETUKN OF ORDER. 313 ; Utica City Bank v. Buell, lY Id., 498 ; S. C, 9 AU., 385 ; Farqueharson v. Kjmball, Id., note; S. 0., 18 How., 33. Proof of service is made by affidavit. Tlie sheriff's certificate is no proof. Utica City Bank v. Buell. Waiver of proof. To appear for the purpose of asking an adjournment, is a waiver of every objection to the proof of service, al- though the debtor at the time expressly reserves the right to object to any irregularity in the proceedings. Id. SECTION Tin. Of the Proceedings on the return of the order as respects their continuity. Either party must wait some reasonable time, usually half an hour, in the absence of the other, before he can take his default. "Where the debtor went to the judge's office at the appointed hour, but left without waiting a reasonable time for the arrival of the judge and creditor, it was held that neither the proceedings nor the injunction order had been thereby revoked or become inoperative. Eeynolds V. McElhone, 2(5 How., 454. But if after waiting a rea- sonable time one of the parties fails to appear .the other is entitled to take his default. This should be done by a memorandum made on the papers and signed by the judge or referee, that the party has been duly called but failed to appear. The debtor must attend in person be- fore the judge or referee on the return of the order. It was assumed rather than decided in Mason v. Lee, 28 How., 466, that a valid adjournment could be made on the return day of the order in the debtor's absence, some one being present to represent him and apply for the adjourn- ment in his behalf. This is the practice at the Supreme CONTINUITY — ADJOURNMENTS. 41 Court cliambers in the first district. Sucli adjournments are often necessary, as in case of sickness. But the order of adjournment should be personally served on the debtor to bring him into contempt if he disobeys it. Code, § 418. Appearance means not merely bodily presence ; the debtor must render himself before the ofiScer to answer to the pro- ceedings when they are called on. So held in People w.Wil- gus, 6 Den., 58, where the debtor was present but did not answer. In Myers v. Janes, 3 AbT)., 301, Emmott, J., thought that when the debtor is required to appear before a county judge and no particular place is designated for him to appear at in the city where the judge resides, and the latter is on the return day engaged in holding court in the same city, the court room is as much his office as his private office and the debtor ought to attend there. The Continuity of the Proceedings. The practice is not yet settled on this point. There is still considerable diversity of opinion in the courts as to what acts will preserve or destroy the continuity of these proceedings. Adjourmnents. It is however clear that the adjournments, if any, must be regularly made, or else the proceedings will be dis- missed if the objection to the regularity be taken in pro- per season. Squires v. Young, 1 Bosw., 690, at general term. This case holds that the adjournments may be made by the parties themselves in writing ; but that it is more prudent to have them made by the judge (or re- feree). Adjournments by the parties to the office of one of the attorneys in the proceedings, is irregular. The debtor can only be compelled to attend before the judge or a referee. This arrangement is often resorted to for convenience. The proper way is to procure a regular ad- journment, and then take the examination in the mean- while at the office of one of the attorneys. 42 ADJOURNMENTS. The justice in Meyers v. Janes, supra, said that no ad- journment could be made by the agreement of the parties alone. But this was spoken in respect to a proceeding to punish for contempt herein. In Johnson v. Tuttle, 17 Ahh., 315, the debtor appeared in person on the return day of the order, and afterwards, upon a motion made by him for dismissal of the proceed- ings, which motion the judge denied, he was ordered to appear on a subsequent day named, and submit to an ex- amination. It was held not necessary that this latter or- der should be personally served on the debtor. See also Ammidon v. Wolcott, supra. However, in both these cases the debtor was present when the order was made for him to attend. But in Parker v. Hunt (Supreme Ct. Ch., 1st dist.), 15 A.hb., 410, note, Ingeaham, J., a third person was re- quired to attend by order under § 294. He appeared by counsel at a subsequent meeting before the judge — ^his counsel in his absence consenting to an adjournment. No memorandum of the adjournment was served on him ; yet it was held that he was bound by it, and for neglect to at- tend on the adjourned day, he was adjudged guilty of contempt. In Meyers v. Janes, it was decided that where on a proceeding for contempt the proof upon the question of contempt is closed, but no order of commitment is made, because the papers do not show the amount of plaintiff's judgment, and time is given him until a set day to put in proof of such amount, this is not such an adjournment that the judge loses jurisdiction if no further proceedings are had on the day appointed. As to opening defaults, and restoring the proceedings, see ch. 4, § 6, post. DELAY. 43 Delay in proceeding. lu Squire v. Young, sujpra, proceedings were com- menced in March. In July following, at an adjourned meeting before the judge, the debtor was called, but failed to appear. The judge's attention was not called to the default ; nor was anything done after this by the cred- itor for some three months, when he moved in the matter, and in December following had a receiver appointed. The Court held that the proceedings had fallen through by the delay ; that supplementary proceedings can be as effectually terminated by the creditor's abandonment of them, as by a formal order of the judge who instituted them ; that if the creditor fails for any cause whatever to appear on the return day of the order, or on any day to which the proceedings may have been adjourned, he must be deemed to have abandoned them ; that the same re- sult will follow if the creditor fails to have the proceed- ings adjourned from time to time, or to move in respect thereto on the return, or on any adjourned day before the judge. So too when the examination of the judgment debtor has been completed, if no motion is thereupon made to the judge, but on the contrary both parties leave without an adjournment, or the appointment of a receiver being applied for by the creditor, the proceedings must be deemed abandoned ; and that the proceedings there- upon fall for all purposes, as well as the injunction order ; and that no receiver can thereafter be appointed. Fur- ther, that when once fallen, the judge cannot restore them. Thus, this case holds that the proceedings will be deemed discontinued if the creditor fails to appear, and move in the matter, though his non-appearance was wholly involuntary and beyond his control ; and that the same result ensues if he fails to move for a receiver on the spot at the close of the examination, or to procure an ad- 44 DELAY. jourrnnent ; or, if on taking the debtor's default, he fails to obtain an order to show cause on the debtor, or in some other way to move in the matter. This seems a very hard rule, and contrary to the spirit of the Code. It is not fol- lowed in the Supreme Court of the First District (seejiost, ch. 4, § 6) ; nor entirely in the Court of Common Pleas — especially in regard to the necessity of making a mo- tion for a receiver at the close of the examination, or of moving in the matter ou the spot when the debtor fails to appear. The reason assigned by the Court for this strict rule, is the summary nature of these proceedings, and that otherwise the injunction would operate unjustly toward the debtor, and the rule of priority toward other creditors pursuing this remedy. This reason is not satisfactory, for the injunction is a mere incident of the proceedings, and may be refused, revoked, or modified, without invalidat- ing the proceedings themselves (see Injunction, eh. 4, § 1, , post) ; and as to priority, that is lost if the proceedings are not diligently followed up (See Priority, ch. 3, § 7, post). Hence neither the debtor nor another creditor will be ne- cessarily prejudiced by a delay, because the order of res- toration may provide for such a contingency. The later decision in this court of Cowdrey v. Carpenter, 17 Aii.^ 107, if logically followed out, would seem to relax this rule. See under Opening Defaults, ch. 4, § Q,post. But even under this strict rule, the debtor must wait a reasonable time before he is justified in taking the cred- itor's default and treating the proceedings as abandoned. It is, however, clear that when the examination is ended, or when the debtor's default is taken, the creditor cannot lie still for an indefinite time without moving in the matter. He ought to move therein within a rea- sonable time. The nature and object of these proceedings require that much. ABSENCE OF OFFICER. 45 Absence of the Officer. In Allen v. Starring (General Term, 6th dist.), 26 How., 57, it was decided that when the referee, appointed in the order to take the debtor's examination, fails to attend at the time and place designated for the examination, the proceedings do not thereby fall through ; nor does the injunction order become inoperative ; that the proceed- ings still pend before the judge who instituted them ; that he can require the debtor to attend on seme future day and before another referee ; and that it is irregular in such a case to obtain a new order from another judge, thus instituting a second proceeding. But the judge who decided Johnson v. Tuttle, supra, thought that even in a case like the above the proceedings would be dis- continued, and the creditor compelled to begin anew. But this remark was plainly oMter dictum. A distinction exists between the proceedings before the judge and those before the referee. The judge only delegates to the latter the taking of the examination — 'nothing more. Conway v. Hitchins, 9 Barb., 378. The residue of the proceedings still pend before the judge awaiting the re- feree's report ; nnd upon the coming in of that, he makes such order as the case may require. Hence a default in the reference of itself does not necessarily affect the pro- ceedings before the judge. But will the proceedings fall through if the judge fails to attend at the time and place appointed for the debtor's appearance? They ought not. It is unjust that the creditor should lose, permanently perhaps, and by no fault of his own, the rights which he may have acquired by the proceedings. The injunction should not be deemed dissolved nor his priority lost, if he promptly procures an order upon the debtor to attend at some other time. The case of Holstein v. Eice (15 All., 307 ; S. C, 24 How., 135) supports this position. If these are ordinary pro- 46 debtor's absence — examination of witnesses. ceedings in the action, they would not fall through for such reason ; and if they are special proceedings sections 51-3 of 2 a. S., pp. 284-5, would save them. On the contrary, in either view of their nature, they might be continued by another officer who could have originally commenced them. Also see Reynolds v. McElhone, 20 Sow., 4:54:. Fm'ther, if they are ordinary proceedings in the action, then, if no judge is in attendance at the time and place .named, they should be deemed to stand over to the next chamber day. Such, I believe, is the practice at the Supreme Court chambers (1st dist.). Again, the judge having charge of the proceedings may no doubt adjourn them, together with other matters, to a subse- quent day, in the absence of the parties, by a general order posted up in his chambers, as the judge of Kings county has been known to do. Absence of Debtor The judge may duly adjourn the proceedings in the debtor's absence, though no one is present to represent him — as is done when they are continued to examine wit- nesses. But he or his attorney should be notified of such adjournments, or else he might justly treat the proceed- ings as abandoned. And to compel the debtor to attend on such adjourned day, the order of adjournment must be personally served on him ; unless the case comes within the rule of Parker v. Hunt, supra. Seeposi, cli. 4, § 6, p. 227. Adjournments to Examine Witnesses. The debtor should be notified of these, so that he may attend if he chooses ; or else he may insist on excli;ding the testimony of the witnesses, or on its being retaken in his presence, whenever the creditor seeks to use it on a motion or otherwise. THE EXAMINATION. 47 SECTIOK IX. Of the examination. If the examination is before the judge, it is taken at his office or at chambers, and in his presence. He passes upon any questions that may arise in the course of the examination ; if before a referee, it is taken at his office, or at such place as the judge appointing him desig- nates. It is taken by him, or merely before him if the par- ties so agree. He passes upon the questions which arise in the examination ; and from his decision an appeal lies to the judge. The examination is taken in the form of a deposition, and must be signed and sworn to by the party or witness, in the same manner. He is sworn before the examination to speak the truth and afterwards he swears to his deposi- tion that it is correct. The questions and answers ought all to be written down, especially when the examination is taken by a referee. The debtor may be examined in the same manner as a Avitness. § 292. And witnesses may be required to " testify on any proceedings under this chapter in the same manner as upon the ti-ial of an issue." § 295. The same rules are therefore applicable to the debtor and witnesses as to the extent and thorough- ness of the examination. Sandford v. Carr, 2 Abb., 462. They may both be cross-examined. Leroy v. Halsey, 1 Duer, 589 ; S. C, 11 iV^. T. Leg. Ols., 252 ; 1 Code H. [N. 8.'], 275 ; Contra, Corning v. Tooker, 5 Mow., 16, made before the amendment of 1851, to § 292, and not now fol- lowed on this point. The debtor or a party examined under § 294, may have counsel, but a mere witness may not. Id., and Sandford v. Carr. As the examination is taken orally great liberality should be allowed in correct- ing mistakes ; which is properly done by way of a supple- 48 EE-EXAMINATION. mental examination, leaving the original deposition tin- touched. Leading questions are permitted. Coming v. Tooker. The creditor is not obliged to examine the debtor. He may lay the foundation of an order under § 297 or § 298, by the examination of witnesses. Graves v. Lake, 12 JIow., 33. The debtor's testimony may be re- butted. Tide Code, §§ 393, 395, Re-ezaminatiou. It is held that when the examination of a judgment debtor before a referee is once closed, it can only be resumed by motion to the judge on notice to the debtor, and showing special cause ; because the referee's power is spent. Orr's Case, 2 Ahh., 457. So also when, the investigation is before the judge and the examination of the debtor or a third party is closed, though the proceed- ings are still pending it should only be resumed upon a like application. This is however a matter of practice solely, and the judge may grant an ex parte order for such further examination. The appointment of a receiver does not terminate the judge's jurisdiction over the pro- ceedings. He may therefore require the debtor to appear and answer after that. People v. Mead, 29 How., 360. But as to a further examination after a default has occur- red in the proceedings, seej>ost, under head of " Opening defaults ;" and as to the second proceedings, see poet, ch. 4, §8. EIGHT TO DISCOVERT. 49 SECTION Z. Of the right to a discovery^ and the extent thereof. The creditor's right to the discovery. The debtor cannot evade, or break off an examination into his pecuniary condition, by offering to consent to the appointment of a receiver ; for the creditor is entitled to a full and complete discovery of his debtor's property, to the end that it may be applied to the payment of his judgment either directly or through a receiver without an action ; viz., by an order imder § 297. This is the chief aim of supplementary proceedings. It is in this ; to wit, accomplishing by a few orders what formerly required a suit, wherein these proceedings assert their sujaeriority over the creditor's bill. § 292 says, the creditor is entitled, to an order that the debtor appear and answer concern- ing his property. It is a right. A receivership can hardly be considered as a means of a discovery. It is only a means of applying the discovered property to the payment of the judgment. The &st aim of supplement- ary proceedings is to discover property which may be directly paid or delivered to the creditor as a payment fTO tanto upon the judgment, or which may be levied on by the sheriff, if the creditor chooses to take that course ; the second aim is to discover property, which may be delivered to or taken by a receiver, converted into money and applied toward the payment of the judgment ; the last aim is, to discover property fraudulently disposed of by the debtor, in order that a receiver may be appointed to recover such property by action against the debtor and his assignee, and then to apply it toward the satisfaction of the judgment. The creditor is therefore entitled to a thorough investigation of his debtor's|pecuniary affairs 50 EIGHT OF DISCOVERY. and transactions to meet these ends The mere appoint- ment of a receiyer is hardly a step toward the collection of the judgment. He is no nearer the realization of that object than the creditor was. His appointment sheds no ray of light upon the dark places and intricate mazes in •which the creditor has concealed his property. On the contrary a receivership is often a convenient barrier which a fraudulent debtor interposes between himself and a pressing creditor. Indeed how common is it now for a dishonest debtor to take refuge in a friendly receivership from the hot pursuit of determined creditors ! And unfor- tunately it is too often made a sure asylum for dishonesty. In a creditor's bill a receiver was appointed as a matter of course, if the equity of the bUl itself was not denied. But the interlocutory proceedings did not stop there. The complainant was entitled to, and always was ac- corded, a full and rigid examination, both of the debtor and witnesses, in order to inform the receiver of the na- ture, kind and whereabouts of the d.ebtor's property, and thus enable him to take the possession or control thereof. Green v. Hicks, 1 Barb. Ch. R., 309. Also ante, p. 4-5 It was essentially a fishing proceeding, and was much fa- vored by the Court of Chancery. Supplementary pro- ceedings seek, as we have seen, merely to enlarge this re- ledy, and render it more simple. See Sandford v. Carr, shgra, and Clapp v. Lathrop, 23 How., 423, Supreme Court, General Term, IVth Dist., as to the creditor's right to a full and rigid examination into his debtor's pecunia- ry affairs. True, when a debtor has once been fully ex- amined, and offers to produce the examination to another creditor who seeks an investigation by this means, he should not be put to the annoyance of a re-examination, except upon new matter, or upon points not at all, or not fully, gone into before. So also should it be, where wit- nesses have once been fully examined. However, this THE EXTENT OF THE INQUIRY. 51 matter is left to tlie sound discretion of the judge who has charge of the proceedings. "When a creditor's course is vexatious, he can impose costs. This is ordinarily an am- ple protection against vexatious proceedings. It is the practice with some of the justices of the Supreme Court First District, to impose thirty dollars costs upon the cre- ditor, to be deducted from the judgment when he pro- ceeds to an examination and discovers no projperty, where the debtor has already been fully examined, and offers to produce to him his examination. The extent of the inquiry. We have already seen how far and how thorough an inquiry into the debtor's property affairs was allowed un- der the creditor's bill, upon the proceedings to appoint a receiver, &c. Ante, p. 4, et seq. Eut supplementary pro- ceedings authorize a much wider range of investigation. They not ordy permit the creditor to inquire into the same matters with the like thoroughness that a creditor's bill did, but they permit him to examine into the charac- ter of transfers of property made by the debtor to third persons, who claim under such transfers. He may in- quire fully into the circumstances attending the same, in order to ascertain whether the transfer of the property to, and its possession by, the third person are fair or fraudu- lent. The inquiry may be made of witnesses, and the transferee, as well as of the debtor. And when a witness claims to own the property by conveyance or assignment from the debtor, the creditor may require him to answer fully in respect to such transfer. Clapp v. Lathrop ; and Sandford v. Oarr, supra. In this latter case the Court said that the witness could not stop the examination by claiming that he or some one else than the debtor claimed to own the property. In Clapp v. Lathrop, which is an exceedingly well considered case, the question was, whe- 52 THE EXTENT OF THE INQUIRY. tlier or not, •witnesses claiming the debtor's property by a transfer from bim, could be compelled to disclose the cha- racter of such transfer. The Court decides in the affirma- tive, and after saying that it regarded supplementary proceedings as a substitute to some extent of the old bill of discovery, proceeds thus : " If on examination it should turn out that the judgment debtor had no property ; that his transfers had been iona fide, no further trouble or ex- pense 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 judg- ment. By this course of proceeding the facts could be determined speedily, and with little expense. But if the examination is limited in the way claimed by the appel- lants (to discovering property, belonging to the debtor on- ly), very little is attained by it — substantially nothing — towards the advancement of justice. Such limitation, in my judgment, effectually frustrates the object and advan- tages intended to be offered by those proceedings." This decision disapproves of Van Wyck'w. Bradley, 3 Code JR., 157, an early case at special term ; which the Court says has not been generally accepted as an authority ; and also of Town V. The Safeguard Insurance Co., 4 Bosw., 683, at special term. Both these hold the contrary of Clapp v. Lathrop. To the contrary also is Hunt v. Enoch (N. T. Common Pleas, special term,) 6 Abh., 212. See also "Wil- liams V. CarroU, 2 Hilt., 438. The three last cases are prior to Clapp t). Lathrop, and are not fully followed in those coui'ts. Since the decision of Clapp v. Lathrop, § 292 has been amended (1863). It now most clearly au- thorizes an examiuation into the character of the debtor's transfers and disposition of his property, to ascertaia whe- THE EXTENT OP THE INQUIRY. 63 fixer they are fair or fraudulent. The debtor is not to " be excused from answering any question on the ground that he has before the examination executed any conveyance, assignment, or transfer of his property for any purpose." A witness can be examined to the same extent, and he is bound to testify to matters, though the testimony tends to convict him of committing a fraud. But the evidence can not be used against him in a criminal proceeding. And when a third person makes a claim to the property of a debtor, he may be examined as fully as on a trial of an issue. § 292 ; and Whitaker's Fr., 2d vol., 683-4. Also Sandford v. Carr, supra. Tlie case of Clapp v. Lathrop declares the true spirit and intent of supplementary proceedings upon this ques- tion. Formerly, when a creditor was defeated at law in obtainingTOtisfactiqn of his judgment, he was compelled to pursue his debtor into chancery, and file a bill against him. A receiver was appointed, as a matter of course, in the interlocutory proceedings. But the character of a transfer of property could only be investigated upon the trial of a suit brought to set it aside on the ground of fraud. The creditor was thus put to much expense, la- bor and annoyance before he could know anything about the cliaracter of his debtor's disposition of his property ; and the honest debtor was also subjected to expense and trouble before he could in a proper way show to his creditor the fairness of his transactions. Supplementary proceedings aim at doing away with much of this expense and annoyance by furnishing to the creditor a more simple and direct remedy, not only to discover the debtor's property, but to unmask his fraudulent disposition of his property and effects. As the appointment of a receiver in any particular case is very largely left to the discretion of the judge, and not so much a matter of course as under the creditor's bill, it 54 THE EXTENT OF THE INQUIRY. was clearly intended that alleged fraudulent transfers should be investigated in order to furnish him with data to determine whether or not a receiver should be ap- pointed to test the question of fraud by an action, and thus save all parties the expense and annoyance of a re- ceiver and an action when there is no occasion for either. 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 transfer ; 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 imormed 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 impertinenf or meddlesome." Id. There is another weighty considera- tion in favor of a large liberty to this investigation of the debtor's pecuniary circumstances and his transfers of property. Before the Code of Procedure was adopted, the creditor in a case like the above could commence a creditor's suit against the judgment debtor and his as- signee, and compel a full and complete discovery of all the property and eifects held or claimed by the latter by transfer from the former. Such suits were much fav- ored by Chancery. Hammond v. The Hudson E. Iron and M. Co., 20 Barb., 378. But now, since the bill of discovery, and the discovery part of the creditor's suit, are abolished {See Code, § 389 ; and Catlin v. Doughty, 12 How., 45T), if the creditor is not allowed on supple- mentary proceedings, to examine into alleged fraudulent transactions and what effects were transferred to the as- THE EXTENT OP THE INQUIRY. 55 signee, he is -without remedy against a wily debtor, who can easily turn his property over into the hands of a con- federate. For lieither in a creditor's nor in a receiver's action can proceedings be now taken to discover prop- erty. The legislature seemed to have been impressed with the situation in which the abolitioa of the former practice had left the creditor in this respect, and there- fore aimed at providing an ample substitute in these pro- ceedings, and have from time to time enlarged their ca- pacity by amendments. It was held in Van Wjck v. Bradley, supra, that the examination in supplementary proceedings might be ex- tended to a time prior to the date of their commence- ment, but that it was left to the sound discretion of the officer in any particular case to saj how far back it may extend. The general rule is, that the creditor may go back in his inquiry to the date of his claim against the debtor. A denial of having any property except necessary wearing apparel, is not sufficient. The debtor must give a particular account of it to enable the court to judge whether it is wholly exempt. Brown v. Morgan, 3 Edw.^ 278 ; Gregory v. Yalentine, 4 Id., 282. But for the conduct of the examination, no particular rules can be laid down that shall be of universal applica- tion. The extent of the inquiry in each case must be left to the good sense of the officer under -whose direction it is taken, as on the trial of an issue. If, however, the officer will not allow the creditor to extend the inquiry to a subject which he is entitled to in- vestigate, as, for instance, an alleged fraudulent transfer ; or to ask a question which he has a right to ask, he can appeal. In the earlier cases before Clapp v. Lathrop and the amendment of 1883 to § 292, it was held that the exami- 56 THE EXTENT OF THE INQUIRY. nation must have for its single object to ascertain whe- ther there is any property of. the debtor which ought to be applied to the payment of the creditor's claim ; and that every question tending to throw light on that sub- subject is pertinent. Corning v. Tooker, 5 How., 16 ; Le- roy V. Halsey, IDuer, 589 ; S.C., 1 Code E. [K. S.J, 275. But since the creditor may inquire into the character of transfers of property made by the debtor to third per- sons, every question tending to throw light upon this lat- ter subject must also be pertinent. As to the kind of questions to be put and the manner of answering them, see also Sandford v. Carr ; Leroy v. Halsey ; Brown v. Morgan, swpra. PROCEEDINGS UNDER SUED, 2, § 292. 57 CHAPTEE n. OF THE OTHEE KINDS OF SUPPLEMENTARY PEOOEEDINGS ; AND OF "WTTNESSES, AIID EEFEEEES, &0. SECTION 1. Of tlie proceedings under subd. 3, § 293. " 3. Of tlie proof required for tlie order under subd. 3. " 3. Of tlie order and the examination, &c. " 4. Of tlie warrant under subd. 4, of § 292. " 5. Of payments to third persons under § 293. " 6. Of proceedings against third parties under § 394. " 7. Of the order and the proceedings thereon. " 8. Of witnesses and their attendance. 9. Of the referee. SECTION I. Of ike proceedings under subd. 2 o/" § 292. The Nature. The proceedings under this subdivision are rather in aid of the execution than supplementary to it. The pro- visions of this and the fourth subdivision of § 292, which provides for the issuing of a warrant, were no doubt sug- gested by the second subdivision of the fourth section of the " Act to abolish imprisonment for debt, and to punish fraudulent debtors," passed April 26, 1831, and the pro- ceedings, like those in the latter, are in effect a statute ex- ecution against choses in action, and other effects not tan- gible by the ordinary fi. fa. Berthelon v. Betts, 4 Hill, 577; Spear v. Wardell, 1 HT. Y. [1 Comst:\, 144. Vide Sackett v. Newton, 10 How., 560. There are points of similarity between these proceedings (under sub. 2, § 292) and those under the non-imprisonment Act referred to — especially in respect to the kind of property that may be 58 FEOCEEDINGS UNDER SUED. 2, § 292. reached, and the kind of proof required to obtain the or- der or warrant. The case of Sackett v. Newton cites some of these rules, and adopts them as controlling in these proceedings. Others will be cited in their proper place. Who may entertain these proceedings ? The same officers that can entertain those under subdi- vision 1 {ante, ch. 1, § 2), may entertain these, with the re- striction that the ofScer must reside in the same county with the debtor at the time of making the first order. A Supreme Court Justice can make the order anywhere, in the State, but only as against a debtor residing at the time in his county. The proceedings may also be continued before another judge in the same manner and cases that those under subd. 1 may. Ante, ch, 1, § 2. This second subdivision does not require that the officer continuing the proceedings shall reside in the same coun- ty with the debtor. That condition is exacted only from the judge who makes the order by which the proceedings are instituted. The Couet, also, in which the judgment was rendered, or into which it was docketed from an inferior court, can entertain these proceedings. Eut must the justice hold- ing the court reside in the same county with the debtor ? Whitaker in his Practice (2d vol., p. 686, 3d ed.), thinks not. The clause which requires residence in the same county, is a jumble of words ; but the reason of things is against applying it to the justice holding the coiirt. If so, the creditor, in instituting proceedings in the Supreme Court, is no doubt governed as to where he shall apply for the order, by the rules which prescribe the place where a motion in an action is to be made {Code, § 401, subd. 4) ; and if the debtor does not reside in the county where the court is held, a referee will be appointed to take the examination. ON WHAT JUDGMENT INSTITUTED. 59 HoweYer, if the above view is correct, then any court may make this order, no matter where the debtor resides. But it cannot appoint a referee to sit outside of its juris- diction. Bonner v. McPhail, 31 Barb., 107. The proceedings when before the court, come within its general powers. For, when the cognizance of a new remedy 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. [2 Kern.], p. 410. The court may allow amendments, open defaults, &c., and exercise all its ordinary powers over the proceedings, so' far as appli- cable. Jurisdiction will be presiimed, and need not be so carefully established in the first instance as when the proceedings are before a judge. Hence, the affidavit to obtain the order need not state the jurisdictional facts 60 specifically as is pointed out in the next section, which is intended more especially when application is made to a judge. If the order is defective, the court may permit it to be amended. Code, § 173. ITon-resident. There is no provision made in this subdivision for ex- amining a debtor who resides out of the State ; unless it may be, before the court. On -what Judgment ? These proceedings may be taken on any judgment, on which those under the preceding subdivision, may. Vide ante, ch. 1, § 4. By and against whom ? They may be taken by and against the same persons as those in the preceding subdivision. Ante, ch. 1, § 3. Although it is only after the return of the execution that the creditor is required by the Kevised Statutes to seek 60 PROCEEDINGS UNDER SUED. 2, § 292. relief in the Supreme Court upon a judgment against a corporation, yet the policy of those statutes also prohibits these proceedings against such debtors ; because it is insolvency which gives a court of equity exclusive juris- diction over the assets of a corporation. The return 'of execution unsatisfied is only evidence of that fact ; and a corporation cannot be far from insolvency when it unjust- ly refuses to apply its property to the payment of a judg- ment. Again, how easily could a creditor evade the stat- ute, by issuing a second execution immediately on the re- turn of the first unsatisfied, and then institute these pro- ceedings. Moreover, the authority of Sherwood v. The E. & N. Y. City R. E. Co. (12 Eoio., 136), on other groimds excludes corporations frord the operation of these proceedings. On what execution. It is seen that this subdivision omits to state to what county the execution shall be issued. Eut its close con- nection with the preceding subdivision indicates that the execution is to be issued to the same county as in the latter (Vide ante, ch. 1, § 4) ; in order that an effort may be made to satisfy the judgment in the ordinary legal way, and that the sheriff may make a demand of the debtor for his property. For it cannot be said, that the debtor imjustly refuses to apply his property toward the satisfaction of thg judgment, until there are a demand and refusal ; and the fact that an execution must first be issued, in which this subdivision difiers from the similar provision in the non-imprisonment act, shows that the in- tent is, that the sheriff shall make the demand, or at least stand prepared with the execution in hand to receive and apply the leviable property, when the demand is made by another. If the debtor is a non-resident at the time, the execution must nevertheless be issued to the county EXAMINATION — PROOF FOR ORDER. 61 to wMcli subdivision 1 requires it to be issued in sacTi case ; and if he comes to reside in tlie State during the life of the execution, these proceedings may be taken against him before a judge. Li all respects, except the return, the same rules as regards executions are equally applicable to all the subdivisions of Code^ § 292. Examination, in what County. The " court or judge may by order require the debtor to appear at a specified time and place ;" that is, the mak- ing of the order is discretionary, but when made it shall require the debtor to appear at some place and time spec- ified within the jittisdictional limits of the tribimal making it. This subdivision does not require that the examination shall be had in any particular county. But the court or judge will no doubt order it to be taken in the county where the debtor resides or has a place of business, if that is within the jurisdictional limits. SECTION II. Of the proof required for the order. The proof is furnished by the afladavit of the creditor or otherwise, the same as under subdi^•ision 1 (Vide ante, ch. 1, § 6) ; and in respect to the recovery of the judgment, the parties, &c., the issuing of the execution, &e., the same facts must be stated as under that subdivision, except it must appear that the execution is yet in the hands of the sherilF. It should also be stated where or in what county the debtor resides at the time the order is asked for, especially when application is made to a judge. Fur- ther, the proof must be satisfactory to the court or judge upon the two points — ^that the debtor has property applicable by this means toward the payment of the 62 PROOF REQUIRED FOR ORDER. judgment ; and that he unjustly refuses so to apply it. The wording in this subdivision in respect to the proof required on these points, is almost identical with that in section fourth of the non-imprisonment act. Hence the decisions thereon under the latter act, must be authority in these proceedings ; except that the same exactness of proof is not required to obtain the order, nor the same technical precision in the procedure ; because these pro- ceedings foi'm part of the practice under the Code, while the other are statutory. See Whitaker's Pr., 2 vol., (3 Ed.,) p. 687. Thus, in Mosher u. The People, 5 Barl., 575, the following rules are laid down in respect to the proof for a warrant under the non-imprisonment act ; (1) that an athdavit made by the creditor or an indifferent person must swear positively to the facts and circumstances which are relied upon as the foundation of the warrant ; (2) that 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) that the intent of the debtor may be shown by the belief of the creditor or his agent when the requisite facts and circumstances are positively proved. It is fiu-ther held that an affidavit stating the requisite facts on in- formation and belief is not sufficient to give the officer jurisdiction ; that the statute requires legal proof, which statements on itiformation do not constitute ; but that the slightest amount of such proof is enough to confer juris- diction, so that the officer's proceedings therexipon will nothQ coram non judice, ZTi.^c&norAj be questioned on review by certiorari. It was also held that, where it is positively shown by af- fidavit, that the debtor did a short time before have prop- erty, that he parted with it to some one, and that the con- sideration therefor existed in the hands of somebody in the shape of an indebtedness to the debtor, and that the latter refused to apply it upon the judgment, the creditor or his WHAT PROPERTY. 63 attorney was justified in swearing to his belief that the debtor had rights in action which he fraudnlently concealed, and unjustly refused to apply upon the judgment. So an affidavit, with these latter statements on informa- tion, is sufficient, if it refers to another wliich gives facts and circumstances to justify the belief, and is used on the application. See also Broadhead v. McConnell, 3 Barb., 175 (190—1). This subdivision expressly makes the proof of the above facts a condition precedent to the issuing of the order. ■What Property. The fact that the debtor has property which ought to be applied upon the judgment by these proceedings must be clearly set forth. The property must be described, so that the court or judge may see whether it comes within the meaning of this subdivision. For it is not property generally as the word is defined by sections 462-3-4: of the Code, that can be reached by this proceeding. It must either consist of property not subject to levy ; or if leviable, it must be shown to be so kept by the debtor that it cannot be clearly identified, and with ordinary diligence reached by execu- tion, or that' he fraudulently conceals it out of reach of the execution. Facts and circumstances must be given tend- ing to establish the particular allegations relied on ; for the latter are essential to confer jurisdiction upon the court or judge to make the order. And if at any stage of the proceedings, it appears that these facts do not exist, the proceedings must be dismissed, although the debtor has submitted to the examination without objection. Sackett V. Newton, supra. Also see the opinion of Beadt, J., in Owen V. Dupignac, 1*7 How., 612. In the similar proceedings under the non-imprisonment act, it is held not to be enough merely to use the words of 64 PROPERTY IN ANOTHER STATE. the statute in the affidavit ; to wit, that the debtor has "rights in action, &c.," because these words are mere conclusions. " He must either state if he knows that the debtor has property, and specify the particular form in which it exists ; or if he cannot do that, he n^ust state the facts on which his inference is based that the debtor has property, so that others can judge whether he reasons cor- rectly. When he shows that there was tangible property which had been converted into something else, which he cannot trace, he may then add his belief that the avails ex- ist in some of the other forms mentioned in the statute (as rights in action, interests in some public stocks, &c.), with- out specifying the particular one." The People v. The Re- corder of Albany, 6 Sill, 429 ; also Vredenburgh v. Hen- dricks, 17 Bari., 179. (a) As these proceedings are in the nature of an equitable execution to reach property whicli an ex- ecution at law is unable to reach, if it appears that the debtor has property beyond the jurisdiction of the court, that is, in another State, an order under this subdi- ■\-ision may be made if he refuses to apply it upon the judg- ment. The court or judge has power. to compel him to assign or convey such property for the purpose of having it applied to the payment of the judgment. Bunn v. Fonda, 2 Code i?., 70 ; Fenner v. Sanborn, 37 Bari., 610. (b) But where the debtor is shown by the affidavit to be in the undisputed possession of the property in question, under circmnstances aifording 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 tangi- ble, the creditor is bound to levy upon it, instead of resort- ing to this proceeding, although the debtor refuses to apply it upon the judgment, and asserts that it belongs to some one else. See Sackett v. Newton, supra. REPHSAJ. TO APPLY PROPERTY. " 65 (c) It is not required to allege or prove that the debtor has no property tangible to execution. Ownership. (d) The creditor must also satisfy the court or judge, that the property mentioned in the affidavit or proof be- longs to the debtor, and is in his possession or under his control, so that he might apply it upon the judgment, if he would. Unjustly Refusing. It must likewise appear that the debtor unjustly refuses to apply the property above described towards the satisfac- tion of the judgment, or the court or judge will acquire no jurisdiction, and the proceedings will be void. See Spear V. Wardell, 1 JV. Y. (1 Comst.), 151. 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. .Si-e Hall i). Jlellogg, 12 iT. Y., 331. The sheriflF, with execution in hand, has this right as to property, which can be applied upon the judgment by that process. Eut 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 coui'se the creditor himself, or any one au- thorized by him may make this demand fOr both the equitable and concealed property. It is so in the non-im- prisonment act, which, however, does not require the pre- cedent issue of the execution. Thus, in Stewart v. Biddle- cum, 2 W. Y. [2 Ccmst.], 103, the debtor insisted that he did not unjustly refuse to apply his property ujDon the judgment ; fii'st, 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 particu- 5 66 REFUSAL TO DELITER PROPERTT. lar rights in action, stocks, money, &c., -wHcli lie should apply upon the judgment. The court held, that the attor- ney, by his retainer in the action to recover the judgment and collect the debt, had suiBcient 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 creditor ; and that where it is shown that the debtor has an undefined mass of rights in action, stocks, &c., it was sufficient to make a general demand. In this case the demand was in writing, signed by the attorney as attorney of the plaintiif, and by his direction deliYcred to the debtor by another person who, at the same time, made a similar verbal demand, also at the request of the attorney. The demand required the debtor to assign his prop^-ty to the plaintifi' to be applied upon the judgment. The judge who delivered the opinion in this case fur- ther sai(^ that since the statute is silent as to the manner in which the property is to be applied, the debtor does not unjustly refuse, if, when the demand is made, he of- fers to place his property in the hands of some suitable person for the purpose 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, &c.," concern- ing which the demand is to be made ; hence, there is less need of specifying the particular property which the REFUSAL TO DELIVER PROPERTY. 67 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 up- on and sold on execution. On this last point, see Hardy v. Dobbins, 12 Johns., 220. The Code has not altered this rule. Eansom v. Miner, 3 Sandf. S. Ct., 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 prop- erty liable to execution to the sheriff, to be applied to the payment of the judgment. Where 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 as- sign or deliver the same to the creditor, or to some responsible person named, who is willing to accept the trust. A demand that the concealed leviable property be so assigned or delivered, instead of to the sheriff, may do, but the other is preferable. If the property is re- quired to be delivered or assigned to the creditor, the debtor would be justified in refusing, and offering to place it in the hands of a suitable third person for the purpose of having it appropriated upon the judgment. The debtor also unjustly refuses, and entitles the cred- itor to these proceedings, when he bases his refusal on the ground that he intends, or is about making an as- signment for the equal benefit of all his creditors ; or, ■when he refuses, and, at the same time, offers to make a 68 MAKING AND SEEVINa THE ORDEE. general assignment for the ;pro rata distribution of his assets among all his creditors ; because on a demand duly made, the debtor is at once bound to apply his property to the payment of tlie judgment in obedience to tlie re- quest, and his refusal to do so for any reason whatsoever, the law pronounces a fraud ; that is, tlie demand gives the creditor a right to the property superior to that of the debtor, and the latter commits a wrong if lie does not yield to that right ; and every act of his tliereafter to de- feat it, is held fraudulent and void. Spear 'o. Wardell, 1 N. T. [1 Comst\ 144 ; Hall v. Kellogg, 12 W. T., 325 ; In the matter of Prime, 1 Barb., 296 ; S. C, 5 N. Y. Leg. Ohs., 409 ; 3 How., 113. The specific allegations con- cerning the debtor's property, and refusal to apply the same upon the judgment, should be preceded or fol- lowed by a charge in the actual words of the section, that the debtor "has property which he unjustly refuses, &c." SECTION III. Of the order and the exa?nination, c&o. The making of ah order is discretionary with the court or judge. It is a similar order to that under subdivision 1, and should recite the same jurisdictional facts, except that it must require the debtor to appear and answer concerning the property described in the affidavit, and not his property generally. It should also state the resi- dence of the judge, if made at chambers, so as to show jurisdiction on its face. It is served in the same manner as that under subdivision 1 ; unless it is made by the Court, when it must be served like a court order, viz : it must be entered, a certified copy obtained and served on the debtor, without exhibition of the original ; or a copy may ' RETURN OF ORDER — THE EXAMINATION. 69 be served, and the certified copy shown. The Mayor of New York v. Conover, 5 Abb., 244 ; Smith v. Smith, 14 Id., 130, 468. It may be served wherever the order imder subd. 1 may be served. See ante, 36, et seq. In analogy with the Non-imprisonment Act, a copy of the affidavits on which the order was granted should be served with it, so as to inform the debtor of the case made out against him, as to his having property which he unjustly refuses to apply on the judgment ; and such is the general practice, although the Code does not re quire it. Ante, Ch. 1, § 7, p. 39. Proceedings on the Return of the Order. The same course is pursued as to waiting a reasonable time for the appearance of the adverse party, and as to adjournments, as in proceedings under subdivision 1. The same rules as to continuity also apply. The Examination. This is confined to the property specified or mentioned in the affidavit, or proof on which the order was issued, and is conducted in the same way as that under the pre- ceding subdivision. Witnesses may be examined, and the same thoroughness of inquiry may be had within that limit. Ante, ch. 1, §§ 9 and 10. In the Non-im- prisonment Act, the debtor, on being bi'ought before the judge, must first controvert the facts and circumstances in the creditor's proofs, on which the warrant was issued, before the latter can be called upon to adduce further proof, and if he fails to do so, the creditor is at once en- titled to the relief provided by the act. But this practice does not prevail in these proceedings. That act regards the affidavit as a complaint, and requires a certified copy thereof to be served on the debtor at thetime of his arrest, in order that he may be apprised of the creditor's case, and may controvert any of the facts or circumstances 70 EXTENT OF THE INQUIRY. contained therein. But section 292 of the Code does not require the service of any of the affidavits upon the debtor. It intends that the creditor shall inform the debtor of his case upon the examination, where the latter will have the opportunity of cross-examining, and ex- plaining. The course then seems to be this : when the parties are before the court, judge, or referee, the cred- itor is obliged, in the first instance, to prove his case, viz : that the debtor has or owns the property mentioned or described in the affidavit, and that he unjustly refused to apply it toward the payment of the judgment upon a proper demand made. The creditor may establish these facts by the testi- mony of the debtor himself, or by witnesses alone. For witnesses may be examined by either party, and the debtor may be examined in the same manner as a wit- ness. The debtor has the right to cross-examine, and, when the creditor has rested, to produce evidence to dis- prove the case made against him. Extent of the Inquiry. There is a great similarity between the objects sought to be attained by the examination before a master in a creditor's bill, and the inquiry in the proceedings under subd. 2, § 292. There, the inquiry was what property does the debtor own and possess or control, so that he can de- liver or transfer it to the receiver. Ante, p. 3. Here the question is, what intangible property did the debtor own and possess, or control, when the demand was made, so that he could then have applied the same on the judg- ment? In neither case is the examination directed to ascertain whether a given assignment or transfer of pro- perty is 'bona, fide or fraudulent, merely for the pm-pose of an action against the assignee, as maybe done under subd. 1, § 292. But in the proceedings before the master the THE DETERMINATION. 71 debtor could not stop the examination by declaring, that he had no property, or that he had assigned it, or parted with the possession thereof. These and kindred facts could be inquired into and determined by the master. But when it once appeared that there was an actual assign- ment or transfer, so as to bind the debtor and prevent him from delivering the property to the receiver, the inquiry had to stop. A rigid examination into such facts is peculiarly impor- tant in the proceedings under consideration; for here ownership and control of the property are jurisdictional facts ; as we have seen {ante, § 2) ; and if it is not allowed to examine into them rigidly, defeat must attend almost every attempt to seek relief by this remedy. See post, ch. 3, § 3. It must however be mainly left to the court or judge to say how far in a case where an adverse claim is set up to the property, he will inquire into the facts and circumstances to determine, whether or not the debtor had the ownership and control thereof sufficiently to make his refusal to the demand unjust, and then grant the creditor some appropriate relief. The Determination., Mosher v. The People (5 Barb., 675), holds, that in de- ciding the case as submitted, " every intendment should be made against the debtor that can be legitimately drawn from the facts disclosed. If he had never owned the colts (the property in question in the case), or if the avails of them had been applied to the payment of other debts, or consumed in family support, he could have denied, the facts being within his own knowledge ; and there is no hardship in presuming against him, if he refuses to give the requisite explanation or denial. Again, that in forming a judgment that the allegations of the applicant are established, some weight is due to the omission of 72 THE RELIEF. the defendant to answer and explain the- facts and cir- cumstances relied upon, if they appear to have been within his knowledge." As to how far the court or judge may go to determine the ownership and control of the property, see post, eh. 3, § 3. The Relief. If it appears from the examination that the debtor has no Buch property, or none so circumstanced as to bring it within the scope of this subdivision, or that he did not unjustly refuse to apply it upon the judgment, the proceedings will be dismissed; for both these facts are essential to confer jurisdiction. Sackett v. Newton, supra. But if the facts in the affidavit concerning the debtor's property are proven, and he did unjustly refuse to apply it upon the judgment when asked to do so, the proper relief is granted. In most cases the shortest and best way is for the sheriff who has the execution, to take and apply the property toward the payment of the judgment. See The People V. Norton, 4 Sandf. S. Ct., 640. This mode is also more in accordance with other parts of the remedy provided to aid the execution in reaching concealed property. The debtor may be compelled by the court, or by the judge under § 297, to deliver such property to the sheriff for that purpose. Or the debtor may be ordered to apply the property directly upon the judgment by delivering it to the creditor, if it is so applicable, or a receiver may be appointed, and the debtor ordered to deliver it to him, to be applied in that way. Yide post, ch. 3, §§ 8, 5 and 6. The property in question must be shown to belong to the debtor, and to be in his possession or under his control, so that he might have applied it upon the judgment, if he wished, when the demand was made. But where it is not thus under his control, or the title to it is in dis- pute, or where 'he transferred it before the demand was RECEIVERSHIP. 73 made, althotigli fraudulently, so that it was not in his power to comply with the demand, the proceedings can- not be maintained ; for here is no unjust refusal. Keceiversbip. As the date of the demand fixes the period when the debtor had property which he unjustly refused to apply, &c. (Spear v. Wardell ; Hall v. Kellogg, supra), it is suf- ficient to prove the facts as thus charged in the afSdavit ; and although it may appear that the debtor does not own or possess the property at the time of examination, he having in the meantime disposed of the same, yet the court or judge may grant some appropriate relief, as ap- point a receiver to test the transfer by suit. Such a dis- position of property is fraudulent on the part of the debtor, as we have seen ; and it cannot be that the rule of chancery applies here ; to wit, that the execution must first be returned before a suit can be brought to reach equitable property. Beck v. Burdett, 1 Paige, 305, 308 ; Bishop v. Halsey, 3 Abb., 400, 406. Eor the answer is conclusive : the same principle, embodied in this statute, subd. 2, § 292, which empowers the creditor to institute proceedings before return of execution to reach equitable and concealed property unjustly with- held by the debtor, permits him to seek its recovery by a receiver's action where the debtor has fraudulently put it beyond the reach of an order. But otherwise a receiver cannot be appointed herein merely for the purpose of re- covering property by action as may be done in proceed- ings after return of execution. When no property has been discovered that may be delivered to the creditor or a receiver by order under § 297, or that could have been applied toward the payment of the judgment at the time the demand therefor was made, the proceedings must be dismissed for want of jurisdiction. 74 PEIOBITT. Priority, It is held ia the similar proceedings already referred to under the Non-imprisonment Act, that creditors pursu- ing that remedy are to be paid out of the debtor's prop- erty reachable thereby in the order of time in which the demand for an appropriation of such property was made by them respectively and refused. Hall v. Kellogg, 12 JV. Y., 335. It is further held that by making the demand the pros- ecuting creditor acquired a right of preference to such property over the debtor, which the latter cannot defeat afterwards either by preferring another creditor by way of assignment or judgment, or by a trust created for the benefit of all his creditors, nor by a voluntary payment [Id., p. 331] ; and that all creditors who accept payment or an appropriation of the debtor's property with knowledge of the prosecuting creditor's right, are trustees for his benefit to the extent of the money or property received by them respectively. Id. But the demand and the commencement of the proceedings create no lien on the debtor's property. Spear w. "Wardell, 1 iV. Y. [1 Comst.'], p. 161. Hence the demand or proceedings cannot affect an innocent transferee. To secure this right of preference, however, the de- mand and refusal must be immediately followed up by the procurement of the warrant and its delivery to the sheriff for service. Hall v. Kellogg, supra. These principles are applicable to the proceedings un- der review. Where, after thage proceedings have been commenced, an assignment or transfer of the property is made to the prejudice of the creditor's priority, the only course is to appoint a receiver, as above stated, who may bring an action to make good the creditor's right to that priority ; unless the fact of the preference is admitted, and then the property in the hands of the assignee or NATUEK OF ■WARRANT. 75 transferee may be reached hy proceeding according to Code, § 236, or § 294. But no order can be made against a third person under § 297, unless he is proceeded against under §294. "Woodman v. Goodenough, 18 Ahb., 265. To acquire and retain a preference in these- proceedings, the demand must be followed up by the immediate pro- curement and service of the order and the diligent pros- ecution of the proceedings to their termination ; to wit, the application of the property by one of the modes pointed out toward the satisfaction of the judgment. A honafide attempt to serve the order may, perhaps, be sufficient to secure this priority ; such was the rule under the creditor's bill. Ante, p. 2. If this were not so, how easily could a dishonest debtor baffle his prosecuting creditor by avoiding the service of the order, and in the meanwhile get a friendly creditor to commence proceed- ings. See Hall v. Kellogg, 12 IST. Y., 332. If the prosecuting creditor does not use due diligence in the procurement of the order or the prosecution of the proceedings, but permits other creditors to outstrip him in the race of legal diligence, he loses his priority. See sX&o post, ch. 3, § 7, on Liens and Priorities. SECTION IT. Of the Warrant unU&r subdivision 4 of § 292. Nature. The warrant under this subdivision is alternative to the order under the first and second subdivisions. An- drews V. Wilson, 9 How., 39. That is, in any case where an order may be made under subdiv. 1 or 2, a warrant may be issued instead, provided the additional facts ex- ist, which are, "that there is danger of the debtor's 76 REQUISITE PROOF. leaving the State or concealing himself, and (additional to what is required for the order under subdiv. 1,) that there is reason to believe he has property which he un- justly refuses to apply to such judgment." The warrant gives the judge not only jurisdiction of the debtor's per- son, which the order does, but the custody of his body, and thus prevents a failure of justice by his absconding. Hence it is improper to accompany the warrant with an order under subdiv. 1 or 2. The warrant, being merely a substitute for the order, is based on the same kind of judgment and execution as the order it represents. It may be sued out by and against the same persons as the order. But query, can it issue against a female ? Vide subd. 5, § 179 of the Code. An assignee of the judgment can obtain the warrant. E.iag ■y. Kirby, 28 Barb., 49. The execution must have been issued to the same county as in the proceedings by order. Requisite Proof. The proof is by affidavit, and may be made by any person who can furnish it, for an order in the preceding subdivisions. It is expressly made a condition precedent to the issuing of the warrant. The same facts in respect ,to the judgment, execution, and debtor's residence or place of business must be stated that are required for the order which the warrant is to represent. The proof must further establish (1) that there is danger of the debtor's leaving the State or concealing himself ; (2) that there is reason to believe he has property, &c. Upon this first point there is much similarity between the writ of ne exeat and the warrant herein. Both are granted when there is danger of the defendant's leaving the State. To obtain the writ the affidavit must positively show that the defendant intends to leave the State, or it REQUISITE PROOF, 77 must aver his threats and declarations to do so, or state facts and circumstances evincing or amounting to an intention to leave. It will be sufficient if the defend- ant's declarations of such intention is sworn to on infor- mation from members of his family. So a positive aver- ment that the defendant is about to leave the State, or threatens to do so, is suflBcient. But the affidavit need not aiBrm that the defendant is going abroad for the pur- pose of avoiding the payment of the debt. See 1 Barb. Ch. Pr., 649-50. Of course, if facts and circumstances are relied upon in these proceedings to establish that there is danger of the debtor's leaving or concealing him- self, they must be positively stated, and in sufficient de- tail to satisfy the officer, that is, raise in his mind a simi- lar conviction to that contained in the affidavit upon this point. The term danger here is equivalent to that of intent in subdivisions 3 and 5 of § 179, and in §§ 227 and 229 of the Code. So the clause, " there is danger of the debtor's leaving, &c.," is nearly equivalent to that in subd. 1 of § 179, " is about to remove therefrom," except only that " remove " means changing one's residence, which " leaving" does not. Hence, the decisions under those sub- divisions and sections of the Code may be beneficially consulted. As to the second point, see in the preceding section the proof required on the similar point for the order un- der subd. 2 of § 292. It is only the same kind of property after demand and refusal that can be reached by the war- rant at least when issued before return of the execution. Vide infra. There is, however, some diffiarence between the expressions in the two subdivisions. In the former, facts must be stated to satisfy the judge that the debtor has property, &c. ; in the latter, a reason (based on facts) must be given to cause him to believe it. It is the dif- 78 REQUISITE PROOF — SEOURITT. ference between being satisfied that a thing exists and believing that it exists. The same strictness or degree of proof may not be required. The facts on both above points must be positively sworn to — not merely on infor- mation and belief. See preceding section 2. The clause "concealing himself" is no doubt estab- lished when it is shown that there is danger of the debtor's concealing himself so as to render proceedings by order unavailing, even if one were served. As to "unjustly refusing, &c.," if the debtor is in his flight to another State, or keeps concealed, so that no de- mand can be made, this fact itself may be deemed the re- fusal required. Evidently, if it is shown that he does this to avoid a demand, his unjust refusal is established. If the execution has been returned, that fact must be stated. The specific allegations on the above points, viz., that there is danger, &c., and that the debtor has property, &c., should be preceded or followed by the precise words of the subdi- vision. But it will not do to allege " leaving the State," or " concealing himself" alternately. But these clauses may be conjunctively alleged, if such is the fact. Vide Leet V. Heirberger, 1 Code S., 38. Security. No bond or imdertaking need be given before the war- rant can be issued. The -warrant. The warrant, like the order, should correctly recite the recovery of the judgment, issue of execution, &c., that there is danger of the debtor's leaving the State (or of concealing himself, if this latter is the ground), and that there is reason to believe that he has property which he unjustly refuses to apply upon the judgment. The war- rant is issued in the name of the People, and must require the sheriff of the county named to arrest and bring the WHO MAY ISSUE THE -WARRANT. 79 debtor before the officer issuing it foribwith, or on a day specified, at a place designated tberein. It requires no court seal or any other signature than that of the judge. It cannot be made returnable before a referee, like an order. Eut a referee may be appointed after the return to take the evidence. See Andrews v. Wilson, 9 How., 39. In Latham ■;;. "Westervelt, 16 Bari., 421 (non-imprison- ment act), the warrant in the first district was made returnable before one of the justices of the Supreme Court. This command was held merely matter of form and not of substance. It is, however, an irregularity, which is fatal to the proceedings, if the objection is taken in time. See post, ch, 4, § 5. wnat judge may issue the ■warrant. WrLLAED, J., at chambers (Wilson v. Andrews, supra), says, " it (this subdivision) does not, like the first and sec- ond, specify what judge may take cognizance of the case. Of course any judge within his jurisdiction may admin- ister the act. It would be idle to confine it to a judge residing in the county of the debtor when the latter is in his flight to another State and is passing through another county. As a matter of expediency, a justice of the Supreme Court should not order a debtor to be arrested and brought before him from a distant county unless to prevent a failure of justice." In this case the debtor was arrested in Essex County, where he resided, and brought to Saratoga County. According to this view, as a question of power, a justice of the Supreme Court can anywhere in the State issue the warrant and have the debtor brought before him, and a judge of a local court anywhere in the State can issue the warrant, and order the debtor to be brought before him, if found within his county or jurisdiction — without regard to the debtor's place of residence or of business, or the county to which the execution was issued. 80 WHO MAY ISSUE THE WARRANT, But is this the true construction of this clause of § 2921 The warrant is simply a substitute for the order to pre- vent the debtor from absconding or concealing himself. The subdivision reads, " the judge may " imder a given state of facts issue a warrant — instead of the order. It thus clearly refers to the foregoing subdivisions, and means that the judge previously named who could make the order in a particular case, can issue the , warrant instead thereof, provided certain facts are proved to his satisfac- tion. It is plainly intended that the same judge who can make the order in any given case, is to issue the warrant instead ; and not any judge of the State, without regard as to where the debtor resides, or has a place of business, or where the execution was issued to. The warrant may issue to and be executed in any county of the State, no matter who granted it. " The judge may issue a war- rant requiring the sheriff of any county where such debtor may be, to arrest him, &c." Yide ante, p. 36, et seq^. See also Whitaker's Pr., 2 vol. (3rd Ed.), p. 689. This practice has convenience in its favor. Both par- ties may wish to examine witnesses who are likely to be where the debtor resided or did business. If he has left his county and is fleeing to another State, to avoid pay- ing his debts, lie has no right to ask that the examination be had in the county where he happened to be arrested, and at a great distance, it may be, from where the cred- itor and his witnesses are. No analogy can be drawn from the Non-imprisonment act, because that act expressly limits the issuing of the warrant to the county where the judge resides. Yide § 5 of the act. Proceedings on the Return of the Warrant. The return may be made and the proceedings contin- ued before another officer in the same manner and cases that the proceedings upon an order may be. PROCEEDINGS ON RETURN OF WARRANT. 8l Tliis subdivision is crude and defective, and lias as yet received very little judicial notice. The literal meaning of the language is, that when the debtor is brought be- fore the judge and the creditor wishes to obtain the relief to which he is entitled, if his affidavit is true, he is bound to substantiate its averments by the debtor as a witness, and thus surrender his cause at discretion to the tender mercies of his natural foe. But this subdivision and the other parts of the same section must be construed toge- ther. It will then be evident that upon the hearing wit- nesses may be examined on both sides to prove or dis- prove the facts and circumstances in the affidavit upon which the warrant was issued ; and the debtor may or may not be examined, the same as in the proceedings un- der the order of subd. 2. And like in those proceedings, the creditor must first establish his case before the debtor can be required to respond. The same intendment will be made against the debtor from his omission to explain or deny facts and circumstances within his personal knowledge and relied on by the creditor to make out his case. Ante, ch. 2, § 3. After the evidence'is all in, if the judge finds that the creditor's allegations are true, he orders the debtor to enter into the undertaking required by this subdivision of section 292. And in default of entering into such un- dertaking, he m-ay be committed to prison by warrant of the judge as for a contempt. This undertaking is in- tended to answer the purpose of the recognizance and the bond now required in the proceedings under the Non-imprisonment Act (§ Y of that act and Session Laws 1840, ch. 377). During the examination, however, the debtor must re- main in the custody of the sheriff. No provision is made for taking a bond from him in case of an adjournment, as 82 PROCEEDINGS ON RETURN OP WARRANT. there is in the Non-imprisonment act. And adjonra- ments will often be necessary. Want of jurisdiction on account of defective aifidayit npon which the warrant was issued is a complete defense to an action on the bond taken in the proceedings under the Non-imprisonment act. Eroadhead v. McConnell, 3 Barh., 175. Here the defendant had raised the objec- tion to the sufficiency of the proof at the first opportunity. The same plea under the same circumstances is no doubt good to an action on an undertaking given in these pro- ceedings. It will be noticed that in this .latter connection of this subdivision, the words, " or concealing himself " are omit- ted, while the former part authorizes the issuing of the waiTant if it appears that there is danger of the debtor's concealing himself. Will it then be sufficient to hold the debtor, if it is alleged in the affidavit, and it appears up- on the hearing, that there is danger of his concealing himself ? If not, then the above clause is useless. It may be remarked that a debtor may, by concealing him- self, make the service of an order almost as nugatory as if he left the State. After the judge has ordered the debtor to give' an un- dertaking or be committed, the proceedings go on as if commenced by order, and the property discovered is dis- posed of in the same manner. If the evidence, however, does not sustain the credit- or's affidavit, on which the wan-ant was issued, the debtor must be discharged from arrest, and the proceedings be dismissed for want of jurisdiction. And the objection of want of jurisdiction may be taken at any stage of the procedure. Although the charge that there is danger of the debtor's leaving the State, or concealing himself, be not proven, and he must, therefore, be discharged from arrest, PEIOEITT. 83 yet if it appears that he has property within the meaning of subdivision 2, when the execution has not yet been re- turned, and unjustly refused to apply it upon the judg- ment ; or property generally, when the execution has been returned, it seems that the proceedings sbould not be dismissed, but continued as if commenced by the re- quisite order, and the property be disposed of in the same manner. This was done in the case of Wilson v. Andrews, sup7'a. As a mere question of power, a judge may probably do this ; for the warrant is simply a sub- stitute'for tbe order to bring the debtor into court. The proceedings in other respects are the same. But the ex- pediency of adopting this p'ractice is not so clear. It may lead to much oppression by arresting debtors with- out cause or upon trivial circumstances, when the proper course would be to proceed by order. Priority. The same rules as to priority obtain ]|ere as in the pro- ceedings under subd. 2, § 292.' SECTION Y. Of payments hy third persons. SECTION 393 OF THE CODE OF PEOCBD0EB. " After the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid." This section is wholly permissive ; aM if a person pays money to the sheriff under it he must see that he pays 84 PEOCEEDINUS AGAINST THIRD PERSONS. his creditor's debt. If the claim against him was pre- viously -assigned, his payment to the sheriff will not preju- dice the assignee. Eobinson v. "Weeks, 1 Code B. {N. S.), 311. Vide also Lyman v. Cartwright, 3 K D. Smith, IIT ; Eichardson v. Aimsworth, 20 How., 521 ; Country- man V. Boyer, 2 Code li., 4. Money thus paid is not a payment to the judgment debtor ; but it is paid to his use. Calkins v. Packer, 21 Barb., 275. The amount of a verdict in tort, as for assaults and bat- tery, cannot be paid to the sheriff. Davenport v. Ludlow, 3 Code B., 66. But when such a verdict is perfected into judgment, it becomes a debt, and may be 'paid to the sheriff. Mallory V. Norton, 21 Barb., 424. 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 recovered being paid to the sheri^ under this section. Id. But see Hud- son V. Plots, 11 Paige, 180 ; S. C, 3 W. Y. Leg. Obs., 120. Also Andrews v. Kowan, 28 How., 126. SECTION VI. Of proceedings against third persons, under section 294 of the Code of Procedure. " (1) After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon an alEdavit that any person or corporation has property of such judgment ' debtor, or is indebted to him in any amoimt exceeding ten dollars, the judge may by an order require such person or corporation, or any officer or member thereof to appear at a specified time' and place, and answer concerning the same. The judge may also in his discretion require no- tice of such proceeding to be given to any party to the THEIR NATURE. 85 action in suci. manner as may seem to him proper. (2) The proceedings mentioned in this section and in section 292 may be taken upon the return of- an execution un- satisfied issued upon a judgment recovered in an action against joint debtors in which some of tlie defendants have not been served vrith the summons by which said action was commenced, so far as relates to the joint pro- perty of such debtors; and all actions by creditors to obtain satisfaction of judgments out of the property of joint debtors are maintainable in the like manner and to the like effect. These provisions shall apply to all pro- ceedings and actions now pending and not actually ter- minated by any final judgment or decree." The part marked 2 was added in 1863. ITatuie. The proceedings under this section are held to be con- current with the execution, rather than supplementary to it, and to correspond, in this respect, much more nearly with what used to be known as a " bill* in aid of an ex- ecution," than with what was known as " a creditor's bill." Lowber v. The MaJ^or, &c. of New York, 5 Aii., 268. Hence, a stay of all proceedings on the execution does not include these. Id. This definition is correct when the proceedings are taken before return of the execu- tion. These proceedings (under § 294) are somewhat anoma- lous in their nature. An appeal from an order made herein lies to the same Court that an appeal from the judgment does, which proves that they are proceedings in the action, and may be deemed a part of it ; the same as proceedings imder Code, § 236. But they are so fa* special or extraordinary, that the third party is not pro- ceeded against by action. He is brought into court in a summary manner, and compelled to obey all proper orders made against him, in respect to the effects of the judg- 86 FEOCKEDINGS UNDER §§ 292-4. ment debtor found in his hands. To that extent he be- comes a party to the proceedings taken to reach the debtor's property, and is entitled to appear -with connseL Corning v. Tooker, 5 Sow., 19. No order affecting a third person, except as a -witness, can be made in proceed- ings under § 292. That can only be done in proceedings imder § 294. See "Woodman v. Goodenongh, 18 Ahh., 265. It is therefore advisable in all cases where a third person is indebted to, or has property belonging to the judgment debtor, to proceed under this section, rather than by a receiver's action, as this is a far simpler method ; and if the party disobeys the order of the judge to deliver such property, or pay the indebtedness to the creditor, or any other order, he may be punished as for a contempt. So a third party may, also, by this proceeding, be com- pelled to deliver the creditor's tangible property in his hands to the sheriff, to be levied upon and sold, as well as Tmder § 236. Indeed, it will be prudent, in many cases, to institute these in connection with the principal proceed- ings under one of the subdivisions of § 292, in order to reach the debtor's property and demands in the hands of third persons, and to enjoin the latter from disposing thereof in the meantime. Proceedings under §§ 292 and 294, how related. In the country districts, it has been held that the pro- ceedings under § 294 are in aid of, and ancillary to those under § 292, and must be taken in connection with them, or not at all ; because this section does not necessitate a notice to the judgment debtor, who may have a valid de- fense to the proceedings, as for example, that the judg- dient has already been paid. Kemp v. Harding, 4 Sow., 178 ; Sherwood v. The Buffalo and N". Y. E. E. Co., 12 Id., 136. Accordingly, where no proceedtags can be taken under § 292, by reason of the debtor's absence from the State, *" the creditor must file a creditor's bill. Barker -y. John- NOTICE. 87 son, 4 Abh., 435. So, also, -where for any other reason no proceedings can be instituted niider § 292, none can be taken under § 294. But in the first judicial district, Su- preme Coui't, the rule has been finally settled thus : § 294 is independent of § 292 ; but proceedings under the latter section should be first instituted. Where, however, an or- der under § 292 cannot be made, as where the debtor is a corporation, or the order would be inefiectual as by the debtor's absconding, or any other suificient reason is shown, an order under § 294 will be upheld without regard to pro- ceedings under § 292. At Chambers, 1863,Holmes v. Jordan, 15 Abl., 410, note, Baenaed, J., after consulting with Suth- EELAND and Leonard, J J. Also Parker v. Hunt, Id. / "Ward V. Beebe, Id., 372 ; see, also, McBride v. The Farmer's Branch Bank, 7 Ahh., 347. Per contra, however, is Lord V. Ford, 15 Ahh., 409, note, at Genl. T., 1860, Sutheeland, Allen, and Boiwey, JJ. present. The opinion was de- livered by Allen, and concm-red in by Sotheeland with some hesitation. Bonnet, J., expressed no opinion. This decision is, however, overruled by the more recent cases above mentioned, and which the practice follows. Notice. Leonaed, J., in "Ward v. Beebe, supra, said that it had been held in the first district {See Gibson v. Haggerty, 15 Ahh., 406 ; S. C, 23 How., 260], that proceedings un- der § 292 should be first instituted, or the debtor be notified of the proceedings under § 294 before an order is made to apply his property upon the judgment. But he held that this rule was subject to some exceptions, as in case the debtor is not within the jurisdiction of the court/, and where notice cannot be given him; that it was wholly in the discretion of the judge whether notice should be given to the debtor or not ; and that this discre- tion continued to the final consummation of the proceed- ings, to wit, to the making of an order iinder § 297, dii-ect- 88 NOTICE OF OKDEE. ing that the property be applied upon the judgment, and that therefore such an order (under § 297) made without notice to the debtor was not void or irregular, and could not be set aside by any otlier judge. The officer, how- ever, who made it could set it aside if injustice had been done. The same reasoning applies to an order made in such a case under § 298 appointing a receiver to convert the property into money. In Gibson v. Haggerty, supra, proceedings under § 294 had been taken without any un- der § 292, and without any notice thereof having been given to the debtor. After the examination of the third person, an order had been made directing the latter to pay the debtor's money found in his hands to the cred- itor. It appeared that the debtor had assigned this money before these proceedings were taken. It was held that this order, applying the money upon the judgment was not valid to' pass the title to it ; as it had then been assigned by the debtor to a Jowa Jlde assignee, who had no notice of the proceedings. Ingeaham, J., dissented on the ground that the assignee had failed to give timely notice of his claim to the third party. There is much force and equity in this dissenting view. In the Court of Common Pleas, it is also held that the proceedings under § 294 are independent of those under § 292 ; and that it is in the discretion of the judge whe- ther notice of these proceeings shall be given to the judg^ meut debtor ; because the intended operation of the statute might often be defeated by collusion between the judgment debtor and his debtor, if notice were in all cases required to be given. Seeley v. Garrison, 10 Ahb., 460. So also in the Superior Court of the City of New York, proceedings under § 294 have been instituted, and a re- ceiver appointed therein independent of any being had PEOCEEDttTGS — BY AND AGAINST WHOM. 89 at the time under § 292. - Hanson v. Tripler, 3 Sandf. S. Ct., 733 ; alsoTho People v. N"orton, 4 Id., 640. In fact these views held of the proceedings under § 294 by the courts in the first district, seem clear on the face of the sec- tion. In Sherwood v. The Buffalo and N.Y. City E. R. Co., supra, it is held that after the debtor has notice of pro- ceedings under § 292 to enforce the judgment, and fails to appear or deny his liability to pay it, proceedings may be instituted under § 294, even without notice to him. By Whoin Instituted ? These proceedings may be taken by any person that can institute proceedings under § 292. Vide ante, ch. 1, § 3, p. 17. Against 'Whom ? They may be taken against any person or corporation that is alleged to have property of or to be indebted in any amount exceeding ten dollars to the judgment debtor ; provided, in the country districts, as we have seen above, that proceedings under § 292 can be taken on the same judgment and are then pending. When the proceedings are instituted against a corporation and it is required to appear and answer, the answers must be on the oath of one of its officers (§ 296), that is, such officer appears and answers for the corporation. The more usual practice, however, is to require an officer, or a member of such cor- poration, naming him, to appear and answer in its be- half. The clerk of a court, or the chamberlain of the City of New York, with whom is deposited money arising from the foreclosure of a mortgage, cannot be examined under this section for the purpose of reaching such money. Anon., 1 Code R. [i\^. S.^ 211. It was held at Supreme Court, chambers, by Cleeke, J., that the debtor's wife, alleged to have his property, 90 PROCEEDINGS — ON "WHAT JUDGMENTS. could be examined under' this section. Lockwood v. "Worstell, 15 Abb., 430, note. But this is very question- able. Some of the other justices hold the contrary. To the contrary is also Macondray v. Wardle, 7 Abb., 3. On •what Judgments ? All the courts hold that these proceedings may be taken upon any judgment on which proceedings under § 292 can be instituted. Vide ante, ch. 1, § 4, p. 19. In the country districts, according to the above decision of Sher- wood V. The B. and N. Y. City E. E. Co. ; and Hind v. The Oanandaigua-and Niagara Falls E. E. Co., 10 How., they cannot be taken upon a judgment against a corpor- ation, because none can be instituted upon such a judg- ment under § 292. But in the first district it has been decided that these proceedings may be instituted on a judgment against a joint stock company or association sued in the name of its president or treasurer ; that is, they may be taken against such officer to compel him to attend and be ex- amined, if it is alleged that he has property of, or is in- debted to the company. Court of Common Pleas : Cour- tois V. Harrison, 12 Id., 359 ; S. C, 3 Abb., 96 ; 1 Hilt., 109. They may also be taken against any member of such company who is alleged to have property or money of the company. It has also been held in the Supreme Court, same dis- trict, that a judgment creditor of a municipal corporation may institute these proceedings against a person indebted to or having funds of such a corporation, as the chamber- lain of the city of New York. Lowber v. The Mayor, &c., of New York, 6 Abb., 268. But public money, raised by a municipal corporation, pursuant to law, for governmental purposes, and in the hands of its fiscal agent, cannot be reached. Its private property is undoubtedly liable for its debts, and such liability may be enforced in the ordi- ON WHAT EXECUTION. 91 nary modes of collecting debts. Lowber v. The Mayor, &c., of New York, 1 1d., 248. It was further held in the same com't and district, that proceedings on a judgment against a foreign corporation may be taken against a person in this State who has prop- erty of or is indebted to such corporation ; because such body is not subject to our statutes on corporations. McBride v. The Farmers' Branch Bank, Id., 347. After the decision of Sherwood v. The Buffalo and N. Y. City E. E. Co., supra, Ingeaham, J., who delivered the opinion in the two preceding cases, said that he hesitated to'insist upon his views expressed upon this point in Courtois v. Harrison, supra, although he was still of the same opinion. Since then, however, the rule has been settled in the first district, that a debtor of a corporation may be examined under § 294, as we have seen. On what execution and vrhere the examination is to be. The execution must be issued, but need not be returned. That is, these proceedings may be commenced imme- diately after execution issued against the judgment debt- or's property. It need not be issued to the county where the judgment debtor resides (or has a place of business). It suffices if issued to the county where the property is expected to be found and where the person alleged to have it resides. The People v. Norton, 4 Sandf. S. Ct., 640, (1861). Here the execution was not yet returned, and the court said the object of an examination in such case was to discover property on which the execution might be levied. Can this decision be extended to a case where the execution has been returned ? There the reason for this decision is wanting. The object of issuing an execution is that an effort may be made to satisfy the judgment in the ordinary way ; and how can that be fully done unless the execution is issued to a county where 92 WHO MAY MAKE THE ORDER. a demand'may be made of the debtor ? It has been held that after return of execution, the proceedings need not be instituted in the county to which it had been issued, or in which the judgment debtor resides, especially if the person to be examined does not object ; that § 294 imposed no such conditions. The judge will naturally select a place for the examination, other things being equal, most convenient to the person to be examined and not neces- sarily so to the debtor; as he is not compelled to at- tend. Foster v. Prince, 8 Aik, 407 ; S. G, 18 Sow., 258, Supreme Court, General Term, First District. See also Courtois V. Harrison, supra. The Hesidence of a corporation is in the county where its office is located, and its general business transacted. Conroe v. The ISTational Protection Ins. Co., 10 How., 403. It is evident from these decisions and from the section itself, that the execution may be issued either to the county specified in § 292, or to that where the third per- son resides, or the corporation is located at the time. Put it must be issued to one or the other of these coun- ties. It is also clear that it is wholly left to the discre- tion of the judge to designate the place of examination — only so that it is within his jurisdiction. "WTiat Judge can make the order. If these proceedings are subsidiary to those xmder § 292, then the judge who has charge of the latter should insti- tute and entertain the former ; or else the difficulty pointed out in Kemp v. Harding, and Sherwood v. The B. and N. Y. City E. E. Co., supra, will not be obviated ; and clearly upon this view of these latter proceedings (as auxiliary to those under § 292), another officer has no more right to entertain them than he has to interfere with the principal proceedings, under, § 292. But this raises the grave ques- tion whether a local officer has the power to compel a third party to attend before him who resides and is served WHO MAY MAKE THE ORDER. 93 outside of the jurisdictional limits of Ms court. ' It is quite evident that he cannot. Hence, this remedy is inappli- cable in such case ; or resort must be had to a judge within whose jurisdiction the third party resides or may be served. A logical construction of this section would limit the power of ins^tuting this proceeding to the officer who could institute those under § 292. For this section speaks of " the judge," clearly referring to the judge mentioned in § 292. But the case of The People v. Norton, supra, does not so construe this clause of the section. Then, upon the view taken of this proceeding in the first district, that it is independent of those under § 292, any of the judges mentioned in the last named section may within his juris- diction administer this provision : namely, a Supreme Court justice may make the order anywhere in the State on a judgment in his Court, but he should require the third party to attend at some place in the county of his resi- dence ; and a local judge m.ay make the order and enter- tain the proceedings, provided the third party resides or is served within his jurisdiction, and the judgment is such a one that he might institute upon it the proceeding? under § 292. The proceedings may also be continued by other judges in the same cases and under like circum- stances as those under § 292, except perhaps, the contin- uance of proceedings before a justice of the Supreme Court provided for by the amendment of 1859, to that section. The Broof Is by affidavit, and is made in the same manner and by the same person as that required by § 292. Vide p. 29, ante. It should allege the same facts in respect to the judgment and the parties to it. It should state that an execution against the property of a judgment debtor was issued, either to the county named in § 292, or to that in which the third party resides. If it has been returned, that fact ought to be stated : for in such a case a receiver may be 94 THE PROOF. appointed ^o bring an action against the third party to recover the property if he claims it, or the debt if he denies it ; and he rnay also be enjoined under § 299 ; neither of which can be done where the execution has not yet been returned. Vide ante, ch. 2, § 3, p. 73. The residence of the party to be examined should also be stated. It may sufiBce to state his place of business, however. If proceed- ings under § 292 are pending, that fact should be stated ; if none, the reason should be given, such as that the debtor has absconded. However, it seems only necessary to show why no proceedings have been taken against thq debtor himself or why no notice of these was given him upon a motion to have the money or property found in the third party's hand applied upon the judgment. Ward v. Beebe, supra. If the creditor desires that no notice be given to the judgment debtor, according to Seeley v. Gar- rison, 10 Abi., 460, he must state the reasons. In those Courts where these proceedings are held to be ancillary to and dependent upon the former, the proof is simplfer. The affidavit is then the same in both proceedings in respect to the, judgment, execution, and residence or place of busi- ness of the judgment debtor. It should state that proceed- ings under § 292 are pending ; and give the residen ce of the person to be examined. In all cases, the affidavit must positively state that the person to be examined has property of the judgment debtor, or that he is indebted to him in an amount exceedmg ten dollars. The allegation of either of these facts is expressly made a condition precedent to the making of the order. The property should be described, and the origin of the in- debtedness. The ten dollar limitation applies only to in- debtedness, and not to the value of property. Brett v. Browne, 1 Aid. [IST. S.], 155. THE ORDER — SERVICE OF. 95 SECTioK m. Of the order and the proceedings thereon. The Order Should correctly recite tlie jurisdictional facts, the same as under § 292, (ch. 1, § 7, ante, p. 33), and require the third party, or the corporation, or an officer or member thereof named, to appear before the judge or a referee at a time and place specified, to answer concerning the prop- erty or indebtedness stated in the affidavit. Although these proceedings are of a special nature, yet they are gen- erally entitled in the Court to which the judgment be- longs. Notice may or may not be directed to be given to the judgment debtor. Service of the Order Is made like that under § 292. It may be served any- where within the territorial jurisdiction of the officer who granted it. See " Where served^'' ante, ch. 1, § 7, p. 36. Proceedings on return of the Order. Where notice was required to be given to the judgment debtor, and that appears to have been done, the examina- tion will go oh though he is absent, after waiting the proper time. Corning v. Tooker, 6 How., 16. The gen- eral conduct of the proceeding is the same as under § 292 ; but the examination is more limited. It was held in Bar- culows V. Protection Co. of K J., 2 Code E., 72, that where the third party claims a lien on the property in his hands, he may be examined 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 no fm-ther. It was decided in Van Wyck v. Bradley, 3 Code B., 157, 8p. T., that where the third party " claims the whole prop- 96 PROCEEDINGS ON RETURN OF erty, he need answer no further." Still he " may be re- quired to state distinctly what the measure of his claim is, though not what his title is." The Court in Clapp v. Lath- rop, 23 How., 423, 443 disapproves of the last above cited case, and says that it " has not been generally accepted as an authority. Indeed it has been almost universally dis- regarded in practice throughout the State." But both these cases arose in proceedings under § 292. In Tompkins Co. Bank v. Trapp, 21 IIow., 17,«before a county judge, it was held that if the third party denies generally that he is indebted or has any property belong- ing to the judgment debtor, the inquiry must stop. He cannot be compelled to make more specific or particular answers in the proceedings under § 294. The judge in this case lays much stress on the fact, which he asserts, that no witnesses can be examined in this proceeding as in those vmder § 292 ; and that the third party is only obliged to appear " and answer concerning the same," (the property or indebtedness ;) while the debtor under § 292 may be examined like a witness, and at large. The judge is in error on both these points. By § 295, " witnesses may be required to appear and testify on any proceedings under this cha^pter." Again, by subd. 5. of § 292, " no person shall, on examination pursuant 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. See Clapp v. Lathrop, supra, as to the mean- ing of this clause. So also the expressions used in §§ 292 and 294 in respect to the parties appearing and answering are the same or similar. Could then language be much stronger to signify that in proceedings under § 2;M, as Avell as in those under § 292, the creditor may inquire into the circumstances attending the transfer of the property in question to the third party, and' its possession by him, and also examine him upon these points? This position is THE ORDER. 97 Strengtliened by the fact that it is Jield that if the third party is called as a witness in proceedings under § 292, he may be thus examined. See ante, ch. 1, § 10, p. 51. " Extent of the inquiry." This inquiry is not for the pur- pose of determining the claim of interest or title which may be set up to the property, but to ascertain whether it is not a mere fiction, the baseless fabric of a bald fraud, barren of every fact and circumstance capable of present- ing an issue for a receiver's action ; and if so, to order the third party to surrender the property to the creditor or receiver. For it must be borne in mind that no order under § 297 can be made against a third person unless he is proceeded against under § 294. Woodman v. Good- enough, 18 Alh.^ 265. Hence, if this course cannot be pursued, few orders can be made under § 297 ; because the debtor need but turn his property over to a friend or confederate, who under § 294 need only swear that he owns it, and then stop. He is the judge of the law and the fact. The creditor is checkmated, although the exam- ination under § 292 may show the transfet to be the veriest pretence. At least, the examination against a third party ought to be as rigid as it was against a debtor under the creditor's bill. He cannot be harmed by it ; because his ob- jection to the disclosure of the facts and circumstances on which he rests his claim or possession of the property, is of no avail, as the creditor may compel him to disclose those very facts as a witness in proceedings under § 292. Property discovered. When property of the judgment debtor is found in the third party's possession, it may be applied upon the judg- ment by order under § 297, or through a receiver. Vidt post, ch. 3, §§ 3 and 4. But where the property or an interest therein is claimed by the third party or by any other person, or the possession of the property, or the 7 98 PROCEEDINGS — "WHEN TAKEN. indebtedness, is denied, nq order will be made under § 297 ; for § 299 applies to all such cases. (Sberwood v. The B. & ]Sr. Y. City E. K. Co., sujpra). See post, ch. 3, § 3. When the execution is yet in tha sheriff's hands, and the property belongs to the judgment debtor, the most ap- propriate course is to let that officer levy upon and apply it on the judgment, if it is thus applicable. See The People V. Norton, 4 iSandf. S. Gt., 640. Per contra, Lowber v. The Mayor, &c. of N. Y., 5 All., 270, Supreme Court. The former is by far the more rational and con- sistent view on this point. ■When may proceedings be taken. They may be taken at any time after the issue of exe- cution. Seely v. Garrison, supra. They maybe taken even . after the proceedings under § 292 are closed, and a receiver appointed. Lockwood v. Worstell, 15 All., 430, note. "Where it appeared on return of the order herein, that the judgment debtor was dead when the order was made, the proceedings were held to be void; but that the lien, if any order made previous to his death, had given the creditor any such would probably be saved in an action ta bring in the representatives. Hasewell v. Penman, 2 Id., 230 ; S. C, 13 Emv., 114. Pending Attachment. Where a creditor took out proceedings under § 294, but before the service of the order on the third party, the property in the hands of the latter was attached as be- longing to an absent debtor by another creditor, it was held that this was no reason for dismissing the proceed- ings. On the contrary the judgment creditor was entitled to a receiver to protect the property till the rights between the debtor and attaching creditor were determined. Han- son V. Triple, 3 Sandf. S. Ct., 733. WITNESSES. 99 Witnesses May also be examined in these proceedings. Vide §295. SECTioiT vm. Of witnesses and their attendance. SECTION 395 OP THE CODE OF PROCBDUKE.! " "Witnesses may be required to appear and testify on any proceedings under this chapter in the same manner as upon the trial of an issue." That is, a witness is required to appear by the service on him of a subpoena and the payment or tender of the legal fees. The subposna issues out of the Court in which the judgment was recovered, or into which it was dock- eted from an inferior Court, in like manner as in the trial of an, action. It is served in the same manner, and the same fees are paid or tendered the witness. Yide Davis V. Turner, 4 How., 190. If a person appears and is sworn as a witness he is obliged to answer any material or per- tinent question, whether he has been subpoenaed or not. People ■«. Marston,18 Abh., 257. In this case the witness was the partner of the judgment debtor, and on his exam- ination declined to answer whether there were entries in any books within his control which would enable him to state how much money the debtor had received from the firm during a given time ; and he also refused to produce such books in obedience to a subpena duces tecum. The court at general term affirmed with costs the order com- mitting him as for contempt in refusing to answer the above question. The Oath administered to a Witness. The oath should require the witness to answer all ques- tions which shall be put to him concerning the debtor's 100 PRODUCTION OF BOOKS BY DEBTOR. property ; or, if examined in proceedings against a tMrd party, concerning the debtor's property in the hands of the third party. The oath administered to the debtor should require him to answer all questions put to him concerning his property, ■while that administered to a third party should require him to answer all questions concerning the debtor's property in his hands, or his indebtedness to the judgment debtor. Duces Tecum. If the witness is required to produce books, papers, &c., he must be served with the ordinary sub^mna. duces tecum. The production of Books, &c., by the Debtor. If the creditor wishes to have the books, &c., of the debtor upon the examination, he must procure an order for that purpose from the judge. He might, perhaps, compel their production by the service of a suhpcena duces tecum. But the chapter on supplementary proceedings, while it provides that the debtor may be examined in the same manner as a Witness, does not provide that he may be re- quired to appear in the same manner as a witness. How- ever, for the purposes of producingbooks, &c., he might be considered as a witness, and within section 295. In the creditor's bill, the order of reference made by the court always required the defendant to produce on the examination such books and papers as the master might direct him to produce. 191 Oh. Hule / 2 Barb. Ch. Pr., 167. ■Wife of Debtor Cannot be examined as a witness for or against her hus- band in supplementary proceedings, any more than on the trial of an action. Andrews v. Nelson, 7 Abb., 3, note. Nor can she be examined though it is claimed that tlie property standing in her name belongs to the husband. COMMISSION — REFEREE. 101 Macondray v. Wardle Id. ; also see Copous v. Kauffman, 8 Paige, 588. But Cleekb, J., at chambers, held she could be examined under § 294. Lockwood v. Worstell, supra. However, this decision is "not adhered to even in the Supreme Court. Commission, No commission can be issued to take the testimony or deposition of a witness out of the State, to be used in these proceedings. Graham v. Colburn, 14 How., 52. Nor can it be done since the amendments of 1860 and 1862. Mor- rell V. Hoey, 24 Id., 48 ; S. 0., 15 All., 430. SECTION IX. Of the Referee. SECTIONS 296 AMD 300 OF THE CODE OF PKOCEDTJEE. § 296. " The party or witness may be required to at- tend before the judge or before a referee appointed by the court or judge ; if before a referee, the examination shall be taken by the referee and certified to the judge. All examinations and answers before a judge or referee under this chapter shall be on oath, except that when a corpora- tion answers, the answers shall be on the oath of an officer thereof." § 300. " The judge may in his discretion order a refer- ence to a referee agreed upon by the parties or appointed by him to report the evidence or the facts, and may, in his discretion, appoint such referee in the first order, or at any time." § 300 was amended in 1857 by adding the last clause. Before that, some authorities held that the judge could not appoint a referee in the first order, whilst others held he could. Vide 8 Row., 163 ; 313 ; 11 Id., 446 ; also 9 Barb., 378. The amendment settled this point. 102 APPOINTMENT OF REFEREE. Nature of the Reference. Only the examination or the ascertaining of certain facta is referred. The proceedings themselves can no more be referred than an actiofl can. They continue before the court or judge ; arid on the coming in of the referee's re- port of the evidence or of the facts, the officer takes the case from the report the same as if he had himself by an examination obtained the evidence or detei-mined the facts. His next duty is to grant the appropriate order on the facts before him. Hulsaver v. "Wiles, 11 Mow., 446, 449 ; Con- way V. Hitchins, 9 Barh., 378, 386. His Appointment, by -whom ? He must be appointed by the judge who instituted the proceedings, or before whom they are at the time contin- ued, where such a continuance is authorized. See ante, p. 12. No other officer can appoint the referee. He may also be appointed in proceedings under § 294. If he dies, or the proceedings before him fall through from any cause, the judge may appoint another. Allen v. Starring, 26 Sow., 57. The court, by § 296, also may appoint a referee ; but this evidently means, only when the proceedings under subd. 2 of § 292 are taken before the court. Notice. He may be appointed without any previous notice to the debtor. But if he is exceptionable, or the order has been improvidently granted, the aggrieved party may apply at once to the officer to modify or vacate the order. Conway V. Hitchins ; Hulsaver v. Wiles, supra. The appointment is discretionary with the judge. Campbell, J., in Hollister v. Spafford, 3 Sand/., 742 ; S. C, 1 Code R. [N. S.], 120, announced that as a general rule the justices of that court would not order a reference against the wishes of either party, but direct the examination-to be POWER OF REFEREE. 103 taken at chambers. When, however, the parties agreed to it, or when it is apparent that a difficult or protracted in- vestigation must ensue, and the examinant has counsel, a reference will be ordered. In the New Tork Common Pleas it is the rule to direct a reference in proceedings on judgments rendered in the Marine and the district courts of the city of ISTew Tork. The judges of this court have designated a number of persons from whom the creditor must select a referee. But one of the judges selects the referee himself. A county judge may appoint a referee as well as a Supreme Court .justice. Conway v. Hitchins, supra. Referee's po'wer. He may be appointed to take the examination and report the evidence, or the facts found by him from the evidence. See § 300. But he is generally appointed to take and report the evidence merely. It was held in Dorr v. Noxon, that when he is appointed to report the facts, he cannot report the evidence at large (5 Sow., 29). But there can certainly be no objection to his appending the examina- tionor evidence to his report of the facts. Wlien directed to report the facts, he should report whether any property ap- plicable to the payment of the judgment by the proceedings instituted has been discovered, of what it consists, its value, how and where situated, whether it can be directly applied upon the judgment under § 297 or whether a receiver should be appointed ; and whatever other facts he may be directed to find. See Dickinson v. Van Tine, 1 Sandf. S. Ct. 724. KS&o\Boerh. Ch. Pr., 670. Edwards on Eeferees (p. 175) says that the referee may be appointed with the usual powers which a master in chancery possessed, where it was referred to him to appoint a receiver and take the defendant's examination, &c., in a creditor's bill ; that the order may empower him to fix the time of the examina- tion and to issue his summons to the debtor to attend the 104 POWER OF REFEREE. reference at such time as lie shall have named, and that a disobedience of such summons would be a contempt if personally served. In such a case the course is this : after obtaining the order for the debtor's examination, the creditor's attorney procures the referee to issue his sum- mons to the debtor or third party requiring him to attend before him at a time specified at the place designated in the order. The summons must be personally served to com- pel an attendance, like the order ; and may be served with it. This summons is entitled in the cause and signed by the referee appointing a time and place for the party to attend him. It should be properly underwritten, or the nature of the reference to be proceeded in or the object of the attendance should be stated in the body thereof. See Burl. Ch. Pr., vol. 1, p. 472—3. But if it is served with the order which apprises the debtor of the nature of the proceedings and the object of the reference, it need not be so specific. The referee must direct in the sum- mons the number of days it is to be served previous to the party's attendance before him, which should be a reason- able time, according to the distance the debtor has to come. Id. The order of reference authorizing him to require the debtor's attendance by summons might proba- bly also authorize him to direct the debtor to produce books and papers on the examination, as a master could do. There is this difference between the powers of a re- feree herein and a master. The latter appointed the receiver and decided what property should be delivered to him and ordered its delivery; whilst a referee can only report the facts to the judge, who must appoint the receiver and make the requisite orders under §§ 297 and 298. But when the proceedings (sub. 2 § 292) are insti- tuted before the court, it may appoint a referee as is done in judgment creditor's actions with the usual powers of a master. ADJOtJENMENTS. 105 He has no control over the person of the debtor, and cannot punish any disobedience of an order, or any other misconduct by a party or witness. He must report the offence to the judge or court. Green v. Bullard, 8 How., 313, 318. In such matters he has merely the powers which a master in chancery or a commissioner to take testimony possessed. Code, § 272, applies only to referees appointed to try issues. Adjournments. The referee can adjourn the reference from time to time, as the cireuinstances of the case may require, and may do this no doubt on his own motion in a proper case. He makes the adjournments, and not the judge who appointed him or before whom the proceedings are continued. Ill health and extreme mental excitement in the debtor are good grounds for adjournment. If he is unjustly abitrary, and refuses a postponement when a clear and undoubted case is made out for it, the defetor would be justified in with- drawing, and letting the matter come before the judge on a motion for an attachment. So held in Mason v. Lee, 23 How., 466. This case incidentally holds that the referee may make the adjournment in the debtor's absence upon the application of his attorney, as was held in Parker v. Hunt, 15 Ahi., 410, note, in proceedings before a judge. But the order of adjournment should be served on the debtor. Vide ante, ch. 1, § 8, p. 46. The referee cannot, however, adjourn the matter indefinitely. Orr's Case, 2 Abh., 457. The summary nature of supplementary pro- ceedings requires him to proceed with the reference with all due dispatch. The Proceeding Before the referee is conducted in all respects as it is before the judge. See ante, ch. 1, § 9, p. 47. He swears the debtor and witnesses. The questions and answeis should all be taken down in writing, to enable Ihe judge 106 RESIDENCE — REPORT OF REFEREE. to see more clearly the bearing of the evidence, should a question therein be submitted to him. Edwards on It^f- erees, p. 190. See ante, ch. 1, § 9, p. 47, as to the referee's power of al- lowing corrections to the witness' or a party's examina- tion, and of re-examination. Hesidence. A referee appointed by a Supreme Court justice need not resid-e in the county where the debtor resides, or where the examination is taken. He may be appointed to take the examination in a different county from that in which his appointment was made. Bingham v. Disbrow, 14 Ahh., 251; S. C, 37 Barh., 24 ; Wilson v. Andrews, 9 How., 39. But no referee appointed by a local court or judge can take the examination outside of the jurisdic- tional limits of the power that appoints him. Bonner v. McPhail, 31 JBarl., 107. The Report. To ■whom Certified. The report, whether of the evidence or the facts, of a misconduct or otherwise, is certified to the tribunal that appointed the referee (Smith v. Fitch, 7 How., 40) ; be- cause the referee is the mere agent of the court or judge appointing him. Hulsaver v. Wiles, 11 How., 446. But, of course, the report may be tised or read ©n a motion made to any other judge where the proceedings are con- tinued before him. Filing of Report. When the referee is appointed by the court, his report, it would seem, must be filed under Supreme Court Eule 32, though Edwards on Eeferees (p. 199) thinks the rule does not apply to these summary proceedings — especially where the referee is appointed merely to take and certify APPEAL. 107 the examination. As to filing tis report when he is ap- pointed by a judge, the general practice is, on the appoint- ment of a receiver, to file the examination and the report in the com't to which the judgment belongs, and the judge could, perhaps, order such filing in a proper case. But such filing is not necessary. See The People v. Mead, 29 How., 360. An Appeal. 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 rulings or findings reviewed by the court or judge. Thus, if the referee is appointed to report the facts, and he finds and reports that certain property belongs to, and is in the pos- eession or under the control of the debtor, and should be delivered to the creditor or a receiver, the debtor or third party may, on a motion thereupon to compel him to deliver up such property, or to confirm said report under the rule, if that be necessary, show that the referee erred in his findings, as he could have done under the creditor's bill. Yide Dickinson v. Van Tine, supra. 108 WHAT PROPERTY MAY BE REACHED. CHAPTEE III. OF THE PEOPEETY WHICH MAY BE BEACHED, AND THE MEANS OF KEACHINQ AND APPLYINQ IT UPON THE JTfDGMENT. Sectiok 1. "What property may be reached. 3. What property cannot be reached, with some exceptions. 3. How the property may be reached and applied upon the judgment. First, by Order 4. Second, by Receiver. 5. When the receiver is vested with the property, and when entitled to its possession. 6. The receiver's office, powers and duties. 7. Liens and priorities. 8. Appointment of receiver by the court. SECTION I. What property may hereached. WTiat property may be reached. The chapter of the Code which treats of supplementary proceedings, uses the words " property " and " any proper- ty,'' when spealdng of what may be discovered and ap- plied upon the judgment against the debtor. The term " property," as defined by § 464 of the Code, includes real and personal property ; the words real property, by § 462, are co-extensive with lands, tenements and hereditaments ; and "personal property," by § 463, includes money, goods, chattels, things in action, and evidences of debt. So that whatever comes within the meaning of any of these terms, is property that can be reached, unless it is ex- cepted by law. I here speak more particularly of pro- ceedings instituted by order after the return of exe- cution. Those instituted before the return of execution, are confined to equitable and concealed property, as we WHAT PROPERTY MAY BE REACHED. 109 have seen. But with that qualification, the latter pro- ceedings are as far reaching as the former. The 2 R. S., p. 174, §§ 38 and 39, which ^authorize a creditor's suit to reach a debtor's property, uses the words, "property, money " and " things in action," all of which, under the Code, are embraced in the term " property." It is, then, evident that whatever property could be reached by a creditor's bill can be reached by supplementary proceed- ings through the judge's order under § 297, or a receiver appointed under § 298 ( Vide Drought v, Curtiss, 8 ITow., 56) ; whether the property still belongs to, and is under the control of, the debtor, or has been transferred in fraud of his creditors, and is, therefore, beyond his control. This last, however, can not be done by proceedings in- stituted before return of execution. But see p. 73. Every species of property could be reached, and applied upon the judgment, by means of a creditor's bill. Eames- ton V. Lyde, 1 Paige, 637. Thus the debtor's interest in an estate as next of Mn could be reached. McArthur v. Hoysrod, 11 Id., 495, So, also, his interest in a partnership, after paying the firm debts, and satisfying all prior equities in fa"^or of the partners, was reachable. Eager v. Price, 2 Id., 333. The same may be done by supplementary proceedings. "Webb v. Overmann, 6 Aih., 92. In like manner where one had made advances and incurred liabilities to enable the debtor to carry on a business, without any benefit to him- self but under an agreement 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 hia debts under a creditor's bill. Taylor v. Perkins, 26 Wend., 124, So the use, rents and profits of the debtor's real estate 110 WHAT PROPERTY MAY BE REACHED. sold on execution for tlie fifteen months allowed to re- deem after such sale, could be reached, -whether the rents and profits had accrued before or after filing the bill. Farnham v. Campbell, 10 I^aic/e, 598 ; 9 Id., 372. The rents and profits, which accrued after the filing of the bill, were 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 debtor's right to redeem the real property of his debtor sold on execution, may be reached through a re- ceiver. Vide 3 H. S., p. 371-2, §§ 61, 55 ; Van Rens- selaer V. Sheriff of Onondaga, 1 Cow., 443. So the right to redeem his own thus sold, may be reached by the same means. It was held in Phyfe v. Eiley, 15 Wend., 251, that trustees of a non-resident, &c., debtor, were grantees of the latter within the statute (2 li. S., p. 370, § 46, subd. 3), and could redeem, but that they acquired no greater rights or powers than the defendant himself would have had if he had redeemed. This clearly applies as well to a receiver appointed in these proceedings. But he will take such property subject to all liens which had attached thereto prior to the time when this real estate vested in him according to § 298. See Chautauque Co. Bank v. Eisely, 19 iV. Y., 369, (374). "Where the real estate of the wife was sold on partition and the proceeds brought into court, the husband's incho- ate interest in the property as tenant by the courtesy, could be reached by a creditor's bill. Ellsworth '■«. Cook, 8 Paige, 643. So a right of dower to which the widow is immediately entitled, although it is not yet assigned, can be reached. Tompkins v. Eonda, 4 Id., 448 ; Stewart v. McMartin, 5 Barb., 438 ; Moak v. Coats, 33 Id., 498. So may also an annuity, bequeathed to the wife in lieu of dower, and CHOSES IN ACTION. Ill charged upon the testator's real and personal property, which is ahsolutely devised and bequeathed to others. For the annuity is not the income of a trust estate hut is absolutely hers. She can dispose of it by anticipation. Degraw v. Clason, 11 Paige, 136. Yide also Ten Broeck V. Sloo, 2 Aii., 234; S. C, 13 ITow., 28. The interest of a debtor in a contract for the purchase of real estate was reachable by a creditor's bill. Ellsworth V. Cuyler, 9 Pmge, 418. Keal property out of the State can also be reached. 'And a justice of the Supreme Court or a county judge may exercise the powers which a court of equity has, to compel a debtor, of whose person he has acquired jurisdiction, to execute such formal con- veyance or assignment of his property out of 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 punish him as for a contempt. Fenner v. Sanborn, 37 Barb., 610. The same rule applies to personal property situated out of the State. Bunn -y. Fonda, 2 Code E., 70. But the- debtor cannot be compelled to deliver up property thus situated. Id. Chosea in Action. As to what rights or things in action arising on breach of contract, or on tort, may be reached, let us first see what rights of this kind may be assigned. All these rights arise (1) either from injuries to tlie person, person- al feelings or character ; or (2) from injuries to the estate. The former die with the person, and are inassignable, whe- ther they arise on contract, as a breach of promise to marry, or on tort, as assault and battery. And of the lat- ter, those only which arise from a breach of con- tract, or from a tort whereby some special damage has arisen to the esta.te of the assignor, are assignable. 112 CHOSES IN ACTION. Everything in action which will survive the perBon and pass to the personal representatives, is assignable. In fact, the power to assign and tlie power to ti'ansmit to the personal representatives, are convertible propositions. The People v. Tioga C. P., 19 Wend., IS ; McKee v. Judd, 12 (2 Kern.) JT. T., 622 ; Zabriskie -v. Smith, 13 Id., 332 ; Butler v. JST. Y. and Erie E. R. Co., 22 J3a)-b., 110 ; Gould V. Gould, 36 Id., 275 ; 6 Eow., 161. Thur- man v. "Wells, 18 Barli., 500, to tlie contrary, is thus overruled. In these cases tlie right of action arose from injury to, destruction, or conversion of personal property. It is further held, that the same rights that are assigna- ble under tlie statutes of insolvency will upon the own- er's death pass to his personal representatives. The People V. Tioga C. P. ; and Zabriskie v. Smith, eupra. See what passes in cases of insolvency, 2 E. 8., p. 41, § 7. N"ow, whatever rights of action are assignable or transmissible to the personal representatives, may be reached by these proceedings through a receiver, unless exempt by law. 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 Broeek v. Sloo (2 Abb., 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 v. Plets, 11 Paige, 180 ; S. C., 3 N. Y. leg. Ohs., 120 ; Drought v. Curtiss, 8 How., 56, and Gillett v. Faircliild, 4 Venio, 80, wherein it is held that rights of action for injuring or converting personal property of the debtor while the same yet belonged to him vest in the re- ceiver, because such act has diminished or destroyed the value of property to which the creditor had a right to re- sort for the payment of his judgment. See also Brouwer v. Hill, 1 Sandf. S. Ct., 629-649. DAMAGES — FUNDS MIXED — JOINT PROPERTY. 113 Damages for injury to Heal Estate. . From the above authorities, there seems no doubt that the right of action for an injury done to the debtor's real- ty also vests in the receiver appointed herein, and may be enforced by him. Such right is vested by statute in ex- ecutors and administrators for trespass on the real estate of the deceased in his lifetime. 2 B. S., p. 114, § 4. Funds Muced. In Levy v. Cavanagh (2 Bosw., 100), the debtor, an auctioneer, sold goods, &c., for the plaintiff, who was his book-keeper, and mingled the proceeds with his own money by depositing them in the same bank and draw- ing against the deposit to pay his customers, which fact the plaintiff knew. Held that he had no lien on any of the money in the bank ; that he permitted the debtor to blend the proceeds with his own money, so that they could not be traced, and that the whole deposit in the bank passed to the receiver of the debtor ; but that it would have been otherwise if the proceeds had remained in the debtor's hands as a separate sum, and could be identified. Joint Property. Joint or partnership propertj^ may also be reached, though all the owners were not served with the summons in the original action, or are not all proceeded against by this remedy. Code, § 294. SECTIOKT II. What property cannot be reached, with some exceptions. Projierty exempt from execution by the laws of this State cannot be taken ; and this is so, although the debtor 8 114 WHAT PROPERTY CANNOT BE REACHED, is a non-resident and the property is out of the State ; provided it would be exempt if here. Bunn v. Fonda, supra. Neither a right of action, nor a judgment, for damages for injuring, destroying or converting property exempt by law can be reached, because the property itself could not. Andrews v. Rowan, 28 JIow., 126, Supreme Court, General Term. See also Hudson v. Plets, supra. For the same reason the insurance money obtained for the loss or destruction of exempt property insured, should not be liable. This question was raised but not passed upon in Sands v. Eoberts, 8 Abb., 343. But Andrews v. Rowan decides it in principle. The debtor's earnings for his personal services at any time within sixty days next preceding the order, cannot be reached, if he makes it appear by his affidavit or otherwise that such earnings are necessary for the use of a family supported wholly or in part by his labor. § 297. He must make out a strong case, and show that he has no other property or means to support his family. The order referred to in the provision is the one made by the judge applying the debtor's property upon the judgment, or appointing a receiver ; and not the order instituting the proceedings. Bush v. "White, 12 Ahi., 21, N. T. Superior Court. The debtor must not only show that he has a family depending on him, but that he supports them wholly or partly by his labor. Martin v. Sheridan, 2 HUt., 586. The housekeeper of the debtor and her chil- dren are not such a family within the meaning of this provision of § 297. Yan Vechten v. Hall, 14 ITow., 436, Saratoga County judge. For in order to bring a case within this provision, the debtor must sustain such a relation to the family that it is his legal duty to support VfHAT PROPERTY CANNOT BE REACHED. 115 them without regard to tlieir rendering him any com- pensation. Id. All other earnings the creditor can reach; and the debtor can make no arrangement to deprive him of this right. Tripp v. Child, 14 Barb., 85. In this case the debtor, who was a physician in this State, hired himself to his son, who lived in Baltimore city and was no physi- cian, to carry on his profession here 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 arrange- ment. The property or effects of the debtor acquired by him since the commencement of the supplementary proceed- ings cannot be taken. Caton v. Southwell, 13 Bari., 335 ; Campbell v. Foster, 16 How., 275 ; Sands i). Roberts, supra , Woodman v. Goodenough, 18 AUb., 265. A second pro- ceeding must be instituted to reach such property. Sands V. Eoberts. In this last case, property which had been insured, Avas destroyed by fire after the proceedings had been commenced ; it was held that the insurance money subsequently paid, could not be reached by these pro- ceedings, on the ground that it was after-acquired pro- perty. But was it such ? Was it not rather the same property in another form ? In a creditor's suit a supple- mental bill had to be filed to reach after-acquired pro- perty. McCoren v. Dorsheimer, 1 Clark, Hi. But 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 though payable '\Q.futuro. Where, however, the compensation for services was to be paid only upon their completion, and they were not all performed at the time of filing the bill, compensation for the work already done could not be reached ; provided 116 WHAT PROP?ETY CANNOT BE REACHED. the debtor himself could have had no legal or equitable 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 jEdw. CA., 457 ; McCoren v. Dorsheimer, supra. 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 advance him money by instalments as the buildings progressed. At the time of commencing proceedings, all instalments then payable had been paid, and the work had not progressed far enough for another instalment. It was held that there was nothing under this contract to be reached, McCor- mick V. Kehoe, 7 N. Y. Leg. Ols., 184. So, ajusprecarium, 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 another person, and obtaining an interest in his property as next of kin. Smith v. Kearney, 2 £arb. C/i., 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 proceed- ings instituted upon the return of that execution, provided there is no fraud to vitiate the assignment. For by the return the lien of the execution is lost, and supplementary proceedings do not revive it. Watrous v. Lathrop, 4 Sandf. S. Ct., 700 ; 9 Cow., 728, A right of action in the judgment debtor for a personal tort, as slander, cannot be reached ; nor can a right of ac- tion 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. Smithy 13 If. Y,, 332, TRUST ESTATE. 117 and the other cases cited above in the same place. But a judgment (not a mere verdict) recovered for a personal tort, may he reached. Davenport v. Ludlow, 3 Code H., 66 ; Crouch v. Gridley, 6 Hill, 250. A right of action in a wife or parent for killing husband or child cannot be reached. While a watch, carried for mere convenience or orna- ment, may be reached, it is exempt as a working tool or household furniture, where the . daily vocation of the 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. Vanderburgh, 17 How., 80. A watch in possession of the debtor, being a present to his dead wife from her mother, will not be ordered to be de- livered up. Id. Where A. pm-chased land from B., and gave C.'s note ia payment, and then executed to the latter a bond and a mortgage on the land for the note, it was held that the creditors of 0. could not reach this bond and mortgage, so long as the note given to B. remained unpaid. Yail v. Foster, 4 N. T. IComst:], 312. Trust Estate. (a) So, the interest of a debtor in a trust estate created pursuant to the revised statutes to receive the rents and profits, or the income thereof, and apply the same to his use, cannot be reached by supplementary proceedings ; provided always, however, that the trust was not created by himself, or the funds so held in trust did not proceed from him. The only interest which the debtor has in such estate is the right to compel the execution of the trust; and this right is inalienable. 1 R. S., p. 730, § 63 ; also Scott V. Nevius, 6 Huer., 672 ; Campbell v. Foster, 16 How., 275. To the same effect is Stewart v. Foster, 1 Hilt., 505, 118 TEUST ESTATE. which is incorrectly and loosely cited in Campbell v. Genet, 2 Hilt., 290 ; also Stewart v. McMartin, 5 Barh., 438. The debtor has even no title to or disposable in- terest in the accrued income of a trust estate while it re- mains in the hands of the triistee. It belongs to the lat- ter in law and in equity. Hence no part of such income can be reached by an order under § 297, although it had accrued and remained unappropriated in the trustee's hands M'hen the proceedings were commenced. Vide Genet v.- Foster, 18 How., 60. It was further held in this last cited case, that the appointment of a receiver will not per se vest in him a title to the income of a trust estate, though income may have accrued and be in the trustee's hands when such appointment is made. However, so much of the income which had accrued and remained unappropriated in the hands of the trustee when supplementary proceedings were instituted, may be reached by these proceedings, as is not required for the purposes of the trust. But it cannot be done by or- der ; it can only be done by the appointment of a re- ceiver, and an action brought by him against the judg- ment debtor and the trustee, to determine whether all of such income is necessary for the support of the debtor (the cestui que trust), and whether or not so much as may be unnecessary for that purpose, shall be paid to the receiver for the benefit of the judgment creditor. It is necessary to make the trustee a party to the action, because the le- gal title to the property in controversy is vested in him ; he is charged by the law with the duty of applying the income of the estate or fund according to the require- ments of the trust committed to him ; he has therefore a right to be heard upon the question whether the whole of said income is essential to a proper performance of his duty. It is further necessary that he be a party to the action in order that the judgment to be given there- MARRIED WOMEN. 119 in may protect him in makino; payment of any part of the said income to the receiver. Vide Hallett v. Thomp- son, 5 Paige, 5.83 ; Clute v. Bool, 8 Id., 83 ; Eider v. Mason, 4 Sandf. Ch., 351; also Genet v. Foster, supra; in which last case the court thought that if the trustee conceded that a certain portion of the accrued income was not needed for the support of the cestui que trust, or the purpose of the trust, the judge .might by order direct that sum to be at once applied upon the judgment. Married 'Women. Wliere the cestui que trust is a married woman, such surplus income cannot be reached except for a debt con- tracted by her before coverture. Lamoureux v. Yan Eensselaer, 1 Sari., Ch. 34. The acts upon the rights of married women, passed since this decision, have no doubt modified the rule considerably ; and in many cases her interest in the income from a trust estate may be reached for debts contracted during coverture. If, pending an action by the receiver against the trus- tee to obtain a sequestration of a portion of tlie proceeds of a trust estate toward the payment of the judgment, the latter by order of court delivers the proceeds to the former, the title thereto still remains in the trustee ; and a subsequent supplementary creditor cannot by motion obtain them from the receiver on the ground that they accrued after the commencement of the proceedings in which the receiver was appointed. Genet v. Foster, su- pra. For whatever rights the subsequent judgment creditor may have in such income, his I'emedy is by ac- tion, not by motion. Of Personal Property. There may be a trust estate of personal as well as of real property ; and the same rules govern both. 1 B. S. 120 PERSONAL PROPERTY. p. 773, § 2. Hallett v. Thompson ; Clute v. Bool, supra ; Hawley -y. James, 16 Wend., 118, 166, 262 ; — at least as regards a creditor's bill. Scott ■;;. Nevius, supra. Eut tlie beneficial interest of the debtor in the trust estate itself may be reached to this extent : an action in equity may be brought against the trustee and the 'cestui que trust, to obtain a decree sequestrating from the pro- ceeds of such estate ^0 much thereof as may be found not necessary for the purposes of the trust, and ordering that, as such proceeds accrue from time to time, that sum be applied upon the judgment. 1 li. S., p. 729, § 57; Stewart v. Foster, 1 Hilt., 505 ; Clute v. Bool, supi^a. The same reason exists for making the trustee a party as where the action is brought to reach a portion of the accrued income. In Campbell v. Foster, 16 How., 275, the court doubted whether a receiver appointed in these proceedings could maintain this action ; while in Stew- art V. Foster, 1 Hilt., 505, it was thought he could. It is evident that where the debtor has other available prop- erty, which will sustain a receivership, the receiver can maintain this action. For he represents the creditor and possesses his equitable right to file a bill in equity for a sequestration. But where the debtor has no other avail- able property than this incommunicable right, it is doubt- ful whether a receiver can be appointed to institute this action of sequestration. There would seem to be no basis in such case to found a receivership upon. At least it is more advisable in such case that the judgment creditor himself institute the action in his own name. So, 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, if there is no provision for accumulation. Rider v. Mason, supi'a; also Craig v. Hone, 2 Edw.^ 654. EESULTANT TEUST. 121 A resultant trust Which happens when a debtor pays the pnrcnase money, and the deed is taken in the name of another, can be reached by the creditors who have been defrauded thereby. Watson v. Le Eow, 6 Barh., 481 ; Vide 1 U.S., p. 728, §§ 51-2-3. So, where the executors in a will are directed to retain 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 inter- est to him whenever he shall demand the same in writ- ing ; it was held that this was not a trust within the statute; that the debtor had the absolute control and ownership in the fund; and that a judgment creditor could reach such fund. Hallet v. Thompson, svjpra. So, where the testator absolutely devised his property and charged it (not the income thereof) with the pay- ment of an annuity of seven hundred dollars, it was held that this was not a trust within the Revised Statutes, and the annuity could be reached by a creditor's bill. De- graw V. Clason, 11 Paige, 136. So, where the cestui que trust is also the trustee, the trust cannot be supported, and the property can be reached. Craig v. Hone, supra. But a trust created for the benefit of the debtor with a proviso that in the event creditor's proceedings be in- stituted against him, then the income was to go to another, was held good. Bramhall v. Ferris, 14 iVl F., 41. With the exceptions mentioned in this section, the general rule is, that any property, whatever its name or nature, of which the debtor has the absolute right of con- trol and disposition, or of which he did have such right, and transferred it in fraud of his creditors, can be reached, and applied to the payment of a judgment against him. 122 HOW FEOPEETY MAY BE REACHED. BEOTION ni. B.OW Property discovered may be reached and applied upon the Judgment. The property applicable to the payment of the judg- rnent may be reached and applied as follows : by or- der under § 297 directing its delivery to the creditor, or appointing a receiver and authorizing him to take posses- sion of it and apply it upon the judgment, or by'a re- ceiver's action to recover it from those who claim it. First. By an order under § 297 of the Code of Procedure, which reads as follows: "The judge may order any property of the judgment debtor not exempt from exe- cution, in the hands either of himself or any other per- son, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, except that the earnings of the debtor for his personal services, at any time within sixty days next preceding the order, cannot be so applied, when it is made to appear by the debtor's affidavit or otherwise that such earnings are necessary for the use of a family supported wholly or partly by his labor." This section stands as it did originally, except as to the earn- ings. That was added in 1851. The order is in writing. When it requires the payment of a sum of money toward the satisfaction of the judgment, the money is to be paid directly to the creditor, and not to the receiver. The People V. King, 9 How., 97. The order should state when or within what time the money is to be paid. When it requires the debtor or third party to deliver to the creditor or his attorney personal property in his im- mediate possession, it should direct its delivery forthwith. If the property is not present, but consists of evidences FILING OF PAPERS. 123 of debt, personal ornaments, or like portable articles, the order should direct them to be brought and deliyered to the creditor or his attorney at a place and time desig- nated. If the effects are ponderous articles, such as household furniture, the order should specify a day and hour at the place where they are situated, for the debtor or third party to attend and deliver them to the creditor or his agent, or where the creditor may go and take the property. Yide Dickinson v. Van Tine, 1 Sandf.8. Ct, 724, 728. The order should also require the creditor or person receiving the money or property to give some voucher therefor to the debtor or third party. If the debtor is ordered to pay the judgment (vide Kearney's case, 13 AUb., 459), the creditor should be required to deliver or tender to him a satisfaction piece of the judgment, or at least a receipt, upon which satisfac- tion may be ordered by the court. So, if he or a third party is to pay naoney or deliver property toward the sat- isfaction of the judgment, it should be on condition that the creditor or party receiving it, deliver or tender a proper receipt therefor. See Edwards on Beceivers in Equity, p. 392, et seq. A copy of the order should also be served on the third party. Tiie order should specifically designate the property or effects which are to be delivered up ; because a non-com- pliance therewith is an act of contempt. Piling of Papers. All papers which are required to be filed in supple- mentary proceedings must be filed in the clerk's ofiice of the court in which the judgment roll or the transcript from the justice's judgment is filed. When a third party is required to pay money or deliver property belonging to tlie debtor, to the creditor or a re- ceiver, the order should be filed, especially if the debtor 124 FILING OF PAPERS. has no notice of the proceedings ; so as to protect the third party. Sections 297 and 299 construed together § 297 must, however, be construed with § 299 ; and the meaning then is, that where the property is in the posses- sion or under the control of the debtor, and clearly belongs to him, the judge may order it to be applied upon the judgment, as above stated; and this is the proper order to make in such case, instead of appointing a receiver to take charge of it. The People v. King, supra / Rodman v. Plenry, 17 iV^. T., 482. To the same effect are Goodyear v. Betts, 7 Bow., 187 ; 1 Dtier, 635 ; 5 How., 29 ; Corning v. Tooker, Id., 16. This order transfers the title and con- trol of the property to the transferee. Hence it will not be made unless it is evident that both are in the debtor. Whenever any one else claims an interest in the property, although it is in the hands of the debtor him- self, or in the possession of a person other than the claim- ant, no such order can be made ; for conflicting claims to property cannot be tried in these proceedings. § 299. The People v. King ; and Rodman v. Henry, supra / Sher- wood V. The B. and N. Y. City Railroad Co., 12 JS&io., 136 ; Gasper v. Bennett, Id., 307 ; Sandford v. Moshier, 13 Id., 137 ; Corning v. Tooker, supra y Campbell v. Foster, 16 Bow., 275 ; Clapp v. L^ithrop, 23 Id., 423 ; Joyce v. Holbrook, 2 Bilt., 95 ; S. C, 7 Abb., 338 ; Hall v. McMa- hon, 10 Id., 103 ; also. Genet v. Foster, 18 Bow., 50. This is so, although the property is in the hands of the debtor, and is converted by him into money during the progress of the proceedings. Teller v. Randall, 40 Barb., 242. The presumption of ownership of personal property aris- ing from possession does not obtain in these proceedings. " It is not enough that property is found in the hands of the judgment debtor ; it must also appear to be his prop- erty." Rodman v. Henry. In any case where an adverse " CLAIMS AN INTEKEST," 125 claim is made to property, the judge can make no other order than appoiat a receiver to contest Buch claim by Buit, and enjoin the party posessing or controlling the property from transferring it, or making any other dispo- sition of it until the receiver can prosecute an action to judgment io determine the interest claimed. Code, § 299 ; The People v. Hulburt, 5 Eow., M6 ; S. C, 1 Code E. [N'. S.l 75 ; 9 iT. Y. Ley. Obs., 245. The former practice was so. Eobeson v. Ford, 3 ^'dw., 441. The same course must be pursued where the third party de- nies his indebtedness to the judgment debtor, or denies that he has any property belonging to the latter. It is thus seen that the principle of § 299, which declares that adverse interests and debts denied shall be recovered only by action, is extended by the Courts to all cases of this kind, no matter who sets up the claim, or in whose possession the property is at that time. See Hodman v. Henry ; Sherwood v. The B. and N. Y. City Eailroad Co., supra. The same rule must therefore govern the making of such claims in all cases. '■ Claims an Interest, &o.," § 299. This means more than a mere naked assertion. The party alleging or claiming an adverse interest in the property must show some ground or foundation for it, ca- pable of forming an issue of fact for trial. In all the above cited cases where it was held that a claim of an ad- verse interest or title appeared, some reason for it was shown in the evidence. Thus, in the case of Kodman v. Henry, the claimant was shown to have been in posses- sion of the property by virtue of a chattel mortgage exe- cuted to her by the debtor, but at the time of the com- mencement of the proceedings she had delivered the chattels in question to the debtor as her agent, to sell the same for her. So, if an actual sale or assignment of prop- 126 "claims an interest." erty in the possession or under tlie control of the debtor appears, it presents a claim of an adverse interest, which cannot be disregarded in these proceedings, though the same was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things sold or assigned ; for these latter are merely presumptions of fraud. Vide Kobeson v. Ford, suiira. This question — whether any claim of an adverse inter- est has been made; that is, whether any ground has been shown therefor, or whether it is a mere pretence, the com-t or judge entertaining these proceedings, has the power to determine. This power has been exercised ; and its existence is directly or inferentially conceded in all the above named decisions, which discuss the subject of adverse claims. It is a power which is essential to the effective working of this remedy ; for such claim may be a mere figment, destitute of every fact or circumstance which could present an issue for a trial in an action ; or it may be based on a fraud in law, or an illegality wliich the judge could and should disregard. Surely it cannot be supposed for a moment that the legislature intended, that the naked assertion of a third person that certain property, even not in his possession, belonged to him, or that he had an interest therein, should tie the hands of the judge and put the creditor to the expense and annoy- ance of an action, when it is plaia from the evidence that there is no fact to support the assertion of interest or ownership. It is within the knowledge of every person who has had any experience in the collection of judg- ments, that to subject a creditor to a receivership is in many cases to doom him to defeat. A determination of this kind is by no means trying disputed claims ; it is only ascertaining whether any such exist. This view is strengthened by the course which the Code points out to be pursued in a matter very similar. In the proceedings DENIAL OP INDEBTEDNESS. 127 for the " claim and delivery of personal property," it is provided that when a third person makes a claim to the property he must state the ground of his right and title in an affidavit. Vide Code, § 216. However, the extent of this determination must be mainly left to the discre- tion of the officer in each case. As was suggested in Rodman v. Henry, supra, if the creditor desires any such determination he should see that the claimant is brought before the court and examined either as a witness in the principal proceedings, or as a party under § 294, and is thus afforded an opportunity to speak for himself But the denial of indebtedness by a third party however seems to end all investigation of that fact ( Yide People v. Hulburt, supra) ; at least, the question of indebtedness cannot be tried. This rule subject to qualifications. The rule of summarily applying property upon the judg- ment, giving it to the creditor, is subject to this modifica- tion ; the article must be of a kind that can thus be applied, as money. See Heroy v. Gibson, 10 Bosw., 591. If its value can only be properly ascertained by a sale, unless the creditor is willing to take it at a fair valuation satis- factory to the debtor as a payment pro tanto upon his iudgment ; or, if something else must be done, before it can be made available as a payment ; a receiver must be appointed if the creditor wishes to reach such property by means of these proceedings. Such was the practice un- der a creditor's bill. Edwards on Receivers, p. 12. The simplest way often is, after such property has been discov- ered, to let the sheriff levy upon and sell it, if subject to execution ; and an order to deliver the same to the sherifl for that purpose may no doubt be made under § 297. The foregoing rule is subject to this further qualifica- tion : no order under § 297 will be made where it is not clear that the judgment debtor can comply with it ; as his 128 DENIAL OF INDEBTEDNESS — NOTICE. non-compliance will render him liable to ptmishment as for contempt. Thiis, where the debtor admitted he had received $8,000 from the sale of his property, but he could only account for the expenditure of $6,000, though he waa sure he had spent the whole sum received, an order com- pelling him to pay over the balance was refused. Peters V, Kerr, 22 How., 3. Also Sandford v. Moshier, supra. So, where a party examined under § 294 admits his in- debtedness to the judgment debtor, but is unable to pay, no order under § 297 will be made, but a receiver will be appointed. Patten v. Connah, 13 Abb., 418 ; see also Sheldon v. "Weeks, 1 iT. Y. Leg. Obs., 57. However, as we have seen above, the coui-t or judge may determine in a given case that the party has property or money which should be delivered up, or that the debtor can comply with an order to pay the judgment, notwithstanding he denies it on oath ; and order accordingly. This was done in the matter of Pester, 2 Code R., 98. See also Kearney's case, 13 Abb., 459. Wotioe. No order in any case should be made under § 297 with- out notice to the party to be affected thereby, if such no- tice can be given. The motion for the order is summary, and is made on the evidence taten in the proceedings at the close, or at any stage of the examination, while the debtor or third party is present or represented by counsel. If he is not present or so represented, then he should be notified of the application, if possible. As to the manner of notifying, and on what papers the motion is made. See next section, on motion for a receiver, p. 136. See also ante, ch. 2, § 6. In proceedings against third parties (§ 294) it is really important to notify the debtor only of a motion to have the property in their hands ap- plied upon the judgment. Up to that stage the proceed- ings do not affect him. Vide ante, p. 87. NOTICE. 129 In a proper case the judge may make an order under § 297, applying property directly upon the judgment, and also appoint a receiver of such property as cannot be thus applied. Corning v. Tooker, supra. For these remedies are cumulative. Heroy v. Gibson, supra. Haeeis, J., said in Edmonston v. McLeod, 16 iT. Y, 543, that -when an order is made under § 29Y, a receiver must be appointed to carry it into effect. Eut this mere dictum is not followed in practice. For primarily, when an order is made under § 297, the property, the subject of the order, is to be delivered directly to the creditor or his appointee. The People v. King, supra. And when a re- ceiver is appointed, he really needs the aid of such an or- der only when the debtor or third party refuses to pay or deliver to him the money or property to which he is en- titled as such ofBcer. When the proceedings (under subd. 2, § 292,) are taken before the court, then the latter makes this order applying the property upon the judgment. Bitting v. Vanderburgh, 17 Sow., 80. The court does not derive this power from § 292, but from its equitable jurisdiction, and Code, § 244. When a third party, examined under § 294, is ordered to pay over to the creditor such moneys as are due to the debtor from him, he is protected by the order against an action by the debtor only to the extent that he has com- plied with the order. K he has paid over less than he was directed to do, the order is no defence against a recovery for the balance. Per Daly, J., Hauptman v. Catlin, 1 K D. Smith, 737. Nor does the order interfere with his dis- position of any money or property not embraced in it. Id. 130 EECEIVER — HIS APPOINTMENT, SECTION IV. Second. Through a Receiver. His appointment. SECTION 298 OF THE CODE OF PBOCEDUHB. (1) The j udge may also by order appoint a receiver of the property of the judgment debtor in the same manner and with the like authority, as if the appointment was made by the Court according to § 244. But before the appointment of such receiver, the judge shall ascertain, if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pend- ing against the judgment debtor, and if such proceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receivership. No more than one j-eceiver of the property of a judgment debtor shall be appointed. The judge may also, by order, forbid a transfer or other disposition of the prop- erty of the judgment debtor not exempt from execution, and any interference therewith. (2) Whenever the judge shall grant an order for the appointment of a receiver of the property of the judg- ment debtor, the same shall be filed ia the office of the clerk of the county where the judgment roll in the ac- tion or transcript from justice's judgment, upon which the proceedings are taken, is filed ; and tlie said clerk shall record the order in a book to be kept for that pur- pose in his office, to be called " book of orders appointing receivers of judgment debtors," and shall note the time of the filing of said order therein. A certified copy of said order shall be delivered to the receiver named therein, and he shall be vested with the property and eflPects of the judgment debtor from the time of the filing and re- IN WHAT CASES. 131 cording of tlie order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained upon which the proceedings are founded ; or if the judg- ment is upon a transcript from justice's court, filed in county clerk's office, then he shall be subject to the direction and control of the county court. (3) But be- fore he shall be vested with any real property of such jiidgment debtor, a certified copy of said order shall also be filed, and recorded in the ofiSce of the clerk of the county in which any real estate of such judgment debtor, sought to be effected by such order, is situated, and also in the ofiice of the clerk of the county in which such judgment debtor resides." This section has been amended some four times. The paragraph numbered " 2 " was added in 1862, and that numbered " 3 " in 1863. In 1848 and 1849 the section consisted only of the first and last sentences of the first paragraph. The inter- mediate part was added in 1851. In 'what casea,appointed. (1) In every case where available property of the judg- ment debtor is sought to be reached by supplementary proceedings, and it cannot be directly applied upon the judgment by order under § 297, a receiver must be ap- pointed ; that is, where debts, claims, demands, &c., are to be collected, or property is to be converted into money, or an action is to be brought to determine con- flicting claims to property, or any other act is necessary and proper to husband the debtor's assets, and appro- priate them to the payment of the judgment upon which the proceedings are founded, a receiver must be ap- pointed. It is thus seen that a receiver may be ap- pointed for two purposes: (1) to receive the debtor^s 132 APPOINTMENT OP RECEIVER. property, convert the same into money, and apply the proceeds upon the judgment ; (2) to seek by an action the recovery of that which the debtor has fraudulently transferred. He may be appointed with the first capac- ity only ; and he is then a special receiver. (2) In the country districts it has been held that a re- ceiver can only be appointed in proceedings instituted under § 292, and upon notice to the debtor, (Kemp v. Harding, 4 mw., 178 ; Dorr v. Nixon, 5 Id., 29). The same was also held at special term, Supreme Court, fifth district; (Barker v. Johnson, 4 Abb., 435.) Eut since this decision, it has been settled in this district, as we have seen, -that proceedings may be taken under § 294 without any instituted under § 292, and without notice to the debtor, and his property applied upon the judgment by order under § 297. Ante, ch. 2, § 6, p. 87. So it follows as a necessary consequence, that a receiver, if requisite to effectuate or complete the relief, will be appointed, and vdthout notice to the debtor where none can be given ; as where claims are to be collected or chattels converted into money. See Hazewell v. Pen- man, 13 How., 114. A receiver was appointed in proceedings merely under § 294 in the Superior Court of the city of New York. See Hanson v. Tripler, 3 Smidf. IS. Ct., 733. (3) A receiver may also be appointed in proceedings before return of execution (under subd. 2 or 4 of § 292). This is clear on the face of subd. 2. See also. The People V. Hulburt, 5 How., 446, where the Court hold that the clause " in the same manner, &c., as if the appointniient were made by the Court according to § 244 " only re- lates to the mode or form of the appointment ; while the case or circumstances which authorize it, are found in § 292. The contrary was held in Darrow v. Lee (N. T. IN WHAT CASES. 133 Common Pleas General Term), 16 All., 215, where pro- ceedings were taken under § 294 before the return of the execution, and a receiver appointed to test the ownership of certain moneys in the hands of the third party. This was clearly improper. Vide, infra. As to the appointment of a receiver when the proceed- ings are commenced hy warrant. See Wilson v. An- drews, 9 How., 39. In fact it seems not to admit of a doubt that in proceedings instituted before the return of execution, or in those under § 294, a receiver may be ap- pointed if necessary to complete the relief to which the creditor is entitled. Without this power such proceed- ings would be useless in many instances. But a receiver appointed in such a case is a special receiver. In the one case he is vested only with the concealed and equit- able property disclosed on the examination ; and la the other with the property and debts belonging to the judg- ment debtor and found in the hands of, or owed by, the third party ; because the proceedings before return of execution and under § 294, are instituted to reach spe- cific property only, and not to discover and reach prop- erty generally. No receiver will be appointed in any proceedings in- stituted before return of the execution for the mere pur- pose of bringing an action to set aside a fraudulent or illegal transfer of property, or to test the ownership thereof by suit, except in the instance mentioned in ch. 2, § 3, p. 73, where a fraudulent transfer is made after a demand by the creditor. A receiver appointed in such proceedings could not maintain an action of that kind. But in proceedings under § 294 taken after return of the execution, a receiver may no doubt be appointed with power to maintain such an action against the third party. 134 NO PROPERTY. (4) If the judge has jurisdiction of the subject matter, he may appoint a receiver upon the debtor's voluntary- appearance and submission to an examination without affidavit or order. Bingham v. Disbrow, 14 AVb., 251 ; S. C, 37 Barb., 24. See^o*;!, ch. 4, § 5. A third person sued by the receiver to recover property of the debtor in his hands, cannot object to the receiver's ap- pointment on the ground of any mere irregularity. It seems, liowever, that he might object for want of jurisdic- tion in the appointment. Supreme Court, Genl. T., First District, Taylor v. ."Whitney, 12 Abh., 465 ; Richards v. Allen, 3 E. D. Smith, 399 ; also, Bangs v. Duckinfield, 18 JSr. Y. R., 692. No Property. The appointment of a receiver in a creditor's bill, as we have seen {ante, p. 2), was almost a matter of course, es- pecially if the debtor was under an injunction. In Myre's Case, 2 AU., 476, the Supreme Court (Spl. T., First District) applied this rule to supplementary proceedings. But the rule is not rigidly followed. And it is right that it should not ; these proceedings do not intend that they should be. Here the examination precedes the applica- tion, and traverses the whole field of inquiry as thoroughly, almost, as a bill of discovery could do, in order to inform the judge whether there is any occasion for a receiver. If no property or transaction be disclosed making it proper that such an officer should be appointed, none should be had. See ante, ch. 1, § 10. It was otherwise in a cred- itor's bill {ante, p. 3). This is the rule in the New York Superior Coiirt, where the proceedings are dismissed and the injunction dis- solved, if no property has been discovered or no ground shown for the appointment of a receiver. See Hoffinan's Prov. Rem., p. 524-5. RECEIVEE— WHEN APPOINTED. 135 But if available property ia discovered not directly ap- plicable by order or a transaction disclosed, -which wears a badge of fraud as agaiust the creditor, a receiver will be appointed. And it is no answer to a motion for a receiver in such a case, that the property sought to be reached can be levied upon, and that the title can then be tried in an action in the nature of replevin ; for the creditor is en- titled to a receiver, and is not obliged to have the prop- erty levied upon in order to test the right to it in that manner. Todd v. Crooke, 4 Sandf. S. Ct., 694 ; S. C, 1 Code B. [iV^. /S.], 324 ; also, Heroy v. Gibson, 10 Bosw., 591. Nor is it any answer that the debtor has no other property than an equity of redemption in some real estate heavily mortgaged, which he has always been wil- ling that the sheriff should sell on execution, so that the right of redeeming it under the Eevised Statutes might be preserved to him. Supreme Ct., General T., Bailey v. Lane, 15 Alb., 373, note. ISTor is it any answer that the debtor offered to turn out to the sheriff sutficient property to satisfy the judgment. For the- debtor has his remedy against the sheriff if he makes a false return. Balde v. Smith, 5 Ch. Sent. No. 2, p. 11. Nor is it any objection that the property, as things in action, or an interest in an existing partnership disclosed on the examination, is alleged by the debtor to be of no value. Webb v. Overmann, 6 Aid,, 92. ■WTien appointed. The proceeding for the appointment of a receiver is summary, and in theory follows directly upon the close of the examination, while the parties are before the judge, and without noti.ce. Todd v. Crooke, supra ; see, also, Edwards on Receivers in Equity, p. Y6. In People v. Mead, 29 Eow., 360, Sp. T.,'the court held that a receiver 136 NOTICE OF MOTION FOR BECEIVER. may be appointed at any stage of the proceedinga in the discretion of the officer ; that it is advisable to make the appointment as soon as any property is disclosed of snch a nature, that it might be otherwise dissipated during the delay which often attends the progress of these proceed- ingsj and that the inquiry may be continued, and the debtor and witnesses examined after the appointment, the same as in a creditor's bill. Notice. If the examination has been taken by a referee, the debtor must have notice of the time and place of a motion for a receiver. Todd v. Crooke, supra. So, where third parties or witnesses only are examined before the judge, and the debtor is not present nor represented, no receiver can be appointed without notice to him or his attorney in the proceedings. See Edwards on Receivers in Eq.., p. Y7. Notice of such motion May be served on his attorney in the proceedings. Length of the notice. In Leggett v. Sloan, 24 How., 479, the Court said that the application to appoint a receiver under supplementary proceedings is not a notice within section 402 of the Code of Procedure. But the only point in question in this case was whether third persons who had like proceedings pending against the same debtor, were entitled •to eight days' no- tice. The Court held they were not. The practice at the Chambers of the Supreme Court, First District, is to give a notice of two or four days. The application for a re- ceiver under the creditor's bill was a special motion, and served like ordinary notices. Edwards on Rec. in Eq., 77. For a special motion a notice of at least eight days had to be given, if the solicitor of the adverse party resided over one hxmdred miles from the Court ; if he resided over APPOINTMENT WITHOUT NOTICE. ] 37 fifty but not exceeding one hundred miles therefrom, then a notice of six days was given ; in all other cases, four days. The summary nature of supplementary proceedings' seem to contemplate a notice of less than eight days for an order under section 297 or 298, notwithstanding the broad definition of a motion in section 401 of the Code. However, if there should be any doubt upon this point, and a shorter notice is desired, an order to show cause may be procured. Without notice. It is held in Kemp v. Harding, and Dorr v. Noxon, su- pra, that no receiver can be appointed vsdthout notice to the debtor. These cases cite and apply to supplementary proceedings, the rules as to notice, observed in the appoint- ment of a receiver in a creditor's bill. But according to the practice followed in the first district, as we have seen above, if no notice can be given to the debtor in proceedings under § 294, a receiver may nevertheless be appointed in a proper case. So also, if in proceedings under § 292, the debtor should abscond after the service on him of the supplemen- tary order, so that no further order or .notice could be served on him, the judge or Court would no doubt in a proper ease appoint a receiver without notice. See the opinion of Haeeis, J., in Edmonston v. McLoud, 16 iT. jr., 545, as to continuing the proceedings where the debtor, after beilig duly served, fails to appear in obedi- ence to the order. A receiver was appointed in chancery without notice where the defendant had absconded to prevent service of subpoena, or where he was out of the jurisdiction of the State ; and in similar cases. People V. Norton, 1 Paige, 17 ; 2 Paige, 438, 450 ; 8 Id., 373, 481. The maimer of notifying The debtor of an application for a receiver, may be 138 NOTICE TO THIRD PERSONS. prescribed by the judge, where no personal notice can be served on him and he has no attorney in the proceedings. In proceedings under § 294, it is clearly as much within the discretion of the judge whether and how notice shall be given of a motion for the appointment of a receiver as a notice of any other application is in the same proceed- ings. Ante, ch. 2, § 6-. Notice to Third Persons. The judge, before making the appointment is also to as- certain, if practicable, whether other like proceediags are pending against the debtor, and if there are, the plaintiff therein is to have notice. But failing to ascertain such fact, or to give the notice, does not avoid the order of re- ceivership ; nor of itself render it voidable. Lottimer v. Lord, 4 E. D. Smith, 183. This clause in § 298 -is merely directory. Length o£ This last notice need not be eight days long. Leggett v. Sloan, supra. A stranger "Who has no proceedings pending against the 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. Cor- ning V. Glenville "Woolen Company, 14 Abb., 339. There is no provision for notifying judgment creditors who have commenced creditor's actions against the same debtor, and who may have a receiver already appointed, or ac- quired a lien, as they may do by service of summons and injunction order. See Myrick v. Selden, 36 Barb., 15. If the creditor is not ready to apply for a receiver at the close of the examination, he must, according to Squire V. Young, 1 Bosw., 690, procure a regular adjournment to a future day for that piu-pose. ONE EECBIYER ONLY APPOINTED. 139 Motion, How Made. The motion is made upon the proceedings and the evi- dence taken therein; or upon the proceedings and the referee's report of the facts. See Todd v. Crooke, supra. No copy of the examination need be served on the debtor or on any other person. Butvfhere a referee is appointed to find and report the facts found from the examination, should not a copy of his findings be served on the debtor, v^hen the report is not filed ? For in such a case the mo- tion for a receiver is based on this report. The court, in People V. Mead, supra, thoiight that a receiver might be appointed upon the return of the supplementary order, and before examination. A receiver may also be ap- pointed upon the debtor's consent. Bingham v. Disbrow, 14 Abk, 251 ; S. C, 37 Bark, 24. Third Party. If any notice to a third party (under § 294), of motion for a receiver is necessary, it should, no doubt, be of the same 'fflnd and accompanied by the same papers as a no- tice to the debtor. But generally, there is no need of notice to a third party. The foregoing rules as to notice, and on what the motion for a receiver is founded, &c., ap- ply equally to an application against the debtor or a third party, for the payment of money or the delivery of prop- erty to the creditor or receiver ; because all such applica- tions are for the sequestration of property. One Receiver only. No more than one receiver of the property of the debtor shall be appointed. § 298 ; Myrick v. Selden. If two or more happen to be appointed, and there is a conflict be- tween them, the date of appointment or of the order of reference to select, will determine the priority between them. Deming v. The N. Y. Marble Co., 12 Aib., 66 ; Lottimer v. Lord, supra. 140 RECEIVER — ^UNDER WHOSE CONTROL Wlio must Appoint ? The judge who made the order instituting the proceed- ings must appoint the receiver. No other judge can. Smith V. Johnson, 7 ITow., 39. Here the proceedings were before a county judge, and the motion for a receiver was made to a Supreme Court justice. Eut where an- other judge may continue the proceedings, he can make the appointment. It is clear from § 298, that the order of appointment must be made by the judge ; that while he may refer it to a referee to select and report a proper person for receiver, he cannot so refer the appointment it- self, as was done in the creditor's bill. The court appoints the receiver in the proceedings un- der subd. 2 of § 292, when they are instituted before the court. Under -whose control the Receiver is. Vide amendment to § 298, which has repealed the de- cision in "Webber v. Hobbie (13 JTow., 382), that the re- ceiver was under the control of the judge who appointed him. He must obtain leave to sue or defend from the court whose officer he is ; he must account to the same tribunal ; and generally all motions by or against him must be made to such court. If the receiver is appointed up' on a judgment in another court he will be under the control of the court upon whose judgment he was first appointed. Banks v. Potter, 21 Bow., 469. Fraud in Appointing. An appointment of a receiver obtained through fraud or collusion will be revoked. The court will not stop to in- quire whether it is a suitable appointment. The fact that it was thus procured presumes it to be an improper one. Lottimer v. Lord, supra. The eifect of the Appointment On the debtor's property is like that of a sheriff's levy VESTING OP PROPEETY IN. 141 It constitutes a lien on all Iiis reachable property to tlie extent of the judgment and the costs. Delay or negligence on the part of the receiver to take possession of the prop- erty will not impair this lien, unless the delay is the re- sult of a fraud or collusion between the creditor and the receiver. When that is made to appear, the creditor's pri- ority under a receivership, like under a dormant execu- tion, will be postponed to subsequent liens. So an unreas- onable delay to take possession of any property, though without the active participation of the creditor, would de- stroy this lien as against third parties ; especially if it in- terfered with rights subsequently acquired in good faith. But where the receiver's lien is unimpaired, all subsequent levies and claims are subject to it. Wilson v. Allen, 6 Barb.^ 542 ; Fessenden v. Woods, 3 Bosw,, 550. This is 60, although the sheriff makes a levy on the property be- tween the appointment of the receiver and the filing of the required bond. Steele v. Sturges, 5 Ahh., 442. In short, on these points the lien by the receiver's appoint- ment and that by the sheriff's levy are governed by the same rules. SECTION V. When the receiver is vested with the property, and when entitled to its possession. The Vestmg. By the amendments of 1862 and 1863 to § 298, the re- ceiver becomes vested with the debtor's personal property from the date of filing and recording the order of receiv- ership in the clerk's office of the county where the judg- ment roll, or the transcript, if the judgment is of an infe- rior court, is filed ; and with his real property from the 142 THE RECEIVER. date of jBling and recording the order, or a certified copy thereof, in the clei'k's office of the county where the property is situated, and also in the clerk's office of the county where the debtor resides. If the debtor is a non- resident, this latter clause is inapplicable, and the creditor complies with the requirement of the section by filing the order in the clerk's office of the county where the judgment roll or such transcript is filed, and a certified copy thereof in the clerk's office of the county where the real estate is situated. The law of vesting, as declared in this section, literally attaches only to a receivership granted by a judge ; but query, does it apply to a receivership granted by the court in proceedings under subd. 2, § 292, or is the latter governed by the rule which prevails in equitable ac- tions? By the latter rule, no doubt. This is a material alteration in the law of vesting. Un- der the creditor's bill and the practice in these proceed- ings prior to the above amendment of 1862, the receiver had to file the requisite security before the debtor's prop- erty vested in him. But upon filing that, his title related back and attached from the date of the order for his ap- pointment. Banks v. Potter, 21 How., 469 ; Porter v. "Williams, 6 Seld., 142 ; Voorhees v. Seymour, 26 Barb., 569. There is no such relation now, except in the nature of a priority between supplementary creditors. The amend- ment of 1863 also settled a disputed point : to wit, whether the order of receivership vests the receiver witli the debt- or's real property without an assignment from the latter to be recorded as a conveyance of real estate. Thus 5 Seld., 143, held that it did, while 19 N. Y., 374, and 33 Barh., 498, held that it did not. But the receiver does not become vested with property which the debtor acquired after the commencement of the proceedings ; (Campbell v. Genet, 2 Hilt., 290 ;) much less with property acquired after his ap- pointment. Graffs). Bennett, 25 How., 470 ; Genet v. Poster, BOND AND SECURITY OF, 143 18 Id., 50. ISTor does lie become vested -with the right of action for taking and converting property exempt from ex- ecution, nor with the judgment recovered thereon, Andrews r.Eowan, 28^010., 126. Hoffman {Prov. Hem., p. 526,) thinks that the order must be actually recorded before the receiver is vested with any property. But does not the term "record- ing" in this section mean what it does in the Revised Statutes, when applied to deeds of real estate ? A deed is recorded from the time of its delivery to the register for that' purpose. 1 H. S., p. 760, § 24. There is, however, a difference between the two cases — ^perhaps a material one. The recording of a deed of conveyance is only intended to operate as a notice, while the recording of the order of re- ceivership is one of the necessary acts to vest the title of real property in the receiver. The Bond and Security. But before the receiver's appointment is complete so as to authorize him to act, and take possession of the debtor's property, he must execute and file the required bond. Voorhees v. Seymour, supra ; Conger v. Sands, 19 How., 8 ; Banks, v. Potter, supra. The appointment divests the debtor of the property, and vests it in the receiver as an officer of the coiut, but the latter is restrained from taking possession thereof or exer- cising any of the powers or duties of his office, until the required bond is given. Hence property of the debtor taken- by the sheriff on execution or attachment, between the appointment and the filing of the required bond, must be sm-rendered to the receiver. If he fails to give the required bond, the order is not thereby invalidated, but the effect is the same as if he had instantly complied, and had afterwards been removed and another appointed in his place. The title of his successor 144 THE RECEIVEK. relates back to the first appointment. Vide Steel v. Stnr- ges, 6 Abb., 442. This rule applies, no matter when the snpersedure takes place. If a receiver does not give the requisite bond within a reasonable time after notice of his appointment, or within such further time as the court may give him, he will be removed and another appointed in his stead. The bond is executed by the receiver with two sureties. The penalty is double the amount of the property in bulk which is likely to come into his hands, or, if the property is real estate, double the yearly value of the es- tate. Edwards on Receivers in Equity, 92. The bond may be executed to the clerk of the court, where the judgment roll or the transcript of the justice's judgment is filed, or to the people of the State, which latter is prefer-- able. It is executed and proved or acknowledged, like a deed of real estate is required to be before it can be re- corded. If there are sui-eties, they must justify each iu the amount of the penalty, and must be residents and free- holders, or householders, within the State. The bond must be approved by the judge who made the order of receivership, or by a judge who may continue the pro- ceedings, or by the court where the proceedings are insti- tuted there under subd. 2 of § 292, and then filed with the clerk of the court where the judgment roll is filed, or of the court into which the judgment, if of an inferior court, has been docketed by the filing of the transcript. No Security. The judge or court can dispense with security in a proper case, but not with a bond. That must be executed and filed in all cases. Thus, where the receiver gave ample security on his fii'st appointment, it is not necessary that he give further security upon a subsequent re-appoint- ment in the same estate, and during the pendency of the first appointment. For the security in a subsequent bond is PROPERTY WHICH CANNOT BE DELIVERED. 145 only intended to cover property acquired since the first appointment. N. Y. Com. Pleas, Banks v. Potter, supra. Possession of the Property. After the receiver has filed the requisite bond, he is en- titled to the immediate possession and control of all such reachable property and effects of the debtor as are in his possession, or in the hands of any other person (§ 297 ; see Van Eensselaer v. Emery, 9 Sow., 136) ; or were thus circumstanced at the date of vesting, though since trans- ferred, and claimed by another. Vide Steele v. Sturges, 5 Abi., 442. He is also entitled to the immediate pos- session of the reachable joint or partnership property of several debtors, though all were not served with the summons in the action (§ 2941, or the proceedings were not instituted against all. All such property vested in him by his appointment. This, of course, does not include property acquired since the supplementary pro- ceedings were commenced. Property -whicli cannot be delivered to the receiver. He is not entitled to the delivery of any property of which the debtor has the mere naked possession, as a ten- ancy at suffrage (Gardener v. Smith, 29 jBarb., 68) ; or which the debtor holds solely as a trustee under the Re- vised Statutes ; for this latter is a personal trust. In short, he is not entitled to the possession of any property, or the payment of any money, which the court or the judge, un- der § 297, would not order to be delivered up or paid by the debtor or third person on the ground of disputed own- ership. Ante, ch. 3, § 3. In all such cases, the property, interest or debt is recoverable by the receiver only in an action brought to determine the disputed title or claim. He may, however, have an order forbidding a transfer or other disposition of the property or interest claimed, till he is enabled to commence the action, and prosecute the - 10 146 THE RECEIVER. same to judgment and execution. § 299. If tliis eiotild not be a sufficient protection, the court may, on motion, and on giving further security if requisite, extend the re- ceivership over such property pending the litigation, and order the same into the possession of the receiver. Ed- wards on Receivers in Equity, jp. 390 ; Eobeson v. Ford, 3 Edw., 441. This is like the ordinary application in equity suits for a receiver to preserve the property during the litigation. The People v. King (9 How., 97), holds that if any money or other ai-ticle capable of delivery, be- longing to the debtor, is in the hands of a third person, who makes a claim to it, the receiver should obtain an or- der according to subd. 5, § 244, of the Code, directing the claimant to deposit it in court to abide the event of the action. The reason of the rule Requiring the receiver to seek by action the recovery of property of disputed title, or of a denied indebtedness is, that in the sequestration of the judgment debtor's pro- perty in this summary way, no act is to be done which will place a third person who claims the property as his, in a position where his rights can only be asserted in a suit in which he is plaintiff. Hodman v. Henry, iT". Y., 482. Hence it was held in this case that where property in the debtor's possession is claimed by another, it cannot be delivered to the receiver. It can be obtained only by action. Here the claimant showed some real ground for his claim. But all these claims of adverse title or inter- est must antedate the vesting, for any such claim by transfer or otherwise from the debtor after that period, is utterly void and will be disregarded ; and further, as was said in the third section of this chapter, a claim of this kind must rest on some foundation which presents an issuable fact, or else the court or judge is justified in dis- DELIVERY OF PROPERTY, HOW COMPELLED. 147 regarding it and ordering the property to be delivered or transferred to tlie receiver. Delivery of property, how compelled. Property to wliich the receiver is entitled, mnst be delivered to him on the completion of his appointment. Its delivery, where snch is necessary, may be compelled by order under § 297, and by punishment as for contempt. Vide also Code, § 214, subd. 5 ; Edmonston v. McLoud, 16 JV. Y., 543. See next section, " Duties." Inasmuch as the order of appointment of itself does not oblige the judgment debtor or a third party, at the risk of punish- ment for contempt, to deliver the property in his posses- sion to the receiver, it is advisable to incorporate in it an order according to § 297 to the effect that upon the re- ceiver's completing his appointment such property be forthwith delivered to him. See Watson v. Fitzsimmons, 5 Duer, 629. This will often save the trouble of a sepa- rate application for a like order if the former has been duly served. It will however be frequently necessary to obtain an order more explicit and specific for the deliv- ery of property than can be inserted in the order of re- ceivership. See p. 155. No order against a third person unless made a party under § 294. It is proper to remark here that no third person can be ordered under § 297 or enjoined under § 299, unless he has been proceeded against under § 294. "Woodman V. Goodenough, 18 J.J5., 265 ; King v. Tuska, 1 Duer, 635 ; and a provision in an order made in proceedings under § 292, that a third person pay money to the creditor, will be stricken out on motion. Woodman v. Goodenough, supra. Therefore, if a third person has property of, or is indebted to, the judgment debtor, it is best to proceed against him under § 294, even after the appointment of the receiver (see ante, p. 86) to the end that an order 148 THE RECEIVER. may be obtained against him under § 297 or 299. It was held in Albany City Bank ■;;. Schermerhorn, 9 Paige, 372, that the court cannot protect a receiver by summary pro- ceedings against a person not a party to the action who seizes property not in the receiver's or his agent's posses- sion. Here we see the advantage of § 294. Assignment. A judge of the court or a county judge has in these proceedings the power of a court of equity to compel the debtor to execute a conveyance of his real property sit- uated in another State. Fenner -y. Sanborn, 37 Barb., 610 ; see also Bunn v. Fonda, 2 Code S., 70, in which it was held that a debtor could be compelled to assign but not deliver his personal property situated beyond the limits of the State. The People v. Hulburt, 5 How., 446, where it was held that the judge had no power to order the debtor to make an assignment, must be regarded as overruled. But no assignment of property situated with- in this State is necessary to vest the receiver with the title to it. Porter v. "Williams, 5 Seld., 142, aflSjming S. C, 9 N. Y. Leg. Ols., 307; 5 How., 441 ; West v. Fraser, 5 Sandf. S. Ot., 653. SECnON VI. The receiver's office, powers and duties. His oiBce. He is a trustee of a special trust. He represents both the debtor and the creditor at whose instance he was appointed. He can therefore impeach fraudulent or Ulegal 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, 5 Seld., 142 ; S. C, HIS OFFICK AND POWERS. 149 12 How., 107, affirming S. C, 5 Id., 441 ; 1 Code B. \N. /iS.], 144 ; 9 iT: r: Leg. Ols., 307 ; and, in respect to tlie receiver's representing creditors and having the power to impeach fraudulent transfers of property, overruling Hay- ner v. Fowler, 16 Barb., 300, and Seymour -y. "Wilson, Id., 294 ; which last case was also reversed on this point in the Court of Appeals ; 15 How., 355. Also Bostwick v. Bei- ser, 10 Abh., 197. He is an officer of the court imder whose control he is ; and the estate in his possession is in the care and custody of that court. The People v. King, 9 How., 97; Edw. Re. in Eq., p. 3. But he is not a gen- eral trustee. He represents those creditors only over whose judgments the receivership is extended. When these are satisfied he must restore the balance of the pro- perty to the debtor or his grantee. See Porter v. Wil- liams, supra J Banks v. Potter, 21 How., 473. His powers. A receiver appointed in these proceedings has the same rights and powers as if appointed by the court ac- cording to section 244 of the Code. Vide § 298. It is held in 2 Paige, 452, that he has no powers except such as are conferred upon him by the order for (or of) his appointment and the course and practice of the court. Also Edw. He. in Eq., p. 5. But since this decision (2 Paige,) several statutes have conferred additional power upon the receiver. Vide Session Laws of 1845, ch. 112, p. 90-1 ; Laws of 1858, ch. 314, §§ 1, 2 and 3, or 3 E. 8., [5th Ed.,J p. 226 ; see also on this head (the receiver's powers and duties). Porter v. Williams, and Supreme Court Rule 92. But he has no eaj^ra-territorial powers of official action. He cannot pursue the debtor's property into a foreign jurisdiction. Booth v. Clark (U. S. Su- preme Court), 17 How., 322. When appointed he becomes vested with every species 150 THE EECEIVER. of reacliable property at the time owned by the debtor, in whosoever hands the same may be, as we have seen ; pro- vided it or its equivalent belonged to the latter when the proceedings were instituted. He also becomes vested with the equitable right of the judgment creditor to attack any transferor disposition of property made by the debtor in fraud of the creditor, and to have it set aside for his benefit. As to property which tlie debtor had alienated at tlie date of the vesting, and in which he then had no interest, the receiver acquires no other right to it than what he derives from the creditor whom he represents ; to wit, the equitable right to impeach the transfer thereof for fraud. He stands in all respects in the place of the creditor as regards such property. Field v. Sands, 8 Bosw., 685 ; also Cooper v. Bowles, 21 How.,10. He de- rives no right to it from the debtor, for the latter has no interest in it, be the transfer ever so fraudulent. Porter V. "Williams, supra. Receiver's interest in Property fairly transferred. If the transfer of or lien upon the property is fair and valid, it binds the receiver as well and as fully as the debtor, and he takes only such interest in the property as the latter had at tlie date of the vesting. Id. / see Gardener i). Smith, 29 Barb., 68, where it was held that the lien of a chattel mortgage was no more lost as against the receiver by neglect of refiling after the appointment, than it would have been as against the debtor himself had he still retained the ownership of the property. So a judgment foreclosing a lien, and obtained against the debtor during the progress of the proceedings in which the receiver was appointed, is conclusive upon the lat- ter, unless impeached for fraud. Voorhees v. Seymour, 26 Barl., 685. HIS DUTIES. 151 His interest in Property fraudulently transferred If such transfer or lien is fraudulent, the receiver still takes no interest in the propcity. The fraudulent trans- feree can dispose of it and give the purchaser a good title, wholly unaffected by the said appointment. . Thus, if other judgment creditors succeed by action as plaintiffs against the same debtor and his assignee in set- ting aside an assignment on the ground of fraud, the re- ceiver, as representing the supplementary creditor, is not entitled to any portion of the assets, although he was also appointed receiver in the action ; but what remains after the creditors in the suit are paid, must be restored to the assignee. The receiver, like a judgment creditor, can only acquire a lien or right in such property by com- mencing an action against the assignee to set aside the assignment ; and if he wishes to prevent an alienation of the property pending the litigation, he must resort to the injuuction or the notice of lis pendens, the same as a judgment creditor, unless he has the assignee already en- joined under § 299. The reason is, as before stated, that titles and claims to property cannot be impeached or tried in supplementary proceedings, and the assignee can- not be made a party to them for that purpose, or so as to create a lis pendens against him ; for none such can be created in any other proceeding than in an action brought expressly to set aside the transfer of property on the ground of fraud or illegality in a tribunal of competent jurisdiction. See Conger v. Sands, 19 How., 8 ; Field v. Sands, 8 Bosw., 685 ; Hoffmann's Prov. Bern., 528. His Duties. The receiver is to manage the debtor's estate for the benefit of all concerned. He should immediately proceed to obtain possession of the property, and collect the claims and demands of the debtor. 152 THE RECEIVER, Serving Notices and Orders. He should in all cases, if possible, serve, or cause to be served, a copy of the order of his appointment on the debtor or on the party to be affected by the appointment, Avith a written notice that he has perfected his receivership by giving and filing the requisite security. These may be served on the attorney of the debtor or third party in the proceedings. But when the debtor or third party is re- quired by order to deliver any property or pay money to the receiver upon the completion of his appointment, then the above-named papers, together with this order (requiring the delivery of property or payment of money), and a written demand thereforshouldbe personally served, to bring the party into contempt on refusal. Code, § 418. A verbal instead of a written demand by the receiver or his agent, may, however, be sufficient. If this order is incorporated in the order of receivership, as stated in the preceding section, then a certified copy of the latter order, without showing the original, or an uncertified copy with the exhibition of the certified, is served on the party named, the same as a court order. The original is on record. 5 J.55., 244; 14 Id.^ 130. But when this order is not so incorporated, but is by itself, it is served like a chamber order, unless made by the court. If the order of receivership contains an injunction clause, to be effectual, it must also be served as above stated. As persons who have not been proceeded against under § 294 may have property of, or be indebted to, the judg- ment debtor, the receiver should serve, or cause to be served personally on all such, a copy of the order ap- pointing him receiver, with a notice that he has com- pleted his appointment, and that by virtue of his receiv- ership, ho claims from them such property or indebted- ness, particularly describing the same, and then such per- sons will dispose of said property or debt at their peril ; HIS DUTIES. 153 or if they -wrongfully refuse to deliver up such effects, on due demand made, they will be guilty of a conversion. See Livingston v. Stoessel, 3 Bosw., 19 ; 1 Ghitty Oen. Pr., p. 566. This demand ought to be in writing, and should require of the person having the property an immediate delivery thereof, or if such delivery is not con- venient, that he state when he can deliver, and if he fails to set a time, the receiver should appoint a day and hour when he will attend to receive the property ; and that he is ready to pay any lawful lien which the person may have on the property ; as such may exist for storage, or money advanced, &c. Demands of Property. All demands for property should require its delivery to the receiver at the place where an order of the Court or judge would direct such delivery. Yide ante, ch. 3, § 3, p. 122. The demand for evidences of debt, personal ornaments, or like portable articles, not in immediate possession, should require their delivery to him or his agent at the residence or place of business of the person having them ; for the receiver can hardly require the person having such articles to bring them to any other place and deliver tliem up. No such obligation would seem to rest on him without an order directing it. May appoint Agents. The receiver may authorize another to demand and receive the property from the debtor or person having it. He can appoint an agent. i).Lindsey,15Fese?/,91. But such agent must show his authority (see The People v^ King, 9 How., 97; 2 Barb. Ch. Pr., 272), which should be in writing, and a copy of it delivered at the time to the person of whom the demand is made ; or else the latter cannot be punished for contempt in refusing to de- liver up property pursuant to the order of the Court or 154 THE RECEIVER. judge. Upon an order on tlie debtor to deliver his property to the receiver be is not bound to deliver it to the plaintiff in the proceedings or to bis attorney, or a referee in the proceedings. Pan ton v. Zebley, 19 Sow., 394. Here it did not appear tbat the receiver had authorized any of these persons to demand and. receive the property. As to taking possession of Property 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 direct- ing the debtor to deliver them to the receiver. He also appointed tbe 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 re- ceiver was not permitted under a general direction 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 prepared to receive and take into his keeping certain specified prop- erty and effects. In case of household furniture or other ponderous goods, he was to provide himself with the re- quisite assistance to remove them to a suitable deposi- tory. 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 mas- ter's order, was at liberty to show that his direction for the delivery of all or any of the chattels was erroneous. Dickinson v. Van Tine, supra. Tliese rules are not in all respects followed in supplementary proceedings. Here the practice is more direct ; and the receiver is the HIS DUTIES. 155 chief actor. After the completion 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 possession of the property than the sherifl' has with an execution. "When the Receiver must apply for an Order. If the debtor, or the person having the property, will not permit him to take it, or refuses to deliver it to him where a delivery is necessary, or when any particular article of property is claimed to be exempt by law or to belong to some one else or for any other reason, the re- ceiver cannot peaceably obtain possession of an article of property, he must apply to the proper tribunal for an order, if he has none ali-eady, that such property be de- livered to him. The application for this Order. The motion therefor is founded on the evidence taken in the proceedings, and on such affidavits and papers as the moving party may deem necessary to bring the facts correctly and' fully before the Court or judge, and on notice of the application to the party moved against. It is like a motion for an order directing property to be de- livered to the creditor, and requires the same kind of notice. Vide ante, ch. 3, § 4, p. 136, 139. The order made thereupon should specifically designate the articles of property or efl'ects to be delivered, so that there may be no mistake, and direct .their delivery in the same manner and place as that which requires prop- 156 THE RECEIVEE. erty to be delivered to the creditor. Vide write, ch. 3, § 3, p. 122. But no such order should be made unless it appears that the party lias the power to obey it. Sheldon v. Weeks, 7 If. Y. Leg. Obs., 57. And if after due service of this order, the debtor or third party refuses to deliver such property, the receiver's course is to move to have the offending party punished as for contempt. Upon this motion the accused may show, as in the creditor's bill, why he should not or could not obey the order, unless the same defence was gone into on the application for the order. Further, in no case is the receiver justi- fied in using force or violence to obtain possession of property. See Dickinson v. Van Tine, supra; Parker v. Browning, 8 Paige, 890. Taking Property subject to a laen. Can the receiver seize property in the debtor's hands which is covered by a valid chattel mortgage, with a continuing right of possession in the debtor ? There is no doubt that a valid order may be made, authorizing him to seize and sell such property, subject to the mort- gage. Section 299 of the Code does not forbid it. But can he legally do this without such an order ? In the case of Manning v. Monaghan, 23 iV^. Y., p. 639, where the receiver seized and sold chattels thus situated without any order, Comstock, J.,, said " that a sale of mortgaged chattels in gross to a single purchaser, and subject to the lien, is a lawful act (as to the mortgagee) whether done by the mortgagor himself, by the sheriff on execution against him, or by a receiver who has acquired his inte- rest in the property. If such sale by either of them be made in hostility to the mortgage, and the attempt is made, though unsuccessfully, to pass an unincumbered litle, then the act is so far wrongful," &c. The learned HIS DUTIES. 157 judge's opinion, in short, is, that the receiver may law- fully seize and sell such property in gross to one pur- chaser, subject to the lien ; that is, he may sell the mort- gagor's interest in it. If he sells it without regard to the lien, he commits a wrong, but the lienor can only maintain an action against him by showing spe- cial damages. See also Hull v. Carnley, 17 JV. Y., 202. This cause was, however, not decided on the above opinion. In this same case, in the court below (l-Soszi)., 465), it was held, " that the receiver had no right to sell more than the mortgagor's interest, if he had any right to sell at all, and was bound to sell the property altoge- ther." This was an aggravated case. The receiver seized the property in violation of an order of court, and sold it in disregard of a stay of proceedings. It therefore seems that, nothing else opposing, the receiver may, with- out an express order, lawfully seize property thus situ- ated, and sell it in mass, subject to the lien. But it is best in all such cases, first, to obtain an order from the court in the manner above stated, authorizing the seizure of the property. So also, if there is any doubt upon the debtor's title or right of possession to any article of prop- erty, he should apply to the court. He will then avoid every risk of being mulcted in damages so long as he acts within the terms of the order. He cannot, like the sheriff, justify a forcible seizure of property in the pos- session of a third person, to whom the debtor has trans- ferred it, by a sale or transfer valid inter partes. In such case he stands not " in the place of the execution." Brown v. Gilmore, 16 How., 531-2. That is, where property is claimed by a stranger, the receiver cannot, like the sheriff with an execution, seize the same without an order, and then justify the seizure in an action by the claimant, by pleading and proving that such claim or transfer is fraudulent. For in all such cases (where au 15S THE RECEIVER. adverse claim is set up, and no order is made authorizing llie receiver to take tlie property, or i-equiring the party having it to deliver it to him), he can obtain the posses- sion thereof onZy hy an action, as Ave liave seen {anie^ p. 124:-5) brought to determine- the title or claim thereto. To this rule there is no exception. ■Who may make this order, and on Ti7hose motion ? The judge who has charge of, or who may continue the supplementary proceedings, is the proper tribunal to grant the above order or relief; for his jurisdiction over the subject matter continues subsequent to the receiver's appointment, until all orders made by him respecting the debtor's property or otherwise, are fully executed. Web- ber V. Hobble, 13 How., 382 ; The People v. Mead, 29 Id., 360. This is not in coniiict with section 298 of the Code ; for that section gives the court merely the direc- tion and control of the receiver, not of the supplement- ary proceedings. The motion for any of the foregoing orders may be made by the judgment creditor or the re- ceiver, and the proceedings to punish as for a contempt may be conducted by either. This is the practice. The receiver is not the passive functionary in these proceed- ings that he was in the creditor's bill. We thus see, from what we have gone over, that the various provisions of this chapter on supplementary pro- ceedings all harmonize with each, other, and aid in the general purpose of this remedy. The objects of supple- mentary proceedings are to discover the debtor's property, and to compel its application toward the satisfaction of the judgment against him. For instance, proceedings are instituted against the debtor under § 292, and property is discovered. The judge, under § 297, or the court, under Code, § 244, subd. 5 (if proceedings are taken before the court), is authorized to make the debtor deliver the prop- HIS LIABILITY FOR COSTS, 159 erty to the creditor as a payment iipon tlie judgment, or to a receiver to be converted into money, and applied upon the judgment. §298 authorizes him to appoint the receiver ; while § 244 authorizes the court to do the same thing. But if another person claims an adverse in- terest in the property, then § 299 forbids the judge from sequestrating it under § 297, but empowers him to en- join the claimant if proceeded against under §294, until the receiver appointed by him under § 298 can bring an action to test the claim, and prosecute the same to judg- ment and execution. Yet these proceedings would afford but a very imperfect remedy if the debtor's prop- erty, in the hands of his agents or third persons, could not also be reached in this summary manner. Hence, we have § 294, under which a third party is brought in- to court for examination ; and if any property or effects of the debtor are found in-his hands, the judge, under §. 297, can order its delivery to the creditor, or to a re- ceiver, whom he may appoint under § 298. But if this third party claims an adverse interest in the property, § 299 forbids the judge from making the order under § 297, but authorizes him to enjoin the claimant. These five sections are aided by the others, which provide for the attendance of witnesses, for references, injunctions, costs, and the enforcements of orders by procedure as for contempt. As to bringing actions, and the receiver's liability fcr costs. It is held that as the receiver is expressly authorized to sue in his own name by statute (Laws of 1845, ch. 112, § 2, p. 91), he is not personally liable to the defend- ant for costs, unless the court directs the same to be paid by him personally for mismanagement or bad faith in such action. See Marsh v. Hussey, 4 Bosw., 614. The receiver did not Lave leave to sue in this case. This de- 160 THE KECEIVEE. cision puts him on equal footing in regard to costs with executors, &c. See Code^ % 317. Tide St. John v. Den- ison, 9 How., 343, of lilte import. It was, however, held in Smith v. Woodruff, 6 All., 65, that where the re- ceiver sues without leave of court, and is defeated, he will, as a general rule, be held personally liable for the costs — as a restraint upon him against bringing vexatious or useless actions, and charging the estate with the costs. Also to the same effect is Phelps v. Cole, 3 Code H., 157. But in no case can a judgment for costs be entered up against him personally, and execution issued without ap- plication to the court for an order to that effect. How- ever, to avoid all question of liability for costs, the re- ceiver should, in every case, first obtain leave to sue. The application for leave is exj>arte, and made upon the examination and affidavit, or petition. 2 WAit. Pr., 700. But having once obtained leave, the receiver is bound to sue. Windfield v. Bacon, 24 Barb., 154. When he has such leave, and is not guilty of mismanagement or bad faith, he will not be personally liable for costs. § 317. He may maintain an action against the judgment debtor for converting any of the property after his ap- pointment. Gardner v. Smith, "QQ Barb., 68. His privileges. The receiver cannot be sued without permission of Court. To do so is a contempt ; and the proceedings will be stayed. Taylor v. Baldwin, 14 All., 166 ; Eiggs V. Whitney, 15 7d,388 ; De Groot v. Jay, 30 Barl.,^9,Z. Where he is in the rightful possession of the debtor's property it is contempt of Court for a third person to at- tempt to deprive him of that possession without the per- mission of the Court, whose officer he is. Noe v. Gibson, 7 Paige, 513 ; 8 Id., 388. The proper course for a per- son who claims such property is to apply to the Court HIS PRIVILEGES — SPECIAL RECEIVER. 161 by petition for an order that tlie receiver pay or deliver the same to him. Eiggs v. Whitney, supra; also 7 Paige, 513, supra. This application is made on notice to the receiver. Jd. Nor can he be enjoined. Tlie proper way to restrain him when engaged in the dis- charge of his official trust, is by application to tlie Court for instructions, 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 E.ens- 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 lien 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 appoint- ment, the owner thereof may maintain such action, and make the receiver a party defendant although he owns the judgment upon which the latter was appointed. Gere v. Dibble, 17 Id., 31. In Ten Broeck v. Sloo, 13 Id., 28 ; S. C, 2 Aii., 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 con- duct 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 effects of the debtor faith- fully to the payment of the debts, according to their legal or equitable priority. Porter v, "Williams, supra. Special Receiver. What is said in this and the preceding sections on re- 11 162 LIENS AND PEIOEITIES. ceivership, applies more especially to a general receirer, A, special receiver is an oiBcer appointed to take posses- sion of and manage, or convert into money and apply upon the judgment, some specific articles of property, or to bring an action for the recovery of some specific prop- erty. Vide ante, p. 133. The order of his appointment invests him with these powers only. But within that limit his powers, rights and daties in respect to such property are like those of a general receiver, and he is governed by the same rules of priority and otherwise in the distribution of the debtor's assets among the creditors whom he represents. He is an officer of the Court, and entitled to its instruc- tions. Curtis V. Leavit, 1 All., 274, SECTION vn. Liens and Priorities, Iiiens. The commencement of supplementary proceedings creates no lien on the debtor's property, nor is any such obtained, until a receiver is appointed and the property vested in him according to § 298. Voorhees v. Seymour, 26 Barl., 669, disapproving of the dictum of Haeeis, J. to the contrary in 5 How., 441. See also Spear v. "War- dell, 1 iT. T.', 161 ; Van Alstyne v. Cook, 25 N. Y., 495 ; In re K A. Gutta Percha Co., 17 How., 549 ; Kich V. Loutrel, 18 Id., 121 ; 5 Seld., 142. That is, the commencement of these proceedings creates no construc- tive notice of lis pendens, because it is not a proceeding in Court, and neither the supplementary order nor any other document which might serve as a notice is requ to be filed, whilst the proceedings themselves are s ; LIEN. 163 mary, and may be discontiniied without entering an order. In tlie creditor's suit the bill was filed in Court ; a Us pendens was thus created, which had the same effect on the debtor's equitable assets, as an actual levy of the execution had on his tangible personal property. From the decisions above referred to and § 298, it fol- lows that no third person is bound to take notice of these proceedings before the property is vested in the receiver ; that up to that time he itnay acquire a valid interest in the same by purchase, levy, &c., wholly unaffected by these proceedings; that the injunction issued against and served upon the judgment debtor will not affect him or his rights thus acquired ; except that when it is also served on him it might operate as a notice against him (Edmonstoa v. McLond, 19 Barb., 361); that the receiv- er's title cannot relate back so as to take property which the debtor had alienated at the date of the vesting : that he acquires only the right to impeach such alienation for fraud equally whether made before or after the com- mencement of supplementary proceedings ; and that if the debtor disposed of any of his property in violation of an injunction, the receiver becomes vested not with such property, but with the right to invoke the power of the Court or judge to punish the debtor by the impo- sition of a penalty which shall indemnify the creditor for the injury thus done him. All this is, however, based on the assumption that there is no collusion between the third person and the debtor to hinder or defraud the creditor who is pursuing this remedy. But it has not yet been determined whether the mere taking of prop- erty after the taker has actual notice of these proceed- ings, is fraudulent or not. In regard to the creditor's bill the chancellor held that if a stranger has notice that the title to any property is in litigation, he takes it pendente lite, though no subpoeaa 164 LIENS AND PRIORITIES. has yet been served. Hayden v. Bucklin, 9 Fcdge, 514-5. Also "Weed v. Smull, 3 Sandf. Ch., 273. So it is held as we have seen {ante, p. 74), in the similar proceed- ing under the Non-imprisonment Act, that persons taking the debtor's property with knowledge of the prosecuting creditor's right, hold it as trustees for him. From these cases it is fair to conclude, that, at least where specific property is sought to be reached (as under subd. 2 or 4, § 292, or § 294), the same principle applies under like circumstances. Nor is there any very cogent reason for not extending this rule to the proceedings under subd. 1, § 292, and holding, that any person who takes the debtor's property with actual knowledge of such proceed- ings, takes it at the risk of those proceedings being con- summated into an order under § 297, or into a receiver- ship. In Edmonston v. McLoud, 16 iT. Y., 543, tlie Court said that by the commencement of proceedings supplementary to execution against his judgment debtor the plaintiff acquired an inchoate lien upon his property, but that to perfect this lien and secure the benefit of his proceedings, it was necessary that he should obtain an order under § 297 and also procure the appointment of a receiver. This statement is made without argument or reference to authorities. It is plain that the Court in this case did not mean to overrule the decision of Voor- hees V. Seymour, supra, nor to hold that if a third person takes the debtor's property by purchase or otherwise without fraud or notice, between the commencement of the proceedings and the appointment of the receiver, he takes it subject to a lien to be afterwards perfected into a valid interest by an order of receivership. For since then, this Court, in Tan Alstyne v. Cook, supra, dis- tinctly held that " as against third persons or any private creditoi? pursuing his legal remedies for the collection of his debts, the commencement of an action in equity LIEN OF ORDER UNDER § 297. 165 (for the dissolution of a partnership and the sequestration of its property for the benefit of creditors) did not oper- ate as a lien upon such property ; and that no such lien was created until an order was made for the appointment of a receiver. Here the summons and injunction had been served; and the point came directly before the Court. This decision qualifies that of Myrick v. Selden, 36 Barl., 15, on this question. Surely it will not be contended that these summary proceedings out of Court, have powers of creating a lis pendens which an equitable action in Court does not possess. Again, if this state- ment in Edmonston v. McLoud is to be taken as the law upon this question, then the service of the supplementary order possesses a virtue which the filing of a creditor's bill did not have ; for the latter did not create a lien on leviable property. Ante, p. 3. Tbs Lien of an Order under § 297. Where property is ordered to be delivered to the cred- itor, toward the satisfaction of the judgment, there is no lien upon it until it is in the creditor's possession, or under his control, imless 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 sherifi", which will not divest the title of an innocent purchaser, acquired before actual levy. 2 B. S., p. 366, § 17. See also Gibson v. Haggerty, 15 AU., 406; S. C, 23 Bow., 260. 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 166 LIENS AND PEIOEITIES. of legal diligence, he lost that priority. Eameston v. Lyde, 1 Paige, 637 ; Myrick v. Selden, supra. This rale governs in proceedings nnder 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 appointed over his head. He must press his proceedings with due diligence to their consummation in an order under § 297, or a receivership under § 298, or both. Voorhees v. Seymour, and Myrick v. Selden, supra / Fessenden v. Woods, 3 Bosw., 550 ; Edmonston v. McLoud, supra ; Hall v. Kellogg, 12 N. Y., 332, 335 ; Potter v. Banks, 21 Sow., 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 question as to whether preferences shall be deter mined by the dates when the respective proceedings were taken, was not raised ; and it seems from the case that the latter dates 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 pro- ceedings, acquires an inchoate lien ; which can only be sOj 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 procming a friendly creditor to take proceedings, and have a receiver appointed on the spot. However, Myrick v. Selden holds that this appoint- ment settles nothing as to priority. See also Edwards on Beeeivers in Equity, p, 12. PRIORITY BETWEEN CREDITORS. 167 S.avr Determined. Priority is summarily determined by tlie court on mo- tion. It is improper to bring an action to determine it- Myrick v. Selden. The Commencement Of proceedings (for the purpose of determining this pri- ority), 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 (ante^ p. 2), and the proceedings in the Non-imprisonment act {ante, p. 74), may, perhaps, be sufiScient ; though in the creditor's bill, by an attempted service was meant leaving the subposna at the dwelling of the defendant. It is then as among creditors instituting these proceedings, and as against the debtor, that the re- ceiver's title relates back to the date of commencement, and holds the debtor's property for the payment of the sev- eral creditors, according to their priority. Priority between supplementary creditors and plaintilTs in cred- itor's actions. The Supreme Court, in Myrick v. Selden, supra, applied 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 pursue'd this remedy. But as between these, the nile 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 alien- ated at that time, priority belongs to him, whether a judgment creditor or a receiver, who first institutes an ac- tion to set aside the alienation for fraud or illegality. For, as was stated before (p. 150), the receiver, by his ap- pointment, acquires merely the capacity and rights of a judgment creditor in respect to alienated property. Thus, a judgment creditor institutes supplementary pro- ceedings to reach his debtor's property and efiects by order 168 LIENS AND PRIORITIES. under § 297, and for a receiver to impeacli by action the fraudulent transfers of property made by the latter. An- other judgment creditor, after return of execution, com- mences an action to reach the same property 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 proceed- ings are taken. Now, the equities of these two creditors stand thus, neither party being guilty of laches : the sup- plementary creditor has the preference to all the debtor's property which belonged to him at the time the proceed- ings were commenced and continues to be his at the time the order is made under § 297, or the receiver appointed under § 298 ; 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. When assets come into the receiver's hands from prop- erty whose fraudulent transfer he has set aside by action, he must still distribute them among the creditoi-s 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 bo entitled to share in the assets according to their priority, if, when such action was brought, they could themselves have instituted similar suits. See Parmlee v. Egan, 7 Paige, 610 ; Mat- tison V. Demorest, 19 Abb., 356. Priority the Re'ward of Diligence. Priority is not the result of a lien created by these pro- ceedings, but the reward of diligence. Equity favors the vigilant. Eameston v. Lyde, supra. PRIORITY IN REAL PROPERTY. 169 Priority in Real Property. Thifj woiild 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 himself of the legal remedy by enforcing such lien through a sale on execution, resorts to the equitable remedy of a re- ceivership, 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 (Chautauque Co. Bank v. Eisley, 19 iV. J^., 369), where it was held that when a fraudulent con- veyance is set aside, a receiver appointed, and the defend- ant conveys the property to him by order of the court, the receiver's title " rests upon the debtor's own convey- ance made under the direction of the court, and has no relation to the judgment " 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 oiit of the debtor's property generally." The court further held in this case, that the title derived from the receiver " must in the absence of actual or con- structive notice of the suit, be a title subject to all liens ex- isting at the time of that conveyance (to the receiver) in favor of persons who are in no way connected with the proceed- ings ; 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 le- gal 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 pro ceedings. The amendment of 1863 to section 298 of the Code of Procedure vests the title of the debtor's real prop- erty in the receiver as effectually as an actual conveyance 170 LIENS AND PRIORITIES. could do; and the latter, therefore, takes such property subject to all liens existing at the time the order of his ap- pointment is filed and recorded, as that section now re- quires. The court, in the case above cited, thought that actual notice 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 distinction be- tween real and personal property. The receiver'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. Per- sons may in good faith acquire interests in the one kind of property precisely as in the other during the progress of the supplementary proceedings, superior to that of the re- ceiver and the creditor 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 ap- point a receiver of real property, but to sell it on execu- tion. 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 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 acquired in good faith prior to the appointment. Judgments are equitable liens on the debtor's real property, which he has fraudulently disposed of; and the purchaser of the property on an execution sale has the creditor'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. RECEIVER — APPOINTMENT BY THE COURT. 171 SECTION vin. Appointment of Jieoeiver"by the Court. We have already seen that proceedings tinder snbd. 2, § 292, may be taken before the court against a judgment debtor, and orders made applying the property discov- ered toward the satisfaction of the judgment, and a receiver appointed, the same as a judge may do under §§ 297 and 298. So the court can also enjoin the debtor, that being a necessary part of the proceedings. But the court has also the power to appoint a receiver in a summary manner after the return of execution unsat- isfied, by subd. 3, § 244 of the Code of Procedure, which reads as follows : "A receiver may be appointed 3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an ap- peal, or when an execution has ieen returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment." Nature. This is a proceeding in the original action, and is in the court to which the judgment belongs. It partakes of the nature of the ordinary application foB a receiver made in a creditor's action, and is no doubt mainly governed by the same rules, and entitled to the same course of practice. The manner of Proceeding. The section (244) is silent upon this point, and there is no known case of appointment made under this clause of subd. 3, § 244. It is, however, clear that the order is made upon motioi%to the court, based on proof of the 1T2 EECEIVER — APPOINTMENT BY THE COURT. facts stated in this clause, to wit : the recovery of the judgment, the issue and return of an execution unsatisfied •wholly or partly, and that the judgment debtor refuses to apply his property in satisfaction of the judgment. See Hoffman Prov. Eem., p. 484. This clause does not re- quire that the debtor should unjustly refuse to apply his property, &c., as subd. 2 of § 292 does; hence, there would seem to be no need of a previous demand to apply it ( Vide ante, eh. 2, § 2, p. 65) ; but the proof must show or aver that the debtor owns property which is in his possession or under his control ; because the court is authorized to appoint the receiver only when he re/ws^^ to apply his property upon the judgment, and not when it appears that he has fraudulently disposed of it, and put it beyond his power so to apply it. By and against whom may this proceeding be taken ? The parties are undoubtedly the same as in proceedings under § 292. Vide ante, ch. 1, § 3, p. 17. On -what judgment and Execution ? These must be such that a creditor's action or supple- mentary proceedings under § 292 could be based upon them. Ante, ch. 1, § 4. But the execution must have been issued to the county where the debtor then resided. This is requisite for a creditor's suit. Child v. Brace, 4 Paige, 309 ; Merchants' and Mechanics' Bank v. Griffith, 10 Id., 519. The Proof Is furnished by affidavit, and may be made by any one who can furnish it for an order under § 292. Ante, ch. 1,§6. Notice. Notice of the motion, with a copy of the moving pa- MOTION POH. 173 pera, must be served on the debtor. This is the rule ia all applications for receivers. Vide ante, ch. 3, § 4. The length of notice, it seems to me, should be that prescribed by Code, § 402. The Court can, however, direct a shorter time by order to show cause. The notice and papers should be personally served ; or perhaps they may be served at the residence of the debtor, as provided in subd. 2, § 409. They may be served in any part of the State, though the Court is local, because the Court has ju- risdiction of the subject matter. The Motion. This proceeding is not to discover property, but merely to appoint a receiver, on the ground that the debtor re- fuses to apply his property on the judgment in the ordi- nary way. Hence if he, on the hearing, denies that he has any property, the Court has no authority to institute a proceeding of discovery, but must remit the debtor to his remedy under § 292. If he should deny the existence of the judgment or execution, the Court may examine that point, as a judge can in proceedings under § 292. Vide ;post, ch. 4, § 6. Manner of appointiag. The Court may proceed under this clause, or under subd. 2, § 292, as in any other like application, by making the appointment itself, or ordering a reference to select and report a suitable person, or to appoint the officer and take the proper security from him. The receiver ap- pointed in this proceeding or by the Court in proceed- ings under subd. 2, § 292, is not vested with the debtor's property according to § 298 ; but according to the rule that prevails in creditor's suits. He is vested with tlie personal property upon the completion of his appoint- ment by giving and filing the required security, and then his title relates back to the order of his appointment by 174 APPOINTMENT OP RECEIVER BY THE COURT. the Court or to the order of reference to select or ap- point. Deming v. The N. Y. Marble Co., 12 Abi., 66, 68 ; Eutter v. Tallis, 6 Sandf. S. Ct., 610. If, inter- mediate this order and the filing of the security, the sheriff seizes the property on execution he must return it to the receiver. Steele v. Sturges, 5 Abb., 442 ; also Porter v. Williams, 5 Seld., 142. The order of reference above mentioned has the same effect upon the debtor's property, as if instead thereof the Court had made the appointment at that time. (Rutter V. Tallis, supra) ; because by making such order, the Court adjudges that the property is no longer to be under the control of the defendant, but that it is thence- forth to be and is in the custody of the Court, of which the receiver is merely the agent. It is then that the title of the debtor to it dies, and that of the Court and its agents succeeds. Steele v. Sturges. His title to the debtor's real estate. The debtor's real property can only be vested in the receiver by an assignment or conveyance thereof to him by the defendant, which the Court has the power to compel the latter to execute. Moak v. Coats, 33 Barb., 498 ; Chautauque Co. Bank v. Eisley, 19 iT. T., 369, overruling Porter v. Williams, su^a, on this point. Icgunction. The Court has the power to enjoin the debtor in a creditor's action by a motion made in the action. It has this power not only by statute (2 B. S., p. 174, §§ 38 and 39) but by virtue of its equitable jurisdiction. Sad- den V. Spader, 28 Johns., 554; aflSrming S. C, 5 Johns. Ch., 280'. As this application for a receiver is also a matter in an action, and addressed to the equity side of the Court, no doubt the debtor may be enjoined until the receiver is appointed and has the property in his INJUNCTION. 175 custody. The course would seem to be for the plaintiff to procure an order upon the debtor to show cause why a receiver should not be appointed, with a restraining clause inserted, as in the order made under § 292, forbid- ding him from transferring or disposing of his property not exempt from execution until the further order of the Court. This order must be personally served to bring the debtor into confempt if he disobeys it. In all other respect the rules, powers, and duties pointed out in the previous sections of this chapter as pertaining to the re- ceiver and his ofi&ce attach to the receiver appointed by the Court in proceedings under subd. 2, § 292, or under the above named clause of subd. 3, § 244. I have treated in this chapter of the office of receiver chiefly so far as it is peculiar to these proceedings, and at the same time sufficiently full to answer all general pur- poses in practice. In every other respect, the powers, duties, &c., of the receiver are the same as when he is appointed in an action. For a more extended view of the office of receiver, and as to the manner in which he is to manage the debtor's estate committed to him ; how he shall convert the property into money, and apply it upon the judgments which he represents ; how he is to account ; and as to his fees, see Edwards on Receivers in Equity. 176 StTBSIDIARY PROCEEDINGS. CHAPTER IT. OF SrBSIDIAET PEOCEEDINGS, AND COLLATERAL STTBJEOTS. Section 1. Of actions by the receiver (§ 299) ; and of injunctions. " 3. Of costs. " 3. Of tlie enforcement of orders, &c. " 4. Of the method of procedure to punish as for contempt. " 5. Of irregularities and jurisdictional defects. " 6. Of the power of the judge in supplementary proceedings. " 7. Of appeals ; to what ti-ibunal. " 8. Of miscellaneous subjects. " 9. Of proceedings in aid of an attachment or execution under §236. SECTIOK I. Of actions hy the Receiver (§ 299) and Injunctions. § 299. " If it appears that a person or corporation al- leged to have property of the judgment debtor, or in- debted 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 cor- poration by the receiver, but the judge may, by order* forbid a transfer or other disposition of such property or interest till a sufficient opportunity be given to the re- ceiver to commence the action and prosecute the same to judgment and execution ; but such order may be modi- fied or dissolved by the j udge granting the same, at any time, on such security as he shall direct." This section, as it now stands, dates from 1849. 1. The fore part of it, that which requires actions to be brought to recover disputed interests and debts, has al- ready been pretty fully discussed while treating of the application of the debtor's property to the payment of ACTIONS BY RECEIVER. 177 the creditor's judgment. See ante, cli. 3, §§ 3 and 5. A few observations remain to be made on this head. This section is not exclusive. Wlien it provides tliat a disputed interest in property or indebtedness shall only be recoverable in an action by the receiver, it solely re- fers to the remedy by supplementary proceedings, and means that when the creditor seeks the satisfaction of his judgment by this remedy, he cannot have such property or debts applied to the payment of his judgment by order tinder § 297, but must resort to a receiver's action. This section does not repeal the creditor's bill, which still ex- ists in the form of a creditor's action, except the discov- ery part. Goodyear v. Betts, 7 Sow., 187 ; Catlin v. Doughty, 12 Id., 457 ; Hammond v. The Hudson K. I. and M. Co., 20 Barb., 378. The case of Edmonston v. McLoud, 19 Id., 356, though seemingly to the contrary, ad- mits of this interpretation. This last case also appears to hold in general terms that before the receiver can bring an action against a third person to recover disputed prop- erty or demands, the latter must be proceeded against under § 294, so as ta afford him an opportunity to deny the indebtedness, &c. This is certainly not tlie practice. Receivers in these proceedings constantly bring actions against persons who were not examined under § 294. And any other rule would be absurd. Section 299 applies only to actions against third per- sons, not to those between the judgment creditor and the judgment debtor only. Catlin v. Doughty, supra. 2. INJUNCTION. The stay or injunction against the judgment debtor is authorized by § 298. § 299 authorizes an injunction against a third party after it appears upon his examina- tion under § 294, that he claims an interest in the prop, erty, or denies the debt. But there is no express author- ity given to restrain a third party in the first instance > 178 ACTIONS BY RECEIVER — NATURE OF. that is, in the order for his appearance under § 294, or he fore his examination. This is, however, clearly implied as a necessary part of the remedy against him. Seeley V. Garrison, 10 Aik, 460. Nature of. It is declared in Green v. Bullard, 8 How., 313, that the injunction in these proceedings is a different remedy from that granted in actions ; that the Code does not re quire the service of a copy of the affidavit upon the de- fendant with the restraining order ; that, no doubt, some reason should appear in the affidavit before the judge should forbid a transfer or other disposition of the debt- or's property, but that the Code is silent, and leaves each case to be disposed of by the sound discretion of the judge. In this matter the practice followed in filing a creditor's bill has been adopted ; the injunction against the judgment debtor or the third party, before his exam- ination, is granted in the first instance as of course. The facts which entitle the creditor to an order under § 292 or § 294 are deemed sufficient for an injunction. The granting of this remedy is discretionary. ■When Granted. The injunction last spoken of may be made to accom- pany the order under § 292 or § 294, or during the pro- gress of the proceedings. Green v. Bullard, supra. Who may Grant it. The judge who has charge, of the proceedings at the time may grant the injunction, and no other tribunal. The Continuance thereofl This injunction, once made and duly served, continues in force, if properly drawn, until the proceedings ai-e ter- minated in respect to the party enjoined, or until it isdis- CONTINUANCE THEREOF. 179 charged by another order ; or, if a receiver be appointed in the same proceedings, until tlie receivership is super- seded. The failure of the judge or referee to be present at the appointed time and place of the examination does not re- voke the injunction, unless the proceedings are thereby vacated. Vide Eeynolds v. McElhone, 20 How., 454 ; Allen V. Starring, 26 Id., 57. The judge who delivered the former decision veas of the opinion that even where the subsequent proceedings fall through, the injunction continues to operate until there is an actual or practical revocation. This is somewhat in conflict with Squire v. Young, 1 Bosw., 690. It is, however, clear that any act or omission which discontinues the proceedings dissolves the injunction, for the latter is part of the former. Id. "Where the proceedings are restored by a waiver of a default, the injunction is thereby revived. It relates back, and binds the enjoined from the beginning, and over the hiatus, as if there had been no interruption. Yide Keynolds v. McElhone. In Wilson v. Andrews, 9 How., 39, valid proceedings were commenced by warrant. An order was at the same time made under § 292 with an injunction incorporated in it. The order was afterwards set aside as void, but the injunction was upheld, it being independent of the order, and there being valid proceedings. "When the proceed- ings are merely irregular, the injunction is only void- able, and cannot be disobeyed. But when the former are void, the latter has no binding force, and need not be obeyed. So, also, when the injunction itself is void, it need not be obeyed. TTnder § 299. No person can be enjoined under this section who has ISO INJUNCTION. not been proceeded against under § 294. King v. Tuska, 1 JDuer, 635 ; also, Edmonston v. McLoud, 19 Barb., 356. That is, this injunction is granted uppn the appearance of certain facts by the examination of the third party or otherwise in proceedings under § 294, and is made by the judge who has charge of such proceedings, or who can continue them. It continues in force till the matter in controversy is fully disposed of according to the judgment in the receiver's action, if one is brought, or until it is dis- solved or abandoned. A party aggrieved by the injunction may, upon motion, have the same modified or dissolved on giving security satisfactory to the judge who made it, or who may con- tinue the proceediugs. The motion is made on affidavits and notice to the creditor. It is a motion iu proceedings under § 294. The granting of an injunction (under § 299) is discretionary. Some reason should appear for it. "Where a person examined under § 294 claims the whole property in question, but refuses to give the origin or nature of hia claim, it was held that such re- fusal may be considered as a reason for an injunction against him, Van "Wyck v. Bradley, 3 Code B., 157. This remedy is granted without security. What it Restrains. The last named injunction restrains a transfer or other disposition of the specific articles of property, or the in- debtedness, in dispute between the creditor and the third party. So, also, the injunction issued and served on the third party in the commencement or during the progress of the proceedings against him under § 294, only resti'ains his transfer of, or interference with, the property alleged to be in his hands, and belonging to the judgment debtor, or his alleged indebtedness to him. But as to what and what not, the injunction against the WHAT IT RESTRAINS. 181 debtor restrains him from doing, Chancery rule No. 195 is no doubt a good guide. That rule is as follows : Wo in- junction issued upon any (such) creditor's bill shall be con- strued to prevent the debtor from receiving 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 prop- erty and effects to a receiver, or to restrain him from mak- ing the necessary assignment 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 execution, previous to the entry of an order for a sequestration, 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 complain- ant, or from doing any other act to enable other creditors to obtain the property of the debtor, which the complain- ant was unable to discover or reach by execution. It was decided in Eoss v. Clussman, 3 Sandf., 676 ; S. C, 1 Code B. [i\r. S.], 91, that where the debtor delays the supple- mentary proceedings by procuring adjournments, and in the meanwhile confesses judgment to another with the intent and effect of defeating the supplementary creditor in his effort to reach the property, it is a violation of the injunction, and punishable with a fine. But the court intimated that the mere confessing of judgment was not a breach of the injunction. It was not in a creditor's bill. McEedie v. Senior, 4 Paige, 378. So also if the debtor, while under injunction, creates a lien on his real property in another State by confessing 182 INJUNCTION. judgment to another for a fictitious debt, he is guilty of contempt, for which he may be punished. Fenner v. Sanborn, 37 Bari., 610. In Lansing, &c. v. Easton, &c., 7 Paige, 364, the chancel- lor said any active interference with the property by the defendant or his agent, for the purpose of having the le- gal title to the same transferred to another, thereby to deprive the complainant of the equitable lien he has ac- quired therein by tlie filing of his bill, is a violation of the letter and spirit of the injunction. This is cited and approved in Ross v. Clussman, supra. It is thus seen that the ordinary injunction, usually in- corporated in the supplementary order, and served on the debtor, has the restraining power of the special clause in- serted in the injunction issued in the creditor's bill. No Violation. It is no violation of the injunction, where the debtor proceeds to judgment in a suit pending at the time he is enjoined. Farkerv. 'Wakeman,10Pa^^e,4:85. So the mere bringing of a suit for a tort (as injury to property) without showing some damages which the plaintiff has sustained thereby, is not such a breach of the usual injunction as will authorize the granting of an attachment against the debtor. Soheld in Hudson -y. Plets, 11 Paige, 180, 184 Nor is there such violation where the debtor had sold or assigned, verbally or otherwise, a claim to another in good faith and for value received, and after the injunc- tion merely carries this contract into effect by procuring a novation, or doing any other act necessary to complete the sale, as endorsing a draft previously given. Eichard- son -y. Eust, 9 Paige, 243 ; Ireland v. Smith, 1 Barb., 419 ; S. C, 3 Eow., 244. Of course it is no breach of the injunction to interfere with any property not reachable by these proceedings. SERVICE OF. 183 Service of The injunction, if made by the court, is served like a court order ( Vide ante, ch. 2, § 3, p. 68) ; if made by a judge, it is served like the supplementary order, by de- livering to and leaving with the party to be enjoined personally a copy, and at the same time exhibiting to him the original. An injunction addressed in the ordinary way to a cor- poration and its agents, &c., and served on the president, binds it and all persons who act for it. The People v. Sturtevant, 5 Seld., 277. But knowledge of the injunction, information of its contents, presence in court, when 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., 1 (Supreme Court, Gen'l T., Illd dist.) ; see also 8 Edw. B., 236 ; 4 Paige, 405 ; 2 Barb. Ck. Pr., 275 ; 1 Duer, 513, 553 ; Crary Sp. Pro., 389. The court further said, in Livingston v. Swift, that so far as it concerned the dignity of the officer whose order had been disregarded, he would re- quire personal service before he would punish , and that punishment in such case was discretionary with him ; but where, by disobedience of an order or process, a par. ty's pecuniary rights have been affected or impaired, the court or judge had no discretion, but must impose a fine sufficient to indemnify the party. On Third Persons. The injunction order served on a third person, being no party to the proceedings, does not bind him, though it may serve as a notice. Edmonston v. McLoud, 19 Barl., 361. 184 COSTS — TO WHOM ALLOWED. SECTION n. Costs. SECTION 301 OF THE CODE OP PKOCEDUKE. "The judge may allow to the judgment creditor, or to any party so examined, whether a party to the ac- tion or not, witness' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs." This section, as it now stands, dates from 1849. The allowance of costs is in the discretion of the judge. To Whom Allowed. A mere witness is not entitled to costs. Davis v. Tur- ner, 4 Eow., 190 ; Anon., 11 Abb., 108 ; both at Supreme Court chambers. Per contra, "Webber v. Hobbie, 13 How., 382, also at chambers, and a mere dictum. On principle, a witness is no more entitled to costs beyond his legal witness' fees in these proceedings than upon a trial of a cause. No relief is sought against him. This section refers to two classes of persons who may have costs ; those who are parties to the original action and these proceedings, and those who are made parties to the proceedings by order under § 294. wnen Allowed. Costs cannot be allowed to a pereon until the proceed- ings are terminated as to him, and in his favor. Davis v. Turner, supra. Where a third party, examined under § 294, denies that he has property or is indebted to the judgment debtor, or claims such property adversely to the debtor, and the creditor drops the proceediugs as to him, he is in a position to ask for costs. But if a receiver is appointed to litigate the title to such property, or the indebtedness, then the third party cannot apply for costs until the receiver's action against him is terminated, and WHEN ALLOWED. 185 in his favor. It would not be right to allow costs to a person examined under § 294 just because he has some- how succeeded in swearing through that he has no prop- erty of, nor is indebted to the judgment debtor; unless the creditor discontinues as against him. Especially is this so since the examination under this section is limited ; and the result of an action against him by the receiver may show a contrary state of facts. In Anon., 11 Ahi., 108, the opinion was expressed that a third party, compelled to attend and submit to an exam- ination, ought to be allowed costs out of the funds in his hands belonging to the debtor, the same as in a case of in- terpleader ; that is, where property is discovered, and tlie party examined seeks merely to protect himself against a second claim for the same property. A party required to attend and be examined cannot claim costs unless an examination is had. So held in Eagle V. Bonneau, 2 Scmd. S. Ot. 679 ; S. C, 3 Code E. 205, where the order was set aside for irregularity before ex- amination had. This is the plain reading of § 301. The rule once made by the IsT. Y. Superior Court, that if, on examination of the debtor, no property appli- cable to the judgment was discovered, the creditor would be required to pay costs unless be could show some good reason for having required the debtor to submit to the examination, (Anon., 3 Sand/., 723 ; S. C, 1 Code R., \_N. S.'], 113), seems relaxed. Indeed it appears now a settled opinion in the courts that the creditor is as much entitled to these proceedings after return of execution as he is to the issue of the exe- cution itself in search of his debtor's property ; and that he should not be subjected to the payment of costs, unless he proceeds vexatiously ; for section 292 declares that he is entitled to an examination. This applies, how- 186 COSTS — WHEN APPLIED FOR — ALLOWANCE OF. ever, only as between the judgment creditor and debtor — not generally as against a third party. ■What allowed. On the termination of the proceedings by the dis- covery of property, the creditor is entitled to bS allowed for witnesses' and referee's fees, for service of subpoenas, exemplification of records — in short, all his necessary disbursements, beside an allowance. His disbursements should appear by afiEidavit on the motion for costs. In Ross V. Clussman, supra, where the debtor was punished for contempt, the costs of the supplementary proceedings were added to those of the contempt proceeding, and the debtor ordered to stand committed till he paid. The allowance of a fixed sum for counsel fee is equiv- alent to allowing it as costs. Hulsaver v. Wiles, 11 How., 446. When the opposite party is entitled to costs the same rule should generally prevail. However, the matter of costs is in the discretion of the Court or judge. When to be applied for. Costs may be allowed at any time before the order is made to apply the debtor's property in the receiver's hands upon the judgment. Webber v. Hobbie, supra. The proper time without doubt to mate the order for costs in favor of the creditor, is after property has been discovered and is ready to be applied upon the judgment by order under § 297, or by the receiver. However, when a receiver is appointed, the allowance of costs is generally incorporated in the order of appointment. Who may allow the Costs. The Court or judge that has charge of the proceedings or may continue them can make the order allowing costs. So also where the receiver brings an action to set aside a transfer of property on the ground of fraud, NOTICE — COLLECTION OF. 187 and succeeds, tlie Court in whicli the action is brougth, if it has jurisdiction of the party to be affected, may, per- haps, grant this order allowing the costs of the proceedings. The Court, whose officer the receiver is, may also grant the order allowing costs. Notice. Costs are granted on motion, for which notice should be given to the party to be affected by the order, if pos- sible, unless he is present when the application is made. Iiength of Notice. The motion is summary ; and as it generally accompa- .nies tlie application for an order under § 297 appropriat- ing the property to the payment of the judgment or for a receiver under § 298, the length of the notice, is ,in practice the same as in the latter motions. See ante, p. 136. 'H.ovT collected. It was held in Hulsaver v. Wiles, supra, that no exe- cution could be issued on an order made out of Court to pay costs ; while in Kearney's Case (13 Abh., 459 ; S. C, sub nom. People v. Kelly, 22 How., 309), the Court held that as against the judgment debtor §§ 297 and 301 taken together warrant the judge to order him to pay costs if sufficient property be found in his hands for that purpose ; and that his default to pay the same is a con- tempt, and punishable as such. This last decision is also applicable against a third party under like circumstances. When the proceedings are conducted before the Court, the latter allows the costs. 188 PROCEEDINGS TO PUNISH SECTION III Enforcement of Orders, die. SECTION 303 OP THE .CODE OF PBOCEDDEE. " If any person, party or witness disobey an order of the judge or referee, duly served, such person, party, or witness may be punished by the judge as for a contempt. And in all cases of commitment under this chapter, or the Act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be dis- charged from imprisonment by the Court or judge com- mitting him, or the Court in which the judgment was rendered, on such terms as may be just." In 1848 and 1849 this section consisted only of the first sentence. The second, i. e., the power to discharge from imprisonment, was added in 1851, and is substan- tially a transcript from § 20 of the Statutes on Contempts to enforce civil remedies, &c., as amended in 1843. I shall here aim at giving merely an outline of the rules and practice in proceedings as for contempt to en- force civil remedies, and indicate those points which are peculiar to supplementary proceedings. I will, how- ever, endeavor to treat the subject sufficiently at large to answer all the ordinary cases that may arise in the course of supplementary proceedings. Nature. Proceedings to punish as for contempt are regarded as special proceedings. Gray v. Cook, (IST. T. Superior Ot., Sp. T.), 15 Abb., 308, note. But the Court in Holstein v. Eice, Id., p. 307, held that they are in an important sense, a part of the orderly proceedings under § 292, in- asmuch as they have in view (beside the punishment of the ofi'ender) the collection of the plaintiff's debt. AS FOR CONTEMPT. 189 Who may punish as for contempt ? (1) The judge whose order has been disobeyed, may punish the disobedience as a contempt. He may mate the attachment issued against the offender, returnable at his office in a distant county. Be Smethurst, 2 Sandf. S. Ct., 724; S. C, 4 Row., 369 ; 3 Code B., 55. This is however, a very awkward practice. The fact that he issued the attachment while holding special term, and it was entitled there, does not render it irregular, provided he could have issued it at chambers. Wicker-y. Dresser, 13 Eow., 331 ; S. C, 4 Ahh., 93. (2) Where proceedings at chambers can be continued by another judge, as in tlie first district, he may entertain all or any part of the proceeding for the punishment of the contempt. Id, Kelly v. McCormick, 2 E. D. Smith, 603 ; Dresser v. Van Pelt, 15 How., 19. In this last case the disobedience was to an order of Davies, J., Supreme Court, First District. Oleekb, J., sitting at chambers in Davies' stead, issued, the attachment directing the sheriff to bring the accused before one of the justices of the court at a special term, at a time and place designated. The prisoner appears not to have objected to this direction in the attachment. It was held that the proceedings had been regularly continued, and the mere fact of mak- ing the attachment returnable before one of the justices at special term instead of at chambers before him who issued it, did not render the process void, but simply voidable. See also Latham v. "Westervelt, 16 Barh., 421, and Kelly v. McCormick, 28 N. Y., 318, upon this •point of irregularity. The latter decision overrules the same case in the N. Y. Common Pleas upon that point. 2 E. D. Smith, 503. In cases of continuance, however, the better practice is to make the notice of motion for an attachment returnable at chambers before the judge by name, whose order has been disobeyed, and the order to 190 PROCEEDINGS TO PUNISH show cause or the attachment, before the judge who grants it, and then, if upon return of such notice, order to show cause, or attachment, another judge be at the time and place designated performing the chamber business, lie can continue and act in the matter to the same extent and with the same efBcacy as the former judge. Code, % 2Y. But in courts where continuance is authorized, a notice of a motion to be made before ilie justice of the court sitting at chambers, is undoubtedly regular ; be- cause the judge at chambers, whoever he may be, has the power to entertain the motion. Such notice fully apprizes the party served of a motion which can be reg- ularly made. (3) Proceedings to punish a contempt committed of an order m^de in supplementary proceedings by an offi- cer, as a county judge, may be instituted or continued by his successor. Supreme Court, General Term, Third District. JEEolstein v. Rice, supra. For if supplementary proceedings are a continuation of the ordinary proceed- ings in the action, and a part of it, and would therefore not abate at the death or expiration ot the term of office of the justice before whom they are pending, then con- tempt proceedings may be instituted or continued as above stated, because they are in an important sense, a part of such supplementary proceedings, inasmuch as they have in view the collection of the plaintiff's judg- ment. " But if supplementary proceedings are to be re- garded as special in their nature — extraordinary in their character — peculiar in their object, and not to be classed among the ordinary proceedings in the actions," then contempt proceedings may be instituted or continued under 2 B. S., p. 284, § 51 {E. S., part 3, ch. 3, tit. 2, art. 2, § 51) ; the " object of which statute apparently was to provide for the continuance of all judicial proceedings to AS FOR CONTEMPT. 191 except those in ordinary progress of an action, wMcli would be continued of course, and those where special provision had already been made by statute." Id. This case takes the position, that if supplementary pro- ceedings are a continuation of the ordinary proceedings in the action in which the judgment was rendered, then not only a matter of contempt but any other part of such proceedings, can be continued, like a suit, before the successor of the judge who instituted them, or before the officer who acts in his stead, and discharges his official duties in his absence or removal from office. The court likens the proceedings to a suit pending before the chan- cellor, which did not abate on the death or removal from office of that functionary. According to this view, if the proceedings be taken before a justice of the Supreme Court in any district, and he is absent or removed from office, or by reason of any other disability, he cannot at- tend to them, another justice of the same court, or any other judge who can discharge his official duties in this respect, may continue the proceedings, provided such officer could have originally instituted them. Or if supplementary proceedings are not ordinary pro- ceedings in the action, but special in their nature, then such continuance is authorized by the statute above men- tioned. That statute provides for every contingency of absence or disability of the officer who has instituted the proceedings, and directs that in such case, they may be continued by the officer's successor, or by any other offi- cer residing in the same county, who might have origin- ally instituted them. It fiu-ther provides that if there be no such officer in the same county, then the nearest public officer in the next county may continue the proceedings. But this clause would not in every case be applicable to supplementary proceedings ; because they must be taken in certain counties prescribed by section 292. This statute 192 PKOCEEDINGS TO PUNISH also provides that if such successor or substituted officer is at the place at the time designated in the notice or order, he may proceed with the matter as if the same had been orig- inally commenced before him. But if the proceedings are to be continued by the substituted officer at any other time or place, notice of such substitution shall be given to the parties who may be aifected thereby ; and such officer shall then be authorized to entertain the proceedings as if they had been originally commenced before him. Thus, then, these proceedings may be continued upon any view that may be taken of them, and before whom- soever they may have been instituted. (4) So it is clear that if supplementary proceedings commenced by a county judge or judge of the JS". Y. Com- mon Pleas, may-be continued before a Supreme Court jus- tice pursuant to § 292 {ante, p. 14), such justice may en- tertain or continue proceedings to punish a contempt committed against such judge. (5.) The Court. It is now settled in the Supreme Court of the first dis- trict, that the court can punish a contempt committed against a member thereof. The argument by which Cleeke, J., establishes this proposition seems unan- swerable. Wicker v. Dresser, 13 Kow., 331 ; cited and approved in The People v. Kelly, 22 Id.., 309 ; S. C, svb nom. Kearney's Case, 13 Abh., 459 ; also Hil- ton V. Patterson, 18 Id., 245. All these cases were at Special Term. But it is now the settled practice here for the court to entertain the proceedings to punish these con- tempts. The motion therefor is a non-enumerated motion, and is made to the special term held at chambers upon notice. The Superior Court and the Court of Common Pleas in this district, on the contrary, still hold that the judge, and not the court, must entertain the proceedings AS FOR CONTEMPT. 193 for the punishment of all such contempts. Bitting v. Vandenburgh, 17 J7oi.o., 80 ; Cowdrey v. Carpenter, 17 Abb., 107 ; Shepherd v. Dean, 3 Id., 4:24: ; S.O., 13 Sow., 173. (a) If the proceedings under subd. 2, § 292, are before the court, all contempts arising therein are punished there. « Contempt of a Referee Is a contempt of the court or judge that appointed him, and the proceeding to punish it is the same as if the of- fense had been committed of an order of the court or judge. Who may apply. The person applying to punish a party for a contempt must show that he has some interest in the subject mat- ter, or that he has a right to prosecute for the misconduct or other injury complained of; except infants, lunatics, &c. See Hawley v. Eennett, 4 Paige, 165. Whether the receiver can in his own name prosecute a contempt com- mitted after his appointment, was raised, but not passed upon, in Eodman v. Henry, 17 2f. Y., 484. What Acts, &o., are Punishable. Sections 296 and 301, taken together, warrant the judge to order the payment of costs, if sufficient property for that purpose be found in the debtor's hands ; and in such case, his default to pay the same is a contempt. Kear- ney's Case, 13 Abb., 459 ; S. C, 22 Eow., 309. The re- fusal to answer a proper question upon the examination in the proceedings is also thus punishable. Olapp v. Lathrop, 23 Id., 423. So knowledge of the injunction, information of its contents, presence in court when it was made, are fully sufficient to impose upon the enjoined party the duty of obeying it, so far as the pecuniary rights of the credit- ors are concerned, although the injunction order was not shown to him when a copy of it was served ; and his re- 13 194 PROCEEDINCfS TO PUNISH fu3al to obey it may be punished as for a contempt. Liv- ingston V. Swift, 23 Sow., 1. See ante, p. 183. But where a debtor was asked as to the amount and nature of encumbrance on his property six months before the exam- ination, it was held that such question was not necessarily within his power to answer, and an answer in substance that he was unable to give fhe information asked, is not necessarily evasive. "Wicker v. Dresser, 14 Row., 465. A judgment debtor cannot be sunomarily punished for a breach of the injunction when he claims that the property with which he interfered did not belong to him. That fact must be first determined in the proper way. Nor can he or any other party be punished for doing or refusing to do an act, the prohibition or requirement of which is not within the terms of the order ; as for a refusal to de- liver property or pay money to the receiver, when the or- der does not direct it. The People v. King, 9 Id., 97 ; Watson V. Fitzsimmons, 5 Duer, 629. In a creditor's bill, it was no contempt to neglect to de- liver property to the receiver, when it was claimed to be in the possession of another, and to belong to him, unless the master had decided that it belonged to the debtor, and was under his control. 1 Barb. Ch. Pr., 671. A fail- ure by a party to appear on an adjourned day may be punished as a contempt, though the adjournment 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. A party will not be punished for disobe- dience of an order obtained on an affidavit jurisdictionally defective. Kennedy v. "Weed, 10 Abh., 62. Such a^ or- der is void. Nor will he be punished when he shows his inability to comply with the order ; unless he has volun- tarily disabled himself, and the creation of the disability is itself contumacious. Myers v. Trimble, 3 E. D. Smith, ^S FOR CONTEMPT. 195 607, 612 ; S. C, 1 Ahi., 399 ; Ilerkins v. Taylor, 19 Abb., 146, 150. In short, the disobedience of any order of the court, judge, or referee, made in these proceedings, and duly served, may be punished as for a contempt. JHe Smethurst, 2 Sand/., 724. ■What Must be Shown. When the disobedience is of an order made by a judge or referee, it must be shown that such order was duly served. § 302. So also a sufficient continuity of the pro- ceedings should be shown. In the case of Ammidon v. Woleott, 15 Abb., 314, the supplementary order was person- ally served on the debtor. He appeared on the return day, but instead of submitting to an examination, he obtained an order to show cause why the proceedings should not be vacated. This motion was heard and denied 10th of January, 1860, and the debtor further ordered to appear on the 14th of January. He was present when this order was made. It was served only upon his attorney. He failed to appear ; and the judge certified his default, and on the 16th of January made a further order for his ap- pearance on the 19th of the same month. This order was personally served on him. He .again failed to appear, whereupon the judge made an order for him to show cause on 21st of January, why an attachment should not issue. This order and the moving papers were per- sonally served. No cause having been shown on the return day, an attachment was issued. Thecourt held that the proceedings were sufficiently continuous to justify the final order — order of conviction and commitment. For process of contempt, a clear case must be made out. Thus, where it is sought to punish the debtor for receiving and paying out money after the injunction was served, it must be shown beyond a reasonable doubt that the money 196 PUNISHMENT FOK CONTEMPT, received and paid out was due or acquired prior to the ser- vice of the injunction. Potter v. Low, 16 How., 549. 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 committed 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 Id., 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 B., 98 ; see ante, p. 128, SECTION IV, The Method of Procedure topxmish as for Contempt. The mode of procedure for the punishment of a con- tempt committed in the course of supplementary proceed- ings, is that prescribed in the Eevised Statutes, part 3, eh. 8, tit. 13, to enforce civil remedies, &c. Ke Smethurst, supra ; The People v. King, 9 How., 97. By the second section of that statute, when the misconduct or disobedience is committed in the immediate view and presence of the court, it may be summarily punished. This section is applicable in these proceedings when en- tertained by a judge. "When the disobedience complained of is of an order re- quiring the payment of money, the precept of commit- ment issues immediately on proof of a personal demand and refusal. § 4. This process must not be to appear and answer, but to arrest for the purpose of punishment. The ORDER TO SHOW CAUSE. 197 People V. King, supra. But the order requiring the pay- ment of the money should specify the time within which payment is to be made. 2 Barh. Ch. Pr., 272. In all other cases, the court shall either grant an order on the accused party to show cause at some reasonable time to be therein specified, why he should not be punished for the alleged misconduct ; or issue an attachment to ar- rest such party and bring him before such com-t to answer for such misconduct. § 5. And in either case a copy of the affidavits and papers upon which the application is founded, must be served on the accused a reasonable time to enable him to make his defence. § 3. It is sufiicient if such copy is served simultaneously with the attachment [or order to show cause]. Ee Smethurst, supra. "When the alleged contempt has been committed before a referee, or of his order, the moving papers, it seems, should contain the order of examination and reference, or at least enough of it to show the referee's authority. Wicker v. Dresser, 14 How., 465. The Eevised Statutes thus prescribe two modes of pro- cedure to ascertain whether or not a contempt other than in the non-payment of money has been committed — by or- der to show cause, and by attachment arresting and bring- ing the party before the court. But either must be founded on proof or affidavits satisfactory to the judge granting it, and copies thereof must be served on the accused. The Order to Show Cause, Mentioned in the statute, is not to show cause why an attachment should not be issued, but " why he (the of- fender) should not be punished." Hence, if such an order is made and served, and the accused party or witness ap- pears, but does not show cause, he may be punished with- out any further proceedings. Re Smethurst, supra; Al- bany City Bank v. Scliermerhorn, 9 Paige, 372. It was 198 PUNISHMENT FOR CONTEMPT. also held in "Watson v. Fitzsimmons (5 Duer, 629), that "when, upon the return of such order, the accused denies the contempt, it is not essential to the validity of a final order (order of conviction, &c.), that interrogatories be filed and answered. The matter is determined accord- ing to the practice which obtains upon the return of any other order to show cause. Interrogatories, however, may be ordered to be filed and answered ; but that if instead thereof, a reference is ordered to take the testimony, ascer- tain and report the facts, and both parties appear before the referee and submit evidence, the defendant cannot ob- iect on the final hearing upon the referee's report that no interrogatories had been filed and answered ; that section 19 of the above-named statute only refers to proceedings by attachment. This decision was made at Special Term, and affirmed on appeal to the General Teim. But the chancellor, in 9 Paige, 372, supra, and Cleeke, J., in Pitt V. Davison, 37 Barb., 97, hold that interroga- tories must be filed and answered in every case where the contempt is denied, and rest their view upon the same sec- tion (19) ; that is, when the contempt is denied upon the return of an order to show cause, and the court does not discharge the order, which it may do, but continues the matter, the subsequent proceedings are substantially the same as upon the return of an attachment. See McCredie V. Senior, 4 Paige, 378. The chancellor further held (9 Paige, 372) that where it is referi-ed to a referee to take the answers of the accused to the interrogatories and other evidence, the proofs themselves, and not merely the ref-' eree's opinion thereon, should be reported. The learned jus- tice who delivered the opinion in Pitt v. Davison, supra, also held that the personal appearance of the accused in court was necessary before he could be punished as for, contempt, and if his appearance could not be compelled, justice must fail. No interrogatories are necessary where the acts of contempt ATTACHMENT, 199 charged are admitted, and it is only insisted that such acta are not contemptuous. Olapp v. Lathrop, 23 ITow., 423. The order to show cause must be personally served, or the accused must personally appear in court in com- pliance therewith. 2 Barb. Ch. Pr., 278 ; Pitt v. Davi- son. But personal service may be dispensed with on special grounds. 2 Barh. Ok. Pr., 278. 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 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. Attachment. The attachment is but a mode of bringing the accused before the Court, It is not issued for the purpose of punishment after a final adjudication. Pe Smethurst ; Pitt V. Davison ; 9 Paige, 372, supra. In the first dis- trict the ordinary course is to initiate the contempt pro- ceedings by a notice of motion for an attachment, or an order to show cause ; but generally by a notice of motion. The notice, or order, is accompanied with a copy of the affi- davits and documents upon which the motion is to be made. Upon the hearing of such motion, if the affidavits of the parties are conflicting, an attachment will prop- erly issue to bring the accused into court, so that he can be examined on interrogatories, and to enable the plaintiff to compel the attendance of witnesses. McCredie v. Senior, supra. But no attachment will be granted to bring a party into court for disobedience of an order requiring him to appear pei-sonally, without 200 PUNISHMENT FOR CONTEMPT. proof of tlie service of the order and the failure to ap- pear. "Ward V. Areuson, 10 JBosw., 680. If the proceedings are before the court, the warrant of attachment is issued by the clerk of the court, under the seal thereof, by order of the court first made and en- tered. This order should recite the successive steps of the proceedings, or at least, enough thereof, to show jurisdiction on its face, and direct in what amount the prisoner shall be held to bail. It should not contain an adjudication of the court, but merely direct the issuing of the attachment, or that it appears to the court that there is cause for the issuing of the attachment. Graty's Sp. Pro., " Contempt^'' p. 396. If the proceedings are before a judge out of court he issues the attachment and directs tiierein in what amount the prisoner shall be held to bail. ISTo order is made or entered. The attachment should fully recite the successive steps of the proceed- ings had, and should otherwise contain the substance of the order before mentioned. There is no need of any clerk's signature or of any seal to it. In fact, these seem to be improper. For a contempt proceeding before a judge is a matter wholly separate from the court. Sup- pose the supplementary proceedings are had before the judge of Kings county upon a judgment of the Superior Court of Buifalo, what clerk must issue and sign the at- tachment, and under what seal ? Certainly not the clerk of Kings county. If any at all, it must be the clerk of the Superior Court of Buffalo. The inconvenience is so apparent that it cannot be supposed for a moment that the legislature intended that a clerk's signature and a seal must be to such attachment to make it valid. An attachment of this kind, like the order of arrest in provi- sional remedies or the warrant under § 292, is simply the order of a judge, and needs no other formalities than his signature. Section 302 of the Code gives him, as a tri- TITLE OF PROCEEDINGS — BOND. 201 bunal separate and independent of any court, the power to punish as for contempt, just as § 292 authorizes him to arrest the defendant. With neither proceeding has the court anything to do. He has recourse to the Revised Statutes, which prescribe the mode of procedure by the court in matters of contempt, only so far as that method is applicable to him. Neither § 302 nor any other statute requires him to follow it in toto. In all cases, however, the attachment is issued in the name of the People of the State, and directed to the sheriff, and commands him to attach the accused and to have his body before the court or the judge signing it, at a time and place specified, to answer touching the contempt alleged against him. Title of Proceedings. If the contempt proceedings are against a party to the action, the affidavits, attachments, and all the other pro- ceedings are properly entitled in the original cause. Staf- ford V. Brown, 4 Paige, 360 ■,1 Id., 325 ; 1 Barb. 8. Ct., 227. But in proceedings as for contempt against witnesses and others not parties to the suit, the practice is to entitle the order for an attachment and all papers prior to that in the cause, but all subsequent proceedings on such order in the name of the People, &c., ex. rel. th.e plaintiff ag&m&t the accused. Id. The Bond. A bond taken from a party arrested upon an attach- ment for contempt, with one surety instead of two, is ir- regular, 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 Abl., 410. Proceedings on the Return of the Attachment. "When the defendant is arrested upon the attachment and brought into court, or has appeared therein, and 202 PUNISHMENT FOE CONTEMPT. does not admit the contempt, he can only be punished in case he is found guilty after his answers to the inter- rogatories have been taken, and such cither proofs con- tradictory and in coniirmation thereof as shall have been received. Be Smethurst, sujpra ; 4 Paige, 378 ; 5 Duer, 630, supra. In such case, the court will cause interrog- atories to be filed, specifying the facts and circumstances alleged against the defendant, and requiring his answers thereto, to which the defendant shall make written an- swers on oath within such reasonable time as the court may allow. The former practice was to file interrogatories within four days after the return of the attachment, and the de- fendant either remained in custody, or put in bail, or his recognizance was taken to appear from day to day, until the court detei-mined the case. Hen-ing v. Tylee, 1 Johns. Cas., 31 ; The People v. Tefft, 3 Cow., 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 recog- nizance. But the prosecutor might exhibit his interrog- atories any time before the motion was actually made. 1 Graham's Pr. (2d ed'.), 696 ; Gravy's Sp. Pro., p. 405. This practice, it is said, still prevails in the Supreme Court ; except when the attachmentis returnable at a spe- cial term, the interrogatories must be filed within two days. The People v. Munro, 15 How., 494. A copy of the interrogatories should be served on the de- fendant. The Court will direct the defendant to make written answers thereto upon oath, and file tlie same within a specified time. If he refuses to make such writ- ten answers within the time directed, he may be recom- mitted ; or if out on bail, and he fails to attend to be ex- amined, the court may award another attachment, or REFERENCE TO EXAMINE PARTY. 203 may order the bond taken on tlie arrest to be prosecuted, or both. 2 B. S., p. 537, § 13 ; Id., 539, § 27. The in- terrogatories must be confined to the subject matter of the misconduct alleged. If they are improper, the de- fendant may except or demur to them. Thus, he may demur if they relate to other alleged contempts than that for which he was arrested. Gravy's Sp. Pro., p. 406. If they are defective, they may be amended where that is necessary to explain an ambiguity, or to obtain a full answer to matters already stated. Herring v. Tylee, supra ^ People -y. 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. Peo- ple V. Compton, 1 Duer, 512. After the interrogatories are filed and answered, the court proceeds in a summary manner to decide whether the defendant has been guilty of the misconduct alleged; and in determining that question, it may receive and take into consideration the original aflSdavits, and also any other affidavits or proofs contradictory of the answers of the accused, or in con- firmation thereof. 2 E. S., p. 537, § 19. Reference to Examine Party, &c. The court may also order a reference to some suitable person to take the answers of the defendant to the inter- rogatories, and to take and report such other proof as either party may wish to produce in respect to the al- leged contempt. Cumming v. "Waggoner, 7 Paige, 603; 2 Barh. Ch. Pr., 277; Crary's Sp. Pro., 407. The court will not, as a general rule, allow ex pa/rte affidavits to be used on such reference, but will compel 204 PUNISHMENT FOR CONTEMPT. the parties to produce and examiue the witriesses before the reference, so that they may be cross-examined by the adverse party. If the answers of the accused are short and evasive, they may be excepted to ; and if they ap- pear to be insufficient, the court will order them to be sent back to the referee that they may be fully answered. Id. After the answers of the accused and the other proofs have been taken, the referee must report the same to the court. It it not enough that he report merely his opinion upon such proofs. Albany City Bank v. Schermerhorn, 9 Paige, 372. Proceedings if the Accused Party is Poiind Guilty. It is provided by the statute, that if the court shall ad- judge the defendant to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or ac- tually did, defeat, impair, impede, or prejudice the rights or remedies of anyparty in a cause or matter depending in such court, it shall proceed to impose a fine, or to im- prison him, or both, as the nature of the case shall re- quire. 2 R. 8., p. 538, § 20 ; as amended by Laws o/"1843, ch. 9. The Penalty. The fine to be imposed upon a party guilty of contempt must be sufficient to indemnify the aggrieved party for his actual loss or injury, and to satisfy his costs and ex- penses of the contempt proceedings. 2 li. S., p. 538, §§ 21 and 29 ; Lansing v. Easton, 7 Paige, 364 ; Eoss v. Clussman, 3 Sandf. 8. CL, 676 ; S. C, 1 Code E. [N. S.'], 91 ; Fenner v. Sanborn, 37 Barb., 610. And this fine will be imposed, on him though the injunction order was not shown to him when the copy was served, where he had knowledge of the injunction, information of its contents, and was in court when it was made. Livingston «. Swift, THE PENALTY. 205 23 Sow,^ 1. In Eoas v. Clussman, the costs of the supple- mentary proceedings were also added, and the defendant ordered to stand committed nntil he paid the whole fine. Reasonable counsel fees may also be allowed for prosecut- ing the proceedings. Davis v, Sturtevant, 4 Duer, 148. The actual losses above referred to are losses pecuniary in their nature, and capable of being estimated as such with reasonable certainty. The People v. Compton, 1 Duer, 512. If the aggrieved party has sustained no loss or in- jury, he is still entitled to his costs and expenses. If the contempt is criminal — ^that is, wilful or designedly con- temptuous — ^the powers of the court are not limited to the imposition of a fine sufficient to indemnify the party ag- grieved, or to an imprisonment of the accused for the sole purpose of enforcing the payment of such fine, but extend to the punishment of the accused as for a criminal con- tempt. When the misconduct is an act of disobedience to the lawful process of the court, and is also shown to be wilful, the court has the power, and is bound to punish it as a criminal contempt, and may in such case impose a fine not exceeding two hundred and fifty dollars, and im- prison the accused for a term not exceeding six months, although no actual loss has resulted from hia misconduct. Id. ; Holstein v. Eice, supra. But unless the contempt is shown to be criminal in its nature, the court can impose no fine beyond the costs and expenses of the relator, except as a compensation for an actual loss. 1 Duer, 512, supra. Also, The Arctic Fire Ins. Co. V. Hicks, 7 All., 204. The court may also imprison the ofiending party until he shall perform the act required of him, or pay the fine imposed to indemnify the party aggrieved, and such im- prisonment is not limited to six months. 1 Duer, 520-21, svfpra. As to the excuse that the party accused acted under the advice of counsel, see 1 Duer, 612. As to what 206 PUNISHMENT FOR CONTEMPT. constitutes criminal contempt, see R. S., part 3, ch. 3, tit. 2, art. 1. The fine imposed for a criminal contempt, where there has been no loss shown to the relator, it seems, goes to the people, except the amomit allowed the prosecutor for his costs and expenses. Order and Process of Commitment. "When the contempt proceedings are instituted before the court, and the defendant is found guilty, an order must be made and entered convicting him of the offence charged. This order should recite the facts and proceed- ings necessary to confer jurisdiction, or at least, it must appear upon the face thereof, that the court had jurisdic- tion. It should recite the siibstance of the alleged mis- conduct, the adjudication of the court that the defendant is guilty of the contempt charged, and that such miscon- duct was calculated to and did impair, defeat, impede and prejudice the rights or the remedies of the prosecutor, and should impose the fine determined upon by the court. And if anything remains to be done by the defendant, the order should specify particularly what he is to do, and the manner in which it is to be done, to entitle him to be discharged. If the fine embraces several particulars, as one for loss or injury, and another for costs and expenses, the amounts should be separately specified. See Albany City Bank v. Schermerhorn, supra. In Seaman v. Dur- yea (11 If. T. [1 Kern.], 324 ; 10 £arl., 524), where the contempt was for refusing to pay over money, it was held not to be necessary to recite all the proceedings in the process ; but that it was sufficient if jurisdiction appeared on the face of it. The order should also direct to whom the money is to be paid, or what is to be done with it when paid. Id. See 2 Den., 610. But no such order need be entered, or indeed can be entered, when the proceedings are before a judge "WARKANT OP COMMITMENT. 207 out of court. The warrant will in that case embrace the contents of the order. The defendant may also be committed by rule or order of court ; for such order is process. The People v. Nevins, 1 Bill, 154. The Warrant Is process of commitment, and, when issued by the court, is based on the order of conviction above-named, the substance of which it should briefly recite. Eut it is sufficient if it substantially states the cause of commit- ment, and specifies the act or duty to be performed, and the expenses to be paid. Seaman v. Duryea, supra. It is signed by the clerk, and sealed with the seal of the court. "When the warrant is issued by a judge at chambers, it should recite enough of the supplementary proceedings to show on its face that a contempt has been committed, and that the judge has authority to punish it. ITo doubt, greater particularity in the recitals is required, than when the pro- ceedings are before the court ; because much is presumed in favor of the jurisdiction of the latter (The People v. Nev- ins, supra) ; while little is presumed in favor of the authority of a judge at chambers, especially if, as a county judge, he entertains supplementary proceedings on a judgment not in his own court. The People v. Hulburt, 5 How., 447. The warrant is signed by the judge. It needs no seal or clerk's signature to make it valid. See ante, ^^ Attachments^^ p. 200. This warrant, whether issued by the court or judge, runs in the name of the People, and is directed to the sheriff of the county, who has the defendant under arrest on the attachment, or if the accused was proceeded against by order to show cause, or the warrant is a precept to commit for disobedience of an order requiring the payment of mo- 208 PUNISHMENT FOR CONTEMPT, ney, then to the sheriff of the county where the defendant resides, or is. Seeformsof commitment, pp. 323, e^scg'. The ■warrant is substantially the same whether the proceedings for contempt were commenced by order to show cause, or by attachment. The foregoing rules in matters of contempt, with the exceptions noted, apply as well to the proceedings before a judge as before the court. Proceeding by the Court of ■wMoh the Judge ia a Member, The decisions in the Supreme Court, first district, which hold that the court may punish a disobedi- ence of a judge's order, limit this power to proceed- ings in actions , in the same court. Tlie rule does not apply when the proceedings are on a judgment of another court. £nforoement of Subpena against Witnesses, A witness' disobedience to a subpena in these proceed- ings is not a contempt of the judge before whom he is to attend, or who has charge of the proceedings, but of the court out of which it issued (2 B. S., p. 400, § 43), and ought to be punished by that tribunal. No power ia given to the judge to punish in such case. Section 302 authorizes him to punish a witness for disobedience of an order made by him or a referee, and duly served ; but not of a subpena. Section 46, of 2 B. S., p. 401, autho- rizes a judge to issue his warrant for the arrest of a wit- ness who disobeys a summons, issued by him to attend and testify. But witnesses are required to ajjpear and testify in supplementary proceedings by process of sub- pena, and not by the judge's summons. A disobedience to a subpena must, therefore, be pun- ished by the court out of which it issued. There are dif- ferent ways of initiating proceedings against a witness who ENFORCEMENT OP StJBPCENA. 209 has disobeyed a subposna, the same as for other con- tempts. The Revised Statutes (part 3, ch. 8, tit. 13, §§ 34 et seq,), empower a circuit court to attach a defaulting witness in'a summary way, and have him brought before the court. The object of this is to prevent a postpone- ment of the trial on account of the witness' absence. Any other court of record may attach a witness in this summary manner. 2 H, S., p. 536, § 5. But iu other cases, when tlie application to punish a defaulting witness is made at bar, it is not usual to grant an attachment in the first instance for a mere neglect to obey a subpoena, unless some wil- lul disobedience to the authority of the court is made to appear. Jackson v, Mann, 2 0am., 92. However, where tile witness positively refuses to obey, an attachment may issue in the first instance. Andrews v. Andrews, 2 Johns. Cas., 109 ; S. C, Col. Gas., 119. The usual course is to procure an order upon the witness to show cause at a spe- cial term of the court^why an attachment should not be is- sued against him. The motion is non-enumerated, and is. made upon the subpoena, proof of due service and non- attendance. Vide 2 B. S., p. 400, § 42 ; and Id., p. 643, § 24, as to the manner of serving a witness. This order must be personally served on the witness; unless he evades the service, or other circumstances render it proper, the court will order that service at his last place of abode shall be sufficient. No. 555 of Cowen, Bill, and Edwards' Notes to Philips on Evidence, 2 vol., p. 830. The motion for an attachment must be made without un- necessary delay. Where, as in the first district, the judge sitting at chambers also holds a special term for hearing motions of this kind, and the supplementary proceedings are based upon a judgment of his court and district, the practice is simple, if the examination is taken before iiim. The wit- ness is called, his default noted, and upon an affida-vit of 210 PRISONER, HOW RELEASED. due service, an attachment or order to show cause is ■granted on the spot. But if the examination is taken by a referee, or the proceedings are before a judge who does not, at the same time, hold a special term ; or before a judge of another court, application for the punishment of a de- faulting witness must be made to the proper court, and in the proper district. When the witness is thus brought into court upon an attachment, or upon an order to show cause, if that mode is adopted, the procedure to ascertain his guilt and pun- ish the same, is like that in other contempt proceedings. The warrant of commitment may require him to attend and testify, as part of the fine imposed upon him. The Prisoner, ho-w Released. Before the amendment of 1851 to § 302, it was held that the time of imprisonment ordered by a judge was unlimited. Matter of Pester, 2 Code H., 98. But now, in case of inability to perform tlie act required, or to en- dure the imprisonment, the person imprisoned may be discharged on motion. The moving 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 of the conditions imposed by the section. The plaintiff may resist the motion, and offer affidavits in disproof of 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 be imposed, which, by the section, rest in the discretion of the court or judge. 2 Whit., 703 ; see, also, Crofry's Sp. Pr. On Contempts, p. 416-7. See § 302, as to what tribunal may grant this order. IRREGULARITIES, ETC. 211 SECTION V. (yf 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 be waived by the adverse party, and is waived when he fails to object on that ground at the first opportunity, but submits to the direction of the officer who has, or assumes to take, charge of the 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 If. T. [5 SeU:\, 35 ; also Dudley v. Mayhew, 3 iT. T. [3 Oomst,\ 9. Thus, for instance, if all the facts exist which are necessary to vest a judge with jurisdiction in pro- ceedings under subdivision 1 of § 292, he will ac- quire jurisdiction of the judgment debtor's person, and of the subject matter of the proceedings (which is the discovery of property, and its appli- cation toward the payment 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 212 IRREGtJLARITIES AND 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 ap- pearance and submission to examination. He is effectu- ally estopped from afterwards raising the objection that he was not brought up on an order, or that the order was defective. Bingham v. Disbrow, 14 Abb., 251 ; S. C, 37 Barh., 24; citing and approving of Yiburt v. Frost, 3 Abb., 119 ; S. C, 5 Duer, 672. It is like a voluntary appearance in an action. Accordingly, in a case of this kind, the affidavit or sup- plementary order may be ever so defective or erroneous, yet if the debtor appears, and submits to the direction of the officer having charge of the proceedings 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 ; Yiburt v. Frost; Bingham v. Dis- brow, sujpra. 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 pro- ceedings. Hilton V. Patterson, 18 Abb., 247. The affi- davit in this case was valid on its face. But the debtor did not appear on the return of the order for his examina- tion ; and raised the above objection for the fii'st time on a motion made to punish him after interrogatories had been ffled and answered. So, also, if in a case of this kind, any irregularity or defect should occvff in an ad- journment, 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 eflectually JURISDICTIONAL DEFECTS. .213 ■Waives it, and cannot afterwards raise this objection, Ammidon v. Wolcott, 15 Aih., 314 ; Hilton v. Patterson ; Eeynolds v. McElhone, 20 JHow., 454. Such irregularities or defects only render the proceed- ings voidable at the first opportunity ; and, the advantage not being then taken, but waived, the proceedings become whole and complete throughout, as if no defect had oc- curred. "When the debtor has waived an irregularity, a third person cannot avail himself of it. Taylor v. Whit- ney, 12 Ahb., 465 ; Eichards v. Allen, 3 K D. Smith, 399, When to be Taken, An objection on the ground of irregularity in the pro- ceedings, to be valid, must be taken at the earliest possi- ble opportunity ; that is, when the exercise of jurisdic- tion is first claimed by the officer. If not then taken, it is deemed to be waived, Viburt v. Frost, supra. 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 ir- regularity complained of in due season ? If both ques- tions are affirmatively answered, the error is but an ir- regularity, and has been waived ; and the proceedings are regular. Erroneons Order. An order cannot be disregarded on the ground that it is erroneous or irregular. The party whom it afiects must appear and object to it for that reason. Kelly v. McCormick, 2 E. D. Smith, 603 ; The Arctic Fire Insur- ance Co. V. Hicks, 7 Abb., 204. Because such an order 214 IRREGULARITIES— AMENDMENT. is only voidable. See also the case of Hilton v. Patter- son, supra, as to the duty of the debtor to obey the or- der and appear on the return thereof; though he claims that the affidayit 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 (T Abh., 204, swpra) ; as where it requires him to appear on a Sunday. Amendment. In Kennedy v. Weed, 10 Ahh., 62, the affidavit on which the order supplementary was granted, did not de- scribe 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 was a radical error ; and the judge, by reason thereof, had never acquired jurisdiction of the person or subject mat- ter. 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 ob- jection may be taken at any time, but if it does, then, as we have seen, the objection must be made in dne season. Eut 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. Good- all V. Demarest, 2 Hilt, 634. Videj>ost, " Second pro- ceedings,^^ p. 236. The judge, as is thus seen, has no power to allow the affidavit to be amended ; nor is any autliority given hiiii 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, supra. But the court cannot sup- JURISDICTIONAL DEFECTS. 215 ply a jurisdictional defect. Waived irregularrties or de- fects are not appealable. 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 necessary to give the judge jurisdiction does not exist, the pro- ceedings must be dismissed. The objection can be taken any time during the progress of the proceedings ; and it is tlie duty of the judge to dismiss them, even on his own motion, in such case. Sackett v, Newton, 10 How., 560 ; see Dudley v. Mayhew, and Beach v. Nixon, supra. The Question of Jurisdiction in Collateral Proceedings. This distinction is made : where the matter constitut- ing jurisdiction is the same with that which is to be ju- dicially heard and determined on the trial of the very issue in the cause — i.e., makes a part of the merits, it is not the subject of collateral objection, but is reversible by direct proceedings only, as on appeal. Thus, the de- termination 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 mat- ter of jurisdiction does not form part of the merits of the case, as where a warrant is issued upon an affida- vit juiisdictionally defective, and objection on that ground is made in due season, this question may be raised in any collateral proceedings. See Broadhead v. McConnell, 3 Barb., 175, .187 ; also Porter v. Purdy, 29 N. Y.,10Q. 216 POWER OP THE JTJDiGB. SECTION vr. 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 treat- ing 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 v. Young, 1 Bosw., 690, 696, at general term. But these decisions must be accepted with some qualification, For ordinarily, 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 provisions of the chapter above- named. This applies especially to a judge when he en- tertains 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, supra, can institute the proceedings, and make a subsequent or- der therein in any part of the State ; and a judge in the first judicial district can continue them wRen 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, ia a recent case at general term, seems to have gone even further than this. It held " that the judge has the same general power over these pro- ceedings that the court would have, if the authority to make the order and conduct the examination had been IN COMMENCING PROCEEDINGS. 217 conferred upon the court," and that " his power over the proceedings is absolute, only subject to review on ap- peal." Cowdi-ey v. Carpenter, 17 Ahb., 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 de- ductions from this opinion. For when the cognizance of a new subject is conferred upon a court, the powers inci- dent to its general jurisdiction, so far as applicable, at once attach to the new subject. Matter of Canal and Walker Streets, 12 JV. T., 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. "We have had occasion, under the title of " Continuity" {ante, ch. 1, § 8, p. 419), and in other parts of the fore- going pages, to refer to the powers which a justice has in instituting and conducting supplementary proceedings. Some of tliese deserve a more extended notice, which will be given in this section. His Fo-wer in Commencing the Proceedings. In the case of Bingham v. Disbrow, 14 Abb., 251 ; S. C, 37 Bari., 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 affidavit 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, 6 How., 446 ; S. C, 1 Code H. [N. S.J, 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 presumed in fa- vor of the jurisdiction of an inferior officer (like a county 218 POWER OF THE JUDGE.' judge) ; that the facts upon wMcli jurisdiction 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, the proof of certain facts is expressly made a condition pre- cedent to give the officer jurisdiction, and must undoubt- edly be made in every case. Of Adjourning and Stajrtng Frooeedinga. In the case of The People v. Hulburt, supra, the court denied to the county judge the power of adjourning these proceedings without the debtor's consent. But this decision is nowhere followed by the practice in this par- ticular. It is clearly erroneous. In Tlie President, &c., of the Bank of Genesee v. Spencer, 15 Mow., 412, the court decided that the county judge, when entertaining the proceedings upon a judgment of the Supreme Court, had no power to adjourn them indefinitely ; that is, un- til an appeal to the Court of Appeals, taken in another matter in the same judgment, was determined. This decision was put upon the ground that if supplement- ary proceedings are in the action, then a county judge is expressly prohibited by Code, § 401, subd. 3, from stay- ing proceedings after verdict ; if they are. special pro- ceedings; then such judge derives all his authority to act in them from the chapter of the Code which treats of tlie proceedings, and which nowhere authorizes him to exercise such power. In the case of Cowdrey v. Carpen- ter, supra, in which an appeal was also taken, the court said the justice's power over the proceedings was abso- lute. He could adjourn them from time to time, and suspend them indefinitely. There is not necessarily any conflict between these two cases. A justice of the Superior Court ofjthe City of New York does not come within the prohibition of the ADJOURNING AND STAYING PROCEEDINGS. 219 above-mentioned subdivision. Moreover, that court holds that supplementary proceedings are in the action ; and in the first district, any motion may be made to a justice out of court, except for a new trial on the merits, and for judgments other than under Code, § 247. In the case of Eitterband v. Maryatt, 12 JT. Y. Leg. Ohs., 158, a judge of the N. T. Common Pleas also stayed proceed- ings indefinitely, that is, until an appeal could be dis- posed of. But it has not yet been detei-mined by any reported decision, whether or not a judge in any other district than in the first has such power when he proceeds upon a judgment in his own court ; although the case of The President, &c., Bank of Genesee v. Spencer, supra, inti- mates that he could do so ; whilst the court, in the same case, 15 Id., 14, in another district, seems in its general language to assert the contrary. If a judge cannot grant this application, then the proper way will be to procure an adjournment or stay until the ap- plicant can make a motion to the court for that purpose. See Frederick v. Decker, 18 Mow., 96. When a referee takes the examination, he may adjourn the same to a specified day to enable a party to apply to the judge or the court for whatever relief he thinks himself entitled to. Of course the referee has no power to determine any questions in the proceedings, except such as pertain to the examination itself, for this only is referred to him. Za Questions of Residence or Fl^ce 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 -y. Has- brouck, 13 Abb., 418, note. This power seems necessarily 220 POWER OF THE JUDGE, implied in the conduct of supplementary proceedings, and may be exercised by any judge in any case. If not, then the debtor may prevent an examination in many an in- stance ; he need but state by affidavit that he has not the residence or place of business alleged by the creditor to compel the officer to dismiss the order. Nor does the debtor of necessity perjure himself; for the terms resi- i^nee 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 in- quire 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 ca- pacity has this inherent power to inquire into and determine for himself the question whether he has authority over the subject matter. He is not bound, and ought not to take the assertion of any party upon this point ; because otherwise, it is plaiu that he could be ousted of jurisdic- tion at the pleasure of a party. Such inquiries are constantly made. Thus, if the debtor denies the existence of the judgment on which the pro- ceedings are based, the judge can inspect the records and determine that fact, as was done in Kennedy v. Weed, 10 Abb., 63. So, if the existence of the execution, its issu-. ance into the proper county, its return, or any other es- sential allegation about it, is denied, such fact may be in- vestigated by the judge. Yide Hersenheim v. Hooper, 1 Duer, 594 ; Jones v. Porter, 6 Sow., 286. Nor is the ease 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 LIMIT OF. 221 lie wag not included in the schedule of debts, had re- ceived no notice of application for a discharge, was not a citizen of the State at the time, &c. ; 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 proceedings, 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, 1 Milt., 109 ; S. C, 12 Bow., 359 ; 3 Abi., 96. No povrer. 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'Keil v. Martin, 1 M D. Smith, 404 ; Sherwood t). The B. (felSTew York City E. E. Co., 13 Eow., 136 ; Collins v. Eyan, 32 Barb., 647 ; Saunders v. Hall, 2 Abb., 418. So the weight of authorities is against, at least, the propriety of his reviewing the return to the execution. (Ante, "Execution^'' ch. 1, § 4). At any rate, he cannot review such return so long as it is consid- ered 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 officer 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 ad- journ the proceedings to enable the aggrieved party to apply to the proper tribunal. Frederick v. Decker, eupra. The judge'has no power to authorize an affidavit, order 222 POWER OF JUDGE. or process in supplementary proceedings to be amended. The statutes allowing amendments {Code, §§ 169, et seq^.; and 2 B. S., p. 424, tit. 6), 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 Mow., 374. The proceedings are defective in this respect. But where a mere rule of practice requires cer- tain proof to be made, the judge may allow it to be sup- plied by amendment after objection. Goodall v. Dema- rest, 2 Hilt.f 534. But it seems the judge may amend a defective bond or undertaking given in supplementary proceedings upon the application of all the obligors. 2 a. S., p. 556, § 34. The Judge's Exclusive Control. When supplementaiy proceedings have been once duly instituted before a judge, his jurisdiction over them is exclusive as respects all other judges, and remains until the examination is ended, and all orders made by him in regard to the debtor's property or otherwise are fully ex- ecuted. So held in "Webber v. Hobbie, 13 Sow., 382 ; see also Hulsaver v. "Wiles, 11 Id., 446 ; Allen v. Star- ring, 26 Id., 57 ; President, &c.. Bank of Genesee v. Spencer, 15 Id., 14 ; Cowdrey v. Carpenter, supra. Of course this is with the exception of the continuances mentioned in ch. 1, § 2. It was also held in the Presi- dent, &c., of the Bank of Genesee v. Spencer, 15 Mow., 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 applicant were able to apply to the court for an order to stay them indefi- nitely, but he had no authority beyond that. NON-ATTENDANCE — OPENING DEFAULTS. 223 ITon-Attendance of the Debtor. Justice Haeeis, in Edmonston v. McLoud, 16 If. T., 543, thought that where the debtor was duly served, and failed to appear in obedience to the order, the proceed- ings might nevertheless be had. Some judges follow this course and permit the examination of witnesses, and make such orders as they deem just for the appropri- ation of the debtor's property toward the satisfaction of the judgment, the same as if the debtor had appeared. 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. B. and IST. Y. CityE.E. Co., 12 Row., 136. He may make an order under § 297 applying the discovered property upon the judgment, or appoint a re- ceiver 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, as we have seen {ante, ch. 3, §§ 3 and 4) ; and as was done in Bingham v. Disbrow, supra, and held good. For in no case in supplementary proceedings is the giving of notice of a motion to the debtor or any other party, a jurisdictional necessity. Opening Defaults, &c. 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 cred- itor should be permitted to resume the proceedings if he promptly applies for an order upon the debtor to show cause, and excuses his negligence or default; and the of- ficer might impose such terms as are just. The case of 224 POWER OF THE JUDGE, Eeynolds v. McElhone, 20 How., 454, favora this view. Such power has been exercised by justices, of the Su- preme Court in the first district ; and, as before stated, the case of Cowdrey v. Carpenter, supra, warrants this same practice by its general language; but I believe the justices of that court (E"ew York Superior) still adhere to the rules announced in Squire v. Young, 1 Bosw., 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 ob- tain a new order, and in addition to the ordinary affida- vit for that, he must excuse his default, and upon tliie new order he can obtain 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 au- thority to open defaults attends as a matter of course, un- less 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 pro- ceedings is summary, but how does that clasli with the discretion, if promptly sought, of permitting 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 laith disregarded the IN OPENING DEFAULTS, ETC. 225 injunction, or the latter hare acquired rights in the debt- or's property in the meanwhile, all may be protected in the order allowing the creditor to resume the proceed- ings. Again, these proceedings are a substitute for an equit- 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 construction. See Code, % 467. Further, if they are proceedings in the action, though not in court, they merit the consideration accorded to other proceedings. Thus, in a proceeding in any provis- ional remedy, whether before the court or a judge, a de- fault may be opened, and the motion or proceeding re- sumed. No one has ever imagined that this could not be done. The same is true of all other proceedings, whe- ther direct, collateral, or incidental, from the beginning of the action to the application for leave to issue execu- tion after the lapse of five years. The same was true of proceedings in actions before the Code. 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, practice has furnished the rule of adjournments, and that of com- pelling both parties to wait a certain time before a de- fault 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 consti- tute an important remedy in that act, and are expressly entitled to share its liberal rules of interpretation, 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 pro 15 226 POWER OF THE JUDGE. ceeding thereupon, but he should be permitted to resume the proceedings upon just terms and his prompt applica- tion to the judge for such permission. Fovrer 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 ; (for mode of service see ante, p. 68). Coddington v. Webb, 4 Sandf. S. CL, 639 ; Becker v. Hager, 8 Mow., 68 ; Watson v. Fuller, 9 Id., 425. Eut 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 contempt ■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 order had been served, or in fact entered, but had only been directed to be entered." The People v. Compton, 1 Duer, 512, 553 ; Livingston v. Swift, 23 J7ow., 1. 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 pun- ished 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 in- tending to serve the same upon him, wilfully to prevent the service of such order by open force, either made or di- rected. 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 contempt. In the case of Livingston v. Swift, the court seemed to limit the punish- TO PUNISH DISOBEDIENCE OP ORDERS. 227 ment on such exceptional service to cases wherein the pe- cuniary rights of the plaintiff had been actually preju- diced by the disobedience. Section 418 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, &c." 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 v. Hunt, 15 Abb. 410, noie, a party was punished as for contempt for not appearing on an adjourned day, though the adjournment 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 decision 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 exceptional, when measured by the rule of the foregoing decisions, in this ; that there was no proof that knowledge 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 ne- cessitate the adjournment, he is bound to know what or- der 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, &c., and his whole obligation to act at all depends not only on the existence of the order, but also upon its being 228 POWKR OF THE JUDGE. served in a particular manner, the rule is, that the order must be shown him, and a copy delivered to him. The People V. Compton, supra. It is evident, from the nature of supplementary proceed- ings, and the decisions under the creditor's bill, that where ,the referee, under the authority of his appoint- ment, summons the debtor or third party to attend be- fore him for examination, the latter is not compelled to at- tend at the risk of being guilty of contempt, unless he has also been personally served vrith the supplementary order. However, if the examination is referred with such authority after the proceedings 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 Sdw., 620 ; St. John V. Sewall, 3 Id., 248, From the cases and rules cited in ch. 1, § 8, and those mentioned in this section, the following are the rules of procedure in supplementary proceedings as regards their continuity. The judge or referee may regularly 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 adjom-n them also in the absence of the adverse party, and though no one is present to re- present him ; as was done in Reynolds v. McElhone, su- pra; 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 person- ally served upon him, except as stated above. The officer or referee may also thus adjourn the proceedings and exam- ine witnesses in the absence of the advei-se pai'ty. But the latter should have notice of such continuance, or else he might be justified in treating the proceedings as aban- doned, or object to the testimony of the witnesses being TO PUNISH DISOBEDIENCE OF ORDERS. 229 read on a motion against him. If, however, in any case, he puts himself voluntarily heyond the reach of notice by absconding or otherwise, the proceedings may be duly con- tinued nevertheless, and appropriate orders made therein for the application of the debtor's property toward the sat- isfaction of the judgment; for the creditor's rights cannot be defeated by any such acts of the debtor. If the exain- , ination is referred, and the referee fails to attend at the time and place designated, the proceedings do not fall through. The judge before whom they are pending may order the debtor to appear at some future day and before another referee. While it is doubtful whether the referee could in such a case summon the debtor to attend before him on a subsequent daj'-, it is evident that he may do this, if the order of reference authorizes him to require the debtor or third party to attend before him by the issue and service of his summons. Of course, this is upon the presmnption that the judge can make such an order of reference. Yide ante, ch. 2, § 9, p. 103. If the judge fails to attend at the time and place appointed for the return of the order, or on an adjourned day, the proceedings should not be deemed lapsed, provided the creditor promptly procures an order upon the adverse party to appear at some future named day ; or, where a judge sits at chambers every day, as in the first district, he should be required to attend the next day without any or- der ; or at least a motion in the proceedings under such circumstances, should be held to stand over to the next chamber day. If the creditor fails to attend at the time and place designated, the proceedings should not be deemed as lapsed thereby, if the creditor promptly applies for an order upon the adverse party to show cause why he should not be permitted to resume them, and excuses his default. The injunction is an incident of the proceedings, and continues or falls with them, unless otherwise ordered. 230 APPEALS : TO WHAT TRIBUNAL. The giving of notice of a motion is not a jurisdictional prerequisite in any case, except of a motion for a warrant of commitment; because this latter is a quasi-criminal prosecution, and the citizen is not to be deprived of his liberty without being heard. So held in Pitt v. Davison, SY Bari., 98, 107, Cleeke, J. SEOTioN vn. Of Appeals : to what Tribunal. From Keferee. An appeal lies by motion from an order of the referee to the court or judge that appointed him (Dickinson v. Van Tine, 1 Sandf. 8. Ct., 724) ; and also from his find- ing 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. 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, § 349 ; Gould v. Torrance, 19 How., 560 ; Mallory v. Grulick, 15 All., 307, note. According to this rule, if for instance proceedings were instituted before a judge of the Court of Common Pleas for the city and county of l^ew York upon a judgmept 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 judgment, is filed. Code, § 350. In the Supreme Court it must be ORDERS. 231 entered with the clerk of the county where the judgment roll is filed. Marshall v. Francisco, 10 Sow., 147. In the New York Common Pleas, in proceedings upon a jus- tice's judgment, 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 general term in the same district dismissed an appeal from such an or- der made in supplementary proceedings upon that ground. See The President, &c.. Bank of Genesee v, Spencer, 15 How., 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 fre- quently 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 judg- ment belongs. Code, § 324 ; Conway v. Hitchins, 9 Barb., 378 ; Blake v. Locy, 6 How., 108 ; Lindsay v. Sherman, 6 Id., 308 ; S. C, 1 Code R. [N. S.], 25. If the judgment is in the Supremo Court, the applica- tion is made to that special term to which any other mo- tion in the action or on the judgment would be made. Vide Gould v. Torrance, supra. 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 other- wise appealable. 232 APPEALS : TO WHAT TRIBUNAL. It was held in Lancaster v. 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 Wliat Cases an Appeal Ides. In Joyce v. Holbrook, Y Ahl., 338, it was decided that an order for the application of the debtor's property un- der Code, § 297, and an order to punish him 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 Ilolstein v. Eice, 15 Abb., 307 ; S. C, 24 How., 135 ; and Livingston V. Swift, 23 How., 1 (Supreme Court, general term), it is held that when the creditor has an interest in the en- forcement of the penalties for contempt against an of- fending party, as where his pecuniary rights are affected by the misconduct of the latter {vide ch. 4, § 3, ante), an appeal lies from an order denying a motion to punish for contempt ; because such order defeats the creditor of a substantial right. So also an appeal lies from an order dismissing supplementary proceedings. Livingston v. Swift ; O'Neill v. Martin, 1 E. B. Smith, 404. An appeal also lies from an order denying a motion made for the appointment of a receiver, where property has been discovered. Bailey v. Lane, 15 Abh., 373, note ; Heroy v. Gibson, 10 Bosw., 591. An appeal also lies from an order refusing an attach- ment against a witness for disobeying a subpoena duces tecum requiring him to produce documentary evidence material and necessary to the party subpoenaing him, be cause a party has the right to have the remedies provided by law to secure the attendance of material and neces- Bary witnesses, or the production of material and neces- WHO MAY APPEAL ORDER OF APPELLATE COURT. 233 Bary evidence, enforced in Ms behalf. La Farge v. The La Farge Fire Insurance Co., 14 Mow., 26. And gene- rally an appeal lies from any order that comes within the meaning of Code, § 349. 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, 11 Bow., 203. ■WTio may Appeal ? An assignee of a judgment who becomes such after the order appealed from was made may appeal in liis own name. Livingston v. Swift, supra. But the attor- ney in the action cannot appeal. Section 325 of the Code applies only to parties to the record and their represent- atives, and not to any person who rnay feel himself ag- grieved. Martin «, Kanouse, 2 Abb., 390. It seems, the representative of a deceased party cannot appeal un- til 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 proceedings were not brought in the proper county. Foster -y. 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 tbe 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 ap- pellate court will not try the question of contempt, nor impose any penalty. Livingston y. Swift, supra. In O'Neil V. Martin, supra, which was an appeal from 234 HOW FAR THE COURT CAN INTERFERE. an order dismissing supplementary proceedings, the ap- pellate 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 proceedings as the plaintiff should move for therein. SECTION VIII. Of ' Miscellaneous Subjects To What Eztent the Court can Intervene. The question to what extent the court to • which the judgment belongs may exercise jurisdiction in supple- mentary proceedings, has already been discussed ; to wit, the Supreme Court (1st dist.) holds that it can entertain the proceedings for the punishment as a contempt a dis- obedience of the order of a justice made in these pro- ceedings {vide ante, ch. 4, § 3) ; while in the 7th district it was held {vide preceding section) that the court at spe- cial term could set aside an order «improperly made by a judge in a litigated motion, and also vacate or indefi- nitely suspend the proceedings before him. 15 How., p. 14. But the Superior Court of the City of New York holds that the court cannot interfere with any of these proceedings when had before a justice, except by appeal. Bitting V. Vandenburgh, 17 How., 80 ; Cowdrey v. Car- penter, 17 Abb., 107. Every court has the power to set aside or modify an ex parte order made by a judge in these proceedings {Code, § 324), and the appellate court, to entertain ap- peals from orders therein. Code, § 349. Attorneys and Counsel in Supplementary Proceedings, The decisions and practice in these proceedings recog- nize the right of the judgment debtor or third party to have counsel, and the authority which such right vests ATTORNEYS AND COUNSEL. 235 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 throughout the pro- ceedings. Any notice or paper may therefore 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 pa- pers, and notices, consents, &c., will bind the party as fully as in any other proceedings in an action. This practice has also convenience in its favor. A consent adjourning the proceedings 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 case comes within the rule of Parker v. Hunt, supra {ante, p. 227), when such service might be dis- pensed with. Where the proceedings have fallen through by the creditor's default, or for any other reason, the at- torney's consent without the party's acquiescence, will not restore them. For if they have lapsed, the attor- ney's retainer in them has ceased, and he can no further bind iiis client. If, however, they are merely in abey- ance, and may be resumed upon proper application there- for ( Vide ante, p. 223), then it would seem the attorney may give a binding consent to that end. A stipulation signed by the attorney for the attendance of the party at the office of one of the counsel, is not ob- ligatory upon him ; because he cannot be compelled to appear at any other place than before the j iidge, or a re- feree 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 on page 226, ante. 236 DISCONTINUANCE — FURTHER PROCEEDINGS. It was held at general term, Suprerne Court (37 Barh.^ 98), that a proceeding to punish as for contempt was a quasi criminal prosecution ; that it was a new proceed- ing, and the order initiating it could not be serred on the attorney, but must be personally served. Discontinuaiice. Supplementary proceedings may be discontinued by • abandonment as well as by order. Squire v. Young, 1 Bosw., 690. Second or Further Proceedings May be instituted upon an ex parte application, bat " tlie affidavit on which the order is asked should state the previous proceedings, and the fact that the defendant liad subsequently acquired property, or circumstances 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. Deni- arest, 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, 11 Paige, 180. But the proceedings are not parallel. In the latter the injunction continued between the examinations ; but here it falls with the proceedings ; and if the creditor is com- pelled to notify the debtor of a motion 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 injunction in the order to show cause. stay of Supplementary Proceedings. "Where proceedings were taken upon a judgment ren- STAT OF SUPPLEMENTARY PROCEEDINGS. 237 dered in tlie Marine Court, Gty of New York, and tlie debtor afterwards appealed and gave the required under- taking to stay all proceedings in that Court, the judge of the Common Pleas, before whom the supplementary pro- ceedings were instituted, stayed them until the appeal could be determined, although the undertaking did not per se restrain the latter court, or a judge thereof. Eit- terband v. Maryatt, 12 If. T. Leg. 01>s., 158. But an appeal from tlie judgment does not of itselfstay supplementary proceedings. Security must be given. Conway v. Hitchins, 9 Barb., 378. And the creditor does not waive security by noticing the appeal for argument. Arnoux v. Homans (Common Pleas, General Term), in N. Y. Tramscrvpt, July 25, 1865. Nor does an appeal from an order refusing to dis- miss the proceedings stay them, or justify the debtor's refusal to be examined. Sluyter v. Smith, Superior Court, February, 1865, VoorMes' Code, p. 562 (8 Ed.). But when the requisite security is given, on an appeal from the judgment, supplementary proceedings are sus- pended, but not discontinued, and the judge is not justi- fied in dismissing them, for the creditor is entitled to hia lien obtained thereby. Cowdrey v. Carpenter, 17 Abb., 107. In The President, &c.. Bank of Genesee v. Spencer, 15 How., 14, it was held that the court at special term could stay these proceedings during an appeal to the Court of Appeals from an order in the same action, but that a judge at chambers not liaving charge of the pro- ceedings could not ; nor could a county judge, before whom the proceedings on a judgment of the Supreme Court were instituted, suspend them indefinitely. Id., 412. But in Cowdrey v. Carpenter it was held that a justice having charge of the proceedings could stay 238 PRESUMPTION OF PAYMENT. them indefinitely. Here the judgment was in the court of which the justice was a member. See ante, ch. 4, § 6, A stay of proceedings on the execution does not pre- vent proceedings under Code, § 294. Lowber v. The Mayor, &c., of K T., 5 AU., 268. 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 compelled to elect between the execution and the proceedings. Fel- lerman's Case, 2 Abh., 155 ; S. C, svh nom. Liliendahl v. Fellerman, 11 Sow., 528 ; Farqueharson v. Kimball, 18 Id., 33 ; S. C, 9 Ahk, 385, note. Also Hanson v. Trip- ler, 1 Code E. {IST. S.), 154 ; S. C, 3 Sandf. S. Ct., 733 ; Owen 'U. Dupignac, ^ Ahh., 180; Conway v. Hitchins, supra. To the contrary seems to be McArthur v. Lans- burgh, 1 Code B. (iT. 8), 211. Presumption of Payment Of a judgment after the lapse of twenty years, as de- clared in 2 a. S., p. 301, § 47, does not abate supplemen- tary proceedings commenced before the expiration of that period. So held by Cleeke, J., at chambers. Driggs V. Williams, 15 Abb., 477. Concurient 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 assignment as fraudulent. Taylor v. Persse, 15 How., 417. PROCEEDINGS UNDER § 236. 239 SECTION IX. Of Proceedings in aid of an Attachment or Execution under § 236. SECTION 336 OP THE CODE OF PEOCEDUKE. " Whenever the sheriff shall, with a warrant of attach- ment, or execution against the defendant, apply to such officer, debtor or individual, for the purpose of attaching or levying upon such property, such officer, debtor, or individual shall furnish him with a certificate, under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property held by such as- sociation, corporation or individual, for the benefit of, or debt owing to, the defendant. If such officer, debtor or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath concerning the same; and obedience to such orders may be enforced by attachment." This section was enacted iji 1849, and has remained unaltered. 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 ot Procedure. In what Cases Applicable. This proceeding, as an aid to the execution, is only available, where an attachment in provisional remedies 240 THE ORDER. haa been issued. In such a case the sheriff has the same power with the execution that he had with the attach- ment, 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. McBride v. The Farmer's Eranch Bank, 7 Ahb., 347. Hence, in cases of this kind, the rules of procedure under this section apply equally to- attachments and executions. Where and how the Order is applied for. The application for the order requiring the attendance and examination of the person named, may be made to the court in which the judgment is rendered, or to a jus- tice 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, § 401, subd. 4) ; or at least, the order must be returnable in such district. 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 in- debtedness to him. In Hoagland v. Stodolla, 1 Code R. [N. 8.\ 210, the sheriff served an attachment on E.., alleged to be a debtor of the defendant, and demanded a certificate. He certi- fied having in his hands seventy-five dollars. The plain- WHAT MUST BE SHOWN TO OBTAIN IT. 241 tiff obtained an order for his examination. The order was held to be invalid ; it could not be allowed 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 vacat- ing an order for their examination. On appeal, the order of the special term was affirmed ; but the majority of the court held that the plaintiff might impeach the truth of the certificate. He might establish to the satisfaction of the judge, by the former admissions 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 examination ; he must be a debtor of the defendant, or have property of his in his control, and he must refuse a certificate." So in Hopkins v. Snow, 4 Abb.., 368, Mitchell, J., held that a certificate furnished under this section stating 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 or- der 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 designating the amount and 16 242 THE ORDEE. 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 invalidate that proof, and is no evi- dence of the fact." So also in Beebee v. Kogers, Special Term, N. T. Su- perior Court {JEoffmcm on Pro. Rem., p. 449), the party gave a certificate that he had no property of the debtor ; but upon an afl&davit that he had a few days previously admitted that he owed the defendant, an order was granted for his examination. In Scbieb v. Baldwin, 13 AU., 469 ; S. C, 22 How., 278, it was held that a party was not bound to give a cer- tificate 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 circum- B,tances. It was further held in this case that no attach- ment could be levied on property after judgment in the action. From these decisions, the foUo'^ing rules for the purpose of obtaining the order are deducible. It must be averred that the person moved against has property of the defend- ant, or is indebted to him. The property should be de- scribed, and the amount of the indebtedness 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 there of, demanded a certificate 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 furnisli one that he held no property of, or was not indebted to, the defend- ant, the plaintiff must then establish by the former ad mission of the party, or perhaps otherwise, to the satis- faction of the court or judge, that such certificate is un- PROCEEDINGS UPON RETURN OF. 243 true. If a certificate of property is furnished, it is con- clusive upon the plaintiff in this proceeding, although he may think that it does not contain the whole amount of the defendant's effects in the party's hands. However, it is difficult to see why the plaintiff may not impeach this 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 con- cerning his refusal to furnish a certificate. When the order is made by a judge, it must require the party to at- tend before him. It would be irregular to make it return- able before any other officer, the same as in proceedings under §§ 292, 294. Yide p. It may be served any- where in the State, no matter from what court or judge it emanates. It is served in the same manner as an order under § 292. Vide ante, pp. 36, 68. Proceeding upon the Return of the Order. The examination is on oath, and, according to the de- cisions, very limited. MrrcHELL, 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 defend- ant, 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 pro- ceeding in this respect to those under § 294. It will be remembered that the case of Van Wyck v. Eradly (3 Code a., 157), decided by the same justice at special term, holds very similar views concerning the examina- tion under § 294. Vide ante, p. 95. However, the ex- 244 WITNESSES — DETERMINATION — ^DISOBEDIENCE. amination in proceedings under § 294 is not so limited (as I have endeavored to show, wnte, p. 95-6), as the case of Van Wyck v. Bradly holds ; but that under this sec- tion (236) seems not to admit of any greater extent than the decision of Hopkins v. Snow, supra, accords to it. Witnesses. No provision is made for the attendance and examina- tion of witnesses in this proceeding. 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 fur- nish to the sherifi' 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 authority given him hereia to punish such offence. The procedure to ascertain and punish a misdemeanor herein as for con- tempt, is that described under " Enforcevnents of Orders, &c.," ch. 4, §§ 3 and 4, ante. Orders to bring the party into contempt must be served as in proceedings under §§ 292 and 294. Ante, pp. 39, 68 The Proceeding against Property of Foreign Corporations.; The proceeding authorised by section 236 of the Code was no doubt suggested by that against foreign corpora- PROCEEDINGS AGAINST FOREIGN CORPORATIONS. 245 tions. The law of 1842, ch, 197, p. 227 (3 B. S., 5 ed., p. 757, " Foreign Corporations,^^) provides that the rights and shares which a foreign corporation may have or own in the stock of any bank, banking association, &c., 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, &c., or the individual holding the defendant's property, shall furnish the sheriff with a certificate similar to that de- scribed in Code, § 236. The law of 1848, ch. 53, p. 69 (3 a. H., 5 ed., p. 760, " Foreign Corporations "), amend- atory 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 before an officer of the court out of which the attachment or ex- ecution issued ; and that the provisions of sections 12, 13, 14, 15, and 16, of article 8, tit. 1, ch. 5, part 2, of the Ke vised Statutes, in relation to the mode of examination there provided, shall apply to and govern the exami- nation in these proceedings, so far as the same may be applicable. The examination authorised by the last-named statute, 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 satisfac- torily all lawful questions put to him, or shall refuse to sign his examination. 246 FOR PROCEEDINGS CHAPTER V. OF F0EM8. Section 1. For proceedings before examination. " 2. For proceedings on tlie examination. " 3. For proceedings to apply property toward the satisfac- tion of tlie judgment [§ 297J. " 4. For proceedings in receiversliip. " 5. For proceedings to puniali disobedience of process and orders. SECTION I. For Proceedings, hefore Examination. 1, Affidavit by the Plaintiff to obtain Order from a Justice of the Supreme Court upon a Judgment in that Court after Return of Execution [§ 292]. Vide ante, p. 29. Bujgreme Court. A. B. V. 0. D. State of New York, City and County of New York, ss. : A. B., being duly sworn, says tliat lie is the above- named plaintiff; tbat 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 city and county, on the l^th day oi June,\ii the year one thousand eight hundred and sixty-four, for the sum of one thousand dollars damages and costs : that the judgment roll was duly filed on said day in the ofiice of the clerk of said city and county ; that an execution upon said judgment against the property of the defendant was thereailer on BEFORE EXAMINATION. 247 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. Sworn to before me this ) r-n„„„„^„.fi„ „;„„„4„.„,^ day of , 186 . [ \P^Ponenfs signature.] [Signature of Officer.] Z> A General Form of Affidavit to obtain an Order of Examination of Debtor on a Judgment in the Supreme Court. Vide ante, p. 29, et seq. \_Tifle 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 instrument in writing on the day of , 18 , or that he is acquainted with all the facts hereinafter stated, having been at the time the managing clerk of , the attorney of ihQ plaintiff in the above-entitled action, and that he makes this affidavit, at the request of the plaintiff; or whatever may ie the facts].{'^) II. That judgment was duly rendered (*) in this ac- tion in favor of the plaintiff, and against the defendant [or defendants, and each of them, or defendants to be en. forced against the joint property of all the defendants, and the individual property of the defendant, C. J)., or (a) If a personal representative of a deceased creditor seeks to institute tlie proceedings (see amendment to § 283), he must allege the decease of the creditor and his appointment as executor or administrator. 248 FORMS FOR PROCEEDINGS 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 office of the clerk of said county on the last-named day, [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 J. in. 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 alcove defendants, and the individual property of the said de- fendant, C. D., or the said plaintiff, or, &c.J, was thereaf- ter on the day of 18 , duly is- sued to the sheriff of the county of rV. That the defendant, O. D., then resided, [or had a place of •business'^ to wit, an office 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 dol- lars], and that said judgment remains wholly unpaid [ex- cept the sum of dollars paid thereon.] [Deponent's Signature^ [Jurat.] 3. Affidavit for an order upon a judgment of any Court of Record. Vide ante, p. 29, et seq., and as to Court Title, p. 33. [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 BEFORE EXAMINATION. 249 judgment roll was duly filed in the office of the clerk of the said court, and a transcript of the docket of said judg- ment duly filed in the office of the clerk of the county of on the day of , 18 . in. That an execution, &c. \_Proceed to the end, as in Form 2.] 4i AJBdavit for an Order upon a Judgment of a Justice's Court or any other Court not of Record. Vide ante, p. 29, et seq., as to Court Title, vide ante, p. 33. {^TitU of tJie 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 to^ 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 plavntiff, 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 office of the clerk of the county of on the day of , 18 , \amdifthe order is ajopliedfor 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 office of the clerk of the county on the day of , 18 .] in. [Then allege issue of execution, (&e., as in form 2 to the end.} 250 FORMS FOR PROCEEDINGS 5i AfSdavit for Order when the name of an Assignee is substituted for that of the Creditor. Vide ante, p. 29, et seq. Title of the Court. T. Z. V. C. D. [ Yenue.] [^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 ^. 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 writ- ing to the said Y, Z., who is now the owner thereof. [Deponent^s signature."] [Jurat.'} % Oi Order for the Examination of the. Debtor on a Judgment of a Court of Record after return of Execution. Vide ante, p. 33. 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 ua.xa%d. defendant [Iriefly recite tike facts as they are\ in this court on the day of , 18 , for dollars damages and costs [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 BEFORE EXAMINATION. 251 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 defen- dant 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 JR. S., Esq., of , counsellor at law, whom I hereby appoint referee to take and certify the examination 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 Ms property [or, concerning the joint property of all the above - named defendants, and the separate property of the said C. D.} And the said defendant, C. D., is hereby forbidden to transfer, or make any other disposition of any property belonging to him [or, of the joint property of the above defendants, or the separate property belonging to hi7n\, 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.'] 7i Order on a Judgment of a Justice's or any other Inferior Court, Vide ante, p. 33. N. Y. Court of Common Pleas. A. B. V. C. P. It appearing to my satisfaction by the affidavit of that judgment was duly rendered and given in 252 FORMS FOR PROCEEDINGS. (*) this action against the above-named defendant \briejki recite the facts as they are'] in the Marine Court of the City of ifew YorTc, on the day of j 18 , for dollars damages and dollars costs ; that a transcript thereof was ^duly filed in the clerk's office of the city and county of New York ; that an exe- cution upon said judgment, c&c, [continue to the end as inform 6]. 0, A fuller Order appointiag Referee, with power to issue Suni> mens for the Attendance of the Debtor or Third Party. Vide ante, p. 103. [Proceed as inform 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 hefore the judge^ say:] to appear in person before H. 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, c&c, [continue to the end of in- junction clause as in No. 6, then add ;] and I hereby appoint the said H. S., referee, to take and certify to me the examination herein, or, I hereby appoint the said H. S., referee, to take the examination herein, and to find and report to me the facts, whether the said debtor has any property applicable to the payment of the judg- ment herein, its nature and situation, and whether it may be directly applied upon the judgment or whether a receiver should be appointed. [A7id whatever else the referee is to find and report.] [Date and signature as in No. 6.] BEFORE EXAMINATION. 253 9( Order when the Frooeedings are Instituted in the Name of the Assignee. Vide ante, p. 34, \_Proceed as inform 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 tlie above named defendant [briefly recite the facts'] on the day of, <&c. [continue to the end as in form 6 or 7.] 10, Affidavit for Order before Retvim of Exeoution (under subd, 2, g 292). Vide ante, p. 61. [^Proceed as informs 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 hundred dollars, which is not exempt by law from execution, 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 hy his affidavit hereto annexed] that on the day of > 18 , at , in the county of , this deponent did [or, by the direction of the plaintiff did] request the said defendant to apply the said property toward the satisfaction of the said judgment, which he then and there refused to do. [Then allege tlie non-payment of the judgment, and continue to the end as inform 2.] 264 FORMS FOR PROCEEDINGS 11, An Order for the Ezamination of a Judgment Debtor, made by a Judge before the Return of Execution [Subd. 2, § 292]. Vide ante, p. 68. [Proceed as inform 6, 7 or 9, according to the facts, to and including the recital of the isstie of execution, a/nd 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 informs 6-9] to be ex- amined, and to answer on oath concerning such property. And the said defendant, C. D., is hereby forbidden to transfer or make any other disposition of the said prop- erty, or in any manner to interfere therewith until fur- ther order in the premises. [If a referee is to ie ap- pointed add reference clause as in Ifo. 6 or 8.] [Date.'] [Signature ofjudge^ [Signature of attorney.] la, A Court Order for the examination of a Judgment Debtor before return of execution. Vide ante, p. 68. At a Special Term of the Supreme Court, held in and for the City and County of New YorJc, 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 proceed as to recitals as inform 6, Y or 9, according to the facts, to and including the recital of the issue of execution, and then con- tinue ,'] (a) that he has property which he unjustly refuses (a) As this proceeding may be taken hefore 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. BEFORE EXAMINATION. 255 to apply toward the payment of the said judgment, 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 coini; or referee duly appointed shall name \or before i?. S., Esq., of the , counsellor at law, who is hereby appointed] \referenc6 clause the same as in form 6 oj* 8], to be examined, and to answer on oath concerning said property. [The in- junction clause the same as inform 11.] loi Affidavit to obtain the Warrant of Arrest against a debtor 'Who is about leaving the State or Concealing himself (subd. 4, § 292). Vide ante, p. 76. Proceed as inform 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 tne 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 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 ] ; that on the day of , 18 , at , in the 256 F0EM3 FOE PROCEEDINGS , county of , this deponent did (by the direction of tlie plaintiflF), requegt tlie said de- fendant to apply the said property toward the payment of said judgment, but the said G. D. then and there re- fused to apply any portion of his said property to pay said judgment. {JDeponenGs signature.] [Jurat.'] 14. Warrant of Arrest (subd, 4, § 292). Vide ante, p. 78. [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 aboye-named defendant [vary the recitals as to the judgment, execution, dho., according to the case made hy 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 G. D. leaving the State [oj* concealing himself, or 'both]; and whereas, it in '" ■ launer appears to the satisfaction of said judge thj' i G. D. has property which he un- justly refuses 1 ly to said judgment; Now, therefore we do warrant command you that you arrest the said C. D., anc '. . 5 him forthwith [or on the day of ' I j, before the undersigned, J. J., a justice of the court, at [state where ,• seeform 6], to be exami; . 1 oath, and proceeded with pursuant to subd. 4, of n 292 of the Code of Procedure. And have you ;here this writ. Given under my BEFORE EXAMINATION. 257 hand at , in the county of , the day of 18 . _ [Signature of judge."] [Signature of attorney.'] 15i Affidavit for an Order to examine a Third Party. (§ 294.) Vide ante, p. 93. [Title of the Cause.] [ Venue.] A. B., being duly sworn, says that he is the above named plaintiif [proceed as informs 1 — 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] O. 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, &c. &c.'of a store in , formerly occu- pied by said C. D., and some money — the proceeds of sales made by said O. H. of a part of such property [or that the said G. H. is indebted to the said G. D. in an amount exceeding ten dollars, to wit, the sum of dollars, being the price of sodie merchandise sold to said a. R. by said 0. J).] (^) That supplementary proceedings pursuant to § 292 of the Code of Procedure have been instituted upon the said judgment, and are now pending against said G. D., before the Hon. , Justice of the Supreme Court at the county of , [or that the said G. J), is not and has not been at any time within the last months, a resident of the State of E"ew Tork, but has resided dur- ing all that time, and still resides in , but in (a) 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. 17 258 FOEMS FOR PROCEEDINGS what part thereof deponent has not been able to ascer- tain, though he has made due inquiry ; or that the said O. D. has absconded, or concealed himself out of reach of his creditors, and deponent has not been able to ascertain where he is, though he has made due inquiry, or said C. D. is a corporation.] [Dejponent's signature.] {Jurat.'] 16i Order for the examination of a Third Party (Code, § 294). Vide ante, p. 95. [Proceed as inform 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. H., [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. U. is, [or the said G. H. and all its officers and agents are] hereby for- bidden to transfer, or make any other disposition of such property of the said judgment debtor C. D., [or of said in- debtedness] or in any manner to interfere therewith until further order in the premises. [If the examination is to he referred, add a reference clause as in form 6 — 8. If notice is to he 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 0. P., his attorney 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.] BEFORE EXAMINATION. 259 17. Referee's Summons requiring the Attendance of Judg- ment Debtor or Third Party before him. Vide ante, p. 103. \_Title of the Cause.] {^Address to defendant or third party.] By virtue of an order in this cause made by the Honorable J. J., Justice of the Supreme Court, dated the day of , 18 , 1, , the referee appointed therein to examine you and witnesses as to your property [or, as to any property of the above-named defendant, in your possession, or, as to any debt due from you to the above-named defendant], do hereby summon and re- quire you to attend in person before me at my office, No. street, in the of , on the day of 5 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 hereaf 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. [Date.] \_B. ^.] Referee. loi AfSdavit of Service of Order, or Summons for the Examina- tion of the Debtor or Third Party. \Title of the Cause.] A.. JB., 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 affidavit 260 FORMS FOR PROCEEDINGS 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 tlie annexed original. And de- ponent further says, that he knew the person so served as aforesaid to be the person mentioned and described in said order [or summons, as the defendant or one of the defendants therein] and to whom the same is directed. [Jurat.] [De^ponenfa signature,] SECTION II. For Proceedings on the Examination, 19, Order of Keferenoe [g 300.] [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 K. 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 Cr, K.], is hereby ordered and required to attend in per- son before the said E. S., at his office No. street, in the city of , on the day of , 18 , at o'clock in the noon, [w, 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 con- cerning any property of the defendant, G, J).,i» his pos- session, or any debt due the defendant, O. D.] [Date,] [Signature of judge,] ON THE EXAMINATION. 261 §0i Subpena for the Attendance of 'Witnesses. Ante, p. 99. The People of the State of New York to [insert names of witnesses'], Greeting : We command you, that all business and excuses being laid aside, you, and each of you, appear and attend be- fore (*) the Hon. J. J., & justice of the Supreme Court, at his chambers \pr at the chambers of the Court, at the Gty Hall, or, before E. S., referee appointed by the Hon. J. J., 3. justice of the Supreme Court, at his oflBce, No. street], in the city of , on the day of ,18 , at o'clock noon, to testify and give evidence in certain proceedings supplementary to ex- ecution, now pending before the said justice, and the ex- amination therein to be then taken between A. B., plaintiff, and C. D., defendant, on the part of the plain- tiff; 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 addition 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 clerh.'] [Signature of attorney.'] Zii Subpena to Attend before an Officer vrho may Continue Pro- ceedings as in 1st District. [Same as in form 20 to tJie (*), then continue ;] one of the justices of the Supreme Court sitting at the cham- bers 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 examina- tion therein to be then taken between [continue to the end as inform 20]. 262 FORMS FOR PROCEEDINGS 22, Subpena Duces Tecum, (a) [Same throughout as inform 20, except after the (f) in- sert this clause ;] and that you bring with you, and then and there produce [here designate the documents fully — e. g., thus .'] the books of the &m of £. <& D., containing the entries of the moneys paid by said firm to the said C. D. from the day of ,18 , to the day of , 18 , now in your possession or imder your control. 23i Subpena Ticket. Ey virtue of a writ of subpena to you directed and here- with shown to you, you are commanded, that all business [continue as in the subpena, form 20, to (f).] [Date.'\ [Signature of attorney.} [Address to witness.] 24i Order requiring the Production of Books, &o. Ante, p. 100. [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 ianlc hooTc of the defendant C. D., contaia- ing his account with the bank of , for the year , is necessary and material upon the examin- ation 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 examiaation before 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.] (a A copy of this subpena instead of a ticket is served on the -witness. ON THE EXAMINATION. 263 25i Proof of Service of Subpena by AfBdavit. \_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 subpena personally on M. N., the person [or respectively the persons] named therein as witnesses, (*) by then and there showing to him [or to each of them] the said subpena, and deliver- ing to him [or to each of them] a subpena ticket contain- ing the substance of the said subpena [or delivering to him a true copy thereof, if it is a supena duces tecum], and paying \or tendering] to him at the same time and place, dollars for his fees for traveling to and re- turning from the place where he is required to attend, and the fees allowed for one day's attendance. [Jurat.] [JDej)o^ienfs signature.] 26. Another Form ; by OSlcial Certificate. {Title of the Cause.] [ Yenue.] I certify that on the day of , 18 , at , I subpenaed the within named M. N. [continue as in previous form from the (*). [Bate.] [Officer' s signature!] 27i ■ AfBdavit of Service of Order to Produce Books, 8co. [Title of the Cause.] A. B., being duly sworn, says, that he did on the day of > 18 , at No. street, in the citg of , personally serve upon C. D., the an- 264 FORMS FOR PROCEEDINGS 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 bo the person mentioned and de- scribed in said order as the defendant therein, and to whom the same is directed. [^Deponent^a signature.'] [Jurat.'] aoi Ezaminatioa of a Judgment Debtor, a TMrd Party, or Wit- ness, before a Judge. Vide ante, p. 47. [Title of the Cause.} The examination of C. D., a judgment debtor [or, of G. H., a third party, examined under § 294, or, S. T., a witness for the plaintiff], in supplementary proceedings in this action, taken before the Hon. J. J., a justice of the Supreme Court, at tlie 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 : [Kere follows the examination.'] [Signature of party or witness.] Taken, subscribed, and sworn ) to before me this >- day of , 18 . ) [Signature of judge.] ON THE EXAMINATIOK. 265 Z Ji The same, by a Referee. Ante, p. 47. [Title of the Cause.'] The examination of CD., a judgment debtor [or, O. H., a third, party examined under § 294, or, S. T., a witness prodnced on the part of the creditor] in supplemen- tary proceedings "in this action, taken by a. S., Esq., referee appointed to take the same, at his office, No. street, in the city of , on the day of , 18 . Said O. J)., being duly sworn by the said referee, says as follows : [Herefollows the examination, as ;] 1st Ques. Where do you reside, and what is your occu- pation? {Vide ante, 105). Ans. [Signature of party or witness.} Taken, read over, subscribed and ) sworn to before me this \ day of , 18 . ) [Signature of referee.] 30. Adjournments by the Of&cer endorsed on the Order. Vide ante, p. 41. • [Defendant] 0. 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 attend.] [Date?^ [Signature of judge or referee^ 26G FORMS FOR PROCEEDINGS 01 • 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 [Date^ [Signature of pa/fties.'] Adjourned accordingly. [Officer's siffnattire.'] olt Referee's Report of the Evidence. Ante, p. 106. [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 report : that I have been attended by the defendant, C. D. [or, O. H., a third party] and the counsel for the respective parties ; that I have taken the examin- ation of said C. D., [or, G. H^, 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. [Date.] ' [Signature of referee.] 33. Shorter Form, ■v7hioh 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 O. 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.] ON THE EXAMINATION. 267 o4i Referee's Report of Facts, Ante, p. 103. [Title of the Caused [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, 0. 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, O. S.'] 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 !N'o. street, in the city of , and are not exempt from exe- cution ; and no person claims any adverse interest in either [o?*, 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 judgrdent by an order requiring' the same to be delivered to the judgment creditor herein, at the price above stated [upon the creditor's paying to the said 0. P. the sum of dollars claimed by him as aforesaid.] All of which is respectfully submitted. {Date.} [Signature of referee.'] 268 FORMS FOR PROCEEDINGS 35i Referee's Certificate of a Party's or "Witness' Non- attenaance.(a) Ante, p. 106. [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 subpena] 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, G. D. [or, E. F., the wit- ness named in said subpena('')] 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, subpena]. [Date.] [Signature of referee.} 36. Another Form of Referee's Certificate of disobedience to Suranions.(<:) [Title of the Cause.] I, E. 8,, 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 , I duly issued the summons hereto annexed. That at the time designated the.cein for the appearance of the defendant, I attended at my office, but that the said de- fendant did not attend, either in person or by his attor- ney or counsel. [Date.] [Signature of referee.] (a) A referee's certificate alone is not sufficient proof of a fact of misconduct to base proceedings as for contempt upon. Tlie statute requires proof by affidavit. 3 B. S., p. 535, § 3 ; 1 Barb. Ch. Pr., 483. (b) A disobedience of subpena is certified to tlie Court. («) This was tlie master's form of a certificate in such a case. ON TOE EXAMINATION. 269 01 1 Referee's Certificate of a Party's or Witness' Refusal to answer a Question or being eworn, &o. [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 J at o'clock noon, to which time tlie proceeding thereupon had been duly adjourned], attended by the counsel for the plaintiff, prepared to work said order, and the said defendant, C. D. \or G. H,, a third party, or E. F., a witness subpenaed on the part of the plaintiff] also attended before me, but refused to be sworn or to be examined upon said order, though re- quested thereto by me [or, refused to answer the fol- lowing question, which I allowed and directed him to answer on his examination : {here state the qyiestion in full f) or, refused to answer the questions numbered y^wr and ^ve in the examination, hereto annexed which questions I allowed and directed him to answer]. [Z>afe.J [Signature of referee.] 38, Order requiring Debtor under Arrest to give Undertaking, Ante, p. 81. [Title of the Cause.] The defendant, C. J)., having been arrested upon a warrant issued according to section 292 of the Code of 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 (a) 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 sections and 10 of 270 FORMS FOE PROCEEDINGS judgment in this action ; I hereby order that said G. 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 com- mitted to prison by warrant as for a contempt. [Signature ofjudge.\ 39i Undertaking by Debtor ■»7hen ArreBted.(a) Ante, p. 81. yTitle 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 section 292 of the Code of Procedure, and brought before said justice [or, before the Hon. , a justice of the said Court, con- tinuing the proceedings] ; and whereas, said justice, after an examination of said O. D., on oath, has ordered him to enter into an undertaking, pursuant to the aforesaid section, or in default thereof, Jhat he be committed to prison as for contempt : ]N"ow, therefore, we, the said O. D., of No. street, in the city of , and E. F., of No. street, and O. H., of No. street, in the same city, as sureties, do hereby undertake pursuant the Non-imprisonment Act, and chapter 377 of the laws of 1640, 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. Whilst 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 ofBcer. (a) On giving this undertaking the debtor is discharged from the custody of the sheriff. ON THE EXAMINATION. 271 to said section, that said C. D. will attend from time to time before the said justice [or, the justice duly continuing the proceedings] as he shall direct during the pendency of the proceedings supplementary to execution instituted against him upon the judgment in this action, and that he will not, in the meantime, dispose of any portion of his property not exempt from execution. {_Dat6.'\ [Signatures.'] 40, A£Sdavit 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 dollar3,(^) over and above all debts and liabilities, and exclusive of property exempt from execution. \JuTat?^ [Signature of sureties.] 41, Acknowledgment. [ Venue.] I certify, that on this day of j 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- ally acknowledged that they executed the same, as their own free act, for the uses and purposes therein men- tioned. [Signature.] (a) The sum justified in sliould be double the value of the property. See note to form 38. 272 FORMS FOE FEOCEEDINGS 42t Another Form ;— Proof by Witness. [ Venue.] On this day of 18 , before me came «/". S., of (said citj) 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 Q. 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 J. S., thereupon subscribed bis name as a witness thereto, [Signature.] 43i Indorsement of Approval. I approve the within undertaking, and the sufficiency of the sureties therein named, [Date.] [Signature of officer.'] 44 1 Warrant of Commitment. [Tiile of the Cause.] The People of the State of New York to the Sheriff of the county of , greeting : TFAer^as, judgment was recovered in the above-entitled action in favor of the plaintiff, A. J5., and against the defendant, C. D. [recite the facts as they are] and execu- tion was thereupon duly issued to tlie sheriff of the proper county [and returned unsatisfied] ; and, whereas, the defendant, G. D., was thereafter arrested accordmg to section 292 of the Code of Procedure, and brought before the undersigned [a justice of the Supreme Court] TO APPLY PROPERXT. 27S upon the annexed warrant, and examined on oath, and, it then appearing that there was danger of his leaving the State, and that he had property which he unjnstly refused to apply to the judgment in this action, the said defendant was ordered to enter into the undertaking prescribed by the section aforesaid, or in default that lie be committed to prison as for a contempt ; and whereas, he has failed and neglected to enter into such undertak- ing, and such misconduct 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 under- taking, or until the further order herein. Given under my hand, this day of , 18 . [_Signature of judge.] SECTION m. For Proceedings to apply Property toward the Satisfaction of the Judgment (§ 297). 45. Affidavit of Costs. [Title of the Cause.] [ Venue.] M. If., 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 thei'ein ; or, to take the examination, and 274 FORMS FOR PROCEEDINGS report the facts ; and that said referee has made and de- livered; or filed, his report] ; that there have been [five] different meetings herein when evidence was taken, and [three] different meetings when adjournments were ob- tained by the said C. Z>./ that deponent has actually laid out and expended in necessary disbursements in said proceedings for witnesses' and referee's fees, affidavits, exemplification of records, &c., the sum of dollars. \_De2)onent's signature.] 45 1 Notice of Motion for Order that the Debtor pay the Judgment, or apply Money or Property upon the Judgment. Ante, p. 128. ITitle of the Cause.] Sir : Please to take notice, that on the afiidavit of Jif. 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 S. 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. 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 to the plaintiff or his attorney the amount of the j udgment in this action \or, that the defendant pay the money, or, deliver the property, disclosed on the examination herein, or, reported by said referee, to belong to him and to be under his control, to the plain- tiff or his attorney, to be applied upon the judgment in TO APPLY PROPERTY. 275 thiB action and the costs herein] ; and for dollars costs of these proceedings. ll>ate.] [Signature of attorney.^ [Address,] To 0. P., Esq., Deft's Atffy. ; or. To G. D., Defendant. 47 • Order to sho^v Cause for the same Purpose as in Previous Form. Ante, p. 128. [Title of the Cause.'] Upon the affidavit of M. If., plaintiff's attorney, the supplementarj'- 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 ], on the day of j 18 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why the defendant, O. D., should not pay to the plaintiff, or his attorney, the amount of the judg- ment in this action [or, should not pay the money, or, deliver the property disclosed on the examination herein, or, reported by the said referee, to belong to him and to be under his control, to the plaintiff or his attorney, 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. [BaU.] [Signature of judge.] [Address.] ^76 FORMS FOR PROCEEDINGS 48 • Affidavit of Service Of Notice of ItiIotion.(a) ITitle of the Cause.] [ Venue.] A. B., being duly sworn says, tliat on the day of 5 18 , at (the city of Albany) he served the [designate the papers] hereto annexed on 8aid(*) C. D., 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.] [Jurat.] [Deponenfa signature.] 49. The Same, when the Papers Jire Served on Defendant's Attorney. Antey p. 235. [As in form 48 to the (*), then C07itinue:] 0. P., the attorney for the defendant, G. D., by delivering a copy thereof to him personally at ISo. street, in , and leaving the same with him. Or, by delivering a copy thereof to a clerk of the said 0. P., at his office [or, to a person having charge of the office of said 0. P.], at No. street, in , and leaving the same with him, the said 0. P. being absent at the time. Or, by leaving a copy thereof in a conspicuous place in the office of said O. P., at Ko. street, in , between the hours of six in the morning (a) This, and the next two forms, when slightly varied, will suffice as affidavits of service of notices, and orders to show cause, for the ap- pointments of receivers. TQ APPLY PROPERTY. 277 and nine in tlie 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 0. P., at No. street, in the city of , with a person of suitable age and discretion, deponent having, immediately theretpfore, called at the office of the said 0. 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. [Jurat^ [Deponents signature.] 50 1 Affidavit of Service by Mail. [Title of the Cause.'] [ Venue.] £. A., being duly sworn, says that he is the managing clerk of M. N., attorney of the plaintiff herein ; that on the day of 5 18 , he deposited into the post-office, at , a letter containing a copy of the [designate the pampers] hereto annexed, addressed to the defendant, G. D. [or, to 0. P., the defendant's attor- ney] at , his place of residence, and paid the postage thereon. [Jurat.] [Deponents signature.] 51, Order that Debtor pay the Judgment(tt) Vide aaxte, p. 123. [Title of the Cause,] On reading [and filingC")} the affidavit and order for (a) This form is modeled on No. 1876 of Abbotts Forms. (i>) It is not necessary to file the papers on which the motion ia made in these proceedings. People ». Mead, 29 Bow., 360. 278 FORMS FOR PROCEEDINGS the examination of G. Z>., the judgment debtor herein, and the evidence taken thereupon \pr, the referee's re- port of the facts](*) and the order to show cause why the said debtor should not pay to the plaintiff or his attorney the amount of tlie judgment in this action with costs [or, the notice of motion, &c.] and after hearing M. N., attorney for the plaintiff in support of such motion ; and 0. P., in opposition thereto ; it is Ordered, that said O. D. pay to M. JV., said plaintiff's attorney, 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. If. delivering or tendering to him a satisfaction piece of said judgment, duly executed, and a receipt for said costs and disbursements ; or in default thereof, that a precept to commit do issue.(b) [Date.] [Signature of judge.} 52i Order that Debtor apply Money upon the Judgment Ante, p. 123. [Title of the Cause.} On the affidavit and order for the examination of C. D.f the judgment debtor herein [or, warrant of arrest], and the evidence taken thereupon [or, the referee's re- port of the facts] whereby it appears that the said debtor has in his possession [or, under his control(*)] the sum (a) This order may be made in a summary manner during, or at the close of the examination, ■when the debtor is present or represented by counsel, and then no notice or order to show cause is necessary. Tide ante, p. 128. (b) When this or any of the next three orders is made by the couit it is substantially the same as the above ; only it is entered, and a cer- tified copy served or shown. TO APPLY PROPERTY. 279 of dollars belonging to him [or, to the above- named defendants jointl3'(*)] [and due proof of notice of this application havuig been made] ; on motion of 31. i7., plaintiff's attorney, and after hearing 0. P., defendant's attorney, in opposition [or, no one opposing] it is Ordered that said 0. D., pay to M. JV., the plaintiff's attorney, the above-named sum of money within days after the due service on liim of this order, and upon said M. 2f, 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 disburse- ments of the supplementary proceedings herein, which last-named sum is hereby allowed for such costs and dis- bursements ; or that in default thereof a precept of coca- mitment issue. [Bate.] [Signature ofjicdge.} 53i Order on Debtor to apply Properly upon the Judgment (b) [As 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 Jf. 2f., plaintiff 's attorney, and after hear- ing 0. /*., in opposition [or, no one opposing] it is ordered that the said C. D. deliver to the (f) plaintiff herein, at No. street, in the city of , the following goods and chattels : [here specify the prop- erty] being of the value of dollars, at o'clock noon, of the (second) day after [or, upon] (") If the proceedings are taken hefore return of execution, it will be proper to add : and which he unjustly refused to apply upon the judg- ment herdn. (}>) Part of the value of the property may be ordered to be applied upon the costs of the proceedings and the balance on the judgment. 28^ FORMS FOR PROCEEDINGS the dne service on him of this order, and upon the plain- tiff delivering or tendering to him a receipt therefor, for dollars received on account of the judgment in this action, and for dollars received for the costs and disbursements of the supplementary proceed- ings herein which last-named sum is hereby allowed for such costs and disbursements. [Date.] [Signature of judge.] 54. Order upon the Debtor to deliver Concealed Property to the SherlfF.(a) Ante, p. 72. [As infdrm 53 to tJie (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 satisfy the amount of the execution in this action with the offi- cer's fees, to be by him applied toward tlie gatisfaction of the judgment herein. It is further ordered that the said C. D. pay to M. iT., the plaintiff's attorney, the sum of dollars, for the costs and disbursements of the supplementary proceedings herein, upon the due ser- vice on him of this order, and upon said M. N. deliver- sng or tendering to him a receipt therefor ; or in default of such payment, that a precept of commitment issue.C*) [Date:] [Signature of judge.] (a) A similar order may be made against a third party. (b) 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 Bari. Pr. eh., 273. As to imprisoning as for contempt for non-pay- ment of costs, see anU, p. 193. TO APPLY PROPEETT. 2Sl 55. Order that a Third Party pay money of the Debtor in his hands, or due him.(a) Ante, p. 123. \_Title of the Cause.] On the affidavit and order for the examination of G. M., a third party, and the evidence taken thereupon [or, the 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 [oj'j is indebted to the above-named defendant in the sura of dollars] [and due proof of the service of notice of this application upon the defendant(i') and said G. H., having been made]; on motion of J/. iV., plain- tiff's counsel, and after hearing 0. P., defendant's [or, G. Ws] attorney in opposition, it is ordered that said G. H. pay to M. JV., plaintiff's attorney, the above-named sura of money [o?", 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 re- ceipt therefor ; or that in default thereof a precept of commitment issue.(<=) It is further ordered hereby, that (f)of the said money, the said M. JV. 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 (a) 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. Q>) Notice to the judgment debtor is discretionary with the judge. Ante, p. 87. (0) 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 en- forced. 2S2 FORMS FOR PROCEEDINGS apply the remainder, the sum of dollars, toward the satisfaction of the judgment in this action. IDate.] [Signature of judge.] 56i Same, that a Third Party deliver up Property of the Debtor in his hands. Ante, p. 123. \_As inform 55 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 0. P., defendant's [or G. HJs\ 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 : [he7'e specify the samel 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 disbursements of the sup- plementary 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. [Bate.'] [Signature of Judge.] 57i Order that Third Party pay Costs by reason of his Vexatious Defence.(a) [Proceed as inform 55 or 56 to the (f), then continue :] (a) The motion for this order should be on notice to the third party, unless he is present when it is made. TO APPLY PEOPERTT. 283 said O. H. personally pay to the plaintiff, A. B. \or, to M. JT., plaintiff's attorney], tlie sum of dollars for the costs and disbursements of the supplementary proceedings herein taken against him. [Date.] [Signature of judge.] 58 1 Interim Injunction under ^ 299. Ante, p. 179. [Title of the Cause.] It appearing to me, that G. IT. has certain property in his hands, alleged to belong to the above-named defen- dant, C J)., a judgment debtor, to wit ; [here describe such property] and said G. H. claims an interest in the same adverse to said G. D. Dr., that G. H. is alleged to be indebted to C. D., the above-named defendant, in the sura of dollars, but that he denies such debt. And a. 0., of , <&c., 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 O. D., or any other person what- soever, any portion of the aforesaid property [or, from paying, &c., any part of the aforesaid debt], or in any manner interfering therewith, until a sufficient oppor- tunity be given to the said receiver to commence an ac- tion against yT)u, said G. H., for the recovery of the said property [or., debt], and to prosecute the same to judg- ment and execution, and until after such action shall have been commenced and prosecuted to judgment and execution ; or until the further order in the premises. [Date.] [Signature of judge.] 284 FORMS FOR PROCEEDINGS 59t Notice of Motion to dissolve or modify Interim Injunction. § 299. Ante, p. 180. iTitle 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 j at o'clock in the noon, that the injunction order made by him herein, and dated the day of j 18 , be dissolved \or, modified so as to permit said Q. H., doc.], on such security as he shall direct, or for such other order or relief as he shall deem just. iDate.] [Signatu7'e of attorney for 6. H.'\ [Address.] To A. B., plaintiff, Or, M. C, receiver, &c. 60, Order dissolving [or modifying] the Injunction. Ante, p. 180. [Title of the Cause.] On reading [and filing] the affidavit of G. H., and on motion of M. N., counsel for said Q. 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 wherein],' m'^oti the said G. H. delivering to said R. C., the receiver of the pi'operty of the above-named defendant, (7. -O., a written undertaking, executed by two sufficient sureties, approved by me, to the eflfect that they are bound in double the value of the property \or, debt] restrained by the aforesaid injunction for the delivery of the said property or the value TO APPLY PROPERTY. 285 thereof [or, the payment of said debt, &c.], to the said receiver, if such delivery [or, payment] shall be adjudged in the action now pending [or, to be brought] against eaid G. ff>, for the recovery of said property ; or for the delivery [or, payment] of so much of said property [or, debt] as shall be so adjudged ; and for the payment to said i?. C, such damages as the estate he represents may sustain by reason of the dissolution [or, modifica- tion] of said injunction.(°') [J)ate.] [Signature of Judge.] 61, Xlndertaking to obtain Dissolution or Modifioation of Injtmotion. § 299. Ante, p. 180. [Title of the Cause.] [Bate.] Whereas, the undersigned ff. 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 section 299 of the Code of Procedure [or, modifying, &c., state wherein], and the said judge has granted said motion upon condition that the said G. H. deliver to R. C, the receiver of tlie 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, &c.], if such delivery [or, payment] shall be adjudged iu 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- fore, we, the undersigned, said 6^. H., of the town of (a) The kind and amount of security are in the discretion of the judge. I have framed this form and the next upon sections 209 and Sll of the Code—" Claim and delivery of personal property," there being some similarity between the two proceedings. 286 FORMS FOR PROCEEDINGS , 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 H. C, receiver as aforesaid, in the sum of dollars for tlie delivery to him of the property or the value thereof [or, the payment of the debt] mentioned and enjoined in 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, aoTcnowledgment, or proof , and approval hy the judge, as in forms 40-43. SECTION IV". Forms in Receivership. 6a. Notice of Motion for the Appointment of Receiver. Ante, pp. 136, 139. [Title of the Cause.] Sir : — ^Please to take notice that on the affida-\it ofM.2^., 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 E. S., Esq., the referee therein, a copy of which is also herewith served] ; the undersigned will apply to the Hon. J. J. [judge IN RECEIVERSHIP. 287 of county], at his clianibers in tlie 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 H. C, Esq., of the , receiver (*) of all the debts, property, equitable interests, rights and things in action of the judgment debtor, 0. D. [and also of the joint property of the defendants G. D. and E. F^, with the usual powers, and for an allowance of dollars for the costs and disbursements in the supplement- ary proceedings herein. And for such other or further order or relief as may be just. \Pate.\ [Signature of attorney.] [Address to debtor, or his attorney.] 63i Order to ShoTv Cause ■why a Receiver should not be Ap- pointed. Ante, pp. 136, 139. [Title of the Cause.] Upon the affidavit of M. JV., plaintiff's attorney, the suplementary proceedings in this action, and the evidence taken therein [or, the report of H. S., Esq., the referee therein], let the defendant, G. D., show cause before me at my chambers in the city of [or, at the cham- bers of tliis court, at the City Hall, city of j, on the day of ,18 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why JR. G., Esq., of the city of , should not be appointed receiver (*) of the debts, property, equitable in- terest, rights and things in action of the defendant, G. D. [and the joint property of 0. D. and E. F.], with the usual powers, and why the plaintiff should not be allowed the sum of dollars for his costs and disburse- 288 FORMS FOR PR0CEEBING8 ments in the supplementary proceedings herein, and such other relief as may be just. IBaie.] [Signature of judge,] 64i Notice of Motion, or Order to show cause, for Special Re- ceiver. Ante, pp. 133, 136. [Proceed as in form 62 or 63 to the (*), tJien 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 O. JI.{^) or, to bring an action against G. H., for the recovery of certain prop- erty of said U. D., claimed by him]. [The clause for costs is the same as in 62 and 63.] 65 1 Notice to other Judgment Creditors having Similar Proceed- ings Fending. § 298. [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 vil- lage 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 H. C, Esq., of , receiver of the property of the above-named defendant, C. D., -with the usual powera. [Date.] [Signature of attorney^ [Address,] (a) When the receiver is to be appointed in proceedings under § 294, the notice should be served upon tlie third party, and the order to show cause should include him, if he is to be affected by the appoint- ment. IN EECEIVERSHIP. 289 bo. AiHdavit of Service of the Preceding Notioes of Motion and Orders to Show Cause, for a Receiver. \The same as forms 48, 49, 50, pp. 276, 277.] 67 1 Order appointing Receiver.(a) Ante, p. 180. [Title of the Cause.'] Siipplementaiy proceedings having been instituted upon the judgment in this action against C. D., the judg- ment debtor, by an order heretofore made by me [or, by Mr. Justice J. J., of this Court, and regularly continued before me], and the said C. D. having been examined therein on oath concerning his propertyjC") 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 Jl£ N., of counsel for the plaintiff, after hearing 0. P., opposed [er, defendant 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 ISTew 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 cleric of the court to which the judgment ielongsj and that the (a) "When the appointment is made by the Court under § 344, the order is entitled at court or at a special term, and requires hut slight changes in the phraseology from the above one. (l>) 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. 19 290 FOEMS FOR PROCEEDINGS said receiver upon filing such bond be invested with all the rights and powers as receiver according to law. And I also order that tlie plaintiff recover dollars costs, and • dollars, his disbursements in these pi-oceedings, to be paid to him or his attorney out of the funds of the said judgment 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 premises. ('')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 section 297 of the Code of Pro- cedure. \_8ignature ofjudge.'\ DOt Order appointing a Special Receiver. Ante, p. 133. [^Title of the Cause.] Whereas, supplementary proceedings before return of execution, were duly instituted upon the judgment jn 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 O. D. has property which he did unjustly refuse to apply upon the said judgment, and which cannot be so applied directly \or, had property at the time the , (») This restrainrng clause is needless, if tlie debtor is already vmder injunction, (b) 74* ante, p. 147. IN RECEIVERSHIP. 291 demand was made of liiin to ajjply 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 § 294 of the Code of Procedure, were duly instituted upon the judgment in this action against O. 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 taken therein that the said O. H. has property of [or, is indebted in a sum exceeding ten dollars to] the defendant, 0. D., which property cannot be directly applied ujdou said judgment [or, and said G. M., claims an adverse interest in said property] : Now, on filing the aifidavit 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 0. P. in . opposition [or, no one appearing to oppose], I hereby order that R. G., 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. H.] ; and to apply the same, or the proceeds thereof, under direc- tion of the Court, toward the satisfaction of the aforesaid 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 order of the court [or, to bring an action against said G. H., to recover the following property in his possession (here 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 abovej\. That such receiver, before he enter upon the execution 292 FORMS FOR PROCEEDINGS of his said trust, execute to the People of the State of New York, a bond with sufScient 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 iile the said bond with the clerk of the , county of [*', e., with the clerk of the court in which the judgment roll or the transcript of the justice^ judgment, is filed'], and that the said receiver, upon filing such bond, be invested with all the rights and powers as receiver of the said property, according to law. [Add clause allowing the plaintiff costs, as inform 67. iDate.] [Signature of judge.] 09i Receiver's Bond •with Security. Ante, p. 143. (a) Know all men by these presents, that we, B. G., of the , E. F., of the , and K. L., of the same place, are held and firmly bound unto the Peo- ple of the State of New York, in the sum of dol- lars lawful money of the United States. For which pay- ment well and truly to be made, we bind ourselves re- spectively, and our respective heirs, executors and admin- istrators, estates and efiects, firmly by these presents Sealed with oiu- 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 JD. de- fendant, the above-bounden B. C. was appointed receiver of the property and effects of the said G. D., a judgment debtor. Now the condition of this obligation is such that if the above-bounden B. G. shall faithfully discharge his (a) Tbia form is from Ed-vrards on Receirers in Equity, p. 880. IN RECEIVERSHIP. 293 duties as such receiver, under the statutes, rules and prac- tice, and otherwise perform his office in all things accord- ing to the true intent and meaning of the said order, then this obligation to be void ; otherwise, to remain in full force. Sealed and delivered in the ) [Signaitire.] presence of . j 70i Affidavit of Sufficiency to Bond by Sureties. State of New York, County of , ss. : E. F., and K. L., oi , being severally duly sworn, say, each for himself, that he is a resident and holder in , in the county of , State of New York, and is worth dollars [amount ofpenaltyl over and above all his debts and liabilities, and property exempt from execution. {Signatures.'] [Jurat.'] [Acknowledgment or proof of tond, as in form 41 or 42, substituting " hond " for " undertaking.''^'] 71 , Indorsement of Approval. I approve the within bond as to its form and manner of execution, and as to the sufficiency of the sureties. [Date.'] [Signature of judge.] 72 1 Receiver's Bond Without Security. Ante, p. 144. Enow all men by these presents, that I, E. C, of the town of , in the county of , and State of New York, am held and ffi-mly bound unto the People of the State of New York, in the sum of dollars, law- ful money of the United States ; for which payment, well and truly to be made, I bind myself, my heirs executors 294 FORMS FOR PROCEEDINGS and administrators, firmly by these presents. Sealed •witb my seal. Dated, the day of , one thousand eight hundred and Whereas, by an order dated the day of , 18 , made [continue as inform 69]. [Achnowledgment, or proof of tond as in form 41 or 42, substituting " hond " for " undertaking " / and ap- proved as inform Yl. j 73i Appointment of Agent (a). [Ante, p. 153. \_Title of the Cause.] I hereby authorize and empower iT. 0., of the , to demand and receive for me, in my name and stead, from the defendant, C. D. [or, G. JI.], the money [or, property] mentioned in the annexed order [or, the follow- ing personal property [here state the same), to which 1 am entitled as receiver of the said C. JD.], and to deliver w.j receipt therefor to him. Given under my hand and seal at the on the day of , 18 . B. C, Beceiver of, the day the said order of receivership was filed and recorded as above stated, and which, or its I'epreseutative, also belonged to him on the day of , 18 , the date of the commencement of the supplementary proceedings herein ; and by virtue of said appointment now belong to me. IN RECEIVERSHIP, 297 And if you have any lawful lien or claim upon the said goods and chattels, I hereby require you to state the same, and I give you notice that I am ready and willing to pay the same.(^) And in case it should occasion you any inconvenience immediately upon the receipt hereof to deliver up the said goods, then I hereby give you notice that I will attend at the premises where tlie said goods now are at any time you may appoint ; and in de- fault 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 de- livering 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 immediately by order of this Court commence and prosecute an action against you, for such your conversion and unlav^'ul conduct. [Date.] [Eeceiver'a signature.] [Attorney's signature.] To [T.Z.] \0, AfSdavlt of Receiver, that a Debtor or a Third Party refuses to deliver Proper^ to him. Ante, p. 155. [Title of the Cause.] a. C, being duly sworn, says that on the day of > 18 5 ^Y 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 O. D., the above defendant ; that said (a) If tlie receiver has any doubt as to his authority to pay off such lien, or claim, he should apply to the coui-t for instructions. 29 S FORMS FOR PROCEEDINGS 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 justice's judg- ment] in this action, is filed ; that deponent has given and filed the security required by said order, and ap- proved by the Hon. ; that on the day of , 18 , at , he personally served on said C. D., [or, Q. jK] a copy of said order of receiv- ership, together with a written notice that deponent had completed his appointment as such receiver, and then and there personally demanded of him the following personal property [Jiere specify the same^ Or, that W. 0., who was fully authorized thereto by deponent, served a copy of said order of receivership, &c., as will appear by his affidavit hereto annexed. That the said C. D. [or, O. HJ] refused and still re- fuses to deliver said property, or any part thereof to this deponent, [Signature of receiver.^ [Jurat^ 79. Order to show Cause why Property should not be delivered to the Receiver. Ante, p. 155. [Title of the Cause.] On the annexed affidavit of B. C, received of the property of O. D., and the evidence taken in the supple- mentary proceedings herein [add any other papers to 1)6 used on the motion], let the defendant, O. 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. O. the property mentioned in the aforesaid affidavit. [Date.] [Signature of judge.] [Address.] To a D., or Q. n. IN RECEIVERSHIP. 299 oOi Order that Debtor or Third Party deliver Property to the Receiver. Ante, p. 155. \_Title of the Cause.] On the aiEdavib of , and the evidence taken in the supplementary proceedings herein, whereby it appears that the following articles of personal property, belong to the defendant, G. Z>., 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 \Jier6 specify the property], and due proof of notice of this ap- plication having been made ; on motion of M. N., coun- sel for plaintiff, after hearing O. P. in opposition, it is hereby Ordered, that said G. D. [or, Q. H.] deliver the aforesaid property to the receiver, B. G., or to his agent duly authorized, at JSTo. street, in the city of , on the day of , inst., at o'clock noon, and that the said B G., or his agent, thereupon deliver to him a receipt for the same. [Pate.] [Signature ofjudge^ ol. Receiver's Petition for leave to Sue.('') Ante, pp. 140, 160. To the Supreme Court of the State of New York [or, other court whose officer he is.] [Title of the Cause.] The petition of E. G., receiver of the property of G. 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 (a) All applications by or against a receiver, in regard to tlie estate in his hands, must be made to the court whose officer he is, and not to the judge who appointed him. 300 FORMS FOR PROCEEDINGS court] at , on the day of , 18 , your petitioner was duly appointed receiver of the property and effects of the above-named judgment debt- or, G. D. ; that said order was duly filed and recorded in the clerk's ofiice of the county of , where the judgment roll \or, transcript, &c.] herein was filed (*) that thereafter your petitioner gave the requisite 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 he stated in a concise complaint / thus :] that among other debts due the said 0. D., is one of dollars, due from Y. Z., of die, the particulars of which are set forth in a schedule hereto annexed. III. That your petitioner, as such receiver, has repeat' edly 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 available 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 allow ed, 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. {Date.l [Signature.] [ Verification the same as to a complaint^ IN RECEIVERSHIP. ' 301 OZ) Order Granting Leave to Sue. () The receiver sues in his own name. There la no need of an order allowing him to sue in the name of another., (o) This is required by Supreme Court rule 93. 302 FORMS FOR PROCEEDINGS YorKl all and eveiy the said bonds, promissory notes and book debts, namely, [here describe them.'] And it is also Ordered, that tlie 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. 84i Notice of Sale of Bad Debts. \Title of the Cause.] ITotice is hereby given, that by virtue of an order of the Court, , the subscriber, as receiverin the above-entitled action, will sell at public auction at [the Exchange Salesroom, No. Ill Broadway, in the city of New York] on the day of next, at o'clock noon, the following bonds, promissory notes and book accounts, n amely, {here de- scribe them accurately and minutely] which sale is to be entirely for cash. [Date.] [Signature of receiver.] o5i Skeleton Ponn for Complaint by a Receiver.(tt) [Court.] E. 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 (a) The receiver must estaWisli two positions to give Mm a standing in court : 1. Tlie same substantially that the judgment creditor whom IN RECEIVERSHIP. 303 an action in the Court of , A. B. duly recovered a judgment [which was duly given] against the above-named defendant, 0. 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 , 18 , a transcript thereof was filed, and the judgment dock- eted in the county of J ; that thereafter, on the day of j 18 j an execution in due form upon said j iidgment, was duly issued against • the personal and real property of the defendant, C. Z>., to the sheriff of the said \pr, last-named] county in which the said defendant then resided [or, had a place of business] which execution was afterwards 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 instance of said A. B., by an order dated the day of ' > 18 ) 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 , 18 . , at , by an order of the said J. J. \or, the Hon. , a justice of the same court, before whom the proceedings were regu- larly continued] this plaintiif was duly appointed re- ceiver of all the property and efi'ects of the said defen- dant, C. D. That said last-named order was filed and he represents would have to establish. 3. 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. 304 FORMS FOR PKOCEEDINGS recorded on tlie day of , 18 , in the office of the clerk of the , county of , that being the county where the judgment roll [or, t&c] is filed ; and a certified copy thereof delivered to this plaintiff, who thereupon, and before tlie commencement of this action, gave his bond required by said order, aa 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 J. III. [Here allege the cause of action.'] IV. [The prayer of relief] ODi Order for Receiver to pay off a Judgment.(a)(b) At a special, &c. [as inform 12.] [Title of the Cause.] It appearing to the satisfaction of the court, that the defendant, CD., is indebted to the plaintifi"on the judg- ment herein, in the sum of dollars, with interest from the day of j 18 , and that M. 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 acknowledged] 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 receipts for all he shall so (11) 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. (b) The receiver is not obliged to pay the funds to any party or per- son, -without an order of court. Edwards on Receivers, p. 801, 497. IN RECEIVEESHIP. 305 pay, upon a certified copy of this order, which shall be a full discharge ; and he adding, 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 sairl clerk thereupon cancel the receiver's said bond, and de- liver the same to him.](a) 87i Petition that Receiver apply Money upon the Judgment, or for Order Determining Priority among Creditors. To the Supreme, c&o. [as inform 81]. {Title of the, Causei] The petition of the above-named plaintiff respectfully 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 , IS , and personally served on the day of ) 18 5 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] appointing H. C, of (&o., 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 (a) 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 liens 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. 20 306 FORMS FOR PROCEEDINGS • [oi', the transcript of, dtc] is filed ; that said receiver thereafter gave the requisite bond, which was duly ap- proved 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 defen- dant, 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 defendant 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 commenced, and whether the receivership has ieen extended over theni]. lY. Tour 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 judgment herein with interest, and the costs allowed your peti- tioner 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 applica- tion of the same accordingly] and for such other or fur- ther order as may be j ust. [Signature.] [Date.] [ Verification as in a complaint^ [Annex receiver's certificate.] IN RECEIVERSHIP. 307 081 Notice of Motion for Order that Receiver apply Funds on the Judgment. [^Tiile 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 5 18 ) foi' ^^ order that the receiver ap- pointed herein apply the moneys of the estate of the defendant, C D., now in his hands, to the payment of tlie judgment in this action, and the costs and disburse- ments allowed in the order appointing him receivei-, or for such other or further order or relief as the court may deem just. [Bate.] ^Signature of attorney.'] lAddress.] H. C, receiver, and the other creditors in interest. 89i Order Directing Receiver to apply Funds on Judgment, &o. At a special, &e, \a,s inform 12.] \_Title of the Cause.] On reading and filing tlie. 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 0. P. and S. T. {representing other ci^ed- 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. JV., on his receipt, dollars, the costs and disbursements allowed the plaintiff in the 308 FORMS FOR PROCEEDINGS 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 extended. 90i Receiver's Petition for leave to sell Heal Property, l^Same as in form 81 to the (*), then continue ;] 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 ofiice 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 nuder the tnist of his said receivership. II. That it appears that the defendant is owner of cer- tain real property known and described as follows: [deacrijption of the premises; and state also what 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 foundHho goods, or chattels, or choses in action of the said 0. D., out of which any money can be made by collection, suit or sale ; and that said land is the only available property. IN RECEIVERSHIP, 309 Wherefore, your petitioner asks an order, allowing him as such receiver, to sell by public auction, and convey all the right, title, and interest of the said G. 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. \_DaU.\ {Signature, of recewer.'] \_Affidwoit as to a complaint.'] 91, Order Allowing Receiver to SeU.(a) At {same as in form 12]. {Title of the Cause.] On reading and filing the petition of M. C, the re- ceiver in this action, asking leave to sell, <&c. [here recite sufficient of the petition to show its .general character], and proof of due service of notice of motion upon the plaintiff and defendant ; and after hearing 8. /S., of coun- sel for the said petitioner, it is Ordered, that the said H. 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, O. 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 pm-chaser, 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 assignment. (a) From Edwards on Receivers, p. 486. 310 FORMS FOR PROCEEDINGS 92i Receiver's Inventory of the Debtor's Property. ITitle of the Cause.} A just and true inventory of the whole real and personal estate committed to the care of B. 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, helonging 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. ileal and leasehold estate : [^Here give the same in detail, as ;] A house and lot, &c., A lease of, &c., Merchandize and stock in trade, at No. Mortgages, stock, bonds and notes : A mortgage from, &c., &c., &c. Book debts, due or owing : E. F., &c., owes on book account, $ &c., &c. [Date.'] [JR. C], Beceiver. [ Yenue.} a. 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 pos- session, or committed to his care as such receiver ; and also truly shows the manner in which any and all funds under IN RECEIVERSHIP, 311 his care and control, belonging to the said estate, ■ are in- vested ; 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. ISignature.] [Jurat.] 93i Notice of Heceiver's Petition for Cirectiona as to Dis- tribution of Assets, &c.(&) [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 my possession] and also for an order directing a reference to take my account as receiver, and discharging me from further liability, and also for an order determining your respective priorities, and my duties as to paying your vai'ious claims out of the surplus that may remain in my hands, or out of any otlier moneys that I may collect. [bignature of receiver.] [Address to the parties in interest, or their attorneys.] (») 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. 312 FORMS FOR PROCEEDINGS 94i Order for an Emended Receiver to pay off Several Judgments, according to Priority.(a) At a special term, cfeo. [as inform 12.] \Title of all the Actions^ It appearing, under supplementary proceedings herein, that the receiver, It. C, has funds sufficient to satisfy all ■ the judgments of the respective plaintiffs; it is hereby Ordered, that a reference be had to B. S., Esq., of &c., who as referee, shall ascertain the amounts of such re- spective judgments and the priorities of the respective plaintiffs ; that the said receiver, under tlie direction, of the said referee, on having satisfaction-pieces tendered to him [properly acknowledged] pay the amounts so ascer- tained, 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 proceedings therein [or, and also pay the sum of dollars, as costs to each of the said plaintiffs, A. J3., E. JF., J. K.'] ; that he, the said receiver, pay the referee's fees, and also retain such rea- sonable amount for his own commissions and charges as the referee shall name and endorse upon a certified copy of this order. Also, that the receiver take receipts for all he shall so pay to the plaintiffs and referee upon the back of such certified copy, which shall be a full dis- charge. 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]. (a) This form, with a few slight alterations, is from Edwards on Re- ceivers, p. 395. IN RECEIVERSHIP. S13 95 1 Affidavit cf Receiver to his Account.(a)' [Title of the Cause.} [ Venue.} H. C, of , receiver of the property and effects of the defendant, C. D., a judgment debtor, being duly sworn, saj's : 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 pos- session ; and also a just and true account of all the re- ceipts 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 mentioned in the forego- ing 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. [Signature.} [Jurat.} 96i Reference to pass Receiver's Acoount.(l)) [The object of motion, or of the 6rder, may he stated thus :} to take and state the accounts of M. C, the said receiver in this action, and to ascertain and report to the . (a) The account to which this is the afiSdavit, is framed like the in- ventory, form 93. (b) This and forms 98 and 99 are from Albotts Forms, 1533, 1530 1537. 314 FORMS FOR PROCEEDINGS 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 allow- ances to said receiver for the costs and expenses of said • receivership, and his commissions, as well as for other disbursements and payments, properly m-ade by him, on account of said trust-fund \where the receiver is in fault, and the motio7i 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 j 18 » whereby &c. \here very hriefiy recite order of referencci I, the subscriber, referee aforesaid, residing in the city of [Albany] have been attended by H. C, the receiver in the above action and the attorneys of the respective parties; and the said receiver having brought be- fore me his accounts, embracing the whole of his receiv- ership 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 ac- counts ; and I find that the said receiver hath received by and out of the estate of O. D., over which he was ap- pointed, the several sums of money set out in his said ac- counts, as having been received by him, amounting to- gether to the sum of dollars, and that he has paid and is to be allowed for taxes, &c., and for his com- missions, or salary as receiver, and for fees and charges of passing his accounts, and to be discharged, the several sums of money set out in his said accounts IN RECEIVERSHIP. 315 as having been paid by him, amounting together to the sum of dollars, which being de- ducted from the said sum of dollars, redu- ces 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 pursuance 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 allowan- ces, appear in the schedule marked A, hereto annexed. All which is respectfully submitted. {^Referee's signature.'] IDate.] 98. Notice of Motion to Remove Receiver. [^The object of motion may he stated thus /] that K. 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 secu- rity], and for the costs of this motion [to be paid by the said a. C. personally]. vu, Notice of Motion to Discharge Receiver. [The olject of motion may be stated thus ;] that R. O., the receiver appointed ia 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 receiver, to be made as the court may direct, the bond entered in- to by him, the said receiver and his sureties, may be vacated, and for the costs of this motion. 316 FORMS FOR PROCEEDINGS 100. Order discharging receiver. At, &c. las inform 12]. ITiUe of the Cause.'] On reading and filing the report of E. S., Esq., the referee appointed to pass the final accounts of li. C, tho receiver in this cause, and the certrficatfi of G. L. K.., the clerk of this court, that the said receiver has paid ia 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 S. S., of counsel for the said receiver, it is Ordered, that the said H. O. 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 sureties for him as such receiver be, and the same hereby is vacated, and they are, and each of them is, discharged from all responsi- bility and liability as such sureties and bondsmen. \lf a new receiver is appointed, then add ,•] and that the said i?. O. hand over to the said new receiver 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. 101, AfBdavit of Service of Oftter to Pay Money. Ante^ pp. 68, 226. [Title of the Cause ^ [ Venue.] A. B., being duly sworn, says, that he is [the attorney of] the above-named plaintiflf; that on the day of TO PUNISH DISOBEDIENCE. 317 ,18 , at , he served upon C. B. above-named, a copy of the order hereto annexed \or, upon G. H., named in the order hereto annexed, a copy thereof], by delivering the same to, and leaving it vnth him ; and at the same time and place he showed him the said ordfer hereto annexed, with the signature of the judge, and then and there he personally (*) demanded of said [C i>.] (t) payment of the moneys \pr, costs] men- tioned in said order ; but said [C. i>.] has neglected and refused to pay the same, or any part thereof. [Deponent^s signature.] [Jurat.] [Annex order.] 102. Same by Third Party.(a) [As in form 101 to the (*), omitting allegation that he is the attorney or plaintiff, then continue /] on behalf of the above-named A. B., demanded of said [C. D.] pay- ment of the moneys [or, costs] mentioned in said order ; but said [G. -D.] has neglected and refused to pay the same, or any part thereof. Deponent further says that the said demand was made on behalf of A. 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 an- nexed ; and at the time of making said demand deponent stated to the said C. D. the nature of his authority, and showed him the said power of attorney. [Deponenfs signature.] [Jurat.] [Annem order and power of attorney.] (ft) For power of attortiey, see form 73. 318 FORMS FOR PROCEEDINGS 103. Order for Precept to Commit for Non-Payment of Money.(a) Ante, pp. 193, 196. At, &c. [as inform 12.] {Title of the Cause.'] On reading and filing the affidavit of , dated the day of , 18 , showing due personal service on the defendant C. D. \or, O. ff.], of a copy of the order made [by Hon. J. J., a justice of this court, in supplementary proceedingsC')] in the above action, on the day of , 18 , and also showing a de- mand 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. If., 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 G. D, if he shall be found in his bailiwick, and com- mit 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 dollai-s for the costs and expenses of this proceeding to compel such payment, together with the sheriff's fees on such precept (1) This form is used when application to punish is made to the court. (i>) 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 ia alleged that the order was made in an action in the court. TO PUNISH DISOBEDIENCE, 319 104 1 Precept of Comiuitment on Previous Order. Aute, p. 196, The People of the State of New Tort, 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 J or, by J. J., Esquire, a justice of our Supreme Court, in supplementary proceedings then had befoi'e him], in an action in our said court, at the instance of A. B., plaintiff, against O. D., defendant, it was Ordered, that the said 0. D. pay to the said A, B. [or, M. JV., 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 in- terest thereon, to wit : the sum of dollars, and the further sum of dollars, the costs and dis- bursements allowed in the supplementary proceedings in- stituted 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. B.] by or in behalf of said A. B. [or, M. iV^.] ; yet said [0. Z>.] 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 [O. B.] 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 320 FORMS FOR PROCEEmNGS said sum of dollars for the costs and expensw of the proceeding to compel such payment, together wif^i your fees on this writ. And you are to make and retu-n to oiir 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 \-i\ der your hand, of the manner in which you shall have ^'X ecuted this our writ ; and have you then there this writ. Witness J. J., one of the justices of our said court, at , the day of , one thousand eigl»' hundred and [a Z. K] Clerk. [if. JV.'] Attorney. [Endorsed.'] By the court, C. L. K, Clerk. 105i Precept of Commitment by a Judge. Ante, pp. 196, 207. [Title of the Gause.] The People of the State of New York, to the sheriff of county, Greeting: Whereas, a judgment was duly recovered [hriejly recite the facts of judgment and execution, as in an order or warrant under § 293, forms 6, 7, 11, 14] ; and whereas, on the day of j 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 supplementary proceedings against the above defendant, C. J)., which order was duly served on the said C. D., by showing 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. TO PUNISH DISOBEDIENCE. 321 requiring the said C. D. to pay to the plaintiff, A. B., the BTim 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 mad.e of the said O. 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 doUaz-s Now, therefore, you are commanded that you take the body of the said C. D. if he shall be found in your baiKwick, 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 imder my hand, at , in the county of , this day of , 18 . [Signature of juUge.\ [Signature of attorney.'] 106i AfBdavit of Service of Order to Deliver up Property. Ante, p. 155. [As in form 101 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 0. D. the delivery of the prop- erty, «fec.], but he refused to deliver the same, or any part 21 322 FORMS FOR PROCEEDINGS thereof. Or (at the time as above stated) this deponent at- tended at No. street, prepared to receive and remove the property, &c., and waited there a full liour 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 deponent.] \Jurat?^ {JDejaonent^s signature.'] 107. Same, by a Third Person. \_As in previous form 106, with, the averment of agency, and on whose hehalf the demand was made, given inform 102 ; w in whose iehalf he attended to receive the prop- erty?^ lOoi Same, of N'on-Attendauoe of the Debtor, or, &c., Pursuant to Order. \Title of the Cause.] [ Venue.] M. N., being dnly sworn, *says, that he is the attorney for the plaintiff herein ; that he did, on the day of ,18 , 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 an- nexed 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 dur- ing that time the said G. D. failed to appear before the said judge \or, referee] at the place aforesaid ; and depo nent 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 de- fault to be duly noted by the said justice [w, referee]. [JDeponenfs .'signature.] [Jurat] TO PUNISH DISOBEDIENCE. 323 109i Order to Show Cause why Disobedience of an. Order should not be Punishea.(a) Ante, p. 197. ITitle of the CauseJi Upon the annexed [name the affidavits and papers on which the orde?- 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 mis- conduct in \_here state the misconduct, as:] disobeying the anaexed order by failing to a})pear 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. [Bate.] [Signature of judge.] [Attorney's signature.] 110, Order thereon Adjudging the Offender Guilty, and directing Ptmishment, by the Coiirt.(b) Ante, pp. 197, 206. At, (&c. [as inform 12]. [Title of the Cause.] , O. 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 M. Jf., for the plaintiff, and 0. P., for the said [C. i?.] : it is hereby considered and adjudged that the said [C. Z>.] is guilty of a contempt in having wilfully disobeyed the annexed order, dated , 18 , by failing to appear before the Hon. , (a) An order to show cause before court, must be made by the court. 6 Bow., 350 ; 7 Ahb., 76, 81. (li) For process of commitment on this order, see form 138. 824 FORMS FOR PROCEEDINGS a justice of tliia court [or, H. /S'.jEsq., 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 plaintiflF herein. And it is further considered and adjudged that the said [C. Z>.] 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 hereinC') to satisfy his costs and expenses .in the 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 judg- ment into effect. Ill, Notice of Motion for an Attacbxaent, Ante, p. 199, [Tiile of the Cause.'] Please take notice, that upon the annexed [here name the ^ape'^s on which the motion is to be made,' — thus:} order of the Hon. J. J., a justice of this court, and the aflSdavits, of which copies are herewith served on you, the undersigned will move this coiu-t, 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. (a) If the creditor has sustained any loss by the misconduct of the accused, the order, in that respect, should run as in form 134. TO PUNISH DISOBEDIENCE. 325 [or, before B. S., Esq., the referee named in the said o'der] at the time and place in said order required. [Bate.] [Signature.] [Address.] liZt Order to show Cause vrhy an Attachment should not Issue.(a) Ante, p. 199. [TiUe of^e 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- house, in the village of , county of , on the day of inst., at o'clock noon, or as soon thereafter as counsel can be heard, 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 plaintijff", A. B. [or, the receiv- er, B. 0.] the property mentioned and described in the said order [or, in disposing of the property mentioned in the aforesaid affidavit in violation of an injunction 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. [Date.] [Signature of Judge.] [Signature of attorney.] ■"■' (a) See Mte (a), page 327. 326 FORMS FOR PROCEEDINGS • 113. Order for an Attachment by the Court/a) Ante, p 200. At a las inform 12]. [Title of the Cause.] On reading and filing the aflBdavit of [A. B., above- named plaintiff] showing due personal service on [the de-* fendant, CD.'] of the order made [by Hon. J. J., a jus- tice of this court, in supplementary proceedings] in this action, on the day of , 18 ', requiring the said G. D. to deliver certain personal prM)erty there- in specified to the plaintifiT, A. B., and also showing a demand of said property personally of the said O. D., and his neglect and refusal to deliver the •same or any part thereof; and on motion of M. JV., attorney for the plain- tiff, after hearing 0. P., for the said defendant ; it is Ordered, that an attachment as for a contempt be issued against the defendant, C D., returnable 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 , 18 . And it is further Ordered, that the said C. J), be held to bail on said attachment, in the sum of dollars. 114t Writ of Attachment; Undorsement; and OfScer's Return. Ante, p. 200. [Seal.] The People of the State of New York, to the SheriflF of the , county of , Greeting : We command you, that you attach [<7. D.], so as to have his body before our [Supreme] Court, at a special (a) This is framed after Orary's form, 274, and Barbour's, 471 ; and may be used when the supplementary proceedings under subd. 3, § 293, 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. TO PUNISH DISOBEDIENCE. 327 term thereof, to be held at the [City Hall, in the city of New York] on the day of j 18 , at o'clock noon, there to answer nnto us, as well as touching the contempt which he, as is alleged, has com- mitted against us, as alfeo, such other matters as shall then and there be laid to his charge, and further to per- form 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 . O. L. K, Clerk. M. iT., Attorney. » \A.ttachmeni indorsed, thus ,*] Issued by the special order of the court. Hold the defendant to bail in the sum of dollars. [Glerk^s signature.] Sheriff's Return to Attachment. {If the attachment is served and tail given, fhe 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 he found, the returi\ is .•] ]S"ot found. \ffi i^pon the defendant's arrest, hail 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 hiui now in custody before the court. [If the attachment has heen flaced in the sheriff's hands at too late a time to execute it hefore 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. 328 FORMS FOR PROCEEDINGS \_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 Ooiirt at the suit of K F. 11D> AttacTiment Issued by a Judge at Chambers. Aute, p. 200. {Title of the Cause?f^) The People of the State of New York to the Sheriff of the , county of , Greeting : Whereas, a judgment was duly recovered {briefly recite the facts of the judgmerM and the execution, as in an or- der 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 county], upon due proof of the aforesaid facts [and of the fact that G. H., of said county, had property of the de- fendant C. D. in his hands], did, at the instance of the said plaintiff, make an order requiring the said C. D. \or, G. HP^ to appear before him \or, before It. S., Esq., referee named in said order], at , in the [said city of Brooklyn], on the day of ,18 , at ©'clock noon, to make discovery 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 con- cerning certain property in his hands belonging to, and debts due from him to, the said CD]., And whereas, the said order was, on the day of (a) "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. 201. TO PUNISH DISOBEDIENCE. 329 ,18 , duly served upon the said C, D, by showing the same to him, and personally leaving with him a copy thereof. And whereas, the said did, on the said re- turn day of said order, and for one Pialf ] hour after the time named therein, fail to appear before the said judge [or, before , Esq., the referee aforesaid] at the place aforesaid :(*) Now, therefore, you are hereby commanded to attach said G. 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 , 18 , at o'clock noon, there to answer unto us as well touching the con- tempt 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 or- der 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 wjiich you shall have executed the same.(t) Given imder my hand, this day of > 18 , at the [city of Brooklyn]. [Signature of judge.'\ [Indorsed^ Let the defendant give security for his ap- pearance, by bond in the penalty of dollars. [Signature of judge.] [BaU.] S30 ■ Forms for proceedings llu> Attaclunent for Disobedience of Order, issued under the Seal of the CouTt.(a) [J.S inform 115 to the (f), with the seal of the covH, and substituting " HonP for " undersigned^^ then conr tinue .•] Witness, the Hon. J. J., justice of court, at the , in the county of , this day of , 18 . By the court, [Signature of clerh.'] [Signature of attorney. 1 [Indorsement on this writ, thus ;] [Title of the Cause.} Attachment. The within writ of attachment is hereby allowed. Admit to bail in dollars. [Signature ofjudge.'\ [Bate.} By the special order of the court. [Signature of derh] 117i Bond on Attachment. Ante, p. 201. ' Know all men by these presents, that we, G. D., of the town of , and M F. and K. Z., of the same place, merchants, are held and firmly bound unto S. H. 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 be made, we bind ourselves jointly and severally, and our, and each of our, heirs, executors and admin istratois, firmly (a) This form is after Abbotts' 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. 1 think it is not the proper warrant when the contempt proceedings are before a judge at chambers. Ante, p. 200. TO PUNISH DISOBEDIENCE. > 331 by these presents. Sealed witli our seals, and dated the day of , 18 . Whereas, the above-named O. D. has been arrested up- on 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 J, in a proceeding as for a contempt for disobedience to an order [requiring him to deliver certain property therein mentioned to A. B!\ made in sup- plementary proceedings in an action in said court \or, in the court of J, in "which said A. B. is plain- tiff, and C. D. is defendant, and is now in the custody of the said S. R. F., as sheriff as aforesaid. Now, there- fore, the condition of this obligation is such, that if the above-bounden C. D. will appear on the return of said at- tachment 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 J 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] thereup- on, then this obligation to be void, otherwise to remain in fall force and virtue. , [Signatures of oUigors.] Sealed and delivered in the ) presence of W. S. j 118i Order for Alias Attachment ■where Defendant fails to Appear.(a) Ante, p, 202. At a, tfec. [as inform 12]. [Title of the Cause.] The sheriff of the county of , having returned (a) 'VVhen 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. 332 . FORMS FOR PROCEEDINGS the writ of attachment heretofore issued in this action, against the above-named defendant, C. J)., by which re- turn it appears that the defendant was arrested, and afterwards set at liberty 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 plaintifi'. Ordered, that an alias attach- ment iesue against the said C. D., directed to tlie 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. 11 9i Alias and Pluries Attachments. \8am6 as in form 114 or 115, except after the words, " We command yon," inform 114, or, " You are hereby commanded," in form 115, insert, for alias attachment:'] as you were before commanded ; [and for ^pluries attach- ment, insert ;] as you were oftentimes before commanded. Order on Defendant's Appearance, and directing Inter- rogatories to be filed.(a) Ante, pp. 202, 203. [Title of the Cause^,(y) The defendant, G. D., being now in attendance under (a) This form will sufSce for an order made in court, or by a judge out of court, according as the contempt proceedings are in or out of court. (^) If the attachment is issued, or the contempt proceedings taken, against a person not a party to the original suit, tlien this order and all the subsequent proceedings should be entitled : The People of the State of New York ex rel A. B. against . [or, on the attorney of said G. -0.](*) and it having been re- ferred to B. S., Esq., to examine the said G. D. on oath upon such interrogatories, and take such further proofs (a) If this order is made by the court, it is so entitled (see form 13); if by the judge, he signs it. 336 POEMS FOR PROCEEDINGS as either party might produce before him in relation to said alleged contempt ; and the said referee having made his report, and it appearing to the court from such report and the answers and proofs thereto, and the original affi- davits on which said attachment issued, that the said C. D. is (t) 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. iT., 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 mis- conduct, to be paid by him to the said plaintiff to indem- nify the latter for his actual loss or injury produced by the said misconduct; and further, that he [said C. D.'] pay to the plaintiff the costs and expenses of these pro- ceedings, 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. 12d. Another Ponn of Order, without Heference. Ante, p. 202, etnd X Duer, 571, note. \As in form 1 24 to the (*), then continue ;] and he having been required to answer, and having answered the same ; and several afiidavits 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: TO PUNISH DISOBEDIENCE. 337 It is now here considered and adjudged that the Baid O. D. has been and is \_prooeed from (f) in form 124, to the end of it.} 126c Same, as for Ciimmal Contempt. Ante, p. 205. \_As in form 124 or 125, to the end of the finding ; the. judgment m.ay 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 tlie 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 A. JS., 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 disposed of . according to law, and that a warrant [cfec, to the end'\. 127. Another rorm of Order by Court(a) At, &c. [as inform 12]. [Title of the Cause.] On reading and filing the affidavit and order for the ex- amination of the defendant, O. Z>., and proof of due service of thesame upon the said C. D., and the evidence taken therein, whereby it appears that the said 0. D. has vio- lated the injunction made in this action on the day (a) This form is framed after the decision of Beynolds v. McBlhone, 30 Sow., 454, with such additions as are suggested by the cases of the People v. Nevins, 1 BUI, 154, 158 ; and Pitt v. Davison, 37 Barb., 97. 338 FORMS FOB PROCEEDINGS 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 calculated to, and did ac- tually impair, defeat, impede or prejudice the rights of the plaintiff herein ; Now, on motion of M. N., attorney for the plaintiff, after hearing 0. P., attorney for said C. D., who personally appears before the court in this pro- ceeding, it is Ordered, that a fine of dollars [continue as in form 124, from the same place to the end}. 128i Warrant of Comniitment.(B) Ante, p. 206-7. The People of the State of New York to the Sheriff of the , county of , Greeting : [i&aZ.] 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 A. B. was plaintiff, and O. D., defendant, it was Ordered, that the said C. (a) A far more circumstantial writ is often used in supplementary- proceedings, similar to that in form 139. But I think it useless verbi- age, when the contempt proceedings are before the court. When sup- plementary proceedings under subd. 3, § 293, 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, as- sumes 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. TO PUNISH DISOBEDIENCE. 339 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 eifect : Now, therefore, we command you, that you take the body of the said C. tO., 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 dollars, with your fees hereon, or until the said G. 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 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 . {_0. L. K., Cler1c.'\ [M. IT., Attorney,] [Indorsed.] By the special order of the court. [O. L. K, Clerh.] 129. "W'airant of Commitmenf by a Judge upon Attachment. Ante, p. 207. \_Title of the Cause.] [As in " attachment," form 115 to the (*), then con- tintce :] And whereas, a warrant of attachment was there- 340 FORMS FOR PROCEEDINGfS after issued by the said judge, and directed to the sheriff of the county of , commanding him to arrest the said G. D., and bring him before the said judge on the day of j 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 interrogatories, 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. ., and mature deliberation thereupon had, it is considered and adjudged that the said G. D. is guilty of the contempt charged agaiust him, and that such miscon- duct was calculated to, or actually did, defeat, impair, im- pede or prejudice the rights \or, remedies] of the said plaintiff: Now, therefore, you are hereby commanded, that you take the body of the said G. 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 in- jury produced by said misconduct, which fine, is hereby imposed therefor, and until he shall pay to the said plain- tiff the further sum of dollars to satisfy his costs and expenses of these proceedings, with your fees here- on ; or until the said G. D. shall be discharged by the fur- Jier order in the premises; and for such arrest, im- TO PUNISH mSOBEDIENCB. 341 prisonment and detention, this shall be ■ your sufficient warrant. Given under my hand, at the , the day of ,18 . \ Signature ofjudge.'\ \_Daie.] [Signature of attorney.] 130. 'Warrant of Commitment by a Judge upon Order to Show Cause. Ante, pp. 197, 207. [Title of the Caicse.] [As in " Attachment" form 115, to the (*), then con- tinue ."] And whereas, an order was thereafter made that said C. D. show cause before the said justice why he should not be punished for the aforesaid alleged miscon- duct, which order, with copies of the papers on which it was founded, was duly served on the said G. D., who has personally appeared on the return of said order before the said justice, and after [proceed from the (*), in form, 129 to the end of if}. 131 1 Attachment against Witnesses. Ante, p. 209. [L. S:] The People of the State of New York, to the Sheriff of the county of , Greeting : We command you to attach E. F.,oi , 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, a,-p [thejplace where the court is held], to answer for his mis- conduct in not obeying our writ of subpena to him directed, and on him duly served, commanding him to appear be- fore the Hon. J. J., a justice of said court, on the day 342 FORMS, ETC. TO PUNISH DISOBEDIENCB. of , 18 , at the place aforesaid, and give evidence on the part of the [plaintiff] in certain supplementary pro- ceedings before the said justice, between A. B,, plaintiff, and G. 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 clerh.l [Signature of attorney^ [Indorsed.'] Allowed the day of , 18 . [Signature ofjudgeI\ 13S> Orders, &o., when Frocee£ngs are continned before Different Judges. [ When proceedirigs are conducted lefore different judges of the same court, as in the first district, the presumption seems to ie, that they are regularly continued, and it is for the defence to impeach that regularity. To this effect is Dresser v. Yan 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 proceedings were regularly continued at the time and place named before the Hon. J. J., a justice of the same court. IJSTDEX Abasbokment terminates proceedings as well as order, 43. what is, as held in N. T. Superior Court, 43. Abatement. See supplementary proceedings and, 238. Absence of debtor. See "Adjournments." creditor. See "Power of judge." " Opening defaults." judge, proceedings should not fall, 45. why not, 45. rule in first district in such case, referee, proceedings do not fall, 45. Accounting, by receiver, 175. Acknowledgment of bond of receiver, 144. ADJOTmNMENTa, Judge may make, 41. may do so by a general order posted up, 46. Parties may adjourn, 41. so may their attorneys, 235. but not to office of attorney, 41. what parties cannot adjourn, as held, 43. Beferee may adjourn, 105. may in party's absence, 105. but not indefinitely, 105. what, a good ground for adjournment, 105. Order of, need not be served on party if present, 43. should be, if absent, to bring into contempt, 41, 105. in what case need not so be served, 43. to examine witness, need not be served on debtor, 46. must be regularly made, 41. may be regularly made in debtor's absence, 46. debtor should be notified of adjournment, 46. Admissions by attorney, 235. of contempt, 198. 344 INDEX. Affidavits, amendment of. See " Amendments.'' for costs, 186. " injunction, 178. on motion to discharge person imprisoned for contempt, 210. for order, under sutd. 1, § 292, 9. who must make this affidavit ? 29. must connect himself with the matter, 29. how residence and place of business, or non-residence, to be alleged, 29. how judgment and execution against joint debtors, 30. how facts are to be alleged, 30. what must be alleged when judgment is of court of record, 30. judgment must be truly described, 31. need not allege judgment is for $35, 31. need not state present residence of debtor, 31. same about place of business, and non-residence ? 32. must allege every necessary fact for order from a county judge, in what case ? 32. not so strict for order from Supreme Court justice, 32. what must be alleged, when judgment of inferior court, 32. must show judgment for $25 exclusive of costs, 32. sufficient if this fact appears on face of affidavit, 32. should state judgment was duly given or made, 33. for order under subd. 2, § 292, 61. same as for order under subd. 1, 61. must state where debtor resides, 61. must be satisfactory on two points, 61. is similar to that in non-imprisonment act proceedings, 62. rules of proof for warrant in latter proceedings, 62. on information and belief, no proof, 63. when such affidavit may be used, 63. degree of proof in officer's discretion, 63. fact of property to be clearly stated, 63. property must be described, 63. must be equitable or concealed, 63. if neither, court or judge, no jurisdiction, 63. Ownersldp of property must be shown, 65. what need not be alleged, 65. must show debtor unjustly refuses to apply property on judgment, 65. no jurisdiction when this is not stated, 65. INDEX. 345 Apfidavits, Demand for the property must be alleged, 65. for order under § 294, 93. how and by whom made, 93. what facts to be alleged, 93. residence of third party to be stated, 94. what allegations as to notice to debtor, 94. " " " property or debt, 94. ten dollar clause applies to debt only, 94. for order for delivery of property, 155. " " allowing receiver to sue, 160. " " by court appointing receiver, 173. " to compel person to furnish sheriff with certifi- cate, &c. (§ 236), 240. proceedings as for contempt, 197-9. service of order, 40. for warrant of arrest, subd. 4, § 293, 76. who may make this affidavit, 76. same facts as for the order represented by warrant, 76. what two facts must be satisfactorily proven, 76. facts must be positively sworn to, 77. same facts as for writ ne exeat, 76. same facts nearly as for order of arrest or attachment, 77. what facts to be shown as to property, 77. what kinds of property, 77. fact of concealing, when shown, 78. what may be an unjust refusal, 78. execution returned should be so stated, 78. what facts cannot be stated alternately, 78. Agent may be appointed by receiver, 153. how appointed, 153. Allegations. See " Affidavit." Amendments, court may allow what, 314 judge " ' " " 214. he cannot amend what, 314, 231. may allow bond or undertaking to be amended, 323. interrogatories may be amended, 303. Annuitt, surplus of, may be reached, how, 120. charged on real estate, reachable, 110. Appeals, 330. from judge's order to special term, 331. ' " " general term, 330. order must first be entered, 330. 346 INDEX. Appeals, order, where entered, 230. from ex parte order to general term, 233. may apply to judge who made it, or to special term to vacate, 231. in proceedings under § 294, to what court, 85. from referee, 107, 230. how made, 107. in what cases appeals lie. from order refusing to punish contempt, 233. " " " to appoint receiver, 233. " " " attachment against witness, 232. " " dismissing proceedings, 333. In what cases no appeal, 233. what orders were deemed discretionary and unap- pealable, 233. from irregularities waived, no appeal, 315. who may appeal, 233. assignee of judgment may, 333. representative of deceased, what must do first, 333. who cannot appeal, attorney cannot, 333. debtor cannot in proceedings under § 394, when, 233. order, what, appellate court will make in contempt proceed- ings, 233. in other cases, 383. Appbabance of debtor should be personal, when, 40. some one may appear for him, 41. by attorney, 335. by a party, what it means, 41. Application. See " Motion." Approval of receiver's bond, 144. AppoiNTMEifr of Keceiver. See " Receiver." Abrbst. See " Warrant of" Assignment of property to receiver, creditor's bill, 6. " " may be compelled, 148. but is not necessary of property in this State, 148. Assignee op Judgment may institute proceedings, 18. property in name of creditor, 80. may institute them in his own name, 30. ' may sue out warrant of arrest, 76. may appeal, 233. Attachments. See " Warrant of," to punish contempt. Against property, not after judgment, 242. INDEX. 347 Attachment against property does not abate proceedings under § 294, 98. Attobney and CouKBKii in supplementary proceedings, 234. recognized in, 234. wliat acts of, bind.party, 235. 'wliat acts of, do not, 235. •what papers may be served on attorney, 235. •wliat papers, &c. cannot, 235. BAH, on attachment, 200. Bill. See " Creditor's bill." Bond of Receiver, 143. must give before he can act, 143. •what to contain, and how executed, 144. to -whom executed, 144. how acknowledged or proved, 144. must be approved, 144. penalty in bond, how much, 144. how many sureties, and in -what to justify, 144. Breach of Contract. See " Damages." of Injunction. See " Injunction." Choses in Action. See " Damages." Contempt, proceedings for, 188. nature of, 188. important part of supplementary proceedings, 188. leha may punish for, 189. (1) judge -whose order has been disobeyed, 189. (2) judge -who may continue proceedings, 189. practice in case of continuance, 189. (3) successor in office of judge -whose order has been diso- beyed, 190. (4) Supreme Court justice, -when the proceedings have been, transferred to him from county judge {§ 292), 193. (5) Court for disobedience to order of a judge, 192. But only v^hen proceedings are in an action in the same court, 208. ' (a) C»urt in proceedings under subd. 2, § 292, 103. P)) " for disobedience to subpena, 208. (c) " " to order under § 236, 344. Beferee, misconduct toward, is a contempt toward the court or judge that appointed him, 193. It is similarly punished, 193. 348 INDEX. Contempt. Who may prosecute contempt proceedings, 193. AcU that are thus punishable, 193. Refusal to answer a proper question, 193. " to pay judgment and costs, 193. Violation of injunction, though not duly served, when, 193. Failure to attend on an adjourned day, 194. Acta not punishable thus, 194. inability to state encumbrance on land, 194. " to comply with order, when, 194. other instances, 194. TFAai rmiit he shown, 195. sufficient continuity, 195. Order disobeyed duly served, 195. Other instances, 195. But judge may determine against party's oath, that he can obey order, and punish him, 196. Method of procedure to punish, 196. That prescribed by the Revised Statutes, 196. (1) Misconduct in imniediate view of court summarUy pun- ished, 196. (3) Disobeying order to pay money, 196. What this order should specify, 197. (3) By order to show cause, 197. (4) " warrant of attachment, 197. Copies of moving papers to be served, 197. Proceedings by order to show cause, 197. If party fiiils to show cause, he may be punished forth- with, 197. Also if he admits the acts of contempt, 199. If he denies contempt, matter may be determined with- out interrogatories, 198. By a reference, 198. Contrary views held, 198. Course pursued under creditor's bill, 199. Order to show cause, how served, 199. Attachment, 199. Nature of, 199. Only to bring person into court, 199. May be issued in first instance, 197. Usual course is by notice of motion, or order to show cause, 199. Course in first district is by notice of motion, 199. Copies of moving papers, when may be served, 197. INDEX. 349 Contempt. Upon hearing of motion, wlien ■will attachment be granted, 199. What must be shown to allow attachment, 199. How issued by the Court, 300. What it should contain and recite, 200. In proceedings before judge, how issued, 200. Needs no seal or clerk's signature, 200. Proceedings, title of, 201. " on return of attachment, 201. When only can party be punished, 203. Interrogatories, what to speciy, 202. Within what time to be filed, 302. What remedy has party if not filed, 203. Copy to be served on accused party, 203. Answers, how and within what time, 303. Penalty for failure to answer, 303. To what matter interrogatories to be confined, 20a. Defective, may be amended, in what, 303. All material interrogatories to be answered, 303. How Court proceeds to decide after interrogatories are answered, 203. What proofs may be considered, 203. Reference may be ordered, 203. Proceedings before referee, 203. Witnesses to be produced and examined, 204. Referee's Report, what must contain, 204. Proceeding if accused found guilty, 304. Fine or penalty, how much, 204. To indemnify creditor, for what, 204. Counsel fees may be allowed, 205. What actual losses are, 305. If none, creditor still entitled to hia costs and expenses, 205. imprisonment may be ordered till fine ia paid, &c., 205. criminal contempt, what is, 205-6. " " what penalty may be imposed, 205. " " fine goes to people, 206. excuse of acting under advice of counsel, 305. order of conviction, &c., 206. must be entered when matter before the court, 206. what it should recite, 206. jurisdiction should appear on its face, 306. what it should contain, 206. How fine should be specified, 206. 350 INDEX, Contempt, to -whom fine directed to be paid, 206. proceedings before judge, no order entered, 206. warrant of commitment, 207. what it is, 207. how issued, when proceedings before court, 207. on what founded, 207. jurisdiction should appear on its face, 207. when issued by judge, what it should recite and show, 207. needs no seal or clerk's signature, 207. warrant issued in the name of the people, 207. is directed to what sheriff, 207. rules of contempt, proceedings apply equally to judge and court, 208. rule or order of commitment, defendant may be com- mitted by, 207. witness, how proceeded against, 208. must be punished by court, 208. Tww summarily proceeded against, 209. when attachment issues in first instance, 209. when must proceed by order to show cause, 209. how moving papers to be served, 209. how to proceed in first district when the examina- tion before judge, 209. how in other cases, 210. at bar the same procedure as in other contempts, 310. CoNTDnjANCE of proceedings before another judge, 13. what only is requisite for, in first district, 13. before successor of county judge, 13. " supreme court justice from county judge, 14. under Code, § 404, 14. how notice of motion should run, where continu- ance is authorized, 189. CoNTnnnTT of proceedings, 40. what acts will destroy or preserve it, 41. sufficient continuity to be shown for punishing contempt, 195. not lost by death, retirement or absence of judge, 191. Contract, damages for breach of, is reachable. 111. siwhich so, also, debtor's interest in, for purchase of land, 111. Corporations, no proceeding against, under § 293. may be proceeded against under § 294, 84. who must appear and answer for corporation, 89. , INDEX. 351 Corporations, proceedings under § 294 may be taken on judgments against, 87. foreign corporations especially, 91. ■what property of, may be seized by attachment and execution, 245. how reached, 245. certificate of, may be compelled, S45. Costs. Section 801, 184. who may have, 184. two classes of persons, 184. when allowed, 184. at the close of the proceedings, 184. when might third party have costs, though property be found in his hands, 185. debtor cannot have, unless examined, 185. rule as to compelling creditor to pay costs in the N. Y. Supe- rior court, relaxed, 185. what appears the settled opinion in courts as to eosts, 185. practice at Supreme Court chambers, first district, in respect to costs against creditor, 51. what allowed to creditor as costs, 186. allowance of counsel fee is costs, 186. disbursements should appear by affidavit, 186. what allowed debtor, if entitled to costs, 186. when to be applied for, 186. any time before property is applied upon the judgment, 186. who may allow costs, 186. ' the tribunal that has charge of the proceedings, 186. the court whose officer the receiver is, 187. notice of motion for, should be given, 187. length of notice, 187. how collected, 187. cannot be collected by execution, 187. may be collected by order under § 297, 187. when does court allow costs, 187. Counsel. See " Attorney and Counsel." debtor or third party may have, on examination, 47. mere witness cannot, 47. CoTiRT. Creditor's bill filed in Court of Chancery, 2. cannot entertain proceedings under subd. 1, § 292, 13. may entertain proceedings under subd. 3, § 392, 58. 352 INDEX. Court may entertain these proceedings, no matter where the debtor resides, 59. in what district in Supreme Court creditor must institute pro- ceedings, 58. local court cannot appoint referee to sit outside of its juris- diction, 59. court may exercise its ordinary powers herein, 59. thethe its jurisdiction is presumed, 59. may appoint referee, 103. " make order applying property upon the judgment, 129. •' also appoint a receiver, 140. has the control of the receiver appointed in supplementary proceedings, 140. appoint receiver under i 244, 171. the manner of appointing, 173. may enjoin debtor, 174. allow costs, 186. punish a disobedience of an order of a judge, 193. to what cases this practice is limited, 208. discharge person imprisoned for contempt, 310. amend order or warrant, 214. entertain appeals, 230. vacate or modify ex parte orders, 231. stay proceedings before a judge indefinitely, 233, 234. entertain proceedings under ^ 336, 240. punish disobedience of orders therein, 244. district courts, examination on judgments of, referred, 103. Marine Court, the same, 103. " Creditok. See " Parties." Cbbditok's Bill, course of procedure in, 2. not abrogated by the Code, 177. injunction in, granted in first instance, 3. lien of, on what assets, 3. priority between creditors, how determined, 3. receiver in, appointed as of course, 3. reference to master, to examine debtor and wit- nesses, 4. to obtain an assignment and delivery of property, 3. extent of examination before master, 4. power of master on reference, 5, 103. CeiminaIi Contempt. See " Contempt, proceedings for." INDEX. 353 Damages, right of action for, is reachable property, 111. Debts due the judf^ment debtor may be paid to sheriff, 83. may be reached by proceedings under 4 394, 84. " " applied upon the judgment by ^ 237, 132. but not where debtor is unable to pay, 138. Debt due debtor is reachable property, 108. reachable by order under § 397, 123. or through a receiver, 131 denied^ i» recoyerable only by action, 135-7. but payment of, may be enjoined, 145. a certificate of, may be compelled under § 336, 339. Debtor. See " Parties," Default, in the proceedings, court may open, 59. can a judge open? 333. Delay in procedure discontinues proceedings, when f 43. creditor cannot lie still for indefinite time, 44. he will, at least, lose his priority and benefit of the injunction, 44. Deliteet of property to creditor or receiver may be compelled, 123, 147, 155. debtor not obliged to deliver to any one but receiver, 154. Demland of property to constitute unjust refusal, 65. who may make, 65. how made, 67. to whom should it require property to be given ? 67. duly made, gives creditor priority in the debtor's property, 74. to entitle creditor to a warrant of arrest, 78. by receiver for the debtor's property and money, 153. where to require delivery of projierty to the receiver, 153. not required, before motion to court for receiver under § 344, 172. of money required, precept of commitment, 196. " certificate, for proceedings under § 236, 342. Detekmhtation, whether the debtor has property, 71. " adverse interest is claimed, 125. " accused party is guilty of contempt, 204. " party has refused a certficate, 244. DiSCHAEGB of person imprisoned for contempt, 210. how motion made, 210. DiscoNTrsruANCE of proceedings by abandonment, 336. DiscoTERT, creditor's right to, 49. Disobedience ok Obdebs. See " Contempt, proceedings for." 354 INDEX, Effects. See " Property." ' Errors. See " Irregularities." Evidence. See "Examination." Motion for order under § 397, ie based on the evidence in tlie examination, 138, 155. ■' for receiver is based on the same, 139. on motion to punish misconduct as contempt, 198. " in attachment to punish the same, 203. " for certificate, § 336, 344. referee may be appointed to take and report the evidence, 103. Examination, before master under creditor's bill, 4. extent of it, 4. in proceedings under subd. 1, § 293, 47 " what county, 38. before a judge, how conducted, 47. by referee " " 47. in form of deposition, 47. of debtor and witnesses as on trials of issues, 47. great liberality in correcting mistakes, 47. leading questions to be allowed, 48. of debtor need not be taken, 48. creditor entitled to, 49. debtor cannot stop, by offering to consent to a receiver, 49. extent of, 51. into the characters of transfers and adverse claims of property allowed, 51. witness cannot stop, by claiming to own it, 51. creditor, remediless without this right, 54.~ may extend, how far back ? 55. cannot extend subsequent to commencement cf pro- ceedings, 55. generally, how conducted f 55. what questions are pertinent, 56. once closed, how to be resumed, 48. in proceedings under subd. 3, § 293, 69. in what county, 61. confined to specific property, 69. debtor need not be examined, 70. extent of, 70. why should be rigid in these proceedings, 71. in proceedings under § 294, 95. INDEX. 355 Examination, extent of, 95. how rigid should be, 97. witnesses may be examined, 99. in proceedings under § 236, 243. is limited, 243. on warrant of arrest, 81. where to be taken, 80. same as order under subd. 2, § 292, 81. of wife cannot be taken, 100. of debtor and witnesses in contempt proceedings, 203. in order to show cause in same proceedings, 198. Execution, for creditor's bill, must have been returned, 2. no bill filed till expiration of time limited for its return, 2. for proceedings after return, subd. 1, § 292, 21. must issue out of court of record, 21. to sheriff of what county ? 21. when to a coroner ? 21 , must be against property, 21. to collect a definite sum of money, 21. must be valid, 22. if issued without leave, where necessary, irregular, 22. irregularity is personal — may be waived, 22. may have been issued before the Code, 22. • returnable in sixty days, 22. cannot be made returnable in less time, 22. may be returned within sixty days, 23. returned, must be before proceedings can be taken, 22. return of, conclusive, 23. can only be impeached by direct motion, 24. in what courts this is the rule, 24, may be set aside as void when procured by creditor, 23. in proceedings under subd. 2, § 292, 60. same and issued to same comity as for proceedings under subd. 1, 60. still remains in sheriff's hands, 61. for proceedings under § 294, 91. to what county may issue, 91. for proceedings under § 336, 239. as far-reaching as the attachment, 240. for warrant of arrest, 76. same as for the order it represents, 76. second execution no objection to proceedings, 238. unless levy made on sufficient property, 238. 356 INDEX. Facts to be alleged in proof, for order before return of execution, subd. 1, § 292, 39. for order before return of execution, subd. 2, 61. " " against third party under § 294, 93. " " to compel giving a certificate, § 236, 240. " warrant of arrest, subd. 4, § 293, 76. referefe may be appointed to find and report, 103. ■what facts entitle creditor to injunction, 178. to be alleged on motion to discharge prisoner 7 210. Funds mixed with debtor's, pass to receiver, 113. Goods. See " Property." Injunction in creditor's bill issued in first instance, 8. in supplementary proceedings, 177. against debtor authorized by § 398, 177. " third party before examination, 177. " " " after " 177. nature of, 178. incident of proceedings, and continues and falls with them, 239. but not an essential part thereof, 44. granted of course in first instance as in creditor's bill, 178. facU which entitle creditor to, 178; when granted, 178. who may grant, 178. how long it continues to operate, 178. when, and when not, dissolved, 179. What cLcts dissolve it, 179. proceedings restored revive it, 179. is independent of supplementary •rder, 179. not necessarily void, because order is, 179. but void, when proceedings are, 179. voidable, when proceedings irregular, 179. third persona cannot be enjoined under § 299, unless proceeded against imder § 294, 179. under § 399, when granted, 180. by whom, 180. granting is discretionary, 180. how long it continues, 180. may be modified or dissolved, 180. how this may be done, 180. what it restrains, 180. INDEX. 357 Injunction, agaiust third party what it restrains, 180. debtor " " " 181. chancery rule 195 is the guide, 181. violation of, by debtor, what is, 181. what reetraining power injunction has, 183. " is no violation, 182. by the court, under § 244, 174. under § 299 requires no security, 180. service of, how made, 183. on corporation, what it binds, 183. what is enough to bind party, when not duly served, 183. when punishment for breach is discretionary, 183. served on third person not a party, of no effect, 183. Injury to property, a right of action for, is reachable. 111. caused by a party's misconduct to be compensated, 204. Interest, adverse, in property, recoverable only by action, 124. claimed by a third person, meaning of this, 125. to be valid must antedate receiver's appointment, 146. iBREauLABiTT, definition of, 211. renders proceedings voidable only, 213 court may amend, 214. judge cannot, except one of practice, 314. in execution, what is, 22, 25. (yrder for party to appear and answer is irregular, when? 34. " irregular or erroneous, not to be disregarded, 313. writ of attachment, when irregular ? 35. how to get rid of irregular order or proceeding, 213. may be waived, 23, 25, 211. how waived, 22, 25, 211. waived, proceedings become complete, 212. objection to, when to be taken ? 313. " is a personal right, 213. a third person cannot raise it, 22, 25. rule, whether a defect is an irregularity, 213. Judgments for proceedings under eubd. 1, § 293, 19. must be for payment of money, 19. if of inferior court, must be for $25, exclusive of costs, 19. against joint debtors where all were not served, 20. where the interest and costs only are unpaid, 30. decrees of late Court of Chancery, 31. 358 INDEX. JcDSMENTS — not judgments of a federal court, 20. nor judgments against corporations, 18. nor when summons served by publication, and debtor did not appear, 31. for proceedings under subd. 3, ^ 393, same as under subd. 1,59. for proceedings under i 394, same as under 4 393, 90. and in first district, also judgments against corporations, 90. on whicli court may appoint receiver under ♦ 344, 173. for warrant of arrest, same as for order, 76. on payment of, creditor should be required to give satis- faction piece, 123. eq^uitable lien on real property fraudulently conveyed, 170. the lien of, on real property, lost by resorting to supple- mentary proceedings, (?) 169. Judges. Who may entertain proceedings under subd. 1, § 392, 13. JuDQE may acquire jurisdiction of debtor by affidavit and order, &c., 311. may acquire jurisdiction of debtor by voluntary appearance, 313. may appoint receiver on a voluntary appearance, 312. jurisdiction exclusive, and continues how long ? 13. no other judge at chambers can interfere, 13. this exclusive jurisdiction has exceptions, 13. of Supreme Court may entertain proceedings, on what judg- ments and decrees, 14. may make order anywhere in the State, 14. of the N. T. Supei-ior CoMrf, on what judgments? 15. the Buffalo Superior Court ? 15. ofK T. Common Pleas? 15. a county judge ? 16. the Recorder and Mayor of Troy ? 16. the Recorder of Oswego ? 16. judge of the City Court of Brooklj-n ? 16. recorders of cities, and mayors of Mayor's courts ? 17. absence of, from place where proceedings to be held should not discontinue proceedings, why ! 45, 339. io7u> may entertain proceedings under subd. 3, § 393, 58. where he must reside, 58. w7u> holds the court, need not live in debtor's county ? 58. nor who continues the proceedings, 58. cannot proceed against non-resident debtor, 59. wJio may make order under § 394 ? 93. ' INDEX. 359 Judge, any judge within his jurisdiction may, 93. ■who may make order under § 236 1 340. viTw must appoint receiver ? 140. who to make order requiring the delivery or payment of money, &c., to receiver or creditor ? 158. wlw to grant injunction ? 178. who to allow costs ? 186. who may punish as for contempt ? 189. may continue proceedings to punish, 189. " " " and punish disobedience of an order of his predecessor, 190. who may discharge from imprisonment as for contempt ? 310. w7w may issue warrant of arrest ? 79. the same judge that may make the order, 80. powers of, general principle stated, 316. " " in commencing proceedings, 317. adjourning and staying proceedings, 318. may adjourn proceedings in party's absence, 43, 338. " appoint a new referee, and order debtor to appear before him, 239, 145. in questions of residence and place of business, 319. the rule in all such cases stated, 320. may inquire into existence of judgment, &c., 330. may determine questions of regularity, 321. his exclusive control over proceedings, 332. to open defaults and restore proceedings, 333. to punish disobedience of orders, 336. power of a judge in first district, 319. Tw power to allow amendments except in matters of practice, 214. nor to review a judicial determination, 331. or the merits of the original action, 221. or to inquire into the correctness of the judgment, &c., or the sheriff's return, 231. may, perhaps, allow bond or undertaking to be amended, 333. JcBisDiCTiON. See " Judge, Power of;" " Court." third person, it seems, may object to, 134. Jurisdictional Defects, definition of, 311. cannot be waived by consent, 311. objection of, may be taken any time, 315. when may be taken in collateral proceed- ings, 315. 360 INDEX. Justice. See " Judge." judgment of, must be $25, exclusive of costs, to support pro- ceedings, 33. examination on sucli judgment referred in N. Y. Common Pleas, 103. Land. See " Property." Liens, in creditor's action, how created ? 165. creditor's iiU filed created lien on equitable property only, 3. commencement of supplementary proceedings creates none, 163. none acquired, till receiver appointed, 163- nature of receiver's lien, 141. extent of his lien, 141. what acts or omissions ■will impair receiver's lien, 141. while unimpaired, all subsequent interests are subject to this lien, 141. receiver taking property subject to lien, 156. of the order made under § 297, when attaches, 165. of judgment on real property lost, when ? 169. receiver takes property subject to wh^t liens, 170. Master in Chancery, reference to him to appoint or select a receiver, 3. examined debtor and witnesses, 4. decided what property debtor had, 5. directed him to deliver it up, 5. his power in the proceedings, 4, 108. practice, when party disobeyed master, 199. Maxim in construction of statutes, 39. Money, payment of, to whom under § 297 ? 133. order to state within what time to be paid, 197. creditor to give a receipt on receiving, 123. Motion for attachment, 199. " costs, 187. to discharge from imprisonment, 210. " dissolve'injunction, 180. for order to deliver up property, 128. " " to punish for contempt, by order to show cause, 197. " receiver, 139. " " may be made any time during examination, 139. is made on the evidence taken, 189. may be on debtor's consent, 139. if creditor riot ready to make motion should get adjournment, 188. INDEX. 361 Ne exeat, issued under like circumstances as warrant of arrest, 76. in what cases issued, 76. Non-Impkisonment Act, proceedings under, similar to those under 6ubd. 3, § 392, 57. the property reachable thereby, 63. thei)roo/for the warrant, 63. " unjust refusal, 65. " demand, who can make, C5. how made ? 66. what is not an unjust refusal ? 66. certified copy of affidavit to be served with warrant, 69. procedure on return of warrant, 69. the decision of the case, 71. priority obtained by the demand and the is- sue of the warrant, 74. priority determined by the date of demand, 74. no person can knowingly take the property after demand, 74. but no lien is created by the proceedings, 74. diligence required to preserve priority, 74. Notice, a third person not bound to take notice of supplementary pro- ceedings, 163. but is after receiver is appointed, 163. injunction served on him may be actual notice, 168. actual notice may subject his rights to those of creditor, 163. " " what effect, though no bill was yet filed ? 163. " " in proceedings under non-imprisonment act, what effect? 74. of motion for attachment as for contempt, 199. " " " " on whom to be served, 330. « " " costs, 187. " •■ " order under § 397, 138. " " " this order in proceedings under § 394, 138. " " " receiver under § 398, 136. length of, 136, 138. how served, 137. may be served on attoniey, 136. to third party, if required, how given ? 139. need not be given to a stranger, 138. no provision for notice to plaintiff in creditor's action, 138. ' of proceedings under § 394 need not be given to debtor, 88. 362 INDEX. Notice, in such cases notice is in judge's discretion, 87. property may be applied on judgment witliout notice, 87. receiver may be appointed without notice, 137. need not be given if party is present, 135. giving notice of motion not a jurisdictional necessity, 223. referee appointed without notice, 102. Oath, administered to debtor, third party, or witness, 99. Ordek, supplementary under subd. 1, § 392, 33. what title it should bear, 83. if proceedings are special proceedings, what title, 84 parties, how styled, 34. where made, 34. what it should recite and contain, 34. what it must require, 34. what direction in it to debtor, an irregularity, 34. when a nullity, 35. may combine purposes of several sections, 36. how served ? 36. where served, if proceedings in the action, 36. where served, if they are special proceedings, 37. Xn-oof of service by affidavit, 40. certificate of sheriff no proof, 40. waiver of proof, what is, 40. creditor entitled to the order, 49. in these proceedings no order can be made against third per- son, 86. before return of- execution (subd. 2, § 292), 68. the making of, is in discretion of court or judge, 61. similar to order under subd. 1, § 292, 68. what it should recite, 68. what require debtor to do, 68. pn what recite, if made by a judge, 68. how served, when made by judge, 68. " " " " " court, 68. where served, 69. copy affidavit should be served with it, 69. against third pa/rty, § 294, 95. what judge may malce this order, 92. service of, 95. for proceedings under § 236, 343. what to contain ? 343. of reference, 103. INDEX. 363 Order is discretionary, 103. when made ? 101. ■what it may empower referee to do, 103. on Miior to produce books, &c., 100. applying property upon the judgment, § 397, 132. what to contain, 133. in what cases only can this order be made, 134. income of a trust estate cannot be reached by order, 118. made on notice to party to be affected, 138. unless he is present, 138. appointing receiver by judge, 130. " , by the court, under § 344, 173. made on notice, 136. " " the evidence in the proceedings, 139. who to make order of appointment ? 140. must be filed and recorded, where ? 130. upon debtor or third party, to deliver property to the receiver, 147. when to be applied for, 155. what the order should specify, 155. who may make it, and on whose motion ? 158. when only can order be made against third party ? 147. no such order to be made unless party can obey it, 156. granting leave to sue, how made, 160. lien of order under § 397, 165. of injunction. See " Injunction.'' for costs. See " Costs." enforcement of, 188. see " Contempt, Proceedings for." to show cause for punishment of contempt, 197. discharging from imprisonment for contempt, 310. irregular or erroneous. See " Irregularities." how to be served to bring into contempt for disobedience ? 336. appeal from. See " Appeals.'' title of, in proceedings under i 394, 95. " « 336, 340. court may commit as for contempt by order, 307. service of, to bring into contempt, 336. general rule is personal service, 336. exceptions to this rule stated, 336. what orders must be personally served ? 337. when will judge require personal service 1 183. 364 INDEX. Ownership of property in debtor to be shown for order under subd. 3, § 293, 65. a jurisdictional fact, 71. possession of property no presumption of, 124. must be clearly established for order under § 297, 124. Papers in proceedings, where to be filed, 123. ^ DUTIES to suplementary proceedings, how may be styled, 34. who may institute proceedings ? 17. the creditor, in whose favor the judgment is rendered, 17. assignee of judgment, 18. executor or administrator of creditor, 18. same in proceedings under subd. 2, § 292, 59. " " " " §294,89. " " " bywarant, 76. " " " to appoint receiver by the court under § 244, 173. debior, or person against whom proceedings are taken, 18. not against a corporation under § 292, 18. " " debtor under arrest, 19. " " a foreign consul, &c., 19. joint debtors, how proceeded against ? 30. residence of debtor, how defined, 26. place of business, what is ? 26. when debtor should not be subjected to further examination ? 50. no proceedings by judge against non-resident debtor under, subd. 3, § 292, 59. but may, before court, 59. debtor's absconding does not defeat proceedings, 229. nor his non-attendance, pursuant to order, 233. proceedings may be had, and his property applied, in such case, 223. third party, under § 294, 89. corporation may be such party, 89. clerk of court or chamberlain cannot be a party, for what pur pose ? 89. wife of debtor cannot be, 89. third party may have counsel, 86. how far protected in paying money by order ? 129. third party, rights of, cannot be determined herein, 1, 124, 5. will not be compelled to deliver up property, when f 145, 156. nor to pay debt or money, when ? 125, 138. INDEX, 305 Parties, party, -who may appeal, 333. " " " prosecute for contempt procceedings, 193. " how discharged from imprisonment for contempt, 310. Patment of debt to sheriff by third person, 83. if debt lias been assigned, cannot pay it to sheriff, 84. amount of rerdict for tort cannot be paid, 84. judgment for damages to exempt property payable to sheriff, (?) 84. of money. See " Money.'' Petition of receiver for leare to sue, 160. Pbesdmption of payment does not operate against proceedings, 238. Priobitt among creditors in creditor's bill, 2. in proceedings under non-imprisonment act, 74. determined by date of demand of property, 74. but demand must be followed up by warrant, 74. lost by want of diligence, 74. in supplementary proceedings, 165. deteripined by date of commencing them, 165. right to, determined on motion, 167. commencement of proceedings, what is 7 167. date of demand determines priority in proceedings under subds. 3 and 4, § 293, (?) 74, 83. between proceedings and creditor's actions, 167. same rule in regard to the debtor's property, 167. but not so, as to alienated property, 187. the rules in such cases, stated, 168. as to assets from property fraudulently transferred, 168. subsequent creditors may share in such assets, when ! 168. lost, if proceedings not diligently followed up, 166. reward of diligence merely, 168. in real property, 169. lien of judgment lost, when ? 169. fVom what date receiver's title vests, 169. PRocBDimB, method of, to punish as for contempt, 198. Proceedings, Supplementary, definition of, 1. substitute of creditor's bill, wherein 1 1 wherein superior to creditor's bill, 7. the different provisions of, compared, 158. object of, 1. nature of, 8. proceedings in original action, 8. 366 INDEX. Proceedings, Supplfmentakt, held to bo special proceedings, 9. more than mere process like execcu- tion, 9. capacity of judge who acts in them, 9. title of, 9. kinds of, 10. not abated by statute of limitations, 238. i?iose under subd. 1, § 393, are con- ducted at chambers, but not ordi- nary chamber business, 12, 17. in what county instituted, 28. not necessarily, where debtor then re- sides, 28. or where he has a place of business (?) 28. a justice of the supreme court may in- stitute anywhere in the State, 14. any part of proceedings, except exam- ination, may be had before him anywhere in the State, 28. within what time after Judgment ren- dered ? 26. " " " " execution re- turned, 26. Proceedings on return of order, 40. parties to wait a reasonable time, 40. may then take the other's default, 40. how default taken, 40. debtor to attend in person, 40. but some one may appear for him, 40. may be conducted throughout in debtor's absence, 223. order of adjournment to be served on him, 41. debtor to attend county judge at court-room when he holds court (?) 41. may be discontinued by abandonment, 43. see " Continuity ;" " Adjournments ;" " Delay ;" " Ab- sence of Judge, &c. ;" " Examination.'' tJione under subd. 2, § 292, 57. nature of, statute execution, 57. may be had before the court, 58. also be'fore the same judges as under subd. 1, 58. but he must reside in debtor's county, 58. INDEX. 367 Proceedings on return of order — same as und#r subd. 1, 69. see " Examination ;" " Determination ;" " Relief;" " Re- ceiver ;" " Priority." those bv warrant of arrest, 75. substitute for tliose by order, 75. on return of warrant, same as on order, 80. debtor to be discliarged if facts of affidavit are not prov- ed, 83. will it be enough if concealment is proved ? 83. but his property, if any, may be disposed of as on or- der (?) 83. tliose under § 394, 84. nature of, 85. special in their nature, 85. bring third person into court, 85. summary remedy against third persons, 86. should be adopted in all proper cases, 86. when they may be instituted, 98. may be instituted though the property is attached by another creditor, 98. how those under %% 393 and 394 are related, 86. view held in country districts, 86. " first district, 87. notice of, to the debtor, not necessary, 87. may sometimes be advisable not to give notice, 87. see " Parties " ; " Judgments " ; "Executions." the judge who may institute proceedings, 93. see " Judge." proof for order. See " Affidavit." the order. See " Order." Pkoceedings on return of order, 95. examination may be taken in debtor's absence, 95. extent of examination, 95. property discovered, how applied, 97. when interest claimed or debt denied, 97. void, if debtor is dead when they are taken, 98. in aid of attachment or execution, % 336, 339. in what cases applicable, 389. what must be shown for order, 340. PRocEEDiNa on return of order, 348. see " Determination " ; " Contempt." PKOCEEDiNa against foreign corporations, 344. by referee. See " Referee." to reach property by order under % 397, 133. 368 INDEX. Proceeding, see " Order " ; " Property." appointment of receiver, 180. see " Receiver." to enjoin. See " Injunction." for costs. See "Costs." to enforce obedience to orders, 188. see " Contempt, proceedings for." PKOCBEDiNGa to reach after acquired property, 115. second or further proceedings, how obtainable, 236. Pkocebs of subpena in crediior's bill, 2. supplementary proceedings, not merely, 9. of commitment for contempt, 206. what to contain and recite, 307. order of commitment is, 207. Pbopekty wliich may be reached, 108. what could be reached by a creditor's bill, 109. the same is reachable by proceedings after return of execu- tion, subd. 1, §232, 109. what only can be readied before return of execution, 108. an interest as next of kin may be reached, 109. so an interest in contract to purchase real estate. 111. property bought with another's money, but in debtor's pos- session, may be taken, 109. 60 rents and profits of real estate sold under execution, 109. " right to redeem real property, 110. " " of courtesy, 110. " " ■• dower, 110. property out of the State is reachable. 111. choees in action, being assignable, are reachable, 111. damages to real propert}' also, 113. funds mixed with debtor's, also, 113. joint property, also, 113. Propektt which cannot be reached, 113. exempt from execution, 113. BO a right of action or judgment for injuring it, 114. so insurance, money for, 114. so earnings within six weeks, 114. fi'om what time this dates, 114. what must be shown to exempt earnings, 114. all other earnings reachable, 115. Property acquired since proceedings begun, cannot, 115. when money earned, though not payable, may be reached, 1 15. money payable on a contingency not i-eachable, 116. so property fairly assigned, 116. INDEX. 369 Peopbrtt, so right of action for personal tort, 116. " " " general injury to debtor's estate, 116. resting in courtesy, 116. so a watch, as necessary household furniture, 117. so a bond and mortgage, upon which another has a superior equitable claim, 117. trust property not reachable, 117. title to it and income, is in trustee, 118. and remains, though he delivers the income to the receirel by order of court, during the litigation, 119. what interest a oestui que trust has in such, 117. surplus income may be reached, 118. but not by order — by receiver and action, 118. trust estate for married woman, for what debt surplus in- come may be reached, 119. trust estate of personal property, follows same rules, 119. benejkial interest in trust estate, reachable, how ' 120. may this interest be reached through receiver ? 120. surplus of annuity is reachable, 120. whole annuity reachable, when ? 121. resultant trust may be reached, 131. so when cestui que trust has control of trust, 121. so when cestui que trust is also trustee, 121. but what trust not reachable, 121. what property for proceedings under subdivisions 2 and 4, § 293, 63, 77. what money or property reachable by order ? 134. must be of a liind that can be delivered, 137. when receiver entitled to possession of, 145. what cannot be delivered to him, 145. delivery, how compelled, 147. fairly transferred by debtor, receiver no interest in, 150. fraudulently transferred, what interest in, 151. receiver taking possession of, 154. " " property subject to lien, 156. see " Liens ;" " Priorities." Eeceipt to be given when money or property is delivered up, 133. Receiver, in creditor's bill, how and when applied for, 3. how appointed ? 3. that debtor had no property, no objection, 3. in mpplementary proceedings, 130. in what cases? 131. 370 INDEX. Receivbk, ■what is no answer to a motion for! 135. when apppointed, 135. see " Notice ;" " Motion." who must appoint ? 140. fraud in appointing, 140. lien on debtor's property, 141. when property vests in him, 141. with what he becomes vested, 143, 149. from what time his title dates, 141, 3. after appointment, no action can be brought by subsequent creditor to set aside fraudulent mortgage, 161. from what time title of his successor dates, 143. ■when entitled to possession of property, 143, 145. see " Bond." effect of not giving bond, 143. when need not give security, 144. cannot have possession of what property ? 145. reason of the rule, 146. but may have injunction, 145. how may he get possession ? 146. delivery of property to, see " Delivery," and " Property." " of property, how compelled ? 147. assignment of property to, see " Assignment." office of, 148. powers of, 149. as to property fairly alienated by debtor, has no more right to, than debtor, 150. as to property fraudulently alienated, has but the right of the creditor, 150, 151. that is, the right to impeach the transfer, 150, 151. his duties, 151. is to serve notices and orders, on whom ? 153. where to demand the delivery of property to him ? 153. may appoint agent, see " Agent." how to take possesion of property, 154. " " " property subject to lien,-156. as to bringing actions, and liability for costs, 159. should obtain leave to sue, and how obtained, 160. can he maintain action against trust estate ! 130. his privileges, cannot be sued without leave, 160. may be made party to set aside fraudulent mortgage, 161. was enjoined from selling property ■without order obtained on notice, 161. INDEX. 371 Rkceitek was enjoined from interfering with an action, 161. how he is to apply assets to payment of debts, 161. see also " Order ;" " Judge." in proceedings under subd. 3, § 393, 73. special, in what cases appointed, 133, 163. his office and powers, 163. is an officer of court, 163. under whose control a receiver is, 140. appointed by the court, 171. how appointed ? 173. when vested with debtor's property t 174. one only to be appointed, 139. how priority determined if several appointed, 139 not appointed in creditor's bill, when f 6. ' should not be appointed herein, when ? 134. not appointed before return of execution, 133. Receivership, generally, 175. not a means of discovery, 49. often made a refuge for dishonesty, 50. ' Re-Examhtation, before master in creditor's bill, 7. in thes6 proceedings, 48. Rbfebkb, his appointment, 101. by whom appointed, 103. appointed without notice, 103. appointment discretionary, 103. when appointed in N. Y. Superior court, 103. in N. Y. Com. Pleas, appointed on judgments of what courts ? 103. power of, 103. may be appointed to report evidence or facts, 103. " " " to issue summons to debtor, 103. summons, how issued and served, 104, 338. may allow corrections to examination, 47, 106. cannot punish misconduct, 105. nor determine any questions, except as to the examination, 319. may adjourn examination, 105. but not indefinitely, 105. may do so in debtor's absence, 105, 338. what is good ground for adjournment, 105. may continue proceedings, and examine witnesses in debtor's absence, 338. absence of, examination falls through, 45. 372 INDEX. Referee, but if appointed with power to issue summons, will it Ml ? 239. when appointed by a judge, has not power of master in what ? 104. but appointed by court, he has, 104, 173. proceedings before, how conducted ? 105. residence of, 106. may be appointed in any county by supreme court justice, 106. ' but cannot sit outside of jurisdiction of the appointing power, 106. report, to whom certifled ? 106. when appointed to ascertain facts, what to report ! 103. filing report, 106. appeal from, how made ? 107. Reference, in creditor's bill, to a master, 3. to select or appoint receiver, 3. see " Master." extent of examination on, 4. in supplementary proceedings, 101. nature of, 103. ordered by court to appoint receiver, 173. the effect such order has upon the debtor's property, 174. ordered in contempt proceedings, 198. " on return of attachment, 203. Rbldsf what may be granted in proceedings under subd. 3, § 393, 73. when can no relief be granted ? 73. property transferred after demand may be recoverable by re- ceiver's action, 73. what must be sought in court ? 331. Remedies, concurrent, 338. Return of execution, see " Execution." oi warrant of arrest, see " Warrant." '■ " " attachment, see " Warrant of Attachment." Seal, to warrant of attachment, or commitment, when issued by court, 200, 207. none is required when these warrants are issued by a judge, 200, 207. none is required to a warrant of arrest, 79. 344 it It S93 it tt 293 11 tt 294 <( (1 295 u » 296 n a 297 u it 298 tt It 299 (( t. 300 tt tt 301 u ti an?. It It INDEX. 373 Section 236 of the Code of Procedure, 339. 171. " 10. " " 83. 84 " " 99. " 101. " " 133. 130. " " 176. 101. " " 184. " 108. SiGNATDBE of clerk not required to warrants, when issued by a judge, 200, 307. Stat of Pboobedings, 336. will be granted, when ? 237. appeal from judgment does not, 237. who may grant ? 337. stay on execution, no stay under § 294, 238. Testeiont of debtor may he rebutted, 48. TiMB, when proceedings after return of execution may be taken ? 36. " " against third party? 98. Undebtaklptg, debtor may be required to give, when ? 81. Waivbh. See " Irregularities." Wabkant ot arrest, subd. 4, § 393, 75. nature of, substitute for order, 75. improper to accompany it with order, 76. aflSdavit for, must be positively sworn to, 77. based on same facts as order it represents, 76. between same parties, 76. what judge may issue ! 79. may it be issued against a female ? 76. based on similar facts as writ of ne exeat, &c., 76. must contain what recitals and directions ? 78. how issued, 79. issued in name of people, 78. directed to sheriff of any county, 80. issued without seal of court, 79. no security required before issue, 78. 374 INDEX. ■Warbant, irregularity in return, what is ? 79. return, and continuance before another judge, 80. returnable, not before referee, 79. procedure on return of warrant, 81. see " Proceedings." of attachment, a mode of bringing party into court, 199. how and when issued, 199. if by the court, how ? 200. if by a judge, how ? 200. its recitals and directions, 200, 1. see " Contempt, Proceedings for." of commitment, 207. its recitals and directions, 207. how issued by the court, 207. " by a judge, 207. Witnesses, how compelled to attend and testify, 99. by duces tecum subpena, 100. wife of debtor, cannot be, 100. commission cannot issue to examtue out of the State, 101. on what points witness may be examined, 47, 51. may be examined in proceedings under subd. 2, % 293, 70. " " " " " by warrant, 81. " " " " " under § 294, S9. cannot be examined in proceedings under § 236, 244. how punished for disobeying subpena, 208. WoMAH, married, for what debts only may her trust interest "be reached ? 119. Writ, see " Warrant." rN"DEX OF FOEMS. Acknowledgment — of execution of undertaking by parties, . , . , 371 " " " witness 273 Adjournment — indorsed on order by officer 365 by consent, 266 Affidavit — of costs and disbursements, 273 of ?iora-atten(tonc« of debtor, &c., pursuant to order, . 333 'b^ plaintiff tor order ot examination after execution re- turned on judgment of Supreme Court, . . . 346 by any one " " " same court, . . 247 " " " " any court of record, 348 " " " inferior court, . . 249 " " " " when assignee sub- stituted, . , 250 " " " " before execution re- turned, . . 353 " [ " " for warrant of arrest, . . 355 " " *)rder to examine third party, . . 357 o{ receiver, tliat a party refuses to deliver property, 397 " to liis account, 313 of senice of notice, for appointment of receiver, " . 289 " order to show cause why a receiver should not be appointed, 289 •' notice of motion, 376 " " same on attorney, .... 376 " " " by mail, 277 " order for examination, 259 " " to produce boolts, &c., . . . 263 " " pay money 316 " " " same, by third person, . . 317 « " deliver up property, . . .321 376 INDEX. Apfidavit — of service of order to deliver same, by third person, . . 333 " subpena to testify 363 " summons to attend before referee, . . . 359 of mfficiency to undertaking, under warrant of arrest, . 371 " receiver's bond, 393 Agent — appointment by receiver ' . 394 AlSfSWERS — to interrogatories 334 Appeotal — '. of receiver's bond by judge, 293 of undertaking given on arrest by warrant, . . . 273 Attachment — affidavit for, see " Affidavit." alias and pluries, 333 issactZ by a judge at chambers 328 " " " under seal of court, . . . .380 notice of motion for, see " Notice." order for, see " Order.'' " to show cause why not to issue, .... 835 against witness 341 writ of; indorsement, &c. 326 sheriff 's return to, ^ 337 Bond — on attachment, 330 of receiver, with security 293 " without " . .