HUBBELL, TAYLOR. GOOOWIH, NIKON ^ HARGKAtR 
 
 31 EXCHANGE ST., 
 ■■:■: ', , ROCHESTER. N. Y. 
 
PRACTICE 
 
 ^^SSELL. TAYLOR. GOODWIN KFN6065JB81 
 
 Cornell University Library 
 
 -9/ EXOHANQE 
 ROCHESTER, n\ 
 
 Practice in„ 
 
 iroceedings supplementarY to 
 
 3 1924 022 885 390 
 
 PROCEED! i> US 
 
 SUPPLEMENTARY TO EXECUTION 
 
 WITH 
 
 TABLE OF CASES AND FORMS 
 
 fc«e>- 
 
 OEO. TT. BRADJSTER 
 
 ALBANY, N. T.: 
 
 W. C. LITTLE & CO., 
 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 1894. 
 
Mnf% 
 
 Entered, according to act of Congress, in the year eighteen hundred and njnety-f onr 
 
 By GEO. W. BRADNER. 
 
 In the office of the Librarian of Congress, at Washington. 
 
PREFACE. 
 
 • When a new work is offered to the public, and especially 
 when there are existing works upon the subject, it is 
 expected that the author will state the reason which in- 
 duced the publication. Eadical differences exist between 
 this work and its predecessors. The rules of exclusion of 
 overruled and obsolete decisions and cumulative citations 
 in law-book making are hardly less important than those 
 of inclusion, and on this point the practitioner will find this 
 work of value. The decisions of the courts during the 
 years 1889-1894, inclusive, have worked great innovations 
 in the practice in proceedings supplementary to execution. 
 The legislature has interfered for the putting an end to 
 some disputed questions. Thus, in 1894, sections 376, 382 
 and 3017 of the Code of Civil Procedure were amended in 
 respect to judgments of courts of inferior jurisdiction, 
 where a transcript is filed with a clerk of a court of record. 
 Law books on the practice in proceedings supplementary 
 to execution owe their bulk in a great part to the practice 
 in contempt proceedings, which is a separate and distinct 
 proceeding. But this is necessary, from the fact that 
 all orders in supplementary proceedings have to be en- 
 forced by contempt pi'oceedings. Practice in supplemen- 
 tary proceedings points out in what manner the various 
 steps are to be taken to obtain orders, and practice in con- 
 tempt proceedings how those orders are to be enforced. In 
 attempting to give an outline of the practice in proceedings 
 supplementary to execution, we start with the fundemental 
 principle that statutory proceedings must be strictly 
 pursued, and that any material variance from the letter of 
 the statute is fatal. Mere number of citations of cases is 
 not the only nor the'chief test of value in a law book, and 
 the author has in this work carefully ruled out those that 
 are clearly obsolete. There is much of the old practice 
 which has become obsolete, and it is, consequently, omitted. 
 
iv Preface. 
 
 No attempt has been made to state the old practice. Of 
 course, there are, and there will continue to be, disputed 
 and doubtful questions under these proceedings for 
 decision by the courts; and to avoid all error, and to prevent 
 any omission of valuable citations, is not the lot of any 
 author. 
 
 In order to add to the utility of this work, we have used 
 the familiar, but always serviceable, device of placing a 
 table of contents at the head of each chapter, and sub- 
 dividing the context and giving the text at the head of each 
 subdivision. 
 
 The plan followed in this work has prevented the intro- 
 duction of long critical dissertations on controverted points. 
 A continuous system of citations gives the reader the 
 means of verifying by their sources all the propositions of 
 the text. In these citations I have strictly confined myself 
 to the leading cases, I mean to the latest cases in the 
 courts of last resort. I believe that I have neglected, 
 among modern authorities, no source of information. 
 Thanks to the thorough scrutiny by the courts of which the 
 questions of practice in proceedings supplementary to exe- 
 cutibn have been subjected for the ten years last past, a 
 problem that would formerly have been deemed impossible 
 has reached a solution which leaves room for much un- 
 certainty, but which is amply sufficient for the demands of 
 the practitioner. All we propose to do is to collate the 
 work of the legislature and that of the courts and judges, 
 and put it into a concise form for the use of the profession. 
 This includes proceedings for the appointment of receivers, 
 and appeals from orders in the different proceedings. 
 
 Geo. W. Bradnee. 
 4.ugust 18, 1894,. 
 
TABLE OF CONTEKTS. 
 
 II. 
 
 CHAPTER I, 
 PRACTICE IN SUPPLEMENTARY PROCEEDINGS. 
 
 PAGE. 
 
 Of Proceedings Supplb- 
 
 mbntart to execution. 1 
 
 1. Nature of 1 
 
 3. Object of 1 
 
 3. Lien when no receiver is 
 
 appointed 5 
 
 4. When no lien attaches. . 7 
 What Statutory Rights 
 
 Cannot be enforced 
 
 BY 7 
 
 6. Surplus premiums 8 
 
 III, 
 
 IV. 
 
 FAOE. 
 
 6. Surplus income of trust 
 
 funds 
 
 7. One paying considera- 
 
 tion for lands conveyed 
 to another 
 
 8. Judgments against cor- 
 
 porations 
 
 Concurrent Reminders. . . 
 
 Foreign Ministers, Con- 
 bulb, etc 
 
 Tax— Proceeding to Col- 
 lect 11 
 
 8 
 
 CHAPTEE II. 
 
 JUDGMENTS. 
 
 PAGE. 
 
 I. Judgments that may be 
 
 Enforced by 13 
 
 1. Amount of 13 
 
 3. Justice's court judgment 
 must be filed during six 
 
 years. 13 
 
 II. Judgment of a Court 
 
 NOT OF Record 15 
 
 3. Amount of 15 
 
 III. Order for Payment of 
 
 Money 16 
 
 IV. Judgment by Confession. 16 
 
 PAGE. 
 
 V. Judgment for Defend- 
 ant 17 
 
 VI. Judgment Against Joint- 
 debtors 17 
 
 VII. Judgment Against In- 
 fants 17 
 
 VIII. Judgment of Federal 
 
 Courts 17 
 
 IX. Limitation of Lien op 
 Judgments on Real 
 Estate 18 
 
 CHAPTEE III. 
 
 EXECUTION. 
 
 PAGE. 
 
 Of Execution 19 
 
 1. In general 19 
 
 3. Against property 30 
 
 3. Form of 30 
 
 PAGE. 
 
 4. Issue after five years 21 
 
 5. Who must issue when 
 
 judgment was taken in 
 justice's court 31 
 
VI 
 
 Table of Contents. 
 
 PAGE. 
 
 6. Objections must be taken — 
 
 When 21 
 
 7. Sufficiency of return 28 
 
 8. When execution must be 
 
 returned 23 
 
 9. What amounts to a return. 24 
 10. Second execution after 
 
 order for examination ... 25 
 
 FAQS. 
 
 11. Ten years limitation after 
 
 execution 36 
 
 12. Levy of execution on real 
 
 estate after ten years.... 27 
 
 13. Countermand of execution 
 
 — Eflfect, of on receiver. . 38 
 
 14. Joint-debtors 28 
 
 CHAPTEE IV. 
 
 BY AND AGAINST WSOM PROCEEDINGS MAY BE INSTITUTED. 
 
 PAGE. 
 
 I. Bt Whom..* 39 
 
 1. In general 39 
 
 3. Personal representatives. 39 
 
 II. Against Whom 30 
 
 PAGE. 
 
 3. Third persons 31 
 
 III. Residence and Place of 
 Examination op Debtor 
 OR Third Party 31 
 
 CHAPTER V. 
 
 PROCEEDINGS AFTER RETURN OF EXECUTION. 
 
 PAGE. 
 
 I. Proceedings after Return 
 
 OF EXBCDTION 34 
 
 1. Two separate and distinct 
 
 proceedings 34 
 
 II. Affidavit 35 
 
 PAGE. 
 
 3. Necessary — When 35 
 
 3. By whom made 36 
 
 4. Contents of affidavit 37 
 
 5. For second or subsequent 
 
 orders 40 
 
 CHAPTEE VI. 
 
 ORDERS. 
 
 PAGE. 
 
 I. Order for' Judgment deb- 
 tor TO Appear after 
 
 Return of Execution.. 42 
 
 1. In general 42 
 
 2. Second and subsequent 
 
 order 45 
 
 3. Reference 45 
 
 II. Injunction Order 46 
 
 PAGE. 
 
 In general 46 
 
 Exempt property — Eflfect 
 
 of injunction upon 47 
 
 Property acquired after 
 
 service of order 48 
 
 From what it restrains. ... 49 
 
 No violation 49 
 
 CHAPTEE VII. 
 
 ORDERS. 
 
 PAGE. 
 
 Making and Service of 
 
 Order 50 
 
 1. By whom order may be 
 made — In general 50 
 
 PAGE. 
 
 3. Contempt proceedings. ... 50 
 
 3. Supreme court justice .... 50 
 
 4. County judge and special 
 .surrogate 51 
 
Table of Contents. 
 
 Vll 
 
 PAGE. 
 
 6. Marine recorder and supe- 
 rior court judges 51 
 
 6. Continuation of proceed- 
 ings before different 
 judges 53 
 
 PAGE. 
 
 II. Sbbvicb of Order. 52 
 
 1. Where served 53 
 
 3. Howserved 53 
 
 3. Wlien to bo served 55 
 
 4; A party or witness attend- 
 ing court 58 
 
 CHAPTER VIII. 
 
 RETURN— ADJOURNMENT— CONTINUITY— EXAMINATION. 
 
 PAGE. 
 
 I. In General 57 
 
 II. Adjournment 58 
 
 III. Delays BY JoDGMENT-CEEDi- 
 
 TOB — Eppect of 58 
 
 IV. Absence op Judge or 
 
 Repbree ; 59 
 
 PAGE. 
 
 V. Examination. 60 
 
 1. In general 60 
 
 3. Practice upon 60 
 
 VI. Creditor's Right to Com- 
 plete Examination 63 
 
 3. Extent of inquiry 63 
 
 CHAPTER IX. 
 
 PRACTICE. 
 
 PAGE. 
 
 I. Proceedings apter the 
 Issuing and Before the 
 
 Return of Execution. 65 
 
 1. In general 65 
 
 II. Proof Necessary to Ob- 
 tain Order 66 
 
 2. In general 66 
 
 8. Illustrations 66 
 
 PAGE. 
 
 4. Wliat liind of property. 67 
 
 5. Proof of refusal to apply 
 
 property 68 
 
 III. Order and Practice 
 
 Thereunder 70 
 
 6. In general . 70 
 
 7. Examination. 71 
 
 CHAPTER X. 
 
 WARRANT FOR EXAMINATION. 
 
 PAGE. 
 
 I. Warrant op Arrest In- 
 stead OF Order 73 
 
 1. In general 73 
 
 3. Persons exempt from 
 
 arrest 73 
 
 n. Affidavit 73 
 
 m. Warrant 75 
 
 3. In general 75 
 
 PAGE. 
 
 4. Service of 75 
 
 IV. Return and Examination. '76 
 
 5. Preliminary 76 
 
 6. Undertaking required — 
 
 When 78 
 
 7. Proceedings after pre- 
 
 liminary examination. 76 
 
 CHAPTER XI. 
 
 THIRD PARTIES. 
 
 PAGE. 
 
 Persons Having Property 
 of or Indebted to the 
 Judgment-debtor 78 
 
 1. In general. 78 
 
 page. 
 2. Independent proceedings.. 79 
 3 Kinds of property and 
 
 value 80 
 
 4. Who may be examined ... 81 
 
vni 
 
 Table of Contents. 
 
 PAGE. 
 
 5. In what county order must 
 
 be made 82 
 
 6. Proof necessary to give 
 
 jurisdiction 83 
 
 II. Oedbr — Service — Return 
 
 — Examination 85 
 
 PAGE. 
 
 7. In general 85 
 
 8. Service 86 
 
 9. Proceedings after return . . 86 
 10. Property discovered — How 
 
 , disposed of 87 
 
 CHAPTER XII. 
 
 REFERENCE. 
 
 PAGE. 
 
 
 PAGE. 
 
 I. Rbfe'Renoe and Proceed- 
 
 4. 
 
 Where reference may be 
 
 ings Thereunder 88 
 
 
 executed 90 
 
 1. In general 88 
 
 5. 
 
 Oath of referee 90 
 
 2. "Who may be referee 89 
 
 3. By whom appointed 89 
 
 6 
 
 Power of referee 90 
 
 7. 
 
 Proceedings before referee 91 
 
 CHAPTER XIII. 
 
 WITNESSES. 
 
 PAGE. 
 
 Witnesses in Supplemen- 
 tary Proceedings 93 
 
 1. In general 93 
 
 2. Attendance— How enforced 93 
 8. Subpoena — How served ... 93 
 
 PAGE. 
 
 4. Penalty for disobeying 
 
 subpoena 94 
 
 5. Contents of warrant ... 95 
 
 6. Right of witness to contest 95 
 
 7. Signing and filing deposi- 
 
 tions 96 
 
 CHAPTER XIV. 
 
 ORDERS FOR PAYMENT OF MONEY— PROCEEDINGS FOR COL- 
 LECTION OF JUDGMENT BEFORE APPOINTMENT OF RE- 
 CEIVER. 
 
 PAGE. 
 
 I. Order for Voluntary 
 Payment by Debtor of 
 Judgment-debtor 97 
 
 1. In general 97 
 
 2. Orders necessary, and 
 
 when to be made 98 
 
 3. When order no protec- 
 
 tion 98 
 
 II. Order Requiring De- 
 livery OF Money or 
 Property to Sheriff 
 OR Receiver 98 
 
 4. In general 98 
 
 5. Kind of property 99 
 
 6. Choses in action 100 
 
 7. Property acquired after 
 
 the making of order or 
 
 PAGE. 
 
 warrant for examina- 
 tion 101 
 
 8. Disputed title 102 
 
 9. Lien on fund 103 
 
 III. What Property Cannot 
 
 BE Reached 104 
 
 10. In general 104 
 
 11. Exempt property 104 
 
 12. Trust fund created by a 
 
 person other than the 
 debtor 105 
 
 13. Earnings when exempt. 105 
 
 14. Alimony 106 
 
 IV. Application of Money or 
 
 Property to Payment 
 of Judgment 106 
 
Table of Contents. 
 
 CHAPTER XV. 
 
 PAGE. 
 
 I. Superseding ; Vacating ; 
 Discontinuing or Dis- 
 missing Proceedings. . . 108 
 
 1. When not superseded. .■. 108 
 II. Vacating Order 108 
 
 2. In general 108 
 
 3. Grounds of motion 110 
 
 III. Discontinuance 112 
 
 IV. Dismissal ■ 112 
 
 V. Irregularities AND Annuli- 
 
 TIBS 113 
 
 page. 
 
 4. In general 113 
 
 5. Irregularities 113 
 
 6. When motion must be 
 
 made to set aside 114 
 
 7. Waiver 115 
 
 8. Notice of motion on the 
 
 ground of irregularity . . 115 
 
 9. Amendable 115 
 
 10. Nullities lift 
 
 CHAPTEE XVI. 
 
 COSTS. 
 
 PAGE. 
 
 Of Costs in General 1 17 
 
 1. Judgment - creditor — En- 
 titled to, when 117 
 
 PAGE. 
 
 2. How collected 117 
 
 II. Costs to Judgment-debtor 
 
 OR Third Person 118 
 
 CHAPTER XVII. 
 
 RECEIVERS. 
 
 PAGE. 
 
 I. Receivbrs IN Supplemen- 
 tary Proceedings 119 
 
 1. In general 119 
 
 3. Appointment before ser- 
 vice of order for exami- 
 nation 119 
 
 3. Appointment without 
 
 notice to the judgment- 
 debtor 120 
 
 4. Before return of execu- 
 
 tion 120 
 
 5. Who may act as re- 
 
 ceivers 120 
 
 6. By whom appointed . . . 120 
 
 7. Notice of application for. 121 
 
 8. Grounds for appointing. 122 
 
 9. Proof as to pendency of 
 
 other proceedings 122 
 
 II. Extension OF Receivership 133 
 
 III. Completing Receivership. 124 
 
 10. Filing order 124 
 
 11. Security 125 
 
 IV. What Property Vests in 
 
 Receiver 126 
 
 12. In general 126 
 
 13. From what time abso- 
 
 lute title vests 12& 
 
 14. Property acquired after 
 
 service of order for ex- 
 amination 128 
 
 15. Real estate— Title of Te- 
 
 ceiver in 128 
 
 CHAPTEE XVIII. 
 
 RECEIVERS. —Continued. 
 
 PACE. 
 
 Duties op Recbitbs 130 
 
 1. In general 130 
 
 B 
 
 PAGE. 
 
 8. Leave to sue 131 
 
 3. Receivers as plaintiffs. . . 132 
 
Table of Contents. 
 
 PAGE. 
 
 II. Priority of Lien on the 
 Personal Property op 
 THE Judgment-Debtor 133 
 III. When Title to Prop- 
 erty Extends Back 
 BY Relation 134. 
 
 page. 
 IV. By Whom Recbiteb Con- 
 
 TKOLLBD 13i 
 
 V. Vacating Order Appoint- 
 ing Receiver 135 
 
 VI. Injunction Order 136 
 
 CHAPTEE XIX. 
 
 CONTEMPT. 
 
 page. 
 
 I. PROCEEpiNGS FOR 137 
 
 1. Nature of 137 
 
 3. What court or judge has 
 jurisdiction 138 
 
 3. Who may apply for order 138 
 
 II. Acts That are Punish- 
 
 able 138 
 
 4. In general 138 
 
 5. Failure to appear 139 
 
 6. Witnesses 140 
 
 7. Refusal to comply with. 
 
 order 140 
 
 8. Interference with prop- 
 
 erty i 141 
 
 III. Excuses— Sufficiency OP 143 
 
 IV. Where Punishmb.nt May 
 
 BE Summary ' 143 
 
 In general 143 
 
 When warrant to com- 
 mit may issue without 
 
 notice 144 
 
 Order to Show Cause 
 ov Warrant to At- 
 tach Offender 144 
 
 When Contempt was 
 Committed Befork a 
 
 Referee 146 
 
 Til. Effect of Order TO Show 
 
 Cause and of Warrant 146 
 
 9. 
 
 10. 
 
 V. 
 
 VI. 
 
 PAGE. 
 
 VIII. Warrant, How Executed 146 
 IX. Undertaking to Pro- 
 cure Discharge 147 
 
 X. Habeas Corpus May Issue 
 
 —When 147 
 
 XI. Interrogatories and 
 
 Proof 148 
 
 11. In general 148 
 
 13. Practice as to proofs 148 
 
 XII. Order Adjudging Party 
 Guilty, and Commit- 
 ment 150 
 
 13. In general 150 
 
 14. Form of order 150 
 
 XIII. Practice in Review of 
 
 Orders 153 
 
 XIV. Punishment in Contempt 
 
 Proceedings 153 
 
 15. On a habeas corpus 153 
 
 16. Upon order to show 
 
 cause 1.53 
 
 17. Amount of fine 153 
 
 18. Length of imprisonment 150 
 
 19. Jail liberties 157 
 
 30. Release of offender 157 
 
 31. Undertaking as indem- 
 
 nity 158 
 
 CHAPTER XX. 
 
 EXEMPT PROPERTY. 
 
 page. 
 
 I. Exempt Property 159 
 
 1. In general 159 
 
 II. Two Classes of Exemp- 
 tions under Code, §§ 
 1390-1391 161 
 
 PAGE. 
 
 3. Rights of debtor under 161 
 
 3. Householder— Definition 163 
 
 4. Having a family for 
 
 which he provides 163 
 
Table of Contents. 
 
 XI 
 
 PAGB. 
 
 5. Proceeds of exempt prop- 
 
 erty — Exempt when. . . 163 
 III. Meaning op word "Ne- 
 cessary " IN SECTION 
 
 1391 OP THE Code , 163 
 
 rV. Judgment for Purchase- 
 money OP Exempt Prop- 
 erty. , 163 
 
 6. In general 163 
 
 7. For work performed in 
 
 the family as a do- 
 mestic 164 
 
 8. Partnership property... 164 
 V. Contract not to Claim 
 
 Exemption — Effect 
 OF 164 
 
 9. Prospective agreement. . 164 
 
 10. Waiver of exemption... 166 
 
 11. Alimony — Exempt when 166 
 
 PAGE. 
 
 VI. Exemption Must bb 
 
 Claimed— When 168 
 
 12. Team 16& 
 
 YII. Identity of Property Ex- 
 empt-Necessary When 170 
 VIII. Exemption of Life In- 
 
 soRANCE Money 170 
 
 IX. Exemptions, How affect- 
 ed BY Fraud 170 
 
 X. Military Pay, Rewards, 
 Pensions, etc 171 
 
 18. In general 171 
 
 14. Property purchased with 
 
 pension money 171 
 
 15 Pension money, after 
 
 death of pensioner 113 
 
 16. Real estile 173 
 
 XI. Illustrations — Exempt 
 Property 174 
 
 CHAPTEE XXI. 
 
 REVIEW OF ORDERS. 
 
 page. 
 L Orders in Proceedings Sup- 
 plementary TO Execu- 
 tion 175 
 
 1. In general. 175 
 
 PAGE. 
 
 2. Review of orders in supple- 
 
 mentary proceedings 176 
 
 3. Discretionaiy orders 176 
 
 4. Illustrations 177 
 
TABLE OF CASES 
 
 CITED IN THIS VOLUME. 
 
 A. . PAGE. 
 
 Abels V. "Westervelt, 15 Abb. 230. ...Ex 25 
 
 Adams V. Welsh, 43 N. Y. Supr. Ct. 52.. ..Dis. T 98 
 
 Albany City Bank v. Schermerhom, 9 Paige, 372 Con ^ 145 
 
 Albany National Bank v. Gaynor, 67 How. Pr. 421 Rec 120 
 
 Albright v. Kempton, 4 Civ. Pro. Rep. 16 . . .Dis. T 101 
 
 Aldrich V. Davis, 46 N. Y. St. Rep. 587. . . .Con 138 
 
 Allen V. Starring, 26 How. Pr. 59. . . . Or . . . . Rt . . . Ref 47, 59, 89 
 
 Andrews v. Andrews, 2 Johns. Cas. 109. . . Con 140 
 
 Andrews v. Rowen, 28 How. Pr. 126 Dis. T 104 
 
 Anon, 11 Abb. 108... Costs 118 
 
 Anon, 18 Abb. N. C. 216.... Con 157 
 
 Anon, 1 Code Rep. N. S. 113.... Costs 118 
 
 Anonymous, 33 Barb. 201 Jud 13 
 
 Anway v. David, 9 Hun, 296 . . .Pro. Ins 32, 33, 43 
 
 Arnot V. Wright, 29 N. Y. St. Rep. 425. . .Pro. a. Rt Pro. b. Rt 
 
 Rev. of Or ...Va 35, 37, 66, 110, 114 
 
 Ashley v. Turner. 32 Hun. 226 . . .Rec 122 
 
 Atkinson v. Sewln, 11 Abb. N. S. 384. . . .Or. . . .Dis. T 48, 101 
 
 Atlantic & Pac. Tel. Co. v. B. & O. R. R. Co., 46 N. Y. Supr. 377.. Con. 148 
 
 Austin V. Byrnes, 13 Civ- Pro. Rep. 332 Or 44 
 
 Austin V. McLaurin, 16 N. Y. St. Rep. 806 ... .Ex. Pr 170 
 
 ■ B. 
 
 Bacon v. Cropsay, 7 N. Y. 195 ...Vac 114 
 
 Bacon v. Frisbie, 80 N. Y. 394. . . .Ret. 64 
 
 Baldwin V. Perry, 35 Hun, 73. . . .Sr. of Or 51 
 
 Ball V. Goodenough, 37 How. Pr. 479 . . .Rec 121 
 
 Ballou V. Boland, 14 Hun, 355.... Rt 59 
 
 Bank for Savings v. Hope, 8 Daly, 816. ... Or 43 
 
 Bareither v. Broschi, 19 Civ. Pro. Rep. 446 Rec. . . ,Con 125, 144 
 
 Barnard v. Heydrick, 3 Abb. N. S. 48 . . .Jud 16 
 
 Barnes V. Morgan, 3 Hun, 703 .. .Dis. T 101 
 
 Baron V. Brummer, 100 N. Y. 372.... Or 47 
 
 Baron V. Brummer, 100 N.Y. 375 ...Ex. Pr 170 
 
 Bassett V. Wheeler, 84 N. Y. 466. . . Supp. Pro....Va 12, 109 
 
 Bauer v. Betts, 4 N. Y. St. Rep. 93. . . . Dis. T 100 
 
 Bauraler v. Ackerman, 43 N. Y. St. Rep. 87; 63 Hun, 40; 17 N. Y. Supp. 
 
 436. . . .Ex . . .Pro. a. Rt. . . .Rev. of Or 26, 35, 38, 178 
 
 Beaa v. Tonnell, 24 Hun, 354 . . .Ex 26 
 
 Becker v. Torrance, 31 N. Y. 631 ... . Sup. Pro. . .Rec .3, 137 
 
xiv Table of Cases Cited. 
 
 PAGE, 
 
 Belknap v. Hasbrouck, 13 Abb. 418 Pro. Ins 32 
 
 Belknap V. Waters, 11 N. Y. 477 3 
 
 Benjamin v. Meyers, 3 N. Y. St. Rep. 284 Rec 121, 123 
 
 Bennett v. McGuire'58 Barb. 625. . . . Va 112 
 
 Billington v. Billington, 16 Civ. Pro. Rep. 56 Rev. of Or 176 
 
 Bingham v. Disbrow, 37 Barb. 24 . . .Sr. of Or. . . .Ref 51, 53, 90 
 
 Bishop V. Johnson, 15 N. Y. St. Rep. 579 . . .Ex. Pr 171 
 
 Bitting V. Vandenburgh, 17 How. Pr. 80. . . .Ex. Pr 32 
 
 Blanchard v. Reilly, 11 Civ. Pro. Rep. 279. . ..Sr. of Or. . . .Con 51, 138 
 
 Boclger V. Swivel, 1 How. N. 8.37^... Dis.T 101 
 
 Bolt V. Hauser, S3 N. Y. St. Rep. 343.... Jud 14 
 
 Bolt V. Hauser, 33 N. Y. St. Rep. 344. . . .Va 147 
 
 Boon V. McQucken, 50 N. Y. St. Rep. 901.. Con 150 
 
 Boreland v. Stewart, 4 "Wend. 568 . . Ex '. 25 
 
 Bostwick V. Menck, 40 N. Y. 383, . . .Sup. Pro. . . Rec 7, 133 
 
 Bowen v. Gump, 59 How. Pr. 507 Pro. Inst 32 
 
 Bowery Bank v. "Widmayer, 9 N. Y. Supp. 639. . . Pro. b. Rt Va. ... 66 
 
 111, 114 
 
 Brackett v. Watkins, 31 Wend. 68 . . .Ex. Pr 171 
 
 Brinkley v. Brinkley, 47 N. Y. 40 Con 153 
 
 Brockway V. Brien, 37 How. Pr. 370 Or Rt 45, 88 
 
 Brooksv. Hathaway, 8 Hun, 290....Ex.Pr 169, 174 
 
 Brooks V. Sclmltz, 3 Abb. N. S. 134 . . .Va 115 
 
 Brown V. Anderson, 1 Barb. 327 Con 148 
 
 Brown v. Davis, 9 Hunr, 43 Ex. Pr 168 
 
 Brown v. Walker, 131 N. Y. 717; 38 N. Y. St. Rep. 36. . . .Pro. a. Rt. . . . 
 
 D. J. D . . . Va 36, 37, 85, 110, 114 
 
 Browning V. Hayes, 1 N. Y. St. Rep. 502.... Sr. of Or 51 
 
 Brush v. Lee, 6 Abb. N. 8. 50 ...Con 141 
 
 Bumpasv. Maynard, 38 Barb. 626 174 
 
 Bunn V. Daly, 24 Hun, 526 . . .Rec 132 
 
 Bunn V. Fonda, 2 Code Rep. 70.'. . .Dis. T. . . .Ex. Pr 100, 174 
 
 Burnett v. Ricker, 13 Civ. Pro. Rep. 338 Dis. T 100 
 
 Bush V. White, 13 Abb. 31.... Dis. T 105 
 
 Butts V. Dickinson, 30 How. Pr. 330 Jud 13 
 
 C. 
 
 Camp V. Barney, 4 Hun, 373 Rec 135 
 
 Canavan V. McAndrew, 20 Hun, 46 Pro. a. Rt Or 40, 45 
 
 Cantrell V. Conner, 51 How. Pr. 45 Ex. Pr 162 
 
 Carpenter v. Herrington, 25 Wend. 370 Ex. Pr 174 
 
 Cassidy V. Meacham, 3 Paige, 311. .. .Ex. 23, 24 
 
 Caton V. Southwell, 13 Barb. 335. . . .Or 48 
 
 Caster V. Clark, 7 Robt. 43 ...Pro. a. Rt 41 
 
 Central Nat. Bank v. Arthur, 2 Sweeny, 194 Con. 140 
 
 Chamberlain V. Darrow, 46 Hun, 48 ...Ex.Pr 163 
 
 Chamberlain v. Greenleaf, 4 Abb. N. C, 92 . . .Rec 130 
 
 Champlin v. Stoddard, 17 Week. Dig. 76. . . .Rt. . . .Wit 64, 93 
 
 Clark V. Binlnger, 75 N. Y. 344 ... Con 155 
 
 Clark V. Dakln, 3 Barb. Ch. 36. . . .Ex 34 
 
Table of Cases Cited. xv 
 
 PAQB. 
 
 Clark V. Gilbert, 14 "Week. Dig. 41 ; 10 Daly, 316 .... Rec 331 
 
 Cleary y. Christie, 4 N. Y. St. Rep. 117; 41 Hun, 566 . . Con. 152 
 
 Clickman v. Clickman, 1 N. Y. 611 Va 115 
 
 Collier v. De Revere, 7 Hun, 61 Pro. Inst . . Pro. a. Rt 30, 35, 36 
 
 Collins V. Beebe, 37 N. Y. St. Rep. 4; 54 Hun, 318. . . .Pro. Inst. . . .Pro. a. ' 
 
 Rt .. D. J. D ...Va 39, 30, 38, 80, 81, 85, 110 
 
 Colne V. Girard, 19 Abi. N. C. 388 Costs 86 
 
 Columbian Institute v. Cregan, 3 N. Y. St. Rep. 387; 11 Civ. Pro. Rep. 
 
 87. . . .Or. . . .Dis. T. Rec 49, 100, 101, 106, 128 
 
 Connoly v. Kretz, 78 N. Y. 630 Rec 123 
 
 Conyngham v. DufEy, 34 N. Y. St. Rep. 736; 125 N. Y. 200 . ; Ex, . . . 
 
 Pro. a. Rt, ...Va....Rev. of Or 26, 35, 110, 178 
 
 Cooley V. Lawrence, 12 How. Pr. 176 , . . Jud 10 
 
 Cooman v. Board of Education, 37 Hun, 96 D. J. D 85 
 
 Cooper V. Bigalow, 1 Cow. 56. . . .Pro. Inst 30 
 
 Cooney V. Cooney, 65 Barb. 534. , . .Rec 131 
 
 Corning v. Tooker, 5 How. Pr. 16 Rt Wit Dis. T 95, 102 
 
 Corning v. Tooker, 5 How. Pr. 19 D. J. D 61, 78 
 
 Corrall v. Langan, 44 N. Y. St. Rep. 324, . . .Sr. of Or 53 
 
 Cottrell V. Slosson, N. Y. Dally Reg, .Tan'y 6, 1884 . . .D. J. D 81 
 
 Courtois V. Harrison, 13 How. Pr. 859 D. J. D Va 81, 111 
 
 Cousen v. Dearborn, 7 Robt. 143 Va .* 110 
 
 Cox V. Staflord, 14 How. Pr. 519. . . .Ex. Pr 161, 164 
 
 Craft V. Curtiss, 25 How. Pr. 163. . . .Ex. Pr , . 164 
 
 Craig V. Smith, 37 N. J. L. 549, . . Sup. Pro 3 
 
 Crawford v. Lockwood, 9 How. Pr. 547. . . Ex. Pr 164 
 
 Crill V. Kornmeyer, 56 How. Pr. 376 Pro. Inst 29 
 
 Crisfield v. Murdock et al. , 38 N. Y. St. Rep. 828. .. .Rec* 129 
 
 Cromwell v. SpofCord, 4 Civ. Pro. Rep. 373. . . Or 145 
 
 D. 
 
 Dainsv. Prosser, 32 Barb. 290... Bx, Pr 174 
 
 Daniels v. Lindley, 44 Iowa, 567. . . .Ex Pr 167 
 
 Darling v. Littlejohn, 13 N. Y. Supp. 305 Jud 18 
 
 Davidson's Case, 13 Abb. 129. . . .Con 153 
 
 Davidson v. Horn, 47 Hun, 51 Jud . , .Pro. a. Rt 14, 15, 36, 89 
 
 Davis V. Briggs, 24 N. Y. St. Rep, 896 . . .Dis. T 100 
 
 Davis V. Burn,?, 23 Hun, 648, . . .Jud. . .? 18 
 
 Davis V. Herrig, 65 How. Pr. 390.. ..D. J. D 81 
 
 Davis V. Jones, 8 Civ, Pro. Rep. 44 Jud 17 
 
 Davis V. Turner, 4 How. Pr. 194. . . . Cost 117 
 
 Dawson V. Sickle, 5 N. Y, Supp, 703... Rt 64 
 
 Day V. Brosnan, 6 Abb, N. C, 312. ...Or ...Va 43, 110 
 
 Dean v. Hyatt, 5 "Week, Dig. 67 . . . Con 141 
 
 De Camp v. Dempsey, 10 Civ. Pro. Rep. 210. . . .Dis. T Rec . . . 105, 132 
 
 Degraw v. Clason, 11 Paige, 136. . . .Dis. T 99 
 
 Dejonge V. Brenneman, 23 Hun, 332 Con 155 
 
 Denning v. Schieffelin, 26 N. Y. St. Rep. 36-41 ... .Ex 83, 111 
 
 Denning v^ SchiefEelin, 26 N. Y. St. Rep. 96 ... . Pro. Inst . . . Va Ill 
 
 Depew V. Leal, 2 Abb. 131.... Va 116 
 
xyi Table of Cases Cited. 
 
 PAGK. 
 
 Deposit Nat. Bk. v. Wickham, 44 How. Pr. 421 Or Ex. Pr 49, 174 
 
 Devivier v. Smith, 6 Civ. Pro. Kep. 394 Kec 120 
 
 Dewey v. Finn, 18 Week. Dig. 558 Rec 131 
 
 Dewitt V. Dennis, 30 How. Pr. 131 Con , 149 
 
 Deyo V. Borley, 43 N. Y. St. Rep. 638 .. . .' Pro. Inst. . . .Pro. a. Rt. . . 29, 36 
 
 Dickinson v. Onderdonk, 18 Hun, 479. . . .Dis. T . . ,Rec 101, 123 
 
 Dioffenbach v. Roch, 21 N. Y. St. Rep. 570 ; 113 N. Y. 621. . . .Jud.. ... . 15 
 
 "Dinsmore v. The Commercial Trav. Asso., 38 N. Y. St. Rep. 624 Con.. 141 
 
 150 
 
 Di.TV. Briggs, 9 Paige, 595....EX 20, 26 
 
 Dorestan V. Krieg, 66 Wis. 604 Supp. Pro ._. 3 
 
 Dorsey v. Cummings, 15 N. Y. St. Rep. 459 . . . Va 109 
 
 Dorsey v. Cummings, 48 Hun, 76 . . . Sr. of Or 56, 136 
 
 Douglass V. Haberstro, 88 N. Y. 611. . . .Ex 20 
 
 Douglass V. Mainzer, 40 Hun, 75 Pro. a. Rt, . . Sr. of Or "Va ... 36 
 
 37, 50, 110 
 
 Drake v. ShurtlifC, 24 Hun, 422. . . .Sup. Pro 12 
 
 Dresser v. Van Pelt, 15 How. Pr. 19 . . .Sup. Pro . . .Or. . . Con. . 4, 43, 138 
 
 Dubois V. Cassidy, 75 N. Y. 298. . . .Rec 133 
 
 Dubois v. Cassidy, 75 N. Y. 302 . . .Rec 138 
 
 Dudley v. Mayhew, 3 N. Y. 9 . . . . Va 116 
 
 Duffield V. Horton, 73 N. Y. 218....Dis. T 98 
 
 DufEus V. Brown, 12 N. Y. St. Rep. 454 ; 46 Hun, 320. . . Con. . 49, 143, 154 
 
 DufEus ^. Cole, 15 N. Y. Supp. 370 . . .Or. . . Con \Yl 
 
 Duffy V. Dawson, 19 N. Y. Supp. 186 . . .Pro. b. Rt 71 
 
 Duffy V. Dawson, 19 N. Y. Supp. 703. . . .Rt 107 
 
 Duffy V. Dawson, 46 N. Y. St. Rep. 268. . . .Sup. Pro. . . .Dis. T. . . 6, 103 
 
 Dunham v. Reilly, 48 N. Y. St. Rep. 36-41 Ex 20 
 
 E. 
 
 Edmonston T. McLoud, 16 N. Y. 543. . . Rt 59 
 
 Bgan V. Lynch, 3 Civ. Pro. Rep. 236. . . .Con 157 
 
 Ellsworth V. Cuyler, 9 Paige, 418 . . .Dis. T 100 
 
 Erickson v. Quiun, 15 Abb. N. S. 166 Pro. b. Rt 71 
 
 ErieR. Co. v. Ramsey, 45 N. Y. 637. .. .Con 143 
 
 Estate of McMaster, 14 Civ. Pro. Rep. 195 ... Con 151 
 
 Estate of Sistare, 27 Abb. N. C. 34 ; 15 N. Y. Supr. 709. . . .Rec. . . . 128, 132 
 Evans v. Hill, 18 Hun, 464. . . .Ex 27 
 
 F. 
 
 Pall Brook Coal Co. v. Heck.scher, 4 N. Y. St. Rop. 657. . . .Con 153 
 
 Fall Brook Coal Co. v. Heckscher, 6 N. Y. St. Rep. 676; 43 Hun, 534 
 
 . ..Con 155 
 
 Farnham v. Hildreth, 33 Barb. 277. . . .Ex 20 
 
 Parnsworth v. Wood, 91 N. Y. 308 Sup. Pro 9 
 
 Farquoharsou v. Kimbal, 18 How. Pr. 33. . .Ex 25 
 
 Parrel v. Higley, Hill & Denio, 88 . . Ex. Pr 173 
 
 Fecley v. Glennen, 2 Law Bull. 19 ...Con 154 
 
 Fenlon v. Dempsey, 26 N. Y. St. Rep. 343 ; 21 Abb. N. 0. 291 ; 17 Civ. 
 
 Pro. Rep. 388 Con 143 
 
Table of Cases Cited. xvii 
 
 PAGE. 
 
 Fenner V. Sanborn, 37 Barb. 610.... Con It2 
 
 Fenton v. Dempsey, 15 Civ. Pro. Rep. 93; 83 Abb. N. C. 114 . . -Con 155 
 
 Fcssenden v. Woods, 3 Bosw. 550 Rec 133 
 
 Fink V. Fraenkle, 39 N. Y. St. Rep. 194 ; 20 Civ. Pro. Rep. 404. . . .Or. .. 
 
 Ex. Pr 47, 160 
 
 Finnln v. Mallory, 33 N. Y. Supr. 383. . . .Rec. . . .Ex. Pr 174 
 
 First Nat. Bk. v. Beardsley, 8 "Week. Dig. 7 Or . . .Dis. T 49, 101 
 
 First Nat. Bk. of Canaadagua v. Martin, 49 Hun, 678 Ex Dis. T. 
 
 ... .Rec 22, 23, 99 
 
 First Nat. Bk. of Canandagua v. Martin, 18 N. Y. St. Rep. 414. . . .Rec. 147 
 
 First Nat. Bk. of Rome v. Wilson, 13 Hun, 232 Pro. b. Rt. . . . Va..67, 111 
 
 Fishery. Langbein, 103 N. Y. 84....t!on .' 152 
 
 Fisher v. Raab, 81 N. Y. 236 . . .Con 144 
 
 Fiske V. Twigg, 5 Civ. Pro. Rep. 41 . . . .Rt 60 
 
 Fitchburg Nat. Bk. v. Bushwick Chem. Wks., 13 Civ. Pro. Rep. 155. 
 
 . .Sup. Pro . . .Pro. Ins . . .D. J. D. . . Dis. T 10, 31, 81, 104 
 
 Fleming V. Tourgee, 40 N. Y. St. Rep. 705; 16 N. Y. Supp. 2. . 38, 80, 85, 112 
 
 Flint V. Sargent, 6 Week. Dig. 339.... Ex. Pr 174 
 
 Foley V. Rathbone, 12 Hun, 589. . . .Cost 117 
 
 Forbes V. Waller, 25 N. Y. 430,... Ex... 23 
 
 Ford V. Johnson, 34 Barb. 364. . . Ex. Pr 174 
 
 Foster v. Prince, 18 How. Pr. 258. . . Pro. Inst 32 
 
 Foster v. Townshend, 68 N. Y. 203 . . .Rec 135 
 
 Poster V. Twigg, 18 Week. Dig. 563. . . .Wit 96, 158 
 
 Frederick v. Decker, 18 How. Pr. 96. . . .Pro. Inst. . . .Pro. a. Rt. . . . 29, 36 
 
 Frisby V. Young 11 Hun, 474 .. .War 73 
 
 Fritcher v. Fraucks, 21 Civ. Pro. Rep. 34. . . .Sr. of Or 56 
 
 Frost V. Craig, 30 N. Y. St. Rep. 849 .. . .Pro. a. Rt. . . . War . . . Va . . . . 
 
 Rev. of Or 34, 72, 77, 111 
 
 Frost V. Mott, 34N. Y. 253 ...Ex. Pr 169 
 
 FiiltonBk. V. Beach, 6 Wend, 36.... Va 115 
 
 G. 
 
 Gage V. Denbow, 49 Hun, 43 ...Con 143 
 
 Gallagher V. O'Neil, 21 N. Y. St. Rep. 161 ...Con '. ... 156 
 
 Gallt V. Finch, 24 How. Pr. 193 . . .Rev. of Or 175 
 
 Gamman v. Berry, 84 Hun, 138 Con 138 
 
 Gardner v.-Smith, 29 Barb. 68 Rec 132 
 
 Gates v. Young, 17 Week. Dig. 551 ... Sup. Pro .... Ex 10, 25 
 
 Gaylord V. Jones, 7 Hun, 480 Or...Rt 45, 59 
 
 Oerregain v. Wheelright. 3 Abb. N. S. 265 . . 48 
 
 Gibson v. Haggerty, 37 N. Y. 553 . . .D. J. D 79 
 
 Gifford V. Rising, 28 N. Y. St. Rep. 310 .. . .Dis. T 96 
 
 Giflford V. Rising, 48 Hun, 128... Rec 100, 133 
 
 Gilbert v. Frothingham, 13 Civ. Pro. Rep. 388 .... Or Ref . . . . Con . . 46 
 
 89, 140 
 
 Gillett V. Bate, 86 N. Y. 87. . . .Dis. T 101 
 
 Gillett V. Hilton, 11 Civ. Pro. Rep. 108 . . Or. 48 
 
 Gilpin V. Daly, 36 N. Y. St. Rep. 666.... Rt... , 64 
 
 Goddardv. Stiles, 90 N. Y. 199.... Rec 129 
 
xviii Table of Cases Cited. 
 
 PAGE. 
 
 Goddard V. Stiles, 90 N. Y. 206, ...Rec 124, 129 
 
 Godol, Ab. 508.... Ex. Pr 107 
 
 Goodall V. Demarest, 2 Hilt. 534 .... Or 45 
 
 Goodenough v. Davids, 3 La w Bull. 57 Con 141 
 
 Gould V. Moore, 51 How. Pr. 188 .. . .Pro. Inst 82 
 
 QrafE V. Bunnett, 25 How. Pr. 470....Rec...% 128 
 
 Grant v. Vandercook, 57 Barb. 165 . . Va 115 
 
 Grassmuck V. Richards, 2 Abb. N. C. 359... Dis T 103 
 
 Graves v. Scoville, 12 Civ. Pro. Rep. 165 Sup. Pro 4 
 
 Gray V. Cook, 24 How. Pr. 432 ...Con 141 
 
 Gray V. Leiben, 8 Civ. Pro. Rep. 48... .Ex. .. .Or....Va 21, 44, 110 
 
 Green v. Bullard, 8 How. Pr. 313-318. .. .Ref 93 
 
 Green v. Griswold, 23 N. Y. St. Rep. 218.... Dis. T '91, 100 
 
 1 Greenleaf Ev., § 319 ...Wit , 95 
 
 1 Greenleaf Ev., § 498 Sr. of Or 54 
 
 Griffin V. Dominguez, 2 Duer. 656 Sup. Pro Pro. Inst 10, 30 
 
 Griffin v. Sutherland, 14 Barb. 456. . . .Ex. Pr 162 
 
 Grinnell v. Sherman, 33 K Y. St.:Rep. 27. . . .D. J. D. . . . Cost. . . .Rev. of 
 
 Or 80, 85* 117 
 
 Grocers' Bank v. Bayard, 21 Hun, 203. . . .Pro. a. Rt. . . .Or 40, 45 
 
 Guenther v. Jacobs, 44 "Wis. 354 . . .Ex. Pr 167 
 
 Guggenheimer v. Stevens, 17 Civ. Pro. Rep. 383 Rec 134 
 
 Guregain v. Wheelwright, 3 Abb. N. S. 264. . . .Or. . . 101 
 
 H. 
 
 Hall V. Kellogg, 12 N. Y. 332. . . .Pro. b. Rt 71 
 
 Hallv. Olney, 65Barb. 27. ..Dis. T 98 
 
 Hallv. Perry,ll Wend. 45 ,..Bx. Pr 173 
 
 Hamilton v. Marahge, 2 La w Bull. 58 . .Pro. a. Rt 41 
 
 Hancock v. Sears, 93 N. Y. 79. . . .Or . . .Dis. T. . . Ex. Fr 47, 105 
 
 Handleyv. Green, 15 Barb. 601.... Dis. T 98 
 
 Hart v. Johnson, 43 Hun, 505-508; 7 N. Y. St. Rep. 133. . . .Rt. . . . Va. . . . 
 
 Con , 63, 114, 146 
 
 Hatch V. Weyburn, 8 How. Pr. 163. . . .Or 43 
 
 Haulenbeck v. Heacock, 47 N. Y. Supr. 533. . . .Rec 125 
 
 Hawes V. Barr, 7 Robt. 452 . . .Pro. a. Et 36, 87 
 
 Hayes v. McClelland, 20 Week. Dig. 393 .. . .Dis. T 103 
 
 Hazewell v. Pennan, 13 How. Pr. 114. . . D. J. D 81 
 
 Heckman v. Bach, 20 Abb. N. C. 401. . . .D. J. D 86 
 
 Heller v. De Leon, 26 N. Y. St. Rep. 102. . . .War . . . Va 74 
 
 Hickox V. Fay, 36 Barb. 9 ...Ex. Pr 161 
 
 Hillv. Haynes, 54N. Y. 153....EX 25 
 
 Hilton V. Palternon, 18Abb. 245... Ex.... Con 21, 148 
 
 Hinds V. Canandaigua & N. F. R. R. Co., 10 How. Pr. 487. . . .Sup. Pro. 
 
 ...Pro. Inst 9, 10, 30 
 
 Hitchcock V. Peterson, 14 Hun, 389 ... . War 74 
 
 Holbrook v. Orgler, 40 N. Y. Supr. 33 . . .Sr. of Or . . .Con 61, 140 
 
 Holmes B. & H. v. Street, 6 Civ. Pro. Rep. 362n. . . .Wit 93 
 
 Holmes V. McDowell, 15 Hun, 585; 76 N. Y. 596 . . .Rec 125 
 
 IToIstein v. Rice, 24 How. Pr. 135 ... Sr. of Or 52 
 
Table of Cases Cited. xix 
 
 PAGE, 
 
 Howe V. Welch, 11 Civ. Pro. Rep. 445 Or Ref . . . .Con 46, 88, 140 
 
 Howell V. Mills, 53 N. Y. 332. . . .Kev. of Or 177 
 
 Hoyt V. Mann, 7 N.Y. St. Rep. 430 . . Rec 123 
 
 Hoyt V. Van 'Alstyne, 15 Barb. 568 Ex. Pr 168 
 
 Hunt V. Wallis, 6 Paige, 371. . .Va , . 116 
 
 Huntz V. McGehee, 1 Law Bull. 3. . . .Dis. T 103 
 
 HutcLinson v. Brand, 3 N. Y. 308 ..... 30 
 
 Hutchinson v. Chamberlain, 11 N. Y. Leg. Obs. 348 . . Ex. Pr 162 
 
 HutsoQ V. Weld, 38 Hun, 143.... Ex ...Pro. b. Rt. . . .Va. . . .Cost. . . .21, 68 
 
 67, 111, 117, 
 Hyatt V. Duseqbury, 5 N.Y. St. Rep. 848; 13 Civ. Pro. Rep. 152. . . .Sup. 
 Pro. ...Rec 4,131, 131 
 
 I. 
 
 In re Clark, 20 Hun, 551 . , 157 
 
 Iiiman V. Coleman, 37 Hun, 171 ...Sup. Pro 11 
 
 Ireland V. Smith, 3 How. Pr. 244 ...Or , 49 
 
 Irwin V. Chambers, 40 N. Y. Supr. Ct. 433 ..Pro. a. Rt 41 
 
 IseUn V. Henlein, 16 Abb. N. C. 73 Ex 34 
 
 J. 
 
 Jackson V. Page, 4 Wend. 587 Ex .. 25 
 
 Jacobson V. Doty Plaster Mfg. Co., 32 Huu, 486 ...Sr. of Or 51 
 
 James v. James Cement Co , 8 N.Y. St. Rep. 490. . . . Rec 135 
 
 Jenkins v. Smith, 57 How. Pr. 171 .. . .War 73 
 
 Johnson v. Martin, 1 S. 0. (T. & C.) 504 ... Rec 125 
 
 Johnson V. Suttle, 17 Abb. 315 Sr. of Or 55 
 
 Joyce V. Spaflford, 9 Civ. Pro. Rep. 340. . . .Pro. a. Rt .89, 63 
 
 Jurgenson v. Hamilton, 5 Abb. N. C. 149. . . Pro. a. Rt 40 
 
 K. 
 
 Kamp V. Kamp, 46 How. Pr. 143 ...Pro. a. Rt 71 
 
 Keihen v. Shipherd, 4 Civ. Pro. Rep. 274. . . .Ex. Pr 63 
 
 Keihen v. Shipherd, 17 Civ. Pro. Rep. 183. . . .Rt 59 
 
 Keihen v. Shipherd, 34 N. Y. St. Rep. 739 .... Va 174 
 
 Kellogg V. Freeman, 3 City Ct. 147... D. J. D 84 
 
 Kellogg V. Levy, 29 N. Y. St. Rep. 659. ...Rev. of Or 177 
 
 Kelly V. McCormick, 2 E. D. Smith, 503. . . .Con 138 
 
 Kelty V. Yerby, 31 How. Pr. 95 Or. 44 
 
 Kennedy V. Norcott, 54 How. Pr. 87 Rt 59 
 
 Kennedy v. W^ed, 10 Abb. 62. . . .Pro. a. Rt Va 87, 110 
 
 King V. Barnes 51 Hun, 550; 22 N. Y. St. Rep. 54. . . .Con 140 
 
 King V. Barnes, 113 N. Y. 476; 23 N.Y. St. Rep. 268. . . .Con 156 
 
 King V. Plynn, 87 Hun, 339.... Con 154 
 
 King V. Pool, 36 Barb. 242. . . . Va 116 
 
 Knapp V. O'Neill, 13 N. Y. St. Rep. 349. . . .Ex. Pr 163 
 
 Kneetle case. 22 N.Y. 349. . . .Or 164 
 
 Kneetle V. Newcomb, 23 N.Y. 353. . . .Ex. Pr 47, 164 
 
 l^nowles V. De Lazare, 3 How. N. S. 35. . . .Ref 91 
 
 feoehler v. Farmers &, Drovers' Bank, 14 Civ. Pro. Rep. 71 Con ., . . . 93 
 
XX Table of Cases Cited. 
 
 PAGE. 
 
 Koehler v. Farmers & Drovers' Bk., 25 N. Y. St. Rep. 322; 17 Civ. Pro. 
 
 Rep. 307. . . .Con 143 
 
 Kress v. Morehead, 8 N. St. Rep. 858. . . .Pro. a. Rt. . . .Cost 89, 118 
 
 Krihen v. Slilpherd, 16 Civ. Pro. Rep. 183 .... Or 45, 113 
 
 Kuhn V. Kuhn, 4 N. Y. Supp. 952... Con 151 
 
 L. 
 
 Lashaway v. Tucker, 39 N. Y. St. Rep. 680. . . .Ex. Pr 160 
 
 Lathr-'p v. Clapp, 40 N. Y. 328 . . Con 148 
 
 Lawrence v. Jones, 15 Abb. 110. . . . Va 114 
 
 Lawrence v. Pease, 50 N. Y. St. Rep. 851. . . .Sup. Pro. . . .D. J. D. . . . 
 
 Dis. T 8, 82, 101 
 
 Lawton V. Reil, 34 How. Pr. 465 ...Va 116 
 
 Lederpr v. Ehrenfeld, 49 How. Pr. 403 . . . Jud. . . .Pro. Inst 17, 30 
 
 Leonard v. Bowman, 15 N. Y. Supp. 135; 40 N. Y. St. Rep. 135. . . .Pro. 
 
 a,. Rt ...D. J. D....Va .. Rev. of Or 38, 80, 84, 112 
 
 LecS V. Johnson, 9 N. Y. Supp. 612. . . .Rt 63 
 
 Leo v. Joseph, 9 N. Y, Supp. 612 ...Or....Va 45, 110 
 
 Levey v. Bull, 47 Hun, 350 . . .Sup. Pro. . . .Dis. T 8, 105 
 
 Levi V. Beacham, 18 N. Y. Supp. 748 . . .Va. . . .Pro. b. Rt 66 
 
 Levy V. Beacham, 46 N. Y. St. Rep. 51 Pro. b. Rt Rev. of Or. .111, 177 
 
 Levy V. Kerby, 7 Civ. Pro. Rep. 98. . . .Ex 26 
 
 Lewis V. Acker, 7 "Week. Dig. 169 .... Ex 20 
 
 Lewis V. Elmendorf, 2 Johns. Cas. 282 ...War 73 
 
 Lewis V. Penfield, 39 How. Pr. 490. . . .Or. . . .Ref 42, 88 
 
 Lilliendahl v. Fellerman, 11 How. Pr. 528 ... Ex 26 
 
 Lindsay v. Sherman, 5 How. Pr. 308. . . . Va 110 
 
 Lings wieler v. Lingswieler, 29 N. Y. St. Rep. 354. . . . Va. . . .Rev. of Or. . 108 
 
 177 
 
 Lippert v. Olejniezak, 19 N. Y. St. Rep. 463 ... Con 154 
 
 Livingston v. Swift, 23 How. Pr. 1 . . . . Con 141 
 
 Lock V. Mabbitt,2 Keyes, 457 Dis. T 102 
 
 Lockwood V. Worstell, 15 Abb. 430. ...D. J. D 80 
 
 Lockwood V. Younglove, 27 Barb. 505 Ex. Pr 169 
 
 Logan v. The McCall Pub. Co., 55 N. Y. St. Rep. 794. . . .Sup. Pro 10 
 
 Lowber v. Mayor, 5 Abb. 268 . . .D. J. D 81 
 
 Lowery v. Smith, 9 Hun, 514 Rec 131 
 
 Ludeke v. Coursen, 52 N. Y. St. Rep. 516. . . .Con 154 
 
 Ludlow V. Knox, 7 Abb. N. S. 411 ...Con 155 
 
 Ludlow V. Mead, 21 N. Y. St. Rep. 435. . . .Pro. a. Rt 36, 39 
 
 Ludlow V. Mead, 21 N. Y. St. Rep. 603. . . .Pro. a. Rt 113 
 
 Lydecker v. Smith, 44 Hun, 454 Jud 16 
 
 Lynch V. Johnson, 48 N. Y, 32, 33 D. J. D 80 
 
 Lynch V. Riley, 22 "Week. Dig. 357.... Or 43 
 
 M. 
 
 McArthur v. Hoysradt, 11 Paige, 495. . . .Dis. T 99 
 
 McCauley v. Palmer, 3 N. Y. St. Rep. 600; 40 Hun, 38; 9 Civ. Pro. Rep. 
 
 890. ...Con 149 
 
 McComb V. "Weaver, 11 Hun, 271. . . .Con 141 
 
Table of Cases Cited. xxi 
 
 PAGE. 
 
 McCorkle v. Herrman, 117 N. Y. 297; 27 N. Y. St. Rep. 336. .Rec. . 137, 133 
 
 McCrediev. Senior, 4 Paige, 378.... Or Con 49, 145 
 
 McEroy v. Appleby, 15 Week. Dig. 233 . . .Dis. T 106 
 
 McBwan y. Burgess, 25 How. Pr. 92. . .Pro. Inst , '. . . . 32 
 
 McGill V. Weill, 19 Civ. Pro. Hep. 43; 10 N. Y. Supp. 246 . . .Va 110 
 
 McQivuey V. Cliilds, 41 Huu, 607....Or....Dis. T 48, 101 
 
 MoUuire v. Hudson, 41 N. Y. St. Rep. 295 ; 16 N. Y. Supp. 393. . . .Ex. 
 
 ....Pro. a. Rt....Va....Rev. of Or 26, 38, 110 
 
 Mclntyre V. Alien, 43 Hun, 124.... Sr. of Or 53 
 
 McSIiane v. Pinkham, 46 N. Y. St. Rep. 65 . . .D. J. D 83 
 
 McSkinan v. Knowlton, 20 Civ. Pro. Rep. 274 . . .Or. , . .Dis. T 48, 105 
 
 Mahon v. Malion, 5 Civ. Pro. Rep. 58 . . , Con 152 
 
 Malloryv. Norton, 23 Barb. 424.... Dia. T .100 
 
 Maudeville v. Avery, 134 N. Y. 242 ; 36 N. Y. St. Rep. 338. .Rec. . 125, 130 
 
 Ma'iken v. Pape, 65 Hove. Pr. 453. . . . Va 66, 111 
 
 Mannings V. Evans, 19 Hun, 500 Dis. T 105 
 
 Marsliall v. Link, 20 Civ. Pro. Rep. 109. . . .Pro. a. Rt 45 
 
 Marshall v. Link, 36 N. Y. St. Rep. 60 . . Or. . . .Rev. of Or 40, 177 
 
 Martin v. Windsor Hotel Co., 70 N. Y. 101, 104. . . .Rev. of Or 176 
 
 Marx V. Spaulding, 6 N. Y. St. Rep. 530. .. . Con 140 
 
 Marx V. Spaulding, 35 Hun, 478. . . .Ex 24 
 
 Mason v. Hackett, 21 Week. Dig. 79.... Pro. b. Rt 65 
 
 Mason v. Hackett, 35 Hun, 338 Sup. Pro Jud 5, 16 
 
 Mason v. Lee, 33 How. Pr. 466. . Rt 02 
 
 Masten v. Amerman, 21 N. Y. St. Rep. 223 ... . Sup. Pro 8, 128 
 
 Masten v. Amerman, 51 Hun, 244 . . .Rec 123 
 
 Matter of Barber, 30 N. Y. St. Rep. 136. . . .Ex. Pr. . . . ; 173 
 
 Matter of Bernhard, 16 N. Y. St. Rep. 340. . . .Con 151 
 
 Matter of Bronson, 13 Johns. 460. ...Con 145 
 
 Matterof Clark, 2 LawBuIl. 23 ...Con 151 
 
 Matter of Conklin, 36 Hun, 588. ...Sup. Pro 11 
 
 Matter of Dawson, 110 N. Y. 114; 16 N. Y. St. Rep. 844. . . .Dis. T 102 
 
 Matter of Dunn, 37 N. Y. St. Rep. 802. . . .Rev. of Or 1T5 
 
 Matter of Edlunds, 35 Hun, 367. . Or. . .Dis. T.. .Rec. .Ex. Pr. . 47, 104, 123 
 
 Matter of Eldridge,. 83 N. Y. 161. . . Con 143, 150 
 
 Matter of Fleming, 40 N. Y. St. Rep. 705; 16 N. Y. Supp. 1. . . .Con. . 85, 140 
 
 Matter of Hackley, 34 N. Y. 74; 24 How. Pr. 369 ... . Con 152 
 
 Matter of Hess, 16 N. Y. St. Rep. 255; 48 Hun, 586 .. Con 144 
 
 Matterof Holmes, 42 N. Y. St. Rep. 611.... Jud .18 
 
 Matter of Muller, 51 N. Y. St. Rep. 27. . . .Con ^ 150 
 
 Matter of O'Conner, 47 N. Y. St. Rep. 415. . . .Rec 132 
 
 Matter of O'Dell, 6 Dem. 344.... Con 140 
 
 Matter of Percy, 2 Dal3% 530 Con 144 
 
 Matter of Potter, 55 Barb. 625 ... War 73 
 
 Matter of Quinn, 3 Law Bull. 38 . . .Con 151 
 
 Matter of Renwick, 1 Law Bull. 19 Rec 135 
 
 Matter of Sickle, 23 N. Y. St. Rep. 585. ...Rt 63 
 
 Matter of Sickle, 52 Hun, 527. . . .D. J. D, 81 
 
 Matter of Sims, 33 N. Y. St. Rep. 1004. ...Con 151 
 
 Matter of Smith, 15 N. Y. St. Rep. 733 ... Con 149 
 
xxii Table of Oases Cited. 
 
 PAGE. 
 
 Matter of Steinert, 34 Hun, 246 Con 153 
 
 Matter of Swenorton t. Shupe, 40 Hun, 41 Con 139 
 
 Matthews v. Tufts, 87 N. Y. 668 "War 73 
 
 Maurice v. Smith, 5 "Week. Dig. 255. . . .Dis. T 103 
 
 Mayor,"etc., of New Yorli v. Lyons, 24 How. Pr. 280 Va Ill 
 
 Mayor v. New Yurk & S. I. Ferry Co., 40 N. Y. Supr. 300; 03 N. Y. 623 
 
 ....Con 114, 139, 141 
 
 Mechanics & Traders' Bli. v. Healy, 14 "Week. Dig. 120. .Rt. .D. J. D. .62, 87 
 
 Mendel v. Mendel, 4 N. Y. St. Rep. 556. .. .Con 152 
 
 Meridan Malleable Iron Co. v. Bandman, 2 Week. Dig. 591. . . ."War 75 
 
 Merriam v. Hill, 1 Week. Dig. 360 . . .Reo 128 
 
 Merrill v. AUin, 46 Hun, 633; 13 N. Y. St. Rep. 20. . . Pro. Inst. . . .D. J. 
 
 D....Ref 31, 32, 33, 82, 90 
 
 Merritt v. Judd, 18 Civ. Pro. Rpp. 159 . . .Ex 21, 39 
 
 Merritt v. Judd, 9 N. Y. Supp. 491 . . .Pro. a. Rt 64 
 
 Metcalf v. Del Valle, 46 N. Y. St. Rep. 105. . . .Sup. Pro . . .Rec 7, 132 
 
 Methodist B. C. & Co. v. .Hudson, 1 How, N. S. 517 . . .Pro. a. Rt. . . . 
 
 Or 40, 45 
 
 Meyers v. Dreyspring, 53 N. Y. St. Rep. 520 ... . Con 155 
 
 Miller v. Hooper, 19 Hun, 394 ...Or 48 
 
 Miiliken v. Thomson, 8 N. Y. St. Rep. 106 Sup. Pro Or 4, 43 
 
 Mitchel V. Hale, 3 Law Rule, 33 ...Con 158 
 
 Moak V. Coats, 33 Barb. 498 Dis. T 99 
 
 Moffet V. Herman, 116 N. Y. 131; 36 N. Y. St. Rep. 328; 17 Civ. Pro. 
 
 Rep. 357. . . .Con , 152, 156 
 
 Moore v. Taylor, 40 Hun, 56 . . .Pro. Inst 29 
 
 Morgan v. Potter, 17 Hun, 403 Reo 125 
 
 Morris v. First Nat. Bk., 68 N. Y. 362. . . .Or . . .Rec 46, 136 
 
 Moschell V. Boor, 50 N. Y. St. Rep. 338 ... . Sup. Pro Sr. of Or 
 
 Va . . .Rec . . . .Rev. of Or 4, 50, 1D9 
 
 Myers Case, 2 Abb. 476 Rec ". 122 
 
 Myersv. Herbert, 45 N. Y. St. Rep. 636 Rt 58 
 
 N. 
 
 Nanz V. Oakley, 39 N. Y. St. Rep. 327. . . .Ex. 20 
 
 Neil V. Thorn, 88 N. Y. 370. . . .Wit 94 
 
 Netzel V. Mulford, 59 How. Pr. 452 War 74 
 
 Newell V. Cutler, 19 Hun, 74 .. Sr. of Or Con 56, 142 
 
 Nicoll V. Spowers, 105 N. Y. 1 Roc 125 
 
 O. 
 
 Oaokley v. Becker, 2 Cow. 454 Ex Va 25, 114 
 
 Ocean Nat. Bk. v. Olcott, 46 N. Y. 12-19 Ex 24 
 
 O'Connor v. Mechanic's Bk. , 54 Hun, 273 Rec 131, 131 
 
 P. 
 
 Palen V. Bushnell, 21 N. Y. St. Rep. 867 .... Ex 27 
 
 Palmer v. Colville, 45 N. Y. St. Rep. 706 . . .Ex. . . Rec 28, 132 
 
 Pardee V. Tllton, 20 Hun, 76 ...Pro. Inst 90 
 
 Pardee v. Tilton, 83 N. Y. 623. . . .Ref 30 
 
Table, OF Cases Cited. xxiii 
 
 PAGE. 
 
 Parker V. Wakeman, 10 Paige, 485.... Or Con 49, 143 
 
 Park V. Park, 80 N. Y, 156. . . .Con 14a 
 
 Payne v. Becker, 87 N. Y. 153. . . .Rec 133 
 
 Peck V. Baldwin, 34 N. Y. St. Rep. 511-515 8r. of Or.... Rev of 
 
 Or 51, 178 
 
 Peck V. Baldwin, 58 Hun, 308. . . .Or 44 
 
 Peck V. TifEany, 3 N. Y. 451. . .^Ex 25 
 
 Pendergast v. Dempsey, 18 Civ. Pro. Rep. 198 .... D. J. D 81, 85 
 
 People V. Aitken. 19 Hun, 827.... Con 139 
 
 People V. Alexander, 3 Hun, 211 Con 148 
 
 People V. Ball, 37 Hun, 345... Rt. .. .Ref.. .. Wit 60, 91, 94 
 
 People V. Bennett, 4 Paige, 283 Con 157 
 
 People V. Bergen, 53 N. T. 404; 6 Hun, 367. ...Con 143,151 
 
 People V. Bowe, 21 Hun, 614. ..Ex 20 
 
 Peoplev. Brown, 13 K. Y. St. Rep. 454; 48 Hun, 320 Con 154 
 
 People V. Campbell, 40 N. Y. 133... War 73 
 
 People V. Cartwright, 11 Hun, 362 . . .Con 148 
 
 People V. Court O. & T., 27 How. Pr. 14.... Con 151 
 
 People V. Cowles, 4 Keyea, 38 ... . Con 144 
 
 People V. Crompton, 9 N. Y. 263 Con 156 
 
 People V. Davidson, 35 Hun. 471.. . .Con 140, 151 
 
 People V. Donohue, 33 Hun, 470; 59 How. Pr. 417. .. . Con 152 
 
 People V. Dwyer, 90 N. Y. 403. . . .Con 143, 148 
 
 Peoplev. Fancher, 2 Hun, 236 Con 151 
 
 Peoplev. Fancher, 4 S. C. (T. & C.) 467. . . .Con 157 
 
 People V. Grant, 11 N. Y. St. Rep. 558; 46 Hun, 677. . . .Con 146 
 
 People V. Grant, 30 N. Y. St. Rep. 48; 50 Hun, 243; 13 Civ. Pro. Rep. 
 
 305. . . .Con 144 
 
 People V. Jacobs, 66 N. Y. 8. . . .Con 154 
 
 People V. jdnes, 1 Abb. N. C. 172. . . .D. J. D. . . . Va 80, 112 
 
 People v. Kingsland, 3 Keyes 335 ...Or.. .Con 49, 154 
 
 People V. Oliver, 66 Barb. 570. . . Pro. a. Rt. . . Or 39, 43 
 
 People V. Pettere, 31 N. Y. St. Rep. 894. . . Con 140, 152 
 
 Peoplev. Potter, 6 N. Y.St. Rep. 753. . . .Con. . . ."Wit.. . , 94 
 
 People V. Randall, 73 K. Y. 416. . . .Or. . . .Rec 46, 136 
 
 Peoplev. Recorder of Albany, 6 Hill, 429. .. .Pro. b. Rt 68 
 
 People V. R & St. Louis R. Co., 76 K Y. 294; 14 Hun, 371. . . Con 154 
 
 People V. Wilgus, 5 Dem. 58. . . .Rt 58 
 
 People ex rel. Grant v. Warner, 51 Hun, 53; 20 N. Y. St. Rep. 573. . . . 
 
 Pro. Inst. . . .Sr. of Or. . . D. J. D. . . .Wit. . . .Con 31, 50, 55, 80, 86 
 
 People ex rel. Van Allen, 55 N. Y. 31. . . .Rt 61 
 
 Perkins v. Kendall, 3 Civ. Pro. Rep. 240 . . Or Con 44, 140 
 
 Perkins V. Mead, 23 How. Pr. 476 .. Va 115 
 
 Petition of Inglehart, 1 Sheld, 514. . . Rec 131 
 
 Phelps V. Baker, 41 How. Pr. 237. ...Va 
 
 Pitt V. Davidson, 37.N. Y. 235 ...Con 145, 14S 
 
 Pixley V. Winchell, 7 Cow. 366. .T.... 115 
 
 Piatt V. Cadwell, 9 Paige, 386. . . .Ex 23 
 
 Pool V. SafEord. 10 Hun, 497. ...Rev. of Or 175- 
 
 Porous Plaster Co. v. Seabury, 16 N. Y. St Rep. 35. . . .Con 141 
 
3xiv Table of Cases Cited. 
 
 PAGE. 
 
 Potts V. Davidson, 1 How. N. S. 216. ., .Pro. a. Rt, . . .D. J. D. . . .40, 84, 86 
 
 Potter V. Low, 16 How. Pr. 549. . . .Or. . Dis. T. . . .Reo. . . .Con 48, 101 
 
 138 
 
 Powell V. Waldron, 89 N. Y. 328... Dis. T 100 
 
 Powers V. Village of Athpns, 19 Hun, 165 Con .- 145 
 
 Prudeu v. Tallman, 6 Civ. Pro. Rep. 360. . . .Rt Wit 64, 93 
 
 Pudney V. Griffiths, 15 How. Pr. 410 ...Ex 23 
 
 R- 
 
 Rainford v. Temple, 51 N. Y. St. Rep. 144. . . .Or '. . .Con 49, 143 
 
 Railings v. Pittman, 49 Supr. Ct. 307. . . .Pro. a. Rt 41 
 
 Hedmond v. Goldsmith, 3 Law Bull. 19 .... Or .... Rt .... Ref Con ... 43 
 
 46, 60, 89, 91 
 
 Reinsche v. Flecke, 35 N. Y. Supr. 491 Ex. Pr 174 
 
 Renner V. Meyer, 33 Abb. N. C. 438. ...Wit 96, 158 
 
 Reynolds v. Gilchrist, 9 Hun, 203. . . .Con 154 
 
 Heynolds v. McElhone, 30 How. Pr. 4o4 Or Rt 47, 57 
 
 Re Clark, 20 Hun, 551.... Con 157 
 
 Re Harthorn, 63 Hun, 536; 44 N. Y. St. Rep. 16; 17 N. Y. Supp. 567. . . 
 
 Sup. Pro 11 
 
 Re Jones, 6 Civ. Pro. Rep. 350 . . .Con 151 
 
 Re Kelly, 63 N. Y. 198... Con 144 
 
 Re Lampert, 31 Hun, 154 . . .War 73 
 
 Re Lansing, 17 Week. Dig. 388 . . .Rec -. 133 
 
 "Re Wilde, 6 Abb. N. C. 307. .. .Rec 133 
 
 Rider V. Wilson's Ex'rs, 41 N. J. L. 9... Jud 14 
 
 Rinelander v. Dunham, 3 Civ. Pro. Rep. 32 Con 143, 150 
 
 Ritterband V. Raggett, 4 Abb. N. C. 67 Dis. T 100 
 
 Robens V. Sweet, 48 Hun, 476 Pro. Inst 30 
 
 Roberts v. Spurr, 8 Dowl. C. C. 551 . . . Va 118 
 
 Robinson tiase, 3 Abb. 466 Ex. Pr 174 
 
 Rockwell V. Merrill, 45 N.Y. 166.... Rec 135 
 
 Roger Wheel Co. v. Fielding, 61 How. Pr. 437 Pro. b. Rt 71 
 
 Bomaine v. Chancey, 89 N. Y. St. Rep. 480; 60 Hun, 477 Or Dis. 
 
 T....Ex.Pr 48, 106 
 
 Roome v. Swan, 15 Civ. Pro. Rep. 344. . .Dis. T. 100 
 
 Roosevelt V. Edson, 7 Civ. Pro. Rep. 5 Con 148 
 
 Rose V. Henry, 37 Hun, 397.... Jud 141 
 
 Ross V. Butler, 57 Hun, 110 Con 141 
 
 Ross V. Wiggs, 39 Hun, 654. ...Sup. Pro. 4 
 
 Rugg V. Spencer, 59 Barb. 383 Con 155 
 
 Russell V. Dean, 30 Hun, 212 ...Ex. Pr 161, 169 
 
 Uyckman V. Ryckman, 32Hun, 193 Con 144 
 
 Ryer v, Ryer, 19 Week. Dig. 358; 67 How. Pr. 369. . . .Con 158 
 
 S, , 
 Sackett v. Newton, 10 How. Pr. 560. . . .Or. . . .Pro. b. Rt . . . Va. .44, 68, 110 
 
 Sale V. Lawson, 4 Sand. 718 ..Ex... Or., 26, 44 
 
 Salsbury v. Parsons, 36 Hun, 17 . . .Ex. Pr 170 
 
 Sandford V. Carr, 2 Abb. Pr. 463. ...Wit 95 
 
Table of Cases Cited. xxv 
 
 FAOE. 
 
 Sandford v. Goodwin, 20 Civ. Pro. Rep. 276. . . .Or. . . .Dis. T. . . .Con.48, 105 
 
 143 
 
 Sandford V. Sandford, 40 Hun, 540; 2 N. Y. St. Rep. 133.. ..Con 149 
 
 Sands V. Roberts, 8 Abb. 343 ...Or 48 
 
 Sargent V. Bennett, 3 How. N. S. 515.... Or Dis. T 48, 105 
 
 SatWnger v. Adler, 2 Rob. 704 War 73 
 
 Bayer V. McDonald, 3 How. N. S. 119 ...Pro. a. Rt 39 
 
 Sayles v. Best et al., 49 N. Y. St. Rep. 460. . . .Rec 121 
 
 Sayles v. Baylor, 5 N. Y. St. Rep. 816 . . .Rec 126 
 
 Schenck v. Brwin, 38 N. Y. St. Rep. 603; 15 N. Y. Supp. 55. . . .Ex. . . 
 
 Pro. Inst . . . .Pro. a. Rt . . . D. J. D . . .Va ... Rev. of Or. 19, 31, 35, 83, 84 
 Sclienck v. Erwin, 43 N. Y. St. Rep. 863. . . .Pro. Inst. . . .D. J. D. . .Ref. 
 
 Dis. T.... Rev. of Or 33,38,^3, 90 
 
 Schneider v. Altman, 8 Civ. Pro. Rep 243. ...Rt 63 
 
 Schrauth v. Dry Dock Sav. Bank, 86 N. Y. 390 . . .Dis. T 102 
 
 Schwab V. Cohen, 13 N. Y. St. Rep. 709. . . Rt. . . Wit 61, 95 
 
 Seaman v. Luce, 33 Barb. 240. ...Ex. Pr 162 
 
 Seeley v. Black, 35 How. Pr. 369. . . .Con 154 
 
 Soligman v. Wallach, 67 How. Pr. 514; 6 Civ. Pro. Rep. 232; 16 Abb. K 
 
 C. 317. .Rt 62, 83 
 
 Sellig V. Mclntyre, 5 Law Bull. 69 . . .Or 45 
 
 Semraer V. Noell, 18 Civ. Pro. Rep. 200.... D. J. D 81 
 
 Seymour v. Judd, 2 N. Y. 464. . . . Va 116 
 
 Shanck v. Conover, 56 How. Pr. 439. . . .Rt. . . . Va 58, 59, 113 
 
 Shelf V. Morrison, 13 Hun, 110.... Con 140, 153 
 
 Sherwood v. Buffalo, etc., R. Co., 12 How. Pr. 136 9 
 
 Sherwood V. Dolan, 14 Hun, 191 Rt....Wit 61, 96, 158 
 
 Shriver v. Shriver, 86 N. Y. 580. . . . Jud 14 
 
 Shults V. Andrews, 54 How. Pr. 376. . .• .Or. . . .Con 44, 45, 140 
 
 Simmonds v. Simmonds, 6 Week. Dig. 268 . . .Con 155 
 
 Sloaae v. Higgins, 2 Liw Bull. 11 Cost 118 
 
 Smith V. McNamara, 15 Hun, 447 . . Pro. Inst. . . .D. J. D 31, 81 
 
 Smith V. Paul, 30 How. Pr. 97 . . . . Pro. Inst.. . .Or. . . .Rt. . .Va..30, 45, 63 
 
 110 
 
 Smith V. Slade, 57 Barb. 687....Ex. Pr 161, 169 
 
 Smith V. Tozer, 8 N. Y. St. Rep. 166, 366 4 
 
 Snyder v. Davis, 1 Hun, 350; 3 S. C. (T. & C.) 596; 47 How. Pr. 147 ... 
 
 Ex. Pr 161 
 
 Southern I. N. & L Co. v. Sherwin, 1 Civ. Pro. Rep. 44. . . .War 74 
 
 Spear V. Wardell, 1 N. Y. 1.51.... Pro. b. Rt 69 
 
 Spencer v. Berdell, 45 Hun, 179. . . .Rec 128 
 
 Spencer v. Cuyler, 17 How. Pr. 158 Ex 23 
 
 Sperling v. Levy, 10 Abb. 426. . . .Ex 22, 24 
 
 Spratt V. Huntington, 48 How. Pr. 97. . . . Con 153 
 
 Squires V. Youngs, 1 Bosw. 690 Rt 58 
 
 Standard Stock Farm v. Nat. Trot. Ass'n, 31 N. Y. St. Rep. 213 Con. 141 
 
 Stanley V. Lovett, 14 Hun, 412 ...Rt....Va 58, 112 
 
 State Bank of Syracuse v. Gill, 23 Hun, 410 . . .Rec 123 
 
 Stephens V. Page, 54 N.Y. St. Rep. 133 10 
 
 Steinhardt v. Michalda, 15 Civ. Pro. Rep. 328. . . .Ex . . Or 25, 44 
 
 D 
 
xxvi Table of Cases Cited. 
 
 PAGE, 
 
 btevenson v. Stevenson, 34 Hun, 157 Ex. Pr 168 
 
 Stewait V. Biddlecom, 3 N. Y. 103. . . .Pro. b. Rt 6» 
 
 Stewart V. Brown, 37 N. Y. 350 .. Ex. Pr 164= 
 
 Stockwell V. Nat. Bank of Malone, 36 Hun, 583 Dis. T 106 
 
 Strohn v. Bptsein, 6 Civ. Pro. Rep. 36; 14 Abb. N. C. 332. . . .Rec 121 
 
 Strowbridge v. Strowbridge, 21 Hun, 288 Con 157 
 
 Stryburg v. Hicks, 2 Law Bull. 6. . . . Jud 14 
 
 Stubbs V. Ripley, 39 Hun, 626. . . .Con 154 
 
 Sutton V. Davis, 6 Hun, 237. .. .Con 145 
 
 Syracuse Sav. Bank v. S. C. & N. Y. R. Co., 88 N. Y. 110. . . .Rec 185 
 
 T. 
 
 Talcott V. Rosenberg, 8 Abb. N. S. 287 Va - 116 
 
 Tarbell v. Griggs, 3 Paige, 207... Jud 18 
 
 Taylor v. Baldwin, 14 Abb. 166.... Rec 135 
 
 Teft V. Epstein, 17 Civ. Pro. Rep. 1C8....D. J. D 85 
 
 Telles V. Lynd, 47 Fed. Rep. 912. . . .Jud 18 
 
 Ten Broeck v. Sloo, 13 How. Pr. 28. . . .Dis. T 100 
 
 Terry v. Bange, 24 N. Y. St. Rep. 599, . . .Rec 121 
 
 Terry v. Bange, 30 N. Y. St. Rep. 285. . . .Rec . . . .Rev. of Or 135, 177 
 
 Terry v.Hulz, 39 How. Pr. 169. . . .Sr. of Or 51 
 
 Thayer v. Dempsey, 25 "Week. Dig. 457 . . . Rec 121 
 
 The Garfield Nat. Bk. v. Bostwick, 39 N. Y. St. Rep. 358 Rec 143 
 
 Thomas v. Kircher, 15 Abb. N. S. 434 . . .Et 59 
 
 Thompson v. MaoGregor, 81 N. Y. 592 ... Rec 126 
 
 Thompson v. Thompson, 52 Hun, 456 Or Dis. T 48, 105 
 
 Thorn v. Fellows, 5 Week. Dig. 473 . . .Rec , . . 128 
 
 3 Til. & Sh. Prac, 855. . . Jud 13 
 
 Tillotson V. Wolcott, 48 N. Y. 188 ...Or. ...Ex. Pr 48, 163 
 
 Tinker v. Crooks, 22 Hun, 579 . . .Con 141, 156 
 
 Tinkey v. Langdon, 60 How. Pr. 180. . . .Rec . . .Con 122, 141 
 
 Titus V. Relyea, 16 How. Pr, 371 ...Va 116 
 
 ToUes V. Wood, 99 N. Y. 616. ...Sup. Pro 8 
 
 Townsend V. Nebenzahl, 20 Hun, 83 War 73 
 
 Townsend v. Tolhurst, 32 N. Y. St. Rep. 21 . . . .Jud 13 
 
 Tribune Asso. v. Sleeman, 12 Civ. Pro. Rep. 20 Sr. of Or 55 
 
 Tucker v^ Oilman, 87 N. Y. St, Rep. 958, .. .Con 189 
 
 Turner V. Brothwick, 20 Hun, 119 . . .Ex. Pr. .' 161 
 
 Twinan V. Swart, 4 Lans. 263 Ex. Pr 162 
 
 Tyler V. Willis, 33 Barb. 327; 12 Abb. 465 .. .Ex 24 
 
 U. 
 
 Underwood V. Sutcliffe. 77 N. Y. 58, . . .f^up. Pro... Rec 9 
 
 Underwood v, Sutcliffe, 10 Hun, 453 Ex Sr. of Or Rt Va. 
 
 Rec 32,52,58, 113 
 
 Union Trust Co. v. Gage, 6 Dem. 358 . . .Con 144 
 
 United States L. & E. Co. v. Pike, 2 Law Bull. 31 . . .Ex 21. 
 
 Utica City Bk. V. Buell, 17 How. Pr. 498 .. Sr of Or 54 
 
 V. 
 
 Valentine V. Mandell, 9 Civ. Pro. Rep. 155 ...Con 157 
 
Table of Cases Cited. xxvii 
 
 PAGE. 
 
 Yaliente v. Bryan, 3 Civ. Pro. Rep. 358. . . Cost 117 
 
 Van liensselaer v. Emery, 9 How. Pr. 135 Rec 131 
 
 Van Rensselaer v. SberifE of Onondaga, 1 Cow. 443 Dis. T 99 
 
 Van Walkenburg v. Doolittle, 4 Abb. N. C. 72 . . .Con-. 154 
 
 Varick v. Dodge, 9 Paige, 149. . . .Sr. of Or 53 
 
 Vibert v. Frost, 3 Abb. 119 . .'. Va 114 
 
 Vuttlev. Wliitehead, 3 Hill, 596 ...Jud ,■ 13 
 
 W. 
 
 Wakenshamv.-Perzel, 32 How. Pr. 310.... Va 116 
 
 Waldron v. Walker, 43 N. Y. St. Rep. 605; 18 N. Y. Supp. 292.. Dis. T. 
 
 Rev. of Or 103 
 
 "Walford V. Oakley, 43 How. Pr. 118. . . .Va 115 
 
 Walkerv. Donovan, 53 How. Pr. 3. ...Pro. Inst 30 
 
 Walker v. Walker, 82 N. Y. 260; 20 Hun, 400 . . .Con 153 
 
 Wallingford v. Wallingford, 6 Har. & J. 485. . . .Ex. Pr 167 
 
 Waltermire V. Westover, 14 N. Y. 16 Jud 15 
 
 Walters V. Kenyon, 4 N.Y. St. Rep. 398 ... Con 143 
 
 Wallers V. Pecare, 32 N. Y. St. Rep. 841.... Va 41, 108 
 
 Waltrous V. Kearney, 11 Hun, 584 Con 153 
 
 Ward V. Aronson, 10 Bosw. 589. ..Con 145 
 
 Webb V. Osborne, 15 Daly, 406... Rec 124 
 
 Webb V. Osborne, 27 N. Y. St. Rep. 792.... Rec 136 
 
 Webb V. Overmann, 6 Abb. 92. . . .Dis. T 99 
 
 Webberv. Hobbie, 13 How. Pr. 382. ...Sr. of Or 53, 53 
 
 Webster v. Sawens, 3 How. N. S. 330 Pro. Inst 39 
 
 Weeks on Attorneys, § 184 Rt 61 
 
 Wegmanv. Childs, 41 N. Y. 159. ...Sr. of Or 52 
 
 Wegman v. Childs, 41 N. Y. 163 . . Sup. Pro 4 
 
 Weller v. De Leon, 26 N. Y. St. Rep. 103 Ill 
 
 West Side Bk. v.Pugsley, 47 N.Y. 368.... Dis. T 103 
 
 White V. Coutler, 59 N. Y. 629. . . .Ex 21 
 
 Whiteman v. Haines, 21 N. Y. St. Rep. 41 Con : 141 
 
 Wicker V. Dresser, 13 How. Pr. 331 Con 138 
 
 Wilcox V. Hawley, 31 N. Y. 648,... Ex. Pr 163, 168 
 
 Wilcox V. Howe, 36 N. Y. St. Rep. 803. . . .Ex. Pr 162 
 
 Wilder v. Clark, 33 N. Y. St. Rep. 143. . .Or . . .D. J. D 48, 81 
 
 Williamsv. Thorn, 70 N. Y. 270. ...Dis. T 106 
 
 Wilson V. Andrews, 9 How. Pr. 39 . . .Pro. Inst 33 
 
 Wilson Bros. Woodenware Co. v. Daggett, 9 Civ. Pro. Rep. 408. . . .Rt. . . 63 
 
 Wilson V. Greig, 12 Week. Dig. 73. ...Con 144 
 
 Wolf V. Farley, 40 N. Y. St. Rep. 808. . . .Ex. Pr 163 
 
 Wolf V. Jacobs, 45 N.Y. Supr. 583... Con 142 
 
 Wolf V. Jordan, 22 Hun, 108... Jud 13 
 
 Woodward v. Murray. 18 Johns. 400. . . .Ex Pr 174 
 
 World Co. V. Brooks, 7 Abb. N. S. 213. . . .Or._. . .Rt. . . .Va 63, 110 
 
 Wright V. Cabot, 47 N. Y. Supr. 339; 89 N. Y. 570 . . .Dis. T 103 
 
 Wright V. JefEery, 5 Cow. 15 Va 115 
 
 Wright V. Nostrand, 94 N. Y. 33. . . .Ex. . . .Pro. Inst. . . .Rec 24 
 
 Wright V. Nostrand, 94 N. Y. 47. . . .Ex. . . .Sr. of Or. . . .Rec. ... 24, 62, 133 
 
xxvm 
 
 Table of Cases Cited. 
 
 Wright V. Nostrand, 98 N. Y. 669.... Rec 13» 
 
 Wynkoop v. Myers, 36 N. Y. St. Rep. 81. . . .Or. . . .Con 4« Ua 
 
 Y. 
 
 Yates County Nat. Bk. v. Carpenter, 30 N. Y. St. Rep. 121 Ex. Pr. . . 171 
 
 Youngs V. Klunder, 27 N.- Y. St. Rep. 33. . . .Rec 124, 134 
 
 Code of Civil Procedure Cited, 
 
 PAGE. 
 
 14 187, 153 
 
 14, subd. 3 144 
 
 25 25 
 
 36 43, 121 
 
 53 43,52, 121 
 
 102 55 
 
 138 55 
 
 172 19 
 
 241 90 
 
 244 79 
 
 368. 53 
 
 279 43,52, 131 
 
 283 29 
 
 292 79, 80 
 
 394 79 
 
 398 142 
 
 347 53 
 
 349 53, 90 
 
 376 15,18, 27 
 
 379 139 
 
 383, subd. 7 15 
 
 388, oh. 4 26 
 
 414 26, 111 
 
 415 26 
 
 433 55 
 
 434,subd.l 55 
 
 548 56 
 
 553 73 
 
 555. . , 73 
 
 558 73 
 
 565 73 
 
 655, subd. 1 29, SO 
 
 715 125, 135 
 
 755 52, 59 
 
 773..... 109 
 
 852 ■ 94 
 
 858 94 
 
 854 93, 94 
 
 855 85, 94 
 
 856 95, 158 
 
 857 67 
 
 PAGE. 
 
 § 867 91, 95, 93, 94 
 
 § 868 93 
 
 § 869 91, 93 
 
 §1011 89 
 
 § 1235 13 
 
 § 1251 18, 27 
 
 § 1233 27 
 
 §1255 106 
 
 §1347 176 
 
 §1348 175 
 
 §1363 30 
 
 §1375 21,66,67, 111 
 
 §1376 21, 29 
 
 §1377 21,6ii, 111 
 
 §1380 76 
 
 §13'j0. 159, 101, 163 
 
 § ,1890, subd. 4 47, 173 
 
 §1391 47, 160, .161 
 
 §1393 47, 104, 160 
 
 §1393 171, 173 
 
 §1394 163 
 
 §1395 173 
 
 §1896 173 
 
 §1897 173 
 
 §1398 , 173 
 
 § 1400 173 
 
 §1401 173 
 
 §1403 173 
 
 §1759 : 167 
 
 § 1759, subd. 3 167 
 
 §1810.. 9 
 
 §1813 7, 9, 104 
 
 §1871 1, 8 
 
 § 1872 1 
 
 §1876 2 
 
 §1878 ,•:... 2 
 
 §1879 3, 88 
 
 §1914. 64 
 
 §1941 17, 28 
 
 §3366 137, 138, 150 
 
 §3367 14a 
 
Table of Cases Cited. 
 
 XXIX 
 
 PAGE. 
 
 §2268 144. 146 
 
 §2369 , 145 
 
 §3271 145 
 
 §2372 146 
 
 §2273.... 146 
 
 §3374 146 
 
 §2375 145 
 
 § 2276 146 
 
 §2277 146, 147 
 
 §2278 '. 147 
 
 §2279 147 
 
 §2280 148 
 
 § 3281 139, 150, 153 
 
 §2382 15a 
 
 §3283 153 
 
 §2384 154 
 
 §3385 156 
 
 §2386 -. 157 
 
 ^§3288 158 
 
 §2389 158 
 
 § 3393 137 
 
 §2343 90 
 
 g2432 1,3,5, 31 
 
 §2433, subd. 1 3,22, 50 
 
 § 2432, subds. 2, 3 33, 34, 65 
 
 §2433 8, 109, 119, 1?3 
 
 § 2434 32, 43, 50, 51, 65, 70, 75, 
 
 83, 83, 90 
 
 §3435 2, 9, 37, 35, 43, 73, 78 
 
 79, 84, 85, 88, 90, 94 
 
 § 3436 2, 65, 66, 67, 68, 71, 72 
 
 75, 78, 79, 84, 85, 88, 90, 94 
 
 § 2437 2, 33, 34', 70, 72, 73, 74 
 
 75, 94 
 
 §2438 34,73,75,77, 94 
 
 §2440 76, 89 
 
 §3441 3, 6, 33, 35, 38, 71, 78 
 
 79, 80, 81, 83, 83, 85, 86 
 
 88, 89, 94 
 
 § 3443 33, 43, 45, 46, 70, 88, 89 
 
 § 3443 46, 88, 89, 90, 159 
 
 § 3444 ... 58, 60, 70, 71, 78, 85, 91, 93 
 
 PAGB. 
 
 §3445 90, 113 
 
 §2446 98, 176 
 
 § 3447 6, 70. 78, 87, 99, 102, 103 
 
 §2448 6, 106- 
 
 §2449 6,71,107, 123 176 
 
 §2450 107,136, 176 
 
 §2451 43,46,47, 143 
 
 §3452 10, 53,70, 86 
 
 §3453 74, 75 
 
 §2454 58, 59, 113, 113, 127 
 
 §2455 117, 176 
 
 § 3456 60, 86, 117, 176 
 
 §3457 137, 146, 157 
 
 §3458 
 
 65 
 84 
 33 
 33 
 
 8a 
 
 87 
 38 
 
 10, 13, 19, 31, 33, 87, 
 83, 
 
 § 2458, subd. 1 16, 32, 
 
 § 2458, subds. 2, 3 16, 32, 
 
 §2459 43, 
 
 §2460 63, 71, 
 
 §2461 17, 
 
 § 2462 43, 52, 70, 121, 138 
 
 § 2463 7, 9, 10, 30, 47, 48, 75, 87 
 
 § 3464 63, 119, 131, 176 
 
 §3465 122, 123 
 
 I 3466 123 
 
 §2467 125 
 
 §2468 2, 126, 128 
 
 §2169 2, 136, 134 
 
 § 2469, subd. 1 130 
 
 § 2469, subd. 2 119 
 
 §2469, subd. 5 120 
 
 § 2470 
 
 §2471 1, 123, 125 
 
 §3017 15, 66 
 
 § 3043 
 
 §3318 
 
 §3343 
 
 § 3343 
 
 §3353 
 
 135 
 125 
 
 15 
 
 94 
 
 2 
 
 126 
 
 111 
 
 Art. 1, Tit. 1, Chap. 5 55 
 
 Art. 1, Tit. 1, Chap. 7. 
 
 73 
 
 United States Eevised Statutes Cited. 
 
 1237. 
 , 4063 
 
 PAGE. 
 .. 73 
 
 .. 73 
 
 § 4718. 
 
 PAOB. 
 
 . 172 
 
XXX 
 
 Table of Cases Cited. 
 
 New York Eevised Statittes Cited. 
 
 aR. 8. Chap. 535, §95.. 
 
 PAGE. 
 
 1 R. S. Chap. 728, §53 9 
 
 IR. S., §154 73 
 
 PAGE. 
 
 .. 54 
 
 Session Laws Cited. 
 
 PAGE. 
 
 1832, Chap. 410 73 
 
 1843, chap. 130 73 
 
 1848, chap. 40, § 10 9 
 
 1857, chap. 96, § 4 5 
 
 PAGE. 
 
 1870, chap. 80 73 
 
 1870, chap. 277 8 
 
 1877, chap. 417, g 1, su!)d. 8 30 
 
 1881, chap. 640, § 1 11 
 
 Supreme Court. 
 
 PAGE. 
 
 Rule 35 35, 40 
 
 Rule 27 .' 133 
 
 Rule 28 180 
 
 PAGE. 
 
 Rule 78 135 
 
 Rule 79 131 
 
 Rule 80 89 
 
PRACTICE 
 
 IN 
 
 SUPPLEMENTARY PROCEEDINGS. 
 
 CHAPTER I. 
 
 II 
 
 Op PKOCEBDiNGa Supplementary 
 TO Execution. 
 
 1. Nature and object of. 
 
 2. A special proceeding. 
 
 3. Lien where no receiver is ap- 
 
 pointed. 
 
 4. Wliere no lien attaches. 
 What Statutory Biqhtb Can- 
 not BE Enforced by. 
 
 5. In general. 
 
 6. Surplus premium in life insur- 
 
 ance. 
 
 7. Surplus income of trust funds. 
 
 8. Lands conveyed to another— 
 
 Consideiation. 
 
 9. Judgment against corporation. 
 10. Foreign ministers — Consuls., 
 
 etc. 
 
 III. Concurrent Remedies. 
 
 IV. Tax— Proceedings to Collect. 
 
 I. Of Proceedings Supplementary to Execution. 
 
 I. Nature and object of. — Proceedings supplementary to 
 execution, under the Code of Civil Procedure, §§ 2432-2471, 
 inclusive, furnish for most purposes a simple substitute for 
 the old equity proceedings, in discovering and applying the 
 property of a debtor, which cannot otherwise be reached 
 for the payment of his debts. 
 
 It is provided by sections 1871 and 1872 of the Code of 
 Civil Pi'ocedure, that where an execution against the prop- 
 erty of a judgment-debtor issued out of a court of record, 
 to the county where the judgment-debtor resides, if he is a 
 resident of the state, or if he is not a resident of the state, 
 to the sheriff of the county where he has an office for the 
 regular transaction of business in person ; or if he has no 
 such office within the state, to the sheriff of the county 
 where the judgment-roll is filed, has been returned wholly 
 or partly unsatisfied, the judgment-creditor may maintain 
 an action, etc. These sections are nearly the same as sec- 
 tions 2435 and 2438 in regard to supplementary proceed- 
 1 
 
2 Supplementary Proceedings. 
 
 ings. A discovery may be compelled under section 1878, 
 the same as under sections 2435, 2436, 2437, 2441. An 
 injunction order issues under section 1876, the same as 
 uiider section 2451. Section 1879 exempts the same prop- 
 erty as section 2463. By section 2469, it is provided that 
 where an order for the debtor's examination has been 
 served, the receiver's title, when vested pursuant to section 
 2468, extends back so as to include the personal property 
 of the judgment-debtor at the time of the service of the 
 order, except as against bona fide purchasers, or against 
 creditors who have meanwhile received payment from 
 their debtor in good faith and without notice. The words 
 " personal property " in this section include money, chattels, 
 things in action and evidence of debt — section 3342. 
 
 Section 2469 is a new provision, not found in the former 
 Code, and appears to have been inserted to change the rule 
 declared in Becker v. Torrance, 31 N. Y. 631, to the effect 
 that a lien was acquired by the creditor on the property of 
 his debtor by the commencement of supplementary pro- 
 ceedings, and that when a receiver is appointed his title 
 relates to the date of his appointment, and is subject to any 
 lien on the debtor's property acquired by third persons 
 intermediate the commencement of the proceedings and the 
 appointment of the receiver. In McCorkle v. Herrman, 
 117 N. Y. 297 ; 27 N. Y. St. Eep. 336, the real question 
 related to priority of lien as between a judgment-creditor 
 of a contractor, who had duly commenced supplementary 
 proceedings on his judgment, terminating in the appoint- 
 ment of a receiver, and laborers and material «men who 
 subsequent to the supplementary proceedings, and within 
 the time allowed by law, filed notices of lien to reach the 
 debt owing the contractor, under a contract with the owner 
 of the building for its construction. In that case the court 
 say : "The creditor, whom the plaintiff represents by the 
 commencement of supplementary proceedings, acquired 
 under section 2469 of the Code an equitable lien on the debt 
 then owing by the defendant, which on the appointment of 
 the receiver became a legal title in the receiver to the claim 
 of the contractor against the defendant as of the date of 
 the service of the order in the supplimentary proceedings. 
 Subsequent to the service of the order the liens were filed. 
 
A Special Proceeding. 3 
 
 Which of the claimants have the prior right ? We think 
 the plaintiff, as receiver, has the superior claim. He stands 
 as the assignee of the claim of the contractor against the 
 defendant by a title which antedates the filing of the 
 notices of lien. If the proceedings instituted by the credi- 
 tor, whom the plaintiff represents, has been abandoned, the 
 liens would have had priority, but not having been 
 abandoned and the equitable liens existing when the liens 
 were filed having been converted ii>to a legal title as of a 
 time anterior to the filing of the liens, the right to the debt 
 as between the plainfiff and the lienors vested in the 
 former. The plaintiff, we think, stands in as good a posi- 
 tion at least, as if, prior to the filing of the liens, the con- 
 tractor had in good faith assigned his claim against the 
 defendant to the creditor in the supplementary proceedings 
 as security foi" his debt. The assignee under such an 
 assignment would take precedence over lienors under liens 
 subsequently filed. Craig v. Smith, 37 N. J. L. 549 ; 
 Dorestan v. Krieg, 66 Wis. 604. Our decision relates to a 
 case of money due or earned at the time those proceedings 
 were instituted." 
 
 2. A special proceeding.— Section 2433 of the Code of 
 Civil Procedure prescribes that each of the remedies pro- 
 vided for by section 2432 is a special proceeding. The Code 
 of Civil Procedure divides all remedies into "actions " and 
 "special proceedings." It defines an action to be "an 
 ordinary proceeding in a court of justice by which a party 
 prosecutes another," etc.; and then declares that "every 
 other remedy is a special proceeding." The distinction be- 
 tween an action and a special proceeding is held to be, that 
 a proceeding instituted by summons and complaint is an 
 action, and that every other remedy is a special proceeding. 
 Belknap v. Waters, 11 N. Y. 477. An action is commenced 
 by the service of summons in some one of the modes pre- 
 scribed by law, and no proceeding can be an action unless it 
 be such that it can be commenced by the service of sum- 
 mons on the opposite party; and pleadings — that is, an alle- 
 gation of the cause of action on the one side, and of the de- 
 fense on the other. Section 2432 of the Code provides for 
 three distinct remedies and modes of proceedings to reach 
 the property of a judgment-debtor, and to prevent any dis- 
 
4 Supplementary Prooeeoings. 
 
 position thereof in fraud of the rights of the judgment- 
 creditor. 
 
 The first is by a proceeding against the judgment-debtor 
 after the return of an execution unsatisfied ; the second is 
 by a proceeding against the judgment-debtor after the 
 issuing of an execution and before its return ; and the third 
 is by a proceeding against the debtors of the judgment- 
 debtor, after the issuing of the execution and before or 
 after its return. This includes the appointment of a re- 
 ceiver in the proceedings. Moschell v. Boor, 50 N. Y. St, 
 Eep. 238; Although these proceedings are special proceed- 
 ings, they are such in the action, and ancillary to the pur- 
 pose of enforcing the collection of the judgment, which was 
 one of the purposes for which the action was brought. And 
 the legitimate remedies attendant upon the proceedings to 
 render it effectual, so far as the orders of the court may be 
 required, may be regarded as taken in the action. Smith 
 V. Tozer, 3 id. 166, 366. In Graves v. Scoville, 12 Civ. Pro. 
 Eep. 165, the court say : "A proceeding supplementary to 
 execution is a special proceeding in the action, and the same 
 presumptions exist, since the enactment of the Code of Civil 
 Procedure as under the Code of Procedui-e. This case 
 was affirmed in the court of appeals without opinion. And 
 see Hyatt v. Dusenbury, 5 N. Y. St. Eep. 848. But they 
 are not a part of the action, and should not be entitled in 
 the action. Milliken v. Thompson, 8 id. 106. There are 
 important differences between supplementary proceedings 
 under the Code of Procedure, and those under the Code of 
 Civil Procedure. Under the former, they were proceed- 
 ings in the action in which the judgment was recovered on 
 which they were founded, and they were said to be in the 
 nature of new i-emedies or equitable rights arising by force 
 of the statute in the actions in which the judgments were 
 recovered. They were expressly held not to be special pro- 
 ceedings (Dresser v. Van Pelt, 15 How. Pr. 19), but as 
 much proceedings in the action as the issuing of the execu- 
 tion upon the judgment. Wegman v. Childs, 41 N. Y. 163. 
 The proceedings are given to a judge and the court has no 
 jurisdiction over or in them, except as provided by statute, 
 and such as it has by virtue of its general supervisory 
 power over inferior jurisdictions. In Eoss v. Wigg, 39 Hun, 
 
Lien op Creditoks. 5 
 
 654-, the court say, with reference to the declaration in the 
 Code of Civil Procedure, that the remedies provided by sec- 
 tion 2i32 were " special proceedings: " " We do not regard 
 this declaration of the legislature as indicative of any in- 
 tent to change the character of the proceedings or as in any 
 way diminishing the force of section 4, chapter 96, Laws 
 1857." Li that case the question was whether the changes 
 in the Co (e had ousted the recorder of the city of Oswego 
 from jurisdiction under said section 4, and which under 
 that section he had previously exercised in supplementary 
 proceedings. That it was not such a change as defeated 
 the jurisdiction of the recorder was all that the court de- 
 cided or meant to decide. 
 
 3. Liens of creditor.— In Mason v. Hackett, 35 Hun, 238, 
 a county judge had made an order for examination on a 
 docketed justice's judgment for $20 damages and $7.85 
 costs— $27. 85, upon appeal from an order denying a motion 
 to vacate said order of examination the court say : " When- 
 ever the proceedings result in the appointment of a receiver, 
 the title of all the judgment-debtor's real estate passes in 
 trust to that officer. We think it clear that it was not the 
 intention of the legislature to devote the debtor's property 
 to the payment of judgments against him unless they, by 
 the same statute, become liens thereon. The Code of Civil 
 Procedure does not axithorize the judge, before whom sup- 
 plementary proceedings are pending, to order the applica- 
 tion towai'ds the payment of the judgment or the delivery 
 or transfer to the receiver for such purpose of any other 
 personal property." 
 
 A more serious question arises as to priority of lien to a 
 fund in the hands of a debtor — of a judgment-debtor, 
 between a judgment-creditor having an order for examina- 
 tion and one having an execution in the sheriff's hands. 
 Thus, where a judgment-creditor after the return of an 
 execution obtains an order for the examination of a debtor 
 of his judgment-debtor, and afterwards another judgment- 
 creditor of the same judgment-debtor causes an execution 
 against the judgment-debtor to be placed in the sheriff's 
 hands, and afterwards an order is made in the supple- 
 mentary proceedings directing the said third person to pay 
 his debt to the sheriff y but before such order is served on 
 
6 Supplementary Pkockedings. 
 
 the debtor of the judgment-debtor said debtor upon the 
 sheriff's request pays his debt to the sheriff to be applied on 
 the execution in his hands. The question as to which of 
 the judgment-creditors is entitled to the fund, is still a 
 mooted one. In Duffy v. Dawson, 46 N. Y. St. Eep. 268, 
 Duffy recovered a judgment against Dawson February 2, 
 1892, for $540, and issued an execution thereon the same 
 day. On February 3d Duffy obtained an order for the ex- 
 amination of one Peetsch, as a third party, indebted to said 
 judgtiient-debtor. On February 23, 1892, an order was ob- 
 tained directing Peetsch to pay $400, moneys in his hands, 
 to the sheriff, to be applied in payment of Duffy's judgment. 
 Peetsch paid said money to the sheriff. One Evans recov- 
 ered a judgment against Dawson January 28, 1892, for $17Y, 
 and on the same day an execution founded on said judg- 
 ment was issued to the sheriff. December 31, 1891, Dawson 
 gave Evans an order on Peetsch for $125 of said money, 
 and Evans presented the said order to Peetsch, who ac- 
 knowledged the receipt thereof. On March 8, 1892, Duffy 
 applied for an order directing the sheriff to apply the said 
 money to the payment of his judgment. This motion was 
 denied, from which order Duffy appealed. The court at 
 general term say : "The Code contains no provision for a 
 levy on equitable interests in the hands of a third party, 
 probably for the reason that the judgment-creditor has a 
 more sum'mary and effectual remedy, by supplementary 
 proceedings, to examine the party owing the debt to the 
 debtor, and by obtaining an order permitting the third 
 party to pay over such debt to the sheriff to be applied on 
 the execution. The execution, issued on the judgment of 
 Evans, created no lien on this sum while in the hands of 
 Peetsch, and none could be ci'eated thereon, except under 
 section 2441. Sections 2447, 2448 and 2449 provide that 
 where it shall appear that property of the judgment- 
 debtor is in the possession or under the control of him- 
 self or some other person, the judge may, in his discre- 
 tion, there being no receiver, make an order directing the 
 judgment-debtor or such other person to deliver such prop- 
 erty to the sheriff ; when so delivered, the property is to 
 be treated as if it had been levied upon by virtue of an 
 execution." 
 
What Eights Cannot be Enfobced by. 7 
 
 4. Where no lien attaches. — The title to property pre- 
 viously transferred by the judgment-debtor does not vest in 
 his receiver appointed in supplementary proceedings, and 
 the latter has no prior or exclusive right to maintain an 
 action to set aside such transfer as fraudulent. A judg- 
 ment-creditor who has brought the first action to set aside 
 such transfer has a lien and preference over the receiver 
 and all other creditors upon the propei'ty sought to be 
 reached, and is not a necessary or proper party to the re- 
 ceiver's action. This precise question was considered and 
 decided in the case of Bostwick v. Menck, 40 N. Y. 383. 
 The court in that case say : " He (the receiver) does not ac- 
 quire the legal title to such property (fraudulently trans- 
 ferred) by his appointment, that is confined to property 
 then owned by the debtor, and the fraudulent transferee of 
 property acquired a good title thereto against the debtor, 
 and all other persons except the creditors of the transferor; 
 the only right of the receiver is, therefore, as trustee of the 
 creditors." This question also arose in Metcalf v. Del Valle, 
 46 N. Y. St. Eep. 105, where the court say : " The receiver 
 has no prior or exclusive right to maintain an action to set 
 asid*? such assignment as fraudulent, and that the defend- 
 ant Del Valle, having brought the first action against the 
 judgment-debtor and his assignee, for the purpose of setting 
 aside such assignment, has obtained a lien and preference 
 over the receiver and all the other creditors upon the pro- 
 perty sought to be reached." 
 
 II. What Statutory Eights Cannot be Enforced by. 
 
 5. In general. — It is provided by section 2463 of the Code 
 of Civil Procedure that where the judgment-debtor is a 
 corporation created by or under the laws of this state, or a 
 foreign corporation specified in section 1812, supplementary 
 proceedings cannot be instituted against it to enforce the 
 judgment, except in those actions or special proceedings 
 brought by or against the people of the state. It also pro- 
 vides that in proceedings supplementary to execution a 
 judgment-creditor is not entitled to seize, or interfere with,, 
 any property which is expressly exempt by law from levy 
 and sale by virtue of an execution ; or - any money, thing 
 in action or other property held in trust for a judgment- 
 
8 Supplementary Pkoceedings. 
 
 debtor, where the trust has been created by, or the fund so 
 held in trust has proceeded from, a person, other than the 
 judgment-debtor; or the earnings of the judgment-debtor 
 for his personal services, rendered within sixty days next 
 before the institutioji of the special proceeding; when it is 
 made to appear, by his oath or otherwise, that those earn- 
 ings are necessary for the use of a family, wholly or partly 
 supported by his labor. 
 
 6. Surplus premium in life insurance. — As only such 
 property as the judgment-debtor has at the time of the 
 commencement of supplementary proceedings is affected 
 thereby, a receiver in such proceedings cannot recover 
 for excess of premiums paid by a judgment-debtor or out 
 of his property, allowed by chapter 277 of the Laws of 
 1870.. A receiver is not a creditor within the meaning of 
 the statute. Whatever rights may accrue to the creditor 
 under said statute may be enforced by him, and by him 
 alone. Hasten v. Amerman, 21 N. Y. St. Eep. 223. 
 
 y. Surplus income of trust funds.— A receiver of the 
 property of a judgment-debtor, appointed in proceedings 
 supplementary to execution, cannot maintain an action to 
 reach any surplus income to the judgment-debtor under a 
 trust created by a person other than the judgment-debtor. 
 The power to proceed against the trust fund is confined to 
 the judgment-creditor, who must proceed by a direct action. 
 Levey v. Bull, 57 Hun, 350. Sections 1871-1879 of the 
 Code provides, that when a trust has been created by one 
 person for the benefit of another, which provides for the 
 payment of the income trust fund to the beneficiary, a 
 judgment-creditor of such beneficiary is entitled to main- 
 tain an action in equity to reach and recover the surplus 
 income bey'ond what is necessary for the suitable support 
 and maintenance of the cestui que trust, and those depend- 
 ent upon him. Tolles v. Wood, 99 N. Y. 616. But in 
 Lawrence v. Pease, 50 N. Y. St. Eep. 851, a third party 
 order was granted against the trustee of the judgment- 
 debtor's mother to pay the judgment from the interest of 
 the judgment-debtor in trust funds. 
 
 8. Lands conveyed to another.— Consideration. — A re 
 ceiver appointed in proceedings supplementary to execution 
 cannot maintain an action to enforce the trust created by 
 
What Eights Cannot be Enfokced by. 9 
 
 the Eevised Statutes (1 R. S. T28, § 52) in favor of the 
 creditors of one paying the consideration for lands which 
 are conveyed to another. The judgment-debtor has no 
 interest, legal or equitable, in the lands bought by him but 
 conveyed to another, and the creditor derives no right 
 through him ; if a creditor at the time o"f the conveyance, 
 he has simply an interest created by the statute as cestui 
 que trust ; the trust does not rest in the receiver, and he is 
 not the representative of the creditor in respect to it. 
 Underwood v. Sutcliffe, Y7 N. Y. 58. A receiver of a cor- 
 poration organized under the General Manufacturing Act is 
 not vested with the right of action given by that act (Laws 
 1848, ch. 40, § 10) to creditors of the corporation against 
 stockholders thereof. Farnsworth v. Wood, 91 N. Y. 308. 
 9. Judgments against corporations. — It was held under 
 the former Code that the provisions of that Code relating to 
 supplementary proceedings applied to natural persons only. 
 Hinds V. C. & N. F. E. R. Co., 10 How. Pr. 487; Sher- 
 wood V. Buffalo, etc., R. Co., 12 id. 136. These were cases 
 of supplementary proceedings under judgments against 
 domestic corporations, and it was decided that remedies 
 against such corporations in case of insolvency, must be 
 had under the provisions of the Revised Statutes. It is dif- 
 ferent where the judgment-debtor is a foreign corporation, 
 not doing business in this state, nor having any business or 
 fiscal agency therein, or agency for the transfer of its stock 
 herein, and by section 1812 of the Code of Civil Procedure 
 such a corporation is excluded from the operation of section 
 1810, providing for the appointment of receivers of the 
 property of corporations. Section 2463 is a new provision, 
 and seems by necessary implication, to authorize supple- 
 mentary proceedings in a case like the one above referred 
 to. It declares: "This article does not apply where the 
 judgment-debtor is a corporation created under or by' the 
 laws of this state? or a foreign corporation specified in sec- 
 tion 1812 of this act, except in those actions or special pro- 
 ceedings brought by or against the people of the state." 
 ^ch a judgment-debtor is not one of the foreign corpora- 
 tions specified in section 1812. The article in which section 
 2463 is found is the one regulating proceedings supplement- 
 ary to execution. Section 2435 authorizes supplementary 
 2 
 
10 Supplementary Pkocbedings. 
 
 proceedings against a "judgment-debtor," making no dis- 
 tinction between a natural person and a corporation. Sec- 
 tion 2458 requires that the execution, in case the judgment- 
 debtor is not, when the execution is issued, a resident of 
 the state, must have been issued to the sheriff of the county 
 where the judgment-roll is filed, unless the execution was 
 issued out of a court other than that in which the judgment 
 was rendered, and in that case to the sheriff of the county 
 where the transcript of the juigment is filed. Section 2452 
 provides how an order for the examination may be served 
 upon a corporation. Tiie only limitaWeu upon the right to 
 take proceedings supplementary to execution against any 
 class of debtors is contained in section 2463, and this plainly 
 does not embrace a foreign corporation doing no business 
 and having no agency in this state. Logan v. The McCall 
 Publishing Co., 55 N. Y. St. Eep. Y94. But as a general 
 rule a judgment against a corporation cannot be enforced 
 by proceedings supplementary to execution.* Code, § 2463. 
 After the return of execution unsatisfied, against a corpora- 
 tion, the remedy of the judgment creditor is by sequestra- 
 tion of the property of the corporation and the appointment 
 of a receiver. Hinds v. C. & N. F. R. E. Co., 10 How. Pr. 
 487 ; Fitchburg Nat. Bank v. Bushwick Chem. W'ks, 13 
 Civ. Pro. Rep. 155. So a foreign corporation not having a 
 place of business within the state cannot be examined as 
 judgment-debtor for the purpose of the appointment of a 
 receiver of its assets to be applied on an execution. Stephens 
 V. Page, 54 N. Y. St. Rep. 133. 
 
 10. Foreign ministers — Consuls, etc. — Supplementary 
 proceedings do not apply to the case of a foreign consul 
 who has permitted judgment to be taken against him, and, 
 if an order be obtained, he cannot be attached for refusal 
 to obey it. Griffin v. Dominguez, 2 Duer, 656. 
 
 III. Concurrent Remedies. 
 A judgment-creditor may, during the pendency of supple- 
 mentary proceedings, institute an action to make his judg- 
 ment a lien on real estate transferred by the judgment- 
 debtor to defraud his creditors. The creditot may prose- 
 cute both until satisfaction of his judgment. Gates «. 
 Young, 17 Week. Dig. 651. 
 
Proceedings to Collect Taxes. 11 
 
 IV. Tax— P'roceedings to Collect. 
 
 Section 1 of chap. 640 of the Laws of 1881, provides as 
 follows: "When a tax exceeding ten dollars in amount 
 levied by the board of supervisors of a county against a 
 person, firm, estate or corporation, residents thereof, or by 
 the board of trustees of a village against a person, firm, 
 estate or corporation, residents of the county in which 
 such village, or the principal part thereof, -is located, is 
 returned by a town or village collector uncollected, for 
 want of goods .and chattels out of which to collect the same, 
 the supervisor of the town or ward, or the county treasurer, 
 and the president of a village, as to village tax, within one 
 year thereafter, may apply on affidavit to the county judge 
 or special county judge of the county, and obtain an order 
 requiring such persons, firm, estate or corporation to 
 appear before such county judge, or before a referee named 
 in such order, and answer concerning his, their or its prop- 
 erty. The same proceedings may in all respects be had as 
 in cases supplementary to execution, and the same costs 
 and disbursements may be allowed against the person, firm, 
 estate or corporation examined, concerning his, their or 
 its property, but none shall be allowed in his, their or its 
 favor, provided that the proceeding be commenced within 
 one year after tlie collector has made his return. This 
 act applies to all villages whether incorporated by special 
 acts or under the general acts. Upon an application to the 
 county judge for an order for the examination of a delin- 
 quent taxpayer, the affidavit need not allege all the facts 
 necessary to show jurisdiction in the assessors and super- 
 visors. It is sufficient if the requirements of the statute 
 are observed. Matter of Conklin, 36 Hun, 588. But if the 
 assessment is void, the proceedings must be dismissed. 
 Inman v. Coleman, 37 id. 170. The question whether the 
 taxpayer had sufficient personal property from which the 
 tax could have been made can only be investigated upon 
 an independent motion to set aside the original order upon 
 affidavit showing the facts. Ee Hartshorn, 63 id. 536; 4i 
 N. Y. St. Eep. 16; 17 N. Y. Supp. 567. 
 
 A dissolution of an order for examination in supple- 
 mentary proceedings may be moved for on the ground that 
 
12 Supplementary Proceedings. 
 
 the order was improvidently granted. Bassett v. Wheeler, 84 
 N. Y. 466. 
 
 Upon an appeal from a motion to set aside supple- 
 mentary proceedings, the question whether the person pro- 
 ceeded against was a resident will not be reviewed in the 
 court of appeals if the evidence is conflicting. Id. 
 
 A payment made as directed in supplementary proceed- 
 ings, held a voluntary one in an action against the asses- 
 sors for the lack of jurisdiction, the order itself not author- 
 ising seizure. Drake v. Shurtliff, 24 Hun, 422. 
 
Judgments that may be Enforced by. 
 
 13 
 
 CHAPTER II. 
 
 JUDGMENTS. 
 
 I. Judgments That Mat be En- 
 
 JFOBCED BY. 
 
 1. Amount of. 
 
 S. Justice's court judgment must 
 be filed during six years. 
 II. Judgment of a Couht not op 
 Record. 
 3. Amount of. 
 III. Okdeb for Payment of Money. 
 
 IV. Judgment by Confession. 
 V. Judgment for Defendant. 
 
 VI. Judgment against Joint-Deb- 
 
 tors. 
 
 VII. Judgment against Infants. 
 VIII. Judgment of Federal Courts. 
 
 IX. Limitation of Lien op Judg- 
 ments ON Real Estatf 
 
 I. Judgments that may be Enforced by. 
 
 I. Amount of. — To entitle a judgment-creditor to main- 
 tain supplementary proceedings the judgment must have 
 been rendered for a sum not less than twenty-five dollars. 
 Code of Civ. Pro., § 2458. This provision renders obso- 
 lete most of the cases with reference to the amount of 
 the judgment, ft changes the rule in Butts v. Dickinson, 
 20 How. Pr. 230; Anonymous, 32 Barb. 201; Vuttle v. 
 Whitehead, 2 Hilt, 596; Wolf v. Jordan, 22 Hun, 108. 
 It allows the proceedings to be taken upon any judgment 
 or decree of any court of this state, which was rendered for 
 a sum not less than twenty-five dollars, provided the judg- 
 ment was rendered upon the judgment-debtor's appearance 
 or personal service of process upon him; and also provided 
 that the debtor can be proceeded against by supplementary 
 proceedings, and with the exceptions herein mentioned. 
 Proceedings may be taken upon a judgment of a court of 
 record irrespective of the amount due on the judgment at 
 the time the proceedings are instituted if the judgment at 
 the time it was entered amounted to twenty -five dollars. 
 Because such judgment is a lien on and may be enforced 
 against real estate, whatever its amount. 2 Til. & Sh. Prac. 
 855. ^ 
 
 2. Justice's court judgment must be filed within six years. 
 — If the judgment is of a justice's court, or other inferior 
 court, it must be for at least twenty-five dollars ; and a 
 transcript of the judgment filed ; and the judgment dock- 
 
14 Supplementary Pkoceedings. 
 
 eted with the clerk of the county where it was rendered. 
 Stryburg v. Hicks, 2 Law Bull. 6. The decisions bearing 
 on the question of when supplementary proceedings may be 
 had upon judgments of courts of justices of the peace, 
 where a transcript thereof is filed in the county clerk's of- 
 fice, have become a snare into which the best practitioners 
 may be entrapped unless they use the greatest care. It has 
 therefore been found necessary to cite the different cases. 
 It was held in Davidson v. Horn, 47 Hun, 51, that a justice's 
 judgment must be docketed in the county clerk's office 
 within six years from the time of its rendition, in order to 
 be enforced by supplementary proceedings. The court in 
 that case say : " There is no express statutory limitation 
 of the time within which such a transcript may be filed and 
 judgment docketed. The filing of the transcript and docket- 
 ing the judgment is a proceeding taken ex parte to charge 
 the judgment-debtor and his property, without his consent. 
 The right of a judgment-debtor to avail himself of the stat- 
 ute of limitation as a bar, becomes perfect at the end of six 
 years from the time the judgment is entered in the justice's 
 docket. After such six years that right is a vested one. 
 Shriver v. Shriver, 86 N. Y. 580 ; Rider v. Wilson's Ex'rs, 
 41 N. L. J. 99. The next case is Bol't v. Hauser, 33 N. T. 
 St. Rep. 343. It was there held that the six years' statute 
 of limitations does not apply to supplementary proceedings 
 to enforce a justice's judgment which has been docketed in 
 the county clerk's office, and which is, therefore, made by 
 statute a judgment of the county court. The judgment in 
 that case was docketed in the county clerk's office the same 
 day that it was rendered by the justice. Seven yeaps after- 
 wards a receiver was appointed of the judgment-debtor's 
 property in supplementary proceedings founded on said 
 judgment. The matter came to the general term, upon an 
 appeal from an order denying a motion to set aside the 
 order appointing the receiver. In that case the court -ignores 
 the ease of Davidson v. Horn, but places great stress on the 
 fact that the defendant appeared in person and by attorney 
 at the hearing of the motion, and raised no objection. In 
 Rose V. Henry, 37 Hun, 397, the question arose on a motion 
 for leave to issue an execution, and the court say : "No 
 time is prescribed within which the transcript of a justice's 
 
Judgment of a Court not of Record. 15 
 
 judgment must be docketed in the county clerk's office. " 
 The above case is cited with approval in Davidson v. Horn, 
 47 Hun, 51 ; and it was held in Townsend v. Tolhurst, 32 
 N. Y. St. Rep. 21, that leave to issue execution upon a judg- 
 ment of a justice of the peace may properly be granted 
 after the lapse of more than six years after its rendition, 
 when a transcript thereof was docketed in the county clerk's 
 office within that time ; that section 382, subdivision 7, of 
 the Code does not extinguish or destroy the lien of a judg- 
 ment so docketed. Thus we find the court still following 
 the case of Wattermire v. Westover, 14 N. Y. 16, in which 
 the court held that the statute of limitations did not ex- 
 tinguish or destroy the lien created by the judgment dock- 
 eted in the county clerk's office, There is nothing in David- 
 son V. Horn which conflicts with what is said in Townsend 
 V. Tolhurst. When we look at Dieffenbach v. Roch, 21 N. 
 Y. State Rep. 570; 112 N. Y. 621, we find that that de- 
 cision is simply to the effect tliat a judgment of a justice of 
 the peace, docketed in the county clerk's office, is not a 
 judgment "rendered" in the county court, but remains "a 
 judgment rendered in a court not of record " within the 
 meaning of the provisions of subdivision 7, section 382, 
 of tlie Code of Civil Procedure, declaring that an action 
 upon such judgment must be commenced within six years 
 after the final judgment was rendered. 
 
 In 1894, the Legislature attempted to settle this question 
 by inserting in section 376 of the Code of Civil Procedure 
 the words " or hereafter docketed pursuant to the provis- 
 ions of section 3017 of this act"; by inserting in subd. 7 of 
 section 382, the words "vyhere a transcript shall be ffied 
 pursuant to the provisions of section 3017 of this act," and 
 by inserting m section 3017 the words, "if within six years 
 after the rendition of the judgment. 
 
 II. Judgment of a Court Not of Record. 
 3. Amount of. — Section 3043 provides that in case the 
 judgment rendered in justice's courts, a transcript of which 
 is filed in the conty clerk's office, is for a sum less than 
 twenty-five dollars exclusive of costs, the provisions of the 
 statute relating to the satisfaction of an execution out of 
 the judgment-debtor's real property are not applicable. In 
 
16 Supplementary Pkoceedings. 
 
 Mason v. Hackett, 35 Hun, 240, the court say : " This pro- 
 vision (Code of Civ.' Proj, § 2458), was not intended to 
 change the provisions of the act that the judgment must be 
 a lien upon the real estate, and is susceptible of that con- 
 struction. The amendment was doubtless made to author- 
 ize proceedings after execution on the judgments rendered 
 in courts of record, where the same is a lien upon real es- 
 tate and there was no recovery for damages, but was ren- 
 dered in favor of the prevailing party for costs. Whenever 
 the proceedings result in the appointment of a receiver, the 
 title to all his real estate passes in trust to that officer. We 
 think it clear that it was not the intention of the legislature 
 to devote the debtor's real property to the payment of judg- 
 ments against him, unless they by the same statutes became 
 a lien thereon." So far, therefore, as the above case goes, 
 it holds that supplementary proceedings cannot be had upon 
 a judgment of a justice's court, which is, when docketed, 
 less than twenty-five dollars, exclusive of costs. 
 
 III. Order for Payment of Money. 
 
 An order directing the purchaser at a judicial sale to pay 
 the amount duly ascertained and determined by the court 
 to be the damages resulting from the refusal of such pur- 
 chaser to complete his purchase, is to be regarded as a 
 judgment of the court for all the purposes of supplementary 
 proceedings. Lydecker v. Smith, 44 Hun, 454. So it seems 
 that any order directing the payment of money, when en- 
 rolled and docketed as other judgments under rule 27 of the 
 supreme court, may be enforced by supplementary proceed- 
 ings. Barnard v. Heydrich, 2 Abb. N. S. 48. 
 
 IV. Judgment by Confession. 
 
 Supplementary proceedings may be taken upon a judg- 
 ment taken by confession. Appearance is predicable of 
 every party, who submits himself to the jurisdiction of the 
 court. The judgment-debtor, in a judgment by confession, 
 does this by signing the statement of confession, and his 
 appearance is complete when he verifies his statement. 
 Cooley V. Lawrence, 12 How. Pr. 176. 
 
Judgment for Defendant. 17 
 
 V. Judgment for Defendant. 
 
 These proceedings may also be taken upon a judgment 
 recovered in an action by the defendant in the action. It 
 is a judgment in which there was an appearance by the 
 judgment-debtor. The plaintiff appears by his commencing 
 his action. Davis v. Jones, 8 Civ. Pro. Eep. 44. 
 
 VI. Judgment against Joini^debtors. 
 
 Section 2461 of the Code prescribes, that when the execu- 
 tion was issued as prescribed by section 1941, the personal 
 property owned by a defendant not summoned, jointly with 
 the defendants summoned, may be reached. This section 
 seems to be very ambiguous, when read in connection with 
 section 1941 and other sections relating to joint-debtors. A 
 debt due to, or other personal property owned by, one or 
 more of the defendants not summoned, jointly with the 
 defendants summoned, or with any of them, may be reached 
 by supplementary proceedings. Where an execution on a 
 judgment has been issued as prescribed in section 1941 of 
 the Code, only the joint property of all, and the separate 
 property of those served with the summons, can be reached. 
 Code Civ. Pro.*, § 2461. Only those served with the sum-' 
 mons can be served with the order instituting the proceed- 
 ings. 
 
 VII. Judgment Against Infants. 
 
 Supplementary proceedings may be taken upon agiudg- 
 ment recovered against an infant. In Lederer v. Ehrenfeld, 
 49 How. Pr. 403, the plaintiff, who was infant of about 
 nineteen years of age, commenced an action against the de- 
 fendant. On the trial the complaint was dismissed. On 
 motion judgment was directed to be entered against the in- 
 fant plaintiff. After the return of execution the judgment- 
 creditor obtained an order for the examination of the plain- 
 tiff. The plaintiff moved to set aside the order on the 
 ground that he was an infant. Such motion was denied. 
 
 VIII. Judgment of Federal Courts. 
 
 Supplementary proceedings cannot be taken on a judg- 
 ment of a federal court, although such court is located in 
 3 
 
18 Supplementary Pi'oceedings. 
 
 this state. Davis v. Burns, 23 Hun, C48 ; Tarbell v. Griggs, 
 3 Paige, 207 ; but see Telles v. Lynde, 47 Fed. Eep. 912. 
 
 IX. Limitation of Lien of Judgments on Eeal Estate. 
 
 By section 1251 of the Code, the hen acquired by the 
 docketing of the money-judgment expires in ten years. 
 This is extended an additional year by force of section 1380, 
 which prevents the issuing of an execution against real 
 estate of a decedent until one year after the death of the 
 decedent. Matter of Holmes, 42 N. Y. St. Eep. 641. The 
 lien of a judgment on real property cannot be extended be- 
 yond that time, as against bona fide purchasers and incum- 
 brances, by the levy of an execution ; the sale on execution 
 must take place within ten years, unless stayed by injunc- 
 tion or appeal. Darling v. Littlejohn, 12 N. Y. Supp. 205. 
 The time during which a judgment-creditor is stayed by an 
 injunction or other order, or by the operation of an appeal, 
 or by express provision of law, from enforcing a judgment, 
 is no part of the ten years, as against the judgment-debtor. 
 But it is different as against a purchaser, creditor, or mort- 
 gagee in good faith. § 1225. A judgment is presumed to 
 be paid after twenty years. Id. 376. 
 
Executions in General. 
 
 19 
 
 CHAPTER III. 
 
 EXECUTION. 
 
 . Of Execution. 
 
 1. In general. 
 
 2. Against property. 
 
 3. Form of. 
 
 4. Issue after five years. 
 
 5. Who must issue when judgment 
 
 was taken in justice's court. 
 
 6. Objections must be taken when. 
 
 7. SufBciency of return. 
 
 8. When execution must be returned. 
 
 9. What amounts to a return. 
 
 10. Second execution after order for 
 
 examination. 
 
 11. Ten years limitation after execu- 
 
 tion. 
 
 12. Levy of execution on real estate 
 
 after ten years. 
 
 13. Countermand of execution — Ef- 
 
 fect of a receiver. 
 
 14. Joint-debtors. 
 
 I. Of Execution. 
 I. In general. — The execution upon which supplementary 
 proceedings are based, must be issued out of a court of 
 record to the sheriff of the county where the judgment- 
 debtor has, at the time of the commencement of the special 
 proceedings, a place for the regular transaction of business in 
 person ; or, if he is then a resident of the state, to the sheriff 
 of the county where he resides ; or, if he is not then a resi- 
 dent of the state, to the sheriff of the county where the 
 judgment-roll or transcript of the judgment of the inferior 
 court is filed. Code Civ. Pro., § 2458. The word "then" 
 refers to the time of the commencement of the special pro- 
 ceedings and the use of the present tense of the verbs in the 
 phrases "has a place of business," "is then a resident," 
 and "where he resides," plainly show that the reference 
 throughout is to the present residence, etc., of the judg- 
 ment-debtor at the time the application for the order is 
 made. The proof must show that the execution was issued 
 to the sheriff of the county where the judgment-debtor 
 then presently resided. Schenck v. Erwin, 38 N. Y. St. 
 Eep. 603. The transcript spoken of is that from a justice 
 or other inferior court in which judgment was rendered 
 and which is filed with the clerk of the county where 
 the court is located. Code Civ. Pro, § 2458. Section 172 
 provides that in an action or special proceedings, to 
 which the sheriff of a county is a party, a coroner of the 
 
20 Supplementary Proceedings. 
 
 same county has all the power and Is subject to,all the 
 duties of a shei-iflf, in a cause in which a sheriff is not a 
 party, and section 1362 provides that an execution must be 
 directed to the sheriff, unless he is a party or interested, 
 in which case it must be directed to the coroner. But the 
 court may order an execution issued upon a judgment 
 rendered against a sheriff to be directed to a person desig- 
 nated in the order instead of the coroner. Whether an 
 order in these proceedings can be maintained where an 
 execution is issued to the coroners, or to a coroner of the 
 county, or to a person designated by an order of the court, 
 seems not to haVe been expressly decided, as no reported 
 case has been found under the Code of Civil Procedure 
 relating to this point. It seems, however, that a judgment 
 against a person who is at the time a sheriff of the county 
 may be enforced by supplementary proceedings. 
 
 2. Against property. — The execution must be one against 
 property, both real and personal, to collect a definite sum 
 of money. Dix v. Briggs, 9 Paige, 595. 
 
 3. Form of. — The judgment and execution must describe 
 the i)arty whose property is sought to be taken, and so an 
 execution against Truman Hildreth will not authorize a 
 sale of the property of Freeman Hildreth, although the 
 latter may be the person intended. Farnham v. Hildreth, 
 32 Barb. 277. It seems that an execution cannot be issued 
 upon a judgment of an inferior court not of record where 
 the transcript was not filed until after the expiration of the 
 six years limitation to sue on such a judgment. Lewis v. 
 Acker, 7 Week. Dig. 169. But an execution is not rendered 
 void by the omission of a clause requiring the sheriff to 
 return it within sixty days. An omission in an execution 
 of a teste in the name of a judge of the court, or a direction 
 as to the time of its return, is a mere irregularity which may 
 be amended or disregarded. Douglass v. Haberstro, 88 
 N. Y. 611; People v. Bowe, 21 Hun, 614. An execution 
 that does not contain the recitals that the judgment had 
 been docketed in the county to which it was issued is 
 fatally defective. Nans v. Oakley, 39 N. Y. St. Eep. 327. 
 An execution which is void is no protection to the officer 
 executing it. Dunham v. Reilly, 18 id. 36-41. An execu- 
 
Execution After Five Years. 21 
 
 tion must be directed to the sheriff of the county where the 
 judgment is docketed. White v. Coulter, 59 N. Y. 629. 
 
 4. Issue after five years. — The party recovering a judg- 
 ment, or his legal representatives or assignee, may have 
 execution thereupon, t)f course, at any time within five 
 years after the entry of the judgment. Code, §§ 1875-1376. 
 But not against the property of a deceased judgment- 
 debtor. After the lapse of five years from the entry of a 
 final judgment execution can be issued thereupon in one of 
 the following cases only : 
 
 1. When an execution was issued thereupon within five 
 years after the entry of the judgment and has been returned 
 wholly or partly unsatisfied or unexecuted. 
 
 2. Where an order is made by the court granting leave 
 to issue the execution. Code Civ. Pro., § 1377. In Hutson 
 v. Weld, 38 Hun, 142, the court say: "There can be no 
 doubt that the affidavit is defective. It is so because it 
 does not appear that the execution was issued within the 
 five years allowed after judgment by section 1375 of the 
 Code, or if after the expiration of the five years, under such 
 circumstances as justified that ceremony, namely, that an 
 execution had been issued by leave of the court after the 
 expiration of five years." The question in this rase arose 
 under section 24:f>3 of the Code of Civil Procedure. 
 
 5. Who must issue when judgment was taken in jus- 
 tice's court. — An execution upon a judgment recovered in 
 a justice's court and docketed in a county clerk's office, 
 must be issued by the county clerk. Code, § 3043. And 
 any other execution is a nullity, and supplementary pro- 
 ceedings cannot be founded thereon. Merritt v. Judd, 18 
 Civ. Pro. Eep. 159. So where a judgment has been ob- 
 tained in a justice's court in another county, and a tran- 
 script filed in the county clerk's office in said county, a 
 transcript of the docket of which is filed in New York 
 county, the execution in New York county must be issued 
 by the county clerk out of the court of common pleas. Gray 
 V. Leiben, 8 id. 48. 
 
 6. Objection must be taken— When.— The vahdity of the 
 execution cannot be questioned, except upon a motion to 
 set aside the proceedings Hilton v. Patterson, 18 Abb. 
 245; United States L. & E. Co. v. Pike, 2 Law Bull. 31. If 
 
22 Supplementary Proceedings. 
 
 the debtor's attorney appears and makes no objection, it is 
 a waiver of all objections to the regularity of the proceed- 
 ings. Underwood v. Sutcliff, 10 Hun, 453. ^ 
 
 7. Sufficiency oi return.— Proceedings under subdivision 1 
 of section 2432 of the Code, connot be instituted until the 
 remedy by execution is exhausted. In First Nat. Bank of 
 Canandaigua v. Martin, 49 Hun, 573, the court say: "The 
 proceedings are supplementary to the execution, and are 
 not intended to take the place of, or to be a substitute for, 
 the execution. The judgment is a lien upon the real estate 
 of the judgment-debtor. The judgment-creditor has the 
 riglit to sell the real estate upoii the execution, and until it 
 has exhausted its remedy by execution these proceedings" 
 are not available. If the plaintiff should be permitted to 
 procure the appointment of a receiver, and thus vest the 
 title of the real estate of the judgment-debtor in such re- 
 ceiver, it could be sold and the judgment-debtor deprived of 
 the right of redemption which is given to him in case of a 
 sale by execution. It was the duty, therefore, of the plain- 
 tiff to have caused the judgment-debtor's real estate to be 
 sold on execution, thus exhausting its remedy by execu- 
 tion before resorting to these proceedings. 
 
 8. When execution must be returned. — An execution 
 may be returned at any time after it is issued, and supple- 
 mentary proceedings may be taken immediately thereon. 
 And it is immaterial that the return was made before the 
 expiration of sixty days, at the creditor's request, if there 
 is no collusion with the sheriff to procure a return nulla 
 bona, without an attempt in good faith to find goods sub- 
 ject to levy. Forbes v. "Waller, 25 N. Y. 430; Sperling v. 
 Levy, 10 Abb. 426. Except the case of First Nat. Bank of 
 Canandaigua v. Martin, 49 Hun, 573, I am not aware of any 
 case permitting the question to be raised that there was 
 property which the sheriff ought to have taken and sold for 
 the purpose of satisfying the judgment, in whole or in 
 part. And I apprehend that this question, under such cir- 
 cumstances, cannot be raised. The judgment-creditor hav- 
 ing done all that the law requires of him, may act safely 
 upon the return of the sheriff. The question is one of ju- 
 risdiction. The statute says: ""When the execution shall 
 have been returned unsatisfied, in whole or in part, the 
 
When Bxecutiok must be Returned. 23 
 
 judgment-creditor is entitled to an order from a judge." It 
 seems that such return is made the evidence upon which 
 the jurisdiction depends, assuming, of course, that the 
 judgment-creditor has performed all that the law requires 
 of him, and has not improperly interfered with the sheriff. 
 The ground upon which the jurisdiction of the judge rests 
 is, that the legal remedy has been exhausted without satis- 
 faction of the judgment, and certainly the best, if not the 
 only evidence of the fact, is the official return of the sheriff. 
 Upon any other view the question whether there was pro- 
 perty subject to an execution or not, would be open to be 
 litigated by the parties in every proceeding of the kind in 
 question, and to be decided by the court upon the testimony 
 produced. In Pudney v. Griffith, 15 How. Pr. 410, the plain- 
 tiff gave directions to the sheriff as to the time of the re- 
 turn, and instructed him not to proceed to serve the exe- 
 cution. In Spencer v. Cuyler, lY id. 158, the plaintiff or 
 his attorney interfered with the sheriff, and requested him 
 to return the execution immediately, and he did so. In 
 First Nat. Bank of C. v. Martin, 49 Hun, 573, the question 
 arose on two orders, one directing the conveyance and de- 
 livery of real estate to a receiver oi the defendant, and the 
 other adjudging him in contempt for refusing to obey the 
 first-mentioned order. In Forbes v. Waller, 25 N. Y. 434, 
 the question arose in an action to set aside an assignment 
 for the benefit of creditors. In that case the court say: 
 " Before resorting to the equitable powers of the court to 
 compel the satisfaction of a judgment out of the choses in 
 action of the debtor, it is fit and proper that the legal remedy 
 should be exhausted, not only in form, but in reality and in 
 good faith. 
 
 Hence, it was held that the debtor could not be subjected 
 to the costs and annoyance of a creditor's bill until the re- 
 turn day of the execution had passed. Cassidyf. Meacham, 
 3 Paige, 311 ; Piatt v. Caldwell, 9 id. 386. The court far- 
 ■ ther say : "The question whether the Code had or had not 
 affected the rule established under the Revised Statutes, that 
 the legal remedy was not exhausted until the return day of 
 the execution is passed, and regarding the return day as 
 not arriving until sixty days after the receipt of the execu- 
 tion by the sheriff, was not made upon the trial, and will 
 
24 Supplementary Proceedings. 
 
 not be considered." Again the court say : "The judge did 
 not decide, and was not called upon to decide, that the full 
 term of sixty days must elapse after the delivery of the exe- 
 cution to the sheriff before the action could be brought." 
 There is nothing in Iselin v. Henlein, 16 Abb. N. 0. T3, that 
 controverts the doctrine laid down in Cassidy v. Meacham, 
 3 Paige, 312. 
 
 9. What amounts to a return.— Section 2435 of the Code 
 of Civil Procedure, like those of the Code and of the 
 Eevised Statutes, require the return of au execution 
 upon the judgment wholly or partly unsatisfied. It is 
 this return which the sheriff makes that the execution is 
 unpaid wholly or in part, and not the mere filing of the 
 process, with which the court deals in determining 
 whether the remedy at law has been exhausted. Iselin v. 
 Henlein, 16 Abb. N. C. 73. In Cassidy v. Meacham, 3 Paige, 
 312, the court say : " The creditor must set out the issuing 
 of the execution, the time at which it was returnable, and 
 the actual return of the sheriff thereon, in such a manner 
 that the court can see that the remedy at law has been 
 legally exhausted." In Clark v. Dakin, 3 Barb. Ch. 36, the 
 court held that the sheriff's return upon the writ, and not 
 the filing thereof, was the important thing and say : " For 
 the remedy at law is exhausted by the sheriff's return upon 
 the execution, which is all that is necessary to give the 
 court jurisdiction." In Ocean Nat. Bank v. Olcott, 46 N. Y. 
 12-19, the court say: "Although the indorsement of the 
 execution nulla bona was not filed it was actually made, 
 which, with the other facts allege.d may be regarded as a 
 substantial compliance with the equity rule." In Maiks v. 
 Spaulding, 35 Hun, 478, the question arose on a motion to 
 set aside orders for the examination of the judgment- 
 debtor. In that case the sheriff made an equivocal return. 
 The court will not go behind the return except in a direct 
 motion to set it aside made by the debtor. Tyler v. Willis, 
 33 Barb. 327 ; 12 Abb. 465 ; Sperling v. Levy, 10 id. 426 ; 
 Wright V. Nostrand, 94 N. Y. 33. 
 
 Amendable defects in. — In Wright v. Nostrand, 94 N. Y. 
 47, the court say : " We are of the opinion that the execu- 
 tion in question, although extremely defective, and subject 
 to be vacated and set aside on motion, for informality, was 
 
Second Execution after Ordeu for Examination. 25 
 
 yet not so defective that it can be treated as void, when 
 questioned in a collateral proceeding. Most of the defects 
 appearing in the execution have been held to be amendable, 
 and defects of that character can only be taken advantage 
 of by the defendant in the execution in a direct proceeding 
 to set it aside. A variance between the amount of an exe- 
 ciltion and the judgment will not vitiate the execution. 
 Boreland v. Stewart, 4 Wend. 568; Jackson v. Page, id 587. 
 If any sum whatever be due upon a judgment, an execution 
 issued thereon, which claims too much, is not void. Peck 
 V. Tiffany, 2 N. Y. 451. An execution which gives un- 
 authorized directions as to its return is not void, as the law 
 prescribes the sheriff's duty in making returns, and he is 
 not controlled by such directions. Hutchinson v. Brand, 
 id. 208. The amount named in the execution may be 
 amended so as to make it conform with the amount of the 
 judgment. Oakley v. Becker, 2 Cow. 454. Errors in the 
 description of the court where the judgment was obtained, 
 and the place where the judgment-roll was filed, have been 
 held amendable. Abels v. Westervelt, 15 Abb. 230. Where 
 an execution issued upon a justice's judgment, and filed 
 in the county clerk's office, was not signed by the clerk, 
 held sufficient to protect the officer executing it. Hill v. 
 Haynes, 54 N. Y. 153. 
 
 10. Second execution after order for examination. — 
 The institution of supplementary proceedings after the 
 return of an execution does prevent the issuing of another 
 one upon the same judgment. Gates v. Young, 17 Week. 
 Dig. 551. But if under the second execution the sheriff 
 levies upon property of the judgment-debtor it suspends 
 the other remedies of the plaintiff until a return is made 
 by the sheriff. Steinhardt v. Michalda, 15 Civ. Pro. Eep. 
 323. But in Farqueharson v. Kimball, 18 How. Pr. 33, it 
 is held, that the issuing of a second execution against a 
 judgment-debtor and a levy by the sheriff under it do not 
 prevent the issuing of sin order for the examination of the 
 judgment-debtor where the first execution has been re- 
 turned unsatisfied. After filing a creditor's bill under the 
 old system the complaint might have taken out a new 
 execution upon his judgment and levy upon the property 
 of the judgment-debtor, and should such property be 
 4 
 
26 Supplementary Proceedings. 
 
 insufficient to satisfy the judgment he would not have been 
 compelled to elect either to dismiss his bill or adandon his 
 execution. Salt v. Lawson, i Sand Yl8; Lilliendahl v. 
 Tellerman, 11 How. Pr. 528. These rules of the old court 
 of chancery are just as applicable to the examination of a 
 debtor under the Code as to the proceeding by bill. 
 
 II. Ten years limitation after execution. — The court of 
 appeals, in Couyngham v. Duffy, 31 N. Y. St. Rep. 736, 
 settled the question of limitation, overruling the case of 
 Bean v. Tonnelle, 24 Hun, 354; Levy v. Kirby, 7 Civ. Pro. 
 Rep. 98. In Conyngham v. Duffy, the court says: "By 
 section 388 of chapter 4, ten years is fixed as the limitation 
 in all cases not specially prescribed in the first two titles, 
 and while the chapter speaks of actions and the time at 
 which the causes x)f actions accrue, the latter sections, 414, 
 415, include special proceedings and the securing of rights 
 to institute the same. And hence it follows that by chapter 4 
 a limitation for the institution of supplementary proceed- 
 ings is fixed at ten years from the accruing of the right." 
 The judgment creditor is, therefore, limited to the term of 
 ten years from the return of the first execution in which 
 tO' assert his right to supplementary proceedings. And 
 unless the affidavit or proof upon which the order for the 
 examination of the judgment-debtor is founded shows such 
 fact the order may be vacated. McGuire v. Hudson, 41 N. 
 Y. St. Rep. 295. In Baumler v. Ackerman, 43 id. 87, judg- 
 ment was recovered November 1, 1876, and an execution 
 issued thereon on the same day which was returned un 
 satisfied. A second execution was issued upon the judg- 
 ment, Apri 17, 1891, which was returned whoUy unsatified, 
 and an order was obtained for the examination of the 
 judgment-debtor. Upon motion this order was set aside 
 on th6 ground that more than ten years having elapsed after 
 the return of the first execution, and the statute of limi- 
 tation had run against plaintiff's right thereto. The court 
 say: "We think his right to institute the proceedings 
 had expired by limitation of time." The judgment had 
 ceased to be a lien upon the real property of the defendant 
 Avhen the proceedings were instituted. The execution was 
 ineffectual, therefore, to reach tliat class of property. It 
 was held in Dix v. Briggs, 9 Paige, ch. 596, that in order to 
 
Levy of Execution on Eeal Estate after Ten Years. 27 
 
 institute a creditor's bill there must have been issued and 
 returned an execution against real property. Whether 
 supplementary proceedings can be maintained on a judg- 
 ment recovered more than ten years before the issue of the 
 first execution thereon seems not to have been settled. So 
 the question, whether these proceedings can be instituted 
 on a judgment after twenty years from the time it was 
 docketed, is still unsettled. The words of section 2435 of 
 the Code are: "At any time within ten years after the 
 return, wholly or partly unsatisfied, of an execution against 
 property * * * the judgment-creditor is entitled to an 
 order. 
 
 Suppose that the first execution on a judgment was 
 issued more than ten years after the judgment was docketed 
 by virtue of an order granting leave therefor, made prior 
 i;o the expiration of the ten years in which such judgment 
 was a lien on real property. Could an order be granted 
 after twenty years from the time of the docketing of the 
 judgment and within the ten years after the issuing of said 
 execution, and, if so, could a receiver be appointed in such 
 proceedings ? If a receiver could be appointed at such time, 
 would he by virtue of his office be vested with the title of 
 the judgment-debtor's real estate? No reported case has 
 been found relating to this point. 
 
 In Evans v. Hill, 18 Hun, 464, it was held that a judg- 
 ment-creditor's action will not lie where more than ten 
 years has elapsed since the docketing of the judgment and 
 no new lien upon the land has been acquired by the levy 
 of an execution thereon. But it does not state how it 
 would be in regard to personal property, choses in action, 
 etc. All that was said in Palen v. Bushnell, 21 N. Y. St. 
 Rep. 867, is that section 376 of the Code does not apply to 
 a remedy founded upon a judgment instituted before the 
 period mentioned had elapsed. The court, in Baumler v. 
 Ackerman, says: "It is suggested by the appellant that 
 provision is made for such proceedings after the lapse of 
 ten years by section 1252 of the Code of Civil Procedure. 
 That section has relation only to judgments rendered ^fter 
 the adoption of that section into the Code." 
 
 12. Levy of execution on real estate after ten years. — 
 After the ten years prescribed by section 1251 of the Code, 
 
28 Snpplementary Proceedings. 
 
 a judgment-creditor may obtain a lien and levy upon the 
 real property of the judgment-debtor by issuing an execu- 
 tion to the sheriff and by filing with the clerk of the county 
 a notice subscribed by the sheriff, describing the judgment, 
 the execution and the property levied upon. Tlie notice 
 must be recorded and indexed by the clerk. Code Civ. 
 Pro. § 1252. 
 
 13. Countermand of execution— Effect of, on receiver. — 
 Where a receiver has been appointed, a countermand of the 
 execution subsequent to such appointment will not render 
 the order void until it has been vacated by the judge or 
 court in which the proceeding is pending. Palmer v. Col- 
 ville, 45 N. Y. St. Eep. T06. 
 
 i4. Joint debtors.— The execution mentioned in section 
 2461, to be issued under section 1941, is one to collect the 
 balance remaining unpaid on a joint demand after the joint 
 property has been exhausted upon a prior execution. 
 
By Whom Proceedings may be Instituted. 
 
 29 
 
 CHAPTEE IV. 
 
 BY AND AGAINST WHOM PROCEEDINGS MAY BE INSTITUTED. 
 
 I. Bt Whom. 
 
 1. In general. 
 
 2. Personal representatives. 
 
 II. Against Whom. 
 
 3. Third persons. 
 III. Residbnce and Place or Ex- 
 amination OP Debtor or 
 Third Party. 
 
 I. By Whom Proceedings may be Instituted. 
 
 1. In general. — Any judgment-creditor, be he plaintiff 
 or defendant in an action, may institute the proceedings^ 
 so also may the assignee of a judgment. Frederick v. 
 Decker, 18 How. Pr. 96. Whether he is such by a special 
 or a general assignment and after the death of the party 
 recovering the judgment. CriU v. Kornmeyer, 56 How. Pr. 
 276. A receiver of the property of the judgment-creditor 
 is in the position of an assignee of the judgment (Moore 
 V. Taylor, 40 Hun, 56), and may institute supplementary 
 proceedings. But all papers should be indorsed with the 
 name and address of the assignee and show how they are 
 entitled to the remedy. Wright v. Nostrand, 94 N. Y. 31. 
 A judgment-creditor of an estate allowed by a surrogate to 
 issue execution is not authorized to institute these pro- 
 ceedings. Collins V. Beebe, 27 N. Y. St. Eep. 4; 54 Hun, 
 318. A sheriff holding an attachment against a debtor 
 may maintain these proceedings upon a judgment in favor 
 of such debtor. Code § 655, subd. 1. 
 
 2. Personal representatives.— Where the party recover- 
 ing a final judgment has died, execution may be issued at 
 any time within five years after the entry of judgment by 
 his personal representatives, as of course. But the execu- 
 tion must be indorsed with the name ^nd residence of the 
 person issuing the same. Code, § 1376. But failure to in- 
 dorse upon the execution the statement that it was issued 
 by the personal representatives of the deceased judgment- 
 creditor, will not invalidate the proceedings, vrhere no ob- 
 jection is made until after appointment of receiver. Deyo 
 V. Borley, 43 N. Y. St. Rep. 638. It was provided by 
 section 283 of the Code of Procedure, that the personal 
 
30 Supplementary Proceedings. 
 
 representatives of a deceased judgment-creditor may, at any- 
 time within five years after the entry of the judgment, in- 
 stitute proceedings supplementary to execution, to enforce 
 the same. OolUer v. Devere, 7 Hun, 61. And the court in 
 Pardee v. Tilton, 20 id. 76, say : " Such right was reserved 
 and continued in full force by the qualification of the re- 
 pealing clause of the Laws of 1877, chap. 417, subd. 8, § 1. 
 And where an execution was issued upon the judgment and 
 returned unsatisfied, in the lifetime of the judgment cred- 
 itor, his representatives may, upon showing that fact, 
 prosecute supplementary proceedings without issuing a new 
 execution." Walker v. Donovan, 53 How. Pr. 3. But 
 whether under the Code of Civil Procedure such proceedings 
 must be commenced within five years after the entry of the 
 judgment, does not seem to have been settled. A sheriff 
 holding an attachment may maintain such proceedings in 
 his own name, or in the name of the defendant in the action 
 in which the attachment is issued. Code, § 655, subd. 1. 
 
 II. Against Whom. 
 As a general rule, supplementary proceedings may be 
 maintained against any person against whom a money 
 judgment can be enforced. Thus, they may be maintained 
 against an infant. Lederer v. Ehrenfeld, 49 How. Pr. 403. 
 But they cannot be maintained against a person who, since 
 the recovery of the judgment, has been discharged under 
 the Two-thiids Act. Smith v. Paul, 20 How. Pr. 97; Eobens 
 V. Sweet, 48 Hun, 436. Nor a foreign minister or consul; 
 Grifiin v. Dominguez, 2 Duer, 656. Nor against a corporation 
 as a judgment-debtor; Hinds v. Oanandaigua & N. F. R. 
 Co. , 10 How. Pr. 487; Code Civ. Pro., § 2463. Nor against a 
 debtor, while he is under arrest on execution against his 
 person, issued upon the judgment. Cooper v. Bigelow, 1 
 Cow. 56. Nor against an estate of a deceased judgment- 
 debtor, where an execution has been issued by leave of the 
 surrogate. In Collins v. Beebe, 54 Hun, 318; 27 N. Y. St. 
 Eep. 4, the court say: "The judgment was recovered 
 against the defendants as executors; it was not a judgment 
 attended with the ordinary right of the plaintiff to issue 
 execution upon it, or in any manner to interfere with the 
 property of testator's estate, but the surrogate was author- 
 
Residence and Place of Examination. 31 
 
 ized to permit an execution to be issued. But the plaintiff 
 is not authorized to proceed further." 
 
 3. Third persons. — Proceedings for the examination of a 
 third party as to property in his hand belonging to the judg- 
 ment-debtor, cannot be maintained where the judgment- 
 debtor at the time is exempt from examination, as in the 
 case of a corporation. Fitchburgh Nat. Bank v. Bushwick 
 Ohem. Works, 13 Civ. Pro. Eep. 155. Nor when the third 
 party has possession of the property as trustee or receiver. 
 Smith v. McNamara, 15 Hun, 447. Nor where an order for 
 examination has not been served upon the judgment-debtor. 
 Merrill v. AUin, 46 Hun, 623; People ex rel. Grant v. War- 
 ner, 51 id. 53. But it seems that the court has overlooked 
 the last phrase of section 2432, which provides that "The 
 proceedings under subdivision third, against third persons, 
 may be pursued either alone or simultaneously with the 
 proceedings under either subdivision first or subdivision sec- 
 ond. A creditor can, if he desires, at any time, institute pro- 
 ceedings against any person who may reside in any county 
 of the state, whether an execution has or has not been issued 
 to the sheriff of the county where such person resides. 
 
 HI. Eesidence and Place op Examination of Debtor or 
 
 Third Party. 
 
 In order to maintain supplementary proceedings, it must 
 appear that the execution was issued to the sheriff of the 
 county vvhere the judgment-debtor has, at the time of the 
 commencement of the proceedings, a place for the regular 
 transaction of business in person; or, if he is then a resi- 
 dent of the state, to the sheriff of the county where he re- 
 sides. If he is not a resident of the state, to the sheriff of 
 the county where the judgment-roll or a transcript of jus- 
 tice's judgment is filed. Code Civ. Pro., § 2458. Where, 
 after the execution is issued and before an application for 
 an order is rnade, the judgment-debtor removes from the 
 county to which the execution was issued, an execution 
 must be issued to the county in which he resides at the time 
 of the application for an order. Schenck v. Erwin, 38 N. 
 Y. St. Eep. 603. 
 
 In order to examine a non-resident of the county, it must 
 appear, in the language of the Code, that the defendant has, 
 
32 Supplementary Pkoceemngs. 
 
 within the county where the application for. the order is 
 made, an office for the regular transaction of business in 
 person, as contradistinguished from cases where he tran- 
 sacts the same through agents. Bo wen v. Gump, 59 How. 
 Pr. 507. But it need not be his principal place of business. 
 McEwan v. Burgess, 25 id. 92. 
 
 Where a person resides in one county and has a place for 
 the regular transaction of business in person in another 
 county, then the execution may be issued to either county. 
 But a person working for the government in a particular 
 office away from the county of his residence has not thereby 
 a place of business in the county where he works. Belknap 
 V. Hasbrouck, 13 Abb. 418. The court, in Merrill v. Allin, 
 46 Hun, 623-627, construed the provisions of section 2434 
 of the Code to be that either special proceedings may be 
 instituted before a judge Of the court, out of j adiich. or the 
 county judge, or special county judge, of the county to 
 which an execution has been issued, to mean the county 
 judge or special county judge of the county to which an 
 execution has been issued — as provided by section 2458. 
 That proceeding to compel the appearance and examination 
 of a person indebted to the judgment-debtor must be in- 
 stituted in the county where the judgment-debtor resides. 
 If such third party resides in another county he must be 
 examined before a referee in the county where he resides. 
 The case of Foster v. Prince, 18 How. Pr. 258, and Gould 
 V. Moore, 51 id. 188, have been rendered obsolete by the 
 later general term decisions. In An way v. David, 9 Hun, 
 296, the question was as to the examination of a judgment- 
 debtor who resided in New Jersey. The judgment-roll was 
 filed in King's county, and a transcript of it filed in 
 New York county, execution was issued to New York 
 county where the judgment-debtor had a place for the 
 transaction of business in person. It seems that so much 
 of said decision as holds that the issue of the execution to 
 New York county was sufficient, has been rendered obso- 
 lete by subdivision 2 of section 2458 of the Code of Civil 
 Procedure. 
 
 The Code of Civil Procedure does not in express terms 
 prescribe in what county a non-resident judgment-debtor 
 who has no office for the transaction of business within this 
 
Eesidence and Place of Examination. 33 
 
 state can be compelled to attend and be examined. But it 
 must be inferred from the construction placed upon sub- 
 divisions 1 and 2 of section 2458, that the judgment-debtor 
 mentioned in subdivision 3 of said section cannot be com- 
 pelled to attend at a place without the county wherein the 
 judgment-roll, or where the judgment was rendered in a 
 justice's or other court not of record, in the county where 
 the judgment was taken, and a transcript thereof filed. 
 Merrill v. Allin, 46 Hun, 623; Auway v. David, 9 Hun, 296. 
 But can a non-resident judgment-debtor, not having an 
 office within the state, be required to appear and be exam- 
 ined in the county where the judgment-roll is filed, unless 
 the order is served upon him within said county ? This 
 question seems not to have been expressly decided. What 
 was said on this point in An way v. David, id., was not 
 necessary to the decision of that case. Wilson v. Andrews, 
 9 Hun, 39. All the provisions of the statute authorizing 
 and regulating the proceedings are to be construed, so as to 
 constitute a harmonious system. And as the judge before 
 whom the matter is pending can appoint a referee to take 
 testimony in any county of the state it seems that he can 
 by order compel the attendance of the judgment-debtor be- 
 fore such referee in any county in which he may be found. 
 Code, § 2442. A warrant of arrest under section 2437 may 
 issue upon proper proof against a non-resident judgment- 
 debtor. Denning v. Schieffelin, 26 N. Y. St. Eep. 96. An 
 order to examine a third person under section 2441 of the 
 Code must be made by the judge of the county in which the 
 judgment-debtor resided at the time of the commencement 
 of the proceedings, no matter where such third party re- 
 sides. Schenck v. Erwin, 43 N. Y. St. Eep. 862. Such order 
 it seems can only be made after an order has been duly 
 served upon the judgment-debtor. Merrill v. Allin, 13 id. 
 20 ; 46 Hun, 623. But see last phrase of section 2432 of the 
 Code of Civil Procedure. 
 5 
 
34 
 
 Supplementary Proceedings. 
 
 CHAPTEE V. 
 
 PROCEEDINGS AFTER RETURN OF EXECUTION. 
 
 I. PnOCBBDINGS AfTBE RETURN OF 
 
 Execution. 
 1. Two separate and distinct pro- 
 ceedings. 
 
 II. Affidavit. 
 
 3. Necessary — When. 
 3. By whom made. 
 
 4. Contents of affidavit. 
 
 5. For second or subsequent orders. 
 
 6. Affidavit for order after return 
 
 of execution. 
 
 7. Affidavit for order after return 
 
 of execution on justice's court 
 judgment. 
 
 I. Proceedings After Return op Execution. 
 I. Two separate and distinct proceedings. — It seems 
 that the two proceedings provided for by subd. 1 of section 
 2432 of the Code are in many respects separate and distinct, 
 and that the order is independent of the warrant. Upon 
 this point the court, in Frost v. Craig, 30 N. Y. St. Eep. 
 849, says: "The judges of the city court properly decided 
 that the warrant upon which these proceedings were insti- 
 tuted (Code, § 2438) was independent of the previous order 
 for examination, and that the vacating of such previous 
 order did not affect the warrant. The Code i^ermits tlie 
 supplementary proceedings to be instituted by warrant 
 instead of by order (sectijon 2437), and also permits the 
 warrant to be issued at any time after an order is granted, 
 but it does not appear that in the latter case the subsequent 
 vacating of the order requires the vacating of the warrant. 
 This section provides that the judge may, if necessary, 
 direct the adjournment, or if the return-day of the order 
 has elapsed, the continuance of the proceedings under the 
 order until after the return of the warrant and his decision 
 thereupon. This shows that the judgment-creditor may 
 abandon the proceedings instituted by the order and elect 
 to proceed under the warrant, or may keep the proceedings 
 under the order alive until his right to proceed under the 
 warrant is established. But the complete independence of 
 the two proceedings is thus clearly indicated." In order to 
 give the court jurisdiction to issue a warrant there must be 
 proof entitling the judgment-creditor to an order for the 
 examination of the judgment -debtor, that is to say, the 
 
Affidavit Necessary. 85 
 
 judgment-creditor must make it appear by affidavit, or 
 other competent written evidence, that an execution out of 
 a court of record upon a judgment for money rendered for 
 a sum not less than twenty-five dollars upon the judgment- 
 debtor's appearance or personal service of the summons 
 upon him against the property of the judgment-debtor, or 
 of one of several debtors in the same judglnent, issued to the 
 sheriff of the county where the judgment-debtor at the 
 time of the application for the order is made, resides, or 
 has an office for the transaction of business in person, or if 
 he does hot reside in the state, to the sheriff of the county 
 where the judgment-roll or the transcript of a judgment of 
 a court, not of record, is filed, has been returned unsatisfied 
 in whole or in part. 
 
 II. Affidavit. 
 2. Necessary — When. — Sections 2i35 and 2441 prescribes 
 that proof of 'the facts entitling a party to an order or 
 warrant must be by affidavit or other competent written 
 evidence. And while it has been held- that an affidavit is 
 not absolutely necessary as a foundation for an order for 
 examination (Collier v. De Revere, 7 Hun, 61), it seems 
 that the construction placed by the courts upon these pro- 
 ceedings since the adoption of the Code of Civil Procedure 
 makes an affidavit absolutely necessary on which to predi- 
 cate an order, except for a contempt of which the judge 
 has judicial knowledge. It seems that an affidavit is neces- 
 sary in some cases at least to show that the first execution 
 upon the judgment upon which the proceedings are predi- 
 cated was returned within ten years from the time of 
 making the application for the order. Baumler v. Acker- 
 man, 43 JSr. Y. St. Eep. 87. Conyngham v. Duffy, 34 id. 
 736; 125 N. Y. 200. An affidavit is also necessary to show 
 that at the time of the application for the order the judg- 
 ment-debtor is either a resident of, or has an office for the 
 transaction of business in person, in the county to which 
 the execution was issued; or that he is a non-resident of 
 the state. Schenck v. Erwin, 38 N. Y. St. Rep. 603; Arnot 
 V. Wright, 29 id. 425. The matters prescribed by rule 25 
 of the supreme court should also appear by affidavit, or 
 it should appear that no previous application for the order 
 
36 SUPPLEMENTAKY PkOCEEDINGS. 
 
 has been made to any judge. Ludlow v. Mead, 21 N. Y. 
 St. Rep. 435. Where the judgment upon wh«ch the execu- 
 tion was issued and the appKcation founded was rendered 
 in a justice's or other inferior court, it must appear that a 
 transcript thereof was duly filed in the county clerk's office 
 of the county in which the judgment was taken within six 
 years after its rendition. Davidson v. Horn, 47 Hun, 51. 
 An affidavit is also necessary on which to found an order for 
 the examination of a person indebted to the judgment- 
 debtor. It is not sufficient to show that the execution has 
 been returned "unsatisfied" "or partly unsatisfied," the 
 amount remaining unsatisfied should be specified, and this 
 can only be shown by affidavit. Douglass v. Mainzer, 40 
 Hun, 75. Where the application is made by one in no way 
 a party to the record it is necessary to show by affidavit by 
 what right he moves in the matter. Brown v. Walker, 28 
 N. Y. St. Eep. 36. An affidavit is absolutely necessary 
 upon which to predicate a warrant for the arrest of the 
 judgment-debtor in supplementary proceedings. Code, 
 § 2437. 
 
 3. By whom made. — The affidavit upon which to predicate 
 an order for the examination of a judgment- debtor, or a 
 person indebted to a judgment-debtor, may be made by the 
 judgment-creditor, his agent or attorney. But it must ap- 
 pear by the written proof that the proceedings are taken by 
 the owner of the judgment. Brown v. Walker, 28 N. Y. 
 St. Eep. 36. Where the affidavit is made by an agent, it 
 must show that the agent is authorized to institute that 
 particular proceeding. The nature of the agency must be 
 stated. Hawes v. Barr, 7 Robt. 452. Where an assignee 
 seeks to examine a judgment-debtor, he must show in his 
 affidavit that he has a right to proceed upon the judgment, 
 and by what right he moves in the matter. Frederick v. 
 Decker, 18 How. Pr. 96. Where executors or administra- 
 tors make application for an order, they must show the 
 death of the judgment-creditor, their appointment and 
 qualification, and that five years have not elapsed since the 
 entry of the judgment. Collier v. DeRevere, 7 Hun, 62. 
 It should also state that the execution was issued as pre- 
 scribed by the Code of Civil Procedure. Deyo v. Borley, 43 
 N. Y. St. Rep. 638. 
 
Contents of Affidavit. 37 
 
 An affidavit to begin proceedings executed by one in no 
 way a party to the record, is defective. Brown v. Walker, 
 28 N. Y. St. Rep. 36. But where the affidavit is made by 
 the attorney of record of the judgment creditor, the court 
 must take notice of his authority to prosecute the proceed- 
 ings. Id. If tlie party making the affidavit is neither the 
 judgment-debtor, nor assignee, nor legal representative, nor 
 attorney, nor agent, the affidavit must show that the affiant 
 is acquainted with the facts and that the application is made 
 at the request'^f, or procured by, the creditor or owner of 
 the judgment. 
 
 4. Contents of affidavit.— In order to entitle the judg- 
 ment-creditor , tp maintain supplementary proceedings of 
 any kind, he must show by affidavit or other written evi- 
 dence, that a judgment has been rendered in his favor, or 
 in favor of his assignor, testator or intestate, upon the judg- 
 ment-debtor's appearance or personal service of the sum- 
 mons upon him, for a sum not less than twenty-five dollars. 
 The affidavit should state in whose favor, and against whom 
 the judgment was rendered, and the name of the court in 
 which the judgment was taken. It must set forth that the 
 judgment has been docketed and in what county the judg- 
 ment-roll is filed and the judgment docketed. Hawes v. 
 Barr, 7 Eobt. 452. It must either state the amount of the 
 judgment, or that it was rendered for a sum not less than 
 twenty five dollars. Code, § 2458. It must also state the 
 amount then due on the judgment. Douglass v. Mainzer, 
 40 Hun, 75. It must truly describe the judgment, and this 
 is not waived by the party. Kennedy v. Weed, 10 Abb. 62. 
 It must contain a clear statement that the judgment-debtor 
 is a resident of the county to which the execution was 
 issued. If he has a place for the transaction of business in 
 person, in the county, and the application is upon that 
 ground, that fact should be positively alleged. If he both 
 reside and have such place of business in the county to 
 which the execution was issued, that fact may be properly 
 alleged in the conjunctive, but a disjunctive statement that 
 the judgment-debtor is a i-esident of or has a place for the 
 transaction of business in the county is not proper. Arnot 
 V. Wright, 29 N. Y. St. Rep. 425. Thus we see that it will 
 not do to allege residence, or place of business and non- 
 
38 SuPFtEMENTAEY PROCEEDINGS. 
 
 residence iu the alternative ; as, for instance, that the 
 debtor resided in the county where the proceedings are com- 
 menced, or is a non-resident. 
 
 An affidavit stating that a third person has property of the 
 judgment-debtor or is indebted to him, is insufficient to au- 
 thorize the granting of a third-party order, the affidavit 
 must state the facts upon -which the affiant bases his allega- 
 tion that the party to be examined either had property of 
 the debtor, or was indebted to him. An allegation in the 
 words of section 2441 of the Code is wholly insufficient. 
 Collins V. Beebe, 27 N. Y. St. Rep, 4. So an affidavit al- 
 leging upon information and belief that a third party has 
 property of the judgment-debtor in his hands, or is in- 
 debted to him, without giving the sources of such informa- 
 tion, is insufficient to support aU order for the examination 
 of such person. Fleming v. Tourgee, 40 id. 705; 16 N. Y. 
 Supp. 2; Leonard v. Bowman, 15 id. 135; 40 N. Y. St. Eep. 
 135. The affidavit should also show that ten years have not 
 elapsed since the return of the first execution issued upon 
 the judgment. Baumler v. Ackerman, 63 Hun, 40; 43 N.' 
 Y. St. Eep. 87; 17 N. Y. Supp. 436; McGuire v. Hudson, 16 _ 
 id. 392; 11 N. Y. St. Rep. 295. It must also show that the 
 execution on which the proceeding is based has been issued 
 to the county where the judgment-debtor resides. In 
 Schenck v. Erwin, 38 N. Y. St. Rep. 604, the court say: 
 ' ' The affidavit did not show that the execution described 
 therein had been delivered to the sheriff of the county 
 where the judgment-debtor resided' at the time the affida- 
 vit was made and the proceeding commenced. This was 
 required by the provisions of section 2458 of the Code. It 
 does not say .to the county where the judgment-debtor re- 
 sided at the time the execution was issued, but the county 
 where he resides at the time of the commencement of the - 
 special proceedings. In the above case the judgment-debtor 
 removed from the county after return of execution and before 
 application was made for the order, and it was held that the 
 proceedings could not be maintained. The affidavit need not 
 allege that the justice by whom the judgment was rendered 
 had jurisdiction, and an affidavit alleging that the judg- 
 ment was- recovered in a justice's court in the town of M., 
 before W C. Shumway, justice of the peace, is sufficient. 
 
Contents of Affidavit. S9 
 
 Kress v. Morehead, 8 N. Y. St. Rep. 320. The affidavit 
 need not state that the execution was issued out of a court 
 of record, when it shows that the judgment was one of a 
 court of record, or where it shows that a transcript of an 
 inferior court was filed with the clerk of the county where 
 the judgment was rendered, and that the execution was 
 issued by the county clerk of the county whei-e the tran- 
 script is filed. Joyce v. Spafard, 9 Civ. Pro. Eep. 340. But 
 an allegation that execution upon a justice's judgment was 
 issued out of a county court is sufficient, since such an exe- 
 cution is unauthorized. Merritt v. Judd, 9 N. Y. Supp. 491; 
 but see People v. Oliver, 66 Barb. 570. While the affidavit 
 should state that the judgment had been docketed, and that 
 the transcript was filed before the execution was issued, 
 where the affidavit states that the execution was issued on 
 the same day that the transcript was ffied it will be pre- 
 sumed that ihe execution was issued after the filing of the 
 - transcript. Webster v. Sawens, 3 How. N. S. 320. And 
 the affidavit is not defective in not stating that the judg- 
 ment was docketed where obtained. The plaintiff having 
 filed his judgment-roll, it will be presumed that the clerk 
 did his duty. Ludlow v. Meade; 21 N. Y. St. Rep. 435. 
 Where the proceedings are predicated upon a judgment ren- 
 dered in a court not of record, the affidavit should allege 
 that the transcript thereof was duly filed with the clerk of 
 the county within six years after its rendition. Davidson 
 V. Horn, 47 Hun, 51. If the judgment-roll is used as part 
 of the moving papers on an application for an order, the 
 affidavit need not state that the judgment was recovered 
 upon the personal service of the summons on the defend- 
 ant, or upon his appearance, this appearing sufficiently by 
 the judgment-roll, which proves itself. Sayer v. McDonald, 
 2 How. N. S. 119. If it was necessary to file a transcript in 
 a county clerk's office, the time and place of filing it should 
 be set forth in the affidavit. The date of issuing the execu- 
 tion should be given, or it should be alleged to have been 
 issued after the judgment was docketed in the same county, 
 and where more than five years have elapsed since the re- 
 covery of the judgment, that it was issued within that time, 
 or by leave of court. It need not allege that the judgment- 
 debtor has property. In alleging the different facts to give 
 
40 Supplementary Peooeedikgs. 
 
 the judge jurisdiction to grant an order, the affidavit, like a 
 pleading, should state that the judgment was duly rendered, 
 that the transcript was duly filed, that the judgment was 
 duly docketed, that the execution was duly issued; that the 
 execution was duly returned, etc. Where the sheriff is a 
 judgment-debtor, the affidavit for an order for his examina- 
 tion need not contain all the matters requisite to an affida- 
 vit for the examination of ordinary judgment-debtors. 
 Potts V. Davidson, 1 How. N. S. 216. It should, however, 
 allege that the judgment-debtor was, at the time of issuing 
 the affidavit, sheriff of the county to which the execution 
 was directed, and that the execution was therefore issued 
 to the coroner of said county, or to a person designated to 
 execute the said execution by an order of the court. 
 
 5 For second or subsequent orders. — A judgnient- 
 debtor is not permitted to harass his debtor by successive 
 examinations in supplementary proceedings. After one ex- 
 amination the question whether he shall have the right to 
 a second order rests in the sound discretion of the court, 
 and the affidavit upon which the application is based should 
 show ground for the second order in addition to those pre- 
 scribed by rule 25 of the supreme court, such as subse- 
 quently acquired property, the issuing and return of an alias 
 execution, facts newly learned or the like. Grrocer's Bank 
 V. Bayaud, 21 Hun, 203; Jurgenson v. Hamilton, 5 Abb. 
 N. C. 149. Thb rule is the same if the second application 
 is founded upon another judgment. Canavau v. Mc- 
 Andrew, 20 Hun, 46. But the issuing of such second order 
 without proof of a new state of facts is not jurisdictional, 
 and on a motion to set aside an order for the second exami- 
 nation it is not improper for the judgment-creditor to show 
 more strongly than appeared on the ex parte application that 
 the proceedings wei'e not taken to harass the defendant, 
 but with good reason. Marshall v. Link, 20 Civ. Pro. Kep. 
 109. Where the affidavit shows that the first examination 
 was set aside or vacated on some technical objection before 
 the proceedings were finished, it is not necessary to show 
 farther additional reasons than those necessary on the 
 original appplication. Methodist B. 0. & Co. v. Hudson, 1 
 How. N. S. 517. But when the first proceedings were con- 
 sumated or abandoned a second order should not be granted 
 
Second or Subsequent Orders. 41 
 
 unless the moving affidavits show new facts justifying 
 another examination. Irwin v. Chambers, 40 N. Y. Supr. 
 Ct. 432; Hamilton v. Morange, 2 Law Bull. 58; Carter v. 
 Clark, 7 Robt. 43. In Eallings v. Pittman, 49 Supr. Ct. 307, 
 it was held that an affidavit which stated " That the 
 defendant hath been, ab divers times heretofore, examined 
 under orders supplementary, previously granted, and no 
 property discovered, but that since the last examination 
 the defendant hath become possessed of certain personal 
 property," did not show sufficient reason for an order for 
 further examination. It seems that a second order may be 
 obtained while the first order is pending, upon proof that 
 the judgment-debtor has, since the first order was issued, 
 obtained property, and such second order does not have the 
 effect of superseding the first order. Walter v. Pecan, 32 
 N. Y. St. Rep. 841. 
 6 
 
42 Supplementary Peoceedings. 
 
 CHAPTEE VI. 
 
 I. Ordek fob Judgment-Debtoh to 
 
 Appear after Return oe Ex- 
 ecution. 
 
 1. In general. 
 
 3. Second and subsequent orders. 
 
 3. Reference. 
 
 II. Injdkction Order. 
 
 4. In general. 
 
 5. Exempt property — Effect of in- 
 
 junction upon. 
 
 6. Property acquired after service 
 
 of order. 
 
 7. From what it restrains. 
 
 8. No violation. 
 
 I. Order for Judgment-Debtor to Appear After Ee- 
 TURN OP Execution. 
 I. In general. — The order is ex parte and made at 
 chambers. These proceedings are special proceedings and 
 are to be entitled as such, not as in the court in which judg- 
 ment was rendered or into which it was docketed from an 
 inferior court, and other persons than those in the judgment 
 may be named as parties thereto. Millikin v. Thomson^ 8 
 N. Y. St. Eep. 106; Lynch v. Eiley, 22 Week. Dig. 357. 
 Although itis held in Day v. Brosnan, 6 Abb. N. Q. 312, that 
 the order must state all the facts necessary to confer jurisdic- 
 tion, otherwise it is irregular, although the affidavit states 
 them. The contrary is held in People v. Oliver, 66 Barb. 
 570. It seems that it would be the safer practice to state 
 in the order all the facts necessary to confer jurisdiction. 
 It is usual for an order for examination of the judgment- 
 debtor to combine the provisions of sections 2435, 2442 and 
 2451 of the Code of Civil Procedure. Section 2442 pre- 
 scribes that the order must require the judgment-debtor or 
 third person to attend and be examined, either before the 
 judge to whom the order is returnable, or before a referee 
 designated therein. This seems to render obsolete tha^ase 
 of Lewis V. Penfield, 39 How. Pr. 490. It seems thai an 
 order appointing a referee to take the examination of the 
 judgment-debtor may omit to name the time and place for 
 liis appearance and direct the debtor to appear at such times 
 and places as may be duly appointed by the referee. In 
 such case the referee may issue his summons for the debtor 
 to appear before him, and the debtor will be guilty of con- 
 tempt if he fails to obey such summons. Eedmond v. 
 
Order After Return of Execution. 43 
 
 Goldsmith, 2 Law Bull. 19. Section 2442 prescribes that the 
 order mufft. require the person to appear before the judge 
 to whom the order is returnable, and section 2402 provides, 
 that section 26, 52 and 279 apply to these proceedings, and 
 the judge before whom it is continued is deemed to be the 
 judge to whom an order or warrant is returnable. 
 
 Section 26 provides for proceedings instituted in New 
 York ari,d Kings counties. Dresser v. Van Pelt, 15 How. 
 Pr. 19, and section 52 provides for a case of disability of a 
 judge before whom a proceeding has been instituted, and 
 section 2T9 refers to pi'oceedings instituted before a judge 
 of the superior court of Buffalo or the city court of Brook- 
 lyn. Section 2434 prescribes that where the order is made 
 by a justice of the supreme court, who does not reside in 
 the judicial district, embracing the county to which the 
 execution was issued, the order made or warrant issued 
 by him must be returnable to a justice of the supreme 
 court, residing in that district, or the county judge, or the 
 special county judge, or the special surrogate of that or 
 an adjoining county, as directed in the order or warrant. 
 In connection Avith the above, .section 2459 prescribes that 
 a resident of the state or one having an office" within the 
 state, for the regular transaction of business in person, can- 
 not be compelled to attend, without the county where his 
 residence or place of business is situated^ Then we have 
 the case of Hatch v. Weyburn, 8 How. Pr. 163, holding 
 that the order must require the person to appear before the 
 judge granting it in the first place, and the case of Bank 
 for Savings v. Hope, 8 Daly, 316, holding that the order 
 may require the person to appear before some other judge 
 at chambers, specifying the time and place. 
 
 It seems that a non resident of the state, who has no 
 place of business therein, for the transaction of business in 
 person, can only be examined in the county in which the 
 judgment-roll is iiled, or, in case of a judgment of a court 
 not of record, where the judgment was rendered and tran- 
 script filed. Anway v. David, 9 Hun, 297. It seems that 
 the order may be served upon the judgment-debtor in any 
 part of- the state. The order must, except in the case of an 
 order of reference, require the debtor to appear in person 
 before the judge to whom it is returnable, or the referee 
 
4-1 Supplementary Proceedings. 
 
 named in it, at a specified day or hour, and at a place within 
 the proper county, and submit to an exaaJnatign concern- 
 ing his property. Hatch v. Weyburn, 8 How. 163 : Kelty 
 V. Yerby, 31 id. 95. 
 
 Where the order is made returnable to a judge, other than 
 the one signing the order, it should name the judge and the 
 time and place for appearance, otherwise it will be defective. 
 Shults V. Andrews, 54 id. 376. The order of reference for 
 the examination of a person indebted to the judgment- 
 debtor made by a judge of the county where the judgment- 
 debtor resided, if that is the county where the execution 
 was returned, may be executed in any county in the state 
 where such third person resides or has a place of business. 
 In Peck V. Baldwin, 58 Hun, 308, the court say: "That 
 the last phrase of section 2434 is applicable to a proceeding 
 instituted before a justice of the supreme court, where the 
 execution has been issued out of that court, and are not 
 confined in their operations to proceedings instituted be- 
 fore such a justice where the execution has been issued out 
 of another court. " 
 
 Where the facts disclosed by the proofs of the creditor 
 are not such as to make a case within the statute, the judge 
 acquires no jurisdiction over the subject matter. Sackett 
 V. Newton, 10 How. Pr. 560. If the judgment when ren- 
 dered was for a sum not less than twenty-five dollars, pro- 
 ceedings are maintainable if anything remains unpaid on 
 the judgment. Austin v. Byrnes, 12 Civ. Pro. Eep. 332. 
 Where the judgment was rendered in an inferior court not 
 of record, it must appear that the execution was issued by 
 the county clerk. Gray v. Lieben, 8 id. 48. 
 
 An execution returned unsatisfied on a judgment against 
 a partnership, where the summons was served upon but one 
 of the partners, is sufficient exhaustion of remedy at law, 
 entitling the judgment-creditor to an order. Perking v. 
 Kendall, 3 id. 240. The issuing of a second execution, after 
 the commencement of the proceedings, is no. objection to 
 the proceedings. Sale v. Lawson, 4 Sandf. Tl8; Steinhardt 
 V. Michalda, 15 Civ. Pro. Rep. 323. But if a levy is made 
 under the second execution, upon property of the judgment- 
 debtor, it suspends the other remedies of the judgment- 
 creditor until a return is made by the sheriff. A discharge 
 
Second anTj Subsequent Oeders. 45 
 
 in bankruptcy is a bar to supplementary proceedings. Leo 
 V. Joseph, 9 N. Y. Supp. 612; Smith v. Paul, 20 How. Pr. 
 97; World Co. v. Brooks, 7 Abb. N.S. 212. 
 
 The judgment-creditor cannot have two orders for the 
 examination of his judgment-debtor pending at the same 
 time. Gaylord v. Jones, 7 Hun, 480; Brockway v. Brien, 37 
 How. Pr. 270; Crowell ?;. Spofford, 4 Civ. Pro. Eep. 273. The 
 first proceeding must be' terminated by order or otherwise 
 before new proceedings can be instituted. Krihen v. Ship- 
 herd, 16 id. 183. But it is not absolutely necessary that an 
 order terminating them shall be filed. Shults v. Andrews, 
 54How. Pr. 380. 
 
 2. Second and subsequent orders. — A judgment-creditor 
 is not permitted to harrass his debtor by successive exam- 
 inations; after one examination the question whether he 
 shall have the second rests in the sound discretion of the 
 court, and the affidavit for a second order should show 
 grounds therefor, such as subsequently acquired property. 
 Canavanv. McAndrew, 20 Hun, 46; Grocers' Bank?). Bayard, 
 21 id. 203. But such order will be granted where the judg- 
 ment-debtor has, since the first order was granted, come 
 into possession of property which could not be reached on 
 the former proceedings. Marshall «. Link, 36 N. Y. St. 
 Eep. 60. After proceedings have been abandoned or with- 
 drawn, a second order may be obtained; but if an examina- 
 tion was had on the first order, it must be shown that some 
 facts exist which call for a new examination. Sellig v. 
 Mclntyre, 5 Law Bull. 69. Where a judgment-debtor was 
 examined under an order which was set aside or vacated on 
 some technical objection before the proceedings were con- 
 cluded, a further examination upon the same or another 
 judgment cannot be considered as a second examination. 
 Methodist B. C. & Co, v. Hudson, 1 How. N. S. 517. The 
 second order may be granted ex parte, but not unless the 
 affidavit upon which it is applied for mentions the previous 
 proceeding, and what became of it, and also that the debtor 
 has since acquired property. Goodall v. Demarest, 2 Hilt 534. 
 
 3. Reference. — Th3 order may designate a referee and re- 
 quire the judgment-debtor or third person to attend and be 
 examined before such referee. Code, § 2442. So the judge 
 to whom the ord'er is returnable may, at any stage of the 
 
46 Supplementary Pkoceedings. 
 
 proceedings, make an order directing that any other ex- 
 amination or testimony be taken by, or that a question aris- 
 ing thereon be referred to, a referee designated in the order. 
 Code, § 2413. This last section does not apply to an order 
 of .reference to examine the debtor or witnesses in the pro- 
 ceeding, but appKes only to incidental questions of fact 
 arising at any stage of the procedings, before a judge to 
 whom the order is returnable. Ho We ». Welch, 11 Civ. Pro. 
 Eep. 445. A referee appointed in these proceedings, like a 
 referee in an action, must not have an office with the 
 judgment-creditors' attorney. Grilbert v. Frothingham, 13 
 Civ. Pro. Rep. 288. In an order of reference to take the 
 examination of the judgment-debtor, it is not necessary to 
 name the time and place for his appearance, but it is suffi- 
 cient if it directs the debtor to appear at such times and 
 places as may be duly appointed by the referee; and the 
 debtor will be guilty of contempt if he fails to obey a sum- 
 mons for his appearance issued' by the referee and served 
 upon him. Redmond v. Goldsmith, 2 Law Bull. 19. Where 
 the examination is taken before a referee, he must certify to 
 the judge to whom the order is returnable, all the evidence 
 and other proceedings taken before him. Code, § 2442. 
 
 A referee may issue a subpoena requiring a third person 
 to appear before him and testify as a witness, and the re- 
 fusal of such witness to be sworn or to testify before the 
 referee is a contempt. Howe v. Welch, 11 Civ. Pro. Rep. 444. 
 
 II. Injunction Ordee. 
 
 4. In general. — The judge granting an order or warrant 
 or to whom it is returnable, may, with such order or war- 
 rant, and upon the same papers or afterwards upon proper 
 proof, make an injunction order restraining any person 
 from making or suffering any transfer or other disposition 
 of, or interference with, the property of the judgment- 
 debtor, until farther directions in the premises. Code, 
 § 2451. An order appointing a receiver is a further direc- 
 tion in the premises, and supersedes the order of injunction. 
 People V. Randall, T3 N. Y. 416 ; Morris v. First Nat. Bank, 
 68 id. 362. The injunction served in due form continues 
 in force until the proceedings are terminated. 
 
 The failure of the judge or referee to be present at the 
 
Injunction Okijek. 47 
 
 appointed time and place of the examination does not re- 
 voke the injunction, unless the proceedings are thereby 
 vacated. Eeynolds v. McElhone, 20 How. Pr. 454 ; Allen v. 
 Starring, 26 id. 5T. Any omission which discontinues the 
 proceedings dissolves the injunction. Where the proceed- 
 ings are restored the injunction is also revived. It relates 
 back and binds the enjoined from the beginning, and over 
 the hiatus, as if there had been no interruption. 
 
 5. Exempt property — Effect of injunction upon. — While 
 section 2451 of the Code prescribes that " The injunction 
 may i-estrain any person or corporation, whether a party or 
 not to the proceeding, from making any transfer or other 
 disposition of, or interference with the property of the judg- 
 ment-debtor, or the property or debts concerning which-any 
 person is required to attend and be exammed. Section 2463 
 prescribes that such injunction shall not restrain the judg- 
 ment debtor from dealing with any property which is ex- 
 pressly exempt by law from levy and sale by virtue of an 
 execution, or the income of property held in trust, where the 
 fund proceeded from a person other than the judgment- 
 debtor, or the earnings of the judgment-debtor for his per- 
 sonal services rendered within sixty days next before the 
 institution of the proceedings. It also provides that in order 
 to exempt such earnings, it must be made to appear that 
 they are necessary for the use of a family supported by the 
 judgment-debtor's labor, in whole or in part. In Hancock 
 V. Sears, 93 N. Y. T9, the court held that it was not neces- 
 sary for the. debtor to bring the facts constituting exemp- 
 tion to the attention of the judge or court, before applying 
 his earnings to relieve the necessities of his family. When 
 the judgment-debtor is a woman she has, by section 1392, 
 the same exemptions as a householder has under sections 
 1390 and 1391 of the Code. The court, in the Kneettle case, 
 22 N. Y. 249, held that the householder cannot, in advance, 
 even waive the right of exemption, as it is for the benefit 
 of the family for which he provides. 
 
 It has also been held that the necessary wearing apparel 
 and a cheap watch of an unmarried man is exempt. Matter 
 of Edlunds, 35 Hun, 367. But see Fink v. Freankle, 39 
 N. Y. St. Eep. 194 ; 20 Civ. Pro. Rep. 404 A wife's life in- 
 surance money on the life of her husband is exempt. Baron 
 
48 Supplementary Pkooeedings. 
 
 V. Prummer, 100 N. Y. 372. So is a judgment recovered 
 by a debtor against his creditor for an unlawful sale of 
 exempt property. Tillotson v. Wolcott, 48 N. Y. 188. 
 
 Alimony awarded to a wife is not the wife's property 
 nor her separate estate, and can only be charged with a 
 debt contracted for necessities. Romain v. Ohauncey, 39 
 N. Y. St. Rep. 480 ; 60 Hun, 477. So theincome of a trust 
 fund, of a trust created for the support of a man, extends 
 to the support of the family of the man. Thompson v. 
 Thompson, 52 id. 456. The term " personal services," in 
 section 2463, includes earnings derived from a business con- 
 ducted by the judgment-debtor, where his services are the 
 chief factor in it. McSkiman v. Knowlton, 20 Civ. Pro. Rep. 
 274. So are the net proceeds of a business carried on by him 
 with the assistance of others. Sanford v. Goodwin, id. 276. 
 
 While it was held in McGivney v. Childs, 41 Hun, 607, 
 that the proceeds of sale of exempt property are not 
 affected by an order forbidding a debtor from disposing of 
 his property, it was held in Gillett v. Hilton, 11 Civ. Pro. 
 Rep. 108, that a judgment-debtor cannot use money he 
 receives for his personal services for the sixty days before 
 the order is served upon him to pay a debt for money 
 borrowed for and used in the support of his family. But in 
 Miller v. Hooper, 19 Hun, 394, it was held that the judg- 
 ment-debtor had a right to use such personal earnings as he 
 chose. Pension money of any kind is exempt. Sargent v. 
 Bennett, 3 How. N. S. 515. So is a fund created by officials 
 of a club foi" the relief of a fellow-member. Wilder v. 
 Clark, 33 N. Y. St. Rep. 143. 
 
 6. Property acquired after service of order. — The prop- 
 erty mentioned in the Code of Civil Procedure is that which 
 the debtor has when the order is made, and not such as he 
 afterwards acquires. McCivney v. Childs, 41 Hun, 607; 
 Potter V. Low, 16 How. Br. 549, nor a debt subsequently to 
 become due on a contingency, or for a work to be per- 
 formed. Sands v. Roberts, 8 Abb. 343; Caton v. South- 
 well, 13 Barb. 335. Nor property received between the 
 making and the service of the order. Atkinson v. Sewine, 
 11 Abb. N. S. 384. Earnings received or becoming due 
 after the service of the injunction order are not within its 
 prohibition, Gerregain v. Wheelwright, 3 Abb. N. S. 265. 
 
From What it Restrains. 49 
 
 No court has power to anticipate the earnings of a debtor, 
 or to direct him to appropriate future earnings to the pay- 
 ment of a judgment. CoUumbian Institute «. Cregan, 3 
 N. Y. St. Eep. 281; 11 Civ. Pro. Eep. 87. An order 
 obtained on the last' day of the month will not reach the 
 month's salary only due at the expiration of that day. First 
 Nat. Bank v. Beardsley, 8 Week. Dig. T. 
 
 7. From what it restrains. — A judgment-debtor who 
 has been served in supplementary proceedings with an in- 
 junction order is guilty of contempt when he, during the 
 pendency of such proceedings, deposits money in a bank 
 and then checks it out, although such money was loaned 
 him for the purpose of paying the same to his creditors. 
 Eainford v. Temple, 51 N. Y. St. Rep. 144. So if he trans- 
 fers any property to employ an attorney. Deposit Nat. 
 Bank «. Wickham, 44 How. Pr. 421. So one who does 
 business for his wife, and has money deposited in trust for 
 her in his own name, cannot draw out and apply it to his 
 own use or that of his family. People v. Kingsland, 3 
 Keyes, 325. So a judgment-debtor has no right to transfer 
 a cause of action which he has as administrator for 
 damages for the death of his son. Wynkoop v. Myers, 26 
 N. Y. St. Eep. 81. So also the judgment-debtor violates 
 the injunction order by any active interference with the 
 property, either in person or by agent, for the purpose of 
 having the legal title to the same transfered to another, 
 thereby to deprive the judgment-creditor of the equitable 
 lien which he has acquired therein by the service of the 
 order. 
 
 8. No violation. — It is no violation of the injunction for 
 the judgment-debtor to proceed to judgment in a suit pend- 
 ing at the time he is enjoined. Parker v.Wakeman, 10 Paige, 
 485, nor is the confessing a judgment or procuring a nova- 
 tion carrying into effect a previous assignment of a right of 
 action. McCredie v. Senior, 4 id. 378; Ireland v. Smith, 3 
 How. Pr. 244, nor the giving of a new mortgage in lieu of 
 one already on the property, (Duff us v. Cole, 15 N. Y. Supp. 
 370), nor the bringing of a suit for a personal tort which 
 cannot be assigned, nor where the debtor has sold or 
 assigned a claim to another in good faith to sign aU neces- 
 sary papers to carry out such contract. 
 
 7 
 
50 
 
 SUPPLEMENTABY PeOCEEDINGS. 
 
 CHAPTER VII. 
 
 I. Making and Sbbvice op Order. 
 
 1. By whom order may be made — 
 
 In general. 
 
 2. Contempt proceedings. 
 
 3. Supreme court justice. 
 
 4. County Judge, special county 
 
 judge, and special surrogate. 
 
 5. Marine recorder and superior 
 
 court judges. 
 
 6. Continuation of proceedings be 
 fore different judges.- 
 II. Sbuvicb op Order. 
 1. Where served. 
 
 3. How served. 
 
 8. When to be served. 
 
 4. A party or witness attending 
 
 court. 
 
 5. Waiver of service. 
 
 I. Making and Service op Order. 
 
 1. By whom order may be made— In general. — Supple- 
 mentary proceedings proper can only be hadbefore a judge 
 out of court as a separate judicial officer. Thus in Doug- 
 lass V. Manizer, 40 Hun, Y5, the court say: "Jurisdiction 
 to make an order requiring a debtor to appear before a 
 referee and be examined in supplementary proceedings is 
 given by the Code to a judge and not to any court." It 
 was held at general term in the above case that the court 
 had no power to direct a judgment-debtor to appear and be 
 examined, even where such order was made upon denying 
 a motion made by such judgment-debtor to vacate the 
 original order made by a judge for want of prosecution and 
 where the time fixed by the original order for the examina- 
 tion had passed. 
 
 2. Contempt proceedings. — Proceedings for contempt are 
 themselves special proceedings, independent of the action 
 or special proceeding in which they may be taken, and 
 an order made therein cannot be regarded as an order made 
 in the course of the original proceedings. Moschell v. Boor, 
 50 N. Y. St. Rep. 238; People ex rel, Grant v. Warner, 20 
 id. 573. Such proceedings may be instituted before the 
 court or the judge before whom the proceedings in supple-^ 
 mentary proceedings were instituted. 
 
 3. Supreme court justice.— Section 2434 of the Code of 
 Civil Procedure, in effect, provides that either of the special 
 proceedings mentioned in section 2432 may be instituted 
 before a judge of the court out of which the execution 
 issued, which includes a justice of the supreme court where 
 
Judges who Make Order. 51 
 
 the execution was issued out of that court. Baldwin v. 
 Perry, 25 Hun, 72. It then provides that where the execu- 
 tion is issued out of a court other than the supreme court, 
 and the judges thereof are absent or disqualified, such 
 special proceedings may be instituted before.a justice of the 
 supreme court. Then follows this provision: "In that case 
 if he does not reside within the judicial district embracing 
 the county to which the execurion was issued, the order 
 made * * * by him must be returnable to a justice of 
 the supreme court residing in that district, or the county 
 judge or special county judge or special surrogate of that 
 or an adjoining county, as directed in the order." 
 
 The above provisions are applicable where the execution 
 has been issued out of the supreme court, as well as where 
 an execution has been issued out of another court. Peck 
 V. Baldwin, SiN.Y. St. Eep. 511, 515. In Browning u Hayes, 
 1 id. 502, this question was before thegeneral term, where 
 it was held that the words "in that case," in section 2434, 
 did not alone refer to orders made, by inferior judges. It is 
 true that Judge Vann, at special term, held otherwise. 
 Blanchard v. Reilly, 11 Civ. Pro. Eep. 279. Thus it will be 
 seen that any supreme court justice may entertain these 
 proceedings without regard to his own residence or location. 
 But the debtor must be directed to appear in the county 
 where he resides or has a place of business. Bingham «. 
 Disbrow, 37 Barb. 24; Jacobson v. Doty Plaster Mfg. Co., 32 
 Hun, 436. 
 
 4. County judge, special county judge and special surro- 
 gate. — Any county judge, special county judge or special 
 surrogate may entertain the proceeding within his county, 
 on any judgment in which the execution thereon was issued 
 to his county. Terry v. Hultz, 39 How. Pr. 169. Tiiis in- 
 cludes judgments 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, and 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. 
 
 5. Marine recorders and superior judges. — The marine 
 court judges have, in respect to judgments recovered in that 
 court, all the power of a judge of the supreme court at 
 chambers. Holbrook v. Orgler, 40 N. Y. Supr. 33. 
 
52 Supplementary Proceedings. 
 
 The surrogate of Steuben county, the recorder of the city 
 of Oswego, and the recorder of the city of Troy may enter- 
 tain the proceedings within their respective counties, where 
 the execution was issued to the sheriff of their county. 
 Mclntyre v. Allen, 43 Hun, 124. A judge of the city court 
 of Brookl3rn may entertain these proceedings within his city 
 on a judgment in his own court. So may the judge of any 
 court of record. 
 
 6. Continuation of proceedings before different judges. — 
 While it is a rule, that the jurisdiction of a judge once 
 acquired is conclusive, and continues until the examination 
 is completed, and all orders made in respect to the property 
 of the judgment-debtor or otherwise is fully executed. 
 Webber v. Hobbie, 13 How. Pr. 382. Sections 25, 52 and 279 
 of the Code apply to these proceedings, and the judge before 
 whom it is continued as prescribed in either of those sec- 
 tions, is deemed to be the judge to whom an order or war- 
 rant is returnable for the purpose of any of these proceed- 
 ings Code, § 2462, and where a judge, before whom these 
 proceeeings are pending, goes out of office, they may be 
 continued before his successor. Holstein v. Rice, 24 How. 
 Pr. 135. For a special proceeding does not abate by any 
 event, if the right sought in such special proceeding sur- 
 vives and continues. Code, § T55. 
 
 II. Service of Order. 
 
 I. Where served. — These proceedings are special proceed- 
 ings, either in or independent of the action, and the order 
 for examination is a process like a summons by which an 
 action is commenced. 
 
 It was held in the case of Wegman «. Childs, 41 N. Y. 
 159, that an action was pending in the court wherein it 
 was brought, until after the satisfaction of the judgment 
 therein. 
 
 The court in Wright v. Nostrand et al., 94 N, Y. 45, say: 
 "It was said in Underwood v. Sutliffe, 10 Hun, 453, that 
 such proceedings were in the nature of an action, and 
 although this may be so in some respects, it would seem to 
 conform more with the meaning and intent of the statute 
 to hold that they are in the nature of new remedies or equit- 
 able rights, arising by force of the statute, in the actions in 
 
Service of Order. 53 
 
 which the judgment was obtained. Section 347 of the Code 
 provides that a county court has power in an action or 
 special proceeding, in which it has jurisdiction, to send its 
 process and other mandates into any county in the state 
 for service or execution, and to enforce obedience thereto 
 with hke power and authority as the supreme court; and 
 section 3i9 provides that the county judge, — which includes 
 the special county judge, — and special surrogate when act- 
 ing at chambers, —possesses the same power and authority 
 in a special proceeding out of court which a justice of the 
 supreme court possesses in a like special proceeding. If the 
 order is made by a supreme court justice, it may be served 
 in any county of the state. Bingham v. Disbrow, 37 Barb. 
 24. Again we find that section 268 of the Code prescribes 
 that each judge of a superior city court possesses the same 
 power and authority in a special pi'oceeding which can be 
 lawfully instituted before him out of court, which a justice 
 of the supreme court possesses in a like proceeding. 
 Whether or not the order of a local officer, as a recorder of 
 the city of Oswego, can bo served outside the territorial 
 jurisdiction of his court does not seem to have been settled 
 by any decided case. 
 
 But it seems the order may be served anywhere in the 
 state, provided such facts are shown as to give the judge 
 jurisdiction of the person of the judgment-debtor and of 
 the subject-matter. Varick v. Dodge, 9 Paige, 149, as the 
 judge acts, not as an officer of his court, but as a separate 
 and independent tribunal. Webber v. Hobbie, 13 How. Pr. 
 382. In Corrall v. Langan, 44 N. Y. St. Eep. 224, the court 
 say: " The power conferred on the recorder of the city of 
 Albany to act in proceedings supplementary to execution, 
 is a power to be exercised only within that city." In that 
 case the recorder attempted to compel a resident of Albany 
 county to appear and be examined in Eensselaer county ; 
 however the opinion of the court throws doubt upon the 
 jurisdiction of local courts, and is important as an authority. 
 
 8. How served— Section 2452 of the Code provides that 
 an injunction order, or an order requiring a person to at- 
 tend and be examined, must be served as follows: 1. The 
 original order, under the hand of the judge making it, must 
 be exhibited to the person to be served. 2. A copy thereof, 
 
54 Supplementary Pjioceedings. 
 
 and of the affidavit upon which it was made, must be de- 
 livered to him. Service upon a corporation must be made 
 by service of the order on an officer thereof on whom a 
 summons may be served. The affidavit upon which the 
 order is founded must be served with it ; a service of the 
 order without the affidavit is a nullity. The order can be 
 served by any person. 
 
 The sheriff's certificate of the service of such an order is 
 not proof of service thereof. Utica City Bank . Buell, lY 
 How. Pr. 498. There seems to be only two classes of cases 
 where the certificate of an officer is evidence of the facts 
 stated in it, and upon which some future action can be 
 predicated. The first is where it is made evidence by 
 statute, and the second when what is technically known as 
 process or that which is in the nature of process, is directed 
 to the sheriff and he is required or directed to make a re- 
 turn thereto. 
 
 In reference to orders of arrest of attachments and execu- 
 tions, they are all directed to the sheriff, and require him to 
 execute the same according to law. But if the process is 
 silent as to a return, the duty of the sheriff is doubtless the 
 same, and whenever such duty is enjoined by the process 
 or by the law, the retui'n is an official act and becomes evi- 
 dence by the common law. 1 GreenL Ev., § 4&8. The 
 statute in relation to the duties of a sheriff requires every 
 sheriff or other officer to whom process shall be delivered, 
 to execute the same according to the command thereof, and 
 to make due return of his proceedings thereon. Which 
 return shall be signed by him. 2 R. S. (3d ed.) 535, § 95: 
 
 If the order is process it seems that the certificate of the 
 sheriff would be sufficient proof of its service. 
 
 Process is defined by Blackstone to be the means of com- 
 pelling a defendant to appear in court; it is known as 
 mesne and final, which are used to designate the two stages 
 in the process of a cause in which it is employed. 
 
 Process is always directed to some officer to be executed, 
 and is strictly the mandate of the court to the officer com- 
 manding him to do certain things or perform certain 
 services within his official cognizance, and it is this char- 
 acter of it, and the injunctions it contains, which makes its 
 return evidence. To ascertain then whether a return is 
 
Service of Order. 55 
 
 competent evidence or not we must look to the process 
 itself, primarily, and to the law regulating the duty of 
 officers thereon." 
 
 If the process is not what is called returnable process, or, 
 in other words, if it be process upon which the officer is 
 not required to certify hia doings, his return will not be evi- 
 dence except where such certificate is expressly made evi- 
 dence by statute. Section .102 of the Code provides for a 
 return to a mandate, and section 433 provides that the pro- 
 visions of art. I, title I, of chapter V, relating to the mode 
 of service of a summons, apply likewise to the service of a 
 process or other paper, whereby a special proceeding is 
 commenced, except a proceeding to punish for contempt, 
 and except where special provision for the service thereof is 
 otherwise made by law. Then follows subd. 1, of section 
 434 in the following words: " If the service was made by 
 the sheriff it may be jiroved by his certificate thereof.'' 
 This section was substituted for all of Code of Pro. § 
 138, and does not change the rule laid down in Utica City 
 Bank v. Buell. 
 
 I find nothing in the Code except -section 434 that makes a 
 return when made evidence of the facts stated therein. These 
 proceedings ^re excepted by section 433. The Code, there- 
 fore, is silent as to the mode of service of orders in these 
 proceedings. This examination satisfies me that the certi- 
 ficate of the service of these orders is not sufficient as evi- 
 dence that service has been made. Without personal 
 service of the order in the manner prescribed by the above 
 section before the time of the return thereof, no jurisdic- 
 tion is acquired over the person of the judgment-debtor, 
 and all right to proceed in the matter is gone. People v. 
 Warner, 51 Hun, 53; 20 N. Y. St. Eep. 573. But it is 
 different as to any order in the proceeding after the due 
 service of the order for examination. Johnson v. Suttle, 
 17 Abb. 315. 
 
 9. When to be served. — The practice is not yet settled 
 as to how long an order must be served before the time 
 prescribed for its return. There is still considerable diver- 
 sity of opinion in the courts as to the time a person should 
 be allowed in which to attend his examination, but all 
 agree that he must have a reasonable length of time. 
 
56 Supplementary Proceedings. 
 
 10. A party or witness attending court. — The service of 
 an order for the examination of a judgment-debtor may 
 properly be made upon him while he is attending court as 
 witness, if he is a resident of the state. Fritcher v. Fraucks, 
 21 Civ. Pro. Eep. 34. But it is different as to a non- 
 resident party to a suit attending a trial of his action in this 
 state. Tribune Ass. v. Sleeman, 12 id. 20. 
 
 11. Waiver of service. — A failure to show the party thft 
 original order, when serving him with a copy, is a mere ir- 
 regularity, which is waived by appearing without objection. 
 Newell V. Cutler, 19 Hun, 74. A party can unquestionedly 
 make a qiialified appearance, and looses thereby no rights 
 which he expressly reserves. But where a party appears in 
 obedience to an order, the service has accomplished all its 
 office, and no proof whatever is necessary on that point. 
 The rights reserved, and which the party does not lose, are 
 the right to oppose the proceeding and the regularity and 
 sufficiency thereof. The omission of the judgment-creditor 
 to subscribe the copy of an affidavit and order with his 
 office and place of address is a mere irregularity not vitiat- 
 ing the service of the order, and does not authorize the judge 
 who made the order to vacate the same upon an ex parte 
 application. Dorsey v. Cummings, 48 Hun, 76. A judge 
 who makes an order for examination cannot vacate it ex 
 parte. Id. 
 
Proceedings on Return of Order. 57 
 
 CHAPTEE VIII. 
 RETURN— ADJOURNMENT— CONTINUITY—EXAMINATION. 
 
 I. In General. 
 II. Adjournment. 
 
 III. Delays by Judgment-Creditor 
 
 — Effect of. 
 
 IV. Absence of Judge or Ref- 
 
 eree. 
 
 V. Examination. 
 
 1. In general. 
 
 2. Practice upon. 
 
 VI. Creditor's Right to Complete 
 Examination, 
 
 3. Extent of injury. 
 
 I. In General. 
 The party ordered to attend for examination must attend 
 at the time and place specified in the order, or within a rea- 
 sonable time after the time therein specified. Either party 
 must wait a reasonable time in the absence of the other, 
 before he can take default. In Reynolds v. McElhone, 20 
 How. Pr. 454, 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, and the court say: 
 " That neither the proceedings nor the injunction order had 
 been thereby revoked or become inoperative. If either 
 party fails to appear within a reasonable time the judge or 
 . referee may enter the proceedings on his minutes, and when 
 the proceedings are before a referee, he must make a return 
 of the ssme to the judge granting the order, and the said 
 judge or the court out of which the execution was issued 
 may punish the defaulting party ordered to appear." It is 
 discretionary with the judge or i-eferee to allow an adjourn- 
 ment in the debtor's absence, some one being present to 
 represent him and apply for an adjournment in his behalf. 
 The same practice prevails in these proceedings as in case of 
 a trial before a court or referee. But where the judgment- 
 debtor does not appear in person, and the proceedings are 
 adjourned upon motion of one claiming to be his attorney 
 or agent, an order or summons directing him to appear at 
 the time to which the proceedings are adjourned must be 
 served upon him, in order to bring him into contempt for 
 failure to appear on such adjourned day. Appearance 
 means not merely bodily presence; the debtor must render 
 himself before the officer to answer to the proceedings when 
 8 
 
58 Supplementary Proceedings. 
 
 they are moved. People v. Wilgus, 5 Dem. 58. It is not 
 sufficient for the debtor to be present and not answer when 
 his name is called. 
 
 II. Adjournment. 
 Section 244i of the Code provides that the judge or ref- 
 eree may adjourn any proceedings, from time to time, as 
 he thinks proper. Of course the authority to adjourn 
 should: not be abused nor exercised except for good cause 
 shown by affidavit or other proof, unless proof is waived. 
 Adjournments by the parties to another place is irregular 
 The debtor can only be compelled to attend before the 
 judge or referee. The proper way is to get the judge or 
 referee to adjourn to the place agreed upon and direct -the 
 debtor or third person to appear at such place. Squires v. 
 Youngs, 1 Bosw. 690.' 
 
 III. Delays by Judgment-Creditor. — Effect of. 
 
 Section 2454 of the Code provides that where the judg- 
 ment-creditor unreasonably neglects or delays to proceeds, 
 his proceedings may be dismissed upon such terms as jus- 
 tice requires, by an order made upon the application of the 
 judgment-debtor, or of the plaintiff in a judgment-creditor's 
 action against the debtor, or of a judgment-creditor who 
 has instituted either of the supplementary proceedings, and 
 it seems that an abandonment of supplementary proceed- 
 ings may be inferred from delay of the creditor to prosecute 
 them, provided the delay be unreasonable. Schauck v. 
 Conover, 56 How. Pr. 439; Myers v. Herbert, 45 N. Y. St. 
 Eep. 626. But such proceeding will not be abandoned from 
 a reasonable delay of a few months. Stanley v. I ovett, 14 
 Hun, 412. Where, however, the judgment-creditor design- 
 edly omits to appear upon an adjourned day, he abandons 
 the proceedings, which will operate as a discontinuance 
 thereof. Squires v. Youngs, 1 Bosw. 690. Yet the court 
 does not lose jurisdiction of the proceedings by the mere 
 neglect of either or both parties to appear on a day to which 
 they have been adjourned. Underwood v. Sutcliff, 10 
 Hun, 453. 
 
 It was held in Brockway v. Brien, 37 How. Pr. 270, that 
 the proceedings under an order appointing a referee, etc., 
 
Proceedings on Eeturn of Order. 59 
 
 must be finished, or some order made by the court in the 
 proceeding, before any other order can be made in the 
 premises. This is in accord with section 2454 of the Code, 
 which provides for the discontinuance of these proceedings. 
 But a contrary rule was laid down in Schauck v. Conover, 
 56 How. Pr. 437; Gaylord v. Jones, 7 Hun, 480; Edmonston 
 V. McLoud, 16 N. Y. 543; Thomas v. Kircher, 15 Abb. N. 
 S. 434; Ballon v. Boland, 14 Hun, 355. 
 
 It seems that the last phrase of section 2454 of the Code 
 was adopted to settle the rule laid down in Kennedy ». 
 Norcott, 54 How. Pr. 87, as to the discontinuance of these 
 proceedings without notice to the parties interested in the 
 matter. 
 
 IV. Absence of Judge or Eeferee. 
 
 Supplementary proceedings, as regulated by the present 
 Code «f Civil Procedure is, in its nature, a new suit. It is 
 instituted before a judge pursuant to authority given by 
 statute, and the jurisdiction of the judge must continue 
 until the examination is completed. Section 755 of the Code 
 prescribes that "a special proceeding does not abate by any 
 event, if the right sought in such special proceedings sur- 
 vives and continues." When the judge before whom the 
 proceedings are instituted dies or goes out of office, the 
 proceedings may be completed before his successsor in office. 
 
 A referee appointed in these proceedings has the same 
 power as a referee appointed in an action to take testimony. 
 When the proceedings are complete the judge may allow 
 to the prevailing party costs. The absence of the judge or 
 referee at the time appointed for examination, does not 
 terminate the proceedings any more than it would in an 
 action. The proceedings are continued by a summons or 
 direction of the judge or referee, to the judgment debtor or 
 person to be examined, to appear at some other time. 
 Keihenv. Shipherd, 17 Civ. Pro. Eep. 183; Allen v. Starring, 
 26 How. Pr. 59. 
 
 It is proper to appoint a referee and direct the debtor to 
 appear before him at such time and place as may be duly 
 appointed by the referee, without fixing any time or place 
 for appearance and examination by the order. In such case 
 the referee may issue his summons for the debtor to appear 
 
60 • Supplementary Pkoceedings. 
 
 before him, and a failure by the debtor to obey such sum- 
 mons is a contempt. Redmend v. Goldsmith, 2 Law- 
 Bull. 19. 
 
 Where the examination is before a referee he must sign 
 all subpoenas for witnesses to be examined before him. 
 People V. Ball, 3Y Hun, 245. Section 2444 of the Code pro- 
 vides that either party may be examined as a witness in his 
 own behalf, and may produce and examine other witnesses 
 as upon the trial of an action. The injunction order is not 
 dissolved nor its priority lost, until the proceedings are dis- 
 continued or dismissed, or until some other directions are 
 made in the premises. 
 
 V. Examination. 
 
 1. In general. — Since the adoption of the Code of Civil 
 Procedure, the examination in supplementary proceedings 
 is somewhat similar to proceedings upon the trial of an 
 equity action before a judge or referee, either party may be 
 examined as a witness in his own behalf and may produce 
 and examine other witnesses as upon the trial of an action. 
 Code Civ. Pro., § 2444. 
 
 Each answer of a party or witness examined must be 
 under oath ; and a party or a witness is not excused from 
 answering a question on the ground that his examination 
 will tend to convict him of the commission of a fraud, or to 
 prove that he has been a party or privy to, or knowing of, a 
 conveyance, assignment, transfer or other disposition of 
 property, for any purpose. But an answer cannot be used 
 as evidence against the person so answering in a criminal 
 action or criminal proceeding. Id., § 2460. 
 
 2. Practice upon. — The examination is taken in the form 
 of a deposition and should be signed by the witness, and 
 filed in the county clerk's office. Fiske v. Twigg, 5 Civ. 
 Pro. Rep. 41. " Each answer must be under oath." Code, 
 § 2444. The questions and answers ought all to be written 
 down especially when the examination is taken before a 
 referee. The examination is generally carried on in the 
 same manner as the taking of testimony upon the trial of 
 an action, except the testimony of each witness must be in 
 the form of a deposition, and kept separate fi'om the testi- 
 mony of other witnesses. When the deposition is taken 
 
Examination. 61 
 
 before a judge, he passes upon any questions that may- 
 arise in the course of the examination. 
 
 The witnesses, whether parties or not, are required to 
 testify in these proceedings in the same manner as upon the 
 trial of an issue. § 2444:. The same rules are therefore ap- 
 plicable to the debtor and witnesses as to the extent and 
 thoroughness of the examination. They may both be cross- 
 examined the same as witnesses upon the trial of an issue. 
 Either party may have counsel. The special duty of coun- 
 sel is to render aid to the parties and to the court, and the 
 privilege of counsel is accorded to parties as a right in all 
 controversies. Weeks on Attorneys, § 184 ; People ex rel. 
 V. Van Allen, 55 N. Y. 31. The judgment-debtor, upon his 
 own examination, is entitled to have his counsel's advice in 
 framing his answers to the questions put to him. Corning 
 V. Tooker, 5 How. Pr. 16. While a witness is not entitled 
 to counsel as a matter of right, it is discretionary with the 
 court or referee to permit counsel for a witness to par- 
 ticipate in an examination. Schwab v. Cohen, 13 N. Y. St. 
 Rep. 709. After the examination is finished, the deposition 
 should be read over to the witness, and he should be allowed 
 to correct any mistakes in the deposition ; such corrections 
 should be made by way of a supplemental examination, 
 leaving the original disposition untouched. Sherwood v. 
 Dolan, 14 Hun, 191 ; Corning v. Tooker, 5 Row. Pr.. 16. 
 After an order for the examination of a judgment-debtor 
 has been duly served upon him, the creditor is not obliged 
 to examine the debtor, but he may examine other wit- 
 nesses. Where a receiver is appointed before the examin- 
 ation of the debtor or witnesses has been had, the appoint- 
 ment of a receiver does not terminate the judge's juris- 
 diction over the proceedings. And the examination may 
 proceed after that the same as though such appointment 
 had not been made. But whether or not such further pro- 
 ceedings can be had after the appointment of a receiver at 
 the close of an examination, quaere. 
 
 It would seem from section 2444 of the Code that a party 
 is entitled to the right of cross-examination the same as 
 upon the trial of an issue. Whether a referee can punish 
 a party or witness for contempt under the Code of Civil 
 Procedure seems not to have been expressly decided, as no 
 
62 Supplementary Proceedings. 
 
 reported case has been found relating to this point. But 
 under the old practice, where a witness refuses to answer a 
 question after being directed so to do by the referee, the 
 referee had no power to punish the witness but certified 
 the facts- to the judge granting the order or to the court. 
 Where a referee unjustly and arbitratarily refuses an 
 adjournment of the proceedings the remedy of the party is 
 by withdrawing from the examination and presenting' the 
 facts of the case to the judge or court on the application of 
 the creditor for an attachment for contempt. Mason v. 
 Lee, 23 How. Pr. 466. 
 
 VI. Creditor's Eight to Complete Examination. 
 
 The provisions of the Code give the creditor complete 
 authority for a full and searching examination of the judg- 
 ment-debtor for the purpose of ascertaining particularly 
 the amount and condition, as well as the disposition, the 
 debtor has made, or attempted to make, of his property. 
 Seligman v. Wallach, 67 How. Pr. 514; 6 Oiv. Pro. Eep. 232; 
 16 Abb. N. 0. 317. A party cannot evade or break off an 
 examination by a claim that he is the owner by purchase 
 of the property concerning which the inquiry is made. 
 Mechanics' and T. Bank v. Healey, 14 Week. Dig. 120. Nor 
 by offering to consent to the appointment of a receiver. A 
 receiver may be appointed at any time after making an 
 order requiring the judgment-debtor to appear, or any 
 person to attend and be examined, or the issuing of a 
 warrant upon two days' notice to the judgment-debtor 
 (Code, § 2464), and the examination may proceed the same 
 as though no receiver had been appointed. The appoint- 
 ment of a receiver sheds no light upon the dark places in 
 which the debtor has concealed his property. It is a com- 
 mon practice for a dishonest debtor to take refuge behind a 
 friendly receivership. 
 
 The extent of the inquiry in each particular case must be 
 left to the good sense of the officer under whose direction 
 it takes place. 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. 
 
Examination. 63 
 
 The discharge of the judgment-debtor in bankruptcy 
 proceedings, if properly set up and brought to the attention 
 of the judge, is a bar to these proceedings. Leo v. Johnson, 
 9 N. Y. Supp. 612; Smith v. Paul, 20 How. Pr. 97; World 
 Co. V. Brooks, 7 Abb. N. S. 212. But the bringing an 
 action to set aside an asignment does not affect the right 
 of the creditor to prosecute supplementary proceedings 
 against the judgment-debtor, as a judgment-creditor may 
 take any number of remedies against his debtor, and that by 
 so doing he makes no election, but they are all concurrent 
 remedies. In the matter of Sickle, 23 N. Y. St. Rep. 585. 
 The same rule seems to have been laid down in Sehgman 
 V. Wallach, 16 Abb. N. C. 317, although the note at 
 the bottom of page 319 states the contrary. But in 
 Wilson Bro.'s Woodenware, etc., Co. v. Daggett, 9 Civ. 
 Pro. Rep. 408, it was held that where a judgment-creditor 
 has proven his claim againt the general assignee of the 
 judgment-debtor, and thus availed himself of the assign- 
 ment, he must, in supplementary proceedings afterwards 
 instituted, be limited to after acquired property. 
 
 3. Extent of inquiry. — We have seen that the provisions 
 of the Code is to furnish a ready substitute for the old 
 equity proceedings in discovering and applying the prop- 
 erty of the debtor, which cannot otherwise be reached, 
 for the payment of his debts. Joyce v. Spaford, 9 Civ. 
 Pro. Rep. 342. Section 2460 permits the creditor to ex- 
 amine into the character of transfers of property made 
 by the debtor to third persons who claim under such trans- 
 fer, and as to property owned by the debtor at and prior to 
 the time of making a general assignment for the benefit of 
 creditors, and as to the disposition made of it. Schneider 
 V. Altman, 8 Civ. Pro. Rep. 242; Seligman v. Wallach,' 6 id. 
 232; 67 How. Pr. 514. And any question tending to show 
 that the witness has property of the judgment-debtor is 
 pertinent and proper. Hart v. Johnson, 43 Hun, 505-508. 
 The Code of Civil Procedure,. § 2460, provides that a party 
 or a witness * * * is not excused from answering a 
 question on the ground that his examination will tend to 
 convict him of the commission of a fraud, or to prove that 
 he has been a party or privy to, or knowing of a convey- 
 ance, assignment, transfer or other disposition of property 
 
64 Supplementary Pkoceedings. 
 
 for any purpose. This enactment is an innovation upon the 
 ordinary rules of evidence, and was intended to give a more 
 full examination than could be obtained without it, and as 
 far as it extends must be enforced. Gilpin v. Daly^ 36 N. Y. 
 St. Eep. 666. The Code of Civil Procedure, § 1914, pro- 
 viding that an action cannot be maintained to obtain a dis- 
 covery under oath, in aid of the prosecution or defense of 
 another action, has no application to supplementary pro- 
 ceedings. Dawson v. Sickle, 5 N. Y. Supp. Y03. A wit- 
 ness or a judgment-debtor may be compelled to produce 
 any book or document relevant to the* matter inquired 
 into. Champlin v. Stoddard, 17 Week. Dig. 76; Pruden v. 
 Tallman, 6 Civ. Pro. Eep. 360; Bacon v. Frisbie, 80 N. Y. 
 394. The same rule exists in these proceedings as upon 
 the trial of an action as to the competency and relevancy, 
 of evidence except as specially enlarged by section 2460 of 
 the Code. These proceedings' are used as a substitute for 
 the old suit for a discovery, which was taken away by sec- 
 tion 1914 of the Code. But no particular rules can be laid 
 down for the conduct of the examination. 
 
After Issuing and Before Return of Execution. 65 
 
 CHAPTER IX. 
 
 I. Pboceedingb after the issuing 
 
 AND BEFORE THE RBTUUN OF 
 EXECUTION. 
 
 1. In general. 
 
 II. Proof necessary to obtain 
 
 ORDER. 
 
 2. In general. 
 
 3. Illustrations. 
 
 '♦ 4. What kind of property. 
 
 5. Proof of refusal to ai5ply 
 
 property. 
 III. Order of practice there- 
 under. 
 
 6. In general. 
 
 7. Examination. 
 
 I. Proceedings After the Issuing and -Before the Return 
 OP Execution. 
 
 I. In general. — The proceedings under subdivision 2 of 
 section 2432 and section 2436 of the Code are in aid of the 
 execution and are not supplementary thereto. The above 
 section provides that at any time after the issuing of an 
 execution against property, as prescribed in section 2458, 
 and before the return thereof, the judgment-creditor, upon 
 proof, by affidavit or other competent written evidence, 
 that the judgment-debtor has property, which he unjustly 
 refuses to apply towards the satisfaction of the judgment, 
 is entitled to an order requiring the judgment-debtor to at- 
 tend and be examined concerning his property. The word 
 property as used in this section includes real and personal 
 property. Mason v. Hackett, 21 Week. Dig. 79. 
 
 Proceedings,- after the issuing and before the return of an 
 execution, may be instituted before the same judges by and 
 against the same persons, upon the same class of judgments 
 and upon executions issued to the same counties, and the 
 examination must be had in the same counties, as in pro- 
 ceedings after the return of execution unsatisfied. Sections 
 2434, 2436-2458, and subd. 2 of § 2432 of the Code. So the 
 proof to obtain the order must be by affidavit or other com- 
 petent evidence; and in respect to the recovery of the judg- 
 ment, the amount of the judgment, the parties, etc, the 
 issuing of the execution, etc., the same facts must be stated 
 as in proceedings after the return of execution. It must 
 appear that the execution is yet in the hands of the sheriff 
 unsatisfied. 
 9 
 
66 Supplementary Pkoceedings. 
 
 II. Proof Necessary to Obtain Order. 
 
 2. In general. — The proof to obtain an order must be 
 satisfactory to the judge on two points. That the judg- 
 ment-debtor has property, not exempt from execution, and 
 that he unjustly refuses'to apply it to the payment of the 
 judgment. An affidavit upon infornation and belief is xiot 
 suflScient to give the judge jurisdiction. The Code requires 
 
 . legal proof, which statements on information do not con- 
 stitute. Mankin v. Page, 65 How. Pr. 453, but the slightest 
 amount of such proof is enough to confer jurisdiction. The 
 judgment creditor,. in order to be entitled to an order under 
 section 2436 of the Code, nmst show that a demand had 
 been made upon the judgment-debtor, for the application 
 of the property in payment of his judgment, and a neglect 
 or refusal by the judgment-debtor to so apply it. Levy v. 
 Beacham, 18 N. Y. Supp. 748. Where the proof fails to 
 show such facts, the order will be vacated. Bowery Bank 
 V. Widneayer, 9 id. 629. The proof must also show that 
 the execution was issued within the five years allowed by 
 section 1375 or, if after the expiration of five years, that 
 an execution had been issued within that time, or that the 
 present execution was issued pursuant to the order of the 
 court granted under sec. 1377. Hutson v. Weld, 38 Hun, 142. 
 
 The affidavit must also show that the judgment-debtor is 
 a resident of the county to which the execution was issued 
 (Arnot V. Wright, 29 N. Y. St. Rep. 425), or had a place for 
 the transaction of business in person in the county. The 
 affidavit should also show, when the judgment was ren- 
 dered by a court not of record, that the execution was issued 
 by a county clerk as required by section 3017 of the Code. 
 
 The proof must also show that the ti'anscript was duly 
 filed in the county clerk's office within six years after the 
 judgment was rendered. 
 
 3. Illustrations.— In Levy v. Beacham, 46 N. Y. St. Eep. 
 51, the court say : "Section 2436 of the Code requires that 
 in order to obtain an order requiring the judgment-debtor 
 to be examined concerning his property in aid of the execu- 
 tion, the judgment-creditor must prove to the court that 
 the judgment-debtor has property which he unjustly re- 
 fuses to apply towards the satisfaction of the judgment. 
 
Pboof JSTeoessary to Obtain Order. 67 
 
 Such proof must show that a demand of the application of 
 the property to the payment of the judgment has been 
 made, otherwise no refusal can be established." In First 
 Nat. Bank of Eome v. Wilson, 13 Hun, 232, the affidavit on 
 that point stated that the judgment-debtor " has property 
 and rights in action consisting of mortgages and other choses 
 in action, which are not subject to levy and sale on execu- 
 tion, which he unjustly refuses to apply toward the satis- 
 faction of said judgment." In that case the court say: 
 "The language of the affidavit on that subject is a tran- 
 script of the statute. It states a conclusion merely, and not 
 facts. We are of the opinion that in proceedings under 
 this statute, the proof made on the application for the 
 order should show facts and circumstances, in order that 
 the judge may decide whether there has been an unjust I'e- 
 fusal. The defect, however, is not jurisdictional. The 
 averment, in the language of the statute, is enough to give 
 jurisdiction. The defect is an irregularity which may be 
 waived or amended. In this case it was amended by the 
 , affidavits read on the part of the respondent in opposition 
 to the motion. Those affidavits allege a demand and re- 
 fusal. That, we think, is enough, in view of the literal 
 construction required to be given to the provision of the 
 Code." In Hutson v. Weld, 38 id. 143, the court say: 
 "There can be do doubt that the affidavit is defective. It 
 is so because it does not appear that the execution outstand- 
 ing was issued within five years allowed by the statute for 
 that purpose after judgment (Code, § 1375), or, if after the 
 expiration of the five years, under such circumstances as 
 justified that ceremony, namely, that an execution had 
 .been issued within five years after the entry of the judg- 
 ment, and had been returned wholly or partly unsatisfied, 
 or unexecuted, or an order of the court granting leave to 
 issue the execution, after the expiration of five years. And 
 it cannot well be doubted either that the affidavit was defi- 
 cient in faihng to show that a demand was made of the 
 property which it was alleged was unjustly withheld by 
 the debtor." 
 
 4. What kind of property.— The proceedings authorized 
 by section 2436 of the Code was given for the purpose- of 
 reaching such property only as was of such a nature, or so 
 
68 - SUPPtEMENTAKY PPOCEEDINGS. 
 
 circumstanced, that it could not be reached by execution. 
 As to all other property, the section which requires the pre- 
 vious issuing of an execution contemplates that the cred- 
 itors shall be confined to that remedy until the execution 
 shall be returned, pursuant to" the provisions of the section. 
 The creditor must first issue his execution in all cases. If 
 he fails to reach the debtor's property by that means, he 
 may, upon the return of the execution unsatisfied, have an 
 order requiring the debtor to submit to an examination for 
 the purpose of discovering his property. 
 
 If, after the execution has been issued and before it has 
 been returned, the creditor can prove, to the satisfaction of 
 the judge, that the debtor has property not subject to levy, 
 or which is so kept by the debtor that it cannot be clearly 
 identified, and with ordinary diligence reached by execu- 
 tion, the credi'tor may have the same order upon which the 
 same proceedings may be had as are given on the return of 
 the execution. But where the debtor is shown to be in the 
 undisputed possession of property subject to levy on execu- 
 tion, under circumstances affording unequivocal evidence 
 of title, the creditor is bound to levy upon such property 
 instead of resorting to these proceeedings. Sackett v. New- 
 ton, 10 How. Pr. 565. 
 
 It is not property generally, as the word is defined by the 
 Code, that can be reached by this proceeding. It must 
 either consist of property not subject to levy, or if levy- 
 able, it must be shown to be so kept by the debtor that it 
 cannot be clearly identified, and with ordinary diligence 
 reached by execution, or that he fraudulently conceals it 
 out of reach of the execution. It was held in First. Nat. 
 Bank of Eome v. Wilson, that the applicant must either . 
 show that the debtor has property, and specify the particu- 
 lar form in which it exists, or if he cannot do that, he must 
 state the facts on which his inference is based, that the 
 debtor has property, so that others can judge whether he 
 re'asons correctly. People v. Kecorder of Albany, 6 Hill, 
 429. The proof must satisfy the court, or judge, that the 
 property described belongs to the judgment-debtor, and is 
 in his possession or under his control. 
 
 5; Proof of refusal to apply property. — Section 2436 of 
 the Code makes it imperative upon the applicant for an 
 
Proof NECESSAiir to OBTAii>r Okder. 69 
 
 order of examination under that section to show that the 
 debtor refuses to apply the property described to the satis- 
 faction of the judgment. It must, therefore, appear that a 
 proper demand has been made of the judgment-debtor by a 
 person having authority to make it. 
 
 The above section of the Code is a substitute for the non- 
 imprisonment act. In Spear v. Wardell, 1 N. Y. 151, the 
 court say: "There must be an unjust refusal on the pai't 
 of the debtor to apply his property that an execution can- 
 not reach to the payment of the judgment." In Stewart 
 V. Biddlecome, 2 id. 103, the attorney for the judgment- 
 creditor caused to be presented and delivered to the judg- 
 ment-debtor a written demand, signed by him as such 
 attorney, requiring the debtor to make an assignment of 
 his claims, notes, accounts and other property and rights 
 inaction, to apply on the judgment. It was there insisted 
 by the judgment-debtor that there was not evidence of a 
 sufficient demand made requiring him to apply his rights 
 in action and the like to the payment of the judgment. 
 But the court held that, in general, the attorney of record 
 is authorized to make the demand, and the court say: 
 "This proceeding has been considered as a statute execu- 
 tion, reaching property which is not subject to seizure by 
 execution, and such as through fraud of the debtor either 
 has been or is in danger of being placed beyond the reach 
 of the ordinary process. On the question whether it was 
 necessary to specify in the demand the particular rights in 
 action, stock, money or evidence of debt required of the 
 judgment-debtor to apply to the payment of the judgment, 
 the court say: "It cannot be supposed that a creditor 
 generally can very well have the knowledge or informa- 
 tion of the particulars of such property which his debtor 
 may own, and could not be thus particular if it was re- 
 quired. " 
 
 And besides, it is enough to say that the statute, 
 neither in its policy or language, requires such particularity. 
 
 As to whether it is necessary to show that some person 
 was present when the demand was made, authorized to 
 receive the property demanded or, an assignment of it, the 
 court say: "That might be a good objection if the refusal 
 is put upon that ground." The Code is eilent as to the 
 
70 Suppleme:!^tary Pkoceedings. 
 
 manner in which the application of a debtor's property 
 under such circumstances is to be made, or who is entitled 
 to the custody and collection of his rights in action in order 
 to make the application. Clearly the debtor is not so 
 entitled, and it might well be that the creditor would be a 
 very unsafe and unfit person to be the depository of the 
 fund. It does not necessarily follow that a debtor, in order 
 to comply with the provisions of the Code, is bound in all 
 cases to assign or deliver his stock and rights in action to 
 his creditors in person. 
 
 It seems that the demand can be made by the sheriff, the 
 judgment-creditor or his agent. The demand should be 
 made in writing, subscribed by the party in whose favor it 
 is made, and, if practicable, it should describe the prop- 
 erty, and if the property mentioned is subject to levy and 
 sale it should require the debtor to deliver it to the sheriff 
 holding the execution. If the property demanded is not 
 the subject of levy and sale on execution, the demand is 
 sufficient if it requires the debtor to deliver the same to 
 some responsible person named or to the creditor. Section 
 2447 of the Code provides that where it appears, from the 
 examination or testimony taken, that the judgment-debtor 
 has in his possession or under his control money or other 
 personal property belonging to him, the judge may order 
 him to deliver the same to the sheriff unless a receiver has 
 been appointed, and in that case to the receiver. 
 
 III. Order and Practice Thereunder. 
 
 6. In general. — An order in aid of an execution is similar 
 to that in proceedings instituted after the return of an ex- 
 ecution, and the practice is substantially the same. Thus, 
 proceedings commenced before one judge may be con- 
 tinued before another. Code Civ. Pro., § 2462. The order 
 must be served as required by section 2452, and the pro- 
 ceedings must be instituted and prosecuted before a judge 
 specified in section 2434. The order may require attend- 
 ance before a referee, as prescribed by section 2442, and 
 the judge or referee may adjourn the proceedings from 
 time to time as prescribed by section 2444. 
 
 A warrant may issue instead of the order as prescribed 
 by section 2437. So after an order in aid pf an execution 
 
Order and Practice Thereunder. 71 
 
 has been served an order to examine a person having prop- 
 erty, etc., of the judgment-debtor may be obtained under 
 section 2441. 
 
 Notwithstanding the provisions of section 2436, the grant- 
 ing of an order is held to be discretionary with the judge to 
 whom application is made. These proceedings are a sub- 
 stitute for an action in equity in aid of an execution. 
 Erickson v. Quinn, 15 Abb. N. S. 166; Kamp. v. Kamp, 46 
 How. Pr. 143. Such an action is not a creditor's bill 
 proper. Eoger Wheel Co. v. Feilding,,61 How. Pr. 437. 
 
 7. Examination. — Though the Code does not prescribe 
 any different mode of examination upon an order in aid of 
 an execution than upon an order after the return of an 
 execution (sections 2444 and 2460), the practice is to 
 confine the examination to the property specified or 
 mentioned in the affidavit, or proof on which the order was 
 issued. The whole examination must have for its single 
 object to ascertain whether there is any property of -the 
 debtor which ought to be apjjlied to the payment of the 
 creditor's claim, and the extent of the inquiry in each 
 particular case must be left to the good sense of the officer 
 under whose direction it takes place, having in view the 
 general object. 
 
 In these proceedings the question is what intangible 
 property did the judgment-debtor own or control when the 
 demand was made? If it appears that he had such prop- 
 erty, and unjustly refused to apply it upon the judgment 
 when asked to do so, the judge will make an order under 
 section 2449 for the dehvery of the property, and the prose- 
 cuting creditor, by making the demand, acquires a right of 
 preference to the property demanded. Duffy v. Dawson, 
 19 N. Y. Supp. 186. After such demand the debtor cannot 
 defeat the preference, either by prefering another creditor 
 by •way of assignment or confession of judgment. But the 
 proceedings create no lien on the debtor's property and can- 
 not affect an innocent purchaser. In order for the creditor 
 making the demand to retain a preference in these pro- 
 ceedings, the demand must be followed up by the immedi- 
 ate procurement and service of the order and the dilhgent 
 prosecution of the proceedings to their termination. Hall 
 V. Kellogg, 12 N. Y. 332. 
 
72 
 
 Supplementary Proceedings. 
 
 
 CHAPTER X. 
 
 I. 
 
 Warrant op Arrest Instead 
 
 4. Service of. 
 
 
 OF Order. 
 
 IV. Return and Examination. 
 
 
 1. In general. 
 
 5. Preliminary. 
 
 
 2. Persons exempt from arrest. 
 
 6. Undertaking required. When. 
 
 II. 
 
 Affidavit. 
 
 7. Proceeding^ after preliminary- 
 
 III. 
 
 Warrant. 
 3. In general. 
 
 examination. 
 
 I. Warrant of Arrest Instead of Order. 
 
 1. In general. — Section 2437 of the Code provides for an 
 alternative proceeding to those provided for by sections 2i35 
 and 2436. 
 
 It provides that upon proof entitling a judgment-creditor 
 to an order, under either section 2435 ov 2436 ; and also 
 proof by affidavit to the satisfaction of the judge, that 
 there is danger that the judgment-debtor will leave the 
 state, or conceal himself, and that there is reason to believe 
 that he has property which he unjustly refuses to apply to 
 the payment of the judgment. The judge may, instead of 
 making an order, issue a warrant under his ha\id, reciting 
 the facts, and requiring the sheriff of any county where 
 the judgment-debtoB may be found, to arrest him and 
 bring hijxi before the same judge, or before another judge, 
 if the case is one where the warrant must be return- 
 able to another judge. Section 2438 provides for an 
 order of arrest as aforesaid,, after the making of an order 
 requiring the judgment-debtor to attend and be examined, 
 and before the close of his examination. In order tQ ob- 
 taiii a warrant under section 2438, a state of facts must be 
 shown that would entitle a party to a warrant under section 
 2437. An order for examination of a debtor, and a subse- 
 quent warrant for his arrest in such proceedings are inde- 
 pendent, and the vacating of the oi-der does not affect the 
 warrant. Frost v. Craig, 30 N. Y. St. Rep. 848. 
 
 2. Persons exempt from arrest.^The following persons 
 are exempt from arrest on civil process : Heads of foreign 
 governments ; foreign ministers and their domestics ; en- 
 listed men of the United States. U. S. Rev. Stat., § 4063, 
 
Affidavit. 75 
 
 1237. Militiamen of the state. Laws 1870, ch. 80 ; People 
 V. Campbell, 40 N. Y. 133. New York city policeman. 
 Laws 1882, ch. 410. Electors on day of election. Laws 
 1842, ch. 130. Members of the legislature (1 E. S. 154), and 
 officers of either house. Matter of Potter, 55 Barb. 625. 
 Members of congress. Lewis v. Elmendorf, 2 Johns. Cas. 
 222. Witnesses in attendance at court. Frisby v. Young, 
 11 Hun, 474 ; Jenkins v. Smith, 57 How. Pr. 172 ; Matthews 
 V. Tufts, 87 N. Y. 568. 
 
 Parties to action are privileged while in attendance at 
 court. Sathinger v. Adler, 2 Eob. 704 ; In re Lampert, 21 
 Hun, 154. An officer of a court of record, during the 
 actual sitting, which he is required to attend, of a term of 
 court of which he is an officer. Code Civ. Pro., § 565. By 
 section 558 id., it is provided that "a person shall not be 
 arrested in a civil action or special nroceeding except as 
 prescribed by statute." 
 
 A. woman cannot be arrested under article 1, title 1, of 
 chapter VH, of the Code, except for willful injury to per- 
 son, character or property. Code, § 553. So a person 
 prosecuted in a representative capacity is privileged from 
 arrest under said chapter. Id. 555. Where a person has 
 been discharged from imprisonment under an order of 
 arrest, by due course of law, he cannot be rearrested and 
 imprisoned a second time for the same cause, though in a 
 different form of action. Townsend v. Nebenzahl, 20 
 Hun, 83. 
 
 II. Affidavit. 
 
 Section 2437 of the Code prescribes that certain of the facts 
 necessary to obtain an order of arrest must be made by 
 affidavit. It also prescribes w^hat proof must be adduced. 
 
 Under this and the next section it is necessary for the 
 creditor, before he is entitled to a warrant of arrest against 
 the judgment-debtor, to establish the same facts in respect 
 to the judgment, execution, debtor's residence or place of 
 business, that are required for the order which the warrant 
 is to represent. The creditor must further establish to the 
 satisfaction of the judge to whom the application for the 
 issuing of the warrant is presented, that there is danger 
 that the judgment-debtor will leave the state or conceal 
 himself, and that there is reason to believe that he has 
 10 
 
74 SuPPLEMENTAlty PEOCEliUINGS. 
 
 property which he unjustly refuses to apply to the payment 
 of the judgment. 
 
 It seems that the afifidavit must positively show the facts 
 or it must show the facts, circumstances and information 
 upon which his belief is founded. Netzel v. Mulford, 59 
 How. Pr. 452. The affiant must give the facts from which 
 his conclusions were drawn, so that others can judge 
 whether he reasoned correctly. He must show that there 
 is reason to believe that the judgment-debtor has property 
 which he unjustly refuses to apply to the payment of the 
 judgment. The creditor must show what property the 
 debtor has, or, at least, that he has property. Heller v. 
 De Leon, 26 N. Y. St. Eep. 102. 
 
 He must specify the particular form in which the property 
 exists. -If he does not know, and only arrives at his conclu- 
 sions by a process of reasoning, he should give the facts on 
 which his inference is based. The warrant and aflftdavit 
 upon which it is founded must be served upon the judg- 
 raent-debtor by delivering to and leaving with the debtor 
 copies thereof. Code, § 2453. While the rule which has 
 been mentioned cannot operate as a hardship upon the 
 creditor, the want of it may prove highly prejudicial to the 
 debtor. The liberty of the citizen is of quite as much im- 
 portance as the preservation or security of his property, and 
 the provisions of the Code, in relation to obtaining orders of 
 arrest, should be strictly construed. Southern I. N. & I. 
 Co. V. Sherwin, 1 Civ. Pro. Eep. 44. It is not necessary 
 that the affidavits should specify the grounds, in terms, 
 prescribed by section 2437 of the Code, it is enough that . 
 they state facts sufficient to authorize the conclusion tha.t 
 the grounds exist in fact. ' 
 
 Thus the affidavit must positively show that the debtor 
 intends to leave the state, or, it must aver his threats and 
 declarations to do so, or state facts and circumstances 
 evincing or amounting to an intention to leave. Hitchcock 
 V. Peterson, 14 Hun, 389. But facts must be positively 
 stated, or where the facts ai-e not within the actual knowl- 
 edge of the plaintiff or his witnesses, information may be 
 stated, but the sources of such information must also be 
 stated. The affidavit must contain all the essential facts 
 from which the judge can draw the conclusion that a righi; 
 
Wakrant. 75 
 
 to an order of arrest exists. Meriden Malleable Iron Co. v. 
 Bandman, 2 Week Dig. 591. Thus, the applicant for a war- 
 rant must adduce proof to satisfy the judge that there is 
 danger that the judgment-debtor will leave the state or con- 
 ceal himself. The clause "and that there is reason to be- 
 lieve that he has property which he unjustly refuses to 
 apply to the payment of the judgment," is the same as sec- 
 tion 2436. 
 
 III. Warrant. 
 
 I. In general.— Section 2437 of. 'the Code provides that 
 * ' The judge may, instead of making an order, issue a war- 
 rant under his hand, reciting the facts, and requiring the 
 sheriff of any county, where the judgment-debtor may be 
 found, to arrest him and bring him before the same judge, 
 or before another judge. 
 
 The facts which the Code prescribes must be recited in 
 the warrant are : the recovery of the judgment, issue of exe- 
 cution, etc., that there is danger that the judgment-debtor 
 will leave the state (if that be the ground stated in the affi- 
 davit), or conceal himself — when that is the ground of appli- 
 cation — and that there is reason to believe that he has prop- 
 erty which he unjustly refuses to apply upon the judgment. 
 
 The warrant is issued in the name of the People. Section 
 2434 prescribes what judge may issue the warrant. The 
 warrant must direct the sheriff of the county where the 
 judgment-debtor is found, to arrest him and bring him 
 before the judge granting the order, or, if tlie judge does 
 not reside within the judicial district embracing the county 
 to which the execution was issued, the warrant must be 
 returnable to a judge in that district, etc. An order issued 
 after an order for examination has been made requires the 
 same recitals as one granted independent of the order. 
 Code, § 2438. 
 
 4. Service of. — The warrant may be served in any part 
 of the state. The sheriff, when he arrests a judgment- 
 debtor, must deliver to Him a copy of the warrant and of 
 the affidavit upon which it was granted. Code, § 2453. 
 
 rv. Return and Examination. 
 I Preliminary. — The return of the officer must show 
 that at the time of making the arrest he delivered to the 
 
76 Supplementary Proceedings. 
 
 judgment-debtor a copy of the warrant and of the affidavit 
 upon which it was granted. Code, § 2453. When the 
 judgment-debtor has been arrested and brought before a 
 judge he is entitled to a prehminary examination, in which 
 the judgment-creditor must substantiate the charge in the 
 affidavit or affidavits upon which the warrant was founded, 
 and upon this prehminary examination the creditor must 
 make it appear to the satisfaction of the judge that there is 
 danger that the debtor will leave the state or conceal him- 
 self, and that he has property which he has unjustly refused 
 to apply to the satisfaction of the judgment. This he may 
 do by an examination of the judgment-debtor or by other 
 proof. It is evident from the reading of section 2440 that 
 upon the preliminary hearing witnesses may be examined on 
 both sides to prove or disprove the facts and circumstances 
 in the affidavit upon which the warrant was issued. 
 
 8. Undertaking required — When. — After the preliminary 
 examination is finished if the judge is satisfied that there 
 is danger that the judgment-debtor will leave the state or 
 conceal himself, or tbat he has property which he unjustly 
 refuses to apply to the satisfaction of the judgment, he may 
 make an order requiring the judgment-debtor to give an 
 undertaking, with one or more sureties, in a sum fixed and 
 within a time specified in the order, to the effect that he 
 will from time to time, as the judge directs, attend before 
 the judge or before a referee, appointed .or to be appointed 
 in the proceedings, and, that he will not until discharged 
 from arrest by virtue of the warrant dispose of any of bis 
 property which is not exempt from seizure by section 2463 
 of the Code. If the debtor fails to comply with the order 
 the judge must forthwith by warrant commit him to 
 prison, there to remain until the close of the examination 
 or the giving of the required undertaking. 
 
 The judge may direct the sheriff to produce the debtor 
 from time to time as required in the course of the proceed- 
 ings. Code, § 2440. During the preliminary examination 
 the debtor must remain in the custody of tlie sheriff. 
 
 9 Proceedings after preliminary Examination. — After 
 the consummation of the preliminary examination the pro- 
 ceedings go on as if commenced by order, and the property 
 discovered is disposed of in the same manner. 
 
Return and Examination. 77 
 
 If the preliminary examination does not sustain the 
 creditor's affidavit ou which the warrant is issued the 
 debtor must be discharged from arrest. If the warrant is 
 issued after an order has been issued in the proceedings g,s 
 prescribed by section 2438 of the Code, the vacating of the 
 warrant does not affect the proceedings under the order. 
 Prost V. Craig, 30 N. Y. St. Eep. 848. 
 
78 
 
 Supplementary Proceedings. 
 
 CHAPTER XL 
 
 Persons Having Property of 
 OR Indebted to the Judg- 
 ment-Debtor. 
 
 1. In general. 
 
 2. Independent proceedings. 
 
 3. KinSs of property and value. 
 
 4. Who may be examined. 
 
 5. In what county order must be 
 
 made. 
 
 6. Proof necessary to give juris- 
 
 diction. 
 II. Order, Service, Return, Ex- 
 amination. 
 
 7. In general. 
 
 8. Service. 
 
 9. Proceedings after return. 
 
 10.- Property discovered — How dis- 
 posed of. 
 
 I. Persons Having Property of or Indebted to the 
 Judgment-Debtor. 
 
 I. In. general. — Section 2441 of the Code of Civil Pro- 
 cedure allows an order for the examination of a third per- 
 son as an auxillaiy to an order for examination under 
 either sections 2435 or 2436. It provides that after the 
 issuing of an execution, and either before or after its 
 return, as provided by said sections, and upon proof by 
 affidavit or other competent written evidence, that any 
 person or corporation has personal property of the judg- 
 ment-debtor exceeding ten dollars in value, or is indebted 
 to him in a sura exceeding ten dollars, the judgment-debtor 
 may have an order requiring that person or corporation to 
 attend and be examined concerning the debt or other prop- 
 erty at a time and place specified in the order. The order 
 may require the person to attend before a referee designated 
 in the order (id. § 2441), and the proceedings are to be con- 
 ducted as prescribed ii> section 2444. 
 
 Property discovered under such examination may be 
 applied to the payttient of the judgment in the manner pre- 
 scribed by section 244V. The person proceeded against 
 must obey all proper orders in respect to the effects of the 
 judgment-debtor found in his hands. To that extent he 
 becomes a party to the proceedings taken to reach the 
 debtor's property. Corning v. Tooker, 5 How Pr. 19. It 
 has been held, nothwithstanding the words of the statute, 
 that proceedings under section 2441 are ancillary to and in 
 aid of those under sections 2435 and 2436, and must be 
 taken in connection with them or not at all. 
 
Indebted to the Judgment-Debtor. 79 
 
 2. Independent proceedings. — Section 2441 of the Code 
 of Civil Procedure is a substitute for section 294 of the Code 
 of Procedure ; and in ;Gibson v. Haggerty, 37 N. Y. 558^ 
 Woodruff, J., in delivering the opinion of the court says : 
 "I am not able to perceive the force of the suggestion that 
 an order under section 292, (now §§ 2435, 2436, Code Civ. 
 Pro.), must be first obtained before the judge can obtain 
 jurisdiction to make the order for the examination of a 
 debtor of the judgment-debtor, and direct the payment of 
 what he owes towards the judgment debt. The terms of 
 section 244 (§ 2441) authorizes a proceeding thereunder 
 whether the execution has been returned or only issued. It 
 expressly leaves it in the discretion of the judge to cause 
 notice to be given or to suffer the proceedings to be had 
 without the presence of the party to the action." By stipu- 
 lation the only question presented in the above case was 
 whether it was Competent to make an order for the exam- 
 ination of a debtor of the judgment-debtor as an inde- 
 pendent proceeding, and disconnected with any order for 
 the examination of the debtor. 
 
 On that question, Bacon, J., says : " It has indeed been a 
 mooted point, whether proceedings under section 294 can 
 be taken in any other way than as connected with and 
 auxiliary to a proceeding against the judgment-debtor 
 under section 292. Decisions can be found at general and 
 special terms in the supreme court on both sides of the 
 question. If it is necessary to set the question at rest for 
 the court to decide it, I am clearly of opinion that these two 
 sections are susceptible of, if indeed they were not intended 
 to have, an operation independently of each other. They 
 have no neceessary connection in terms, nor is the issuing 
 of an order under section 294 made dependent upon an 
 order being first issued against the judgment-debtor, and, 
 indeed, if this were not so, cases would every day arise 
 where no proceeding whatever could be taken under sec- 
 tion 294. 
 
 If the judgment-debtor should abscond after judgment 
 and before execution, or the judgment should be rendered 
 against a corporation, there would be no possibility of 
 reaching a claim due the judgment-debtor in the hands of 
 a third party under this section, since no order under sec- 
 
80 Supplementary Proceedings. 
 
 tion 292 could be issued in such a case. To obviate the ob- 
 jection that, in this way, an order may be made transfer- 
 ring the debt without the creditor -having an opportunity 
 to be heard, it is provided that the judge issuing the order 
 may require notice of the subsequent proceedings to be 
 given, in his discretion, to "the judgment-debtor. Cases may 
 easily be conceived where such notice would not be ex- 
 pedient, and the fact that provision is made for it, is a 
 strong implication that the true construction of the two 
 sections is, that they operate, and may be availed of, en- 
 tirely independently of each other." Lynch v. Johnson, 48 
 N. Y. 32, 33. In Lockwood v. Worstell, 15 Abb. 430, it is 
 held that these proceedings may be instituted after the 
 original examination of the judgment-debtor is ended and 
 a receiver of his property has been appointed. 
 
 What was said in regard to this subject in People ex rel. 
 Grant v. Warner, 20 N. Y. St. Rep. 575, was not necessary 
 to the decision of the case. 
 
 3. Kind of property and value. — In order to give a judge 
 jurisdiction to issue an order under section 2441 of the Code 
 of Civil Procedure, it must be positively alleged by affidavit, 
 or the proofs offered upon the application, that the party 
 against whom the proceedings are instituted has " personal 
 property " of the judgment-debtor exceeding ten dollars in 
 value, or is indebted to him in a sura exceeding ten dollars. 
 
 Alleging such fact upon information and belief, without 
 stating the source of information, is not sufficient. People 
 V. Jones, 1 Abb. N. 0. 172 ; Leonard v. Bowman, 40 N. Y. 
 St. Rep. 135 ; Grinuell v. Sherman, 33 id. 27. But if the 
 order is granted on such statement, it is not void, but void- 
 able only. Fleming v. Tourgee, 40 N. Y. St. Rep. 705 ; 21 
 Civ. Pro. Rep. 297. 
 
 An affidavit that the person has property of the judg- 
 ment-debtor, or is indebted to him, is insufficient. Collins 
 V. Beebe, 27 N. Y. St. Rep. 4. 
 
 4. Who may be examined. — These proceedings may be 
 taken against any person or corporation that is supposed to 
 have personal property of the judgment-dehtor exceeding 
 ten dollars in value, or is indebted to him in a sum exceed- 
 ing ten dollars, the fact that the debt from such person to 
 the judgment- debtor is not then due, does not exempt him 
 
Indebted to the Judgment-Debtor. 81 
 
 from such examination. Davis v. Herrick, 65 How. Pr. 290. 
 Any one of the members of an association who holds the 
 property thereof may be examined as to such property, 
 whether named as an officer or not. Oourtois v. Harrison, 
 12 How. Pr. 359. A receiver of a foreign corporation, ap- 
 pointed in another state, will not be subjected to such ex- 
 amination, or I'equired to pay over moneys due a judgment- 
 debtor. Smith V. McNamara, 15 Hun, 447. Neither will a 
 receiver appointed in this state. Fitchburgh Nat. Bank v. 
 Bush wick Ohem. Works, 13 Civ. Pro. Rep. 155. 
 
 Nor can these proceedings be instituted upon a judgment 
 recovered against executors or administrators. Collins v. 
 Beebe, 27 N. Y. St. Eep. 4. 
 
 Nor where the judgment-debtor is a corporation created 
 by or under the laws of this state, or a foreign corporation. 
 An execution- creditor of a municipal corporation may have 
 an order to examine a person indebted to, or having funds 
 of, the judgment- debtor; so an officer of such corporation 
 having funds in his hands may be examined. Lowber v. 
 Mayor, 5 Abb. 268. A right of action in a judgment-debtor 
 to recover damages for a personal tort cannot be reached, 
 such a cause of action not being assignable either by volun- 
 tary act or by operation of law. Cotterell v. Slosson, N. Y. 
 Daily Eeg., Jan. 6, 1884. 
 
 A corporation which has had business with the judgment- 
 debtor may be examined as a witness through one of its 
 officers, and may be compelled to produce its books, papers 
 and accounts for use upon such examination. Pendergast 
 V. Dempsey, 18 Civ. Pro. Rep. 198; Semmeru. Noell, id. 200. 
 
 A judgment-creditor, by electing to bring an action to 
 have an assignment made by the judgment-debtor adjudged 
 to be Invalid, does not waive his right to proceed under sec- 
 tion 2441 of the Code, to compel the assignee to appear and 
 testify. Matter of Sickle, 52 Hun, 527. But the proceedings 
 cannot be continued and prosecuted after the death of the 
 sole defendant, until his representatives are brought in as 
 parties. Hazewell v. Penman, 13 How. Pr. 114. A person, 
 holding a fund created by third persons for the relief and 
 benefit of the judgment-debtor, cannot be compelled to pay 
 the same over, to be applied in nayment of the judgment in 
 these proceedings. Wilder v. Clark, 33 N. Y. St. Eep. 143. 
 11 
 
82 Supplementary Pkoceedings. 
 
 So money deposited by a third person, in lieu of bailfor the 
 judgment-debtor in criminal proceedings, cannot be reached 
 as the property of the latter in these proceedings. McShane 
 V. Pinkham, 46 id. 65. Surplus trust funds, if due and 
 payable, may be reached in these proceedings. Lawrence 
 et al. V. Pease, 50 id. 851. 
 
 5. In what county order must be made. — The execution 
 must be issued to the county where the judgment-debtor 
 resided, or where he had a place for the transaction of busi- 
 ness in person when the proceedings were commenced. 
 Schenck v. Erwin, 38 N. Y. St. Eep. 603; 15 N. Y. Supp. 
 55. And unless the proof for an order shows such fact, the 
 judge has no jurisdiction to grant the order. The only ex- 
 ception to this rule is where the judgment-debtor is a non- 
 resident of the state. It is held in Merrill v. Allen, 13 N. Y. 
 St. Eep. 20, that when proceedings are taken against a 
 debtor of the judgment-debtor for the purpose of securing 
 an application of an indebtedness toward the payment of 
 the judgment, when the execution is in the hands of the 
 sheriff, the judgment-debtor is in a sense a party to such 
 proceedings, and the judge in any county other than the 
 one in which the judgment-debtor resides has jio jurisdic- 
 tion over the subject-matter. On this subject the court 
 say: "The question presented is one of interest, as well as 
 great practical importance, and which has not been adjudi- 
 cated. * * * Its solution involves a construction of 
 several of the sections of the Code found in the chapter 
 relative to proceedings supplementaiy to execution against 
 property." In that case the judgment was originally dock- 
 eted in New York county, where the judgment-debtor re- 
 'sided, and .a transcript thereof filed and the judgment 
 docketed in Ontario county. An execution was issued to the 
 sheriff of New York county and returned unsatisfied, sub- 
 sequently an execution was issued to the sheriff of Ontario 
 county; and it seems that before the return of the execu- 
 tion issued to the sheriff of Ontario county, an order was 
 granted under section 2441 for the examination of persons 
 then residing in Ontario county, indebted to the judgment- 
 debtor. 
 
 It was contended, in that case, that by force of the pro- 
 visions contained in section 2434, the county judge of 
 
Indebted to the Judgment-Debtor. ' 83 
 
 Ontario county had jurisdiction to issue an order requiring 
 a debtor of the judgment-debtor,or a person, having property 
 of the judgment-debtor in his possession and residing in 
 Ontario county, to appear before him and make answer 
 concerning the same, as the judgment had been docketed 
 in that county, and an execution regularly issued and was 
 then in the hands of the sheriff of that county. On the 
 part of the judgment-debtor, it was contended that as the 
 judgment-debtor had a residence in the city and county of 
 New York, proceedings of this character could only be in- 
 stituted by virtue of and in aid of an execution issued to 
 the sheriff of that county, and that they must be conducted 
 by and before one of the judges of New York county, or if 
 all of them should be absent from their county, or for any. 
 reason they were unable or disqualified to act, then before 
 a justice of the supreme court of that district, as mentioned 
 and regulated in section 2434. The court (page 22) say : 
 " We are inclined to concur with the last proposition." The 
 result of this construction of the statute is, that the county 
 judge of Ontario county did not have jurisdiction of the 
 subject-matter. 
 
 The provision of section 2434 that " either special pro- 
 ceeding may be instituted before a judge of the court out 
 of which, or the county judge or the special county judge 
 of the county to which the execution was issued," refers to 
 the county judge, or special county judge, of the county to 
 which an execution has been issued, as provided in section 
 2458, as section 2441 provides that these proceedings can be 
 instituted only on proof that an execution has been issued 
 "as prescribed in section 2458." It is held in Schenck v. 
 Erwiu, 43 N. Y. St. Rep. 862, that a county judge, of a 
 county other than that of the debtor's residence, has no au- 
 thority to grant a third-party order And where such order 
 was granted, and the county judge of the debtor's residence; 
 before whom supplementary proceedings had been insti- 
 tuted, subsequently made an order directing such third 
 party to pay over to a receiver, it was held that no jurisdic- 
 tion over such third party had been acquired, and that such 
 order was unauthorized. 
 
 6. Proof necessary to give jurisdiction, —The affidavit 
 or other written evidence upon which to predicate an order 
 
84 Supplementary Pkoceedings. 
 
 for the examination of a third person must establish the 
 fact that an execution against the property has been issued, 
 as prescribed in section 2453 of the Code of Civil Pro- 
 cedure, and either that it has been returned wholly or 
 partly unsatisfied, or that it has not been returned. It 
 should allege the same facts in respect to the judgment 
 and parties to it as ai'e required by sections 2435 or 2436. 
 If the application is based on the fact that the execution 
 has been returned, it should appear that the first execu- 
 tion issued upon the judgment was returned within ten 
 years from the time of the application for the order. 
 If the proof shows that the execution has not been re- 
 turned it should also show that such execution was 
 issued within five years after the original entry of the 
 judgment, or that an execution had been issued on the 
 judgment within five years from such entry and returned, 
 or that the execution upon which the application for the 
 order was made was issued by leave of the court. The 
 affidavit must also show that the execution on which the 
 proceeding is based has been issued to the sheriff of the 
 county where the judgment-debtor resides when the pro- 
 ceeding is commenced. Schenck v. Erwin, 38 N. Y. St. 
 Eep. 603. 
 
 But it is not necessary to show a demand and the other 
 facts required for the examination of the judgment-debtor 
 Potts V. Davidson, 1 How. N. S. 216. It is necessary to 
 show either " that the defendant is a resident " or " that he 
 has a place of business within the county," for either will 
 suffice, but it should not follow the alternative wording of 
 the statute, that he is a resident or has a place of business 
 within the county. Kellogg v. Freeman, 2 City Ct. 147. 
 So the affidavit which states that the execution was issued 
 to a county where the judgment-debtor then resided, and 
 yet resides, or has a place for the regular transaction of 
 business in person, and on information and belief that the 
 third party has property of the judgment-debtor exceeding 
 ten dbllars in value (or is indebted to him in such sum), is 
 defective in making the statement in the alternative, and 
 in failing to state the sources of the information, and is in- 
 sufficient to sustain the proceeding. Leonard v. Bowman,. 
 40 N. Y. St. Rep. 135. 
 
Order, Service, Return, Examination. 85 
 
 Nevertheless the order is not void, and must be obeyed so 
 long as the proceedings before the judge gave him jurisdic- 
 tion of the subject matter and of the person proceeded 
 against. Fleming v. Tourgee, id. 705. An affidavit stating 
 in the alternative form that a third person has property of 
 the judgment-debtor, or is indebted to him, is insufficient 
 to authorize the granting of a third-party order. Collins v. 
 Beebe, 27 id. 4. But a third -party order, though supported 
 by an insufficient affidavit, is not void, and it is incumbent 
 on a party proceeded against to obey it or take proper steps 
 to set it aside. He cannot treat it as a nullity. Matter of 
 Fleming v. Tourgee, 40 id. 705 ; Cooman v. Board of Edu- 
 cation, 37 Hun, 96. The questions in Grinnell v. Sherman, 
 33 N. Y. St. Eep. 27, arose upon a motion to set aside an 
 order appointing a receiver, and all irregularities, if any, in 
 the original affidavits seem to have been waived. The affi- 
 davit, if made by a stranger to the record, must show that 
 the proceedings are authorized by the judgment-creditor, 
 his assignee or representatives. Brown v. Walker, 121 N.Y. 
 717 ; 28 N. Y. St. Rep. 36. 
 
 It should state that the person to be examined has "per- 
 sonal property " of the judgment-debtor ; and an affidavit 
 which alleges upon information and belief that the person 
 sought to be examined has personal property of the judg- 
 ment-debtor exceeding ten dollars in value, is sufficient, 
 although the sources of deponent's information are not 
 stated. Teft v. Epstein, 17 Civ. Pro. Rep. 168. The affi- 
 davit should state whether or not proceedings under either 
 section 2435 or 2436 of the Code of Civil Procedure, are 
 pending, and give the residence of the jierson to be ex- 
 amined. The property sought to be reached should be 
 described, and the origin of the indebtedness. 
 
 II. Order, Service, Return, Examination. 
 7. In general. — The order should recite the jurisdictional 
 facts prescribed by section 2441 of "the Code of Civil Pro- 
 cedure, and direct the person or corporation to attend and 
 be examined concerning the debt or other property, at a 
 time and place specified in the order. If a corporation is 
 to be examined, the order should name the officer to be 
 examined. Pendergast v. Dempsey, 18 Civ- Proc. Rep. 198. 
 
86 SUPPLEMENTAEY PROCEEDINGS. 
 
 It need not contain the matters requisite to an affidavit 
 and order to examine the judgment -debtor himself before 
 the return of the execution, although the application for 
 the order is made before the return of execution. Potts v. 
 Davidson, 1 How. N. S. 216. The order may require the 
 person to attend before a referee designated therein, but 
 it must fix a time and place for such examination. But it 
 seems that section 2444 of the Code Civil Procedure em- 
 powers the referee with authority to compel the parties or 
 witnesses on adjourned days. 
 
 If the person required to attend is a resident of the state 
 or then has an office within this state, for the regular 
 transaction of business in person, the order must direct the 
 examination to be in the county where such residence or 
 ' place of business is situated. Code, ■§ 2459. Whether or 
 not a non-resident of the state having no place of business 
 within this state can be compelled to attend in the county 
 where the judgment-roll is filed when such county is not 
 the county where the service of the order is made, quare. 
 Heckman v. Bach, 20 Abb. N. C. 401. 
 
 8. Service. — The order must be served as prescribed by 
 Code, § 2452. . People v. Warner, 20 N. Y. St. Eep. 573; 51 
 Hun, 53. 
 
 The original order, under the hand of the judge making 
 it, must be exhibited to the person to be served. A copy 
 thereof, and the affidavit upon which it was made, must be 
 delivered to him. Service upon a corporation is made by 
 the service being made on an officer designated in the 
 order, or an officer upon whom a summons in an action 
 may be served. 
 
 Such third person is not entitled to be paid witness fees 
 as a condition to his obedience to the order. Heckman v. 
 Bach, 20 Abb. N. C. 401. What was said in People v. 
 Warner, 51 Hun, 57, relates exclusively to witnesses, and 
 has no relevancy as regards persons examined under section 
 2441 of the -Code of Civil Procedure. A party examined 
 under this section is protected by section 2456. 
 
 9. Proceedings after return. — Section 2444 of the Code 
 of Civil Procedure provides that "upon an examination under 
 this article * * * either party may be examined as a 
 witness in his own behalf and may produce and examine 
 
Order, Service, Return, Examination. 87 
 
 « 
 
 other witnesses, as upon the trial of an action. The creditor 
 is not deprived of his right to a complete discovery of the 
 facts by a claim of a witness that he is the owner by pur- 
 chase of the property concerning which the inquiry is 
 made. Mechanics' & T. Bank v. Healey, 14 Week. Dig. 
 120. The whole examination must have for its single 
 object to ascertain whether there is any property of the 
 debtor which- ought to be applied to the payment of 
 plaintiff's claim, and the extent of the inqury in each par- 
 ticular case must be left to the good sense of the officer 
 under whose direction it takes place, having in view the 
 general object. In these proceedings the witnesses may be 
 cross-examined the same as on the trial of an action. The 
 party may be examined to prove that he has been a party 
 or privy to, or knowing of a conveyance, assignment, 
 transfer or other disposition of the judgment-debtor's prop- 
 erty for any purpose, and slich party is not excused from 
 answering a question on the ground that he or another 
 person claims to be' entitled to hold the property. Code, 
 § 2460. 
 
 10. Property discovered. — How disposed of. — Where it 
 appeal's that one or more articles of personal property of 
 the judgment-debtor capable of delivery, and not exempt 
 from these proceedings by section 2463 of the Code of Civil 
 Procedure, his right to the possession whereof is not sub- 
 stantially disputed ai-e in the possession or under the con- 
 trol of another person, the judge, by whom the order was 
 granted, or to whom it is returnable, may, in his discre- 
 tion and upon such a notice, given to such persons as he 
 deems just, or without notice make an order directing such 
 person to deliver the articles of personal property to a 
 sheriff designated in the order or to a receiver in the action. 
 Code, § 2447. 
 
88 
 
 Supplementary Proceedings. 
 
 CHAPTER XII. 
 
 rereeencb and proceedings 
 Tbekeundbr. 
 1. In general. 
 3. Who may be referee. 
 3. By whom appointed. 
 
 4. Where reference may be ex- 
 
 ecuted. 
 
 5. Oath of referee. 
 
 6. Power of referee. 
 
 7. Proceedings before referee. 
 
 I. Reference and Proceedings Thereunder. 
 
 I. In general. — The judge granting an order for examina- 
 tion in supplementary pi'oceedings may appoint a referee 
 to take the testimony, and require the judgment-debtor or 
 party named in the order to attend and be examined before 
 such referee. Code, § 2442 ; Howe v. "Welch, 11 Civ. Pro. 
 Rep. 444. Only the examination or the ascertaining of 
 certain facts is referred, the proceedings themselves remain 
 before the judge before whom the order is returnable. The 
 referee must certify the testimony to the judge to whom 
 the order is returnable and the other proceedings taken 
 before him. The judge to whom the order is returnable 
 may, at any stage of the proceedings, make an order direct- 
 ing that any further examination or testimony be taken by, 
 or that a question arising, be referred to a referee designated 
 in the order. Where a question is so referred the referee 
 may be directed to report either the evidence or the facts. 
 Code, § 2443. This section does not apply to an order of 
 reference to examine the debtor or witnesses -in the pro- 
 ceedings, but applies only to incidental questions of fact 
 arising at any stage of the proceedings before a judge to 
 whom the order is returnable. Howe v. Welch, 11 Civ. 
 Pro. Rep. 446. The Code does not require the order 
 appointing the referee for examination of debtor or third 
 person under either sections 2435, 2436 or 2441 to be incor- 
 porated with the order requiring the creditor to appear. 
 Lewis V. Penfield, 39 How. Pr. 490. Where the order is 
 made under either sections 2435 or 2436 it need not name 
 the time or place for the appearance of the judgment- 
 debtor, but it may direct the debtor to appear at such 
 times and places as may be appointed by the referee, and 
 the referee may issue his summons for the debtor to appear 
 
Eeference and Proceedings Thereunder. 89 
 
 before him at a time and place designated in such sum- 
 mons, and the debtor will be guilty of contempt if he fails 
 to obey such summons. Eedmond v. Goldsmith, 2 Law 
 Bull, 19. But an order of reference under sections 2440 
 and 2441 of the Code of Civil Procedure must fix the time 
 and place for examination. 
 
 2. Who may be referee. — Except in cases provided for 
 by section 1011 of the Code of Civil Procedure, no person, 
 unless he is an attorney of the court in good standing, can 
 be appointed sole referee for any purpose in any pending 
 action or proceeding. Nor can any person be appointed a 
 referee who is the partner or clerk of the attorney or 
 counsel of the party in whose behalf such application for 
 such appointment is made, or who is in any way con- 
 nected in business with such attorney or counsel, or who 
 occupies the same office with such attorney or counsel. 
 S. C, rule 80. Gilbert v. Frothingham, 13 Civ. Pro. Rep. 
 288. 
 
 Section 1011 of the Code of Civil Procedure provides that 
 parties by stipulation may enter an order appointing any- 
 one a referee to try their matters. 
 
 The appointment in these proceedings is made ex parte 
 upon application of the judgment-creditor, who generally 
 names the referee. But if he is objectionable the aggrieved 
 party may apply on notice to the judge to modify or vacate 
 the order or appoint another referee. 
 
 3. By whom appointed. — An order of reference allowed 
 by section 2442 of the Code of Civil Procedure must be 
 made by the judge granting the order for examination at 
 the time of tlje granting of such order. The only order of 
 reference that can be made after the granting of the order 
 for examination is one under section 2443 to investigate 
 questions of fact. But if the referee appointed by the 
 original order dies the judge may appoint another. Allen 
 V. Starring, 26 How. Pr. 57. 
 
 In proceedings under section 2441 of the Code of Civil 
 Procedure, where the debtor of the judgment-debtor, for 
 the examination of whom an order is applied for, resides 
 in a county other than that of the judgment-debtor his 
 examination must be had either before a justice of the 
 supreme court or before a referee, as the order cannot be 
 12 
 
■90 SUPPLEMENTAliY PrOCEEDIXGS. 
 
 made by a local judge other than one of the county where 
 the judgment-debtor resides (Schenck v. Erwin, 43 N. Y. 
 St. Eep. 802; Merrill v. Allen, 13 id. 20), and such third party 
 cannot be compelled to attend pursuant to the order or to 
 any adjournment at a place without the county wherein 
 his residence or place of business is situated. Code, § 2469. 
 The judge to whom an order is returnable may remove a 
 referee and appoint another in his place, and direct the 
 debtor to appear and answer before him at a time and 
 place stated. Pardee v. Tilton, 83 N. Y. 623. 
 
 4. Where reference may be executed — It seems that any 
 of the judges mentioned in section 2434 of the Code may 
 appoint a referee to hold sessions in any county in the 
 state, and may enforce attendance before such referee in 
 any case where it may be done by a justice of the supreme 
 court. Bingham v. Disbrow, 37 Barb. 24. 
 
 Section 349 of the Code of Civil Procedure provides that 
 " The county judge possesses the same power and authority 
 in a special proceeding, which can be lawfully instituted 
 before him out of court, which a justice of the supreme court 
 possesses in a like special proceeding instituted before him 
 in like manner, and section 241 gives the same jurisdiction 
 to other judges. 
 
 5. Oath of referee.— Unless the parties expressly waive 
 the referee's oath, a referee appointed in supplementary 
 proceedings must, before entering upon an examination or 
 taking testimony, subscribe and take an oath that he will 
 faithfully and fairly dischai-ge his duty upon the reference, 
 and make a just and true re port according to the best of 
 his understanding. Code, § 2445. 
 
 6. Power of referee. — A referee appointed under section 
 3342 of the Code of Civil Procedure must certify to the 
 judge to whom the order is returnable, all the evidence and 
 the other proceedings taken before him. An order of refer- 
 ence under section 2443 may direct the referee to report 
 
 either the evidence or the facts. 
 
 An order for examination under either section 2435 or 
 2436, may direct the party to be examined to appear before 
 a referee at such times and places as the referee may ap- 
 point and direct. 
 
 In such cases the referee brings the parties before him by 
 
Eeference and Proceedings Thereunder. 91 
 
 a. summons, in which the time and place for the hearing is 
 iixed. Eedmond v. Goldsmith, 2 Law Bull. 19. Such 
 summons must be personally served upon the judgment- 
 debtor. This summons should be entitled in the proceed- 
 ings and alleged by the referee, and should state the nature 
 of the proceedings, unless served with the original order. 
 The referee has no control over the person of the party or 
 witness, and cannot punish for misconduct or disobedience 
 of an order or subpoena. He can direct the party or wit- 
 ness to do certain things, but if the party or witness refuses 
 or neglects to do as directed, the referee can only certify 
 the proceedings to the judge or court. Green v. BuUard, 8 
 How. Pr. 313, 318. The referee may adjourn any proceed- 
 ings from time to time as he thinks proper. Code, § 2444-. 
 But he has no power to compel an attendance on the ad- 
 journed day. All he can do is to direct the party or wit- 
 ness to appear on the adjourned day, and if he refuses 
 certify the proceedings to the judge or court. The referee 
 may adjourn the proceedings in the absence of the party to 
 be examined. But in such a case he must cause his sum- 
 mons to be served upon the judgment-debtor or person to 
 be examined, in which the time and place for the adjourned 
 hearing must be stated, and the summons must direct the 
 party to appear at such time and place. 
 
 7. Proceedings before referee. — After the referee has been 
 sworn he may proceed with the examination of the parties 
 and their witnesses as prescribed by section 2444 of the 
 Code of Civil Procedure. He must swear each witness ex- 
 amined, and reduce the testimony of each witness to writing 
 in the form of a deposition, and direct the witness to sign 
 the same. A subpoena for a witness to be examined before 
 him, must be issued under his hand pursuant to section ^54. 
 Knowles v. DeLazare, 3 How. N. S. 35; People v. Ball, 37 
 Hun, 245. 
 
 And the referee may require the witness to produce 
 papers either by subpoena, duces tecum or by an order 
 under sections 867 and 869 of the Code of Civil Procedure. 
 The proceedings before the referee are certified to the judge 
 to whom the order is returnable. But it may be used before 
 any court having jurisdiction to punish a party or witness 
 in the proceedings for contempt, in not obeying the direc- 
 
92 Supplementary Proceedings. 
 
 tions made by him. If for any reason the referee or the 
 judgment-debtor fails to appear at the time appointed for 
 the hearing of the matter, the matter does not abate, but 
 the matter may be continued by the service of a summons 
 under the hand of the referee, fixing the time and place for 
 a further hearing of such proceeding. 
 
Witnesses in Supplementary Pkoceedings. 
 
 93 
 
 CHAPTER XIII. 
 
 i. witnesbbs in sopplementakt 
 Proceedings. 
 1. In general. 
 
 3. Attendance, how enforced. 
 8. Subpoena, how served. 
 
 4. Penally for disobeying subpcena. 
 
 5. Contents of warrant. 
 
 6. Bight of witness to counsel. 
 
 7. Signing and filing depositions. 
 
 I. Witnesses in Supplementary Pkoceedings. 
 
 1. In general. — The examination in these proceedings is 
 to all intents and purposes a trial, so far as the taking of 
 testimony is concerned. Section 2444 of the Code expressly 
 ■declares that eHiher party may be examined as a witness in 
 his own behalf, and may produce and examine other wit- 
 nesses, as upon the trial of an action. A witness or party 
 may be required by subpoena " duces tecum " to produce 
 papers or books on an examination. Charaplin v. Stoddard, 
 17 Week. Dig. 76. So an order may be made for the pro- 
 duction of books, etc., under sections 867, 869 of the Code 
 instead of resorting to a subpoena. Pruden v. Tallman, 6 
 Civ. Pro. Eep. 362. But whether the production of the books 
 of a corporation, when it is examined as a third party, can 
 be compelled by an order under sections 867 and 869 of the 
 Code, quaere. Section 868 of the Code provides that the 
 production of a book or paper, belonging to or under the 
 control of a corporation, may be compelled by a subpoena 
 " duces tecum," or an order as the case requires, which must 
 be served upon the president, or other head of the corpora- 
 tion, or an officer thereof in whose custody the book or 
 paper is. Code, § 868 ; Holmes B. & H. v. Street, 6 Civ. 
 Pro. Eep. 362n. The appearance of any officer of the cor- 
 poration who can identify the book or paper and testify re- 
 specting the purposes for which it is used, will be sufficient 
 obedience to the mandate. Code, § 869. 
 
 2. Attendance, how enforced. — Section 854 of the Code of 
 Civil Procedure provides that, where a judge or an arbitra- 
 tor, referee or other person, or a board or committee has 
 been heretofore or is hereafter expressly authorized by law 
 to hear, try or determine a matter, or to do any act in an 
 •official capacity in relation to which proofs may be taken, 
 
94 Supplementary Ppoceemngs. 
 
 or the attendance of a person as a witness may be required 
 * * * a subpoena may be issued, by and under the hand 
 of the judge, arbitrator, referee or other person * * * 
 requiring the person to attend ; and also in a proper case, 
 to bring with him a book or paper. A subpoena in the 
 usual form of a subpoena in an action and signed by a clerk 
 of the court, is insufficient unless it is also signed by the 
 judge or referee before whom the proceedings are pending. 
 People V. Ball, 37 Hun, 245. Until an order under sections 
 2435, 2436, 2441 of the Code, or a warrant under sections 2437 
 or 2438 has been served as required by law, the judge or 
 referee has no jurisdiction to proceed in the matter, and a 
 witness who is subpoenaed and refuses to be sworn and 
 testify, is not guilty of contempt. People ex rel. Grant v. 
 Warner, 20 N. Y. St. Kep. 573. 
 
 3. SubpcEna, how served.— The subpoena must be served 
 as follows : The original subpoena must be exhibited to the 
 witness, and a copy thereof or a ticket containing its sub- 
 stance must be delivered to him. The fees allowed by law, 
 — four cents per mile, — for traveling to, and returning 
 from, the place where he is required to attend, if he resides 
 more than three miles from the place of attendance, and 
 for one day's attendance — fifty cents — must be paid or ten- 
 dered to him. Code, §§ 852, 854, 3318. 
 
 A person shall not be compelled to produce a book of ac- 
 count except the subpoena be served at least five days be- 
 fore the day when he is required to attend. Code, § 867. 
 
 4. Penalty for disobeying a subpoena. — If a witness, duly 
 subpoenaed, refuses or neglects to obey it, he is hable for 
 the damages sustained by the person aggrieved, in conse- 
 quence of the failure of the witness to attend, and fifty 
 dollars in addition thereto to be recovered as prescribed 
 in sections 852-855 of the Code of Civil Procedure. A 
 witness once subpoenaed and called to testify, must re- 
 main until the examination is concluded, unless dis- 
 charged by consent or by the court. Neil v. Thorn, 88 
 N. Y. 270. A person subpoenaed to attend forthwith, has 
 a reasonable time to obey by means of ordinary methods. 
 People V. Potter, 6 N. Y. St. Kep. 753. Where the wit- 
 ness fails to obey the subpoena, the judge before whom 
 the proceedings were instituted, or before whom the same 
 
Witnesses in Supplementary Proceedings. 95' 
 
 is returnable, may issue a warrant to the sheriff of the 
 county commanding him to apprehend the defaulting wit- 
 ness, and bring him before the officer, person or body before 
 whom or for which his attendance was required. Code, 
 § 855. If the person subpoenaed refuses to be examined or 
 to answer a legal or pertinent question, or to produce a 
 paper which he was directed to bring by the terms of the 
 subpoena, or to subscribe his deposition after it has been cor- 
 rectly reduced to writing, the person issuing the subpoena, 
 if he is a judge of a court of record, or if he is not, then 
 any judge of such court may, upon proof by affidavit of 
 the facts, by warrant commit the offender to jaU, there ta 
 remain until he submits to do the act which he was so re- 
 quired to do, or is discharged according to law. Code, § 856. 
 The power of the court to punish a witness for contempt, 
 proceeds not upon the ground of any damages sustained by 
 a suitor in court, but is given to vindicate the dignity of the- 
 court, and a perfectly clear case should be established before 
 a resort is had to this extraordinary jurisdiction. 1 GreenL 
 Ev., § 319. 
 
 5. Contents of warrant, — A warrant of commitment, 
 issued as prescribed in section 856 of the Code, must 
 specify particularly the cause of the commitment, and, if 
 the witness is committed for refusing to answer a ques- 
 tion, the question must be inserted in the wai-rant. Code, 
 § 867. 
 
 6. Right of witness to counsel. — The examination of wit- 
 nesses in these proceedings is often taken for the sole pur- 
 pose of obtaining information on which to found an action 
 by the receiver to be appointed, or to file a creditor's bill 
 against the witness. To deny a witness in such a case the 
 benefit of counsel, might tend to invite rather than prevent 
 needless litigation. In case a party is called as a witness 
 by his opponent, he should be allowed the benefit of coun- 
 sel, as upon a trial of an action, and notwithstanding what 
 was said in Sandford v. Carr, 2 Abb. Pr. 462, and Corning 
 V. Tooker, 5 How. Pr. 16, the fact that a witness attends ac- 
 companied by counsel is neither offensive nor dangerous. 
 There can be no general rule on the subject, as each case 
 must stand on its own peculiarities. Schwab v. Cohen, 13 
 N. Y. St. Rep. Y09. 
 
96 SUPPLEMENTAKY PROCEEDINGS. 
 
 7. Signing and filing depositions.— The depositions of 
 witnesses in these proceedings must be filed. Fostei' v. 
 Twigg, 18 Week. Dig. 563. These depositions are records 
 of the court, in which all parties have an interest. Eenner 
 V. Meyer, 22 Abb. N. 0. 438. A witness cannot be com- 
 pelled to subscribe his testimony erroneously taken down. 
 
 He is entitled to have the minutes changed, so as to give 
 the testimony correctly. Sherwood v. Dolen, 14 Hun, 191. 
 
 The power to compel a witness to be examined, or to an- 
 swer a legal and pertinent question, or to produce a book or 
 paper, or to subscribe his deposition after it has been cor- 
 rectly reduced to writing, is given by section 866 of the 
 Code. 
 
Payment by Debtor of Judgment-Debtor. 
 
 97 
 
 CHAPTEE XIV. 
 
 PROCEEDINGS FOR COLLECTION OF JUDGMENT BEFORE AP- 
 POINTMENT OF RECEIVER. 
 
 I. Order for Voluntary Pay- 
 
 ment BY Debtor op Judg- 
 ment-Debtor. 
 
 1. In general. 
 
 2. Order necessary, and when to 
 
 be made. 
 
 3. When order no protection. 
 
 II. Order Requiring Delivery of 
 
 Money or Property to 
 Sheriff or Receiver. 
 
 4. In general. 
 
 5. Kind of property. 
 
 6. Choses In action. 
 
 7. Property acquired after the 
 
 making of order or warrant for 
 examination. 
 
 8. Disputed title. 
 
 9. Lien on fund. 
 
 III. What Pbopbrtt Cannot be 
 
 Reached. 
 
 10. In general. 
 
 11. Exempt property. 
 
 13. Trust fund created by a person 
 other than the debtor. 
 
 13. Earnings— When exempt. 
 
 14. Alimony. 
 
 IV. Application of Money or 
 
 Property to Payment of 
 Judgment. 
 
 I. Order for Voluntary Payment by Debtor of Judg- 
 ment-Debtor. 
 
 I. In general. — Section 2446 of the Code provides that 
 " at any time after the service of an order or warrant in 
 supplementary proceedings, and before the appointment of 
 a receiver therein, the judge by whom the order or war- 
 rant was granted, or to whom it is returnable, may, upon 
 proof by affidavit that a person or corporation is indebted 
 to the judgment-debtor, and either with or without notice 
 to such person, make an order permiting the person or cor- 
 poration to pay to a sheriff designated in the order a sum 
 on account of the alleged indebtedness. 
 
 A payment thus made is to the extent thereof a dis- 
 charge of the indebtedness, except as against a transferee 
 from the judgment-debtor in good faith and for a valuable 
 consideration, of whose rights the person or corporation 
 had actual or constructive notice when the payment was 
 made. 
 
 Under the old Code the payment was allowed to be made 
 as soon as an execution was issued on the judgment, and 
 after the original creditor had assigned the debt the debtor 
 13 
 
98 Supplementary Pkoceedings. 
 
 could not pay the debt to the sheriff in discharge of his 
 liability, although he had no notice of the assignment. 
 Adams v. Welsh, 43 N. Y. Supr. Ct. 52; Hall v. Oluey, 65 
 Barb. 27. 
 
 2. Order necessary, and when to be made. — In order to 
 protect the debtor of a judgment-debtor when sued for a 
 debt which he has voluntarily paid to a sheriff under sec- 
 tion 2446 of the Code of Civil Procedure, he must establish, 
 1st, That at the time of making such payment proceedings 
 supplementary to execution were pending against his credi- 
 tor; 2nd, That a receiver had not been appointed in said 
 proceedings or a receivership extended thereto; 3rd, That 
 the judge by whom the order or warrant in the proceed- 
 ings was granted, or to whom it is returnable, made the 
 order permitting the payment. He must also show the 
 judgment upon which the payment was made. Handley 
 V. Greene, 15 Barb. 601. 
 
 An assignment in proceedings under the bankrupt act 
 discharges the lien of an order, and no intervention or 
 action of the court is required. Duffield v. Horton, 73 
 N. Y. 218. 
 
 3. When order no protection. — Payment pursuant to an 
 order under section 2446 of the Code of Civil Procedure is 
 no protection to the party making the payment when the 
 debt is for exempt property or for the wages of a house- 
 holder which are exempt by section 2463. 
 
 II. Order Requiring Delivery of Money or Property 
 TO Sheriff or Eeceiver. 
 
 4. In general. — Where it appears from the examination 
 or testimony taken in supplementary proceedings that the 
 judgment-debtor has in his possession or under his control 
 money or other "personal property" belonging to him, or 
 that one or more articles of "personal property," capable 
 of delivery (his right to the possession whereof is not sub- 
 stantially disputed), are in the possession or under the con- 
 trol of another person, the judge by whom the order or 
 warrant was granted, or to whom it is returnable, may, 
 with or without notice, make an order directing the judg- 
 ment-debtor or other person immediately to pay the money 
 or deliver the articles of " personal property " to a sheriff 
 
MoifEY OR PROPERTy TO SHERIFF OR RECEIVER. 99 
 
 designated in the order, unless a receiver has been appointed 
 or a receivership has been extended to the special proceed- 
 ing, and in that case to the receiver. Code, § 2417. 
 
 5. Kind of property.— Section 2447 of the Code provides 
 for an order, w^here it appears that the judgment-debtor has 
 in his possession "money" or "other personal property" 
 belonging to him. It makes no distinction between proceed- 
 ings instituted by order after the return of execution, and 
 those instituted before the return of execution ; although we 
 have seen those instituted before the return of execution 
 are confined to equitable and concealed property. In First 
 Nat. Bk. of C. V. Martin, 49 Hun, 573, the court say : " The 
 proceedings are supplementary to execution, and are not 
 intended to take the place of, or to be a substitute for, the 
 execution. In that case the court in substance held that 
 these proceedings cannot be held until the judgment- 
 creditor has exhausted his remedy by execution. It seems, 
 therefore, that any personal property of the judgment- 
 debtor in his possession or under his control, subject to 
 levy and sale under execution, must be reached in that way. 
 
 Section 2447 of the Code provides for the delivery of " per- 
 sonal property," capable of delivery, of the judgment - 
 debtor, his right to the possession whereof is not substan- 
 tially disputed, which is in the possession or under the 
 control of another person. 
 
 The term " money " is not used in regard to the property 
 of the judgment-debtor in the hands of a third person ; and 
 it would seem that the law- makers intended to include 
 money in the term "personal property." It has been held 
 that the debtor's interest in an estate as next of kin could 
 be reached, so also his interest in a partnership. Webb v. 
 Overman, 6 Abb. 92 ; McArthur v. Hoysord, 11 Paige, 495. 
 
 The debtor's right to redeem the real property of his 
 debtor sold on execution, may be reached after the appoint- 
 ment of a receiver. Van Eenss&laer v. Sheriff of Onondaga, 
 1 Cow. 443. So the right of dower of a widow can be 
 reached. Moak v. Coats, 33 Barb. 498. So may also an 
 annuity bequeathed to a widow in lieu of dower. Degrau 
 v.- Clason, 11 Paige, 136. Under these proceedings, the 
 court is authorized, on the examination of a third party, to 
 direct such person to pay over any money, or deliver 
 
100 Supplementary Proceedings. 
 
 any property which he may have in his hands belonging to 
 the judgment-debtor, where there is no substantial dispute 
 touching the possession or ownership of the property. 
 Bauer v. Bets, 4 N. Y. St. Eep. 92. 
 
 It seems that the interest of a judgment-debtor in a con- 
 tract for the purchase of real estate may be reached in these 
 proceedings. Ellsworth v. Cuyler, 9 Paige, 418. The courts 
 having jurisdiction of the person may compel conveyance 
 of real estate, situate outside of the state, not subject to our 
 statutes or the jurisdiction of our courts, to a receiver. 
 First Nat. Bk. of C. v. Martin, 49 Hun, 574. The same rule 
 applies to personal property situated out of the state. Bunn 
 V. Fonda, 2 Code Eep. YO. 
 
 Money due on a contract for work to be done and 
 payable as the work progresses may be reached, if due 
 at the time the order for examination is made. Burnett v. 
 Eicker, 13 Civ. Pro. Eep. 338. An annuity given to hus- 
 band and wife belongs solely to husband during the joint 
 lives, and is liable for his debts. Gifford v. Eising, 28 N. Y. 
 St. Eep. 310, and so is money paid in advance for two years' 
 board of judgment-debtor and his wife. Davis v. Briggs, 24 
 id. 896. The question is, whether the judgment-debtor has 
 any property in his possession or under his control at the 
 time of the commencement of the proceedings, to make the 
 order without proof of ability to comply would be reviving 
 in another form imprisonment for debt. The Columbian 
 Institute v. Cregan, 3 id. 287. 
 
 6. Choses in action. — All choses in action that are assign- 
 able may be reached in these proceedings. Thus, a bank 
 account may be reached. Green v. Griswold, 23 N. Y. St. 
 Eep. 218. So may a right of action for damages upon con 
 tract. Ten Broeck v. Sloo, 13 How. Pr. 28. And a judg- 
 ment in an action for tort. MaUory v. Norton, 23 Barb. 
 424. So may a seat in an exchange, and the debtor com- 
 pelled to sign a consent that the purchaser of such seat be 
 vested with all rights and benefits which inure to his mem- 
 bership, and the exchange may be compelled to receive and 
 accept such new member and fully recognize his member- 
 ship. Eoome v. Swan, 15 Civ. Pro. Eep. 344; Powell v. 
 Waldron, 89 N. Y, 328; Eitterband v. Baggett, 4 Abb. N. 
 C. 67. So a patent right may be reached in these proceed- 
 
Money or Property to Sheriff or Eeceiver I0i 
 
 ings. Gillett v. Bate, 86 N. Y. 87 ; Barnes v. Morgan, g 
 Hun, 703. Accrued income payable to the debtor from a 
 trust fund may be reached. Lawrence et al. v. Pease, 50 
 N. Y. St. Eep. 851. In short, whatever rights of action 
 are assignable or transmisable to the personal representa- 
 tives, may be reached by these proceedings, unless exempt 
 by law, and whatever thing in action will pass to assignees 
 ia case of insolvency, will vest in a receiver herein. But 
 the judge, under this section, is vested only with power to 
 direct the application of any money or personal property in 
 the possession or under the control of the judgment debtor 
 belonging to him, to a sheriff designated in the order or to 
 a receiver, if one has been appointed. Boelger v. Swivel, 1 
 How. N. S. 372. The judge cannot direct the property to 
 be delivered to the judgment-creditor. Dickinson v. Onder- 
 donk, 18 Hun, 479. 
 
 7. Property acquired after the making of order or war- 
 rant for examination. — The property mentioned in supple- 
 mentary proceedings is that which the debtor has when 
 the order is made, and not such as he afterwards ac- 
 quires. Potter V. Low, 16 How. Pr. 549. Nor a debt sub- 
 sequently to become due on a contingency, or for work to 
 be performed, nor property received between the making 
 and the service of the order. Atkinson v. Sevviue, 11 Abb. 
 N. S. 384. And an order foi'bidding a judgment-debtor to 
 dispose of his property, only applies to property then owned 
 by him. McGivney v. Childs, 41 Hun, 607. So earnings 
 received or becoming due after the service of the injunction 
 order are not within its prohibition. Guregani v. Wheel- 
 right, 3 Abb. N. S.264. Thus, when an order for examination 
 was obtained July 5th, and debtor's salary became due and 
 payable July 10th, and certain commissions earned by him 
 would not be due and payable until the end of the year, it 
 was held that the money could not be reached. Albright v. 
 Kempton, 4 Civ. Pro. Eep. 16. No court has power to 
 anticipate the earnings of a debtor or to direct him to ap- 
 propriate future earning to the payment of a judgment. 
 Columbian Institute v. Cregan, 1 1 Civ. Pro. Eep. 87. 
 
 An order obtained on the last day of the month will not 
 reach the month's salary only due at the expiration of that 
 day. First Nat. Bank v. Beardsley, 8 Week. Dig. 7. And 
 
102 Supplementary Proceedings. 
 
 when there is some uncertainty as to whether the debtor 
 earned the money after the order was made, it inures to his 
 benefit. Potter v. Low, 16 How. Pr. 549. 
 
 8. Undisputed title. — These proceedings are limited to 
 reaching property conceded to belong to the debtor, and 
 money due to the debtor, when the order for examination 
 is made. Lock v. Mabbitt, 2 Keyes, 457. When the title 
 to the property is in dispute, the judge has no right to try 
 in this summary manner the conflicting claims. Manice v. 
 Smith, 5 Week. Dig. 255. In such case the property must 
 be recovered in an action by the receiver. Schrauth v. Dry 
 Dock Sav. Bank, 86 N. Y. 390. Section 2447 of the Code 
 provides that an oi'der for the delivery of property can 
 only be made where the right to the possession of the prop- 
 erty by a third person is not substantially disputed. Where 
 it is doubtful who owes the debt to the judgment-debtor, a 
 receiver should be appointed to enable the proper party to 
 pursue the claim by action. Corning v. Tooker, 5 How. 
 Pr. 16. 
 
 So where the amount of the indebtedness due from the 
 third-person is either disputed or uncertain, or where there 
 is any doubt as to the title to the property, a receiver should 
 be appointed ; so if the third-person claims an offset (Grass- 
 muck V. Eichards, 2 Abb. N. C. 359) ; or, if the third-person 
 would incur a risk in making the payment. Huntz v. 
 McGehee, 1 Law Bull. 3. Where a debt due the defendant 
 in an action has been attached therein and by virtue of an 
 order of the court obtained on behalf of the plaintiff, the 
 amount of the debt has been paid by the debtor to the 
 sheriff, who misappropriates the same, the plaintiff must 
 bear the loss. Matter of Dawson, 110 N. Y. 114 ; 16 N. Y. 
 St. Eep. 844. Where a third-person, examined as the judg- 
 ment-debtor's debtor, holds a certain fund to the credit and 
 account of the judgment:debtor which is claimed by a third 
 person, he must disclose such fact to the judge, or he will 
 not be protected against an action by such third person, by 
 an order directing him to pay over the amount. Wright v. 
 Cabot, 47 N. Y. Supr. 229 ; 89 N. Y. 570. In order to bar 
 the rights of a party to money or property, ordered to be 
 delivered to a sheriff or receiver under section 2447 of the 
 Code of Civil Procedure, the party making such claim must 
 
Money or Pkoperty to Sheriff or Receiver. 103 
 
 be made a party to the proceedings. Schrauth v. Dry Dock 
 Sav. Bk., 86 N. Y. 390. The only way a party paying 
 money under an order, which is claimed by another, can 
 protect himself is to resist payment and compel such third- 
 party claimant to be made a party to the pi'oceedings. 
 
 A judge has no jurisdiction to make a summary decision 
 under section' 2447 of the Code of Criminal Procedure, and 
 direct a third person to pay over money in his posses- 
 sion alleged to belong to the judgment -debtor, where it 
 is claimed by another than the judgment-debtor, who 
 has brought ^ an action to enforce its payment. Waldron 
 V. Walker, 43 N. Y. St. Eep. 605 ; 18 N. Y. Supp. 292. 
 In short, a judge has no jurisdiction to direct a third 
 party to deliver over property of a judgment-debtor in his 
 hands, unless the right to the possession of the property is 
 substantially undisputed. Hayes v. McClelland, 20 Week. 
 Dig. 393. The judge has no authority to decide the ques- 
 tions of indebtedness or ownership summarily, and compel 
 - the payment of money or delivery of property. West Side 
 Bank v. Pugsley, 47 N. Y. 368. In order to give the judge 
 jurisdiction to made an order, all the jurisdictional facts 
 must be shown. Thus, the judge of one county has no 
 power to order a third-person indebted to a judgment- 
 debtor to pay over money in these proceedings, upon a judg- 
 ment recovered before a justice of the peace of another 
 county, and docketed only in the clerk's office of the former 
 county, where the examination of such third person was 
 had only upon an order, of the county judge of the county 
 in which the judgment was rendered, since there was no 
 valid proceeding under section 2432, subdivision 3 of the 
 Code, to reach such moneys. Schenck v. Erwin, 63 Hun, 
 104 ; 43 N. Y. St. Eep. 862: 
 
 g. Lien on Fund. — A junior execution- creditor who first 
 obtains an order in supplementary proceedings for the ex- 
 amination of a third person under section 2441, Code of 
 Civil Procedure, and obtains an order directing the delivery 
 by him to the sheriff for the creditor of a fund in his hands 
 belonging to the debtor, thereby acquires a lien on the 
 fund, and is entitled to satisfaction therefrom before a 
 senior execution creditor. Duffy v. Dawson, 46 N. Y. 
 St. Eep. 268. 
 
104 Supplementary .Proceedings. 
 
 III. What Property Cannot Be Reached. 
 
 10. In general. — The property of a corporation created by 
 or under the laws of the state, or a foreign corporation 
 specified in section 1812 of the Code, cannot be reached in 
 these proceedings. § 2463. Thus a third party cannot be 
 examined as to the property of a judgment-debtor, where 
 the judgment-debtor is a corporation created by the laws 
 of this state. Fitchburg Nat. Bk. v. Bushwick Chem. 
 Works, 13 Civ. Pro. Eep. 155. 
 
 11. Exempt property.— Section 2463 provides that these 
 proceedings do not authorize the seizure of, or other inter- 
 ference with any property, which is expressly exempt by 
 law from levy and sale by virtue of an execution, or the 
 earnings of a -judgment-debtor, for his personal services, 
 rendered within sixty days next before the institution of 
 the proceedings, when it is made to appear, by his oath or 
 otherwise, that those earnings are necessary for the use of 
 a family, wholly or partly supported by his labor. As a 
 general rule, a male judgment-debtor has no exempt prop- 
 erty, except such as is mentioned in sections 1390-1391 of 
 the Code, and his earnings for his personal services under 
 section 2463, and those are exempt only when he is a house- 
 holder, or has a family for which he provides. A woman 
 need not be a householder, and her property has the same 
 exemptions as a householder. § 1392. A householder is 
 the master of a household, and a household is a family liv- 
 ing together, but not necessarily wife and children, but it 
 must be a family, small or large, for which he provides. To 
 exempt the property or earnings of a male judgment-debtor, 
 it must appear that he is a householder or a man having a 
 family for which he provides. 
 
 Neither a right of action nor a judgment for damages for 
 injuring, destroying or converting property exempt by law, 
 can be reached. Thus, insurance money obtained for the 
 loss or destruction of exempt property insured cannot be 
 reached. Andrews v. Eowan, 28 How. Pr. 126. The law 
 exempts the ordinary clothes and the necessary working 
 tools of an unmarried male judgment-debtor. Matter of 
 Edlunds, 35 Hun, 367. A pension granted by the United 
 States for military service is exempt, so is property pur- 
 
What Property Qannot be Received. 105 
 
 chased with such pension money. Stockwell v. Nat. Bank 
 of Malone, 36 Hun, 583. 
 
 12. Trust funds created by a person other than the 
 debtor.— Section 2463 exempts from these proceedings any 
 money, thing in action, or other property held in trust for 
 a judgment-debtor, where the trust has been created by, 
 or the fund so held in trust has proceeded from,- a person 
 other than the judgment-debtor. The rule laid down in 
 WiUiams v. Thorn, YO N. Y. 270, is not changed by sections 
 1879, 2i63 of the Code. McEroy v. Appleby, 15 Week. Dig. 233. 
 It seems that a receiver cannot maintain an action to reach 
 any surplus income coming to the jndgment-debtor, under a 
 trust created by a person other than the judgment-debtor. 
 The power to proceed against the trust fund is confined to 
 the judgment-creditor^ who must proceed by direct action. 
 Levey v. Bull, 47 Hun, 370; Mannings v. Evans, 19 id. 500,-; 
 De Caray v. Dempsey, 10 Civ. Pro. Eep. 210; Thompson v. 
 Thompson, 52 Hun, 456. Moneys received by a widow of a 
 policeman from the police pension or insurance fund, is in 
 the nature of a trust, and the fund proceeds from persons 
 other than the judgment-debtor, and cannot be diverted by 
 means of these proceeds and turned over to creditors. Sar- 
 gent V. Bennett, 3 How. N. S. 515. 
 
 13. Earnings when exempt. — While it is held that only 
 such earnings are exempted as have been earned within 
 sixty days previous to the date of the granting or refusing 
 of the order, requiring such earnings to be applied to the 
 satisfaction of the judgment. Bush v. White, 12 Abb. 21. 
 The rule is that anything earned or obtained after the grant- 
 ing of the order for examination cannot be reached by these 
 proceedings. The term " personal services " includes earn- 
 ings derived from a business conducted by the judgment- 
 debtor where his services are the chief factor in it. McSkinan 
 V. Knowlton, 20 Civ. Pro. Rep. 274; Sanford v. Gordwin, 
 id. 276. The use of " personal earnings " of a judgment- 
 debtor for sixty days prior to the commencement of the 
 proceedings, is not a violation of an order of injunction 
 served with the order for examination. Hancock v. Sears, 
 93 N. Y. 79. The judge before whom a debtor is examined 
 has no authority to make an order requiring the debtor tO' 
 pay the amount of the judgment out of an installment of 
 
 14 
 
106 Supplementary Proceedings. 
 
 salary, which the "debtor has not in his possession at the 
 time the proceedings were instituted. Columbian Institute 
 V. Cregan, 11 Civ. Pro. Eep. 87. Nor has the court any 
 authority to make an order directing the debtor to set apart 
 a portion of his salary each month as it becomes due, and 
 -apply it to the judgment until it is paid. Salary to become 
 due to employees cannot be reached in any case, and this is 
 particularly so with regard to public officers, who cannot by 
 any act of theirs assign or encumber the future salary of 
 their office, nor can the court encumber or assign it for 
 "them. 
 
 i4. Alimony. — Alimony awarded to a wife cannot be re- 
 garded as an ordinary debt due by one person to -another, 
 "which may be reached by judgment-creditors in the ordi- 
 nary way. It is not the wife's property nor her separate 
 estate. It is simply a provision for her support, still it 
 should be charged with a debt contracted by her for neces- 
 saries. Eomaine v. Chauncey, 60 Hun, 477; 39 N. Y. St. 
 Eep. 480. 
 
 IV. Application op Money or Propeety to Payment of 
 
 Judgment. 
 
 If the sheriff does not hold an execution upon the judg- 
 ment against the property of the judgment- debtor, he has 
 the same rights and powers, and is subject to the same 
 duties and liabilities, with respect to the money or property 
 received by him under an order made as prescribed by 
 either section 2446 or 2447 of the Code of Civil Proced- 
 ure, as if the money had been collected or the pi'operty 
 levied upon by him by virtue of such an execution. Code, 
 § 2448. That is, when it required the payment of a sum 
 of money towards the satisfaction of the judgment, the 
 sheriff pays the money directly to the creditor. If the 
 property consists of evidences of debt, the order should 
 direct as to its collection or sale. If a receiver has been ap- 
 pointed, or a receivership has been extended to the special 
 proceeding, the judge must, by order, direct the sheriff to 
 pay the money or the proceeds of the property, deducting 
 his fees, to the receiver, or if the case so requires, to deliver 
 to the receiver the property in his hands. 
 
 If the order directs the sheriff to apply the property upon 
 
Application to Payment of Judgment. 107 
 
 an execution in favor of the judgment-creditor issued either 
 before or after the payment or delivery to the sheriff, the 
 sheriff levies upon and sells the personal property upon the 
 execution. Code, § 2449. A judgment creditor who obtains 
 an order for examination, and an order for the delivery of 
 property, acquires a lien on the property, and is entitled to 
 priority of satisfaction over a senior execution-creditor. 
 Duffy V. Dawson, 19 N. Y. Supp. 18fi. 
 
 Where property is delivered to a sheriff or receiver, as pre- 
 scribed by section 2447 of the Code, and the proceeding is dis- 
 continued or dismissed, or the judgment is satisfied, without 
 resorting to the money or property so delivered, or a balance 
 of the money, or of the proceeds of the property, or a part 
 of the property remains in the sheriff's or the receiver's 
 hands, after the satisfying the judgment, the costs and ex- 
 penses of the proceeding, the judge must make an order 
 directing the sheriff or receiver to pay the money, or deliver 
 the property so remaining in his hands, to the judgment- 
 debtor, or to such other person as appears to be entitled 
 thereto, upon payment of his fees, and all other sums legally 
 chargeable against the same. Code, § 2450. It would seem 
 that unless the words "legally chargeable against the same " 
 qualifies the words " upon payment of his fees," that part 
 of the said section would be unconstitutional in many cases 
 that would arise under it. 
 
108 
 
 Supplementary Proceedings. 
 
 CHAPTEE XV. 
 
 I. 
 
 Superseding ; Vacating ; 
 
 Dis- 
 
 V. 
 
 Irregularities and Annulities. 
 
 
 CONTINUING OR DISMISSING 
 
 
 4. In general. 
 
 
 Proceedings. 
 
 
 
 5. Irregularities. 
 
 
 1. When not superseded. 
 
 
 
 6. When must be made to set 
 
 II. 
 
 Vacating Order. 
 3. In general. 
 3. Grounds of motion. 
 
 
 
 aside. 
 
 7. Waiver. 
 
 8. Notice of motion on ground 
 
 III. 
 
 Discontinuance. 
 
 
 
 of irregularity. 
 
 IV. 
 
 Dismissal. 
 
 
 
 9. Amendable. 
 10. Nullities. 
 
 I. Superseding ; Vacating ; Discontinuing ; Dismissing 
 
 Proceedings. 
 
 1. When not superseded. — An order for the examination 
 of a debtor is not superseded by a second order to examine 
 him as to property obtained by him subsequent to the first 
 order. Walter v. Pecare, 32 N. Y. St. Eep. 841. But it is 
 different where the second order is made for the same ob- 
 ject as the first. To justify superseding the original order 
 for the examination of a third person, under section 2441 
 of the Code, it is necessary to prove that after it was al- 
 lowed, something occurred which changed the rights of the 
 parties and called for another kind of disposition of the 
 
 'matter finally, and the mere fact of the return of the 
 execution, after the granting of the order, is insufficient. 
 Lingsweiler v. Lingsweiler, 29 N. Y. St. Eep. 354. 
 
 II. Vacating Order. 
 
 2. In general. — The remedies in supplementary proceed- 
 ings are original in their character, and intended as a sub- 
 stitute for an action in the nature of a creditor's bill the 
 order or warrant for examination with the affidavit served 
 with it taking the place of a summons and complaint, and 
 such proceedings should not be dismissed, when properly 
 instituted, except for the most substantial reasons. But 
 supplementary proceedings are special proceedings, and are 
 to be strictly followed, and if the affidavit or proof upon 
 which the order is founded, fails to allege all the facts pre- 
 scribed by the statute, the proceedings maybe vacated upon 
 
Vacating Order. 109 
 
 a motion duly made upon notice to the judgment-creditor, 
 in the same manner that a complaint in an action that fails 
 to state a cause of action, may be dismissed. By section 
 2433 of the Code, it is declared that an order made in the 
 course of the proceedings can only be reviewed in the way 
 and manner therein provided, which is as follows : "An order 
 made by a judge out of court, may be vacated or modified by 
 the judge who made it, as if it were made in an action, or it, 
 or the order of the judge vacating or modifying it, may be 
 vacated or modified, upon motion by the court out of which 
 the execution was issued." No power is here given to the 
 judge to vacate or modify an order previously made by 
 him on an ex parte application. The provisions of section 
 772 of the Code, which permits a judge, in particular in- 
 stances, to vacate or modify orders previously granted by 
 him without notice to the adverse party do not appply to 
 these proceedings, as they relate to orders granted in ac- 
 tions before final judgment. Dorsey v. Cummings, 15 N. Y. 
 St. Eep. 459. In Bassett v. Wheeler, 84 N. Y. 466, it was 
 held to be competent for a person against whom supple- 
 mentary proceedings have been instituted ex parte, to 
 move, on motion, for a dismissal of the order for his ap- 
 pearance and examination on the ground that it was im- 
 providently granted. A motion to vacate these proceedings 
 is made upon notice, and either upon the papers, upon 
 which the orders were obtained, or upon affidavits served 
 with the notice of motion or order to show cause. It was 
 held in Moschell v. Boor, 50 N. Y. St. Kep. 238, that an order 
 appointing a receiver in these proceedings, — though granted 
 on a contested motion— is not appealable. That an order, 
 made in the course of these proceedings proper, can be re- 
 viewed only as follows : 
 
 1. An order made by a judge out of court may be 
 vacated or modified by the judge who made it, as if it were 
 made in an action, or it, or the order of the judge vacating 
 or modifying it, may be vacated or modified upon motion 
 by the court out of which the execution was issued. The 
 practitioner, however, must not lose sight of the fact that 
 proceedings for contempt are themselves special proceed- 
 ings, independent of the action or special proceeding in 
 -which they may be taken, and an order made therein can- 
 
110 SuPPLEiMENTARY PROCEEDINGS. 
 
 not be regarded as an order made in the original proceed- 
 ings. 
 
 3. Grounds of motion.^A defendant who was served 
 with summons under a wrong name, and did not appear, 
 may raise the question of jurisdiction, though he has not 
 appealed from the judgment. McGill v. Weill, 19 Civ. Pro. 
 Eep. 43 ; 10 N. Y. Supp. 246. Where the facts disclosed 
 by the affidavit for an order for examination are not such 
 as to make a case within the statute, the proceedings will 
 be set aside on motion. Sackett v. Newton, 10 How Pr. 560. 
 
 Thus, where a judgment has been obtained in a justice's 
 court and the execution was not issued by a county clerk,, 
 the order will be vacated on motion made upon notice. 
 Gray v. Lieben, 8 Civ. Pro. Eep. 48. So the discharge of a 
 bankrupt in composition proceedings is a good ground for 
 vacating an order made prior to said discharge. Leo v. 
 Joseph, 9 N. Y. Supp. 612 ; Smith v. Paul, 20 How. Pr. 97 ; 
 Coursen v. Dearborn, 7 Eobt. 143 ; World Co. v. Brooks, T 
 Abb N. S. 212. An order wiU be vacated where the affidavit 
 on which it is founded does not state the amount then un- 
 paid on the judgment. Douglass v. Mainzer, 40 Hun, 75. 
 So will an order founded on an affidavit that states the facts 
 in the alternative, or in the words of the statute. CoUins 
 V. Beebe, 54 id. 318 ; Amot v. Wright, 55 id. 561, So where 
 an affiidavit does not truly describe the judgment. Ken- 
 nedy V. Weed, 10 Abb. 62. So where an affidavit executed 
 by one in no way a party to the record does not show that 
 the proceedings are authorized by the judgment-creditor. 
 Brown v. Walker, 28 N. Y. St. Eep. 36; Lindsay v. Sher- 
 man, 5 How. Pr. 308. The order must state all the facts 
 necessary to confer jurisdiction, otherwise it may be set 
 aside on motion. Day v. Brosman, 6 Abb. N. C. 312. A 
 party is not justified in disobeying an order because it is 
 erroneous. The objection that the proceedings were not 
 brought in time must be raised on motion. Bolt v. Hauser, 
 33 N. Y. St. Eep. 344; McGuire v. Hudson, 41 id. 295. 
 Although the court of appeals, in Conyngham v. Duffy, 34 
 N. Y. St. Eep. 736, has settled the question as to the time 
 in which proceedings under section 2435 of the Code of 
 Civil Procedure must be commenced, there does not seem to 
 be any limit to the time in which proceedings can be com- 
 
VACATIN& Order. 11 L 
 
 menced under section 2436 of the Code of Civil Procedure, 
 and other proceedings commenced after the issuing and 
 before the return of an execution. Code Civ. Pro., §§ 414, 
 415 and 3352. It seems that on a return of an order or war- 
 rant for examination the judge at chambers, before vv^hom 
 the order is returned, may vacate it on motion of the sum- 
 moned party, if the affidavit on vphich it is founded is in- 
 sufficient, or if for any reason it appears to have been im- 
 providently granted. Courtois v. Harrison, 12 How. Pr. 
 359. 
 
 The order for examination of a judgment-debtor before 
 return of execution under section 2436 of the Code will be 
 vacated on motion, where the affidavit or proof on which it 
 is predicated does not show that a demand of the applica- 
 tion of the property to the payment of the judgment had 
 been made upon and refused by the judgment-debtor. First 
 Nat. Bankf. Wilson, 13 Hun, 232; Levi v. Beacham, 18 N. Y. 
 Supp. 748. So, where the affidavit fails to show that the exe- 
 cution was issued within the five years allowed by section 
 1375 of the Code, or, if after_the expiration of five yeai'S, that 
 an execution had been issued within that time, or that the 
 execution on which the proceedings are founded was issued 
 pursuant to the order of the court granted under section. 
 1377. Hutson v. "Weld, 38 Hun, 142. So where the affida- 
 vit states that deponent is informed and beheves that de- 
 fendant has property which he unjustly refuses to apply to 
 the satisfaction of the judgment, the proceedings will be 
 vacated on motion unless the affidavit also gives the name 
 of the affiant's informant, with his means of knowledge. 
 Bowery Bank v. Widmayer, 9 N. Y. Supp. 629; Manken v. 
 Pape, 65 How. Pr. 453. 
 
 A warrant of arrest against a non-resident debtor will be 
 vacated unless the affidavit shows what property he has, 
 or, at least, that he has property. Weller v. De Leon, 26 
 N. Y. St. Rep. 102; Denning v. Schieffelin, 26 id. 96. Where 
 the warrant is issued after an order for examination as 
 allowed by section 2438 of the Code, the vacating of the 
 order does not require the vacating of the warrant. Frost 
 V. Craig, 30 N. Y. St. Rep. 848. 
 
 A notice of motion to vacate an order or warrant must 
 specify the irregularities to which the motion is pointed. 
 
112 Supplementary Proceedings. 
 
 Id. An order for the examination of the debtor of the 
 judgment-debtor will be vacated on motion, where the aver- 
 nients in the affidavit on which it is founded, that he has 
 money or property of the judgment-debtor, etc., are only on 
 information and belief, without stating the sources of in- 
 formation. People V. Jones, 1 Abb. N. C. IY2; Flemings. 
 Tourgee, 40 N. Y. St. Eep. 705. So where the affidavit 
 states in the alternative form, that a third person has 
 property of the judgment-debtor, or is indebted to him. 
 Collins V. Beebe, 27 id. 4. 
 
 And where the affidavit states that the execution was 
 issued to a county where the judgment-debtor then resided 
 and yet resides, or has * * * an office for the regular 
 transaction of business, and on information and belief that 
 the third person has property of the judgment-debtor ex- 
 ceeding ten dollars in value, or is indebted to him in such 
 sum, the order will be set aside upon motion. Leonard v. 
 Bowman, 40 N. Y. St. Eep. 135. 
 
 III. Discontinuance. 
 
 Supplementary proceedings like an action continue until 
 an order is entered discontinuing or dismissing them. 
 
 Section 2454 of the Code of Civil Procedure provides that 
 these proceedings may be discontinued by the party insti- 
 tuting them, at any time, by leave of the judge before 
 whom the proceedings are pending. But in order to obtain 
 leave of the judge, the creditor must make a motion upon 
 notice to the parties interested in the proceedings, and the 
 order must be made upon such terms as justice requires. 
 After the service of an order or warrant in these proceed- 
 ings, they will be pending until some order is entered, dis- 
 continuing or dismissing them. Underwood v. Sutcliff, 10 
 Hun, 453; Stanley v. Lovett, 14 id. 412; Keihen v. Ship- 
 herd,^ 24 N. Y. St. Eep. 739. But see Bennett v. McGuier, 
 68 Barb. 625; Schenck v. Conover, 56 How. Pr. 437. 
 
 IV. Dismissal. 
 
 Where the judgment-creditor unreasonably neglects or 
 
 delays to proceed, or where it appears that his judgment 
 
 has been satisfied, the judgment-debtor, or a plaintiff in a 
 
 judgment-creditor's action against the debtor, or a judg- 
 
Irregularities and Nullities. 113 
 
 ment-creditor who has instituted either of the proceedings 
 under sections 2435, 2436, 2437 or 2441 of the Code of Civil 
 Procedure, may make a motion, to the judge before whom 
 the proceedings are pending, upon notice to all persons in- 
 terested, and obtain an order dismissing the proceedings. 
 Code Civ. Pro., § 2454. 
 
 V. Irkegularities and Nullities. 
 
 4. In general. — An irregularity consists in the doing of 
 some act at an unreasonable time, or in an improper man- 
 ner, as in omitting to do something that is necessary for the 
 due and orderly conduct of the proceedings. It may, there- 
 fore, properly be defined to be a, want of adherence to some 
 prescribed rule or mode of proceeding and may arise in 
 every stage of the proceeding, from the granting of the 
 order to the discharge of a receiver. 
 
 There is a substantial distinction between defects which 
 constitute irregularities, and those that render the proceed- 
 ings a total nullity. Where the proceeding adopted is that 
 prescribed by the Code of Civil Procedure, or rules of prac- 
 tice, and the error is merely in the manner of conducting 
 it, such an error is an irregularity, and may be waived by 
 the laches or subsequent acts of the opposite party. But 
 where the proceeding itself is altogether unwarranted, 
 totally dissimilar to that which the law authorizes, then the 
 proceeding is a nullity, and cannot be made regular by any 
 act of either party. Eoberts v. Spurr, 8 Dowl. P. C. 551. 
 
 5. Irregularities. — Irregularities are divided into two 
 classes, those which affect the merits and those which do 
 not. Where any necessary proceeding has been omitted by 
 the plaintiff his next subsequent proceeding may be set 
 aside for irregularity. As if the judgment-creditor proceed 
 to the examination of witnesses before the referee has 
 taken the oath prescribed by section 2445 of the Code, the 
 testimony so taken may be set aside and a new examina- 
 tion granted, and if any necessary proceeding on the part 
 of the judgment-creditor be had either before or subse- 
 quent to the time prescribed by the Code it may 'be set 
 aside for irregularity. So if such proceeding be informal, 
 or not conducted in the manner prescribed by the Code or 
 the rules of practice, it may be set aside for irregularity. 
 
 15 
 
114 Supplementary Pkoceedings. 
 
 Thus, the service of the order for examination by the 
 judgment-creditor himself, the commencement of the ex- 
 amination before the time fixed by the order of the judge 
 or the summons of the referee. If all the facts exist which 
 are necessary to vest a judge with jurisdiction in proceed- 
 ings under either sections 2435, 2436, 2437 or 2441, he will 
 acquire jurisdiction of the judgment-debtor's person and of 
 the subject-matter of the proceedings, either by the proper 
 proof of the necessary facts and the due service of the 
 order made upon such proof, or by the debtor's voluntary 
 appearance and submission to the conti'ol 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 subse- 
 quent order of the judge as if he had been originally 
 brought before him by an order based upon a proper 
 affidavit. Viburt v. Frost, 3 Abb. 119 ; Underwood v. 
 Sutclifif, 10 Hun, 453 ; Hart v. Johnson, 43 id. 505. But 
 jurisdiction cannot be given by consent. Schenck v. 
 Erwin, 38 N. Y. St. Eep. 603; McGuire v. Hudson, 41 id. 
 295; Fleming v. Tourgee, 40 id. Y05; Leonard v. Bowman, 
 id. 135; Brown v. Walker, 28 id. 36; Arnot v. Wright, 29 
 id. 425; Bowery Bank v. Widmayer, 9 N. Y. Supp. 629. 
 It is a general rule that no one but a party who has been 
 injuriously affected by an irregularity can properly apply 
 for relief against it. Oakley v. Becker, 2 Cow. 454; Bacon 
 V. Cropsay, 7 N. Y. 195. 
 
 6. When motion must be made to set aside. — A per- 
 son affected by an irregularity must move at bhe first oppor- 
 tunity after he has knowledge of the fact and before any 
 further proceedings have been taken in the action to set it 
 aside. Mayor, etc., of New York v. Lyons, 24 How Pr. 280. 
 
 If a party takes subsequent steps in the cause he waives 
 the irregularity and cannot afterwards object to it. The 
 same rules prevails where a party, with knowledge of the 
 irregularity, remains passive and allows the other party to 
 take a subsequent step. If there has been any delay to 
 object to a mere irregularity -the delay must be excused 
 before applying for relief. Lawrence v. Jones, 15 Abb. 110. 
 
 But what constitutes a reasonable excuse is addressed to 
 the discretion of the judge or court, and depends upon the 
 particular circumstances of each case. An order cannot 
 
Irregularities and Nullities. 115 
 
 be disregarded on the ground that it is irregular because 
 such an order is only voidable, but it is different if the 
 order is null and void. 
 
 7. Waiver — A waiver consists in the doing of some act 
 after an irregularity has been committed. Any defect 
 which does not deprive the court of jurisdiction may be 
 waived, and such irregularity is waived by neglecting to 
 object in due season. Fulton Bank v. Beach, 6 Wend. 36. 
 But a want of knowledge of the irregularity against which 
 relief is sought, is always an excuse for delay in moving to 
 set aside the irregular proceedings, and so far it may be 
 said that there can be no waiver of an irregularity until 
 the irregularity is known to the party affected. Wolford 
 V. Orkley, 43 How. Pr. 118. 
 
 It rests upon the party objecting to show the want of 
 knowledge as an excuse for delay. It seems that appear- 
 ance in obedience to void process, without knowledge that 
 the process is void, will be construed as a waiver of the 
 defect. Wright v. Jeffrey, 5 Cow. 15; Pixley v. Winchell, 
 7 id. 366. 
 
 8. Notice of motion on the ground of irrgularity. — The 
 notice of motion or order to show cause upon an applica- 
 tion to set aside a proceeding for irregularity must specify 
 the irregularity complained of. Perkins v. Mead, 22 How. 
 Pr. 476. And where there are several grounds of irregu- 
 larity tbey must all be stated, or those not stated will be 
 waived. Brooks v. Schultz, 3 Abb. N. S. 124. The notice 
 of motion must be supported by affidavits showing the 
 defect. 
 
 9. Amendable. — In general, any mere irregularity, of 
 whatever nature, is amendable under specific conditions, 
 with the exception of an irregularity in an affidavit, which 
 cannot be amended. Clickman v. Clickman, 1 N. Y. 611. 
 An absolute nullity, or any proceeding which is in itself 
 void, cannot be amended. Grant v. Vandercook, 57 Barb. 
 165. Thus, if the judge has not obtained jurisdiction of 
 the matter by the proper service of the order he has no 
 power to amend the proceedings by which the judgment- 
 creditor seeks to give him jurisdiction. 
 
 Under the Code of Civril Proceedure the court or judge 
 may in furtherance of justice, and on such terms as may 
 
116 Supplementary Proceedings. 
 
 be proper, amend any process or proceeding by correcting 
 any mistake in any respect. Talcott v. Rosenberg, 8 Abb. 
 N. S. 287. 
 
 An order for examination may be amended by leave of 
 the judge on motion. Wakenshaw v. Pirzel, 32 How. 
 Pr. 310. A defect in the substance of an affidavit may be 
 supplied by a supplemental affidavit (Depew v. Leal, 2 Abb. 
 131), but cannot be corrected by amendment. Clickman 
 V. Clickman, 1 N. Y. 611. But since the last decision was 
 made it has been the rule to amend affidavits. Lawton v. 
 Eeil, M How. Pr. 465. 
 
 10. Nullities. — Any proceeding which is wholly unwar- 
 ranted and unauthorized by law is a nullity, and cannot be 
 made valid by any act of the parties. Hunt v. Wallis, 6 
 Paige, 371.. And no mere delay in taking objection to a 
 defect which renders a proceeding an absolute nullity will 
 be construed as a waiver. Titus v. Eelyea, 16 How Pr. 
 371; Phelps v. Baker, 41 id. 237. Thus, appearance does 
 not waive a jurisdictional defect relating to the subject- 
 matter of the pi-oceeding. 
 
 It is a well-settled principle that if the judge has failed 
 to acquire jurisdiction by the service of the order of ex- 
 amination he cannot gain it by any delay on the part of the 
 judgment-debtor or third person in raising an objection to 
 the validity of the proceedings. Titus v. Eelyea, 16 How. 
 Pr. 371. While consent may confer jurisdiction over the 
 person of the judgment-debtor or third party, it cannot 
 confer jurisdiction over the subject-matter. Dudley v. 
 Mayhew, 3 N. Y. 9; King v. Pool, 36 Barb. 242. A 
 restricted or limited appearance for the purpose of object- 
 ing cannot be construed as a waiver of any defect. Sey- 
 mour V. Judd, 2 N. Y. 464. 
 
Costs in General. 
 
 117 
 
 CHAPTEE XVI. 
 
 COSTS. 
 
 Of Costs in General. 
 1. Judgment-creditor entitled to. 
 —When. 
 
 3. How collected. 
 II. Costs to Judgment-Debtor 
 Third Person. 
 
 I. Of Costs in General. 
 
 1. Judgment-creditor entitled to.— When. — The judge 
 may make an order allowing to the judgment-creditor a 
 fixed sum as costs, not exceeding thirty dollars, and in 
 addition to that the disbursments of the proceedings to be 
 taxed by the judge or county clerk. Code Civ. Pro. 
 § 2455. 
 
 Costs in these proceedings, like costs in an action, 
 cannot be allowed a party until the proceedings are termin- 
 ated as to him in his favor. Davis v. Turner, A How. Pr. 
 194. The disbursments should be taxed upon notice by the 
 clerk of court or by the judge before whom the proceedings 
 are pending. Foley v. Eathbone, 12 Hun, 589. The pro- 
 visions of sections 2455 and 2456 of the Code relate to costs 
 in the proceedings, and have no application whatever to the 
 costs of a motion to dismiss it. Hutson v. Weld, 38 Hun, 142. 
 Where the proceedings are under section 2441 of the Code, 
 the judge may grant costs against the judgment-debtor. 
 Grinnell v. Sherman, 33 N. Y. St. Eep. 27. Costs may be 
 allowed to the judgment-creditor, although the debtor pays 
 the amount due, and therefore no examination is had. 
 Colne V. Girard, 19 Abb. N. C. 288. 
 
 2. How collected.— Section 2455 of the Code provides that 
 the order granting costs must direct the payment thereof out 
 of any money which has come, or may come, to the hands of 
 the receiver or of the sheriff; or, within a time specified in 
 the order, by the judgment- debtor, or other person against 
 whom the special proceeding is instituted. It was held in 
 Valienle v. Bryan, 3 Civ. Pro. Eep. 358, that the thirty 
 dollars costs, etc., are not collectable by execution for the 
 reason that the Code has prescribed a method of collec- 
 tion. The Code directs the payment of the costs out of 
 
118 Supplementary Proceedings. 
 
 any money which has come, or may come, to the hands of 
 the receiver or of the sheriff. The Code then provides that 
 the order may direct that the judgment-debtor or other 
 person against whom the special proceedings are instituted 
 pay said costs within a time therein specified. The pay- 
 ment directly by the judgment-debtor or other persons, as 
 directed in the order, must be enforced by proceedings for 
 contempt. Thus, the order for the payment of costs 
 directly by the debtor or third person must be personally 
 served upon the party against whom it is made, and a 
 demand duly made of such party for the payment of the 
 costs If the party neglects to pay said costs within the 
 time stated in the order, then the creditor must apply to 
 the judge who granted the order or to the court out of 
 which the execution was issued for an order of attachment. 
 This application must be made on notice to the party for 
 the punishment of whom the application is made. 
 
 II. Costs to Judgment-Debtor or TmRD Person. 
 
 Section 2456 of the Code provides that when the judg* 
 ment-debtor, or other person against whom the special pro- 
 ceeding is instituted, has been examined, and property 
 applicable to the payment of the judgment has not been 
 discovered in the course of the special proceedings, the 
 judge may make an order allowing him thirty dollars and 
 disbursments, and directing the payment thereof within a 
 time specified in the order by the judgment-creditor, 
 except when it is allowed to the judgment-debtor out of 
 any money which has come to the hands of the receiver or- 
 of the sheriff. Where such costs are allowed to the judg- 
 ment-debtor they should be deducted from the judgment, 
 as a creditor who has not been guilty of bad faith should 
 not be compelled to pay money to his debtor. Kress v. 
 Morehead, 8 N. Y. St. Eep. 858. But a third party, ex- 
 amined in supplementary proceedings under section 2441 
 of the Code, should be allowed full costs where property 
 applicable to the payment of the judgment has not been 
 found in the course of those special proceedings, unless the 
 creditor shows good reason for the examination ^ Anon 1, 
 Code Rep. N. S. 113; Sloane v. Higgins, 2 Law Bull. 11; 
 Anon 11, Abb. 108. 
 
Eeceivers. 
 
 119 
 
 CHAPTEE XVII. 
 
 RECEIVERS. 
 
 Recbivbrs in Supplementary 
 Proceedings. 
 1. In general. 
 
 3. Appointment before service of 
 order for examination. 
 
 3. Appointment without notice to 
 
 the judgment-debtor. 
 
 4. Before return of execution. 
 
 5. Who may act as receivers. 
 
 6. By whom appointed. 
 
 7. Notice of application for. 
 
 8. Grounds for appointing. 
 
 9. Proof as to pendency of other 
 
 proceedings. 
 
 II. Extension of Rkcbivekship. 
 
 III. COMPLBTINO EECEIVERSHIP. 
 
 10. Filing order. 
 
 11. Security. 
 
 IV. What Property Vests in Re- 
 
 ceiver. 
 13. In general. 
 
 13. Prom what time absolute title 
 vests, 
 
 14. Property acquired after ser- 
 vice of order for examination. 
 
 15. Real estate — Title of receiver 
 In. 
 
 I. EECErvERS IN Supplementary Proceedings. 
 
 1. In general. — The appointment of a receiver in pro- 
 ceedings supplementary to execution is an order made in 
 the course of such proceedings, and is reviewable only 
 under section 2433 of the Code of Civil Procedure. Mos- 
 clell V. Boor, 50 N. Y. St. Eep. 238. 
 
 2. Appointment before service of order for examination. 
 — Section 2464 of the Code provides that "at any time after 
 making the oi'der requiring the judgment-debtor or any 
 other person to attend and be examined, or issuing a warrant, 
 the judge to whom the order or warrant is returnable may 
 make an order appointing a receiver of the property of the 
 judgment-debtor, and subdivision 2 of section 2469 provides 
 that where an order or warrant has not been served for the 
 examination of the judgment-debtor, or other person, but an 
 order has been made requiring a person to attend and be 
 examined concerning property belonging, or a debt due, to 
 the judgment-debtor, the receiver's title extends to the 
 personal property belonging to the judgment-debtor which 
 was in his hands or under the control of the person or cor- 
 poration thus required to attend at the time of the service 
 of the order, and to a debt then due to him from that 
 person or corporation. 
 
120 Supplementary Proceedings. 
 
 Subdivision 1 of section 2469 provides for cases only where 
 an order or warrant for examination has been served, be- 
 fore the appointment of a receiver. Thus, the Code pro- 
 vides for the appointment of a receiver after the granting 
 of an order or warrant for the examination of the judg- 
 ment-debtor or a third person, under either sections 2435, 
 2430 or 2441. DeVivier v. Smith, 6 Civ. Pro. Rep. 394. 
 
 3. Appointment without notice to the judgment-debtor. — 
 Where the order to attend and be. examined, or the warrant 
 has been served upon the judgment-debtor, a receiver may 
 be appointed upon the return day thereof, or at the close of 
 the examination, without further notice to him. So where 
 the judge is satisfied that the judgment-debtor cannot, with 
 reasonable dilligence, be found within the state, and the 
 order recites that fact, and that notice is dispensed with, 
 personal notice of application for the order need not be 
 served upon the judgment-debtor. Code, § 2464. 
 
 4. Before return of execution. — A receiver may be ap- 
 pointed at any time after the issuing of an execution, as 
 prescribed in section 2458 of the Code, and before the return 
 thereof ; and where an order or warrant is issued as pre- 
 scribed in section 2436 or 2437. What was said in First 
 Nat. Bank of Canandaigua v. Martin, 18 N. Y. St. Eep. 
 414, as to the exhaustion of the creditor's remedy by execu- 
 tion, was not before the court and was not passed upon. 
 
 But in Albany Nat. Bank v. Gaynor, 67 How. Pr. 421, 
 the court say: " The debtor will not be directed to deliver 
 to a receiver possession of real property by which the judg- 
 ment is a lien, the remedy is by sale under execution. 
 
 5. Who may not act as receiver. — No person shall be ap- 
 pointed a receiver who is not a resident of this state, nor 
 shall any person continue to act as such receiver after he 
 ceases to be a resident thereof, and the judgment-creditor 
 may apply to the court or judge that appointed such re- 
 ceiver, within thirty days after such receiver ceases to be a 
 resident of this state, for the appointment of another person 
 in his place, upon such notice to the persons interested as 
 the court or judge may direct. Code, § 2469, subd. 5 ; 
 Chamberlain v. Greenleaf, 4 Abb. N. C. 92. 
 
 6. By whom appointed. — Any judge who has jurisdiction 
 to entertain supplementary proceedings has the power to 
 
Eeceivers. 121 
 
 appoint a receiver. Hyatt v. Dusenbury, 5 N. Y. St. Eep. 
 849. The Code provides that the order must be made by 
 the judge to whom the order or warrant for examination is 
 returnable. Terry v. Bange, 24 id. 599 ; Code, § 2464. Sec- 
 tion 2462 of the Code provides that section 26, 52 and 279 
 apply to all supplementary proceedings, and the judge be- 
 fore whom a proceeding is continued is deemed to be the 
 judge to whom an order or warrant is returnable, for the 
 purpose of any provision of supplementary proceedings, or 
 the appointment of a receiver, or any proceedings by or 
 against a receiver. The order for the appointment of a re- 
 ceiver must be a chamber order. Ball v. Goodenough, 37" 
 How. Pr. 479. 
 
 7. Notice of application for. — Except in the cases pro- 
 vided for in the last paragraph of section 2464 of the Code,, 
 at least two days' notice of the application for the order ap- 
 pointing a receiver must be given personally to the judg- 
 ment debtor, unless the judge is satisfied by the proof be- 
 fore him that he cannot with due diligence, be found 
 within the state, in which case the order must recite that 
 fact, and may dispense with notice, or may direct notice ta 
 be given in any manner which the judge thinks proper. 
 Failure to give the two days' notice prescribed by the Code 
 is an irregularity for which the order should be set aside.. 
 Strohn v. Epstein, 6 Civ. Pro. Rep. 36 ; 14 Abb. N. C. 322. 
 Thus, the order cannot be made upon the examination of 
 a third party under section 2441, without the two da'ys' 
 notice to the judgment-debtor. But where the order recites 
 that the judgment-debtor is a non-resident of the state, and 
 that personal service of the notice cannot be made, and dis- 
 penses with notice, the order will be regular. O'Connor v. 
 Mechanics' Bank, 54 Hun, 272. It seems that notice of an. 
 application to extend a receivership must be given to the 
 judgment-debtor, the same as on an original application for 
 a receiver. , Benjamin v. Meyers, 3 N. Y. St. Eep. 284 ; 
 Thayer v. Dempsey, 25 Week. Dig. 457. In Sayles v. Best 
 et al., 49 N. Y. St. 'Eep. 460, 461, the court say : " An order 
 appointing a receiver in supplementary proceedings with- 
 out personal service of notice on the judgment-debtor is 
 void," and in Terry v. Bange, 24 id. 599, the court say : 
 16 
 
122 StPPLEMENTARY PROCEEDINGS. 
 
 " Notice to the judgment-debtor is not a condition prece- 
 dent to the exercise of the power to appoint a receiver. 
 
 8. Grounds for appointing. — A receiver is appointed 
 very much as a matter of course in supplementary proceed- 
 ings. Code, § 2464 ; Hoyt v. Mann, 7 N. Y. St. Eep. 420. 
 Thus, where there is a controversy as to title to property 
 claimed to belong to the debtor, a receiver will be appointed. 
 Dickinson v. Onderdonk, 18 Hun, 479, and it is no answer 
 to an application for a receiver that the examination has 
 Tiot shown the debtor to be the owner of any property. 
 Myers case, 2 Abb. 476. A creditor, however, has not an 
 absolute right to have a receiver appointed, but the ap- 
 pointment vests somewhat in the discretion of the court. 
 In the Matter of Edlunds, 35 Hun, 367, it seems that a 
 receiver will not be appointed for the purpose of taking and 
 selling the judgment-debtor's real estate ; the only way 
 that the receiver can sell such real estate is by an execu- 
 tion, and the judgment-debtor is entitled to his fifteen 
 months in which to redeem after any sale. Bunn v. Daly, 
 24 Hun, 526 ; Tiukey v. Langdon, 60 How. Pr. 180 ; Ash- 
 ley V. Turner, 22 Hun, 226. 
 
 In 1892, section 2449 of the Code was amended by adding: 
 "And a receiver may, on leave of a judge having power to 
 appoint such -receiver, lease the real property that shall 
 come to his possession for such time as shall be necessary 
 to realize moneys sufficient to satisfy the judgment, with 
 interest thereon, and costs of the special proceedings." 
 
 In Matter of Edlunds, 35 Hun, 367, the court say: "The 
 -examination of the defendant disclosed no property, except 
 a cheap watch and chain, and a trunk and some clothing. 
 The judgment-debtor is a clothing cutter and an unmarried 
 man, but certainly he is entitled to all tools and implements 
 necessary for his occupation, of which a watch may well 
 be one. There is nothing to receive, and no occasion for a 
 receiver." But ordinarily the question of property is not 
 material. De Camp v. Dempsey^ 10 Civ. Pro. Eep. 210. 
 
 9. Proof as to pendency of other proceedings. — Section 
 2465 of the Code provides that " The judge must ascertain, 
 if practicable, by the oath of the judgment-debtor or other- 
 wise, whether a creditor's action or another proceeding sup- 
 plementary to execution, is pending against the judgment- 
 
Extension of Eeceiyership. 123 
 
 debtor, and if either is pending and a receiver has not been 
 appointed therein, notice of the application for the appoint- 
 ment of a receiver, and of all the subsequent proceedings 
 respecting the receivership, must be given, in such a man- 
 jier as the judge directs, to the judgment-creditor prosecut- 
 ing it." State Bank of Syracuse v. Gill, 23 Hun, 410. 
 
 II. Extension of Receiveeship. 
 
 Section 2466 of the Code provides that only one receiver 
 of the property of a judgment-debtor shall be appointed. 
 
 This section applies only to supplementary proceedings 
 and not to actions brought by judgment-creditors. State 
 Bank of Syracuse v. Grill, 23 Hun, 410. Where the receiver 
 of the property of a judgment debtor has already been ap- 
 pointed, the judge, instead of appointing another one must 
 make an order extending the receivership to the proceeding 
 before him. 
 
 The same reason for giving notioe to the judgment-debtor, 
 applies with equal force to an application extending a re- 
 ceivership. Benjamin v. Myers, 3 N. Y. St. Rep. 284. The 
 court, in a creditor's action, may appoint a second receiver, 
 and direct the receiver appointed in supplementary proceed- 
 ings to hand ov^r the judgment-debtor's property to him. 
 Connolly i'. Kretz, 78 N. Y. 620, After a receiver is ap- 
 pointed, he is subject to the direction and control of the 
 court out of which the execution was issued. Where an 
 order has been made, extending the receivership to a special 
 proceeding founded upon a subsequent judgment, the con- 
 trol over and direction of the receiver with respect to the 
 judgment, remains in the court to whose control and direc- 
 tion he was originally subject. Code, § 2471. Thus, where 
 a receiver is appointed upon a judgment of the county 
 court, and the receivership is extended over another pro- 
 ceeding, upon a judgment in the supreme court, the supreme 
 court cannot remove the receiver and appoint another in 
 his place. The Garfield Nat. Bank v. Bostwick, 39 N. Y. 
 St. Rep. 358. But an order extending a receivership gives 
 to the judgment-creditor the same rights as if a receiver 
 was then appointed upon his application, including the right 
 to apply to the court to control, direct or remove the re- 
 ceiver, or to subordinate the proceedings in or by which the 
 
124: Supplementary Proceedings. 
 
 receiver was appointed, to those taken under his judgment. 
 Code, § 2406. Thus, if while proceedings are pending on a 
 judgment in favor of A., B. commences proceedings and 
 has a receiver appointed, A. cannot have another receiver 
 appointed in his proceedings , but he may have the receiv- 
 ership extended to his judgment, and then move to have 
 B. 's proceedings subordinated to his. 
 
 The extension of the receivership makes the title of the 
 receiver relate back to the time when the order in A.'s pro- 
 ceeding was served for the benefit of A. Webb v. Osborne, 
 15 Daly, 406. - It seems that the proceedings by B. for the 
 appointment of a receiver must have been made after notice 
 to A. as required by section 2465 of the Code. If such 
 notice was not given, the order appointing the receiver was 
 irregular if not void. Youngs v. Kluuder, 27 N. Y. St. 
 Kep. 32. 
 
 The fund in the hands of a receiver is not there for the 
 benefit of any particular judgment-creditor. It is in custodia 
 legis for those creditors who estabhsh a right to it according 
 to the respective priorities of their liens. 
 
 While it is true that funds in the hands of a receiver are 
 in custodia legis for those creditors who establish a right to 
 it, the court has no power, without personal notice to the 
 judgment-debtor, to make an order directing a receiver to 
 apply any portion of the funds coming to his hands in pay- 
 ment of judgments other than that under which he was 
 appointed, or to those to which his receivership has been 
 extended. It is his duty to restore to the judgment-debtor 
 any surplus after the satisfaction of these judgments, and 
 such ah order made without notice to the debtor is not bind- 
 ing upon him, and would be no protection to the receiver. 
 Goddard v. Stiles, 90 N. Y. 199. 
 
 III. Completing Eeceiveeship. 
 10. Filing order. — Each county clerk must keep in his 
 office a book, indexed to the name of the judgment-debtors, 
 styled " Book of orders appointing receivers of judgment- 
 debtors." The county clerk must file all orders for the 
 appointment of receivers immediately upon receiving them, 
 and must record them in the book so kept. For each omis- 
 sion to file and record, a county clerk forfeits to the party 
 
Completing Eeceivership. 125 
 
 aggrieved, two hundred and fifty dollars, etc. Code, § 2470. 
 An order appointing a receiver, or extending a receivership, 
 must be filed in the office of the clerk of the county wherein 
 the judgment-roll in tlie action upon the judgment of which 
 the proceedings are founded, or, if the proceeding is founded 
 upon an execution issued out of a court, other than that in 
 which the judgment was rendered, in the office of the clerk 
 of the county wherein the transcript of the judgment is 
 filed. Code, § 2467. The appointment of the receiver is 
 not complete until the order and the undertaking required 
 thereby are properly filed. Barnther v. Brosche, 19 Civ. 
 Pro. Rep. 466: Johnson v. Martin, 1 S. C. (T. & C.) 504. 
 
 The personal property of the judgment-debtor vests only 
 in the receiver from the time of fifing the order or a certi- 
 fied copy thereof, in the county where he resides. NicoU 
 V. Spowers, 105 N. Y. 1. But when the orders are duly 
 filed, the receiver is vested with the legal title to all the per- 
 sonal property of the judgment-debtor and has the further 
 right to prosecute actions to set aside all transfers of pro- 
 perty made by the debtor to defraud his creditors. Mande 
 ville V. Avery, 124 id. 242 ; 36 N. Y. St. Eep. 338. 
 
 II. Security. — A receiver must, before entering upon his 
 duties, execute and file with the clerk mentioned in section 
 2467 of the Code of Civil Procedure, a bond to the people 
 with at least two sufficient sureties, in a penalty fixed by 
 the judge making the appointment, conditioned for the 
 faithful discharge of his duties as receiver ; and the court 
 mentioned in section 2471 of the Code of Civil Procedure, 
 or the judge making the order, by or pursuant to which the 
 receiver was appointed, or his successor in office, may, at 
 any time, direct him to give a new bond, with new sure- 
 ties, with the like conditions. Code, § 715. Where the order 
 appointing a receiver requires a bond with one surety only, 
 it is not for that reason, void, and it may be amended with- 
 out prejudice. Holmes v. McDowell, 15 Hun, 585 ; 76 
 N. Y. 596. 
 
 "Where the bond lacks a seal, it is an irregularity merely, 
 (Morgan v. Potter, 17 Hun, 403) ; and if one of the sureties 
 on a bond become, insolvent, it is discretionary with the 
 couit whether to require the i^gceiver to give new security. 
 Haulenbeck v. Heacock, 47 N. Y. Supr. 533. It seems that 
 
126 Supplementary Proceedings. 
 
 the sureties on a receiver's bond are not liable for any act 
 of his before they executed the same. Thompson v. Mc- 
 Gregor, 81 N. Y. 592. 
 
 IV. WhaI' Property Vests in Eeceiver. • 
 
 12. In general. — Where the order appointing a receiver 
 or extending his receivership has been duly filed in the 
 office of the clerk of the county where the judgment-debtor 
 resides, and the receiver has given the security required by 
 section 715 of the Code of Civil Proceed ure, the personal 
 property of the judgment-debtor, except such as is exempted 
 from these proceedings by section 2463 of the Code of Civil 
 Procedure, is vested in him from the time of the filing of 
 the order. 
 
 Eeal property is vested in the receiver, only from the 
 time when the order or a certified copy thereof, as the case 
 may be, is filed with the clerk of the county where it is situ- 
 ated. Code, § 2468; First Nat'l Bank v. Martin, 49 Hun, 571. 
 
 Thus, where a receiver was appointed and duly qualified, 
 but the order was not filed in the county clerk's office for a 
 year thereafter, the receivership was extended to a second 
 proceeding, and the order of extension filed, and thereafter 
 and before the first order was so filed, the judgment-debtor 
 conveyed real estate, it was held that the real estate became 
 vested in the receiver when the order of extension was filed, 
 and the subsequent deed conveyed nothing. Webb v. 
 Osborne, 27 N. Y. St. Rep. 792. A right of dower of a 
 widow, though not admeasured, is an absolute right, which 
 vests in the receiver. Sayles v. Naylor, 5 N. Y. St. Rep. 816. 
 
 13. From what time absolute title vests. — By section 
 2469 of the Code of Civil Procedure, where an order for the 
 debtor's examination has been served, the receiver's title, 
 when vested pursuant to section 2468 of the Code of Civil 
 Procedure extends back so as to include the personal prop- 
 erty of the judgment-debtor at the time of the service of 
 the order, except as against bona fide purchases or against 
 creditors who have meanwhile received payment from their 
 debtor in good faith and without notice. The words "per- 
 sonal property" in this section include money, chattels, 
 things in action and evideflces of debt." Code, § 3343. 
 Section 2469 is a new provision not found in the former 
 
What Property Vests in Receiver. 127 
 
 Code, and appears to have been inserted to change the rule 
 declared in Becker v. Torrance, 37 N. Y. 631, to the effect 
 that no equitable lien was acquired by a creditor on the 
 property of his debtor by the commencement of supple- 
 mentary proceedings and that when a receiver is appointed, 
 his title relates to the date of his appointment, and is sub- 
 ject to any lien on the debtor's property acquired by third- 
 persons intermediate the commencement of the proceedings 
 and the appointment of the receiver. 
 
 The real question in McCorkle v. Herrman, 27 N. Y. St. 
 Rep. 333 ; 117 N. Y. 297, was as to priority of lien between 
 a judgment-creditor of a contractor, who had duly com- 
 menced -supplementary proceedings on his judgment, ter- 
 minating in the appointment of a receiver, and laborers and 
 material men, who, subsequent to the commencement of 
 the supplementary proceedings, and within the time al- 
 lowed by law, filed notices of lien to reach the debt owing 
 the contractor, under a contract with the owner of the 
 building for its construction. 
 
 On this point the court say : ' ' The creditor whom the 
 plaintiff represents by the commencement of supplementary 
 proceedings acquired under section 2469 of the Code, an 
 equitable lien on the debt then owing by^the defendant, 
 which on the appointment of the receiver, became a legal 
 title in the receiver to the claim of the contractor against 
 the defendant as of the date of the service of the order in 
 the supplementary proceedings. Subsequent to the service 
 of the order, the liens were filed, which of the claimants 
 have the prior right ? We think the plaintiffs as receiver, 
 has the superior claim. He stands as the assignee of the 
 claim of the contractor, against the defendant by a title 
 which antedates the filing of the notices of lien." The lien 
 of the judgment-creditor up to the time of the appointment 
 of a receiver in the proceeding is inchoate, and if the pro- 
 ceedings are not consummated by the appointment of a 
 receiver, the lien becomes extinct upon the discontinuance 
 or dismissal of the proceedings. But it seems that such in- 
 choate lien continues until the proceeding is disposed of as 
 prescribed by section 2454 of the Code. The receiver ob- 
 tains a legal title to the fund as of the time of the service 
 of the order of examination. 
 
128 Supplementary Proceedings. 
 
 The judgment-creditor stands in as good a position at 
 least as if he had an assignment of the debt from the judg- 
 ment-debtor as security for his debt. Estate of Sistue, 27 
 Abb. N. C. 34. So, a receiver is bound by a Us pendens 
 filed in an action pending at the time of the commence- 
 ment of the proceedings under which he is appointed. 
 Spencer v. Berdell, 45 Hun, 179. 
 
 i4. Property acquired after service of order for ex- 
 amination. — These proceedings are statutory, and operate 
 on property which the judgment-debtor has at the time the 
 order is obtained (Potter v. Low, 16 How. Pr. 549), and do 
 not affect property acquired afterwards (Merriam v. Hill, 
 1 Week. Dig. 260), and the receiver becomes vested from 
 the time of his appointment with the property which the 
 debtor had at the time the proceedings were commenced 
 (Dubois V. Cassidy, 75 N. Y. 302), but gets no title to prop- 
 erty which the debtor acquires subsequently. Thorm v. 
 Fellows, 5 Week. Dig. 473; Graff v. Bonnett, 25 How. Pr. 
 470; The Columbian Institute v. Cregan, 8 N. Y. St. Eep. 
 287; Hasten v. Amerman, 51 Hun, 244. But in Stevenson 
 V. Stevenson, the court say: "A receiver becomes vested 
 with the right to receive the payments to fall due in the 
 future to a wife, the judgment-debtor under the terms of a 
 judgment for "divorce awarding semi-yearly alimony for 
 her support and maintenance." 
 
 It is held, however, in a later case that such alimony is 
 absolutely exempt from these proceedings except upon a 
 judgment for necessaries. And in Thorn v. Fellows, 6 
 Week. Dig. 573, it was held that where the debtor, at the 
 time of the receiver's appointment, held a note, which he 
 subsequently destroyed, taking other notes of the same 
 person in place thereof, the receiver had no title to the 
 last notes or the proceeds thereof. 
 
 15. Real estate— Title of receiver in. — Although section 
 2468 of the Code of Civil Procedure prescribes that when a 
 receiver is duly appointed, and the order appointing him is 
 duly filed in the office of the clerk of the county where the 
 real estate of the judgment-debtor is situated, it vests in 
 him and no conveyance is necessary ; the receiver obtains 
 such title as the statute gives him, and he is entitled to no 
 other. But it seems that the title to the property vests in 
 
What Property Vests in Eeceiver. 129 
 
 him only as security for the payment of the judgment of 
 the judgment-creditor and the costs of the proceedings. 
 The receiver's duties are to appropriate the property of the 
 judgment -debtor to the satisfaction of the judgment under 
 which he is appointed, and restore the surplus, if any, to 
 the judgment-debtor. Goddard v. Stiles, 90 N. Y. 206. 
 
 It seems that the receiver must cause the property to be 
 sold on execution or by an order of the court. In First 
 Nat. Bank of Canandiagua v. Martin, 49 Hun, 574, the 
 court say: " If the plaintiff should be permitted to procure 
 the appointment of a receiver, and thus vest the title of 
 the real estate of the judgment-debtor in such receiver, it 
 could be sold and the judgment-debtor deprived of the 
 right of redemption, which is given to him in case of a sale 
 by execution." 
 
 The court also say: "There is no authority in the Code 
 authorizing an order directing the judgment-debtor to sur- 
 render up possession of real estate to the receiver. As to 
 the right of the judgment-debtor to redeem, it seems that 
 the right in law to redeem lands from sale exists only when 
 given by statute. In equity the general rule is that where 
 all the parties are before the court, and the rule is to be 
 made pursuant to its decree, and by an officer appointed by 
 it for that purpose, the right of redemption will not be 
 allowed except by command of the statute. Crisfield v. 
 Murdock et al., 38 N. Y. St. Kep. 828. 
 17 
 
130 
 
 SUPPLBMENTAKY PjiOCEEDING& 
 
 CHAPTER XVIII. 
 
 RECEIVERS. —Continued. 
 
 I. Duties of Recbiveb. 
 1. In general. 
 8. Leave to sue. 
 3. Receivers as plaintifEs. 
 n. Priority of Lien on the Pbb- 
 BONAii Property of ' the 
 Judgment-Debtor. 
 
 III. When Title to Pbopebty 
 
 Extends Back by Rela- 
 tion. 
 
 IV. By Whom Receiver Con- 
 
 trolled. 
 V. Vacating Order Appointing 
 
 RECillVBR. 
 
 VI. Injunction Order. 
 
 I. Duties of Eeceiveb. 
 4. In general. — Eule 28 of the supreme court provides 
 that ' ' every receiver has general power and authority to sue 
 and collect all debts belonging to his judgment-debtor and 
 to compromise such as are doubtful." He may sue in 
 the name of the debtor where it is necessary or proper to 
 do so. He may by order of the court collect rents. He 
 shall convert all personal effects into money. He may, 
 by leave of court, sell desperate debts and doubtful claims 
 to personal property at public auction, but he cannot sell 
 such debts and claims, even by order of the court, until he 
 has given at least ten days' public notice of the time and 
 place of sale. A receiver represents the creditors, and pos- 
 sesses the same rights as the creditor under whose judg- 
 ment he was appointed to prosecuted actions, to set aside 
 all transfers of property made by the debtor to defraud his 
 creditors; and his rights in this respect are not confined to 
 the assigned property, but he can follow the fund or pro- 
 ceeds of the sale thereof into the possession of any person 
 not. a bona fide owner or holder thereof. The right to 
 collect a debt out of mortgaged property cannot be defeated 
 by the mortgagee simply by selling the property. The 
 same right that existed against the property would exist in 
 favor of the creditor against the proceeds of the sale in the 
 possession of the mortgagee, and an action to reach such a 
 fund would be maintainable by a receiver appointed in 
 supplementary proceedings. Mandeville v. Avery, 36 N. Y. 
 St. Rep. 342; 124 N. Y. 376. A receiver cannot take forci- 
 
Duties of Receiver. 131 
 
 ble possession of property in the possession of a third 
 person who claims to own it. Dewey v. Finn, 18 Week. 
 Dig. 558. But it seems that he can take possession of the 
 property of the judgment-debtor. Van Eensselaer v. 
 Emery, 9 How. Pr. 135. He cannot, however, take prop- 
 erty exempt by section 2463 of the Code. Fennin v. 
 Malloz, 33 N. Y. Supr. 382; Cooney v. Gooney, 65 Barb. 624. 
 In petition of Inglehart, 1 Sheld. 514, it is held that a 
 receiver cannot sell laiads which might be sold under exe- 
 cution. When a receiver obtains a judgment setting aside a 
 deed from husband to wife, he must sell subject to the 
 wife's inchoate dower. Lowery v. Smith, 9 Hun, 514. 
 After notice of the receiver's rights a bank cannot pay a 
 deposit owned by the judgment-debtor. O'Conner v. 
 Mechanics' Bank, 54 id. 272. A chattel mortgage, executed 
 before but not filed until after the order for examination 
 in supplementary proceedings is served, is void as against 
 the subsequent receiver. Clark v. G-ilbert, 14 Week. Dig. 
 241; 10 Daly 316. 
 
 2. Leave to sue. — Before a receiver can commence an 
 action, he must obtain leave of the court out of which exe- 
 cution issued. Hyatt v. Dusenbury, 5 N. Y. St. Eep. 846; 
 12 Civ. Pro. Eep. 152. And whenever a receiver appointed 
 under supplementary proceedings shall apply for leave to 
 bring an action, he shall present and file with his applica- 
 tion, the written request of the creditor in whose behalf he 
 was appointed, that such action be brought, or else he shall 
 give a bond, with sufficient sureties, and properly acknowl- 
 edged and approved by ^^ court, to the person against 
 whom the action is to be brought, conditioned for the pay- 
 ment of any costs which may be recovered against such re- 
 ceiver, and leave to bring actions shall not be granted ex- 
 cept on such written request, or on the giving of such 
 security. In aU other cases where a receiver applies to the 
 court for leave to bring an action, he shall show in such 
 application, that he has sufficient property in his actual 
 possession to secure the person against whom the action is, 
 to be brought, for any costs which he may recover against 
 such receiver, otherwise the court may require the receiver 
 to give such bond, conditioned for the payment of costs, 
 and with such security. Eule 79, Sup. Court. So a re- 
 
132 ^ Supplementary PiiocEEDiKcis. 
 
 ceiver may be required to give security for the costs of an 
 appeal by him. Gifford v.. Eising, 48 Hun, 128. 
 
 3. Receivers as plaintiffs. — The production and proof by 
 the plaintiff of an order made by a judge authorized by law 
 to make it, reciting the facts necessary to give such judge 
 jurisdiction to act in the proceedings furnishes conclusive 
 evidence of the regularity of such order, when questioned 
 collaterally, and prima facie evidence of the existence of 
 the facts necessary to confer jurisdiction. Wright v. Nos- 
 trand, 94 N. Y. 45; Palmer v. Colville, 45 N. Y.St. Eep. 
 706. 
 
 An allegation that the plaintiff was duly appointed re- 
 ceiver sufficiently pleads that fact; so a general denial in the 
 answer will compel the plaintiff to prove his allegation. 
 Matter of O'Conner, 47 id. 415. The court, in Mandeville v. 
 Avery, 36 N. Y. St. Rep. 339; 124 N. Y. 376, settled the 
 question as to the right of a receiver in supplementary pro- 
 ceedings to prosecute actions to set aside transfers of pro- 
 perty made by the debtor to defraud his creditors. It is 
 there held that he possesses the same rights as the creditor 
 under whose judgment he was appointed would himself 
 have had, but the title to the property previously trans- 
 ferred by the judgment-debtor does not vest in his receiver, 
 and the latter has no prior or exclusive right to maintain 
 an action to set aside such transfer as fraudulent. A judg- 
 ment-creditor who has brought the first action to set aside 
 such transfer, has a lien and preference over the receiver. 
 Metcalf V. Del Valle, 46 N. Y. St. Rep. 105. And in Estate 
 of Sistare, 27 Abb. N. C. 34; 15 N. Y. Supp. 709, the court 
 say: " The interest of a cestui que trust in a trust estate 
 who had assigned it before an order had been served on him 
 or the trustees to attend and be examined, cannot be 
 reached." A receiver is vested with the debtor's rights of 
 action and is .entitled to be substituted as plaintiff in a 
 pending Suit brought by the debtor. In re Wilde, 6 Abb. 
 N. C. 307. But in Re Lansing, 17 Week. Dig. 288, it is 
 held that it is discretionary with the court whether or not a 
 receiver shalU be substituted. A receiver may maintain an 
 action against the judgment-debtor for conversion of pro- 
 perty after it became vested in the receiver. Gardner v. 
 Smith, 29 Barb. 68. So he may recover from a creditor the 
 
LiEN" ON Personal Pkoperty of Judgment-Debtok. 133 
 
 value of property levied upon and sold upon an execution 
 issued subsequent to the service of the order for examina- 
 tion in the proceedings upon which he was appointed. Fes- 
 senden v. Woods, 3 Bosw. 550. 
 
 Such receiver cannot maintain an action to enforce the 
 trust created in favor of the creditors of one paying the 
 consideration for lauds, which are conveyed to another. 
 
 The judgment-debtor has no interest, legal or equitable, 
 in lands paid for by him, but conveyed to another. The 
 remedy of the creditor is to proceed directly to enforce the 
 trust. Under\yood v. Sutliffe, 77 N. Y. 58. So, it seems 
 that a receiver has no power to issue an execution against 
 the judgment-debtor. Hyatt v. Dusenbury, 12 Civ. Pro. 
 Eep. 152. And unless a receiver shows that he became 
 vested of the property of the judgment-debtor, he cannot 
 recover the rents and profits in an action to set aside as 
 fraudulent a conveyance of real estate, executed by the 
 judgment-debtor, so as to subject the property to levy and 
 sale on execution. Wright v. Nostrand, 98 N. Y. 669. In 
 such an action, the recovery should be limited to an amount 
 sufficient to cover the judgment and interest and costs. 
 Payne v. Becker, 87 id. 153; Bostwick v. Menck, 40 id. 383. 
 Whether such a receiver obtains such a title to real pro- 
 perty as will enable him to maintain an action for partition, 
 does not seem to have been settled. Dubois v. Cassidy, 75 
 N. Y. 298. What was said in Payne v. Becker, 87 id. 157, 
 was not necessary to the decision of that case. 
 
 II. Priokity op Lien on the Personal Property of the 
 Judgment-debtor. 
 The lien of a receiver relates back to commencement of 
 the proceedings in which he is appointed, or from the ser- 
 vice of the order or warrant for examination as against 
 every one except hona fide purchasers for a valuable consid- 
 eration, and creditors who have received payment of their 
 debts in good faith and without notice. McCorcle v. Her- 
 man, 117 N. Y. 297; 27 N. Y. St. Eep. 333. Thus, where 
 
 A. commences proceedings by service of an order for ex- 
 amination, and afterwards proceedings are commenced by 
 
 B. upon whose application a receiver is appointed, after 
 which A. obtains an order extending the receivership to 
 
134 Supplementary Proceedings. 
 
 his judgment, A. will have the prior lien on the personal 
 property of the judgment-debtor. Youngs v. Klunder, 27 
 K. Y. St'. Eep. 32; Guggenheimer v. Stevens, 17 Civ. Pro. 
 Eep. 383. 
 
 III. When Title to Property Extends Back by Eela- 
 
 TION. 
 
 Where the receiver's title to personal property has become 
 vested, it extends back by relation, for the benefit of the 
 judgment-creditor in whose behalf the special proceeding 
 was instituted, as follows : Where the order or warrant for 
 examination of the judgment-debtor under either section 
 2435, 2436 or 2437 of the Code, was served before the appoint- 
 ment of the receiver, the receiver's title extends back, so as 
 to include the personal property of the judgment-debtor, at 
 the time of the service of the order or warrant. And where 
 the only order for examination is under section 2441 of the 
 Code, requiring a person to attend and be examined con- 
 cerning property belonging, or a debt due, to the judgment- 
 debtor, the receiver's title extends to the personal property 
 belonging to the judgment-debtor which was in the hands, 
 or under the control of the person or corporation thus re- 
 quired to attend at the time of the service of the order, and 
 to a debt due to him from that person or corporation. In 
 every other case, where notice of the application for the 
 appointment of a receiver was given to the judgment- 
 debtor, the receiver's title extends to the personal property 
 of the judgment-debtor at the time when the notice was 
 served, either personally or by complying with the requii-e- 
 ments of an order prescribing a substitute for personal ser- 
 vice. The title of a purchaser in good faith without notice 
 and for a valuable consideration, is not affected by the 
 above provisions, neither is a party who receives the pay- 
 ment of debt in good faith, and without notice. Code, 
 § 2469. 
 
 IV. By Whom Eecefver Controlled. 
 
 The control over, and direction of, a receiver is with the 
 court out of which the execution was issued, in the action 
 upon which the proceedings were founded, upon which he 
 was appointed. Code, § 2471. The receiver is an officer of 
 the court, and is bound to obey its directions and subject, 
 
Yacating Order Appointing Eeceiver. 135 
 
 in the general discharge of his duties, to its control. It can 
 direct him as to the time when, and the place where, and 
 the manner in which a sale should be made, and as to the 
 terms thereof. Syracuse Sav. Bank v. S. C. & N. Y. R. 
 Co., 88 N. Y. 110. Subdivision 5 of section 2469 of the 
 Code of Civil Procedure provides that the judge appointing 
 a receiver may appoint another person in his place when 
 the person first appointed ceases to be a resident of the 
 state, and section 715 provides for the removal of a re- 
 ceiver who fails to give the security prescribed by law, by 
 the judge, etc. The court can accept the resignation of a 
 receiver, but whether it can appoint his successor, quaere. 
 A receiver can neither sue nor be sued without leave of 
 the court. James v. James Cement Company, 8 N. Y. 
 St. Eep. 490; Foster v, Townshend, 68 N. Y. 203; but 
 see Rockwell v. Merrill, 45 N. Y, 166; Rule 78, Supreme 
 Court. 
 
 There should be no removal of a receiver for non-residence 
 alone without the substitution of a qualified receiver in his 
 place. Terry v. Bange, 30 N. Y. St. Rep. 285. It is a con- 
 tempt to bring an action against a receiver without leave 
 of the court (Taylor v. Baldwin, 14 Abb. 166), and the 
 party suing may be restrained. Camp v. Barney, 4 Hun, 
 373. A receiver may institute summary proceedings to re- 
 cover possession of leased premises for non-payment of rent. 
 Matter of Renwick, 1 Law Bull. 19. 
 
 V. Vacating Order Appointing Receiver. 
 An order appointing a receiver by a judge authorized to 
 make it, is to be presumed regular until annulled in a 
 direct proceeding. Wright v. Nostrand, 94 N. Y. 31. There 
 is no appeal from the order, and it can be reviewed only 
 under section 2433 of the Code. Moschell v. Boor, 50 N. Y. 
 St Rep. 238. Thus, the order appointing a receiver may 
 be vacated or modified by the judge who made it, as if it 
 was made in an action, or it, or the order of the judge, 
 vacating or modifying it, may be vacated or modified upon 
 motion, by the court out of which the execution was issued. 
 The Code does not confer upon the judge at chambers, 
 on an ex parte application, the power to make an order af- 
 fecting the substantial rights of the prosecuting creditor, 
 
136 Supplementary Pkooeedings. 
 
 without giving notice of the application to him. Dorsey v. 
 Cummings, 48 Hun, Y6. 
 
 The judgment-debtor is the only person who can avail 
 himself of any irregularity in the proceedings. Underwood 
 V. Sutliffe, 10 Hun, 453. 
 
 VI. Injunction Oeder. 
 An order restraining the transfer of property ''until 
 further order in the premises " is superseded by an order 
 appointing a receiver, and a subsequent transfer is not a 
 contempt. People ?). Randall, T3 N. Y. 416 ; Morris v. 
 First Nat. Bank, 68 id. 362. The judgment-creditor should, 
 therefore, procure an order with a restraining clause in- 
 serted as allowed by section 2450 of the Code. 
 
Contempt. 
 
 137 
 
 OHAPTEE XIX. 
 
 CONTEMPT. 
 
 I. Proceedings fob. 
 
 1. Nature of. 
 
 2. What court or judge has jur- 
 
 isdiction. 
 
 3. Who may apply for order. 
 II. Acts That Are Punishable. 
 
 4. In general. 
 
 5. Failure to appear. 
 
 6. Witnesses.- 
 
 7. Refusal to comply with 
 
 order. 
 8. Interference with property. 
 
 III. ExcDSES, Sufficiency of. 
 
 IV. .Whbue Punishment May Be 
 
 Summary. 
 9. In general. 
 
 10. When warrant to commit 
 may issue without notice. 
 V. Order to Show Cause or 
 Warrant to Attach Of- 
 fender. 
 VI. When Contempt Was Com- 
 mitted Beforb a Referee. 
 VII. Effect of Order to Show 
 Cause and of Warrant. 
 
 VIII. Warrant, How ErECUTED. 
 IX. Undertaking to Procure 
 Discharge. 
 X. Habeas Corpus Mat Issue 
 
 WHEN. 
 
 IX. Interrogatories and Proof. 
 
 11. In general. 
 
 12. Practice as to proofs. 
 XII. Order Adjudging Party 
 
 Guilty and Commitment. 
 
 13. In general. 
 
 14. Form of order. 
 
 XIII. Practice in Review of Or- 
 
 ders. 
 
 XIV. Punishment in Contempt 
 
 Proceedings. 
 
 15. On a habeas corpus. 
 
 16. Upon order to show 
 
 cause. 
 
 17. Amount of fine. 
 
 18. Length of imprisonment. 
 
 19. Jail liberties. 
 
 20. Release of offender. 
 
 31. Undertaking as indem- 
 nity. 
 
 I. Proceedings Fob. 
 I. Nature of. — Proceedings for contempt are themselves 
 special proceedings, independent of the action or special 
 proceeding in which they may be taken ; and an order made 
 therein cannot be regarded as an order made in the course 
 of the original proceedings. People ex rel. Grant v. War- 
 ner, 20 N. Y. St. Eep. 573 ; Moschell v. Boor, 50 id. 238. 
 Proceedings for the contempts mentioned in sections 14 and 
 2457 of the Code of Civil Procedure, are regulated by sec- 
 tions 2266-2292, inclusive. Section 2457 of the Code of 
 Civil Procedure provides that a person who refuses, or, 
 without sufficient excuse, neglects to obey an order of a 
 judge or referee, made in supplementary proceedings, and 
 duly served upon him, or an oral direction, given directly 
 18 
 
138 Supplementary Proceedings. 
 
 to him by a judge or referee, in the course of the special 
 proceeding, or to attend before a judge or referee, according 
 to the command of a subpoena, duly served upon him7may 
 be punished by the judge, or by the court out of which the 
 •execution was issued as for a contempt. 
 
 2. What court or judge has jurisdiction. — Section 2457 of 
 the Code of Civil Procedure provides that contempts in 
 these proceedings may be punished by the judge, or by the 
 court out of which the execution was issued. The judge 
 mentioned in section 2457 is the judge mentioned in sec- 
 tions 2434 and 2462 of the Code of Civil Procedure, that is 
 to say, the judge who granted the order or the one to whom 
 it is made returnable. Wicker v. Dresser, 13 How. Pr. 331 ; 
 Dresser v. Van Pelt, 15 id. 19 ; Kelly f ^McCormick, 2 E. D. 
 Smith, 503. In Blanchard v. Eeilly, 11 Civ. Pro. Eep. 278- 
 281, it was held that the provision that disobedience of an 
 order may be punished by the judge or by the court out of 
 which tlie execution was issued, means that the judge be- 
 fore whom the proceedings were instituted, or the court at 
 special term, out of which the execution was issued, may 
 -do so. 
 
 In Gamman v. Berry, 34 Hun, 138, it was held that an 
 order requiring a person to show cause why he should not 
 be ptinished for contempt, made by a county judge whose 
 term expires before the~ return day, may be heard before his 
 successor. A special surrogate or special county judge who 
 issues the original order has power to punish a contempt 
 thereof. Aldrich v. Davis, 46 N. Y. St. Jlep. 587. 
 
 3. Who may apply for order. — Section 2266 of the Code 
 provides that any person, whose right or remedy to a 
 special proceeding, pending before the judge or referee, is 
 defeated, impaired, impeded or prejudiced by a party re- 
 fusing to obey an order, may prosecute for the misconduct 
 or other injury complained of. 
 
 II. Acts that are Punishable. 
 Proceedings to punish for contempt are of two kinds, 
 each having a distinct object in view : the one, to protect 
 the rights of private parties and the other to maintain the 
 dignity of the court, and to punish persons guilty of willful 
 disobedience to its mandates. In the former case, the pur- 
 
Acts that are Punishable. 139 
 
 pose being to preserve private rights, it is immaterial 
 whether the contempt was designedly or negligently com- 
 mitted ; the power and duty of the court, to redress the 
 wrongs of the injured party are the same. People v. Ait- 
 ken, 19 Hun, 327. But it is indispensible for the punish- 
 ment of the party that it should be made to appear, and 
 be determined by the judge or court, that the misconduct 
 complained of was calculated to, and actually did defeat, 
 impaii', impede or prejudice the rights or remedies of a 
 party to an action or special proceeding brought in court or 
 before a judge or referee. Matter of Swenorton v. Shupe, 
 40 id. 41. It must be adjudged by the order that the ac- 
 cused has been guilty of the contempt, and that such mi«- 
 •conduct was calculated to and did impair, defeat, impede 
 and prejudice the rights and remedies of the prosecutor or 
 parties in the. proceedings, and the order must impose 3 
 fine sufficient to indemnify them and to satisfy the costs 
 and expenses, and " where anything further remains to be 
 done by the party guilty of the contempt, the order should 
 also specify particularly what he is to do, and the manner 
 in which it is to be done, to entitle him to his discharge 
 upon the payment of the fine imposed. Code Civ. Pro., 
 §§ 2281 and 379. 
 
 A party bound to obey an injunction may be guilty of a 
 violation thereof, as well as for aiding, abetting and coun- 
 tenancing others in violating it, as by doing it directly. 
 
 So, knowledge of the injunction or information of its 
 contents, is sufficient to impose upon the enjoined party 
 the duty of obeying it, so far as the pecuniary rights of the 
 creditors are concerned, although the injunction order was 
 not shown to him when a copy of it was served. The Mayor 
 V. N. Y. & S. I. Ferry Co., 64 N. Y. 622. One who has been 
 adjudged liable for costs and directed to pay them, upon a 
 failure to pay the same may be adjudged in contempt and 
 fined the amount of the costs which he has been directed 
 to pay without any further proof to show damage other 
 than he has refused to pay them. Tucker v. Gilman, 37 
 N. Y. St. Eep. 958. 
 
 5. Failure to appear. — Where the judge has jurisdiction 
 of the subject-matter, the order for examination is not void, 
 and the party served with the order must obey it or take 
 
140 Supplementary Proceedings. 
 
 proper steps to set it aside. Matter of Fleming, 40 N. Y. 
 St. Eep. 705 ; 16 N. Y. Supp. 1. Failure to appear is a con- 
 tempt although the order of the judge does not name the 
 time and place of appearance, but directs the debtor to ap- 
 pear at such times and places as may be appointed by the 
 referee. Redmond v. Groldsmith, 2 Law Bull. 19. The fact 
 that the order is irregular is no excuse for non-g,ppearance. 
 Shults V. Andrews, 54 How. Pr. 378. And the fact whether 
 the summons in the original action had been served cannot 
 be considei-ed by the cou-rt upon a motion for an order ad- 
 judging the defendant in contempt for not obeying an 
 order for his examination. Perkins v. Kendall, 3 Civ. Pro. 
 Rep. 240. So proof that the execution had not been re- 
 turned is no answer to a motion for an order to punish for 
 contempt for non-appearance. Holbrook v. Orgler, 40 N. Y 
 Supr. 33. 
 
 6. Witnesses. — It is contempt for a judgment-debtor or 
 other witness to refuse to answer legal and proper ques- 
 tions (People V. Davidson, 35 Hun, 471), and to fail to at- 
 tend after tender of his legal fees. Andrews v. Andrews, 
 2 John. Cas. 109. It is a contempt for a witness to refuse 
 to be sworn, or to leave the room contrary to the oral direc- 
 tion given directly to hec by the referee. Howe v. Welch, 
 11 Civ. Pro. Rep. 444. Or to fail to produce books in her 
 possession when ordered to produce them. Shelp v. Morri- 
 son, 13 Hun, 110 ; Central Nat'l Bank v. Arthur, 2 Sweeny, 
 194. A witness cannot be punished for contempt for re- 
 fusing to answer a question immaterial or irrelevant to the 
 issue. Matter of Odell, 6 Dem. 344. So where the court 
 or referee has no jurisdiction to proceed in the examina- 
 tion (People 1. Warner, 20 N. Y. St. Rep. 573), or where 
 the referee has an office with fhe attorney for the judg- 
 ment-creditor. Gilbert v. Frothingham, 13 Civ. Pro. Rep. 
 288. A witness or party is entitled to a reasonable time to 
 go to the place of examination by the usual means of travel. 
 People V. Potter, 6 N. Y. St. Rep. 753, and a witness should 
 not be required to sign his deposition when his so doing 
 might subject him to liability not otherwise existing. 
 Marx V. Spaulding, id. 530. 
 
 7. Refusal to comply with order.— To authorize the court 
 to punish a party for contempt in refusing to pay over 
 
' Acts that are Punishahle. 141 
 
 money in pursuance of its order, it must appear that the 
 specific sum of money was in his possession, or under his 
 control at the time of the service of the order. Tinker v. 
 Crooks, 22 Hun, 579. It is not sufficient that the order or 
 judgment requiring the payment of money or the dehvery 
 of property, be served upon the party, and he be made fully 
 acquainted with its effect, but in addition thereto, a com- 
 pliance with the order or judgment must be explicitly de- 
 manded by a party who has a right to make such demand. 
 McComb V. Weaver, 11 Hun, 271 ; Gray v. Cook, 24 How. 
 Pr. 432 ; Tinkey v. Langdon, 60 id. 180. But service of 
 the copy of order of court upon sheriff to pay money into 
 court is sufficient without a demand. Whitman v. Haines, 
 21 N. Y. St. Eep. 41. So if the judge finds the defendant 
 able to pay the judgment and orders him to pay the same 
 within a time specified and also the costs stated, the de- 
 fendant, if he fails, may be proceeded against as for con- 
 tempt. Brush V. Lee, 6 Abb. N. S. 50. When a decree 
 does not specify the precise amount, a defendant cannot be 
 punished for contempt, for not paying over the money 
 therein ordered to be paid over. Goodenough v. Davids, 3 
 Law Bull. 57. And contempt proceedings will only been ter- 
 tained to enforce a judgment or decree, when there can 
 be no opportunity for ambiguity or doubt as to the precise 
 thing to be done by the party proceeded against. Eoss v. 
 Butler, 57 Hun, 110. And to punish for a violation of an in- 
 junction, the act complained of must be clearly embraced 
 within the inhibited act. Porous Plaster Co. v. Seabury, 
 161^. Y. St. Rep. 35. Nor will it apply to an act equally 
 injurious with the one inhibited. Standard Stock Farm v. 
 Nat. Trot. Asso., 31 id. 213; 
 
 8. Interference with property. — Parties may be pun- 
 ished for violating an injunction order who may have 
 merely heard tliat such order has been granted. Mayor v. 
 N. Y. & S. I. Ferry Co., 40 N. Y Supr. 300; 64 N. Y. 623; 
 Dinsmoor v. The Commerc. Trav. Ass., 38 N. Y. St. Eep. 
 624; Livingston v. Swift, 23 How. Pr. 1. But in order to 
 support a conviction for contempt, the legal title to the pro- 
 perty, the transfer of which forms the contempt, must be 
 proven to be in the accused. Dean v. Hyatt, 5 Week. Dig. 
 ■67. And it must be shown affirmatively that it was ac- 
 
142 Supplementary Prgceeoings. 
 
 quired before the date of the order. Potter v. Law, 16 HoMr. 
 Pr. 549. Thus, a judgment-debtor cannot be held guilty of 
 contempt for disposing of property acquired after the ser- 
 vice of the injunction order in supplementary proceedings; 
 the injunction relates only to property or debts in existence 
 at the time of its service. 
 
 It has been invariably held that the injunction relates 
 only to property of the judgment-debtor existing at the 
 time of the service of the order. 
 
 The difference in language of the enactments of the 
 former Code,, section 298, and the Code of Civil Procedure, 
 section 2451, has not, so far as our attention has been called 
 to any case, been held to authorize an injunction against 
 the disposition of. property not in existence when the order 
 is made. 
 
 On the contrary, the city court, in a case arising under 
 the present Code, has decided that the injunction does not 
 extend to property acquired, or money earned, after the 
 date of the order in supplementary proceedings. Sanford 
 V. Goodwin, 20 Civ. Pro. Rep. 276, note. The case of 
 Newell V. Cutler, 19 Hun, 74, was plainly that of a judg- 
 ment-debtor using wages earned before the order was served, 
 but collected afterwards, a case in harmony with the cur- 
 rent of decisions which held such earnings subject to the 
 order. 
 
 The former Code provided: "The judge may also, by 
 order, forbid a transfer or other disposition of the property 
 of the judgment- debtor, not exempt from execution, 
 and any interference therewith." The present Code pro- 
 vides: "The judge * * * may make an injunction 
 order, restraining any person or corporation, whether a 
 party or not a party to the special proceeding, from taking 
 or suffering any transfer or other disposition of, or inter- 
 ference with, the property of the judgment-debtor, or the 
 property or debt, concerning which any person is required 
 to attend and be examined until further direction in the 
 premises." It is a contempt for a judgment-debtor, upon 
 whom an injunction order has been served, to confess judg- 
 ment for a fictitious debt in another state. Fenner v. San- 
 born, 37 Barb. 610. So is the conveying of property. Wolf 
 V. Jacobs, 45 N. Y. Supr. 583; Rainford v. Temple, 51 N. Y. 
 
Excuses, Sufficiency of. 143 
 
 St. Eep. 144. Thus a judgment-debtor who has commenced 
 an action as administrator for damages for the death of his 
 son, will be in contempt if he assigns his interest, after the 
 service of an injunction order upon him. Wynkoop v. 
 Myers, 26 N. Y. St. Eep. 81. But such person may change 
 securities, or carry out a contract previously made. Duff us- 
 V. Cole, 15 N. Y. Supp. 370; Parker v. Wakeman, 10 
 Paige, 485. 
 
 III. Excuses— Sufficiency op. 
 That the order disobeyed was erroneously granted, is no 
 excuse for disobedience of the same. The party who dis- 
 obeys the order is guilty, unless it is void on its face from 
 an utter want of jurisdiction. Erie Railway Co. v. Ram- 
 sey, 45 N. Y. 637; People v. Bergen, 53 id- 404. The fact 
 that an injunction has been improvidently granted is no 
 excuse for its violation, and one who has willfully disobeyed 
 an injunction cannot attack it until he has purged himself 
 of his contempt. Koehler v. Farmers & Drovers' Bank, 25- 
 N. Y. St. Rep. 222; 17 Civ. Pro. Eep. 307; People v. Dwyer, 
 90 N. Y. 402; Park v. Park, -80 id. 156. A knowledge of 
 the issuing and of the provisions of an injunction is equiva- 
 lent to a personal service of the injunction order. Gage w. 
 'Denbow, 49 Hun, 43. That a party was ill and unable to 
 leave the house on the return day of the order, is a sufifi- 
 cient excuse for non-attendance. Walters v. Kenyon, 4r 
 N. Y. St. Rep. 398. 
 
 IV. When Punishment may be Summary. 
 
 Where the offense is committed in the immediate view 
 and presence of the judge or referee, it may be punished 
 summarily. 
 
 For that purpose, an order must be made by the court, 
 judge or referee, stating the facts which constitute the 
 offense, and bring the case within the provisions of the 
 Code, and plainly and specifically prescribing the punish - 
 merit to be inflicted therefor. Code, § 2267. Where the 
 offense is committed in the presence of the -court, the facts 
 embodied in the order of the judge must be taken as true, 
 but where committed out of court, the right of review is a 
 matter of right. Matter of Eldridge, 82 N, Y. 161. An 
 order made by the court is a sufficient commitment where 
 
144 Supplementary Proceedings. 
 
 the contempt has been committed in the presence of the 
 judge or court. Matter of Percy, 2 Daly, 530. 
 
 10. When warrant to commit may issue without notice. 
 — When the offense consists of a neglect or refusal to 
 obey an order, requiring the payment of costs or of a 
 specified sum of money, and the court is satisfied, by proof, 
 by affidavit that a personal demand thereof has been made, 
 land the payment thereof has been neglected or refused, it 
 may issue, without notice, a warrant to commit the offender 
 to prison until the costs or other sum of money, and the 
 costs and expenses of the proceeding are paid, or until he is 
 discharged according to law. Code, § 2268. No proof that 
 the party has money wherewith to pay is necessary. Peo- 
 ple V. Cowles, 4 Keyes, 38; In re Kelly, 62 N. Y. 198. But 
 unless the commitment states the amount to be paid it is 
 fatally defective. People v. Grant, 20 N. Y. St. Eep. 48. 
 The affidavit must show that a personal demand was made 
 by a person authorized to make it. Fisher v. Eaab, 81 N. 
 Y. 235. It must further show that a certified copy of the 
 order has been served upon the judgment-debtor. Eyck- 
 man v. Eyckman, 33 Hun, 193. But a personal service of 
 a copy of an order is not a " personal demand of payment." 
 Union Trust Co. v. Gage, 6 Dem. 358. 
 
 It must further appear that the order has been duly filed 
 in the county clerk's office. Bareither v. Broschi, 19 Civ. 
 Pro. Eep. 445. Section 2268 of the Code is qualified by sub- 
 division 3 of section 14, so that a party can only be punished, 
 by way of fine or imprisonment, for non-payment of a sum 
 of money where an execution cannot be issued for the col- 
 lection of that sum. Matter of Hess, 16 N. Y. St. Eep. 255; 
 48 Hun, 586. 
 
 V. Ordeb to Show Cause, or Warrant to Attach 
 
 Offender. 
 These proceedings cannot be commenced by notice of mo- 
 tion. Wilson V. Craig, 12 Week. Dig. 73. But the court 
 or judge, authorized to punish for the offense, may, in its 
 or his discretion, where the case is one of those specified in 
 either sections 2267 or 2268 of the Code, and, in every other 
 case must, upon being satisfied, by affidavit, of the com- 
 mission of the offense, either (1) make an order requiring 
 
Warrant to Attach Offen'der. 145 
 
 the accused to show cause before it, or him, at a time and 
 place therein stated, why the accused should not be pun- 
 ished for the alleged offense j or (2) issue a warrant of at- 
 tachment, directed to the sheriff of a particular county, or 
 generally, to the sheriff of any county where the accused 
 may be found, commanding him to arrest the accused, and 
 bring him before the court or judge, either forthwith, or at 
 a time and place therein specified, to answer for the alleged 
 offense. Code, § 2269. 
 
 Parties must elect their course of procedure, and be gov- 
 erned by such election in all subsequent stages of the pro- 
 ceedings. People V. Grant, 20 N. Y. St. Eep. 48; 50 Hun, 234. 
 
 In either mode of proceeding the part}' complaining of 
 the alleged misconduct must lay a foundation for the pro- 
 ceeding, by affidavit, or other evidence, that the accused is 
 in contempt. Albany .City Bank v. Schermerhorn, 9 Paige, 
 372. 
 
 The certificate of a referee in supplementary proceedings 
 is not legal evidence of a default by the judgment-debtor to 
 appear. An affidavit proving the facts charged is neces- 
 sary. Einelander v. Dunham, 2 Civ. Pro. Eep. 32. The 
 affidavit must also show the service of the order and the 
 failure of the party to obey it. Ward v. Aronson, 10 
 Bosw. 589. 
 
 The order to show cause must give the party a reasonable 
 time in which to appear. Powers v. Village of Athens, 19 
 Hun, 165. And before an attachment can issue against a 
 party, what he can properly be required to do must be dis- 
 tinctly settled and ascertained. Sutton v. Davis, 6 Hun, 
 237. And an order should contain an adjudication that 
 there is probable cause for its issue. M'Credie v. Senior, 4 
 Paige, 378. 
 
 As to how papers should be entitled in attachment and 
 other proceedings, see Pitt v. Davidson, 37 N. Y. 235; Mat- 
 ter of Bronson, 12 John. 460. 
 
 Where the order to show cause or warrant is returnable 
 before the court, it may be made or issued by any judge 
 authorized to grant an order without notice, in an action 
 pending in the court, and it must be made returnable at a 
 terra of the court at which a contested motion may be heard. 
 Code,§ 2271. 
 19 
 
l-i6 Supplementary Pkoceedings. 
 
 VI. When Contempt was Committed Before a Eefeeee. 
 It seems that section 22T2 of the Code only applies to a 
 
 refei'ee upon the trial of an issue referred to him, and that 
 an order to punish a witness or party for a contempt before 
 a referee in supplementary proceedings must be made by 
 the judge, or by the court out of which the execution was 
 issued. Code, § 2457. 
 
 VII. Effect op Okder to show Cause and of Warrant. 
 An order to show cause may be made, either before or 
 
 after the final order in the special proceedings. It is 
 equivalent to a notice of motion, and the subsequent pro- 
 ceedings thereupon are taken in the proceeding, as upon a 
 motion made therein. A warrant of attachment is a man- 
 date, whereby an original special proceeding is instituted, 
 against the accused, in behalf of the people, upon the rela- 
 tion of the complainant. Code, § 2273. Fisher v. Eaab,' 
 81 N. Y. 235. 
 
 VIII. Warrant, How Executed. 
 
 A copy of the warrant, and of the affidavits upon which 
 it is issued, must be served upon the accused, when he is 
 arrested by virtue thereof. Code, § 2274. This section re- 
 fers to the aflBdavits on which a warrant of attachtaent 
 may be issued to try the delinquent before the court to 
 answer for his alleged contempt. By section 2268 of the 
 Code of Civil Procedure the court can dispense with this 
 proceeding. People v. Grant, 11 N. Y. St. Kep. 558 ; 46 
 Hun, 677. The service of the papers may be waived. Hart 
 V. Johnson, 43 id. 505. 
 
 When a warrant or attachment is issued, the court or 
 judge may, in its or his discretion, by an indorsement 
 thereupon, fix a sum in which the accused may give an un- 
 dertaking for his appearance to answer. Code, § 2277. 
 
 If an indorsement is not made upon the warrant, or if 
 such indorsement is made and an undertaking is not given, 
 the sheriff, after making the arrest, must keep the accused 
 in his custody until the further direction of the court, or 
 judge. The sheriff need not, in any case, cohfine the ac- 
 cused in prison, or otherwise restrain him of his liberty. 
 Code, § 2276. 
 
Undertaking to Pkoouke Discharge. 147 
 
 IX. Undertaking to Procure Discharge. 
 Where an indorsement is made on the warrant fixing a 
 sum in which the accused may give an undertaking, he 
 must be discharged from arrest, upon his executing and 
 delivering to the sheriff, at any time before the return day 
 of the warrant, an undertaking to the people, in the sum 
 specified in the indorsement, with two sufficient sureties, to 
 the affect that he will appear, at the time when and the 
 place where the warrant is returnable, and then and there 
 abide the direction of the court or judge. Code, § 2277. 
 The sheriff or other officer must file.the undertaking, if 
 any, taken by him, with the return of the warrant or writ 
 of habeas corpus. Id. 2279. 
 
 X. Habeas Corpus May Issue, When. 
 
 If the accused is in the custody of a sheriff, or other 
 officer, by virtue of an execution against his person, or by 
 virtue of a mandate for any other contempt or misconduct, 
 or a commitment on a criminal charge, a warrant of at- 
 tachment cannot be issued. In that case, the court, upon 
 proof of the facts, must issue a writ of habeas corpus, 
 directed to the officer requiring him to bring the accused 
 before it, to answer for the offense charged. The officer to 
 whom the writ is directed, or upon whom it is served, must, 
 except in a case where the production of the accused upon 
 a warrant of attachment would be dispensed with, bring 
 him before the court, and detain him at the place where 
 the court is sitting, until the farther order of the court. 
 Code, § 2278. This section does not provide that the pro- 
 ceeding by an order to show cause cannot be taken, and 
 under said provision does not render the court powerless to 
 punish for contempt, save by proceedings instituted by 
 habeas corpus. People v. Grant, 20 N. Y. St. Eep. 48 ; 50 
 Hun, 243 ; 13 Civ Pro. Kep. 305. 
 
 XI. Interrogatories and Proof. 
 
 II. In general. — When the accused is produced, by virtue 
 of a warrant or writ of habeas corpus, or appears upon the 
 return of a warrant, the court, judge or referee must,- un- 
 less he admits the offense charged, cause interrogatories to 
 
148 Supplementary Proceedings., 
 
 be filed, specifying the facts and circumstances of the of- 
 fense charged against him. 
 
 The accused must make written answers thereto, under 
 oath, within such reasonable time as the court, judge or 
 referee allows therefor, and either party may produce affi- 
 davits or other proofs contradicting or corroborating any 
 answer. Upon the original affidavits, the answer and sub- 
 sequent proofs, the court, judge or referee must determine 
 whether the accused has committed the offense charged. 
 Code, § 2280 ; People v. Cartwright, 11 Hun, 362; Lathrop 
 V. Clapp, 40 N. Y. 328 ; Pitt v. Davison, 37 id. 235. 
 
 The interrogatories should be confined to the facts of the 
 service of the order or process, and to the acts of neglect 
 or commission constituting the violation thereof. Brown 
 V. Anderson, 1 Barb. 227. 
 
 It is only necessary to file interrogatories where the pro- 
 ceedings are commenced by warrant or habeas corpus. 
 Mayor v. N. Y. & S. I. Ferry Co., 64 N. Y. 622. Where 
 the proceedings are commenced by an order to show cause, 
 an order of reference may be made without filing inter- 
 rogatories. People V. Alexander, 3 Hun, 211 ; Eoosevelt 
 V. Edson, 7 Civ. Pro. Eep. 5. 
 
 12. Practice as to proof. — On a motion to commit for con- 
 tempt for disobedience, the only issues are as to regularity 
 of the proceedings under the order and the excuse for dis- 
 obedience. Hilton V. Patterson, 18 Abb. 245. And the plea 
 that the disobedience of the order of the court was harm- 
 less and the act done ineffectual and a nulhty, is not an 
 answer to a proceeding to punish the party who disobeyed 
 the order for contempt. People v. Dwyer, 90 N. Y. 402. 
 No inquiry into the merits of the order wiU be allowed. 
 Koehler v. Farmers and Drovers' Bank, 14 Civ. Pro. Eep. 
 71. The usual practice is to issue a bailable attachment, 
 file and serve interrogatories, and order that the accused be 
 required to make written answers, and that it be referred to 
 a referee to examine them on oath and to take such further 
 proofs as either party may produce, and to ascertain what 
 injury, if any, plaintiff sustained in consequence thereof, 
 with his opinion thereon, and that after the coming in of 
 the refereefe report, either party may move at special term 
 for the final order in the matter. Atlantic & Pac. Tel. Co. 
 
Interrogatories and Proof. 149 
 
 V. B. & 0". E. E. Co., 46 N. Y. Supr. 377. In order to con- 
 stitute a contempt, the referee or court must find and ad- 
 judge that it was such as to defeat, impair, impede or 
 prejudice a right or remedy of the judgment-creditor. 
 Fisher v. Eaab, 81 N. Y. 235 ; Sandford v. Sandford, 40 
 Hun, 540 ; 2 N. Y. St. Eep. 133. But the refusal of a party 
 examined under section 2441 of the Code of Civil Pro- 
 cedure, to answer pertinent questions as to whether he had 
 property of the judgment-debtor, does tend to defeat, im- 
 pair, impede and prejudice the rights and remedies of the 
 judgment-creditor and authorizes the court to adjudge that 
 they were in fact so defeated and impaired. Hart v. John- 
 son, 7 N. Y. St. Eep. 133 ; 43 Hun, 505. It seems that the 
 judge has no right to take oral testimony on a motion to 
 punish for contempt when there is a proper objection 
 thereto, made in time. King v. Barnes, 51 id. 550 ; 22 N. Y. 
 St. Eep. 54. The proper practice is to appoint a referee 
 under section 2443 of the Code, to take the testimony and 
 report the evidence or the facts. But before the judgment- 
 debtor or third-party is adjudged guilty of contempt he 
 should be furnished with a copy of interrogatories and suf- 
 ficient time given to prepare his answer. DeWittf. Dennis, 
 30 How. Pr. 131. If the judgment-debtor or third-person 
 fails to appear, the judge cannot adjudge him guilty of 
 contempt until the moving party makes a case for grant- 
 ing the order on the merits. Tinkey v. Langdon, 60 id. 
 180. 
 
 He must show personal service of the order, and the non-' 
 compliance with, of which is sought to be punished. Mat- 
 ter of Smith, 15 N. Y. St. Eep. 733 ; Sandford v. Sandford, 
 2 id. 133. 
 
 Thus, where a judgment-debtor upon the return day ap- 
 plies to have an order dismissed which directed him to ap- 
 pear and be examined, and the motion is denied, and an 
 order is made directing him to appear at a subsequent day, 
 the second order must be served personally in order to 
 bring him into contempt for disobeying it (McCauley v. 
 Palmer, id 600 ; 40 Hun, 38 ; 9 Civ. Pro. Eep. 390), and it 
 seems that if the second order is made by the court, instead 
 of a judge, the order is a nullity. 
 
 The certificate of a referee to the default of the judg- 
 
150 Supplementary Proceedings. 
 
 ment-debtor or third-person in appearing is not legal evi- 
 dence of it. 
 
 An affidavit proving the fact is necessary. Einelahder v. 
 Dunham, 2 Civ. Pro. Rep. 32. And where the alleged mis- 
 conduct is denied, the affidavits and papers upon which the 
 proceedings were instituted are not evidence upon t})e 
 issues, but simply perform the office of pleadings or state- 
 ments of the charges relied upon. Affidavits are sufficient 
 to originate the proceedings, but upon the trial of the issues 
 the common law rules of evidence must be observed. Mat- 
 ter of Eldridge, 82 N. Y. 161 ; Fall Brook Coal Co. v. Heck- 
 . scher, 6 N. Y. St. Rep'. 676. 
 
 The order should clearly embrace the act complained of! 
 Porous Plaster Co. v. Seabury, 16 N. Y. St. Rep. 35. 
 
 XII. Order Adjudging Party Guilty, and Commitment. 
 
 13. In general. — If it is determined that the accused has 
 committed the offense charged and that it was calculated 
 to, or actually did defeat, impair, impede, or prejudice the 
 rights or remedies of the parties to a special proceeding, 
 brought before the judge or referee, the court or judge 
 must make a final order accordingly, and direct that he be 
 punished by fine or imprisonment, or both, as the nature of 
 the case requires. A warrant of committment must issue 
 accordingly. Code, § 2281. 
 
 i4. Form of order.— Unless the order contains the ad- 
 judication and determination prescribed by sections 2266 
 and 2281 of the Code, it is voidable if not void. Boon v. 
 McGucken, 50 N. Y. St. Rep. 901. 
 
 There must .be an express adjudication that the miscon- 
 duct complained of did damage or prejudice the right or 
 remedy of the party affected by it. Dinsmore ». Commer- 
 cial Trav. Asso., 38 id. 624. But in a commitment for con- 
 tempt by a court of general jurisdiction, all the prelimin- 
 aries to warrant the imprisonment need not be set out. 
 Where the commitment recites the jurisdictional facts re- 
 quired by the Code, its validity is not affected by the failure 
 to recite the service of the order, requiring the performance 
 of the acts, for failure to do which the party was adjudged 
 in contempt, and it cannot be held invalid on that account 
 in habeas corpus proceedings. Matter of MuUer 51 id. 27. 
 
Order Adjudging Party Guilty and Commitment. 151 
 
 It need not recite that evidence necessary to give jurisdic- 
 tion has been presented. People v. Court of 0. & T., 27 
 How. Pr. 14. But it must designate the particular miscon- 
 duct of vphich defendant is convicted. DeWitt v. Dennis, 
 30 How. Pr. 131. Thus, where a prisoner was held on a 
 commitment containing several charges, one being that he 
 was guilty of contemptous behavior, it was held, that as 
 no act or behavior was specified it was only a conclusion, 
 and was bad. Matter of Clark, 2 Law Bull. 22. 
 
 The order should recite the substance of the alleged mis- 
 conduct, the adjudication of the court, that the misconduct 
 was calculated to and did impair, defeat and prejudice the 
 rights or remedies of the prosecutor, and direct the payment 
 of a fine, stating its several items, if any. The costs should 
 be taxed and inserted in the order as part of the fine im- 
 imposed. Where anything remains to be done to purge 
 the contempt, the order should specify what is to be done, 
 and the manner. But see Estate of McMaster, 14 Civ. Pro. 
 Eep. 195; Matter of Bernhard, 16 N. Y. St. Eep. 240. But 
 in the Matter of Sims, 32 N. Y. St. Eep. 1004, it was held 
 that an allegation of the non-payment of alimony is suffi- 
 cient. 
 
 The contrary was held in Kuhn v. Kuhn, 4 N. Y. Supp. 
 952. 
 
 Where the warrant of commitment of a witness is for 
 refusing to answer a question, it must show that the ques- 
 tion was pertinent or legal and proper, in a proceeding 
 pending, and the question which the witness has refused to 
 answer should be set out in haec verba in the commitment. 
 People V. Davidson, 35 Hun, 471; Matter of Qiiin, 2 
 Law Bull. 38; Duff us v. Brown, 12 N. Y. St. Eep. 454; 46 
 Hun, 320. Thisrule seems to be limited to justice's courts, 
 and in certain proceedings before boards, arbitrators, com- 
 mittees and referees. In re Jones, 6 Civ. Pro. Eep. 250; 
 People V. Fancher, 2 Hun, 226, it is held that while the 
 order of commitment must be strictly construed and is not 
 to b.e extended by intendmentis or implications, the war- 
 rant must follow the terms of the order. People v. Bergen, 
 6 Hun, 267; 53 N. Y. 404. And such order is radically de- 
 fective if it fails to adjudge that the acts of the accused, 
 defeated, impaired, impeded or prejudiced the party apply- 
 
152 Supplementary Pkocebdings. 
 
 ing therefor, in his rights. Mendel v. Mendel, 4 N. Y. St. 
 Eep 556; Oleary v. Christie, id. 117; 41 Hun, 4-66. And 
 where the order for a precept fails to adjudicate in terms 
 that the accused had committed the offense charged, and 
 that it was calculated, and did, defeat, impair, etc., the 
 rights or remedies of plaintiff, cannot be sustained. Mahon 
 V. Mahon, 5 Civ. Pro. Eep. 58. Yet where the commit- 
 ment, the order, and the affidavit upon which it was 
 founded, state in detail the proceedings which it is claimed' 
 the disobedience affected, this is a full compliance with the 
 requirements of the rule in respect to the contents of the 
 commitment. Fisher v. Langbein, 103 N. Y. 84. The im- 
 position of a fine larger than $250, and costs as a punish- 
 ment for contempt under section 14, in the absence of proof 
 of the extent of the loss sustained, is without authority. 
 Moffat V. Herman, 116 N. Y. 131; 26 N. Y. St. Eep. 328; 
 17 Civ. Pro. Eep. 357. 
 
 XIII. Pkactice in Eeview of Order. 
 
 As a general rule the propriety of a commitment for con- 
 tempt is not examinable in any other court than the one by 
 which it was awarded. But this is of course subject to the 
 qualification that the conduct charged as constituting the 
 contempt, nmst be such that some degree of delinquency or 
 misbehavior can be predicated of it; for if the act be plainly 
 indifferent or meritorious, or if it be only the assertion of 
 the undoubted right of the party, it will not become a 
 criminal contempt by being adjudged to be so. 
 
 The question whether the alleged offender really com- 
 mitted the act charged, is conclusively determined by the 
 order. Matter of Hackley, 24 N. Y. 74; 24 How. Pr. 369. 
 And where a final order has been made, convicting a person, 
 of contempt, and pronouncing judgment of fine and im- 
 prisonment, a certiorari may be issued to review them. 
 People V. Donohue, 22 Hun, 470; 59 How. Pr. 417. The 
 proceedings may be entitled as in a special proceeding. 
 People V. Petten, 21 N. Y. St. Eep. 894. The question as 
 to whether orders in contempt proceedings were properly 
 served, whether an injunction was lawfully granted, and as 
 to the amount of the fine, must be reviewed by appeal from 
 the order adjudging the party in contempt. People v. Grant, 
 
Punishments in Contempt Proceedings. 153- 
 
 20 id. 48; 13 Civ. Pro. Eep 306; Watrous v. Kearney, 11 
 Hun, 584. But in case of irregularity in the proceedings 
 the remedy is by motion. Davidson's case, 13 Abb. 129. 
 And it seems that proceedings for contempt in supplementary 
 proceedings do not come within the terms of section 2133 of 
 the Code of Civil Procedure. Moschell v. Boor, 50 N. Y. 
 St. Rep. 238. The court has power to refuse to hear a party 
 while he is in contempt for disobeying its order; audit may 
 strike out his answer, etc. Walker v. Walker, 82 N. Y. 
 260; 20 Hun, 400. This may be done when a party refuses 
 to produce a paper or document which he has in his posses- 
 sion. Shelp V. Morrison, 13 id. 110. Although a party in 
 contempt, and until he is purged of it, will not be permitted 
 to ask for the favor of the court, nor take any aggressive 
 proceedings against his adversary, he may take measures to 
 protect himself, and make any motion designed to show 
 that the order adjudging him in contempt is eri'oneous. 
 Spratt V. Huntington, 48 How. Pr. 97; Matter of Stuart, 24 
 Hun, 246; Brinkley v. Brinkley, 47 N. Y. 40. 
 
 XIV. Punishments in Contempt Proceedings. 
 
 15. On "habeas corpus.— Where the accused is brought up 
 by virtue of a writ of habeas corpus, he must, after the 
 final order is made, be remanded to the custody of the 
 sheriff, or other officer, to whom the writ is directed. If 
 the final order directs that he be punished by imprisonment 
 or committed until the payment of a sum of money, he 
 must be so imprisoned -or committed, upon his discharge 
 from custody, under the^ mandate, by virtue of which he is 
 held by the sheriff or other officer. Code, § 2282. 
 
 16. Upon order to show cause.— Upon the return of an 
 order to show cause, the questions which arise must be de- 
 termined, as upon any other motion, and, if the determina- 
 tion is to the effect specified in section 2281 of the Code of 
 Civil Procedure, the order must bg to the same effect as the 
 final order therein prescribed. Upon a certified copy of the 
 order so made, the offender may be committed without fur- 
 ther process. Code, § 2283. 
 
 17 Amount of fine. — If an actual loss or injury has been 
 produced to a party to special proceedings, by reason of the 
 misconduct proved against the offender, and the case is not 
 20 
 
154 Supplementary Ppoceedings. 
 
 one where it is specially prescribed by law, that an action 
 may be maintained to recover damages for the loss or in- 
 jury, a fine sufficient to indemnify the aggrieved party 
 must be imposed upon the offender and collected and paid 
 over to the aggrieved party under the direction of the court. 
 Where it is not shown that such an actual loss or injury 
 lias been produced, a fine must be imposed not exceeding 
 the amount of the complainant's costs and expenses, and 
 two hundred and fifty dollars in addition thereto, and must 
 be collected and paid in like manner. Code, § 2284. 
 
 The court or judge may include in the amount of fine, 
 counsel fees. People v. E & St. Louis E. Co., 76 N. Y. 
 294; 14 Hun, 3T1; Van Valkenburg v. Doohttle, 4 Abb. N. 
 
 €. n. 
 
 But such counsel fees are not allowed in supplementary 
 ■proceedings. Id. Costs on attachment are allowed as in 
 the original action, not as in special proceedings. Seeley v. 
 ^lack, 35 How. Pr. 359. A fine equal in amount to moneys 
 withdrawn from a bank account in violation of the order 
 may be imposed. People v. Kingsland, 3 Keyes, 325. And 
 the court may impose a fine for disobedience of an order 
 restraining a judgment-debtor from disposing of his prop- 
 erty, equal to the amount of the judgment, or to the value 
 ■of the property so disposed of. Lippert v. Olejniezak, 19 
 N. Y. St. Eep. 463; Feeley v. Glennen, 2 Law Bull. 19. 
 For failure to appear, the fine should be limited to such a 
 sum as will reimburse the creditor for his costs and ex- 
 penses. Eeynolds v. Gilchrest, 9 Hun, 203. If actual loss 
 or injury is produced, the amount thereof must be based 
 upon legal proof of the damage actually sustained. Ludeke 
 V. Coiirsen, 52 N. Y. St. Eep. 516. But a judge or court 
 may impose a fine for the disobedience of a subpoena, 
 though no actual loss or injury to the party subpoenaing 
 the witness has been occasioned. People v. Brown, 12 id. 
 454; 46 Hun, 320. So in any case when the contempt is a 
 criminal one. Sfcubbs v. Eipley, 39 id. 626. The including 
 of improper items of costs in the fine does not render the 
 commitment void; it must be reviewed on motion or on 
 appeal, as the case requires. People v. Jacobs, 66 N. Y. 8. 
 
 In many cases the fine should not be greater than ten 
 -dollars, motion fees and disbursments. King v. Flynn, 37 
 
Punishments in Contempt Proceedings. 155 
 
 Hun, 329, quaere as to what the law makers meant by- 
 making it mandatory upon the court to impose a fine of 
 two hundred and fifty dollars in addition to the costs and 
 •expenses. As in Meyers v. Drey spring, 52 N. Y. St. Rep. 
 520, the court held that the fine should not exceed sixty 
 ■dollars for the violation of an injunction in parting with 
 sixty dollars by the judgment-debtor. Where the court 
 has power in punishing for contempt to impose as a fine an 
 indemnity for legal expenses incurred in addition to those 
 properly taxable, the amount of such indemnity must be 
 ascertained by evidence, to which is to be applied the same 
 rules of law as upon the trial of an action brought for an 
 injury. The amount of such is in no sense in the discre- 
 tion of the court, but the judgment of the court must be 
 founded upon legal proof accordingly, (Fenton v. Dempsey, 
 15 Civ. Pro. Rep. 93; 22 Abb. N. C. 114), and in proceed- 
 ings for contempt in supplementary proceedings to sustain 
 the imposition of a fine for loss or injury caused thereby, 
 the existence of the loss must first be proved by legal evi- 
 dence. Fall Brook Coal Co. v. Hecksher, 4 N. Y. St. Rep. 
 657; 42 Hun, 534. And in all cases the amount of the loss 
 and injury must be established by the same proof as in an 
 action at law to recover the damages sustained; and the 
 cost and expenses must be ascertained by the rate of com- 
 pensation fixed by the statute for the services performed. 
 Dejonge v. Brenneman, 23 Hun, 332; Ludlow v. Knox, 7 
 Abb. N. S. 411. So the court has no power to fine arbi- 
 trarily, or to take the opinion of the injured party as a 
 standard, but the adjudication as to the amount must rest 
 on the facts proved. Simmonds v. Simmonds, 6 Week. 
 Dig. 263. 
 
 But it is not necessary that the order imposing the fine 
 should in form adjudge that actual loss or injury has been 
 sustained to the amount of the fine, it is sufficient if it 
 appears that such loss has been suffered, nor is it essential 
 to show that the loss or injury is irremediable and hopeless. 
 Clark V. Bininger, 75 N. Y. 344; Rugg v. Spencer, 59 Barb. 
 383. 
 
 If the disobedience is willful, although no actual loss 
 requiring indemnity is shown, it is criminal, and may be 
 punished by a fine not exceeding two hundred and fifty 
 
156 Supplementary Proceedings. 
 
 dollars, in addition to any fine as indemnity. People v. 
 Crompton, 9 N. Y. 263. 
 
 But where the fine is arbitrarily imposed without regard 
 to the legal loss or indemnity required, and above two 
 hundred and fifty dollars and costs, and the accused is im- 
 prisoned under an order thereon, holding him until the fine 
 is paid, habeas corpus will not release him. Gallagher v. 
 O'Neil, 21 N. Y. St. Eep. 161; Moffat v. Herman, 116 
 N. Y. 131; 26 N. Y. St. Eep. 328. 
 
 i8. Length of imprisonment. — Where the misconduct 
 proved consists of omission to perform an act or duty 
 which it is yet in the power of the offender to perform, 
 he shall be imprisoned only until he has performed it and 
 paid the fine imposed. In such a case the order and the 
 warrant of commitment, if one is issued, must specify the 
 act or duty to be performed and the sum to be paid. In 
 every other case, where special provision is not otherwise 
 made by law, the offender may be imprisoned for a reason- 
 able time, not exceeding six months, and until the fine, if 
 any, is paid, and the order and the warrant of commit- 
 ment, if any, must specify the amount of the fine and the 
 duration of the imprisonment. Code, § 2285. A provision 
 in an order adjudging a debtor in contempt and requiring 
 him to obtain a reassignment of certain rights transferred 
 prior to the judgment is unauthorized; such transfer can 
 only be attacked by a creditor's bill. Meyers v. Drey- 
 spring, 52 N. Y. St. Eep. 520. So a judge who makes an 
 order requiring a judgment-debtor, who admits that he has 
 in his possession money and property to an amount ex- 
 ceeding the judgment, to pay the judgment by a day fixed, 
 cannot in the same order prescribe in advance the punish- 
 ment to be inflicted if he fails to obey the order. He can 
 only be punished upon conviction for contempt upon the 
 return of an attachment or an order to show cause. Tinker 
 V. Crook, 22 Hun, 579. Where the contempt consists of 
 an affirmative act of resistance to the process of the court, 
 an active effort to defeat its orders and make its judgment 
 nugatory, "an actual' interference " with an action or pro- 
 ceeding in the court, it may be punished by imprisonment 
 for six months. King v. Barnes, 113 N. Y. 476; 23 N. Y. 
 St. Eep. 263. Where the misconduct proved consists of 
 
Punishments in Contempt Proceedings. 157 
 
 an ommission to perform an act or duty which it is in the 
 power of the offender to perform, the commitment need 
 not specify the duration of the imprisonment, but only the 
 act or duty to be performed and the sum to be paid. 
 Anon. 18 Abb. N. C. 216. Where the offender complies 
 with the order after he is adjudged in contempt the court 
 has no power to imprison him, but may impose a fine of. 
 two hundred and fifty dollars. Fenton v. Dempsey, 26 
 N. Y. St. Kep. 243; 21 Abb. N. C. 291; 17 Civ. Pro. Eep. 
 388. The commitment of a witness for refusal to answer 
 questions must limit the confinement to the time when the 
 witness is willing to answer the questions that have been 
 actually propounded to him, and for a refusal to answer 
 which he has been convicted of contempt. People v. 
 Davidson, 35 Hun, 471. 
 
 19. Jail Liberties. — A party committed for the non-pay- 
 ment of a fine imposed upon him for the breach of an 
 injunction or other contempt must be confined within the 
 wall of the prison. In re Clark, 20 Hun, 551; Peoples. 
 Bennett, 4 Paige, 282; People v. Cowles, 4 Keyes, 38; Egan 
 V. Lynch, 3 Civ. Pro. Rep. 236; People v. Fancher, 4 S. C. 
 (T. & C.) 467. 
 
 20. Release of offender. — Where an offender imprisoned 
 in contempt proceedings is unable to endure the imprison- 
 ment, or pay the sum, or perform the act or duty required to 
 be paid or performed in order to entitle him to be released, 
 the court or judge may, in its or his discretion, make an 
 order directing him to be discharged from the imprison- 
 ment. Code, § 2286. 
 
 A person committed to jail for contempt in these pro- 
 ceedings cannot be admitted to bail pendirig an appeal from 
 an order denying a motion to open his default and dis- 
 charge him from custody. Valentine v. Mandell, 9 Civ. 
 Pro. Rep*^ 155. The application for a discharge must be 
 made on notice. Strobridge v. Strobridge, 21 Hun, 288. 
 It seems that the power to discharge is given to any court 
 having jurisdiction of contempt proceedings, notwithstand- 
 ing section 2286 of the Code prescribes that in supple- 
 mentary proceedings, where the commitment was made 
 as prescribed in section 2457, the court out of which the 
 execution was issued may make the order. Moschell v. 
 
168 Supplementary Pkoceedings. 
 
 Boor, 50 N. Y. St. Eep. 238; People ex rel. Grant v, 
 Warner, 20 id. 573; Mitchel v. Hall, 3 Law Bull. 23. Ina- 
 bility, voluntarily and intentionally created, does not entitle 
 the applicant to the favorable consideration of the court. 
 Ryer v. Eyer, 19 Week. Dig. 358; 67 How. Pr. 369. 
 
 21. Undertaking as indemnity. — Where a person 
 arrested by virtue of a warrant of attachment has given an 
 undertaking for his appearance and fails to appear on the 
 return day of the warrant, the court may either issue 
 another warrant or make an order directing the under- 
 taking to be prosecuted, or both. Code, § 2288. 
 
 The order directing the undertaking to be prosecuted may 
 direct the prosecution thereof by, and in the name of, any 
 party aggrieved by the misconduct of the accused. In such 
 a case the plaintiff may recover damages to the extent of 
 the loss or injury sustained by him by reason of the mis- 
 conduct, together with the costs and expenses of prosecut- 
 ing the special proceeding in which the warrant was issued, 
 not exceeding the sum specified in the undertaking. Code, 
 §§ 2288, 2289. 
 
PROPERTy Exempted. 
 
 15* 
 
 CHAPTER XX. 
 
 PROPERTY EXEMPTED BY SECTIONS 1879 AND 2463 OF THE 
 
 CODE. 
 
 I. In General. 
 
 II. Two Classes of Exemptions 
 UNDER Code, §§ 1390-1391. 
 
 2. Rights of the debtor. 
 
 3. Householder — Definition of. 
 
 4. Having a family for which 
 
 he provides. 
 
 5. Proceeds of exempt property 
 
 — exempt when. 
 III. Meaning of wokd "Neces- 
 sary" IN SECTION 1391 OF 
 
 the Code. 
 
 IV. JirDGMENTFORPaRCHASE-MONET 
 
 OF Exempt Property. 
 
 6. In general, 
 
 7. For work performed in the 
 
 family as a domestic. 
 
 8. Partnership property. 
 
 V. Contract not to Claim Exemp- 
 tion — Effect of. 
 
 9. Prospective agreement. 
 
 10. Waiver of exemption. 
 
 11. Alimony — Exempt when.. 
 VI. Exemptions Must be Claimei> 
 
 — When. 
 
 12. Team. 
 
 VII. Identity of Property Ex- 
 empt — When. 
 VIII. Exemption of Life Insur" 
 ANCB Money. 
 IX. Exemptions, How affected 
 BY Fraud, 
 X. Military Pay, Rewards, Pen- 
 sions, ETC. 
 
 13. In general. 
 
 14. Property purchased with 
 
 pension money. 
 15 Pension money, after 
 
 death of pensioner. 
 16. Real estate. 
 XI. Illustrations-Exempt Prop- 
 erty. 
 
 I. Property Exempted by Sections 1879 and 2463 of the 
 
 Code. 
 
 It is provided by section 2463 of the Code of Civil Pro- 
 cedure, that the article on proceedings supplementary to 
 execution does not authorize the seizure of, or other inter- 
 ference with, any property which is expressly exempt by 
 law from levy and sale by virtue of an execution. 
 
 At common law, neither a judgment-debtor nor his 
 family had any way of exempting any portion of his prop- 
 erty from execution for his or their benefit, so that any 
 privileges that he may now have in that direction must be 
 sought for in the statutory law, and in this state the laws 
 which exempt from execution and judgment-debtor's per- 
 sonal property are to be found in the Code of Civil Pro- 
 cedure. Section 1390 of the Code provides that the follow- 
 ing' personal property, when owned by a householder, is 
 exempt from levy and sale by virtue of an execution ; and 
 
160 Supplementary Proceedings. 
 
 each movable article thereof continues to be so exempt, 
 whUe the family, or any of them, are removing from one 
 residence to another. 
 
 (1.) All spinning-wheels, weaving looms and stoves, put 
 or kept for use in a dwelling-house, and one sewing- 
 machine. (2.) Books not exceeding in value fifty doUars, 
 also family pictures and school books. (3.) Seat or pevv in ar 
 church. (4.) Ten sheep, with their fleeces, and the yarn or 
 cloth manufactured therefrom ; one cow ; two swine ; the 
 necessary food for those animals ; all necessary meat, fish, 
 flour, groceries and vegetables actually provided for family 
 use, and necessary fuel, oil and candles, for the use of the 
 family for sixty days. (5.) The tools and implements of a 
 mechanic not exceeding in value twenty-five dollars. (6.) 
 All wearing apparel, beds and household furniture. Lash- 
 away V. Tucker, 39 N. Y. St. Eep. 680. And section 1391 
 of the Code provides for an additional exemption of neces- 
 sary household furniture, working tools and team, pro- 
 fessional instruments, furniture and library, not exceeding 
 in value two hundred and fifty dollars, and necessary food 
 for the team for ninety days. The property mentioned in 
 the last-named section is not exempt where the execution 
 is issued upon a judgment, recovered wholly upon one or 
 more demands, either for work performed in the family, as 
 a domestic, or for the purchase-money of one or more 
 articles exempt as prescribed in either section 1390 or 1391 
 of the Code. 
 
 Section 1392 of the Code provides that where the judg- 
 ment debtor is a woman, she is entitled to the same ex- 
 emptions from levy and sale, by virtue of an execution, 
 subject to the same exceptions, as prescribed in sections 
 1390 and 1391 of the Code. It is not necessary that a 
 woman should be a householder to be entitled to such ex- 
 emptions. Fink V. Fraenkle, 39 N. Y. St. Rep. 195. The 
 earnings of a debtor for his personal services, rendered 
 within sixty days of the proceedings, are under certain cir- 
 cumstances exempt. Code, § 2463. 
 
 Thus, the harsh rule of the common law which stripped 
 judgment-debtors of everything except the clothes upon 
 their backs, has been mollified by statutory provisions, as 
 a protection for poor and destitute families, to mitigate 
 
Two Classes of Exemptions. 161 
 
 the consequences of men's thoughtlessness and improvi- 
 dence. 
 
 Tho word "wholly" has been added to section 1391 of 
 the Code after " judgment recovered " in order to render 
 final the ruling in Hickox v. Fay, 36 Barb. 9 ; and the 
 words " one or more articles exempt as prescribed in this 
 or the last section" having been substituted for the 
 enumeration of the articles, in order to settle, in the af- 
 firmative, the disputed question whether one article of 
 exempt property can be levied upon where the demand is 
 for the purchase-money of another article of exempt prop- 
 erty. Hickox V. Fay, 36 Barb. 9 ; Smith v. Slade, 57 id. 
 637 ; Snyder v. Davis, 1 Hun, 350 ; 3 S. C. (T. & C) 596 ; 
 47 How. Pr. 147. 
 
 II. Two Classes op Exemptions Under Code, §§ 1390-1391. 
 2. Rights of the debtor under. — There are two classes of 
 exemptions provided for by the Code. One relates to cer- 
 tain articles which are specifically enumerated and ab- 
 solutely exempted. Code, | 1390. The other is limited to 
 the sum ot two hundred and fifty dollars, and there may 
 be claimed under it property of the kind mentioned in 
 § 1391, to that amount, but to that amount only. The lat- 
 ter exemption is limited and indefinite, and where the 
 debtor has property of that character of greater value than 
 two hundred and fifty dollars, it is dependent upon his 
 election as to the particular property that may be retained 
 by him as exempt. If property consists of the articles men- 
 tioned in section 1 390 of the Code, it is absolutely exempt 
 if the owner is a householder, and the officer has no right 
 to levy upon it. Thus, no article exempted by this section 
 can be levied upon to satisfy any judgment whatever, not 
 even though it be a judgment recovered for the purchase- 
 price of the article itself. Cox v. Stafford, 14 How. Pr. 519. 
 If, however, the property is of the description mentioned 
 in section 1392 of the Code, the exemption is a qualified 
 one and the debtor must claim it and notify the officer of 
 his claim before he can properly maintain an action either 
 for its conversion or to recover its possession, especially 
 where there is other property to which such exemption 
 might apply. Eussell v. Dean, 30 Hun, 242 ; Turner v. 
 21 
 
162 Supplementary Proceedings. 
 
 Borthwick, 20 id. 119 ; Twinan v. Swart, i Lans. 263 ; Sea- 
 man V. Luce, 23 Barb. 240 ; Lockwood v. Younglove, 27 id. 
 505 ; Wilcox v. Howe, 36 N. Y. St. Rep. 303. 
 
 3. Householder, definition of. — The term householder as 
 used in the statute has a very well-defined meaning, and 
 imports the master or head of the family who reside to- 
 gether and constitute a household. 
 
 It has been held that a person living in a hired house and 
 keeping servants and boarders is a householder. Hutchin- 
 son V. Chamberlain, 11 N. Y. Leg. Obs. 248. But a man 
 having a house and no family is not a householder. Cham- 
 berlain v. Darrow, 46 Hun, 48. The word "householder" 
 does not simply signify a housekeeper, but imports the 
 master or head of the family as well. The fact that a.per- 
 son has temporarily given up housekeeping does not deprive 
 him of the benefits of the statutes. Griffin v. Sutherland, 
 14 Barb. 456. 
 
 4. Having a family for which he provides. — The exemp- 
 tions under § 1391 of the Code are given not only to the 
 householder, but one "having a family for which he pro- 
 vides." The terms of the statute referred to are in the 
 alternative, and a person who has a family for which he 
 provides, is as much within the provisions of the act, and 
 entitled to the benefits conferred by it, as if he were, strictly 
 speaking, a householder. Cantrell v. Conner, 51 How. 
 Pr. 45. 
 
 Although section 1390 of the Code does not in words 
 provide that the articles therein mentioned are exempt 
 when owned by a man having a family for which he 
 provides, unless he is a householder, the construction 
 placed on that section by the courts give him such exemp 
 tions. 
 
 5. Proceeds of exempt property, exempt when. — Section 
 1394 of the Code provides that a right of action to recover 
 damages, or damages awarded by a judgment, for taking 
 or injuring personal property, exempt by law from levy 
 and sale by virtue of an execution, ai-e expmpt for one 
 year after the collection thereof, from levy and sale by 
 virtue of an execution, and from seizure in any other 
 legal proceeding. And see Tillotson v. Wolcott, 48 N. Y. 
 188. 
 
Meaning op the "Word "Necessary." 168 
 
 III. Meaning of the Word " Necessary " in Section 1391 
 
 OF THE Code. 
 
 In Wolf V. Farley, 40 N. Y. St. Eep. 808, the court say, 
 that in Wilcox v. Hawley, 31 N. Y. 648, it was held that 
 the word " necessary," as used in the statute, applies only 
 to the household furniture, and qualifies the extent to 
 which that is exempt. But all that the court in that case 
 did say was : " The word necessary, as used in the statute, 
 applies to the household furniture, and qualifies the extent 
 of that furniture exempted. In Knapp v. O'Neill, 12 N. Y. 
 St. Eep. 349, the court say: "We think the trial judge 
 was correct in his instruction to the jury, that the bur- 
 den of proof was upon plaintiff, in respect to the facts 
 essential to carry the case within the provisions of the 
 statute." Although in that case Hardin, J., quotes the 
 words of Da vies, J., in Wilcox v. Hawley, that the word 
 "necessary," as used in the statutes, applies to the house- 
 hold furniture, and qualifies the extent of that furniture 
 exempted. 
 
 Where a debtor desires to claim his earnings for his per- 
 sonal services rendered within sixty days next preceediug 
 the levy of an attachment, the burden is on him to show 
 that those earnings are necessary for the use of a family, 
 wholly or partly supported by his labor. Code, § 2463 ; 
 Hancock v. Sears, 93 N. Y. 79. 
 
 IV. Judgment for Purchase-Money op Exempt Prop- 
 
 erty. 
 
 It is provided by section 1391 of the Code that the prop- 
 erty mentioned in said section is not exempt as against 
 an execution issued upon a judgment recovered wholly 
 upou one or more demands, either for work performed in 
 the family as a domestic, or for the purchase- money of one 
 or more articles exempt as prescribed in that or by section 
 1390. Thus, any article exempted by section 1391 may be 
 levied upon to satisfy the judgment recovered for the. pur- 
 chase-price of that article, or for the purchase-price of any 
 other article exempted either by that section or section 
 1390, but no article exempted by section 1390 can be levied 
 upon to satisfy any judgment whatever, not even though 
 
164 Supplementary Proceedings. 
 
 it be a judgment recovered for the purchase price of that 
 article itself. Cox v. Stafford, 14 How. Pr. 519. Thus, 
 all the articles mentioned in section 1391 are exempt 
 except for a debt contracted in the purchase of property 
 which was itself exempt from execution while in the 
 hands of the vendor before sale. Kneettle v. Newcomb, 
 22 N. Y. 253. 
 
 This clause was inserted for the further protection of 
 poor and destitute families, and to allow a man who sells 
 his last cow to collect the purchase-price of the purchaser 
 out of his property exempted by section 1391. Craft v. 
 Curtiss, 25 How. Pr. 163. 
 
 7. For work performed in the family as a domestic— 
 Property' exempted by section 1391 of the Code can be 
 taken upon an execution issued upon a judgment recovered 
 wholly upon one or more demands for work performed in 
 the family as a domestic. 
 
 8. Partnership property.— The provisions of the exemp- 
 tion act extend to property owned by the debtor as a 
 member of a partnership. Stewart v. Brown, 37 N. Y. 
 350. 
 
 V. Contract not to Claim Exemption. — Effect of. 
 
 9. Prospective agreement.— It seems that a person con- 
 tracting a debt cannot agree with the creditor that in case 
 of non-payment he shall be entitled to levy his execution 
 upon property exempt from levy by the general laws of 
 the state. Crawford v. Lockwood, 9 How Pr. 547. The 
 statutes which allow a debtor, being a householder and 
 having a family for which he provides, to retain, as against 
 the legal remedies of his creditors, certain articles of prime 
 necessity to a limited amount, are based upon views of 
 policy and humanity which would be frustrated if an 
 agreement entered into in connection with the principal 
 contract waiving such exemption could be sustained. A 
 few words contained in any note or obligation would 
 operate to change the law between those parties, and so 
 far disappoint the intentions of the legislature. If effect 
 shall be given to such contracts it is likely that they will 
 be generally insei'ted in obligations for small demands, and 
 in that way the policy of the law will be completely over- 
 
CONTKACT NOT TO ClAIM EXEMPTION, EFFECT OF. 165 
 
 thrown. Every honest man who contracts a debt expects 
 to pay it, and believes he will be able to do so without hav- 
 ing his property sold on execution. No one worthy to be 
 trusted would, therefore, be apt to object to a clause sub- 
 jecting all his property to levy on execution in case of non- 
 payment. It was against the consequences of this over- 
 confidence, and the readiness of men to make contracts, 
 which may deprive them and their families of articles 
 indispensible to their comfort that the legislature has 
 undertaken to interpose. When a man's last cow is taken 
 on an execution on a judgment rendered upon a contract 
 in which there is a clause waiving its exemption, it is no 
 sufficient answer to say that it was done pursuant to his 
 consent freely given when he contracted the debt. The law 
 was designed to protect him against his own improvidence 
 in giving such consent. The statutes contain many ex- 
 amples of legislation based upon the same motives. The 
 laws against usury, those of deeds given as security for 
 the payment of a debt, and those which allow a redemp- 
 tion after the sale of land on execution. In these cases the 
 law seeks to mitigate the. consequences of man's thought- 
 lessness and improvidence, and it does not allow its policy 
 to be evad6d by any language which may be inserted in the 
 contract. It is not always equally careful to shield persons 
 from those acts which, instead of being promissory in their 
 character and prospective in their operation, take effect 
 immediately. One may turn out his last cow on execu- 
 tion, or he may release an equity of redemption, and he 
 will be bound by the act. And while the statutes stands 
 between an exempt homestead and- a mortgage upon the 
 same, given by the owner of the land subsequent to its 
 becoming exempt, except such mortgage is given for the 
 purchase-money of the property, there is no such statutory 
 protection even for the chattels exempt under section 1390 
 of the Code of Civil Procedure, and there is no decided 
 cases, so far as appears, as to whether such a mortgage, of 
 exempt chattels would be void as against public policy. It 
 is said in Kneettle v. Newcomb, 22 N. Y. 251, that "in 
 thus discriminating the law takes notice of the readiness 
 with which sanguine and incautious men will make 
 improvident contracts which look to the future for their 
 
166 Supplementary Proceedings. 
 
 consummation, when, if the result were to be presently 
 realized, they would not enter into them at all. If, with 
 the consequences immediatly before them, they will do the 
 act they wall not generally be allowed to retract, it being 
 supposed in such cases that valid reasons for the trans- 
 action may have existed, and that, at all events, the party 
 was not under the influence of the" illusion which distance 
 of time creates. 
 
 10. Waiver of exemption. — A waiver is not, and bears no 
 analogy to, a contract. 
 
 No consideration is necessary to support a waiver. It is 
 in this respect like a gift. Gifts can only be made to take 
 effect in presenti. Of course, then, a gift must be of 
 something in esse at the time. To give impHes ex vi termini, 
 a present transfer of the thing. To waive, no less than to 
 give, imports a present act. If I say, "I waive" some 
 right which I may have next week, this can mean nothing 
 more than when the time arrives I will not insist upon the 
 right. It cannot extinguish a right not yet in esse. It 
 may, if without consideration, be retracted at any time. 
 
 A right, not yet in being, but which depends upon a con- 
 tingency, cannot be the subject of a waiver. There is no 
 estoppel in pais; there is no fact involved in the transaction 
 of which either "party is ignorant. It is a matter of con- 
 tract, and not a matter of fact. Crawford v. Lockwood, 
 9 How. Pr. 547. 
 
 11. Alimony. — Exempt when. — Alimony awarded to a 
 wife cannot be regarded as an ordinary debt due by one 
 person to another, which may be reached by judgment- 
 creditors in the ordinary way. The nature of alimony 
 must not be overlooked. It is not the wife's property, nor 
 her separate estate. It is simply a provision compulsorily 
 made for her support by the husband. The law thus 
 enforces the obligation assumed by the husband at marri- 
 age, and the alimony becomes a substitute for the main- 
 tenance which is the wife's due, and which she would 
 receive directly from the husband, and in his home, l)ut for 
 the dissolution of the marriage contract. This was the 
 doctrine of the common law, and the rule was substantially 
 codified both in the Revised Statutes and the Codes of Pro- 
 cedure. At common law alimony properly signified 
 
CONTKACT NOT TO ClAIM EXEMPTION, EFFECT OF. 167 
 
 nourishment or maintenance when strictly taken. Godol, 
 Abb. 508. It was not a portion of the husband's estate 
 assigned to the wife, and subject to her control or to be 
 sold at her pleasure, but a provision for her support, to be 
 continued during their joint lives, or so long as they live 
 separate. Wallingsford v. Wallingsford, 6 Har. & J. 485. 
 "Alimony," says Mr. Bishop, "is not a sum of money or a 
 specific portion of the husband's estate given absolutely to 
 the wife, but is a continuous allotment of suras payable 
 at regular periods for her support from year to year. " In 
 Daniels v. Lindley, 44 Iowa, 567, it was said, that the claim 
 of the wife for alimony was not in the nature of a debt, 
 and that she was not a creditor of her husband. So in 
 Guenther v. Jacobs, 44 Wis. 354, it was said, that alimony 
 is not an estate, and, therefore, not separate property of 
 the wife. It is an allowance for the maintenance of the 
 wife, variable and revocable. 
 
 The language of the Code is equally explicit: "The 
 court may, in the final judgment dissolving the marriage, 
 require the defendant to provide suitably for the education 
 and maintenance of the children of the marriage, and for 
 the support of the plaintiff as justice requires, regard being 
 had to the circumstances of the respective parties." Code, 
 § 1759, subdivision 2. The maintenance of the children of 
 the marriage and the support of the wife are thus treated 
 as obligations of a like character, to be enforced, not as 
 creditors enforce the contract obligations of their debtors, 
 but by specially coercive proceedings looking not only to 
 the sequestration of the husband's property but to compul- 
 sory payment from even his current earnings, and to 
 imprisonment in case of disobedience to the judicial 
 mandate. It is quite clear that the provisions thus made 
 for the wife's support is non-assignable. And what, it may 
 be asked, could an assignee of alimony take ? Could he take 
 a provision made for the support of the wife, payable from 
 time to time in futuro, and determinable by the death 
 meantime of either of the parties ? And if he could take 
 such a provision, will it be pretended that the assignment 
 would carry with it the same right to enforcement, and the 
 same remedies in that regard which the law has afforded 
 to the wife ? The question carries with it the negative 
 
168 Supplementary Proceedings. 
 
 answer. In the case of Stevenson v. Stevenson, 34 Hun, 
 157, the judgment was recovered subsequently to the 
 decree of divorce, and seems to have been for necessaries 
 furnished the wife upon the faith of the ahmony judg- 
 ment. It is reasonable that a provision made for the sup- 
 port of the wife and children should be charged with that 
 very support furnished by a tradesman on the strength of 
 the decree. But to charge -the alimony provision with a 
 judgment having no relation whatever to the wife's sup- 
 port would simply be to nullify the statute and to permit 
 the wife to starve, while the husband, instead of support- 
 ing her, is forced to pay her old debts. Public policy also 
 demands that a woman whose husband is bound to support 
 her shall not become a public charge, and that the pro- 
 vision ordained by law shall be scrupulously applied to the 
 single purpose for which it was intended. Eomaine v. 
 Chauncey, 39 N. Y. St. Rep. 480. 
 
 VI. Exemption must be Claimed when. 
 
 12. Team. — A team consists of one horse or two horses, 
 one mule or two mules, one ox or two oxen, together with 
 the harness or yoke and the vehicle to which they are cus- 
 tomarily attached for use. A vehicle or harness, if exempt, 
 is exempt because it is embraced in the description of a 
 team. Brown v. Davis, 9 Hun, 43. In Wilcox v. Hawley, 
 31 N. Y. 648, it was held that it was sufficient for the 
 plaintiff to show that the horse claimed as exempt con- 
 stituted his team, that he was a householder, and that his 
 household furniture, working tools and team did not, in 
 the aggregate, exceed in value the sum of two hundred and 
 fifty dollars. In Hoyt v. Van Alstine, 15 Barb. 568, it was 
 held that evidence that the plaintiff was a householder, 
 having a family for which he provided, and that the mare 
 was all the team he had, and that it was used in the prose- 
 cution of the business in which he was engaged, was 
 enough to entitle him to the exemption. 
 
 In Seaman v. Luce, 23 id. 240, it appeared that the debtor 
 had more than two horses, which were worth in the aggre- 
 gate more than the exempt value fixed by the statute, and 
 it was held that the officer levying on one of them was not 
 a tresspasser unless the debtor claimed at the time that the 
 
EXEMPTIOK MUST BE CLAIMED WHEN. 16& 
 
 horse levied on that it was exempt. In Smith v. Slade, 57 
 id. 637, it was held that it was not necessary for the plain- 
 tiff to show affirmatively that he had not other articles 
 articles exempted by statute of the value of two hundred 
 and fifty dollars or which, with the articles mentioned in 
 the complaint, exceeded that sum. Lockwood v. Young- 
 love, 27 Barb. 506, seems to hold the same doctrine. The 
 case of Frost v. Mott, 34 N. Y. 253, related to property 
 which was specifically and absolutely exempt under the 
 Revised Statutes. In Eussell v. Dean, 30 Hun, 242, a con- 
 stable levied upon a span of mules owned and used by the 
 debtor in his business of farming and boating. He was a 
 householder and had no other team. It did not appear 
 what other property he then had. He did not at the time 
 the levy was made, or at any other time, claim that the 
 mules were exempt. In that case the court say : "We 
 think the correct conclusion is that it not having appeared 
 either that the plaintiff had not other property exempt 
 under section 1391 of the Code of the value of two hundred 
 and fifty dollars, or that he at any time claimed the property 
 in question to be exempt, such property must be deemed to 
 have been in fact liable to execution. Assuming that he had 
 other property which was exempt under section 1391 of 
 tl;e Code, he waived his claim to the statutory provision in 
 his favor in respect to the property in question by omitting 
 to assert it." In Turner v. Borthwick, 20 Hun, 119, it was held 
 that all personal property of a judgment-debtor is liable, in 
 the first instance, to levy and sale on execution, and that 
 in some form the execution-debtor must make his claim to 
 exemption to the officer making the levy. The court dis- 
 posed of the case of Frost v. Mott, 34 N. Y. 253, by saying s 
 "The language used by the judge to the effect that it was 
 the officer's duty to select and leave with the debtor such 
 exempt property as he was entitled to, does not appear to 
 have been called for in the disposal of the case, and was 
 not warranted by any fact shown to exist." In Brooks v. 
 Hathaway, 8 Hun, 29, it was held that where the judg- 
 ment-debtor has other property apparently exempt, or 
 which might be exempt under this act, he must within a 
 reasonable time after knowledge of the l6vy, make his 
 election and give notice to the officer that he claims as; 
 22 
 
170 Supplementary Peoceedings. 
 
 -exempt the property levied upon. In Wilcox v. Howe, 36 
 N. Y. St. Eep. 303, the court says: "If it were to be held 
 that an officer could not levy upon any property of the de- 
 scription mentioned in section 1391 of the Code without be- 
 coming liable to an action for its recovery, when no demand 
 was made nor claim that it was exempt asserted by the 
 owner, it would follow that all property of that character 
 would be practically exempt from levy under an attach- 
 ment, although it greatly exceeded in value the limit pro- 
 vided by that section." Where the contrary has been held, 
 "the property was either absolutely exempt or known by the 
 officer to be exempt when the levy was made. 
 
 VII. Identity of Exempt Property — Necessary wHBasf. 
 As a general rule property exempt from levy and sale on 
 execution, only remains so so long as it maintains its iden- 
 tity and is kept intact. A horse, under certain circum- 
 stances, may be exempt, but if sold and the proceeds taken 
 and invested in guns, they would not be exempt. Salisbury 
 -y. Parsons, 36 Hun, 17. 
 
 VIII. Exemption of Life Insurance Money. 
 
 The proceeds of a policy on the life of a husband for the 
 benefit of his wife cannot be reached either by his creditors 
 or hers. In Baron v. Brummer, 100 N. Y. 375, the court 
 say: "Under these various provisions of the statutes, it 
 was the intention of the legislature that such policies should 
 not be subjected to the lien of creditors, either of the hus- 
 band or the wife, as to the former by the express words of 
 the statute, and as to the latter by the determination of the 
 courts " Exemption laws are not designed to protect cred- 
 itors or to advance their interests, but to furnish protection 
 against their writs and actions. They are remedial in their 
 nature and must be liberally construed, to advance their 
 spirit and purpose, which ai'e in the interest of humanity to 
 protect families from improvidence and distress. Austin v. 
 McLaurin, 16 N. Y. St. Eep. 806. 
 
 IX. Exemptions, How Affected by Fraud. 
 
 It seems that where a debtor has reduced himself to ex- 
 -empt property, in order to defraud his creditors, he cannot 
 
Military Pay, Rewards, Pensions, etc. 171 
 
 claim exemption for the property remaining unaffected by- 
 such transfers. Bishop v. Johnson, 15 N. Y. St. Eep. 5.79; 
 Brocket v. Watkins, 21 Wend. 68. 
 
 X. Military Pay, Eewards, Pensions, etc. 
 
 13. In general.— It is provided by section 1393 of the Code, 
 that the pay and bounty of a non-commissioned officer, 
 musician or private in the mihtary or naval service of the 
 United States, a land warrant, pension or other reward 
 heretofore or hereafter granted by the United States, or by 
 a, state, for military or naval services; a sword, a horse, 
 medal, emblement or devise of any kind presented as a tes- 
 timonial for service rendered in the military or naval ser- 
 vice of the United States; and the uniform, arms and 
 equipments which were used by a person in that service, are 
 exempt from levy and sale by virtue of an execution, and 
 from seizure for non payment of taxes, or in any other legal 
 proceedings. 
 
 i4. Property purchased with pension money. — It has been 
 seen that section 1393 of the Code excepts a pension from 
 levy and sale by virtue of an execution, and from seizure 
 for non-payment of taxes, or in any other legal proceedings. 
 That statutes of this character are to be liberally construed, 
 with a view of promoting the object of the legislature, is 
 established by a uniform course of authority, and that their 
 force and effect are not to be confined to the literal terms of 
 the act, has also been held in numerous cases. Like other 
 statutes the section in question must be construed according 
 to the meaning and intent of the lawmakers, and so to 
 effectuate their intention so far as the language of the act 
 will permit it to be done. In the Yates County Nat. Bank 
 V. Carpenter, 30 N. Y. St. Eep. 121, the court say: "Did 
 the legislature intend to limit the force of their exemption 
 to a pension so long only as it remained an obligation of the 
 government, or consisted of cash in the hands of the pen- 
 sioner, or did they also intend to protect it after it had been 
 expended in the purchase of articles of property designed to 
 administer to the comfort of and support of such pensioner 
 and his family ? If the latter was intended, we must ascribe 
 to the lawmakers the absurd intention of granting pensions 
 for the purpose of satisfying claims against pensioners, and 
 
172 Supplementary Proceedings. 
 
 not to provide for the care and comfort of invalid or aged 
 soldiers. If the soldier is not protected in the act of ex- 
 changing his pension for the necessaries of life, its only- 
 effect would be to enable his creditors to take it in satisfac- 
 tion of their claims. No benefit is conferred if the protec- 
 tion is not extended beyond the possession of the money 
 itself, for its only value consists in its purchasing power, 
 and if the soldier is deprived of that, the pension might as 
 well, so far as he is concerned, have remained ungranted. 
 The plain purpose of the act was to promote the comfort of 
 the soldier, to secure to him the bounty of the government 
 free from the claims of creditors,_and to insure him and his 
 family a safe, although modest, maintenance so long as 
 their needs required it. We entertain no doubt that where 
 the receipts from a pension can be directly traced to the pur- 
 chase of property, necessary or convenient for the support 
 and maintenance of the pensioner and his family, such 
 property is exempt under the provisions of the Code. 
 Where such moneys can be clearly identified, and are used 
 in the purchase of necessary articles, or are loaned or in- 
 vested for the purpose of increase or safety, in such form 
 as to secure their available use for the benefit of the pen- 
 sioner in time of need, we do not doubt but that they come 
 within the meaning of the statute. But where they have 
 been embarked in trade, commerce or speculation and become 
 mingled with other funds so as to be incapable of identifi- 
 cation or separation, we do not doubt but the pensioner 
 loses the benefit of the statutory exemption." 
 
 15. Pension money after death of pensioner. — Section 
 4718 of the United States Revised Statutes provides that, 
 " If any pensioner has died, or shall hereafter die, * * * 
 his widow, or if there is no widow, the child or children of 
 such pensioner, under the age of sixteen years, shall be en- 
 titled to receive the accrued pension to the date of the death 
 of such person. Such accrued pension shall not be consid- 
 ered as a part of the assets of the estate of deceased, nor 
 liable to be applied to the payment of the debts of said es- 
 tate in any case whatever, but shall inure to the sole and. 
 exclusive benefit of the widow or children." 
 
 This section only exempts the ' ' accrued pension " not re- 
 ceived by the pensioner. It seems that the exemptioa 
 
Illustrations — Exempt Property. 173 
 
 created by section 1393 of the Code has no application after 
 the pensioner's death. Matter of Barber, 20 N. Y. St. Eep. 136. 
 i6. Real estate. — Section 1395 of the Code exempts land 
 set apart as a family or private burying ground, as therein 
 prescribed, when the owner has complied with the pro- 
 visions of section 1396, and section 1397 exempts a lot of 
 land, with the buildings thereon not exceeding in value one 
 thousand dollars, owned and occupied as a residence by a 
 householder having a family, or by a married woman, pro- 
 vided the owner has complied with the provisions of section 
 1398, and the debt or debts were not contracted for the pur- 
 chase-money of the property. This exemption continues 
 after the death of the person in whose favor the property 
 was exempted, as follows : If the decedent was a woman it 
 continues for the benefit of her surviving children, until the 
 majority of the youngest surviving child. If the decedent 
 was a man, it continues, for the benefit of his widow and 
 surviving children, until the majority of the youngest sur- 
 viving child and until the death of the widow. But the ex- 
 emption ceases earlier if the property ceases to be occupied 
 as a residence, by a person for whose benefit it may so con- 
 tinue. But a suspension of the occupation thereof for a 
 period not exceeding one year, which occurs in consequence 
 of injury to or destruction of the dwelling house upon the 
 premises, does not affect the exemption. Code, §§ 1400, 
 1401. "When the value of the homestead exceeds one 
 thousand doUars in value, the surplus cannot be reached by 
 an attachment or execution, but only by a creditors' bill 
 after the return of an execution unsatisfied. Id., § 1402. 
 Land purchased with pension money is also exempt. Code, 
 § 1393. Yates County Nat. Bank v. Carpenter, 119 N. Y. 
 550; 30 N. Y. St. Eep. 121. 
 
 XI. Illustrations — Exempt Property. 
 
 The fleeces, or the yarn or cloth manufactured from the 
 fleeces of ten sheep, are exempted from execution while in 
 the hands of a householder, whether he be or be not the 
 owner of the sheep from which it was taken. Hall v. 
 Penny, 11 Wend. 45; Code, § 1390, subd. 4. 
 
 The restriction to sixty days in subdivision 4 of section 
 1390, only applies to fuel, oil and candles. Farrel v. Higley, 
 
174 Supplementary Proceedings. 
 
 Hill & Deni9, 88. In the Matter of Edlunds, 35 Hun, 361, 
 it was held that a cheap watch and chain, a trunk and th& 
 necessary clothing of an unmarried man, who was a cloth- 
 ing cutter, were exempt. But see The Deposit Nat. Bank 
 V. Wickham, 44 How. Pr. 421, and Bitting v. Vandenburgh, 
 17 id. 80. A wagon is a part of a team, and as such is ex- 
 empt. Dains v. Prosser, 32 Barb. 290. So is a sleigh and 
 harness. Smith v. Slade, 57 Barb. 637; Flint v. Sargent, 6 
 Week. Dig. 339; Wolf v. Farley, 40 N. Y. St. Eep. 808. It 
 seems that a threshing machine is not exempt. Ford v. 
 Johnson, 34 Barb. 364. Pofessional books and surgical in- 
 struments may be exempt. Robinson's case, 3 Abb. 466. 
 ^0 may shares in a law institute. Keiher v. Shipherd, 4 
 Civ. Pro. Eep. 274. 
 
 "Wheat" is not "flour" within the meaning of the 
 words " flour and vegetables actually provided for family 
 use. Salisbury v. Parsons, 36 Hun, 1 2. The father and 
 husband who had left the state, leaving his wife and chil 
 dren living together, is a "householder." Woodwards. 
 Murray, 18 John. 400. 
 
 The necessary wearing apparel of every debtor is exempt 
 from levy and sale on execution. Bumpas v. Maynard, 38 
 Barb. 626. A non-resident is entitled to the exemption 
 laws. Bunn v: Fonda, 2 Code Eep. 70. The exemption in 
 the statute was not made to depend on the pecuniary 
 ability of the debtor. Smith v. Slade, 57 Barb. 637 ; Rein- 
 sche V. Flecke, 35 N. Y. Supr. 491. Where a judgment- 
 debtor has three horses, or two cows, or twenty sheep, and 
 some of the property is levied upon, the debtor may at the 
 time of the levy or within a reasonable time after he has 
 notice thereof, elect to claim two of such horses as exempt. 
 If he fails to make such election he cannot maintain re- 
 plevin against the officer. Seaman v. Luce, 23 Barb. 240. 
 The debtor may claim any piece of property not exceeding 
 in value two hundred and fifty dollars. Firmin v. MaHory, 
 33 N. Y. Supr. 382 ; Brooks v. Hathaway, 8 Hun, 290. 
 
 Potatoes and other vegetables planted for family use are 
 exempt from execution before they are taken from the 
 ground, the same as when taken out of the ground and laid 
 up in store. Carpenter v. Herrington, 25 Wend. 370. 
 
Eeview of Orders. 175 
 
 OHAPTEE XXI. 
 
 REVIEW OF ORDERS. 
 
 I. Obdbrs in Phocekdings Supple. 
 
 MENTARY TO EXECUTION. 
 
 1. In general. 
 
 2. Review of orders in suppleinen- 
 
 tary proceedings. 
 
 3. Discretionaiy orders. 
 
 4. Illustrations. 
 
 1. Orders in Proceedings Supplementary to Execution. 
 
 I. In general. — Proceedings for contempt are themselves 
 special proceedings, independent of the proceedings in which 
 they maybe taken, and an order made therein cannot be 
 regarded as an order in the course of the original proceed- 
 ings. A proceeding'for contempt is not governed by sec- 
 tion 2133 of the Code of Civil Procedure. Moschell v. Boor, 
 50 N. Y. St. Kep. 238. Section 2i33 of the Code of Civil 
 Procedure, does not permit of an appeal from an order 
 made by a judge, directly to the general terra, but the 
 mode of review prescribed by that section has no appli- 
 cation to an order made in proceedings to punish for 
 contempt, as the provisions of that section are limited 
 to orders which affect only parties to the pending pro- 
 ceeding. It seems that an appeal from an order in con- 
 tempt proceedings may be taken under section 1348. Sec- 
 tion 2457 provides that a person in contempt may be 
 punished by the judge, or by the court out of which the 
 execution was issued, and section 1348 provides that an 
 appeal may be taken to the general term, from an order, 
 made upon notice, by a judge out of court. But no ap- 
 peal from an order will be entertained until it is entered 
 and filed, together with the moving papers, with the clerk, 
 and the order and the motion papers must be produced to 
 the court on hearing the appeal. Gallt v. Finch, 24 How. 
 Pr. 193; Pool v. Safford, 10 Hun, 497. An appeal will not 
 lie to general term from an order granted ex parte ; such 
 order can be reviewed in the first instance only by a mo- 
 tion, on notice to vacate or modify it, and the order grant- 
 ing or denying such motion is appealable. Matter of Dunn, 
 37 N. Y. St. Eep. 802. 
 
176 Supplementary Proceedings. 
 
 2. Review of orders in supplementary proceedings. — 
 
 Section 2433 of the Code provides that an order, made by a 
 judge, out of court, may be vacated or modified by the judge 
 who made it, as if it was made in an action ; or it, or the order 
 of the judge, vacating or modifying it, may be vacated or 
 modified, upon motion, by the court out of which the exe- 
 cution was issued. Thus, where the execution was issued 
 out of a county court upon a transcript from a justice's judg- 
 ment, an appeal from an order, niade in the course of the 
 proceedings, may be taken in like manner as if the order 
 was made in an action brought in the county court. Code, 
 § 2433; Billington v. Billington, 16 Civ. Pro. Eep. 56. 
 
 An appeal does not lie, in the first instance, from an order 
 made on notice to a judge under either sections 2435, 2436, 
 2437, 2438, 2441, 2446, 2447, 2449, 2450, 2451, 2454, 2455, 
 2456 or 2464 of the Code of Civil Procedure. Moschell v. 
 Boor, 50 N. Y. St. Eep. 328. 
 
 To get rid of an order improperly made in a litigated mo- 
 tion by a judge at chambers, the aggrieved party must 
 make a motion to the court out of which the execution was 
 issued, and either party may appeal to the general term 
 from the order made on such motion. Code, §§^ 1347, 2433. 
 
 3. Discretionary orders.— In Martin v. Windsor Hotel 
 Co., 70 N. Y. 101, 104, the court construes the practice in 
 cases of appeal from discretionary orders, and say : "It is 
 claimed that a substantial right, within the meaning of the 
 Code, is an absolute right, and that a matter which is dis- 
 cretionary is not a substantial right, and hence not appeal- 
 able to the general term. There are judicial expressions 
 made during the earlier period of the Code which favors 
 this view, but it is an erroneous construction, and it has 
 been settled that the general term may review orders that 
 afifect substantial rights, although discretionary. 
 
 Denio, J., in 29 N. Y. 418, in defining a substantial right, 
 distinguished it from a merely personal matter or right. 
 
 It is only necessary that the order, to be appealable, must 
 affect a substantial interest — a matter of substance and not 
 of mere form — and it may be such an order, and yet be dis- 
 cretionary. The Code recognizes that an order affecting a 
 substantial right may be discretionary, by providing that 
 an appeal will lie to the court of appeals in certain cases 
 
Eeview of Ordees. 177 
 
 from an order affecting a substantial right "not involving 
 any question of discretion." It has been urged that as the 
 court of appeals will not review a discretionary order, the 
 general term has, therefore, no power to review a discre- 
 tionary order. The answer to this is that the court of ap- 
 peals refrain from reviewing such orders when discretionary, 
 not from any prohibition implied by the words "substantial 
 rights," but from the constitution and functions of the court 
 as an appellate tribunal restricted to a review of questions 
 of law only. While the general and special terms of the 
 supreme court are but different parts of the same court, of 
 equal original jurisdiction, and the former can review and 
 correct orders made by the latter, whether discretionary or 
 not, provided they affect matters of substance. Howell v. 
 Mills, 53 N. Y. 322. 
 
 4. Illustrations.— In Levy v. Beacham, 46 N. Y. St. Eep. 
 51, the appeal was from an order denying a motion to set 
 aside an order for examination of the judgment-debtor in 
 aid of execution. In Lingsweiler v. Lingsweiler, 29 id. 354, 
 the appeal was by the judgment-creditor from an order va- 
 cating an order for the examination of a third person. The 
 motion to vacate was made by the judgment-debtor, who 
 had not been called into the proceeding by notice required 
 by the court. Code Civ. Pro., §§ 2441, 2447. 
 
 In Arnot v. Wright, 29 N. Y. St. Eep. 425, the appeal 
 was from an order of a special term, denying the judgment- 
 debtor's motion to set aside an order for his examination. 
 In Kelly v. Levy, id. 659, the appeal was from an order 
 denying a motion made by a receiver to compel a judgment- 
 debtor to deliver up his books. In Terry v. Bange, 30 id. 
 285, the appeal was from an order denying a motion made 
 by the judgment-debtor to set aside an order appointing a 
 receiver. 
 
 In Frost v. Craig, id. 848, the appeal was from an order 
 directing the judgment-debtor to deliver property to the re- 
 ceiver, where the title to the property was disputed. 
 
 In Marshall v. Link, 36 id. 60, the appeal was from an 
 order refusing to set aside an order for a second examina- 
 tion of the judgment-debtor, on the ground of jurisdictional 
 defects. 
 
 28 
 
178 Supplementary Pkoceedings. 
 
 In Peck V. Baldwin, 34 id. 511, the appeal was from an 
 order denying a motion made by the judgment-debtor to set 
 aside an order for examination, and an order appointing a 
 receiver. In Conyingham v. Duffy, id. 736, the appeal was 
 from an order denying a motion made by the judgment- 
 debtor to set aside an order for examination. In Grinnell 
 V. Sherman, 33 id. 27, the appeal was from an order deny- 
 ing a motion by the judgment -debtor to vacate an order for 
 the examination of a third person, and for the appointment 
 of a receiver. In the above cases no question seems to have 
 been raised as to the regularity of the appeal. In Schenck 
 V. Erwin, 38 id. 603, the appeal was from an order vacat- 
 ing an order for an examination of a third party. In that 
 case the objection that the order was not appealable was 
 duly raised, and overruled. In Leonard v. Bowman, 40 id. 
 139, the appeal was from an order vacating an order for 
 the examination of a third party. In Baumler v. Acker- 
 man, 43 id. 87, the appeal was from an order, vacating an 
 order for examination. 
 
 In Waldron v. Walker, id. 605, the appeal was from an 
 order vacating an order for the application of money on 
 the judgment-creditor's judgment. The appeal in Schenck 
 et al. V. Erwin et al., id. 862, was similar to that in Waldron 
 V. Walker, and was to determine the jurisdictional question 
 as4o the right of a county judge of a county other than 
 that of the debtor's residence to grant a third party order 
 for examination, and see McGuire v. Hudson, 41 id. 295. 
 
FOKMS. 
 
 1. 
 
 COUET— County op 
 
 In the Matter of the Examina- 
 tion of "E. R. B.,"A JUDGMBNT- 
 
 dbbtob in Proceedings Supple- 
 mentary TO Execution upon a 
 Judgment entitled 
 SUPREME COURT 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Afifidavit for order for ex- 
 amination after return of 
 execution. Code, § 2435. 
 
 County of , ss.: 
 
 , being duly sworn, says he is the judg- 
 ment-creditor hereinafter mentioned, (or that he is assignee 
 of the judgment hereinafter mentioned), (or attorney 
 of record for the judgment-creditor herein), (or executor 
 of the last will and testament of the judgment-creditor 
 hereinafter mentioned). That a judgment was duly recovered 
 
 recovered on the day of , 189. ., in the 
 
 supreme court of county in an action wherein 
 
 was plaintiff, and was 
 
 defendant, upon personal service of the summons therein 
 upon the defendant, (or upon the personal appearance of the 
 defendant or plaintiff), (or upon confession), for the sums of 
 
 $ , (or for a sum not less than twenty-five dollars). 
 
 That said judgment was duly docketed in the office of the 
 
 clerk of county, on day of , 
 
 189 . . , and a transcript of said docket duly filed in the office 
 
 of the clerk of county, on the day of , 
 
 189. . (That afterwards and on or about the day 
 
 of , 189.., the said judgment-creditor duly sold 
 
 and assigned said judgment to , who is 
 
 now the owner thereof.) (That thereafter the said judg- 
 ment-creditor died at , intestate), (leaving a last 
 
180 Supplementary I'roceedings. 
 
 will and testament), and letters of administration were 
 thereafter duly issued to , who duly quali- 
 fied and entered upon the duties of his office. 
 
 That an execution against the property of the said judg- 
 ment-debtor was thereafter and within five years from the 
 time of docketing of said judgment, (or within five years 
 from the time of entering an order granting leave to issue 
 an execution there on), duly issued thereon and delivered to 
 
 the sheriff of , where the judgment-debtor 
 
 then resided and still resides or where the judgment-debtor 
 now has a place for the regular transaction of business in 
 person), (or where the judgment-roll is filed), and that said 
 execution has been duly returned by the sheriff, wholly un- 
 satisfied, (or partly unsatisfied, and there is still due upon 
 said judgment the sum of $ ), and the said judg- 
 ment remains wholly unpaid. That the first execution 
 issued upon said judgment was returned within ten years 
 last past. That no previous application has Seen made for 
 the order asked for herein, and that the deponent is author- 
 ized to make this affidavit. 
 
 Sw^orn to before me this day of , 189 . . 
 
 2. 
 
 COUNTY COUET— County of. 
 
 In the Mattek of the Examina- 
 tion OF " E. R. B. ," A JUDGMENT- 
 
 DBBTOK IN Proceedings Supple- 
 mentaky to execution upon a 
 Judgment entiti-ed 
 COUNTY COURT. 
 
 W. C. S. 
 
 v. 
 E. R. B. 
 
 Affidavit for order after re- 
 turn of execution on judg- 
 ment of inferior court. 
 
 County of , ss. : 
 
 , being duly sworn, says he is the judg- 
 
 Tnent-creditor hereinafter mentioned, (or assignee of the 
 judgment hereinafter mentioned), (or executor or adminis- 
 trator of the judgment-creditor hereinafter mentioned), (or 
 
Forms. 181 
 
 attorney for the judgment-creditor hereinafter mentioned). 
 
 That a judgment was duly recovered on the day 
 
 of , 189 .. , in a justice's court of 
 
 county, before , Esq., a justice of the 
 
 peace of the town of , in an action wherin 
 
 was plaintiff, and was 
 
 defendant; upon the judgment-debtor's appearance, (or 
 upon the personal service of the summons therein upon the 
 
 defendant), for the sum of dollars, (or for not 
 
 less than the sum of twenty -five dollars). That a trans- 
 cript of said judgment was duly filed in the office of the 
 
 clerk of county, on the day of 
 
 , 189.., and within six years from the date of 
 
 its recovery, and said judgment was on said date duly 
 docketed in said county clerk's office. That afterwards, 
 and within five years from the time said judgment was 
 docketed in said clerk's office, an execution against the 
 property of the said judgment-debtor was duly issued by 
 the clerk of the said county upon said judgment, and 
 
 delivered to the sheriff of county, where the 
 
 said judgment-debtor then resided, and yet resides, (or 
 where the said judgment-debtor has a place for the trans- 
 action of business in person); that afterwards the said 
 sheriff duly returned said execution wholly unsatisfied, and 
 the said judgment remains wholly unpaid (or partly un- 
 satisfied and there is still due upon said judgment the sum 
 
 of $ ). That the first execution issued upon said 
 
 judgment was returned within ten years last past. That 
 no previous application has been made for the order asked 
 for herein. That deponent is authorized to make this 
 affidavit. 
 Sworn to before me this day of , 189 . . 
 
182 
 
 Sijpplemektaky Pkockedings. 
 
 3. 
 
 COUET. 
 
 In the Mattek of the Exami- 
 nation OP "E. R. B.," A Judg- 
 ment-debtor, IN Proceedings 
 Supplementary to Execution 
 UPON THE Application of " W. 
 C. S." upon a Judgment en- 
 titled 
 
 COURT. 
 
 w. c. s. 
 
 E. R. B. 
 
 Affidavit for warrant for ex- 
 amination. Code, § 2437. 
 
 State of New York, ) 
 County. \ **■ * 
 
 , being duly sworn, says that he is the 
 
 judgment-creditor herein mentioned. That judgment was 
 
 duly rendered on the day of , 189 . . , in 
 
 the court of county, in an action 
 
 wherein was plaintiff, and 
 
 was defendant, in favor of the said against 
 
 the said for the sum of $ upon the 
 
 personal service of the summons in the action upon the 
 judgment-debtor (or upon the said judgment-debtor's 
 appearance) as appears by the judgment-roU therein, filed 
 
 in the office of the clerk of the said county of , 
 
 reference to which is hereto had, and the same is made a 
 part of this affidavit. That the said judgment was duly 
 docketed and the judgment-roll duly filed in the office of 
 
 the clerk of on the day of 
 
 189 . . (That a transcript of said docket was, on the 
 
 day of , 189. ., duly filed and the judgment duly 
 
 docketed in the office of the clerk of county.). 
 
 That within five years after the original entry of said 
 
 judgment, and on the day of , 189 . . , an 
 
 execution was duly issued out of said court, it being a 
 court of record, upon said judgment against the property 
 of the said , judgment-debtor, and de- 
 
Forms. 183 
 
 livered to the sheriff of county, where the 
 
 said judgment-debtor then resided, and still resides, (or 
 where the judgment-roll is filed or, in case of concealment, 
 where the judgment-debtor has a place for the transaction 
 of business in person.) That said execution was duly 
 returned by said sheriff wholly unsatisfied (or partly un- 
 satisfied). That ten years have not elapsed since the 
 return of the first execution upon said judgment, (or that 
 the said execution is now in the hands of the sheriff unre- 
 turned), knd the said judgment remains wholly unpaid (or 
 
 there is still unpaid upon said judgment the sum of $ ) 
 
 Deponent further says, that said , judg- 
 ment-debtor, has property not exempt from these pro- 
 ceedings by section 2463 of the Code of Civil Procedure, 
 
 %'iz. : That on the day of 
 
 , 189. ., the judgment-creditor caused a 
 
 demand to be made by upon said judgment- 
 debtor to apply his said property to the satisfaction of said 
 judgment. • (A copy of which said demand is hereto 
 annexed and forms a part of this affidavit. ) That the said 
 judgment-debtor refused and neglected, and still refuses 
 and neglects, to apply his said property as thereby re- 
 quested. That said was duly authorized to 
 
 make such demand for the judgment-creditor, and was 
 present to receive said property or an assignment thereof. 
 That said judgment-debtor unjustly refuses to apply his 
 property towards the satisfaction of said judgment, as 
 deponent is informed and believes, and that no previous 
 application for a warrant herein has been made to any 
 judge. 
 
 That no order to examine the judgment-debtor has 
 been granted. Deponent further says: That the judg- 
 ment-debtor has for last past resided at .... 
 
 , that on or about the day of , 
 
 189 . . , the said debtor informed deponent that he was 
 
 about to leave this state and go to the state of 
 
 That the judgment-debtor has for the last been 
 
 employed as a , at , but has re- 
 signed his position and is disposing of his and 
 
 is about to leave , and that on the 
 
 day of 189 . . , deponent was informed by 
 
184 Supplementary Proceedings. 
 
 , the wife of the said judgment-debtor, that he 
 
 was going to leave this state and go to in the 
 
 state of (or that the judgment-debtor has for 
 
 years last past resided at , that 
 
 for the last ten days deponent has often inquired for the 
 said debtor at his said residence and deponent has not been 
 able to find him there, although deponent has often seen 
 the said debtor at or near his said residence while deponent 
 was going towards his said residence.) 
 
 Deponent further says: That there is danger that the 
 
 said judgment-debtor will leave the state 
 
 (or conceal himself), and that there is reason to believe that 
 he has property which he unjustly refuses to apply to the 
 payment of said judgment. 
 
 Sworn to before me this day of 189. . 
 
 4. 
 
 .OOUET. 
 
 In eb Examination of "E. R. B." 
 A Judgment DEBTOR, in Pro- 
 ceedings Supplementary to 
 exection, upon the applica- 
 TION OF "W. 0. S." A Judgment- 
 creditor, UPON A Judgment I 
 
 ENTITLED 
 
 COURT. 
 
 W. C. S. 
 
 1). 
 E. R. B. 
 
 Warrant for examination un- 
 der Code, §§ 2437, 2438. 
 
 The people of the State of New York to the sheriff of any 
 
 county where , the judgment-debtor herein, 
 
 may be found : 
 
 It having been made to appear to me by the affidavit of 
 
 that judgment was 1-endered on the 
 
 day of , A. D. 189.., in ihe court of 
 
 county, in an action wherein 
 
 was plaintiff, and was defendant, in favor 
 
Forms. 185 
 
 of the said against the said 
 
 for the sum of $ (or for a sum not less than twenty- 
 five dollars), upon the personal service of the summons in 
 the action upon the judgment-debtor (or upon the said 
 judgment-debtor's appearance in the action), and that the 
 judgment-roll therein was duly filed and the judgment duly 
 
 docketed in the office of the clerk of county, 
 
 on the day of , 189.., as appears by the 
 
 judgment-roll filed in the office of the clerk of this court. 
 That an execution against the property of the said 
 
 , judgment-debtor, was, within five years 
 
 from the original docketing of said judgment, duly issued 
 upon the aforesaid judgment, out of a court of record, to 
 
 the sheriff of the county of , where the said 
 
 judgment-debtor, , then resided and yet re- 
 
 oides (or has at this time a place for the regular transaction 
 of business in person) (or where the judgment-roll is filed), 
 and that such executiou has been returned by the said 
 sheriff, whoUy unsatisfied or partly unsatisfied. 
 
 That ten years have not elapsed since the return of the 
 first execution issued upon said judgment, and that said 
 judgment still remains wholly unpaid (or that there still 
 remains unpaid upon said judgment the sum of $. . . .). 
 
 And it further appearing by said affidavit to my satisfac- 
 tion that there is danger that the said 
 
 judgment-debtor will leave the state or conceal himself, 
 and that there is reason to believe that he has property not 
 exempt from these proceedings by section 2463 of the Code 
 of Civil Procedure, which he unjustly refuses to apply to 
 the payment of such judgment. 
 
 You are hereby required to arrest said 
 
 judgment-debtor and bring him before me, (or bring him 
 before at ) 
 
 Witness my hand this day of , 189 . . 
 
 , Judge. 
 
 24 
 
186 
 
 Supplementary Proceedings. 
 
 5. 
 
 COURT. 
 
 In be Examination of " E. R. B.," 
 A Judgment-debtor in Pbocbed- 
 iNGS Supplementary to Execu- 
 tion UPON THE Application of 
 " W. S. C." UPON A Judgment 
 entitled 
 
 COURT. 
 
 w. s. c. 
 
 V. 
 
 E. R. B. 
 
 Affidavit for order that third 
 party pay over money, etc. 
 Code, § 2446. 
 
 County, ss. : 
 
 being duly sworn, says he is the 
 
 herein mentioned ; that heretofore and 
 
 on the day of , 189, upon the application 
 
 of deponent, an order herein was duly granted by 
 
 , judge, for the examination of the judgment- 
 debtor under section of the Code- of Civil Pro- 
 cedure, which said order was on the day of , 
 
 189. ., duly served upon the said judgment-debtor, a copy 
 of which said Order is hereto annexed and forms a part 
 of this affidavit. 
 
 That of is indebted to the 
 
 judgment-debtor in the sum of $ , and that no re- 
 ceiver has been appointed in these proceedings, nor has any 
 receivership been extended to these proceedings. That no 
 
 previous application for an order permitting said 
 
 to pay the said debt which he owes the judgment- 
 debtor herein to the sheriff has been made to any judge. 
 
 Sworn to before me this day of 
 
 189. 
 
Forms. 
 
 167 
 
 COURT. 
 
 In re Examination op " E. R. B.," 
 
 A JtJDOMENT-DBBTOR IN PbOCKED- 
 
 iNGS Supplementary to Execu- 
 tion UPON THE Application op 
 
 6. 
 
 Order that third party pay his 
 debt to sheriff. Code, § 2M6. 
 
 It having been made to appear to me by the affidavit of 
 
 , that proceedings have been heretofore 
 
 commenced under section 2435 of the Code of Civil Pro- 
 cedure for the examination of a judg- 
 ment-debtor, and that no receiver has been appointed in 
 said proceedings, nor has any receivership been extended to 
 
 such proceedings, and that is indebted to 
 
 the said judgment-debtor in the sum of $ , not ex- 
 ceeding the sum which shall satisfy the execution in said 
 proceedings. Leave is, therefore, hereby given permitting 
 the said to pay the said to the sheriff 
 
 of county. 
 
 , Judge. 
 
 Dated 189.. 
 
 7. 
 
 COURT. 
 
 In the Matter op the Examina- 
 tion OP "E. R. B." A Judg- 
 ment-debtor, in Proceedings 
 Supplementary to Execution 
 ON A Judgment entitled. 
 
 SUPREME COURT. 
 
 w. c. s. 
 
 1). 
 E. R. B. 
 
 Order for examination of 
 judgment-debtor after re- 
 turn of execution. Code, 
 § 2436. 
 
 It .having been made to appear to me by the annexed 
 affidavit of that judgment was rendered 
 
188 Supplementary Proceedings. 
 
 on the day of , 189.., in the supreme 
 
 court of county, in an action wherein " W. 
 
 C. S." was plaintifif, and "E. R. B." was defendant, in 
 
 favor of the said against the said 
 
 for the sum of $ (or for a sum not less than 
 
 twenty-five dollars). 
 
 Upon the personal appearance of the said judgment- 
 debtor (or upon the personal service of the summons upon 
 him), as appears by the judgment-roll filed in the office 
 
 of the clerk of the said county of That the 
 
 said judgment was duly docketed in the office of the clerk 
 
 of , on the day of , 189 .. . 
 
 (That a transcript of said judgment was afterwards duly 
 
 filed in the office of the clerk of the county of ) 
 
 And that afterwards, and within five years from the time 
 said judgment was docketed, an execution against the 
 property of the said judgment-debtor was duly issued out 
 of a court of record upon said judgment to the sheriff of 
 the proper county, and that such execution has been re- 
 turned by the said sheriff unsatisfied. 
 
 That the first execution issued upon said judgment was 
 returned within the past ten years, and that said judgment 
 remains unpaid as stated in said affidavit. 
 
 I do, therefore, hereby order that it be refered to 
 
 , Esq., counselor of , N. Y., 
 
 and I do hereby appoint the said a referee 
 
 in these proceedings, with the power and subject to the 
 limitations prescribed by sections 2442-2444 of the Code of 
 Civil Procedure, to examine the judgment-debtor and such 
 witnesses as may be offered by the respective parties, and 
 reduce their examination to writing. I do further order 
 
 and direct the said , judgment-debtor, to 
 
 attend and submit to an examination concerning his prop- 
 erty before said referee at , in the 
 
 of , N. Y., on the day of 
 
 189. ., at o'clock in the noon (or at such 
 
 time and place as the said referee shall by his summons 
 appoint and direct), and for that purpose to appear before 
 said referee from time to time as he shall direct and appoint. 
 
 And the said is hereby forbidden from 
 
 making or suffering any transfer or other disposition of or 
 
Forms. 189' 
 
 interference with the property of , or in 
 
 which has any interest, legal or equitable, 
 
 and not exempt by law as provided by section 2463 of the 
 Code of Civil Procednre, until further direction in the 
 preniises. 
 
 Dated the day of , 189. . 
 
 , Judge. 
 
 8. 
 COURT. 
 
 In the Matter of the Examina- 
 tion OF "E. R. B.," A JUDG- 
 ment-dbbtok, in Proceedings 
 Sopplementabt to Execution 
 
 Order for examination of 
 judgment-debtor after re- 
 upoN A Judgment entitled j- turn of execution on judg- 
 ment of inferior courts. 
 Code, § 2436. 
 
 COUNTY COURT. 
 W. C. 8. 
 
 «. 
 E. r. b. 
 
 It having been made to appear to me by the annexed 
 
 affidavit of , that judgment was rendered on the 
 
 day of , 189. ., in a justice's court of 
 
 county, by and before , Esq., a justice of the 
 
 peace in and for the of in said 
 
 county, in an action wherein .was plaintiff, 
 
 and was defendant, in favor of the said 
 
 against the said for the 
 
 sum of $ (or for a sum not less than twenty-five 
 
 dollars), upon the personal service of the summons upon 
 the judgment-debtor (or upon the personal appearance of 
 the judgment-debtor), as~ appears to us by the judgment 
 docket of the said justice. That a transcript of said judg- 
 ment was within six years from the time of the rendering 
 of the said judgment, duly filed in the office of the clerk of 
 
 the county of on the day of , 
 
 189.. And said judgment then duly docketed therein 
 against the said judgment-debtor, and that an execution 
 against the property of the said judgment-debtor was duly 
 
190 Supplementary Proceedings. 
 
 issued out of the county court of said county of 
 
 by the clerk of said county to the sheriff of the said county 
 
 of upon the aforesaid judgment, within five 
 
 years from the date of its said docket in said clerk's office, 
 and that such execution was afterwards duly returned by 
 
 the said sheriff unsatisfied, and that said judg- 
 
 ineut stiU remains unpaid. That the first execution issued 
 upon the aforesaid judgment, by the clerk of the county 
 where the transcript was filed, was returned within the past 
 ten years as stated in said affidavit. 
 
 I do, therefore, hereby order that it be referred to 
 
 , Esq. , counselor, or , N. Y., 
 
 and I do hereby appoint the said a referee 
 
 in these proceedings, with powers and subject to the limita- 
 tions prescribed by sections 2442-2444 of the Code of Civil 
 Procedure, to examine the judgment-debtor and such wit- 
 nesses as may 'be offered by the respective parties, and re- 
 duce their examination to writing. 
 
 I do further order and direct the said , 
 
 judgment-debtor, to attend and submit to an examina- 
 tion concerning his property, before said referee at 
 
 in the of , N. Y., on the day 
 
 of , 189 . . , at o'clock in the noon 
 
 (or at such time and place as the said referee shall by his 
 summons appoint and direct), and for that purpose to ap- 
 pear before said referee from time to time as he shall direct 
 and appoint. And the said is hereby for- 
 bidden from making or suffering any transfer or other 
 disposition of or interference with the property of 
 , or in which has any in- 
 terest, legal or equitable, and not exempt by law as provided 
 by section 2463 of the Code of Civil Procedure, until further 
 direction in the premises. 
 
 Dated the day of , 189. . 
 
 , Judge. 
 
Forms. 
 
 191 
 
 .COURT. 
 
 In re Examination of "E. R. B.," 
 A Judgment-debtor in Supple- 
 mentary Proceedings, upon 
 the Application op "W. C. S." 
 
 ». 
 
 Order for undertaking by 
 
 party arrested for examina- 
 tion.. Code, § 2440. 
 
 A warrant having been heretofore issued by me under 
 section 2437 of the Code of Civil Procedure for the arrest of 
 , a judgment-debtor, and the said judg- 
 ment-debtor having been arrested upon said warrant, and 
 brought before me, and it appearing to my satisfaction, 
 upon a prehminary examination of the said judgment- 
 debtor, that there is danger that he will leave the state or 
 conceal himself, and that he has property which he has un- 
 justly refused to apply to the satisfaction of the judgment, 
 for the satisfaction of which these proceedings were insti- 
 tuted. Now, therefore, I do hereby order and direct the 
 
 said judgment-debtor to execute and deliver to , 
 
 the judgment-creditor, within ten days from the time of 
 the service of this order upon him, an undertaking in the 
 
 penal sum of $ with sureties, conditioned 
 
 that he will from time to time, as the judge directs, attend 
 before the judge or before a referee appointed, or to be ap- 
 pointed in the proceedings; and that he will not, until dis- 
 charged from arrest by virtue of the warrant, dispose of 
 any of his property, which is not exempt from seizure by 
 section 2463 of the Code of Civil Procedure. 
 
 Dated... day of , 189.. 
 
 , Judge. 
 
192 Supplementary Peoceedings. 
 
 10. 
 
 COURT. 
 
 Ik re ExAjyiiNATioN of " E. R. B.," 
 A Jddgment-debtob in Proceed- 
 ings Supplementary to ExEcn- 
 
 TION ON THE APPLICATION OF 
 
 " W. C. S." UPON A Judgment 
 
 ENTITLED 
 
 COURT. 
 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Undertaking by party ar- 
 rested for examination. 
 Code, § 2M0. 
 
 Know all, men by these presents : That we 
 
 of , by occupation a , and 
 
 of , by occupation a , 
 
 are held and firmly bound unto in the 
 
 sum of $ , to be paid to the said , 
 
 for which payment well and truly to be made, we bind our- 
 selves, our heirs and representatives, jointly and severally. 
 
 Sealed with our seals ; dated the day of , 
 
 189.. • 5 
 
 "Whereas, The above bounden was here- 
 tofore duly arrested upon a warrant as prescribed by sec- 
 tion 2437 of the Code of Civil Procedure, and whereas, by 
 
 an order made by on the ." day of 
 
 , 189. ., in the matter of the examination 
 
 of in proceedings supplementary to exe- 
 cution upon a judgment entitled court, "W. 
 
 C. S." against "E. E. B.," the above bounden 
 
 was required to give an undertaking as prescribed 
 
 by section 2440 of the aforesaid Code. Now, therefore, the 
 conditions of this obligation are such that if the said .... 
 
 shall and will from time to time, as the judge 
 
 directs, attend before the said judge, or before a referee ap- 
 pointed, or to be appointed by the said judge, iu the pro- 
 ceedings ; and shall not, until discharged from arrest by 
 virtue of the aforesaid warraiat, dispose of any of his prop- 
 erty which is not exempt from seizure by section 2463 of 
 
Forms. 193 
 
 the Code of Civil Procedure, then this obligation to be void, 
 otherwise to remain in full force and effect. 
 Sealed and delivered in presence of [l. s.J 
 
 [L. s.] 
 
 [L. S.] 
 
 State of New York, ) 
 County of , f **■' 
 
 above nanfed being duly and severally- 
 sworn, says each for himself that he is a resident of, and a 
 
 holder in the state of New York, and is worth 
 
 the sum of $ over and above all debts and lia- 
 bilities he owes or has incurred, and exclusive of property 
 exempt by law from levy and sale under execution. 
 
 Severally sworn to before me this day of , 
 
 189.. 
 
 State of New Yokk, 
 
 ' ' ss. 
 
 County of , j 
 
 On this day of , 189 . . , before me, the 
 
 subscribers personally appeared and 
 
 and to me personally known 
 
 to be the same persons described in and who executed the 
 within instrument and severally acknowledged that they 
 executed the same. 
 
 11. 
 
 COUET. 
 
 In RE Examination of " E. R. B.," 
 A Judgment-debtor upon ap- 
 plication OP "W. C. S." upon 
 A Judgment entitled 
 
 COURT. 
 
 W. C. S. 
 
 «. 
 E. R. B.. 
 
 Warrant of commitment of 
 party refusing to give un- 
 dertaking. Code, § 2440. 
 
 The People of the State of New York, to the Sheriff of the 
 
 County of , Greeting : 
 
 Whereas, I , as , did, on 
 
 the day of , 189. ., upon the proper affi- 
 
 25 
 
194 
 
 Supplementary Proceedings. 
 
 davit, issue a warrant under section 2437 of the Code of 
 Civil Procedure for the arrest of , a judg- 
 ment-debtor, and whereas the said was duly 
 
 arrested and brought before me, and, whereas, I did, on 
 the day of , .189 . . , make an order direct- 
 ing the said to enter into an undertaking 
 
 as prescribed by section 2440 of the aforesaid Code.. And 
 it appearing to me that a copy of the said order was duly 
 
 and personally served upon said at the 
 
 of , on the day of , 
 
 189. ., at .... A. M., and it further appearing that the 
 
 said has failed and neglected to furnish 
 
 said undertaking as directed by said order. 
 
 You are hereby required to commit said , 
 
 judgment-debtor, to the common jail of your county, there 
 to remain until he gives the undertaking herein mentioned, 
 or until finally discharged from the aforesaid warrant, and 
 that you produce the said judgment debtor before me, or a 
 referee appointed by me, at such times and places as I may 
 appoint and direct. , Judge. 
 
 Date the day of 
 
 189. 
 
 13. 
 
 COURT. 
 
 In the Matter of the Examina- 
 tion OF "E. R. B.," A Judg- 
 ment-debtor, IN Proceedings 
 Supplementary to Execution 
 upon a Judgment entitled 
 
 , COURT. 
 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Affidavit for order for ex- 
 amination in aid of an exe- 
 cution. Code, § 2442. 
 
 State of New York, | . 
 County of , i 
 
 — , being duly sworn, says he is the 
 
 judgment-creditor herein 
 
 That judgment was rendered on the day of ... . 
 
 189. 
 
 in the court of 
 
Forms. 195 
 
 county, in an action wherein was plaintiff, 
 
 and was defendant, in favor of the said 
 
 against the said for the sum of 
 
 $ upon the said judgment-debtor's appearance in 
 
 the action (or upon the personal service of the summons 
 in the action upon the judgment-debtor). As appears by 
 the judgment-roll filed in the office of the clerk of the said 
 
 county of j , reference to which is hereto had, 
 
 and the same is made a part of this affidavit, that the said 
 judgment was duly docketed and the judgment-roll duly 
 
 filed in the office of the clerk of on the 
 
 day of 189 . . . (That a transcript of said docket 
 
 was on the day of , 189 . . , duly filed and 
 
 the judgment duly docketed in the office of the clerk of 
 
 county). 
 
 That within five years after the original entry of said 
 
 judgment, and on the day of , 189 . . , an 
 
 execution was duly issued out of said court, it being a 
 court of record, upon said judgment against the property 
 of the said , judgment-debtor, and de- 
 livered to the sheriff of county, where the 
 
 said judgment debtor then resided and still resides (or 
 where the judgment-debtor has at this time an office for 
 the regular transaction of business in person). That said 
 execution is now in the hands of said sheriff unreturned, 
 
 and that said judgment remains unpaid (or that 
 
 there is stiU unpaid upon the said judgment the sum of 
 
 $ ) 
 
 Deponent further says that said judgment- debtor 
 
 ^ has property not exempt from these proceed- 
 ings by section 2463 of the Code of Civil Procedure, viz. : 
 
 That on the day of 189. ., the judg- 
 ment-creditor caused a demand to be made by the said 
 sheriff upon said judgment-debtor to apply his said prop- 
 erty to the satisfaction of said judgment (a copy of which 
 said demand is hereto annexed and forms a part of this 
 affidavit). 
 
 And the judgment-debtor has neglected and refused so 
 to do. 
 
 That said was duly authorized to make such 
 
196 Supplementary Pfoceedings. 
 
 demana for the judgment-creditor, and was present to re- 
 ceive said property or an assignment thereof. 
 
 Deponent further says that the said judgment-debtor, 
 upon demand as aforesaid, unjustly refused and still un- 
 justly refuses to apply his property towards the satisfaction 
 of said judgment, as deponent- is informed and believes, 
 and that no previous application has been made herein for 
 the order here asked for. 
 
 Sworn to before me this day of , 189. . 
 
 13. 
 
 .OOUET. 
 
 In the Matter of the Examina- 
 tion OP "E. R. B.," A JUDG. 
 MENT-DBBTOK, IN PROCEEDINGS 
 
 Sdpplembntary TO Execution 
 
 UPON THE Application op 
 
 UPON A Judgment entitled 
 
 COURT. 
 
 "W. C. S." 
 
 Affidavit for order of examin- 
 ^ ation in aid of execution on 
 a judgment of inferior 
 courts. Code, § 2441. 
 
 •E. R. B." 
 
 ss.: 
 
 State of New York, ) 
 County of..' , j 
 
 , being duly sworn, says he is the 
 
 judgment-creditor herein 
 
 That judgment was duly rendered on the day of , 
 
 189. ., in a justice's court of the of county of 
 
 , N. Y., before , Esq., a justice of the 
 
 peace of said town, 'in an action wherein was 
 
 plaintiff, and was defendant, in favor of the said 
 
 against the said , for the sum of 
 
 $ (or for a sum not less than twenty -five dollars). 
 
 That said judgment was so rendered upon the personal ser- 
 vice of the summons duly issued and signed by said justice 
 in said action upon the judgment-debtor (or upon the per- 
 sonal appearance of the judgment-debtor before the said 
 justice, in said action), and the judgment so rendered was 
 
Forms. 197 
 
 duly docketed by said justice on the aforesaid day, as ap- 
 pears by the said justice's docket, reference to which is 
 hereto had and the same is made a part of this affidavit. 
 That a transcript of the original docket of said judgment 
 
 was on the day of 189.., and within six 
 
 years of the time of its said docketing, duly filed and said 
 judgment was duly docketed in the office of the clerk of 
 the county of 
 
 (That a transcript of said docket of the said clerk was 
 
 afterwards and on the day of , 189. ., duly 
 
 filed and the said judgment duly docketed in the office of 
 the clerk of the county of ). 
 
 That afterwards, and within five years from the time of 
 the docketing of said judgment in the office of the clerk of 
 the county of .an execution upon said judg- 
 ment against the property of the said judgment-debtor was 
 
 duly issued by the said clerk of the county of 
 
 out of said county court. The same being a court of record, 
 
 and on the day of , 189. ., duly delivered to the 
 
 . sheriff of the county of where the said judg- 
 ment-debtor then resided and still resides (or where the said 
 judgment-debtor now has a place for the regular transac- 
 tion of business in person). 
 
 That said execution is now in the hands of said sheriff, 
 
 unreturned, and that said judgment remains unpaid 
 
 (or that there is still unpaid upon said judgment the sum of 
 
 I ). Deponent further says, that said judgment-debtor, 
 
 , has property not exempt from these proceed- 
 ings by section 2463 of the Code of Civil Procedure, viz. : 
 
 That on the day of ... . 189 . . , the judg- 
 ment-creditor caused a demand to be made by the said sher 
 iff upon said judgment-creditor to apply his said property, 
 to the satisfaction of said judgment (a copy of which said 
 demand is hereto annexed, and forms a part of this affi- 
 davit). 
 
 And the judgment-debtor has neglected and refused so to 
 
 do. That said was duly authorized to make such 
 
 demand for the judgment-creditor, and was present to re- 
 ceive said property or an assignment thereof. 
 
 Deponent further says that the said judgment-debtor, 
 upon demand as aforesaid, unjustly refused and still un- 
 
198 
 
 Supplementary Proceedings. 
 
 justly refuses to apply his property towards the satisfaction 
 of said judgment as deponent is informed and believes, and 
 that no previous application has been made herein for the 
 order here asked for. 
 Sworn to before me this day of , 189 ,-. 
 
 14. 
 
 .COURT. 
 
 In the Matter of the Examina- 
 tion or "E. R. B.," A Judg- 
 ment-debtor, IN Proceedings 
 Supplementary to Execution 
 
 UPON THE Application op 
 
 "W. C. S.," on A Judgment en- 
 titled 
 
 COURT. 
 
 "W. C. S." 
 
 V. 
 
 "E. R. B." 
 
 Order for examination in aid 
 of execution. Code, § 2441. 
 
 It having been made to ' appear to me by the annexed 
 
 aflfidavit That judgment was rendered on the 
 
 day of 189 . . , in the court of 
 
 county in an order wherein .was plaintiff, and 
 
 was defendant, in favor of the said 
 
 against the said , for a sum not less than 
 
 twenty-five dollars, upon personal service of the summons 
 in the action upon the judgment-debtor (or upon the ap- 
 pearance in the action by the judgment-debtor), and as ap- 
 pears by the judgment-roll therein that an execution against 
 the property of the said judgment-.debtor has been duly 
 issued out of a court of record, to the sheriff of the proper 
 county, upon the aforesaid judgment within five years from 
 the time the said judgment was docketed; and that such 
 execution has not been returned by the said sheriff, and 
 
 that such judgment still remains unpaid (or that there 
 
 still remains unpaid upon said judgment the sum of 
 
 dollars). That the said judgment-debtor has property not 
 exempt from these proceedings by section 2463 of the Code 
 of Civil Procedure, which he unjustly refuses to apply 
 
Forms. 199 
 
 towards the satisfaction of said judgment, as stated in said 
 afSdavit. 
 
 I do, therefore, hereby order that it be referred to 
 
 , Esq., counselor, of , N. Y. And 
 
 I do hereby appoint the said a referee in 
 
 these proceedings with all the power prescribed by section 
 2444 of the Code of Civil Procedure, to examine the said 
 judgment-debtor and take his answers under oath, and to 
 examine on oath such witnesses as may be offered by the 
 respective parties. And I do further order and require the 
 
 said judgment-debtor, to attend and be examined 
 
 before the said referee, at such times and places as he shall 
 
 by his summons appoint and direct (or at in the 
 
 of , N. Y., on the day 
 
 of . ; , 189 . . , at A. M.), concerning his prop- 
 erty mentioned in the affidavit hereto annexed. And the 
 
 said , his agents and servants, are hereby 
 
 forbidden from making or suffering any transfer or other 
 
 interference with the property of , or in 
 
 which he has any interest, legal or equitable, and not ex- 
 empt by section 2463 -of the Code of Civil Procedure, 
 until further direction in the premises. 
 
 Dated the day of , 189. . 
 
 , Judge. 
 
 15. 
 
 COURT. 
 
 In KB Examination op " E. R. B.," 
 A Judgment-debtor in Proceed- 
 ings Supplementary to Exe- 
 cution UPON A Judgment en- 
 titled 
 
 COURT. 
 
 "W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Affidavit for an alias order for 
 examination as to after-ac- 
 quired property. 
 
 . .. County, ss.: 
 
 being duly sworn, says he is 
 
 that heretofore and on the day of 
 
200 SnPPLEMENTAUY PROCEEDINGS. 
 
 , 189. ., this deponent obtained an order herein for the 
 
 examination of , the judgment -debtor, which 
 
 said order and the , affidavit upon which it was founded 
 are hereto annexed and form a part of this affidavit (annex 
 a copy of the original order and affidavit). That said order 
 
 was duly served upon the judgment-debtor on the 
 
 day of , 189 . . , and said proceedings are now pend- 
 ing, and the judgment herein remains wholly unpaid. That 
 
 after the service of said order and on or about the 
 
 day of , 189. ., the judgment-debtor received and 
 
 became the owner of certain property, viz. ; , 
 
 of which he is still the owner. 
 
 That no previous application for an alias order for the 
 examination of the judgment-debtor has been made herein. 
 
 Sworn to before me this day of , 189 . . 
 
 , Judge. 
 
 16. 
 
 COURT. 
 
 In be Examination of "E. E. B.," 
 A Judgment-debtor in Proceed- 
 ings Supplementary to Execu- 
 tion UPON A Judgment entitled 
 
 COURT. 
 
 w. c. s. 
 
 E. R. B. 
 
 Alias order for examination 
 of party as to after-acquired 
 property. 
 
 It appearing to me by the affidavit of 
 hereto annexed, that an order for the examination of the 
 
 judgment-debtor herein has been hereto. 
 
 fore issued and that the said proceedings are now pending. 
 That after the service of said order the judgment-debtor 
 became the owner and possessed of certain property, viz. : 
 
 , That judgment was perfected and the roll thereof filed in 
 
 the clerk's office of the county of on the 
 
 day of ,189 , for $ 
 
 That the first execution upon said judgment in due form 
 of law was duly issued to the sheriff of said last-mentioned 
 
Forms. 201 
 
 county, and was duly returned by him within ten years 
 last past wholly unsatisfied, and that the said judgment 
 remains wholly unpaid. I do, therefore, hereby order that 
 
 it be referred to , Esq. , counselor, of , 
 
 N. Y., to take the testimony and examination in these pro- 
 ceedings, and I do hereby appoint the said a 
 
 referee in these proceedings for the purpose aforesaid, and 
 
 I do also further order and require the said 
 
 judgment-debtor, to attend and be examined before the 
 
 said referee, at in the , N. Y., on the 
 
 .... day of . . . . , 189 . . , at . . A. m., and the said 
 
 is hereby forbidden from making or suffering any transfer 
 or other disposition of, or interference with, the property 
 
 of or in which .... has any interest, 
 
 legal or equitable, not exempt from these proceedings by 
 section 2463 of the Code of Civil Procedure until further 
 direction in the premises. 
 
 , Judge. 
 
 Dated , 189.. 
 
 17. 
 
 COUET. 
 
 In the Matter of the Examika- 
 TiON OP "B. E. BL," A Third 
 Person in Proceedings Supplb- 
 mentart to execution upon 
 THE Application op " S. C." 
 UPON A Judgment entitled. 
 
 COURT, County. 
 
 W. S. C. 
 
 V. 
 
 E. R. B. 
 
 Affidavit for order for ex- 
 amination of third party. 
 Code, § 2441. 
 
 ss. 
 
 State of New York, ) 
 County of j 
 
 being duly sworn, says he is the judgment- 
 creditor hereinafter mentioned (or that he is the assignee 
 of the judgment hereinafter described). That judgment 
 
 was rendered on the 
 26 
 
 , . .day of , 189.., in the. 
 
202 Supplementary Proceedings. 
 
 court of county, in an action wherein 
 
 was plaintiff, and was defendant, in favor of the 
 
 said against the said for the sum of 
 
 $...., upon the service of the summons in the action upon 
 the said judgment-debtor (or upon the personal appearance 
 of the judgment-debtor in the action), the judgment-roll of 
 which was duly filed, and the judgment duly docketed in 
 
 the clerk's office of the county of , reference to 
 
 ■which is hereto had, and the same is made a part of this 
 affidavit. That an execution upon said judgment was duly 
 issued out of a court of record within five years from the 
 time of the original docket thereof, and delivered to the 
 sheriff of the county of , where the said judgment- 
 debtor then resided and yet resides (or where the said judg- 
 ment-debtor now has a place for the transaction of business 
 in person), (or where the judgment-roll in the action is 
 filed). That said execution has been returned by said 
 sheriff wholly unsatisfied, and the said judgment remains 
 wholly unpaid (or that said execution has been returned 
 pai'tly unsatisfied, and there is still due upon said judg- 
 ment the sum of $ ), (or that said execution is yet in 
 
 the hands of the said sheriff unreturned, and there is still 
 ■due upon said judgment the sum of $ ). 
 
 That the first execution issued upon said judgment was 
 returned within ten years last past. 
 
 Deponent further says, that "E. E. B.," of the 
 
 of , N. Y., has personal property of the said judg- 
 ment-debtor exceeding ten-dollars in value, viz : 
 
 {or he is indebted to the judgment-debtor in a sum exceed- 
 ing ten dollars), and that no previous application has been 
 made herein for an order to examine said third person. 
 
 Sworn to before me this day of , 189. . 
 
FOBMS. 
 
 203 
 
 18. 
 SUPREME COURT — County op. 
 
 In thb Matter of thb Examina- 
 tion OF "E. R. B." A Jddg- 
 
 MBNT-DKBTOR, IN PkOCEEDINGS 
 
 Supplkmbntary to Exkcdtion 
 ■UPON A Judgment entitled 
 SUPREME COURT. 
 "W. C. S. 
 
 V. 
 E. R. B. 
 
 Affidavit of service of order, 
 warrant, attachment, etc. 
 
 County of , ss: 
 
 , being duly sworn, says, that at the 
 
 of , on the day of , 189 .. , he served the an- 
 nexed affidavit and order upon by deUvering to, 
 
 and leaving with him personally, copies thereof, and at the 
 same time exhibiting to him the original order and the sig- 
 nature of , judge, subscribed thereto. 
 
 That deponent is over eighteen years of age and knew 
 the person served to be the person mentioned and described 
 in the vdthin order and affidavit. 
 
 (Signature of affiant.) 
 
 Sworn to before me this .... day of , 189 . , 
 
 (Signature of officer.) 
 
204 
 
 Supplementary Proceedings. 
 
 19. 
 
 COURT. 
 
 In re Examination of " E. R. B.," 
 
 A JUDGMKNT-UBBTORIN PrOCKKD- 
 INGS SdPPLEMENTART TO EXECU- 
 TION UPON THE Application of 
 "W. C. S," UPON A Judgment 
 
 ENTITLED 
 
 COURT. 
 
 w. c. s. 
 
 V. 
 
 E. R. B. 
 
 Order for examination of 
 third person. Code, § 2441. 
 
 It having been made to appear to me by the affidavit of 
 
 , that judgment was rendered on the day of 
 
 , A. D., 189. ., in the court of county in an 
 
 action wherein was plaintiff, and was 
 
 defendant, in favor of the said against the 
 
 said , for the sum of $ ... . (or for a sum not less 
 
 than twenty -five dollars), upon personal service of the sum- 
 mons in the action upon him (or upon the personal appearance 
 of the defendant in the action). That an execution upon 
 said judgment was duly issued from a court of record 
 within five years from the entry of said judgment (or by 
 leave of the court), to the sheriff of the proper county, and 
 that such execution has been duly returned by the said 
 sheriff wholly unsatisfied, and the said judgment remains 
 wholly unpaid (or that said execution has been duly re- 
 turned partly unsatisfied, and there still remains due and 
 payable on said judgment the sum of $....) (or that said 
 execution is yet in the hands of the sheriff wholly unsatis- 
 fied, and the said judgment remains wholly unpaid), and 
 
 that , of the of , has personal 
 
 property of the said judgment-debtor exceeding ten dollars 
 in value (or is indebted to the judgment-debtor in a sum ex- 
 ceeding ten dollars), as stated in said affidavit. I do, there- 
 fore, hereby appoint , Esq., counselor of , 
 
 N. Y., a referee in these proceedings, with the power and 
 
Forms. 205 
 
 subject to the limitations prescribed in sections 2442 and 
 2444 of the Code of Civil Procedure. 
 
 I do also order and require the said to attend 
 
 and be examined before the said referee at , in the 
 
 of , N. Y., onthe . . . . day of . . . ., 189.., 
 
 at .... A. M. (I do also order and require that a copy of 
 this order be served upon the aforesaid judgment-debtor 
 on or before the day of . . . ., 189. .), and the said judg- 
 ment-debtor and the said are severally for- 
 bidden from making or suffering any transfer or other dis- 
 position of, or interference with, the property of said judg- 
 ment-debtor, or in which he has any interest, legal Or 
 equitable, not exempt from these proceedings by section 
 2463 of the Code of Civil Procedure, or debt concerning 
 which said is required to attend and be ex- 
 amined, until further direction in the premises. 
 
 Dated at this day of , 189 . . 
 
 ' , Judge. 
 
 30. 
 
 COURT. 
 
 In the Matter op the Examina- 
 tion OP " E. R. B. ," A Judgment- 
 debtor IN Proceedings Supple- 
 mentary to Execution upon a 
 Judgment entitled 
 
 COURT. 
 
 W. C. S. 
 
 ®. 
 E. R. B. 
 
 Referee's summons for attend- 
 ance of debtor. 
 
 To 
 
 I, , duly appointed a referee in these pro- 
 ceedings, under section 2442 of the Code of Civil Procedure, 
 to examine you. and witnesses as prescribed by section 
 2444 of said Code, by an order made by Hon. M. L. W. , 
 
 county judge, and dated the day of , 
 
 189 .. , and heretofore duly served upon you ; do hereby 
 summon and require you to attend in person before me 
 at in the , N. Y., on the . . . . day of 
 
206 Supplementary Proceedings. 
 
 , 189 . . , at . . A. M. of said day, to be examined as in said 
 
 order directed and required. 
 Dated this .... day of . . . ., 189. . 
 
 , Referee. 
 
 31. 
 
 Oath of Repeeee, Code, § 2445. 
 . COURT. 
 
 In the Matter of the Examina- 
 tion OF "E. R. B.," A Judg- 
 ment-debtor, IN Proceedings 
 Supplementary to Execution 
 upon a Judgment entitled 
 
 .COURT. 
 
 W. C. S. 
 
 0. 
 
 E. R. B. 
 
 State op New York, | 
 County, ) ' 
 
 being duly sworn, says that he wiU faith- 
 fully and fairly discharge his duty as referee upon the mat- 
 ter referred to him, and make a just and true report, ac- 
 cording to the best of his understanding. 
 
 (Signature of referee.) 
 
 Subscribed and sworn to before me this — day of — , 
 189. 
 
 SuBPCENA Duces Tecum. 
 
 State of New York, ) , 
 County of, ) 
 
 The People of the State of New York, to 
 
 Greeting : 
 
 You are commanded that all and singular business and 
 excuses being laid aside to be and appear in your own proper 
 
Forms. 207" 
 
 person before the undersigned referee at 
 
 in the of on the day of , 189 . . , at 
 
 o'clock in the noon of that day, to be examined as 
 
 a witness in a certain proceeding entitled 
 
 pending undetermined, and then and there to be tried on 
 
 the part of _ and that you bring with you and 
 
 produce at the time and place aforesaid certain books^ 
 papers and writings, viz. : A journal and ledger kept by 
 
 you between the day of , 189 .. , and the day 
 
 of , 189 . . , also a cash book kept by you during the 
 
 aforesaid time now in your custody or control, and aU other 
 deeds, evidences of debt and writings which you have in 
 your custody and power concerning the premises. And for 
 a neglect or refusal to obey this subpoena, you will be 
 deemed guilty of a contempt of court and liable for all losses 
 or damages sustained thereby by the party in whose behalf 
 you are subpoenaed, besides fifty dollars in addition thereto. 
 
 Dated the day of , 189 . . 
 
 (Signature of referee or judge.) 
 
 (Signature of attorney.) 
 
 33. 
 
 .COUET. 
 
 In the Matter of the Examina- 
 tion OP A ' 
 
 IN Proceedings Supplement aey 
 
 TO BXEciTTioN UPON A JUDGMENT Reforce's subpoena. Code, 
 
 ENTITLED. 
 
 COURT. 
 
 W. C. S. 
 
 ■B. 
 
 E. R. B. 
 
 §854 
 
 The People of the State of New York to 
 
 Greeting : 
 
 I, , duly appointed a referee herein by an 
 
 order made by Hon. M. L. W., a county judge, 
 
 dated the day of . . . .189. ., under section 2442 of the 
 
 Code of Civil Procedure, do hereby command you that alt 
 
208 Supplementary Proceedings. 
 
 business and excuses being laid aside, you, and each of 
 
 you, appear and attend before me at in the 
 
 of on the .... day of .... 189 .., at .... A. M. , to testify 
 
 and give evidence in these proceedings (and that you bring 
 
 with you, and then and there produce the books 
 
 of containing certain entries , and all 
 
 books, papers, deeds, contracts, in your possession or under 
 
 your control, relating to ), and for a failure to 
 
 attend or produce said documents you will be deemed 
 guilty of a contempt of court. 
 
 , Eeferee. 
 
 Dated the. . . .day of . . . ., 189. . 
 
 33. 
 
 .COURT. 
 
 In the 
 
 Matter of the 
 
 EXAMINA- 
 
 TION 
 
 OF "E. R. B.,' 
 
 ' A JuDa- 
 
 MENT-DEBTOR, TS SUPPLEMBN- | 
 
 TARY 
 
 Proceedings upon a Judq- [ 
 
 MENT 
 
 ENTITLED. 
 
 ... COURT. 
 W. C. S. 
 
 V. 
 
 
 
 E. R. B. 
 
 
 Deposition taken before ref- 
 eree or judge upon exami- 
 nation. 
 
 The examination of " E. E. B. ", a judgment-debtor (or 
 "E. E. B.", a third party, examined under section 2441 of 
 the Code of Civil Procedure, or E. B. a witness produced 
 by the judgment-creditor), under section 2435 (or 2436) 
 taken by "G. W. B.", Esq., referee appointed under sec- 
 tion 2442 in the on the day of 189 . . . 
 
 Said " E. E. B. " being duly sworn testified. 
 (Here insert testimony.) 
 
 Subscribed and sworn to before me this day of , 
 
 189.. 
 
 (Signed by witness.) 
 
Forms, 
 
 209 
 
 .COURT. 
 
 34. 
 
 In re Examination of "E. R. 
 b.," a jxtdqment-debtok, in 
 Peocbedings Sdpplbmentaky 
 TO Execution upon a Judg- 
 ment ENTITLED. 
 
 COURT. 
 
 W. C. S. 
 
 •B. 
 
 E. r. b. 
 
 Certificate of referee. Code, 
 ^ § 2442. 
 
 To the Hon : 
 
 The undersigned referee appointed under section 2442 of 
 the Code of Civil Procedure in the above proceedings does 
 hereby certify and return: That before entering upon 
 the examination or taking testimony, I took the oath 
 prfessribed bj law, which is hereto annexed(/and returned 
 (or that the parties hereto duly signed a stipulation waiving 
 the oath of the referee, which is hereto annexed and re- 
 turned). That at the time and place mentioned in the 
 
 order hereto annexed, viz. : at. . . . A. m., on the day of 
 
 , 189.., at in the of N. Y., I called 
 
 said proceedings, and said judgment-creditor appeared 
 
 before me by , Esq., his attorney but said 
 
 E. E. B., the judgmertt-debtor, (or E. B., the witness 
 named in the annexed subpoena) came not, but made 
 dfefault, although a full hour was allowed for him to 
 appear after the time required in and by said order (sum- 
 mons or-supboena) ; (or that said E. E. B. or G. H., a third 
 party, or E. B., a witness., also attended before me, but re- 
 fused to be sworn or to be examined, though directed thereto 
 by me), (said judgment-debtor appeared in person and by 
 his attorney and . submitted to examination as directed 
 by said order and made certain objections which are 
 hereby annexed and returned). (That I issued a subpoena 
 
 herein which was duly served upon and 
 
 returned with proof of service; copies of said subpoena, and 
 proof of service are hereto annexed and returned ; that at 
 27 
 
210 
 
 Supplementary Proceedings. 
 
 the time designated therein for the appearance of the said 
 
 witness I attended at attended by for the 
 
 judgment-creditor, but , the said witness, did not 
 
 attend, but made default). 
 
 Said examination was held before me pursuant to said 
 order, and the various adjournments had thereunder, on 
 the following days, to- wit: on the.^'i .day of .itW^ 189. ., on 
 the.^V, .day of .?■¥., 189. ., and I further certify that I took 
 all of the testimony given, in writing, which said testimony 
 appears in full in my minutes, which are hereto annexed, 
 together with the exhibits put in evidence, that the various 
 objections, etc., appear in the minutes. 
 
 ^11 of which is respectfully submitted, 
 
 , Eeferee. 
 
 Dated the day of ,189.. 
 
 COUET. 
 
 33. 
 
 In re Examination of "E. R. B.," 
 
 A JUDGMBNT-DEBTOR IN PrOCBBD- 
 
 INGS Supplementary to Execu- 
 tion UPON a Judgment entitled 
 
 COURT. 
 
 W. C. S. 
 
 ■B. 
 
 E. r. b. 
 
 Affidavit and order to show 
 cause for an order that the 
 - judgment-debtor or third 
 party deliver property to the 
 sheriff. Code, § 2447. 
 
 County, ss: 
 
 being duly sworn, says he is , that 
 
 on or about the.... day of...., 189.., an order for the 
 
 examination of , the judgment-debtor herein, 
 
 and the affidavit upon which it was founded, was duly 
 served upon the judgment-debtor herein, reference to which 
 is hereto had, and the same is made a part of this affidavit. 
 That the examination, in said proceedings, was duly taken 
 
 before , Esq., a referee duly appointed in said 
 
 proceedings, and the testimony before said referee was duly 
 certified to Hon , who granted the order of ex- 
 amination herein, reference to which certificate is hereto 
 had and the same is made a pai't of this affidavit. 
 
Forms. 211 
 
 That it appears by said examination and testimony that 
 
 has, in his possession or under his control, 
 
 money, or other personal property, belonging to him which 
 should be applied to the payment of the judgment herein 
 (or that one or more articles of personal property, capable 
 of delivery, the property of the judgment-debtor, whose 
 right to the possession thereof is not substantially disputed, 
 
 are in the possession or under the control of: ). That 
 
 no previous application for an order to show cause why the 
 judgment-creditor should not have an order under section 
 2447 of the Code of Civil Procedure, has been made herein. 
 
 Sworn to before me on this day of , 189 . . 
 
 (Signature of affiant.) 
 
 Upon the annexed affidavit and all the pleadings and pro- 
 ceedings in this matter, let show cause before 
 
 me at , on the day of , 189 . . , at a. 
 
 M. of said day, why , the judgment-creditor herein, 
 
 should not have an order that deliver to , 
 
 sheriff of (or , receiver herein), cer- 
 tain money and personal property mentioned and described 
 in the testimony taken in these proceedings, viz 
 
 Let this order and the annexed affidavit be served upon 
 
 on or before A. M. of the .... day of , 
 
 189. ., and such service shall be deemed sufficient. 
 
 , Judge. 
 
 Dated , 189.. 
 
 36. 
 
 COUET. 
 
 In the Matter of the Examina- 
 tion OF " E. R. B. ,-" A Jddsment- 
 
 DEBTOR IN Proceedings Supple- .Order for delivery of property 
 
 mentart to Execution upon 
 the application of " w. c. s. 
 THE Judgment-creditor. 
 
 to sheriff. Code, § 2447. 
 
 An order to show cause why the judgment-creditor herein 
 should not have an order that deliver to 
 
212 Supplementary Proceedings. 
 
 , sheriff (or receiver), certain property, vizr: 
 
 , to be applied to the payment of the judgment 
 
 herein, having been heretofore issued returnable at this 
 time and place, and said order having been duly served 
 and returned. 
 
 Now upon reading and filing the affidavit of 
 
 verified on the day of , 189. ., the order to show 
 
 cause, with proof of service (the certificate of the referee 
 
 and the testimony taken herein), and after hearing 
 
 of counsel for the judgment-creditor, and 
 
 of counsel for Ordered, That 
 
 pay to , sheriff of (or receiver herein), 
 
 and deliver to said sheriff (assign, convey and 
 
 deliver to said sheriff ). And it appearing to 
 
 my satisfaction that an order appointing a receiver herein 
 is not necessary, it is further ordered that said sheriff apply 
 said property as prescribed by sections 2448, 2449, 2450, of 
 the Code of Civil Procedure. It is further ordered that the 
 
 judgment-creditor be and he is hereby allowed $ costs 
 
 of these proceedings together with his disbursements, which 
 are hereby taxed at the sum of $ , making in the aggre- 
 gate the sum of dollars. 
 
 , Judge. 
 
 Dated , 189.. 
 
 sr. 
 
 COURT. 
 
 In rb Examination op " E. R. B.," 
 A Judgment-debtor in Proceed- 
 ings Supplementary to Exe- 
 cution UPON A Judgment en- 
 titled 
 
 COURT. 
 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Affidavit and order to show 
 cause for leave to discon- 
 tinue. Code, § 2454. 
 
 County, ss. : 
 
 , being duly sworn, says he is 
 
 herein. That these proceedings were commenced on 
 
Forms. 213 
 
 or about , 189 . . , that subsequent to the commence- 
 ment of these proceedings, and on or about the day of 
 
 , 189. ., the judgment-debtor was duly discharged from 
 
 his debts, under the "two-thirds act," Code Civ. Pro., 
 art. 1, tit. 1, chap. 17, as appears by an order in said pro- 
 ceedings filed in the office of the clerk of the county of 
 
 , reference to which is hereto had, and the same is made 
 
 a part of this affidavit. (That after these proceedings were 
 commenced the judgment-creditor's claim was duly paid). 
 
 Sworn to before me this day of , 189 . . 
 
 (Signature of affiant.) 
 
 Upon the annexed affidavit and all the pleadings and pro- 
 ceedings in this matter, let show cause be- 
 fore me at my chambers, in the of 
 
 , on the day of , 189 . . , at , i. m., why 
 
 the judgment-creditor should not have an 
 
 order : 
 
 I. Discontinuing his proceedings herein. 
 
 IT. Forsuch other, further or different relief herein as to 
 the court may seem meet. 
 
 Let this order be personally served upon on 
 
 or before 6 p. M., of the day of , 189. ., and such 
 
 service shall be deemed sufficient. 
 
 , Judge. 
 
 Dated , 189.. 
 
 28. 
 COURT. 
 
 In re ExAMrNATioN of " E. R. B.," 
 
 A JUDGMENT-DBBTOK IH PhOCEED- 
 
 iNGS Supplementary to Execu- 
 tion UPON A Judgment entitled 
 
 Order of discontinuance of 
 
 COURT. r ^^Yie proceedings. 
 
 w. c. s. 
 
 1). 
 
 E. R. B. 
 
 An order to show cause why the judgment-creditor 
 should not have an order discontinuing these proceedings. 
 
214 
 
 Supplementary Proceedings. 
 
 having been duly made and served herein, returnable at 
 
 this time and place; now upon filing the affidavit of 
 
 , verified on the .... day of , 189 . . , the order to 
 
 shov^r cause, with proof of service thereof, and after hear- 
 ing , of counsel for the judgment- 
 creditor, and , of counsel for , 
 
 Ordered, That these proceedings be, and the same are, here- 
 by discontinued (or that the .is hereby allowed 
 
 to discontinue these proceedings upon the following terras: 
 
 (or that the said may, upon paying the said 
 
 $ . . . . costs, etc., enter an order discontinuing 
 
 the said proceedings), 
 
 , Judge. 
 
 Dated...., 189.. 
 
 39. 
 
 COUET. 
 
 In the Matter op the Examina- 
 tion OP " E. R. B.," A Judg- 
 ment-debtor, IN Pbocbedings 
 Supplementary to execution 
 UPON A Judgment entitled 
 
 COURT. 
 
 W. C. S. 
 
 E. R. B. 
 
 Affidavit and notice of mo- 
 tion for order vacating pro- 
 ceedings. 
 
 County, ss : 
 
 , being duly sworn, says he is the judgment- 
 debtor above named. That the affidavit and order in these 
 proceedings were served upon deponent on the .... day of 
 . . . ., 189. ., copies of which are hereto annexed, and form 
 a pai't of this affidavit (or that the affidavit and order were 
 not served upon deponent as required by section 2452 of the 
 Code of Civil Procedure in that ) 
 
 (That after these proceedings were commenced the judg- 
 ment debtor was arrested, and is now held on an execution 
 against his person). 
 
 Sworn to before me this .... day of .... , 189 . . 
 
Forms. 
 
 215 
 
 Take notice, that upon the above and annexed affidavit, 
 and all the pleadings and proceedings in this matter, the 
 
 undersigned will move before , at his chambers 
 
 in , on the day of , 189 . . , at a. m., 
 
 for a rule or order : 
 
 I. Vacating the order for on the following 
 
 grounds 
 
 II. For such other, further or different relief as to the 
 court may seem meet, with costs of this motion. 
 
 Yours, etc., 
 
 To 
 
 Attorney for judgment-debtor. 
 , N. Y. 
 
 30. 
 
 .COURT. 
 
 In reexamination op " E. R. B.," 
 A Judgment-debtor, in Pro- 
 ceedings Supplementary to 
 Execution upon a Judgment 
 entitled. 
 
 COURT. 
 
 W. C. S. 
 
 E. R. B. 
 
 Order vacating proceedings. 
 
 On reading and filing the affidavit of verified 
 
 on the day of , 189. ., notice of motion with proof of 
 
 service thereof, and after hearing of counsel for 
 
 the judgment-debtor, and of counsel for the 
 
 judgment-creditor, 
 
 Ordered, That the proceedings herein be, and the same 
 
 are hereby vacated and set aside , (that the 
 
 motion herein be, and the same is hereby denied, with ten 
 dollars costs.) 
 
 Dated the. . . .day of . . . ., 189. . 
 
 , Judge. 
 
216 
 
 Supplementary rBOOEEDiNGS. 
 
 31. 
 
 .COUET. 
 
 In re Examination op " E. R, B.,'' 
 
 A JUDGMBNT-DEBTOK, IN PeO- 
 CBEDINQS SdPPLEMBNTART TO 
 
 Execution, upon the Applica- 
 tion of "W. C. S." 
 
 Affidavit for order dismissing 
 proceedings. Code, § 2454. 
 
 County, ss: 
 
 , being duly sworn, says he is , 
 
 that these proceedings were commenced on the .... day of 
 . . . . , 189 . . , that deponent has at divers times brpught these 
 proceedings to a hearing, and made reasonable efforts to 
 
 consummate the same. That on the .... day of , 189 . . , 
 
 deponent brought this matter to a hearing before , 
 
 the referee herein, and was then ready to proceed in the 
 matter, and the judgment-creditor neglected and refused to 
 
 proceed That afterwards and on the .... day of 
 
 . . . ., 189. ., deponent again moved these proceedings before 
 the said referee and endeavoi-ed to have the proceedings con- 
 summated, but the judgment-creditor again neglected and 
 refused to proceed. That deponent has paid out and ex- 
 pended in those proceedings the sum of $ for witnesses' 
 
 fees and counsel. 
 
 Sworn to before me this day of , 189 . . 
 
 (Title of cause.) 
 
 Take notice, that upon the annexed affidavit, and all the 
 pleadings and proceedings in this matter, the undersigned 
 
 will move, before the Hon , at his chambers in 
 
 the , city of , on the .... day of , 189 .. , 
 
 at. . . ., A. M., for a rule or order : 
 
 I. Dismissing the proceedings in this matter, on the 
 ground that the judgment-creditor unreasonably neglects 
 and delays to proceed in the proceedings. 
 
Forms. 
 
 2ir 
 
 II. For such other, further or different relief as to the 
 court may seem meet, with costs. 
 
 Yours, etc., 
 
 Attorney for judgment-debtor. 
 
 33. 
 
 .COURT. 
 
 In ke Examination of " E. R. B.," 
 A Judgment-debtor, in Pro- 
 ceedings SUPPLBMENTABY TO 
 
 Execution upon a Judgment 
 entitled 
 
 COURT. 
 
 W. C. 8. 
 
 V. 
 
 E. R. B. 
 
 Order dismissing proceedings 
 under Code, § 2454. 
 
 On reading and filing the affidavit of , verified 
 
 on the day of , 189 .. , notice of motion with proof 
 
 of service thereof, and after hearing , of coun- 
 sel for the judgment-debtor, and , of counsel 
 
 for the judgment-creditor, Ordered, That the motion be, 
 
 and the same is hereby granted, with $ costs and 
 
 disbursements, which are hereby taxed at the sum of $ ... , 
 
 amounting in the aggregate to the sum of $ , which 
 
 said sum is to be deducted from the judgment herein (thai 
 the motion herein be and the same is hereby denied, with 
 ten dollars costs). 
 
 , Judge. 
 
 Dated this day of , 189. . 
 
 28 
 
218 
 
 Supplementary Peoceedings. 
 
 33. 
 
 COUET. 
 
 In reexamination op " E. E. B.," 
 A Judgment-debtor, in Pro- 
 ceedings Supplementary to 
 Execution upon a Judgment 
 entitled 
 
 COURT. 
 
 W. C. 8. 
 
 V. 
 
 E. R. B. 
 
 Affidavit and notice of motion 
 for an order for costs to judg- 
 ment-creditor. Code, § 2455. 
 
 County, ss.: 
 
 being duly sworn, says that heretofore and 
 
 on the .... day of , 189 . . , an affidavit and order in these 
 
 proceedings for the examination of , the judg- 
 ment-debtor (or for the examination of A. B., a person 
 indebted to the judgment-debtor as prescribed by section 
 2441 of the Code of Civil Procedure), were duly served upon 
 
 the said , copies of which are hereto annexed 
 
 and forms a part hereof. 
 
 That such proceedings were thereon had, that on the 
 
 day of , 189 . . , the referee appointed to take the ex- 
 amination herein, made and certified his said proceedings 
 
 to Hon , the judge who granted the said order 
 
 of examination, which said certificate is hereto annexed 
 and forms a part of this affidavit. That the judgment- 
 creditor paid out and expended certain sums of money in 
 said proceeding, the items of which appear in a schedule 
 hereto annexed, which forms a part of this affidavit. 
 
 Sworn to before me this day of 189 . . 
 
 (Title of cause.) 
 
 Take notice that upon the annexed affidavit and all the 
 testimony and proceedings in this matter, the undersignt d 
 
 will move before Hon at his chambers in the 
 
 of on the day of 189 . . , 
 
 at .... A. M. of said day for a rule or order : 
 
Forms. 
 
 219 
 
 I. That the judgment-creditor be allowed costs and the 
 payment of his disbursements in these proceedings. 
 
 II. For such other, further or different relief herein as to 
 the court may seem meet. 
 
 Yours, etc., 
 
 Attorney for the judgment-creditor. 
 ., N. Y. 
 
 To 
 
 34. 
 
 .COUET. 
 
 In RE Examination of "E. R. B.," 
 A Judgment-creditor (or "A. 
 B.," A Third Person), in Pro-. 
 CEEDING8 Supplementary to 
 Execution upon a Judgment 
 entitled 
 
 COURT. 
 
 "W. C. 8. 
 
 11. 
 E. R. B. 
 
 Order allowing costs to judg- 
 ment-creditor. Code, § 2455. 
 
 Upon reading and filing the affidavit of .veri- 
 fied on the day of 189. ., notice of motion, 
 
 affidavit of service of affidavit and notice of motion 
 
 verified , 189.., (certificate of referee) and after 
 
 hearing of counsel for , the judg- 
 ment-creditor in favor of said motion ; and — of 
 
 counsel for the judgment-debtor in opposition. 
 
 Ordered, That , the judgment-creditor be 
 
 and he is hereby allowed $ . . . . costs of these proceedings, 
 together with his disbursements which are hereby taxed at 
 the sum of $...., making in the aggregate the sum of 
 
 It is further ordered that said sum of $ be paid out of 
 
 any money which has come to the hands of the receiver 
 herein or of the sheriff (or that , the judgment- 
 debtor (or A. JB., the said person proceeded against), pay 
 
220 
 
 Supplementary Proceedings. 
 
 said sum to the said judgment-creditor within ten days after 
 the personal service of this order upon him.) 
 
 , Judge. 
 
 Dated , 189.. 
 
 35. 
 
 .COUET. 
 
 Inbb Examination of " E. R. B.," 
 
 A JuDeMBNT-DEBTOB (OR "A. 
 
 B.," A Third Person), in Pro- 
 ceedings SUPPLBMBNTART TO 
 
 Execution upon a Judgment 
 entitled 
 
 COURT. 
 
 W. 0. s. 
 
 t). 
 E. R. B. 
 
 Affidavit and notice of mo- 
 tion for order for costs 
 against the judgment- 
 creditor. Code, § 2456. 
 
 County, ss. : 
 
 being duly sworn, says he is the 
 
 in these proceedings; that on or about the .... day of 
 
 189. ., an affidavit and order for examination of deponent 
 under section 2435 of' the Code were duly served upon 
 deponent, copies of which are hereto annexed, and form a 
 part of this affidavit. 
 
 That was duly examined upon said order. 
 
 That such proceedings were thereon had, that afterwards 
 and on or about the .... day of .... 189 . . , such examina- 
 tion was finished (as appears by the certificate of the 
 referee, a copy of which is hereto annexed, and forms a 
 part of this affidavit). That no property applicable to the 
 payment of the judgment herein has been discovered in the 
 course of these special proceedings. 
 
 Sworn to before me this day of , 189. . 
 
 (Title of causa) 
 
 Take notice that upon the annexed affidavit, and all the 
 pleadings and proceedings in this matter, the undersigned 
 
Forms. 221 
 
 will move before Hon at his chambers in 
 
 the city of , on the. . . .day of , 
 
 189 . ., at A. M., for a rule or order: 
 
 I. That the judgment-debtor be allowed his disbursments 
 in these proceedings together with costs. 
 
 II. For such other, further or different relief as to the 
 court may seem meet, with costs of this motion. 
 
 Yours, etc., 
 Dated ...., 189.. 
 
 Attorney for 
 
 ,N. Y. 
 
 To 
 
 36. 
 
 .COURT. 
 
 In re Examination op " E. R.- B.," 
 A Judgment-debtor (or "A. 
 B.," A Third Person), in Pro- 
 ceedings Supplementary to 
 Execution upon a Judgment 
 entitled 
 
 COURT. 
 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Order allowing costs against 
 the judgment - creditor. 
 Code, § 2456. 
 
 Upon reading and fiKn^ the affidavit of , 
 
 verified on the day of , 189. ., the notice of motion 
 
 herein, the depositions taken upon the examination herein 
 
 (the certificate of , a referee appointed to take 
 
 the examination herein), and after hearing , 
 
 of counsel for , the judgm_^ent-debtor (or 
 
 , the third party, examined under section 2441 of 
 
 the Code of Civil Procedure). 
 
 Ordered, That the judgment-debtor (or 
 
 , said third person), be, and he is, hereby allowed 
 
 $ costs, together with the disbursements of these pro- 
 ceedings, which said disbursements are hereby taxed at 
 $ . . . , making in the aggregate the sum of $ 
 
222 Supplementary Proceedings. 
 
 It is further ordered that said sum of $...., together 
 with $10, the costs of this motion, is to be deducted from the 
 judgment of the judgment-creditor herein (or that said 
 
 sum of $. . . . be paid to said , the third party 
 
 examined in these proceedings, out of any money which 
 has come, or may come, to the hands of the receiver, or of 
 the sheriff in these proceedings). 
 
 , Judge. 
 
 Dated ...., 189.. 
 
 37. 
 
 .COURT. 
 
 In kk Examination op "E. E B.," 
 
 ATHiRBPERaoN(oB"E.R.B.," Q^^^^ f^j, paymGut of money 
 
 A Judgment debtor), in Pro- y .;C~'-. „-..^ 
 
 CBEDINGS StTPPLBMENTABY TO 
 
 Execution. 
 
 or costs. Code, § 2447. 
 
 ■ It appearing to me from the te?timony taken in these 
 
 proceedings that , the judgment-debtor, has in 
 
 his possession or under his control, money belonging to 
 him, and not exempt from these proceedings under section 
 2463 of the Code of Civil Procedure, his rights to which are 
 not substantially disputed (or it appearing to me by the tes- 
 timony of , the judgment-creditor), that the 
 
 costs and expenses of the judgment-creditor in these pro- 
 ceedings amount to the sum of $ .... , and that the same 
 have been duly taxed by me, at said sum; and it further 
 
 appearing that , the said , aftor the 
 
 service of the order of injunction in these proceedings upon 
 
 him, transferred property of the judgment-debtor 
 
 of the value of $ .... , not exempt from these proceedings 
 by section 2463 of the Code of Civil Procedure, it is 
 
 Ordered and adjudged and I hereby order and adjudge 
 
 that by the said acts of the said , the rights and 
 
 remedies of in these proceedings have been im- 
 paired, impeded and prejudiced. It is further ordered that 
 pay the said the said sum of $ . . . , 
 
FoEMS. 225 
 
 as taxed and fixed by this order, within .... days from the 
 personal service of this order' upon him. (It is, therefore, 
 
 Ordered, that said pay the said money to , 
 
 sheriff of [or to , receiver in these 
 
 proceedings].) 
 
 , Judge. 
 
 Dated , 189.. 
 
 38. 
 
 J 
 
 Affidavits of Service op Order and Demand of Pay- 
 ment OR Delivery of Property. Code, § 2268. 
 
 COUET. 
 
 (Title of matter.) 
 
 County, ss: 
 
 , being duly svirorn, says he is 
 
 that at , on the day of , 189. ., he served 
 
 the annexed order and demand upon , the , 
 
 by delivering to and leaving with him personally copies 
 thereof, and at the same time deponent exhibited to the 
 
 said the original order, with the signature of 
 
 the judge by whorn it was subscribed, and the original de- 
 mand with the signature of , by whom it was 
 
 subscribed. That deponent remained with said for 
 
 for the purpose of receiving the property mentioned in 
 
 said order and demand, and that deponent was authorized 
 to accept the said property as appears by the said written 
 demand. 
 
 Deponent further says that said then neg- 
 lected and refused, and has since neglected and refused to 
 comply with said order and demand. 
 
 (Signature of affiant.) 
 
 Sworn to before me this day of , 189. . 
 
 (Annex order and demand. ) 
 
^^3 
 
 224 /Supplementary Ppoceedings. 
 
 39. 
 
 Affidavit for an Order to Show Cause why Party 
 should not be punished for neglecting to appear. 
 Code, § 2269. 
 
 COUET. 
 
 (Title of matter.) 
 
 r 
 
 County, ss. : 
 
 being duly sworn says he is , 
 
 that on the .... day of ... . 189 . . , an order was duly issued 
 by Hon , county judge, of , in a proceeding en- 
 titled, In the matter of the examination of "E. R. B." a 
 judgment-debtor in proceedings supplementary to execu- 
 tion, which said order, together with the af3fidavit upon 
 which it was founded, was duly served upon "E. R. B.," 
 
 the said judgment-debtor on the. . . .day of , 189. ., as 
 
 appears by the affidavit of attached to the said 
 
 affidavit and order, copies of which said affidavit and order , 
 are hereto annexed and form a part of this affidavit, y: That 
 at the time and place mentioned in said order the judgment- 
 creditor therein mentioned duly appeared before said 
 
 referee (by , his attorney), ready to proceed 
 
 with the examination of the judgment-debtor. That , 
 
 the said judgment-debtor, did not appear before the said 
 referee at the time and place mentioned in said order (or at 
 any other time and place). 
 
 That deponent (the judgment-creditor) paid out for the 
 
 attendance of , his counsel in preparing the 
 
 papers in said proceedings and for attending before said 
 
 referee, the sum of $...., deponent also paid , 
 
 the said referee, % , his fees for attending said proceed- 
 ings. (That subsequent to the service of said order upon 
 
 , the said judgment-debtor, he transferred and 
 
 disposed of of the value of $ , which he 
 
 owned and was in possession of at the time of the service 
 of said order, and which was not exempt from these pro- 
 ceedings by section 2463 of the Code of Civil Procedure. 
 
Forms. 225 
 
 That before the said referee entered upon the said ex- 
 amination he duly took the oath prescribed by section 2i45 
 of the Code of Civil Procedure, a copy of which is hereto 
 annexed and forms a part of this affidavit. That upon said 
 
 examination , the judgment-debtor was duly 
 
 sworn by the said referee and the following questions were 
 , duly propounded to the said witness. "Did you, on or about 
 
 the day of . . . , 189 . . , transfer to 
 
 " " Have you, since the' order in this proceeding 
 
 was served upon you, executed and delivered a mortgage 
 
 on to ? which said questions 
 
 the said judgment-debtor refused to answer, al- 
 though duly directed so to do by the said referee, as appears 
 by the certificate of the said referee hereto annexed and 
 which forms a part of this affidavit. 
 Sworn to before me this day of , 189 . . 
 
 (Signature of affiant.) 
 (Title to cause.) 
 
 Upon the annexed affidavit, and upon aU the proceedings 
 
 in this matter, let the judgment-debtor (or 
 
 A. B.) show cause before me (or at a term of this court set 
 
 down to be held at the court house in on the 
 
 day of . . . . , 189 . . , at A. m.) at my chambers in the 
 
 city of on the . . . . day of . . . ., 189. ., at . . . . 
 
 A. M., why should not have a rule or order : 
 
 I. That be punished for contempt in .... 
 
 II. For such other, further or different relief, as to the 
 court may seem meet, with costs of this motion. 
 
 Let this order and the annexed affidavits be served upon 
 
 the said personally on or before p. m. of 
 
 the .... day of , 189.., and such service shall be 
 
 deemed sufficient. 
 
 , Judge. 
 
 Dated ...., 189.. 
 29 
 
226 Supplementary. Proceedings. 
 
 40. 
 
 Order for Commitment Under Code, § 2267. 
 
 OOUET. 
 
 (Title of matter.) 
 
 Whereas, I as judge did, on 
 
 the .... day of . . . ., 189. ., upon the proper affidavit, make 
 an order in the above proceeding upon a judgment in the 
 
 court wherein was plaintiff, and 
 
 was defendant, whereby it was ordered that 
 
 the judgment -debtor appear before me and b^ ex- 
 amined concerning his property on the day of , 
 
 189. ., at A. M. And whereas it appears to me by the 
 
 affidavit of verified , 189. ., that a copy 
 
 of thp order and the affidavit on which it was founded was 
 duly and personally eerved upon said as re- 
 quired by section 2452 of the Code of Civil Procedure, and 
 
 whereas the said duly appeared before me at 
 
 the time and place mentioned in said order, and whereas 
 
 the said after such appearance, refused to be 
 
 sworn or to take the oath required by l&,w although directed 
 to do so by me. 
 
 That , the said judgment-creditor, duly at- 
 tended before me at said time by , his attor- 
 ney, and duly moved said examination. And whereas it 
 
 appears to me by the affidavit of verified on 
 
 the .... day of . . . . , 189 . . , that the said 
 
 judgment-creditor paid out $ .... to , his said at- 
 
 toi'ney, for services upon examination, and $ . . . . to the 
 sheriff for his fees in these proceedings. 
 
 It is therefore ordered and adjudged that by such neglect 
 
 and refusal of the said to be sworn as afoi'esaid, 
 
 aright or remedy of ...the judgment-creditor herein 
 
 may be and was impaired, impeded or prejudiced. It is 
 further ordered and adjudged that the costs and expenses 
 of the said judgment-creditor be and the same is hei-eby 
 
Forms. 227 
 
 taxed at the sum of $ It is -further ordered that the 
 
 said pay the said the said sum of $ , and 
 
 that he be committed to the common jail of the county 
 until he pays such sum of money, and appears and submits 
 to an examination as required by the order for examination 
 herein. 
 
 , Judge. 
 
 Dated , 189.. 
 
 41. 
 
 Order for Warrant op Attachment. Code, § 2268. 
 
 (Title of matter.) 
 
 It appearing to me by the affidavit of , verified 
 
 on the... .day of....,- 189.., that the order and written 
 demand annexed to said affidavit were duly served on 
 
 ; , on the .... day of .... 189 .. , and that . , 
 
 has refused and neglected to pay the sum of money therein 
 ordered to be paid or any part thereof, it is, therefore, or- 
 dered that a warrant be issued herein, under section 2268 
 of the Code of Civil Procedure, directed to the sheriff of the 
 
 county of , commanding him to take the body of the 
 
 said , if he shall be found in his bailiwick, and 
 
 commit him to the common jail of , and to detain 
 
 him therein until he shall pay the said sum of $...., or 
 until discharged by an order of this court, or until the ex- 
 piration of six months from the time he is taken into his 
 custody on said warrant. 
 
 , Judge. 
 
 Dated , 189.. 
 
228 SUPPLEMENTABY PROCEEDINGS. 
 
 42. 
 
 Warrant of Attachment. Code, § 2268. 
 
 COUET. 
 
 (Title of matter.) 
 
 The People of the State of New York, lo the Sheriff of the 
 
 county of , Greeting : 
 
 Whereas, I, , as did on the. . .day 
 
 of. . . ., 189. ., upon the proper affidavit, make an order in 
 the above-entitled proceedings, whereby it was ordered and 
 
 adjudged that had , and that his said acts 
 
 had impaired, impeded and prejudiced the rights and reme- 
 dies of , the judgment-creditor herein, and whereas, 
 
 the amount of the said judgment-creditor's costs and ex- 
 penses, and the amount of the fine imposed, were duly 
 taxed and fixed upon proper proof. 
 
 Now, therefore, we command you to take the body of the 
 
 said » .and commit him to the common jail of your 
 
 county, and keep and detain him therein, until he shall pay 
 the said sum of . . . .dollars so ordered to be paid. 
 
 (Signature of judge.) 
 
 Dated , 189.. 
 
 Attorney for the judgment-creditor, 
 
 , N. T. 
 
 4S. 
 
 Warrant of Commitment. 
 
 The People of the State of New York, to the Sheriff of 
 county, Greeting : 
 
 Whereas, On the. . . .day of , 189. ., by a certain 
 
 order made by me, In re examination of " E. R. B.," a 
 judgment-debtor in proceedings supplementary to execu- 
 
Forms. 229 
 
 tion upon a judgment entitled, court, " W. 
 
 C. S." V. " E. R. B.," it was ordered that the said " E. R 
 B." pay to the said " W. C. S." (or " G. W. B.," his attor- 
 ney), the sum of dollars, the costs and disbursements 
 
 allowed in the supplementary proceedings. And that the 
 said ",E. R. B." be committed to the common jail of the 
 
 county of until he pay said sum, and until he appear 
 
 and be examined before me as directed in the original order 
 
 of examination herein, and whereas the said order of , 
 
 189.., is made a part of this commitment, and a copy 
 thereof is hereto attached. 
 
 Now, thei-efore, we command you to take the body of the 
 said " E. R. B." if he shall be found in your bailiwick and 
 
 commit him to the common jail of the county of , 
 
 and akeep and detain him therein under your custody until 
 he shall pay the said sum of .... dollars so ordered to be 
 paid, and until he appears before me and submits to an ex- 
 amination as required by the order of examination herein, 
 or until some further order in the premises, not to exceed 
 six months. 
 
 Given under my hand this day of , 189. .. 
 
 , Judge. 
 
 - 
 
 44. 
 
 
 Attachment, Warrant of. 
 
 Code, §§ 2269, 2273 
 
 COURT. 
 
 
 
 The People ex rel. 
 
 
 W. C. S. 
 
 V. 
 
 - 
 
 
 E. R. B. 
 
 
 
 The People of the State of New York, to the Sheriff of 
 
 the County of , Greeting : 
 
 Whereas, I as did on the 
 
 day of . . . ., 189. ., upon the proper affidavit, make an order 
 
230 Supplementary Proceedings. 
 
 in a certain proceeding entitled "In re examination of 
 'E. E. B.,' a judgment-debtor (or 'A. B.,' a third per- 
 son), in proceedings supplementary to execution upon a 
 
 judgment entitled, court, 'W. 0. S.' v. 'E. E. 
 
 B.,' " whereby it was ordered that it be referred to 
 
 . . . . , Esq., to examine , as prescribed by sec- 
 tions 2435 and 2442 of the Code of Civil Procedure, and 
 whereby it was also further ordered and directed that the 
 
 said appear before the said referee at 
 
 where he then' resided and still resides, on the day of 
 
 . . . ., 189. ., at , A. M., and submit to an examination 
 
 as therein directed, and whereas, it appears to me by the 
 
 affidavit of verified on the .... day of. . . ., 189. ., 
 
 that the said order and the said affidavit upon which it was 
 issued was duly served upon the said as re- 
 quired by section 2452 of the Code of Civil Procedure, and 
 
 it further appears to me by the affidavit of that 
 
 , the referee, attended at the time and place 
 
 mentioned in said order and called the said matter and 
 there remained for one hour, prepared to take such ex- 
 amination, and that , attorney for , 
 
 duly attended before said at the said time and 
 
 place mentioned in the said oMer to examine the said 
 
 , and that during that time said failed 
 
 to appear before the said referee at the place where he was 
 by said order directed to appear. 
 
 Now, therefore, we command you to attach 
 
 and bring him before me at my chambers, in 
 
 the of on the .... day of ,189 , to 
 
 answer for his alleged misconduct in not obeying said order. 
 
 We further command you, that at the time you arrest 
 
 the said , that you deliver to and leave with 
 
 him personally copies of this warrant and the affidavit upon 
 which it was issued. 
 
 (Signature of judge.) 
 
 Dated ...., 189. 
 
 (Name and address of attorney for judgment-creditor.) 
 
Forms. 231 
 
 45. 
 
 Indorsement under Section 2277 of the Code. 
 
 Let , the , give security for his 
 
 appearance by an undertaking as prescribed by section 2277 
 
 of the Code of Civil Procedure, in the penalty of 
 
 dollars. 
 
 , Judge. 
 
 Dated ,189... 
 
 46. 
 
 COURT. 
 
 The People ex kel. 
 W. C. 8. 
 
 V. 
 
 E. R. B. 
 
 Attachment, indorsement, 
 etc., under Code, §§ 2269, 
 2273, 2275. 
 
 The People of the State of New York to the Sheriff of the 
 
 County of Greeting : 
 
 We command you that you attach "E. E. B." so as to have 
 
 his body before our court, at a term thereof 
 
 set down to be held at the court house in the city of 
 
 , on. the .... day of — , 189 . . , at . . . . a. m., there 
 
 to answer unto us as to his alleged contempt in refusing to 
 
 obey the order of Hon in the matter of the 
 
 examination of "E. E. B.," a judgment-debtor, in proceed- 
 ings supplementary to execution, and such other matters as 
 shall then and there be brought against him. 
 
 Let copies of this warrant, the order directing this war- 
 rant to issue, and the affidavits upon which said order was 
 
 founded, be served upon the said at the time 
 
 of his arrest. 
 
232 Supplementary Proceedings. 
 
 Witness Hon. , one of the justices of our 
 
 said court, at , the day of , 189. . 
 
 , Clerk. 
 
 Attorney for relator. 
 
 ,N. Y. 
 
 47. 
 
 (Indorsement.) 
 
 Issued by order of the court. 
 
 Let the said give an undertaking as re- 
 quired by section 2277 of the Code of Civil Procedure, in 
 
 the sum of dollars. If the said gives 
 
 said undertaking the sheriff may discharge him. 
 
 , Clerk. 
 
 48. 
 
 (Eeturn of sheriff.) 
 
 I have attached "E. E. B." and discharged him upon his 
 
 giving the undertaking prescribed by the indorsement upon 
 
 the within warrant, which said undertaking is herewith 
 
 returned. 
 
 , Sheriff. 
 
 Dated ...., 189.. 
 
 By virtue of the within warrant of attachment I have 
 
 arrested , and for want of undertaking have 
 
 him before the court. 
 
 , Sheriff. 
 
 Dated ...., 189.. 
 
FoEMS. 23S 
 
 49. 
 
 .COUET. 
 
 Thb People ex. rel. 
 W. C. S. 
 
 «. 
 E. R. B. 
 
 Undertaking by party arrest- 
 ed on attachment. Code, 
 
 § 2277. 
 
 Know all men by these presents : The we, , 
 
 of the of principal, and of the 
 
 of manufacturer, and of the 
 
 of merchant, are held and firmly bound unto the 
 
 people of the state of New York in the penal sum of $ , 
 
 for which payment well and truly to be made we bind our- 
 selves jointly and severally, and our heirs, and each of our 
 heirs and representatives firmly by these presents. Sealed 
 with our seals, and dated the .... day of , 189 . . 
 
 Whereas, The above-named "E. E. B." has been arrested 
 
 upon a warrant of attachment issued by Hon 
 
 (or out of the court) in a proceeding for contempt 
 
 for disobedience to an order made in the matter of the 
 examination of "E. E. B.," a judgment-debtor, in proceed- 
 ings supplementary to execution upon a judgment entitled 
 
 ' court, "W. C. S." V. "E. E. B.," and whereas the 
 
 issuing said attachment by an indorsement 
 
 thereon fixed a sum in which the accused might give an 
 undertaking for his appearance to answer, as prescribed by 
 section 2275 of the Code of Civil Procedure- Now, there- 
 fore, the condition of this obligation is such that if the 
 above bounden "E. E. B." will appear at the time when, 
 and the place where, the said warrant is returnable, viz. : 
 
 and then and there abide the direction of the court (or 
 judge), then this obhgation to be void, otherwise to remain 
 in full force and virture. 
 Sealed and delivered in the presence of , . . . 
 
 [L. S.J 
 [L. S.] 
 [L. S.l 
 
 30 
 
234 Supplementary Proceedings. 
 
 State of New York, ) . 
 County I ■ ' 
 
 On this day of , 189. ., personally appeared be- 
 fore me and and 
 
 personally known to rae to be the persons who executed 
 the above undertaking, and severally acknowledged that 
 they executed the same for the purpose therein mentioned. 
 
 (Signature of officer.) 
 (Add affidavit of justification.) 
 
 50. 
 
 .COURT. 
 
 The People ex rel. 
 W. C. 8. 
 
 V. 
 
 E. R. B. 
 
 Warrant of commitment by 
 judge upon attachment. 
 
 The People of the State of New York, to the Sheriff of 
 
 County, Greeting : 
 
 Whereas, A judgment was duly recovered on the 
 
 <3ay of , 189 . . , in an action wherein 
 
 was plaintiff, and was defendant, in 
 
 favor of the said against the said 
 
 for $ ; and whereas, I did on the day of 
 
 , 189 .. , duly grant an order upon a proper affidavit for 
 
 the examination of on said judgment in pro- 
 ceedings supplementary to execution, and whereas, said 
 
 order and affidavit were duly served upon the said 
 
 and whereas a warrant of attachment was thereafter 
 
 issued by me and directed to the sheriff of the county of 
 
 , commanding him to arrest the said , 
 
 and whereas, the said has been duly arrested 
 
 on said attachment, and has appeared before me ; and in- 
 terrogatories have been duly filed and answered and affi- 
 davits and proofs in said matter have been duly filed and 
 •considered, and after hearing "J. A. J." of counsel for the 
 
Forms. 235 
 
 plaintiff, and " J. D. H." of counsel for the said 
 
 , it is ordered and adjudged, and I do hereby order and 
 
 adjudge that the said is guilty of the contempt 
 
 charged against him, and that such misconduct was cal- 
 culated to and did defeat, impair, impede or prejudice the 
 rights and remedies of the said plaintiff. 
 
 And whereas, the plaintiff's costs and expenses have been 
 found to be, and taxed by me at the sum of $...., and it 
 also having been found by me on competent proof that the 
 plaintiff has been injured by the said misconduct of the 
 
 said in the further sum of $ , making in 
 
 the aggregate the sum of $ ... . 
 
 Now, therefore, you are hereby commanded that you take 
 
 the body of the said and him closely keep in 
 
 your custody in the common jail of your county for the 
 period of six months or until he shall have paid the sum of 
 
 $ to the plaintiff herein ; or until the said 
 
 shall be discharged by the further order in the premises. 
 
 , Judge. 
 
 Dated ,189.. 
 
 J. A. J., attorney for plaintiff, 
 
 ,N. Y. 
 
 51. 
 
 Answer op Defendant in Contempt Pboceedings. 
 
 (Title of cause same as above.) 
 
 The defendant in the above-named proceedings answers 
 the plaintiff's affidavit and petition upon which the attach- 
 ment herein was issued as foUows : 
 
 I. That the judgment upon which the order for non-com- 
 pliance with which this attachment was issued was fully 
 paid prior to the application for said order. 
 
 II. That the order for non-compliance, with which this 
 attachment was issued, was not served upon the defendant 
 as required by the practice of this court. 
 
236 Supplementary Pkoceedings. 
 
 III. That the first execution issued upon the judgment, 
 upon which the supplementary proceedings were founded, 
 was not returned within ten years from the time of grant- 
 ing the order therein, and the judge never obtained juris- 
 diction. 
 
 IV. That the execution, upon which the supplementary 
 proceedings were founded, was not issued within the time 
 allowed by the Code of Civil Procedure, and the court never 
 obtained jurisdiction of the subject matter or the person of 
 the defendant. 
 
 V. That the order in proceedings supplementary to exe- 
 cution, foi' the examination of defendant, was not granted 
 by a judge of the county to which the execution was issued, 
 and the judgment-debtor did not reside at the time of mak- 
 ing the order in the county to which the execution was 
 issued, and therefore the judge never had jurisdiction to 
 issue the same. 
 
 Wherefore, the defendant asks that said writ of attach- 
 ment be dismissed with costs. 
 
 "E. E. B." 
 
 County, ss. 
 
 , being duly sworn, says that he is the 
 
 above-named defendant, that he has read the foregoing 
 
 answer, and that the same is true to the knowledge of 
 
 deponent, except as to the matters therein stated to be 
 
 alleged upon information and belief, and as to those 
 
 matters he believes them to be true. 
 
 "E. E. B." 
 
 Sworn to before me this day of , 189 . 
 
 53. 
 
 Order for Interrogatories under Code, § 2280. 
 (Title of cause.) 
 
 A warrant of attachment having heretofore issued against 
 the defendant "E. E. B.," and the defendant being now in 
 
Forms. 237 
 
 attendance under said attachment, and the defendant 
 having duly filed his answer denying the alleged contempt. 
 
 Now, on motion of , it is ordered that the 
 
 plaintiff do, within .... days, file in the county 
 
 clerk's office, and serve upon the defendant, interrogatories 
 
 touching the alleged contempt, and that the said 
 
 defendant make and file his answer on oath to such inter- 
 rogatories in said clerk's office, and serve a copy thereof 
 
 upon ' within days thereafter. And either 
 
 party may produce affidavits or other proofs conti'adicting 
 or corroborating any answers (or it is further ordered that 
 
 it be refered to "G-. H. G.," Esq., of , to examine 
 
 the said defendant on oath upon said interrogatoiies, and 
 to take such further proof as either party may produce be- 
 fore him in relation to the misconduct alleged, and that he 
 report the facts and testimony to me). 
 
 It is further ordered that the sheriff detain the said 
 defendant in his custody and produce him before the said 
 referee from time to time as the said referee may direct, 
 and produce him befoi'e me on the coming in of the said 
 
 referee's report therein. 
 
 , Judge. 
 
 S3. 
 
 Interrogatories under Section 2280, Code of Civil Pro- 
 
 CEDXJRE. 
 
 (Title of cause.) 
 
 Interrogatories to be administered to "E. R. B.," the 
 above-named defendant, touchiiig a contempt alleged 
 against him for the disobedience of an order made in the 
 matter of the examination of "E. E. B." in proceedings 
 
 supplementary to execution, upon a judgment entitled 
 
 .... court, ~"W. C. S." V. "E. R. B." for (state what the 
 contempt consists of). 
 
 First interrogatory. — Were you heretofore and on or 
 
 about the day of 189. ., served with an order, a 
 
 copy of which is hereto annexed, marked "A." If yea, 
 produce the copy order left with you. 
 
238 Supplementary Ppoceedings. 
 
 Second. — If to the last interrogatory you answer yea, 
 
 then state whether or not the said at the time 
 
 he served the said order upon you, delivered to and left 
 with you, a paper writing, a copy of which is hereto 
 annexed marked "B." 
 
 If you answer that such paper was left with you, then 
 produce the same attached to your answer herein. 
 
 Third. — Did you, at the time the said demand was served 
 upon you, refuse to pay the money (or deliver the property) 
 mentioned in said written demand ? 
 
 "J. A. J.," 
 Attorney for the plaintiff. 
 , N. Y. 
 
 54. 
 
 Answer to Inteeeogatobies under Code, § 2280. 
 (Title of cause.) 
 
 The defendant answers the plaintiff's interrogatories in 
 these proceedings as follows : 
 
 To the first interrogatory this defendant saith 
 
 (insert the defendant's answers). 
 
 To the second interrogatory the defendant saith, , 
 
 (Jurat.) 
 
 (Signature of " E. K. B.,") 
 
 55. 
 
 Order on Hearing after Return of Interrogatories. 
 
 (Title of cause.) 
 
 An order of attachment having been heretofore issued 
 
 herein against the body of , and he, having been 
 
 arrested thereon, and interrogatories having been duly filed 
 
Forms. 239' 
 
 by the plaintiff, and answers thereto by the defendant, and 
 it having been duly referred to ., Esq., to ex- 
 amine the said and take such further proofs as 
 
 either party might produce before him in relation to said 
 alleged contempt, and the said referee having made hi& 
 report, 
 
 Now, on reading and filing the said order of attachment, 
 the interrogatories and answers thereto, the report of the 
 
 said referee, and after hearing , of counsel for 
 
 plaintiff in favor of , and , of coun- 
 sel for , it is ordered and adjudged (that the at- 
 tachment issued in that case be, and the same is, hereby 
 
 discharged) that is guilty of the contempt 
 
 charged against him, and that such acts and misconduct 
 were calculated to and did actually defeat, impair, impede 
 or prejudice the rights and remedies of the plaintiff above 
 named. 
 
 It is further ordered and adjudged that the' costs and all 
 expenses of the plaintiff amount to, and are hereby taxed 
 at the sum of $ ... . 
 
 It is further adjudged that the plaintiff's actual loss or 
 injury produced by the said misconduct of the defendant is 
 $.... 
 
 It is therefore further ordered that a fine of $ .... be, and 
 
 the same is hereby imposed upon the said for 
 
 his misconduct, to be paid by him to the said plaintiff to 
 indemnify the latter for his loss or injury. 
 
 It is further ordered and adjudged that the said 
 
 stand committed to the common jail of the county of 
 
 until the said fine is paid, unless sooner discharged ; and 
 that a warrant issue to carry this order into effect. 
 
 , Judge. 
 
240 Supplementary PiiocEEDiNOs 
 
 56 
 
 Order of Court that an Attachment Issue. 
 
 Afc a special term of the supreme court held at 
 
 the city of in and for the county of 
 
 on the. . . .day of . . . ., 189. ., 
 
 Present— Hon , 
 
 Justice. 
 (Title of cause.) 
 
 On reading and filing the affidavit of, , verified 
 
 on the. . . .day of 189. ., the order to show cause herein, 
 
 the affidavit of , verified on the day of , 
 
 189 . . , showing the personal service on , on the 
 
 . . .day of. . ., 189. ., of the order thereto annexed, made by 
 
 Hon in the matter of the examination of " E. 
 
 E. B.," a judgment-debtor in proceedings supplementary to 
 
 execution upon a judgment entitled .court, " W. C. 
 
 S. V. E. E. B.," requiring the said "E. E. B." to deliver 
 
 certain personal property therein specified to , 
 
 sheriff of (or to , receiver in said pro- 
 ceedings), and showing a demand of said "E. E. B." on 
 
 the day of , 189 .. , and a refusal by said 
 
 to deliver the same, or any part thereof, 
 
 Now, on motion of , of counsel for , 
 
 in favor of said motion, and after hearing , of coun- 
 sel for , it is ordered and adjudged that said acts of 
 
 the said "E. E. B." have impaired, impeded and preju- 
 diced the rights and remedies of said in said 
 
 proceedings. 
 
 It also appearing that the value of the said property was 
 
 of the value of $ , and that the costs and expenses of 
 
 the said amount to the sum of $ , at which 
 
 sum they are hereby taxed. It is further ordered that an 
 attachment as for contempt be issued against the said 
 
 , returnable at a term of this court set down to 
 
 be held at the court house in the , on the day 
 
 of , 189.., at. .A. M. 
 
Forms. 
 
 241 
 
 It is further ordered that acopy of the warrant of attach- 
 ment, of this order and of the affidavits upon which it is 
 issued, be served upon the said when he is arrested. 
 
 57. 
 
 .COURT. 
 
 In the Mattbb of the Applica- 
 Tioir FOR A Wkit of Habeas 
 Corpus in 
 
 The People ex rel. "A. B." 
 
 i>. 
 
 "C. D." 
 
 Petition for a writ of habeas 
 corpus. Code, § 2278. 
 
 To , judge of : 
 
 The petition of respectfully shows that he 
 
 is a judgment-creditor of ; and that on the 
 
 day of , 189. ., a judgment was duly rendered in 
 
 court, in an action wherein "W. 0. S." was 
 
 plaintiff and was defendant, in favor of the 
 
 plaintiff and against the defendant therein for $ , that 
 
 the judgment-roll in said action was duly filed and the 
 judgment therein duly docketed on the aforesaid day in the 
 
 office of the clerk of , reference to which is hereto 
 
 had, and the same is made a part of this petition ; that 
 
 afterwards and on or about the day of , 189. ., an 
 
 execution on said judgment was duly issued and dehvered 
 
 to the sheriff of , where the said judgment-debtor 
 
 then resided and yet resides, and that said execution has 
 been duly returned by said sheriff wholly unsatisfied, and 
 the said judgment remains wholly unpaid ; that on or 
 
 about the .... day of , 189 .. , Hon upon 
 
 proper affidavit duly issued an order under section 2435 of 
 
 the Code of Civil Procedure for the examination of 
 
 , which said order, and the affidavit upon which it was 
 
 issued, were duly served upon the said as pre- 
 scribed by section 2452 of the aforesaid Code, which said 
 order, affidavit- and affidavit of service are hereto annexed 
 31 
 
242 Supplementary Proceedings. 
 
 and made a part of this petition. That afterwards and on 
 
 or about the day of , 189. ., the said judge, from 
 
 the examination and testimony in said proceedings, duly 
 
 made an order directing to deliver to 
 
 . . . . , sheriff of (or , receiver in said 
 
 supplementary proceedings), certain property in said order 
 mentioned, which said order is hereto annexed and forms 
 a part of this petition ; that said last-named order was duly 
 
 served upon the said , and at the same time a 
 
 written demand was made upon the said to 
 
 deliver the said property as aforesaid, which said order, 
 written demand and proof of service thereof, are hereto an- 
 nexed and form a part of this petition. Your petitioner 
 
 further shows that the said refused and 
 
 neglected to comply with the last-mentioned order as ap- 
 pears by the affidavit of hereto annexed, and 
 
 which forms a part of this petition. That afterwards the 
 
 said was, and now is in the custody of the 
 
 sheriff of on an execution against his person a,nd 
 
 an attachment cannot issue herein. 
 
 Wherefore, your petitioner prays that a writ of habeas 
 corpus issue herein as prescribed by section 2278 of the Code 
 
 of Civil Procedure, and that the said be dealt 
 
 with as prescribed by section 2282 of said Code. 
 
 "W. C. S." 
 County, ss. : 
 
 being duly sworn, says he has read the fore- 
 going petition, and that the same is true to the knowledge 
 of deponent except as to those matters therein stated to be 
 alleged upon information and belief, and as to such matters, 
 
 he believes them to be true. 
 
 "W. C. S." 
 
 Sworn to before me this day of , 189 . . 
 
•Forms. 243 
 
 58. 
 Habeas Corpus. Code, § 2278. 
 (Title of cause.) 
 
 The People of the State of New York, to the Sheriff of 
 
 the County of , Greeting : 
 
 It appearing by the petition of this day read 
 
 and filed, that there is good reason to believe that . . 
 
 is guilty of a contempt in refusing and neglecting 
 
 to obey an order made by in proceedings sup- 
 plementary to execution in the matter of the examination 
 
 of , a judgment-debtor, and it a,lso appearing 
 
 by said petition that the said is in your cus- 
 tody, we therefore command you that you have the body 
 
 of said before at 
 
 on the day of , 189 . . , at A. M., and on such 
 
 other days and times as shall order and direct, 
 
 in your custody, under safe and secure conduct, to answer 
 for his contempt as prescribed by section 2282 of the Code 
 of Civil Procedure. 
 
 , Judge. 
 
 Dated , 189.. 
 
 "J. A. J.," Attorney for Plaintiff, 
 
 N. Y. 
 
 S9. 
 
 Commitment for Neglect to Pay Money or Costs. Code, 
 
 § 2282. 
 (Title of cause.) 
 
 The People of the State of New York, to the Sheriff of 
 
 Greeting: 
 
 Whereas, on the day of 189. ., by an order 
 
 made by in this action, it was ordered that the 
 
244 Supplementary Proceedings. 
 
 said be committed and imprisoned, charged with 
 
 the contempt mentioned in said order, which imprisonment 
 
 should commence upon the 's discharge from 
 
 custody under the mandate by virtue of which the sheriff 
 
 of now holds the said , and that the 
 
 said be then kept in confinement until he shall 
 
 have paid the fine therein imposed upon him for his mis- 
 conduct, amounting to $ ... . 
 
 Now, therefore, we command you that upon the dis- 
 charge of the said from custody, under the man- 
 date, by virtue of which he is held by you, you take the 
 
 body "of the said , and him safely and closely 
 
 keep jn jour custody in the common jail of the county of 
 
 . . . ., , until he shall fully pay the fine imposed, as 
 
 aforesaid, to- wit., the sum of $ , or until he shall be dis- 
 charged by the further order of the court. 
 
 , Judge. 
 
 Dated , 189.. 
 
 "J, A. J.," Plaiatifif's Attorney, 
 
 ,N. Y. 
 
 60. 
 
 Oedeb foe Commitment Until Payment of Fine. Code, 
 
 § 2282. 
 (Title of cause.) 
 
 On reading and filing the petition of , the 
 
 above-named plaintiff, to which are annexed the affidavit 
 
 and order for the examination of , the , 
 
 with proof of service thereof, the testimony taken under 
 said order, the order for the delivery of certain property by 
 
 to the sheriff of ........ (or to the x'eceiver 
 
 therein), a written demand upon said to deliver 
 
 as aforesaid, together with proof of service of the same 
 
 upon the said , the affidavit of , 
 
 verified on the. . . .day of . . . .189. ., showing a refusal and 
 
Forms. 245 
 
 neglect of said , to comply with said order and 
 
 demand, the writ of habeas corpus herein, with the return 
 of the sheriff therein, and the said having ap- 
 peared personally, and interrogatories specifying tT:ie facts 
 and circumstances alleged against him, having by order 
 of the court been filed, and a copy thereof having been 
 
 served on him, ani the answer of to the 
 
 petition, and his answers to the interrogatories, having 
 been duly filed, and it having been referred to "G. H. G.," 
 
 Esq. . to examine the said and take such further 
 
 proofs as either party might produce before him in relation 
 to the alleged contempt, and the said referee having certi- 
 fied the said testimony to , and having filed his 
 
 report, and it appearing to , from such report and 
 
 the testimony taken by him, and the affidavits and petition, 
 that the said is guilty of the contempt charged, 
 
 It is ordered and adjudged that the said is guilty 
 
 of the contempt charged, and that said misconduct of the 
 defendant was calculated to and did actually defeat, impair, 
 impede or prejudice the rights and remedies of the plaintiff 
 herein. It is further ordered and adjudged that the value 
 
 of the property which the said , was of 
 
 the value of S . . . . It is further ordered and adjudged that 
 the plaintiff's actual costs and expenses in regard to 
 the said contempt proceedings, is taxed at the sum of $. . . . 
 
 It is further ordered that a fine of $ , the amount of the 
 
 above-named items, be and the same is hereby imposed 
 
 upon the said .for his misconduct, to be paid by 
 
 him to the said plaintiff. 
 
 It is further ordered that the said be committed 
 
 until the payment of the said sum of $ , upon his dis- 
 charge from custody under the mandate by virtue of which 
 he is held by the sheriff, as prescribed by section 2282 of 
 the Code of Civil Procedure. 
 
 That a commitment issue accordingly. 
 
 , Judge. 
 
 Dated , 189.. 
 
 Plaintiff's Attorney. 
 
 , N. Y. 
 
246 SUPI'LEMENTARY PkOCEEDINGS. 
 
 61. 
 
 Order for Commitment for PuNiaHMENX. Code, § 2283. 
 (Title of cause.) 
 
 An order to show cause having been heretofore issued by 
 me as prescribed by subdivision 1 of section 2269 of the 
 Code of Civil Procedure, why the defendant should not be 
 punished for contempt for disobeying an order requiring 
 him to deliver certain personal property to the sheriff of 
 
 (or to , a receiver) made by me in 
 
 proceedings supplementary to execution, upon a judgment 
 
 entitled court, " W. C. S." v. " E. E. B.," on 
 
 the day of . . . ., 189. ., which said order and the affi- 
 davit upon which it was issued was duly served upon the 
 
 said on the day of , 189 . . , 
 
 and the said having duly appeared upon said 
 
 order to show cause, and it having been duly referred by 
 
 me to to take the testimony of the parties 
 
 herein as to the contempt charged, and said referee having 
 duly taken such testimony and reported the same to me. 
 
 Now, upon reading and filing the affidavit of , 
 
 verified on the .... day of . . . ., 189. . ; the affidavit of 
 
 , verified on the .... day of . . . . , 189 . . ; the 
 
 orders in supplementary proceedings, the testimony taken 
 by the "said referee, and all the orders and proceedings in 
 
 this action, and after hearing , of counsel for 
 
 the plaintiff, and , of counsel for defendant, it 
 
 is ordered and adjudged, and I do hereby order and adjudge, 
 
 that the said is guilty of the contempt 
 
 charged against him, and that such misconduct was 
 calculated to, and actually did, defeat, impair, impede 
 or prejudice the rights and remedies of the said plain- 
 tiff. It is further ordered and adjudged that the 
 value of the property which the defendant refused and 
 
 neglected to deliver to ... sheriff (or 
 
 receiver) was and is of the value of $...., and that the 
 plaintiff's costs and expenses have been taxed by me upon 
 
Forms. 247 
 
 J)roper proof at the sum of $ It is further order that 
 
 be confined in the common jail of 
 
 county for the period of six months, or until he shall have 
 fully paid the sum of $ ... . to the plaintiff herein, which 
 
 fine is hereby imposed upon said for his said 
 
 misconduct. 
 It is further ordered that upon a certified copy of this 
 
 order the sheriff of may arrest the said 
 
 and keep him as aforesaid v^ithout further process. 
 
 , Judge. 
 
 Dated ...., 189.. 
 
 ©3. 
 
 .COURT. 
 
 In re Examination of "E. R 
 b.," a judgmbnt-debtok, in 
 Pbocbedinqs Supplementakt 
 TO Execution upon a Judg- 
 ment ENTITLED 
 
 COURT. 
 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Affidavit for order appoint- 
 ing receiver. Code, § 2465. 
 
 J 
 
 County, ss : 
 
 being duly sworn, says he is 
 
 that upon the annexed affidavit of , an order 
 
 vpas duly made herein by for the examination 
 
 of , which said order is hereto annexed. 
 
 That no action, under sections 2432-2461 of the Code of 
 Civil Procedure, is pending against the judgment-debtor 
 herein (or that another proceeding supplementary to execu- 
 tion is pending against the judgment-debtor, in which 
 
 of is the judgment-creditor, and a 
 
 receiver has not been appointed therein). That the judg- 
 ment-debtor has property applicable to the payment of the 
 judgment herein, viz. : 
 
 Sworn to before me this day of , 189 . . 
 
248 
 
 Supplementary Pkoceedings. 
 
 63. 
 
 Notice op Application foe Appointment of Eeceiver. 
 
 (Title of matter.) 
 
 Take notice that upon the annexed afifidavit and order 
 
 for examination, and the affidavit of , and 
 
 upon all the pleadings and proceedings in this matter, the 
 
 undersigned will apply to the Hon , to whom 
 
 the said order for examination is returnable, at his cham- 
 bers in the city of " on the . :?. . day of i^^-f .,-189 . ., 
 
 at IP. . A. M. of that day for a rule or order. 
 
 I. Appointing receiver herein, as prescribed 
 
 by sections 2464-2470 of the Code of Civil Procedure. 
 
 II. For such other, further or different relief, a&to the 
 judge may Seem meet, with costs. 
 
 Yours, etc.. 
 
 Attorney for judgment-creditor. 
 Dated...., 189.. 
 
 (Address debtor or his attorney.) 
 
 64. 
 
 .COURT. 
 
 In the Matter of the Examina- 
 tion OF "E. E. B.," A JUDG-- 
 
 mbnt-debtor (ob "a. b.," a 
 third person), in proceedings 
 Supplementary to execution 
 UPON A Judgment entitled 
 
 COURT. 
 
 W. C. S. 
 
 V. 
 
 E. R. B. 
 
 Order appointing receiver. 
 Code, § 2464. 
 
 Whereas, An order for the examination of 
 
 under section 2435 (or section 2436 or 2441, o^ a warrant 
 
Forms. 249 
 
 under section 343Y) of the Code of Civil Procedure, was 
 heretofore duly made returnable to me, upon the proper 
 
 affidavit, upon a judgment in a certain action, in the 
 
 court, wherein was plaintiff and 
 
 was defendant (whereby it was ordered that it be 
 
 referred to to take the examination as pre- 
 scribed by sections 244:2-24:44: of the Code, and whereas said 
 referee has certified to me the testimony given in proceed- 
 ings had before him). And whereas, it appears to me, by 
 
 the affidavit of , verified on the day of 
 
 . . . . , 189 . . , that notice of application for an order that a 
 
 receiver be appointed herein, was on the day of , 
 
 189 . . , duly and personall}'" served upon , and 
 
 that no other proceeding supplementary to execution is now 
 pending against the judgment-debtor herein, nor is any 
 action pending against the judment-debtor under sections 
 1871-1879 of the Code of Civil Procedure. 
 
 Now,_ on reading and filing the affidavit and order of ex- 
 amination herein, and proof of service of notice of applica- 
 
 , tion, and on motion of , of counsel for the 
 
 judgment-creditor, and , . . , of counsel for the 
 
 judgment-debtor, 
 
 I hereby order that of the be, 
 
 and he hereby is appointed receiver of all the debts, property, 
 equitable interests, rights and thiiigs in action, of the said 
 judgment-debtor, that such receiver, before he enter upon 
 the execution of his trust, execute a bond as prescribed by 
 section 715 of the Code of Civil Procedure, in the penalty of 
 $...., to be approved by me, and file the same in the office 
 prescribed by section 2467 of the aforesaid Code. 
 
 I also order that the judgment-creditor recover 
 
 dollars costs, and his disbursements in these proceedings, 
 which disblirsements are hereby taxed at the sum of 
 $...., and that said costs and disbursements be paid to him 
 or his attorney out of the funds of the said judgment debtor, 
 
 that come to the hands of the receiver. And the said 
 
 judgment-debtor is hereby restrained from transfer- 
 
 ing or disposing of his property, or in any manner interfer- 
 ing therewith, until further order in the premises. 
 
 It is further ordered that ' the said judgment- 
 debtor, upon being served with a certified copy of this order, 
 32 
 
250 - Supplementary Pkoceebings. 
 
 ^nd of notice of filing of the bond prescribed by this order, 
 deliver to the said receiver all property and money now in 
 his possession, or under his control, belonging to him and 
 not e?:empt by section 2463 of the Code of Civil Procedure. 
 
 , Judge. 
 
 Dated 189.. 
 
 65. 
 
 COUET. 
 
 (Title of cause.) 
 
 Know all men by these presents : That we 
 
 of , of , and 
 
 of are held and firmly bound unto the 
 
 people of the state of New York, in the sum of 
 
 dollars, for which payment well and truly to be made, we 
 jointly and severally bind ourselves, our and each of our 
 heirs and representatives, firmly by these presents. 
 
 Sealed with our seals. 
 
 Dated the day of , 189. . 
 
 "Whereas, by an order dated the day of , 189. ., 
 
 made by Hon in proceedings supplementary to 
 
 ■execution under section 2464 of the Code of Civil Procedure, 
 
 upon a judgment in the court, wherein 
 
 was plaintiff, and defendant, the above bounden 
 
 was appointed receiver of the property and 
 
 effects of the said , the judgment-debtor. Now 
 
 the condition of this obligation is such that if the above 
 
 bounden shall faithfully discharge his duties as 
 
 such receiver, and render account to the court whenever 
 directed to do, so, then this obligation to be void, otherwise 
 to remain in full force. 
 
 Sealed and delivered in the presence of 
 
 (L. S.) 
 (L. S.) 
 (L. S.) 
 
Forms. 251 
 
 County, ss.: 
 
 On this — day of — , 189 .. , personally appeared before 
 me and and , the per- 
 sons named in and who executed the above bond, and sev- 
 erally acknowledged that they executed the same for the 
 purposes therein mentioned. 
 
 (Officer's signature.) 
 
 (Add justification of sureties.) 
 I approve the within bond as to form, and as to the suffi- 
 ciency of the sureties. 
 
 , Judge. 
 
 Dated ,189.. 
 
 66 
 
 Inventory of Receiveb. 
 
 COURT. 
 
 (Title of matter.) 
 
 An inventory of the real and personal estate of , 
 
 a judgment-debtor, taken by under an order 
 
 made herein under section 2464 of the Code of Civil Pro- 
 cedure, the day of , 189. . 
 
 I. Books debts. 
 
 I find upon the books of an account against 
 
 of $....for 
 
 One again&t of , etc., etc. 
 
 II. Mortgages, stock, bond, notes, etc. 
 
 I find among the papers that have come to my hand as 
 receiver, the following: 
 
 A note made by 
 
 A 
 
 III. Leases and real estate. 
 
 A lease of a hotel and premises in , from 
 
 to , for the term of ... . years. 
 
252 Supplementary Pbooeedings. 
 
 iV. stock. 
 One show case. 
 
 Ten large lamps, etc., etc. 
 
 (Signature of receiver.) 
 
 County, ss.: ■ 
 
 being duly sworn says he is the receiver 
 
 above named, that the above is a true inventory of the 
 
 property and effects of , committed to his care 
 
 as such receiver, so far as the same has come to his knowl- 
 edge. (Signature of receiver.) 
 Sworn to before me this. . . .day of . . . ., 189. . 
 
 67. 
 
 Notice by Eeceivee and Demand of Property. 
 
 COUET. 
 
 (Title of matter.) 
 
 Take notice of an order filed in the clerk's office 
 
 the day of , 189. ., of which the within is a copy. 
 
 That I have given and filed a bond as required by said 
 order, and that I claim from you any and all debts, property, 
 equitable interests and rights in action which belonged to 
 , the judgment-debtor, or in which he had any in- 
 terest on the day of the service of the order of examination 
 
 herein, viz. : on the .... day of , 189 . . (by virtue of said 
 
 office I hereby demand and require you to deliver to me [or 
 
 to A. B., my agent] the following goods and chattels 
 
 which belonged to , the judgment-debtor, on the 
 
 day of , 189. ., and now belong to me. That I am 
 
 ready to pay any legal claim that you may have on said 
 chattels, and I will attend at tlje premises where the said 
 goods now are at any time you may appoint and A. B,, my 
 
 said agent, will attend on the day of .... , 189 . . , at 
 
 A. M., to receive and remove said chattels. 
 
 , Eeceiver. 
 
 Dated , 189.. 
 
 To 
 
Forms. 253 
 
 68. 
 
 Affidavit of Receiver as to Eefusal op Party to De- 
 liver Chattels. 
 
 COUET. 
 
 (Title of matter.) 
 
 County, ss. : 
 
 , being duly sworn, says that on the day 
 
 of , 189. ., by an order of the Hon in pro- 
 ceedings supplementary to execution, under section 2464 
 of the Code of Civil Procedure, he was duly appointed 
 receiver of the property and effects of , a judg- 
 ment-debtor, in an action wherein , was plain- 
 tiff, and was defendant. That the said order 
 
 has been duly filed and recorded as prescribed by sections 
 2467 and 2470 of the aforesaid Code, and deponent has 
 given and filed a bond as prescribed by section 715 of said 
 
 Code, and the aforesaid order that on the day of > 
 
 189 . . , at .'. , he personally served said order of 
 
 receivership together with a written notice that deponent 
 
 had qualified as such receiver on by delivering 
 
 to and leaving with each of them personally copies thereof, 
 copies of which are hereto annexed and form a part of 
 
 this affidavit. Thatat , on the dayof , 189. ., 
 
 deponent served the annexed written demand on 
 
 by delivering to and leaving with each a copy thereof (or 
 that the annexed demand was personally served on 
 
 as appears by the affidavit of hereto 
 
 annexed). That the said . ., has refused and 
 
 neglected, and still refuses and neglects, to deliver said 
 property, or any part thereof, to this deponent. 
 
 (Signature of receiver.) 
 Sworn to before me this day of , 189 . . 
 
 On the annexed affidavit, and all the pleadings and pro- 
 ceedings in this matter, let show cause before 
 
254 SUPPLEMENTAEY PROCEEDINGS. 
 
 a special term of this court set down to be held at the court 
 
 house in the city of ., on the day of , 189 . . , 
 
 at .... A. M. , why he should not be required to deliver to 
 
 , receiver herein, the property mentioned in 
 
 the aforesaid affidavit. 
 
 , Judge. 
 
 Dated , 189.. 
 
 To 
 
 69. 
 
 Eeceiver's Petition for Leave to Sub. 
 
 COUET. 
 
 (Title of matter.) 
 
 To the court of 
 
 The petition of , receiver of the property of 
 
 , a judgment-debtor, respectfully shows : 
 
 I. That by an order made by Hon , a copy 
 
 of which is hereto annexed, your petitioner was duly 
 
 appointed receiver of the property and effects of , 
 
 the above-named judgment-debtor ; that said order was 
 duly filed as required by section 2467 of the Code of Civil 
 Procedure, and your petitioner has given and filed a bond 
 as required by said order and section 715 of said Code. 
 
 II. (Set forth the cause of action as in a complaint). 
 
 III. That the written request of the judgment-creditor, 
 in whose behalf your petitioner was appointed, is hereto 
 annexed and forms a part of this petition. 
 
 IV. That a bond as prescribed by rule 79 of the supreme 
 court is hereto annexed and forms a part of this petition. 
 
 v. That your petitioner has, as receiver aforesaid, the fol- 
 lowing property : in his actual possession and 
 
 that such property is sufficient to secure the person against 
 whom the action is to be brought for any costs which he- 
 may recover against your petitioner. 
 
 VI. That your petitioner has made due and diligent in- 
 quiry as to the pecuniary standing and solvency of the said 
 
Forms. 255 
 
 and from such inquiry, your petitioner believes 
 
 the said to be solvent, that said 
 
 can be collected from his said property. 
 Your petitioner, therefore, prays that he may be allowed 
 
 to commence and prosecute an action in against the 
 
 said for said claim in such form of action or 
 
 proceedings as counsel may advise. 
 
 (Signature of receiver.) 
 
 County, ss. : 
 
 being duly sworn, says he is the receiver 
 
 in the above proceedings, that he has read the foregoing: 
 petition, that the same is true to the knowledge of deponent. 
 
 (Signature of receiver.) 
 
 Sworn to before me this day of , 189. . 
 
 70. 
 
 At a term of the court held at 
 
 the court house in on the day 
 
 of ...., 189.. 
 
 Present — Hon 
 
 Justice. 
 . COUET. 
 
 In the Matter of the Examina- 
 tion OF "E. R. B.," A JUDG- 
 
 mbnt-dbbtor in Pkoceedings V Order allowing receiver to sue. 
 
 SUPPLEMENTAKT TO EXECUTION, 
 
 On reading and filing the petition of re- 
 ceiver herein of the property of , a judgment- 
 debtor, for leave to bring an action for , and it ap- 
 pearing that said has complied with the require- 
 ments of rule Y9 on the supreme court, now, on motion of 
 of counsel for said receiver. 
 
 Ordered, That said , as receiver, is hereby author- 
 ized and directed to commence and prosecute an action in 
 
256 SCPPLEMENTARY PROCEEDINGS. 
 
 the court, in such form as counsel may advise, 
 
 against to recover on the aforesaid claim. 
 
 71. 
 
 Receiver's Petition foe Leave to Sell Doubtful Claims, 
 ETC. Rule 18, S. 0, 
 
 COURT. 
 
 (Title of matter.) 
 
 To court of 
 
 The petition of , receiver of the property of 
 
 , a judgment-debtor, respectfully shows : 
 
 I. That by an order made by Hon in pro- 
 ceedings supplementary to execution, under section 2464 of 
 the Code of Civil Procedure, of vrhich a copy is hereto an- 
 nexed, your petioner was duly appointed receiver of the 
 property of — , the above-named judgment- 
 debtor ; that said order was filed as required by section 2467 
 of said Code, and that thereafter your petitioner made and 
 filed the bond as required by section 715 of said Code, as fixed 
 by said order. That among other property, which came to 
 your petitioner' s hands,, as such receiver, are 
 
 That your petitioner has repeatedly made diligent efforts 
 to get his pay on said debts, and your petitioner has made 
 
 due inquiry in relation to the said and the value 
 
 of said lease, and from such inquiry believes that the said 
 debts are desperate, and said claims to personal property 
 are doubtful. Your petitioner therefore prays that he may 
 be allowed, as such receiver, to sell such desperate debts 
 and doubtful claims at public auction as prescribed by rule 
 78 of the supreme court. 
 
 (Signature of receiver.) 
 
 (Verification. Code Civ. Pro., § 526.) 
 
lioiiMS. 257 
 
 73. 
 
 Order for Leave to Sell Doubtful Debts and Claims. 
 
 EuLE T8, S. 0. 
 
 At a term of the court, held at 
 
 the court house in the on the 
 
 day of , 189.. 
 
 Present— Hon , 
 
 Justice. 
 (Title of matter.) 
 
 On reading and filing the petition of , receiver 
 
 herein of the property of "E. E. B.," a judgment-debtor, 
 asking for leave to sell certain alleged doubtful claims and 
 
 desperate debts, viz. : , under rule 78 of the supreme 
 
 court. 
 
 Now, on motion of , of counsel for the said 
 
 petitioner. 
 
 Ordered, That the said , as receiver herein, 
 
 be allowed to sell at public auction, at such place in 
 
 as he shall think proper, all and every of the following debts 
 and property (describe the property). That the said receiver 
 shall give at least ten days' notice of such sale by serving a 
 
 personal notice thereof on , and by posting a 
 
 notice thereof at three public places in the 
 
 73. 
 
 Eeoeiver's Notice of Sale of Doubtful Claims and 
 Debts. Eule 78, S. C. 
 
 (Title of matter.) 
 
 Notice is hereby given that by virtue of an order in the 
 above-entitled proceedings, the subscriber as receiver in said 
 33 
 
258 Supplementary Pkoceedings. 
 
 proceedings, will sell the following property, . 
 
 at public auction at on the .... day of , 189 . . , afe- 
 
 A. M. of said day. 
 
 (Signature of receiver.) 
 Dated , 189.. 
 
 74. 
 
 Petition of a Judgment-creditor for Order that Ee 
 CEivER Pay Money on Judgment, etc. 
 
 COUET. 
 
 (Title of matter.) 
 
 The petition of respectfully shows: 
 
 That proceedings supplementary to "Execution were here- 
 tofore instituted upon a judgment wherein your petitioner 
 was plaintiff (or A. B. was plaintiff) and "E. E. B.," the 
 judgment- debtor herein, was defendant, at the instance of 
 your petitioner, by an order which is hereto annexed, which 
 said order was duly served on the judgment-debtor as re- 
 quired by section 2452 of the Code of Civil Procedure, as 
 appears by the affidavit of service thereto annexed, that on 
 the .... day of . . . . , 189 . . , an order, of which a copy is hereto 
 annexed, was made by Hon (annexed order ap- 
 pointing a receiver), which said order was duly filed as re- 
 quired by section 2467 of said Code ; that said , 
 
 receiver, made and filed a bond as required by said order of 
 receivership and section T15 of the said Code. 
 
 That he has funds for the payment of the judgment 
 herein and costs. Your petitioner is ientitled to priority in 
 payment out of the funds in the hands of the said receiver 
 in preference to any other creditor of the said judgment- 
 debtor by reason of the prior service of his order for ex- 
 amination. That the following are the names of the 
 judgment-creditors of the said judgment-debtor, and the 
 time when their respective proceedings were commenced: 
 
Forms. 259 
 
 Wherefore, your petitioner prays for a rule or order that 
 the said receiver apply to the payment of your petitioner's 
 judgment herein sufficient of the moneys in his hands to 
 pay the same, with interest, and the costs mentioned in 
 the order of receivership; that it be determined who is 
 entitled to priority of payment out of said funds, and for 
 such other, further or different order as to the court may 
 seem meet. 
 
 (Signature of petitioner.) 
 
 (Verification. Code Civ. Proc. § 526.) 
 
 75. 
 
 Order to Show Cause for Application of Funds. 
 
 COUET. 
 
 (Title of matter.) 
 
 Upon the annexed .petition of , and all the 
 
 pleadings and proceedings in this matter, let 
 
 show cause before a term of set down to be 
 
 held at the court house in the city of , on the 
 
 day of , 189. ., at A. M., why the petitioner should 
 
 not have a rule or order. 
 
 I. That receiver apply sufficient of the 
 
 funds in his hands, as such receiver, to pay the judgment 
 
 of and the costs and disbursements allowed 
 
 in the order of receivership. 
 
 II. For such other, further or different relief as to the 
 court mayseem meet. 
 
 Let this order and the annexed petition be personally 
 
 served on , on or before 6 p. M. of the .... day 
 
 of ... . 189 . . , and such service shall be deemed sufficient. 
 
 (Signature of judge.) 
 Dated ....^189.. 
 
260 
 
 SUPPLEMENTAKY PeOCEEDINGS. 
 
 76. 
 
 At a special term of the court, held at 
 
 the court house in the city of , on 
 
 the .... day of 189.. 
 
 Present — Hon 
 
 Justice. 
 
 In rb Examination of " B. R. B.," 
 A Judgment-debtor, in Pro- 
 ceedings Supplementary to 
 Execution. 
 
 Order that receiver pay judg- 
 ment-creditor. 
 
 On reading and filing the petition of verified 
 
 on the day of , 189 . . , with affidavit and order for 
 
 examination annexed, the order to show cause and proof of 
 
 the service of said petition and order on and 
 
 after hearing , of counsel for the petitioner, in 
 
 favor of the motion, and , of counsel for 
 
 in opposition thereto. 
 
 Ordered, that , the said receiver, pay to 
 
 the costs allowed in the, order of receivership 
 
 to the judgment -creditor, and after deducting the receiver's 
 
 charges and commission hereby taxed at $ , the said 
 
 receiver pay the said $ , on his judgment 
 
 and take proper receipts therefor. 
 
 77. 
 Eeceiver's Petition for Leave to Sell Eeal Estate. 
 OOUET. 
 
 (Title of matter.) 
 
 To the court of 
 
 The petition of respectfully shows : 
 
 That heretofore, and on the .... day of , 189 .. , Hon. 
 
 made an order under section 2461 of the Code 
 
FeuMS. 261 
 
 of Civil Procedure appointing your petitioner receiver of 
 the property and effects of , a judgment- 
 debtor, a copy of which said order is hereto annexed, and 
 forms a part of this petition ; that said order was duly 
 filed and recorded as prescribed by sections 2467 and 2470 
 of said Code, and your petitioner made and filed the bond 
 required by said order of receivership as prescribed by 
 section 715 of the aforesaid Code. That said order of 
 receivership was duly filed in the office of the clerk of the 
 
 county where the said resides, and the real 
 
 estate hereinafter described is situated., That at the time 
 
 of filing said order as aforesaid, the said had 
 
 an interest in the following described real property in 
 said county of , viz : (describe the real prop- 
 erty, the interest of the judgment-debtor therein, the in- 
 cumbrances thereon, if any, and the value thereof over and 
 above incumbrances). 
 
 That your petitioner has sold the chattels of the j udg- 
 ment-debtor, and collected all the choses in action, which 
 came to his hands as such receiver, and that your 
 petioner has not sufficient funds in his hands to pay the 
 judgment of the judgment-creditor herein, and that said 
 land is the only available property out of which any money 
 can be made to pay the same. Wherefore, your petitioner 
 prays for an order for leave to sell at public auction all the 
 interest of the judgment-debtor in said land. 
 
 (Signature of petitioner.) 
 
 County, ss. : 
 
 being duly sworn, says he is the receiver 
 
 above named, that he has read the foregoing petition signed 
 by him, that the same is true to the knowledge of deponent, 
 except as to the matters therein stated to be alleged on in- 
 formation and belief, and as to such matters, he believes 
 them to be true. 
 
 (Signature of petitioner.) 
 
 Sworii to before me this day of , 189 . . 
 
262 
 
 Supplementary Pkoceedings. 
 
 78. 
 
 At a term of the court held 
 
 at the court house in the city of on 
 
 the day of , 189.. 
 
 Present — Hon 
 
 Justice. 
 
 In the Matter of the Examina- 
 tion OF "E. R. B.," A Judg- 
 ment-debtor, IN Proceedinss 
 Supplementary to Execution. 
 
 Order allowing receiver to sell 
 real estate. 
 
 On reading and filing the petition of , re- 
 ceiver of the property and effects of , a judg- 
 ment-debtor, verified on the day of , 189. ., asking 
 
 for leave to sell the real estate described therein, the order 
 to show cause why such leave should not be granted, and 
 
 proof of due service of such petition and order upon 
 
 and after hearing , of counsel for .... 
 
 , in favor of such motion, and , of 
 
 counsel for , opposed. 
 
 Ordered, That as such receiver, is hereby 
 
 authorized and directed to sell (describe the land) at public 
 
 auction at all the interest of , the 
 
 judgment-debtor, for cash ; that weeks' notice of the 
 
 time and place of such sale, with a description of the land 
 as set forth in this order, be published in one of the public 
 
 papers in at least once in each week prior to 
 
 said sale. 
 
Forms. 
 
 263 
 
 79. 
 
 At a special term, etc. 
 
 Ik be Examination op " E. R. B.," 
 A Judgment DEBTOR, in Pro- 
 ceedings Supplementary to 
 Execution upon a Judgment 
 entitled 
 
 COURT. 
 
 W. C. 8. 
 
 v. 
 
 E. R. B. 
 
 Am) upon a Judgment entitled 
 
 COURT. 
 
 W. W. K. . 
 
 «. 
 E. R. B. 
 
 Order of reference to take re- 
 ceiver's account and report 
 priority of creditors. 
 
 It appearing that was duly appointed a re- 
 ceiver under section 2464 of the Code of Civil Procedure, by 
 
 an order made by Hon on the day of 
 
 . . ., 189 . . , in behalf of on a judgment en- 
 titled, court, " W. C. S." V. " E. R. B.," and that 
 
 thereafter and on the day of , 189 . . , upon 
 
 the application of , an order was duly 
 
 made extending such receivership to a judgment en- 
 titled court, "D. B." V. "E. R. B.," and that 
 
 thereafter and on the .... day of .... , 189 . . , upon the ap- 
 plication of , ah order was duly made extend- 
 ing such receivership to a judgment entitled court, 
 
 "W. W. K." V. E. E. B." 
 
 Ordered, that it be referred to " W. C. R.," of , 
 
 to ascertain the amounts of the aforesaid judgments, and 
 the priorities of the respective judgment-creditors under 
 said receivership, and report the said facts to this court with 
 all convenient speed. That said referee also take and state 
 
 the accounts of , the said receiver, and report 
 
 the same to this court, and state therein what, if any, 
 property remains undisposed of. 
 
264 
 
 Supplementary Proceedings. 
 
 80. 
 
 At a term of the court held at 
 
 the court house in the city of on the 
 
 day of , 189.. 
 
 Present — Hon '., 
 
 Justice. 
 
 In RE " A. B.," A Receiver of the 
 Property AND Effects of "E. 
 R. B.," A Judgment-debtor in 
 Proceedings Supplementary 
 TO Execution. 
 
 Order for discharge of receiver. 
 
 On reading and filing the account of "A. B.," a receiver, 
 
 the report of , the referee appointed to pass the 
 
 said accounts, the certificate of , clerk of this 
 
 court, that the said receiver had paid into court the sum of 
 $...., the balance found to be in his hands ; the order to 
 show cause why the said receiver should not be discharged. 
 
 with proof of service thereof upon , and on motion 
 
 of , of counsel for the receiver. 
 
 Ordered, that the said '"A. B." be and he hereby is, dis- 
 charged from the duties of said receivership; that the bond 
 given by said "A. B." be and the same is hereby vacated. 
 
 81. 
 
 Referee's RbporI' on Eeoeiver's Account. 
 
 COURT. 
 
 (Title of matter.) 
 
 To court of 
 
 It having been referred to me to take and settle the ac- 
 count of , receiver appointed under section 2464 
 
Forms. 265 
 
 of the Coke of Civil Procedure, and to ascertain and report 
 as to the priority of liens of the judgment-creditors under 
 said receivership, I do hereby report that I have been at- 
 tended by the said receiver and the counsel, 
 
 for , and for , and the account of 
 
 the receiver having been brought before me, together with 
 his vouchers and transcripts of the several judgments under 
 which the said receivership was made and to which it was 
 extended, and having heard the parties, and taken the evi- 
 dence offered, I find and report. 
 
 I. That the said receiver hath received by and out of the 
 estate of "E. R. B.," the judgment-debtor, the si;ms of 
 money set out in the annexed account, amounting in the 
 aggregate to the sum of $ . . . 
 
 II. That the said receiver has paid the following sums: 
 
 III. That said receiver is to be allowed for his commis- 
 sions and for fees the several sums set out in his account. 
 
 IV. That after deducting said sums paid out and the com- 
 mission, fees and expenses of the receiver, there is a bal- 
 ance in the hands of said receiver of $ ... . 
 
 V. That an order in the proceedings by " W. C. S.," one 
 of the above-named judgment-creditors, was first served, 
 and said judgment-creditor is entitled to a priority of pay- 
 ment out of the aforesaid fund. 
 
 • That all the vouchers, transcripts and statements of the 
 property still in the hands of the receiver, are hereto an- 
 nexed and returned. 
 
 , Eef eree. 
 
 Dated...., 189,. 
 34 
 
INDEX. 
 
 Abandonment — 
 
 terminates proceedings, when, 58. 
 Abaiemeut — 
 
 absence of judge or referee does not work an, 59. 
 
 creditor does not work an, 58. 
 death of judge or referee does not work an, 59. 
 when officer goes out of office does not work an, 59. 
 proceedings do not by any event, 59.^i-.^ 
 Absence— 
 
 of referee, 59, 92. 
 
 proceedings do not abate by, 59. 
 of judge, 59. 
 
 proceedings do not abate by, 59. 
 of creditor, 58. 
 
 proceedings do not abate by', 92. 
 of debtor, 92. 
 effect of, 92. 
 Accounting — 
 
 by^receiver, 124. 
 reference to take account, 124. 
 Acknowledgment ot" undertaking — 
 by party arrested, 76. 
 of receiver, 125. 
 Adjournment — 
 
 by stipulation of attorneys, 89, 90. 
 
 -debtor can only be compelled to attend before the judge 
 
 or referee, 58. , 
 judge may make, 57, 58. 
 
 order of, need not be served on judgment-debtor if 
 present, 57. 
 parties may adjourn by stipulation, 57. 
 referee may adjourn. 91. 
 
 may in parties absencp. 57. 
 
 the absence of defendant, 57. 
 
268 Index. 
 
 Adjournment — (Continued). 
 
 should be served with summons to bring into con- 
 tempt, 57. 
 when judgment-debtor absent, 57. 
 AflidaYit — 
 
 against a foreign corporation must allege that it is not 
 doing business in this state, nor has it any business or 
 fiscal agency therein, or agency for the transfer of its 
 stock, 9. 
 attorney of record need not state special authority, -36. 
 by executors and ad^iiinistrators must show death of 
 judgment-creditor, 36, 39. 
 must show their appointment and qualifications, 36. 
 defendant as judgment-creditor, 17. 
 for costs, 117, 118. 
 
 order for examination of third party, 78, 79. 
 examination' of judgment-debtor after return of 
 execution. Code, § 2437, 37. 
 judgment-debtor after return of execution 
 upon judgment of inferior courts, 37. 
 order for collection of taxes must allege what, 11. 
 second or subsequent order must show subsequently 
 acquired property, 4Q. 
 order must show facts newly learned, 40. 
 warrant absolutely necessary, 36, 73. 
 how residence or place or business or non residence to 
 be alleged in, 37, 38. 
 judgment and execution to be alleged in, 37, 38, 
 
 66, 67. 
 facts to be alleged in, 37, 38, 66, 68. 
 if judgment-debtor resides and has a place of business in 
 the colinty, such facts may be alleged in the conjunc- 
 tive, 37, 66, 69. 
 a disjunctive statement is not sufficient, 37, 66, 67, 69. 
 joint-debtors must allege what facts, 17. 
 judgment for defendant must allege what facts, 17. 
 against infant must allege what facts, 17. 
 by confession, appearance or personal service pre- 
 sumed, 16. 
 must be truly described, 36, 36, 37, 66, 68, 69. 
 exclusively for costs sufficient, 38, 39. 
 
Index. 269 
 
 Affidavit — (Continued). 
 
 must allege actual return of the sheriff of execution 
 unsatisfied, 24. 
 allege present residence of debtor, 37, 38, 66. 
 
 every fact necessary to give judge jurisdic- 
 tion, 36, 37, 38, 66, 67. 
 show that first execution was returned within ten 
 years from time of making application. 38, 
 39. 
 no prior application for the order has been made 
 
 to any judge, 40. 
 transcript of a judgment of an inferior court 
 was filed within six years after its rendition, 
 36, 37, 38, 39, 60, 67. 
 five years have not elapsed since the entry of 
 
 judgment, 39, 40, 66. 
 •execution was issued as prescribed by the Code 
 
 of Civil Procedure, 38, 39, 40, 66, 69. 
 judgment was taken upon the judgment- 
 debtor's personal appearance, or personal 
 service of summons upon him, 35, 38, 39, 66, 
 74. 
 judgment has been duly docketed, and in what 
 county the judgment-roll is filed, 37, 39, 66, 
 73. 
 execution of inferior court was issued by clerk 
 
 of a court of record, 21, 38, 39, 66, 74, 84. 
 judgment was originally for twenty-five dol- 
 lars or over, 37, 66, 74, 84. 
 sufficient if this fact appears on the face of the papers, 
 
 37, 38. 
 must show the amount remaining unsatisfied upon the 
 judgment, 35, 36, 67, 84. 
 show by what right the affiant makes the affidavit, 
 36, 37, 66, 85. 
 who is the owner of the judgment, 37, 66, 74, 
 84. 
 truly describe the judgment, 37, 67, 73, 84. 
 contain a clear statement that the judgment-debtor 
 is a resident of the county to which the execution 
 was issued, 37, 38, 39, 66, 73, 84. 
 
270 Index. 
 
 AllidaTit — (Continued). 
 
 need not show jurisdiction in the assessors and super- 
 visors, 11. 
 order for payment of money considered a judgment, 16. 
 of attorney of record, 36. 
 
 agent of judgment-creditor, 36. 
 assignee of judgment, 36, 37. 
 representative of judgment-creditor, 36, 37. 
 proof of service of order for examination must be made 
 
 by, 52, 54. 
 should state that judgment was duly taken or had, 40, 
 
 66, 74, 83. 
 what should be alleged when judgment is of court of 
 record, 37, 38, 39, 67, 74, 84. 
 must be alleged when judgment is of inferior 
 courts, 37, 38, 39. 
 when made, by agent must show the nature of the 
 
 agency, 36, 37. 
 where the judgment-debtor is a non-resident and has a 
 place of business within the state, that fact should be 
 positively alleged, 37. 
 who must make, 36. 
 
 for order after issuing and before return of execution, 66. 
 must state that judgment-debtor has property not 
 exempt, 66. 
 that judgment-debtor unjustly refuses to apply his 
 
 property, 66. 
 that a demand has been made for the application 
 of the property, 66. 
 Agent — 
 
 affidavit by, must state what, 36. 
 Alias order — 
 
 when may issue while first order is in life, 45, 46. 
 what must be shown to obtain, 45, 46. 
 Alimony — 
 
 cannot be reached in supplementary proceedings, when, 
 106. 
 Amendment — 
 
 absolute nullity not subject to, 115, 116. 
 execution on transcript of inferior court amendable, 
 25, 115. 
 
Index 271 
 
 Amendment — (Continued), 
 
 in description of court where judgment is obtained, 25,, 
 . 115, 116. 
 
 irregularities in affidavit not subject to, 115, 116. 
 of execution, when allowed, 24, 25. 
 place where judgment-roll is filed, 25. 
 order for examination may be amended, 115, 116. 
 variance between amount of execution and judgment^ 
 • 25. 
 
 want of service of order not subject to, 116. 
 what proceedings amendable, 25, 115, 116. 
 Answer— 
 
 cannot be used in a criminal action, 60, 63. 
 counsel may advise in framing, 62, 64. 
 each on examination must be under oath, 60, 62. 
 party not excused from answering questions, 62, 66. 
 of party to interrogatories, 148. 
 Appeal- 
 lies only from an order made by the court granting or 
 denying a motion to vacate an or,der made by a judge 
 out of court, 175, 177. 
 Appearance — 
 
 judgment by confession, 16. 
 
 for defendant-plaintiff's, 17. 
 against infants, 17. 
 
 joint-debtors, 17. 
 must have been taken upon, or personal service of 
 summons, 16. 
 order for the payment of money deemed a judgment, 
 
 16. 
 party must attend within a reasonable time after time 
 
 specified in the order^ 57. 
 waiver of service of order of examination by general, 
 55, 59. 
 Assignee — 
 
 ' of judgment must show what, 29. 
 Attachment — 
 
 bailable, 137, 141. 
 
 cannot be issued by referree, .141, 145. 
 
 effect of warrant of, 145, 146. 
 
 for failure to appear, 140. 
 
272 Index 
 
 Attachment — (Continued). 
 
 for refusal to obey subpoena, 143. 
 refusal to be sworn, 141. 
 
 produce books, etc., 142, 143, 
 answer questions, 140, 147. 
 ■ sign deposition, 144, 148. 
 
 comply with order, 140, 
 interference with property, 141. 
 disobedience of injunction order, 140, 142. 
 indorsement upon warrant of, 146, 147. 
 interrogatories and proof necessary when, 147, 148. 
 nature of, 146, 150. 
 of witness, 137, 157. 
 practice on return of, 146, 147. 
 review of order of, 175, 177. 
 order to show cause for order of, 137, 147. 
 that court or judge has jurisdiction to grant, 148, 
 
 152. 
 undertaking to procure discharge from, 14t. 
 warrant of, how executed, 137, 160. 
 when issued sumniarily, 139, 143. 
 who may apply for order of, 137, 150. 
 Attornej— 
 
 of record, affidavit of for order, 37. 
 Confession of judgment — 
 
 appearance or personal service of summons need not be 
 alleged* in, 16. 
 Contempt proceedings — 
 
 are themselves special proceedings, independent of the 
 
 supplementary proceedings, 50, 137. > 
 acts that are punishable, 138. 
 amount of fine, 154, 155. 
 excuses, sufficiency of, 143. 
 
 effect of order to show cause and of warrant, 146. 
 failure to appear, 139. 
 form of order, 150. 
 habeas corpus may issue when, 147. 
 interference with property, 141. 
 interrogatories and proof, 147, 148. 
 jail liberties, 167. 
 length of imprisonment, 156. 
 
Index. 273 
 
 Contempt proceedings — (Continued). 
 
 order to show cause or warrant to attach offender, 144. 
 
 judging party guilty, and commitment, 150, 
 practice and review of orders, 152. 
 
 as to proofs, 148. 
 punishment in, 153, 155. 
 
 on a habeas corpus, 153. 
 upon order to show cause, 153. 
 refusal to comply with order, 140, 141. 
 release of offender, 157. 
 undertaking to procure discharge, 147. 
 
 as to indemnity, 158. 
 warrant, how executed, 146. 
 
 when warrant to commit may issue without notice, 144. 
 punishment may be summary, 143. 
 committed before a referee, 144, 145. 
 witness, 140. 
 
 what court or judge has jurisdiction, 137, 157. 
 who may apply for order, 137, 139. 
 Corporation — 
 
 compelled to produce books and papers, 93, 94. 
 examined as a witness, 93, 94. 
 
 foreign affidavit must allege that it is not doing busi- 
 ness in this state, nOr has it any business or fiscal 
 agency therein, or agency for the transfer of its stock, 
 n, 81. 
 judgment against, when cannot be enforced by sup- 
 plementary proceedings, 7, 9, 81. 
 remedy of judgment-creditor against, 10, 81. 
 how examined as a witness, 94. 
 Costs— 
 
 to judgment-creditor, 117. 
 
 at what stage of proceedings allowed, 117. 
 by what judge order for, granted, 117, 119. 
 cannot be collected by execution, 117, 118. 
 demand for payment of, must be made, 118, 119. 
 disbursements must be taxed, 117, 118. 
 neglect to pay, how punished, 118. 
 of motion to dismiss, 117, 118. 
 order granting, must direct the payment thereof, 
 117, 118. 
 85 
 
274 Index. 
 
 Costs — (Continued). 
 
 to judgment-creditor — order for must be served, IIY, 118. 
 proceedings against third-party, 118. 
 what allowed judgment-creditor, llY. 
 disbursements allowed judgment-creditor, llY, 
 118. 
 to judgment-debtor, 118. 
 
 amount allowable to, 118. 
 
 disbursements allowable to, 118. 
 
 direction in order for payment, 117, 118. 
 
 entitled to when no property has been discovered 
 
 in the course of proceedings, 16, 118. 
 from what fund payable, 117. 
 should be deducted from judgment. 117. 
 to third party, 118. 
 
 amount of, allowable, 118. 
 disbursements, 117, 118. 
 entitled to, when, 118. 
 not collectable by execution, 117. 
 order for payment of, 118. 
 County— 
 
 to what execution must be issued, 23, 23, 30, 31. 
 party must be examined in what, 43, 44, 51, 70, 75, 
 
 82. 
 warrant must be returnable in what, 74. 
 third party must be examined in what, 84, 85. 
 reference may be executed in what, 90. 
 Court- 
 by whom receivers controlled, 134. 
 Creditor's Mil- 
 discovery under, 2. 
 exemptions from, 2. 
 lien acquired by, 2. 
 
 superior to supplementary proceedings, when, 7. 
 supplementary proceedings is a substitute for, 1, 2. 
 during pendancy of, 10. 
 Defendant — 
 
 judgment may be enforced by, 17. 
 
 proof on appearance and personal service of summons 
 
 necessary, 15. 
 proceedings after death of sole, 85, 86, 87. 
 
Index. 275 
 
 Delays— 
 
 by judgment-creditor,- 58. 
 
 order of dismissal necessary, 68. 
 what deemed unreasonable, 58. 
 when proceedings may be dismissed for, 58, 59. 
 Demand- 
 before order of examination before return of execution, 
 
 66, 67, 68. 
 by whom must be made, 68, 69. 
 in contempt proceedings, 140, 144, 145. 
 for compliance with order, 140, 141. 
 payment of money, 140, 141. 
 of application of money or property necessary, 69, 
 
 70. 
 when must be made, 68, 69. 
 Deposition — 
 
 examination must be taken in form of, 60. 
 must be signed by witness and filed, 61, 62. 
 read to witness, 64. 
 
 corrected to agree with witness' statement, 91, 92. 
 Dismissing proceedings — 
 
 can be reviewed only as prescribed by section 2433 of 
 
 the Code, 108, 109. 
 cannot be dismissed on ex parte application, 109. 
 discharge in bankruptcy, 108, 116. 
 grounds of motion for, 110. 
 should not be dismissed except for most substantial 
 
 reasons, 109, 113. 
 when affidavit fails to allege all facts prescribed by the 
 • statute, 110, 116. 
 
 where execution of inferior court not issued by clerk of 
 court of record, 108-116. 
 affidavit does not state amount unpaid on 
 judgment. 111, 113. 
 does not truly describe judgment, 108, 116. 
 of agent does not show authority, 109, 113. 
 for order under section 2436 of the Code does 
 not show that a demand was made, 108, 
 116. 
 fails to show execution was issued within five 
 years, 110, 116. 
 
276 ■ IKDEX. 
 
 Dismissing proceedings — (Continued). 
 
 where affidavit for warrant of arrest does not show 
 what property the debtor has or that he has 
 property, 110, 112. 
 grounds for order alleged in the alternative, 110, 
 
 116. 
 proceedings were not brought in time, 109, 115. 
 order for examination improvidently granted, 110, 
 
 116. 
 a judgment-creditor unreasonably neglects to pro- 
 ceed, 108, 116. 
 has been paid, 110, 112. 
 who may dismiss, 108, 116. 
 
 move for dismissal, 110, 113 
 grant order, 108, 116. 
 Discontinuing proceedings — 
 
 order necessary to end supplementary proceedings, 112. 
 Earnings— 
 
 of judgment-debtor for personal services within sixty 
 days, exempt when, 105. 
 Examination — 
 
 a witness or party may be compelled to produce any 
 
 book or document upon, 60, 62, 64. 
 appointment of receiver does not terminate, 63, 64. 
 answer, cannot be used in a criminal action, 63, 64. 
 counsel may advise in framing answers, 61. 
 creditor not obliged to examine debtor, 60, 64. 
 creditor's right to complete examination, 62. 
 deposition must be signed by witness and filed, 60, 64. 
 read to witness, 64. 
 
 corrected to agree with witnesses statement, 63, 
 64. 
 either party must wait a reasonable time before taking 
 default, 59. 
 may be examined in his own behalf, 60, 64. 
 produce and examine witnesses, 61, 63. 
 have counsel, 62. 
 each party entitled to cross-examine, 50, 64. 
 
 answer must be under oath, 60. 
 extent of inquiry left to the good sense of the oflScer, 
 61, 65. 
 
Index. 277 
 
 Examination — (Continued). 
 
 if either party fails to appear, the referee must enter 
 
 proceedings in his minutes, 90, 91. 
 judgment-debtor must be examined in county of resi- 
 dence, 32. 
 must be taken in form of a deposition, 62, 64. 
 non-resident may be examined, where, 32. 
 party not excused from answering questions, 60, 65. 
 must attend within reasonable time after time 
 specified in the order, 57, 65. 
 similar to proceedings upon the trial of an equity action, 
 
 58, 65. 
 third party must be examined in county of residence, 
 
 32, 82. 
 witness may be examined in any county, 32, 33. 
 when confined to the property specified or mentioned 
 
 in the affidavit, 9, 71, 76, 85. 
 upon order aftet* issuing and before return of execution 
 must be limited to property mentioned in affidavit, 71. 
 Execution- 
 amendment of, when allowed, 24, 25. 
 on transcript of inferior court, 25. 
 against non resident must be issued to the sheriff of 
 the county where the judgment-roll is filed, 19. 
 a deceased judgment-debtor, 21. 
 by leave of the court after five years, 21. 
 countermand of, effect of on receiver, 28. 
 filing of return to, not jurisdictional, 24. 
 first must be. returned within ten years to give judge 
 
 jurisdiction, 26. 
 issuing after five years, 21. 
 issued by leave of surrogate not sufficient, 30. 
 levy on real estate after ten years, 27. 
 
 by second suspends remedies, when, 44. 
 may be issued to either where a person resides in one 
 county and has place of business in another, 31. 
 to coroner when sheriff is judgment-debtor, 19. 
 must be one against property, both real and personal, 20. 
 to collect a definite sum of money, 20. 
 describe the party whose property is sought to be 
 ,; taken, 20. 
 
278 Index 
 
 Execotion — (Continued). 
 
 must be issued out of court of record, 19. 
 
 to the sheriff of the the county where the judg- 
 ment-debtor has a residence or place of busi- 
 ness, 19. 
 no lien on equitable interest in the hands of third 
 
 party, 6. 
 of inferior court must be isssued by clerk of court of 
 record, 19. 
 upon a transcript filed within six years after ren- 
 dition of judgment, 20. 
 • omission of teste, effect of, 20. 
 
 direction to return within sixty days, effect of> 
 
 20. 
 recital that the judgment had been docketed in the 
 county to which it was issued, effect of, 20. 
 on judgment against partnership, return sufficient, 
 
 when, 44. 
 priority of order for examination, 5, 6. 
 second, after order for examination, effect of, 25. 
 variance between amount of judgment amendable, 25. 
 void, no protection to officer executing it, 20. 
 validity of, cannot be questioned except upon motion to 
 
 set aside, 21. 
 what amounts to return of, 24. 
 when may be issued to a person designated in the 
 
 order, 20. 
 where has been issued and returned within five years, 21. 
 against joint-debtors, 28. 
 Executors, administrators, trustees, etc. — 
 
 affidavit must show appointment and qualification, 36. 
 execution must be indorsed with name and residence 
 
 of person issuing same, 29. 
 no new execution need be issued, 30. 
 contents of affidavit by, 37, 38. 
 Exempt property- 
 alimony. 166, 168. 
 
 cannot be reached by supplementary proceedings, 7, 
 167, 169. 
 order of delivery of property to sheriff or re- 
 ceiver, 80, 85. 
 
Index. 279 
 
 Exempt property — (Continued). 
 
 cannot reach earnings of debtor for sixty days prior to 
 order, 105. 
 
 contract not to claim exemption, effect of, 164, 168. 
 
 householder, definition of, 162. 
 
 having a family for which he provides, 162. 
 
 how effected by fraud, 170. 
 
 identity of, necessary when, 170. 
 
 judgment for purchase money of, 163. 
 
 life insur3,nce money, 170. 
 
 meaning of word " necessary " in section 1391 of the 
 Code, 163. 
 
 must be claimed when, 164, 168. 
 
 military pay, rewards, pensions, etc., 171. 
 
 property purchased with pension money, 171. 
 
 pension money after death of pensioner, 172. 
 
 partnership property, 164. 
 
 proceeds of, when, 159, 167. 
 
 two classes of, 162. 
 
 what is absolutely, 159, 173. 
 
 waiver of exemption, 166. 
 
 work performed in a family as a domestic, 164. 
 Federal courts- 
 judgments of, cannot be enforced by supplementary 
 proceedings, 17. 
 Foreign ministers — 
 
 judgments against, cannot be enforced by supplement- 
 ary proceedings, 10. 
 
 FORMS— Acknowledgement— 
 
 of execution of undertaking by sureties, 193. 
 
 Code, § 2277, 234. 
 of receivers inventory of property, 179. 
 of undertaking of receiver, 251. 
 Affidavit— 
 
 for order for examination after return of execution, 252. 
 after i-eturn of execution on judgments of inferior 
 
 courts, 180. 
 in aid of execution, 194. 
 
 on judgment of inferior court, 196. 
 
280 Index 
 
 FORMS— Affidavit — (Continued). 
 
 for order of examination of third party, 201. 
 
 for order that third party pay over money, etc., 186. 
 
 for an alias order for examination as to after-acquired 
 
 property, 199, 200. 
 for order vacating proceedings, 214. 
 dismissing proceedings, 216. 
 for costs to judgment-ci'editor, 218. 
 against judgment-creditor, 220. 
 to show cause for an order that the judgment- 
 debtor or third party deliver property to 
 sheriff, 210. 
 for leave to discontinue, 212. 
 why party should not be punished for neglect- 
 ing to appear, 224. 
 why party should not be punished for refusing 
 to be sworn, 224. 
 for refusing to sign deposition, 224. 
 for refusing to answer questions, 224. 
 for order appointing receiver. Code, § 2265, 247. 
 warrant for examination. Code, § 2437, 182. 
 of service of order, 203. 
 
 for delivery of property, 223. 
 and demand of payment, 223. 
 of receiver as to refusal of party to deliver chattels, 
 
 253. 
 of justification of sureties on an undertaking upon 
 order of arrest. Code, § 2440, 193. 
 Alias- 
 order for examination of judgment-debtor, 200. 
 Answer — 
 
 of defendant in contempt pi'oceedings, 235. 
 to interrogatories. Code, § 2280, 238. 
 verification of, 236. 
 Approval of undertaking— 
 
 of party arrested for examination, 193. 
 of undertaking given by receiver, 251, 
 Attachment— 
 
 by order of the court.' Code, §§ 2269, 2273, 231. 
 order for commitment for non-payment of money or 
 costs. Code, § 2282, 243. 
 
Index. 281 
 
 FORMS— Attachment — (Continued). 
 
 order for commitment for punishment, 246. 
 warrant of, 234. 
 , of court that it issue, 240. 
 petition for writ of habeas copus, 241. 
 warrant of. Code, § 2268, 228. 
 Code, §§ 2269> 2273, 229. 
 commitment by judge, 229. 
 Certificate— 
 
 of referee, 209. 
 Commitment — 
 
 for non-payment of money or costs, 243. 
 order for, until payment of fine, 244. 
 for punishment, 246. 
 Contempt- 
 affidavit of service of order and demand of payment, 
 253. 
 for delivery of property, 253. 
 for order to show cause why party should not be 
 punished for neglecting to appear, 224. 
 why party should not be punished for refusing to 
 
 be sworn, 225. 
 why party should riot be punished for refusing to 
 
 answer questions, 224. 
 why party should not be punished for refusing to 
 sign deposition, 225. 
 attachment, warrant of. Code, §§ 2269, 2273, 231. 
 answer of defendant in, 235. 
 indorsement of warrant. Code, § 2275, 231, 232. 
 interrogatories to be administered, 237. 
 order for commitment. Code, § 2267, 226. 
 for punishment, 246. 
 
 for non-payment of money or costs, 243. 
 warrant of attachment, 234. 
 interrogatories. Code, § 2280, 236. 
 on hearing after return of interrogatories, 238. 
 of court that attachment issue, 231. 
 to show cause why a party should not be punished 
 
 for contempt for neglecting to appear, 225. 
 to show cause why a party should not be punished 
 for refusing to be sworn, 225. 
 86 
 
282 Index. 
 
 FORMS— Contempt — (Continued). 
 
 order to show cause why a party should not be punished 
 for refusing to sign deposition, 225. 
 should be punished for refusing to answerques- 
 tioiis, 225. 
 petition for writ of habeas corpus, 241. 
 warrant of commitment, 228. 
 
 by judge upon attachment, 228. 
 
 Costs- 
 affidavit for order for costs to judgment-creditor, 218, 
 
 against judment-creditor, 220. 
 notice of motion for costs to judgment-creditor, 218. 
 
 against judgment-creditor, 220. 
 order allowing costs to judgment-creditor, 219. 
 
 against judgment-creditor, 221. 
 commitment for neglect to pay, 243. 
 order for, until payment of, 244. 
 Deposition — 
 
 taken before referee or upon examination, 208. , 
 Discontinuance — 
 
 Petition for leave to, 212. 
 order to show cause for leave to, 213. 
 order of, 214. 
 Fine- 
 order for commitment until payment of, 244 
 commitment until payment of, 243. 
 Habeas corpus — 
 
 petition for writ of, 241. 
 verification of, 242. 
 writ of, 243. 
 Indorsement — 
 
 of warrant of attachment issued by order of the court, 
 
 232. 
 of warrant. Code, §§ 2269, 2273, 231. 
 Code, § 2275, 231, 232. 
 
 by order of the court. Code, §§ 2269, 2273, 232. 
 IiVJunction- 
 
 alias order for examination of party as to after-acquired 
 
 property, 201. 
 order for examination of third person, 204. 
 
 judgment- debtor after return of execution, 188. 
 on judgments of inferior courts, 190. 
 
IxDEX. 283 
 
 FORMS— Injunction — (Continued). 
 
 order for examination in aid of execution, 199. 
 appointing receiver, 249. 
 Interrogatories- 
 order for, 236. 
 order on hearing after return, 238. 
 
 of court that attachment issue, 240. 
 to be administered. Code, § 2280, 237. 
 answer to, 238. 
 InTentory — 
 
 by receiver of debtor's property, 251. 
 verification of inventory, 252. 
 Justification of sureties — 
 
 upon undertaking by party arrested for examination, 
 193. 
 of receiver, 251. 
 Motion- 
 notice of, for dismissal of proceedings, 216. 
 order vacating proceedings, 216. 
 
 for costs to judgment-creditor, 218. 
 against judgment-creditor, 220. 
 Notice— 
 
 of application of appointment of receiver, 248. 
 of motion for an order for costs to judgment-creditor, 
 218. 
 against judgment-creditor, 220. 
 of receiver and demand of property, 252. 
 receiver's, of sale of doubtful claims, 257. 
 Oath— 
 
 of referee, 206. 
 Order- 
 alias, for examination as to after-acquired property, 200. 
 allowing costs to judgment-creditor, 219. 
 against judgment-creditor, 221. 
 receiver to sue, 255. 
 
 sell doubtful claims, 257. 
 real estate, 262. 
 appointing a receiver, 248. 
 dismissing proceedings, 217. 
 
 for commitment for non-payment of money or costs, 
 243. 
 
284 Index. 
 
 FORMS— Order — (Continued). 
 
 order for commitment for punishment, 226. 
 for delivery of property to sheriff. Code, § 2447, 212. 
 for discharge of receiver, 264. 
 
 for examination of judgment-debtor after return of 
 execution, 187. 
 on judgment of inferior courts, 189. 
 in aid of execution, 198. 
 of third person. Code, § 2441, 204. 
 for interrogatories. Code, § 2286, 2.36. 
 for payment of money or costs, 222. 
 for undertaking by party arrested for examination. 
 
 Code, § 2240, 191. 
 of warrant of attachment, 227. 
 of court that attachment issue, 240. 
 of discontinuance of the proceeding, 213. 
 of reference to take receiver's account and report 
 
 priority of creditors, 263. 
 on hearing after return of interrogatories, 238. 
 that third party pay his debt to sheriff. Code, § 2446, 
 187. 
 receiver pay judgment- creditor, 260. 
 to shovp cause for the apphcation of funds, 211. 
 vacating proceedings, 215. 
 Order to show cause— 
 
 for application of funds, 211. 
 leave to discontinue, 213. 
 why pg,rty should not pay money to sheriff, 187, 210. 
 be punished for contempt for neglecting to appear, 
 224. 
 for refusing to be sworn, 225. 
 to sign deposition, 224. 
 to answer questions, 224. 
 deliver property to receiver, 211, 254. 
 Petition- 
 by receiver for leave to sell doubtful claims, etc., 256. 
 verification of, 256. 
 
 for writ of habeas corpus. Code, § 2278, 241. 
 of judgment-creditor for order that receiver pay money 
 
 on judgment, etc., 258. 
 verification of, 258. 
 
Indez. 285 
 
 FORMS— Petition — (Continued), 
 of receiver for leave to sue, 254. 
 verification. of, 255. 
 
 of receiver for leave to sell real estate, 260-261. 
 verification of, 261. 
 Punishment — 
 
 order for commitment for, 246. 
 ReceiTcr— 
 
 acknowledgement of undertaking of, 251. 
 affidavit for order appointing, 247. 
 
 as to refusal of party to deliver chattels, 253. 
 approval of judge of undertaking of, 251. 
 justification of sureties, 250. 
 inventory of, 251. 
 
 notice of sale of doubtful debts and claims, 257. 
 Receivers — 
 
 notice of application for appointment of, 248. 
 
 receiver and demand of property, 252. 
 order appointing, 248. 
 
 to show cause why party should not deliver prop- 
 erty to receiver, 254. 
 to show cause for application of funds of, 259. 
 allowing him to sue, 255. 
 
 the sale of real estate, 262. 
 to pay judgment-creditor, 260. 
 to take account and report priority of creditors, 
 263. 
 for discharge of, 264. 
 petition for leave to sue, 254. 
 verification of, 255. 
 petition for leave to sell estate, 256. 
 
 doubtful claims, etc., 256. 
 verification of, 256. 
 petition of judgment-creditor for order for payment of 
 
 money on judgment, 258. 
 verification of, 259. 
 referee's report on account of, 265. 
 undertaking of receiver, 250. 
 Reference — 
 
 order of, for examination of judgment-debtor after re- 
 turn of execution, 188. 
 
286 Index. 
 
 FORMS— Reference— (Continued.) 
 
 in aid of execution, 198. 
 of third person, 204. 
 to take receiver's account and report priority of 
 creditors, 263. 
 Referee- 
 certificate of. Code, § 2442, 209. 
 oath of, 206. 
 
 report of, on receiver's account, 264. 
 subpoena of. Code, § 854, 207. 
 
 duces tecum, 206. 
 summons of, for attendance of judgment-debtor, etc., 
 205. 
 Return — 
 
 sherifif's, to attachment, 232. 
 Service- 
 affidavit of service of order, 203. 
 of demand of payment, 203. 
 of supbtena, 203. 
 of summons of referee, 203. 
 of notice by receiver and demand of property, 203. 
 Subpoena— 
 
 of referee, 207. 
 
 duces tecum, 206. 
 Summons — 
 
 of referee for attendance of debtor, 205. 
 Undertaking— 
 
 by party arrested for examination. Code, § J2440, 192. 
 
 "on attachment. Code, § 2277, 233. 
 of receiver, 250. 
 Teriflcation — 
 
 of answer by defendant in contempt, 286. 
 
 of inventory of receiver, 252. 
 
 of petition for writ of habeas corpus, 242. 
 
 of judgment-creditor for order that receiver pay 
 
 money on judgment, 258. 
 of other creditors for order tha^ receiver pay on 
 judgment, 261. 
 of receiver's petition for leave to sue, 254 
 to sell doubtful claims, 256. 
 to sell real estate, 260. 
 
Index. 287 
 
 FORMS— Warrant- 
 by order of the court. Code, § 2269, 231. 
 for examination under Code, §§ 2437, 2438, 184. 
 of attachment. Code, § 2268, 228. 
 
 Code, §§ 2269, 2278, 229. 
 
 order for, 280, 
 of commitment, 228. 
 
 by judge upon attachment, 234. 
 
 of party refusing to give undertaking, 193. 
 indorsement under Code, § 2275, 281, 232. 
 
 Fraudnlent transfer— 
 
 of property not effected by appointment of receiver, 7- 
 Habeas corpus — 
 
 to bring up party in contempt proceedings, 147. 
 Indorsement- 
 all papers must show wrhen, 29. 
 of papers, when assignee executor, etc., asks for orders^ 
 
 29. 
 of warrant of attachment, 146, 147. 
 Infants — 
 
 judgment against, may be enforced by, 17. 
 Information and belief— 
 
 affidavit upon insufficient, when, 38. 
 
 for order before return of execution insufficient^ 
 
 when, 66, 67. 
 for warrant upon, insufficient when, 73, 74. 
 Injunction — 
 
 does not effect alimony awarded to a wife, 48. , 
 
 debts subsequently to become due on a contin- 
 gency, 48. 
 earnings of judgment-debtor within sixty days, 47. 
 received or becoming due after service of order, 
 48. 
 from what it restrains, 49. 
 
 does not restrain a party, 47, 49. 
 failure of judge or referee to be present does not 
 revoke, 47. 
 does not effect income of property held in trust, 47. 
 necessary wearing apparel of unmarried man, 47. 
 
288 INDEX. 
 
 Injunction — (Continued). 
 
 order for, may be contained in the order for examina- 
 tion, 46, 47. 
 appointing receiver dissolves, 47. 
 property which is expressly exemjjt by law, 47. 
 
 acquired after service of order, 48. 
 pension money of any kind, 48. 
 vacating order of, 135. 
 when judgment-debtor is a woman, 47. 
 should be contained in an order appointing receiver, 136. 
 Interrogatories — 
 
 answer of, by debtor, 148, 149. 
 in contempt proceedings, 148. 
 proceedings upon hearing on, 148, 149, 150. 
 Irregularities — 
 
 appearance, effect of, 113, 115. 
 
 are divided into two classes, those which effect the 
 
 merits, and those which do not, 113. 
 distinction between, and nullity, 113, 116. 
 motion to vacate order or warrant for, must specify, 
 
 110, 116. 
 proceedings before referee before taking the oath, 109, 
 
 116. 
 the grounds of, 115. 
 waiver of, 115. 
 when amendable, 115. 
 
 motion must be made to set aside for, 114. 
 who may move to set aside for, 108, 116. 
 
 grant order allowing amendment of, 115. 
 what is, 115, 116. 
 Joint-debtors— 
 
 affidavit necessary to , procure order for the examina- 
 tion of, 17. 
 execution is to collect balance after joint property has 
 
 been exhausted, 28. 
 judgment against, 17. 
 Judge who may grant orders — 
 
 before whom proceedings are continued, 52. 
 continuation of proceedings before different, 52. 
 county judges, 43, 44, 51. 
 city court of Brooklyn, 52. 
 
Index. 289 
 
 Jndge who may grant orders — (Continued), 
 death or vacancy of office, effect of, 52. 
 , in contempt proceedings, 50. 
 judges of the marine court of city of New York, 43, 
 44, 51. 
 superior court of the city of Buffalo, 44. 
 justices of the supreme court, 43, 44, 51. 
 of any court of record, 52. 
 orders can only be granted by, out of court as a separate 
 
 judicial officer, 50. 
 order of may be served in any county in the state, 53. 
 recorder of the city of Oswego, 43, 44, 51. 
 
 Troy, 52. 
 special surrogates, 43, 44, 51. 
 surrogate of Steuben county, 52. 
 Judgment — 
 
 amount of, necessary to give judge jurisdiction, 5, 13. 
 
 due on judgment of court of record immaterial, 13. 
 against infants, 17. 
 by confession, appearance or personal service presumed, 
 
 16. 
 for defendant, appearance of plaintiff, 17. 
 less than twenty-five dollars, exclusive of costs, when 
 
 not a hen on real estate, 5, 13, 14. 
 must be taken upon judgment-debtor's appearance or 
 
 personal service of process upon him, 13, 15. 
 of federal courts cannot be enforced by, 17, 18. 
 order for payment of money considered as such, 16. 
 transcript of inferior court must be filed within six 
 years from time of rendition of, 14. 
 Jurisdiction — 
 
 affidavit must show that execution of judgment of in- 
 ferior court was issued by clerk of court of record, 
 21. 
 execution was issued to county where judgment- 
 debtor then resided, 19. 
 that transcript was filed within six years after 
 
 rendition of judgment, 21. 
 must show that execution was issued within five 
 years after rendition of judgment, 21 . 
 37 
 
290 Index. 
 
 Jurisdiction — (Continued). 
 
 affidavit must show that execution was issued within 
 six years as against deceased judgment-debtor, 
 21. 
 representatives have been duly appointed, 21. 
 authority of agent, assignee or representative to 
 
 make application, 21. 
 that transcript of inferior court was filed within 
 six years after the rendition of judgment, 19, 
 20. 
 after ten years as against real estate, 18. 
 
 twenty years as against personal property, 18. 
 against corporations doing business in this state, 9. 
 
 foreign ministers, consuls, etc., 10. 
 consideration of land conveyed to another, 8, 9. 
 consent cannot confer over subject matter, 113, 114. 
 discharge in bankruptcy takes away, 45. 
 execution issued by leave of surrogate not siifficient, 
 
 30. 
 first execution must be shown to have been returned 
 
 within ten years, 26. 
 for collection of taxes where amount of tax is less than 
 
 ten dollars, 11. 
 none to reach surplus premium life insurance, 8. 
 
 income of trust funds, 8. 
 omission of teste in execution not, 20. 
 on judgment of federal courts, 17. 
 order for examination should state all facts necessary 
 to confer jurisdiction, 42. 
 must be made returnable to a judge or justice in the 
 county where the judgment-debtor resides, 43. 
 where made returnable to a judge other than the 
 one signing it must name the judge, time and 
 place of appearance, 44. 
 second and subsequent order for examination, 45. 
 what judges have, in contempt proceedings, 138. 
 where judgment is rendered for less than twenty-five 
 dollars, 18. 
 transcript of judgment of inferior court was not 
 filed within six years aftfer rendition of judg- 
 ment, 14, 15. 
 
Index. 291 
 
 Land conveyed to another — 
 
 consideration of, cannot be reached in supplementary- 
 proceedings, 8, 9. 
 Lien — 
 
 abates unless receiver appointed, 2. 
 
 absoluteness of, upon appointment of receiver, 2, 
 
 5, 6. 
 creditors bill superior when, Y. 
 dates from service of order of examination, 2. 
 none on property previously transfered by judgment- 
 debtor, 7. 
 old rule changed by section 2469 of the Code, 2. 
 limitation of judgments on real estate, 18. 
 on equitable interest in the hands of third party, 6. 
 fund by order for delivery of property or money 
 to sheriff or receiver, 87. 
 priority of, between judgment-creditor having an order 
 for examination and one having an execution in the 
 sheriff's hands, 5. 
 superior to any claim subsequent to service of order, 3. 
 Limitation — 
 
 as against bona fide purchasers and incumbrances, 18. 
 effect of, 18. 
 
 execution must be issued on judgment within five 
 years, 21. 
 after five years by leave of court, 21. 
 against deceased judgment-debtor within six years 
 V after rendition of judgment, 21. 
 first execution must be returned within ten years to 
 
 give judge jurisdiction, 26. 
 in favor of representative of judgment-creditor, 18. 
 judgment when presumed to have been paid, 18. 
 of lien of judgment on, 18. 
 stay of judgment-creditor by injunction or operation 
 
 of an appeal, 18. 
 of extent of examination on warrant of arrest, 73, 77. 
 upon an order issued before return of execution, 
 66, 71. 
 Motion- 
 before judge to vacate ex parte order made by him, 
 109, 175, 178. 
 
292 Index 
 
 Motion — (Continued). 
 
 before judge to vacate order made out of court, 109, 
 113, 175, 178. 
 to modify order made out of court, 109, 116, 176. 
 or vacate order made by him must be on 
 notice, 109, 176. 
 for order to punish for contempt, 109. 
 for costs by judgment creditor, 117. 
 judgment, debtor, 118. 
 third person, 118. 
 on grounds of execution of inferior court not issued by 
 clerk of court of record, 109, 116. 
 of discharge of debtor in bankruptcy, 109, 111. 
 of amount due on judgment, 109-116. 
 of facts stated in the alternative, 108, 115. 
 that affidavit does not describe judgment, 108, 115. 
 that order does not state all jurisdictional facts, 
 
 109, 113. 
 that proceedings were not commenced in time, 109, 
 
 113. 
 that no demand for application of money or prop- 
 erty was made before granting order for exami- 
 nation before return of execution, 109, 116. 
 that it does not appear that execution was issued 
 within five years after entry of judgment, 109, 
 115. 
 that it does not appear that execution was returned 
 within ten years before granting of order for ex- 
 amination, 108, 116. 
 that it does not appear that third party has prop- 
 erty of the judgment-debtor, 109, 113.' 
 that it does not appear that party arrested has 
 
 property, 73, 75, 108, 116. 
 that affidavit for order of examination before re- 
 turn of execution does not show that debtor has 
 property which he refuses to apply, 66, 70, 108, 
 111. 
 notice of, for irregularities, 113, 116. 
 orders reviewed in first instant upon, 109, 116. 
 to what court or judge to be made, 109, 116, 175, 
 177. 
 
Index. 293 
 
 Motion — (Continued). 
 
 to court out of which execution issued, 109, 116, 175. 
 
 in contempt proceedings, 109, 175. 
 when must be made for irregularities, 114. 
 when more than one ground of motion, 109, 114. 
 Notice- 
 must specify the irregularities, 115. 
 of motion necessary to vacate ex parte order, 109, 116. 
 for discontinuance, 112. 
 
 by whom to be made, 108, 116. 
 for dismissal of proceedings, 109, 114, 
 for costs by judgment-creditor, 117. 
 judgment-debtor, 118. 
 third party, 118. 
 on motion to vacate order for irregularity, 115. 
 Non-resident — 
 
 affidavit for order for examination of, must show 
 that execution was issued to the county in which the 
 judgment-roll is filed, 32, 33. 
 third party must be examined in the county where the 
 
 order is served upon him, 31, 32, 33. 
 w;ho has no place of business in the state must be ex- 
 amined in the county in which the judgment-roll is 
 filed, 32, 43. 
 
 Nullity- 
 appearance does not waive, 113, 116. 
 consent cannot confer jurisdiction over the subject- 
 matter, 113, 116. 
 restricted or limited appearance, effect of, 113. 
 what are, 116. 
 when judges fail to obtain jurisdiction, 116. 
 
 Oath— 
 
 of referee before proceeding, 90. 
 power of referee to administer, 90. 
 examinaton of witness must be upon, 60. 
 
 Objection— 
 
 to validity of execution cannot be taken except upon 
 
 motion to set aside, 21 . 
 that there was property which the sheriff ought to 
 
 have taken, must be raised by motion, 22. 
 
294 Index. 
 
 Objection — (Continued). 
 
 that execution was not endorsed as required by section 
 1376 of the Code, 110, 115, 175. 
 Office— 
 
 for the regular transaction of business in person, 32. 
 execution must issue to county where debtor has, 32. 
 Order — 
 
 after issuing, and before return of execution, 70, 71. 
 ex parte, 42. 
 
 for examination must be made returnable to a judge 
 or justice in the county where the judgment- 
 debtor or third party resides, 43. 
 of a non-resident must be made returnable to the 
 
 county where the judgment-roll is filed, 43. 
 upon judgment of inferior courts must be made re- 
 turnable to the county where the transcript is 
 filed, 43. 
 is a process by which the proceeding is commenced, 
 
 52. 
 after return of execution, 42. 
 may contain an order of injunction, 42. 
 
 reference, 42. 
 may be served in any county of the state, 43, 53. 
 must state all facts necessary to confer jurisdiction, 42. 
 must direct the debtor or third person to appear in per- 
 son before the judge to whom it is returnable, or a 
 referee, 49. 
 Order to show cause- 
 effect of, 144, 146. 
 
 proper notice of motion in contempt proceedings, 147. 
 the only way of bringing party into contempt under 
 
 Code, §§ 2267, 2268, 145, 146. 
 who may grant, 138. 
 
 why party should not be punished for failure to appear, 
 146. 
 refusal to produce books, etc., 140. 
 refusing to pay over money, 142. 
 interference with property, 139. 
 transfer of property, 139. 
 why witness should not be punished for failure to obey 
 subpoena, 140. 
 
Index. 296 
 
 Order to show cause — (Continued), 
 
 why witness should not be punished for refusal to be 
 sworn, 140, 141. 
 refusal to answer a question/ 141. 
 Order for payment of money — 
 considered a judgment, 16. 
 Persons exempt from arrest and examination- 
 electors on general election day, 73. 
 foreign ministers and their domestics, 30, 72. 
 heads of foreign governments, 72, 73. 
 enlisted men of the United States, 73. 
 members of congress, 73. 
 members of the legislature, 73. 
 militiamen of the state, 73. 
 New York city policemen, 73. 
 officers of either house of the legislature, 73. 
 officers of a court of record during actual sittings, 73. 
 parties to action while in attendance at court, 73. 
 witnesses in attendance at court, 73. 
 women, except for willful injury to person, character 
 
 or property, 73. 
 discharged under the two-thirds act, 30. 
 a debtor under arrest on execution, 30. 
 Place- 
 where party must be examined, 31, 32. 
 Practice- 
 adjournment of proceedings, 58, 59. 
 absence of judge or referee, 59, 60. 
 affidavit for order of examination after return of exe- 
 cution, 35. 
 by whom made, 36. 
 return of execution, contents of, 37. 
 return of execution for second order, 40. 
 after issue and before return of execution, 66, 68, 70. 
 affidavit for order of examination of third person, 80, 
 81,82,83. 
 warrant for examination, 73, 74 
 against whom supplementary proceedings may be in- 
 • stituted, 30, 31. 
 
 by whom supplementary proceedings may be instituted, 
 32, 33. 
 
296 Index. 
 
 Practice — (Continued). 
 
 by personal representation, 29. 
 contempt proceedings for, 137, 157. 
 
 nature of, 137. 
 
 what court or judge has jurisdiction, 138. 
 
 who may apply for order in, 138. 
 
 acts that are punishable by, 138. 
 
 failure to appear, 139. 
 
 refusal to comply with order, 140. 
 
 interference with property, 141. 
 
 when punishment may be summary, 143. 
 
 when warrant to commit may issue, 144. 
 
 order to show cause, 144, 145. 
 effect of, 146. 
 
 interrogatories, 147. 
 
 undertaking, 147. 
 
 amount of fine, 148, 149, 152. 
 
 length of imprisonment, 153, 154, 156. 
 
 jail liberties, 157. 
 
 release of offender, 157. 
 costs, how collected, 117. 
 examination, extent of inquiry, 60, 62, 63. 
 
 on warrant of arrest, 76, 77. 
 
 on order issued before return of execution, 67, 68, 
 69. 
 against third person, 84, 85. 
 execution against property, 19. 
 
 form of, 20. 
 
 issuing after five years, 21. 
 
 of inferior court must be issued by clerk, 21. 
 
 sufficiency of return of, 22. 
 
 when must be returned, 22. 
 
 what amounts to a return, 24. 
 
 second after order for examination, 25. 
 
 ten years limitation after, 26. 
 
 levy of, on real property after ten years, 27. 
 
 countermand of, effect of, 27. 
 
 against joint-debtor, 28. 
 judgment, amount of, 13. 
 
 against infants, 17. 
 
 by confession, 16. 
 
Index. 297 
 
 Practice — (Continued). 
 
 judgment, amount of limitation of lien of, 18. 
 of federal courts. 17. 
 for defendant, 17. 
 
 of inferior court must be docketed within six 
 years, 13. 
 nature of supplementary proceedings, 1. 
 a special proceeding, 1. 
 
 what statutory rights cannot be inforced by, 9. 
 order for debtor to appear after return of execution, 
 42, 43, 44. 
 making and service of, 50. 
 by whom made, 50, 51, 52. 
 where served, 52, 53. 
 how served, 53, 54. 
 when served, 55, 56. 
 waiver of service of, 56, 
 return of, 57, 58. 
 
 for examination after issue and before return of 
 execution, 58, 59. 
 third person, 86. 
 service of, 86. 
 for voluntary payment of judgment by third person, 
 
 97. 
 of injunction, 96. 
 
 effect of, on exempt property, 47. 
 
 property acquired after service of order, 48. 
 from what it restrains, 49. 
 superseding of, 108. 
 vacating of, 108, 109. 
 dismissing of, 112, 113. 
 grounds for, 110. 
 proceedings after return of execution, 34. 
 
 for collecting of judgment before appointment of 
 receiver, 97, 98, 99, 100. 
 disputed title, 102. 
 lien on fund, 103. 
 exempt property, 104, 105, 106. 
 trust funds, 105. 
 alimony, 106. 
 38 
 
298 Index. 
 
 Practice — l(Continued). 
 
 receiver, appointment before service of order for ex- 
 amination, 119. 
 without notice to judgment-debtor, 120. 
 before return of execution, 120. 
 
 as plaintiff, 132. 
 
 by whom appointed, 120, 121. 
 controlled, 134. 
 
 duties of, 130. 
 
 extension of, 123. 
 
 filing order appointing, 124, 125. 
 
 from what time absolute title vests, 126, 127. 
 
 grounds for appointing, 122. 
 
 leave to sue, 131. 
 
 notice of application for, 121. 
 
 priority of lien of, 124, 125. 
 
 security of, 125. 
 
 title of real estate vests in, when, 128, 129. 
 
 what pi'operty vests in, 127, 128. 
 
 when title to property extends back, 134. 
 
 who may, act as, 120. 
 reference, by whom appointed, 88, 89, 90. 
 
 oath of referee, 90. 
 
 power of referee, 90. 
 
 proceedings before referee, 91. 
 
 where may be executed, 89, 91. 
 
 who may be referee, 89. 
 residence and place of examination of debtoi" or party, 
 
 31. 
 taxes, collection of, 11. 
 warrant of arrest for examination, 75. 
 
 persons exempt from, 73. , 
 
 preliminary examination under, 76. 
 
 return of, 75. 
 
 service of, 75. 
 
 undertaking, 76. 
 witnesses, attendance, how enforced, 94. 
 
 how subpoenaed, 94. 
 
 must sign deposition, 95, 96. 
 
 right of, to counsel, 95. 
 
Index 299 
 
 Preliminary examination under warrant — 
 
 examination after, 75, 76. 
 
 judgment-creditor must substantiate charge in affi- 
 davit, 76. 
 must make it appear that there is danger that the 
 debtor will leave the state or conceal himself, 
 74, 76. 
 must make it appear that the debtor has property 
 which he unjustly refuses to apply, 73, 76. 
 undertaking may be required of debtor, 76. 
 witness may be called by either side on, 73, 77. 
 persons arrested entitled to, in the first instance, 75. 
 Proceedings after the issuing and before return of execu- 
 tion — 
 affidavit to obtain, 66. 
 
 must allege that execution is yet in the hands of 
 
 of the sheriff unsatisfied, 66, 69. 
 must allege that the judgment debtor has prop- 
 erty not exempt from execution, 67, 70. 
 must allege that he unjustly refuses to apply his 
 property to the payment of the judgment, 66, 70. 
 must show that a demand has been made upon the 
 judgment-debtor for the application of his prop- 
 erty, 67, 70. 
 must show that execution was issued within five 
 
 years after rendition of judgment, 66. 
 much show that judgment-debtor was a resident 
 of the county to which the execution was issued, 
 66. 
 must show that judgment-debtor's property could 
 
 not be reached by execution, 66, 70. 
 must show that property was not subject to levy, 
 or cannot be clearly identified, 66, 70. 
 .by and against what persons, 66, 70. 
 warrant may be issued instead of order in, 70. 
 examination must be limited to property mentioned 
 in affidavit, 71. 
 Proceedings after return of execution- 
 affidavit necessary to obtain, 35. 
 
 must show that judgment-debtor is then a resident 
 of the county, 35. 
 
SOO Index. 
 
 Proceedings after return of execution — (Continued). 
 
 affidavit must show that first execution on the judg- 
 ment was returned within ten years, 35. 
 must show that no prior application has been made 
 
 for the order, 36. 
 upon judgment of inferior court must show that 
 transcript was filed within six years after its 
 rendition, 36. 
 should show the amount remaining unsatisfied, 36. 
 for warrant is absolutely necessary, 36 
 
 must show that judgment was taken upon 
 appearance of or personal service of sum- 
 mons on judgment-debtor, 37. 
 order for examination, 34. 
 two separate and distinct proceedings, 34 
 warrant for examination, 34. 
 Proceedings for collection of judgment before appointment 
 of receiver- 
 application of money or property to payment of judg- 
 ment, 87. 
 disputed title, 102. 
 earnings of judgment-debtor for sixty days before 
 
 service of order cannot be reached, 104, 105. 
 exempt property, 104, 105. 
 
 kind of property that may be ordered delivered, 99. 
 lien on fund, 103. 
 
 order for voluntary payment by debtor of judgment- 
 debtor, 97. 
 no protection when, 98. 
 
 requiring delivery of money to sheriff or receiver, 98. 
 when to be made, 98. 
 property acquired after making of order or warrant 
 
 for examination, 101. 
 trust funds created by a person other than the debtor, 
 
 105. 
 what property cannot be reached, 99, 102. 
 
 Property— 
 
 what kind can be ordered delivered to a sheriff, 99. 
 acquired after making of order for examination, 101. 
 disputed title to, cannot be tried when, 104. 
 of corporations, when cannot be reached, 104. 
 
Index. 301 
 
 Real estate- 
 how far vests in a receiver of judgment-debtor, 126. 
 how a receiver must sell, 128, 129. 
 may be leased by a receiver, 128^ 129. 
 Receivers— 
 
 appointment of, before service of order for examina- 
 tion, 120. 
 before return of execution, 120. 
 without notice to judgment-debtor, 119, 122. 
 by whom appointed, 119, 120. 
 
 controlled, 13-i. 
 completing receivership, 124, 125. 
 filing order, 125. 
 filing security, 125. 
 duties of, 130. 
 
 extension of receivership, 123. 
 from what time absolute title vests, 124, 127. 
 grounds for appointing, 122. 
 leave to sue, 131. 
 
 as plaintiff, 132. 
 notice of application for, 121. 
 proof as to pendency of other proceedings, 122. 
 property acquired after service of order for examina- 
 tion, 128. 
 priority of lien on the personal property of the judg- 
 ment-debtor, 133, 134. 
 real estate, 126, 127. 
 
 title of receiver in, 127. 
 vacating order appointing, 135. 
 what property vests in, 126, 127. 
 when title extends back by relation, 134. 
 who may pot act as, 120. 
 Referee— 
 
 cannot punish party or witness for contempt, 88, 92. 
 has same power as if appointed in an action to take 
 
 testimony, 88, 92. 
 may issue summons appointing time and place of hear- 
 ing, 42, 46, 88, 92. 
 may be removed, when, 88, 92. 
 
 must not have an office with judgment-creditor's at- 
 torney, 46, 89. 
 
302 Index 
 
 Referee — (Continued). 
 
 must certify to the judge to whom the order is return- 
 able all evidence, etc, 46, 90. 
 must issue subpoena requiring witness to appear, 46, 91. 
 order for examination may designate, 45, 88, 92. 
 
 requii'e judgment-debtor or third person to attend 
 and be examined before, 46, 88, 92. 
 oath of, 90. 
 power of, 90. 
 
 proceedings before, 88, 92. 
 upon death of, 88, 92. 
 remedy of party where adjournment refused by, 58, 
 88, 92. 
 
 Reference- 
 deposition must be signed by witness and filed, 60, 64. 
 read to witness, 60, 64, 91, 92. 
 corrected to agree with witnesses' statement, 61, 
 64, 91, 92. 
 examination must be taken in form of deposition, 60," 
 
 -64, 90, 92. 
 if either party fails to appear the referee must enter 
 
 proceedings, in his minutes, 90, 92., 
 incidental order of, when granted, 46, 88, 92. 
 order for, may be, part of the order for examination, 42, 
 88, 92. 
 designate a referee, 45, 88, 92. 
 require the judgment-debtor or third person to at- 
 tend and be examined before such referee, 46, 
 88, 92. 
 order of, must be made at time of granting order of ex- 
 amination, 88, 92. 
 may be executed where, 88, 92. 
 Remedies — 
 
 levy of execution suspends, when, 44. 
 
 of party when adjournment refused by referee, 58, 59, 
 
 60. 
 proceedings against judgment-debtor after issue of and 
 before return of execution, 4. 
 after return of execution unsatisfied, 4. 
 the debtors of the judgment-debtor, 4. 
 three distinct remedies in supplementary proceedings, 4. 
 
' Index. 303; 
 
 Residence — 
 
 execution must be issued to place of judgmeat-debtor's^ 
 
 31. 
 judgment-debtor must be examined in place of, 32. 
 order for examination must be made returnable to a 
 judge or justice in the county where the judg- 
 ment-debtor or third party resides, 43. 
 of a non-resident must be made returnable in the 
 
 county where the judgment-roU is filed, 43. 
 upon judgment of an inferior court must be made 
 returnable to the county where the transcript is- 
 filed, 43. 
 third party must be examined in place of, 32. 
 where judgment-debtor resides without the state, 31. 
 where a person resides in one county and has place of 
 business in another, execution may be issued to 
 either, 32. 
 witness may be examined anywhere, 32, 33. 
 Eetnrn— 
 
 effect of collusion of sheriff with creditor, 21. 
 
 equivocal, effect of, 24. 
 
 filing of, to execution not jurisdictional, 24. 
 
 first execution must be within ten years, 26. 
 
 immaterial that it is made at creditor's request, 21. 
 
 may be at any time after it is issued, 21. 
 
 of order for examination, 57. 
 
 of sheriff to warrant of arrest must show delivery of^ 
 
 and of affidavit to debtor, 75. 
 sheriff's, conclusive in favor of creditor, 22. 
 what amounts to, 24. 
 when court will go behind, 24. 
 
 Review of orders- 
 appeal lies from an order of court vacating or denying 
 
 a motion to vacate order, 176. 
 general term may review discretionary orders, 176, 177, 
 
 178. 
 in contempt proceedings, 175. 
 
 motion to vacate ex parte order may be made to judge 
 who granted it, 176. 
 may be made to the court out of which the execu- 
 tion was issued, 175, 176, 178. 
 
304 Index. ' 
 
 Review of orders — (Oontiued). 
 
 no appeal lies from order for examination, 175, 176. 
 any order granted ex 'parte,, 176. 
 Second or subsequent orders for examiuation — 
 
 affidavit for, must show subsequently acquired property, 
 40, 45. 
 must show facts newly learned, 40, 45. 
 may show that first order was vacated on some 
 technical objection, 40, 41, 45. 
 does not supersede first order, 41, 45. 
 order may be granted while first order is pending, 41, 
 45. 
 Seryice — 
 
 copy, order and affidavit must be delivered to party, 54. 
 how served, 53. 
 
 original order must be exhibited to party, 53, 54. 
 order may be served in any part of the state, 43, 53. 
 may be served by any person, 54. 
 on third party, 85, 86. 
 proof of, must be by affidavit, 54. 
 sheriff's certificate not sufficient, 54. 
 warrant may be served in any part of the state, 76. 
 by delivering to and leaving with the defendant a 
 copy thereof, and of the affidavit, 75, 76. 
 waiver of, by appearance, 55. 
 when to be served, 54. 
 Sheriff— 
 
 affidavit for order for examination of, need not show all 
 the matters, 40. 
 must show reason for issuing execution to coroner, 
 etc., 40. 
 certificate of service of order for examination by, not 
 
 sufficient, 54. 
 holding an attachment may maintain supplementary 
 proceedings, 30. 
 , when judgment-debtor execution must issue to cor- 
 oner, etc... 40. 
 Special proceedings — 
 
 all supplementary are, 3. 
 
 are given to judges and not to the court, 4. 
 
 should not be entitled in the action, 
 
Index. 305 
 
 Subpoena — 
 
 how served, 94. 
 
 must be issued by judge or referee before whom the 
 
 examination is liad, 46. 
 penalty for disobeying, 94. 
 Summons — 
 
 may be issued by referee appointing a time and place 
 
 of hearing, 42. 
 must be personally served on judgment-debtor, 42, 43. 
 Superseding order — 
 
 not superseded by a second order to examine, 108. 
 what must be shown to obtain, 108. 
 Surplus premium of life insurance — 
 
 cannot be reached by suppplementary proceedings, 8. 
 Surrogate — 
 
 execution issued by leave of, not sufficient, 30. • 
 Taxes — 
 
 . affidavit to procure order foi-, must allege what, 11. 
 
 need not show jurisdiction in the assessors and su- 
 pervisors, 11. 
 amount of, necessary to give judge jurisdiction, 11. 
 costs and disbursements in, -11. 
 proceedings to collect by, 11. 
 
 must be commenced within one year, 11. 
 Third party, proceedings against — 
 
 affidavit for order for examination of, 38. 
 
 must show that party has property of the debtor, 
 
 or is indebted to him, 38. 
 must show that ten years have not elapsed since 
 
 return of the first execution, 38. 
 must show that execution was issued to county 
 
 where judgment-debtor resides, 88. 
 must show that execution was returned wholly or 
 partly unsatisfied, or that it has not been re- 
 turned, 78, 79. 
 must show that the defendant is a resident, or that 
 he has a place of business within the county to 
 which execution is issued, 82, 83, 84. 
 should show that judgment was docketed or tran- 
 script filed before execution was issued, 39. 
 39 
 
306 Index. 
 
 Third party, proceedings agaiust — (Continued). 
 
 affidavit should siiow that transcript was filed within 
 six years after rendition of judgment, 39. 
 should show that execution was issued within five 
 years after recovery of judgment or by leave of 
 court, 40. 
 should show time and place of filing, 39, 83, 84. 
 should show execution was issued after judgment 
 
 was docketed, 89, 84, 85. . 
 must state whether or not proceedings under either 
 section 2435 or section 2436 are pending, 82, 
 85. 
 upon information and belief, 38, 83, 85. 
 allegation in the words of section 2441 of the Code, 
 insufficient, 38, 83, 85. 
 in the alternative insufficient, 38, 84, 85. 
 independent proceedings, 79. 
 in what county order must be made, 82. 
 not entitled to witness fees, 83, 85. 
 order should recite the jurisdictional facts prescribed by 
 section 2441 of the Code, 85, 86. 
 should name the officer of a corporation to be ex- 
 amined, 85, 86. 
 may require a person to attend before a referee, 
 
 86. 
 must be returnable to the county where thej)erson 
 resides, 85, 87. 
 proceedings after return of order, 86. 
 property discovered, how disposed of,- 87. 
 service of order, 86. 
 
 what kind of property may be reached by, 80. 
 who may be examined, 80. 
 Title- 
 applies to property then owned by debtor, 7. 
 disputed, cannot be tried in supplementary proceed- 
 ings, 102. 
 of supplementary proceedings, 5, 6, 7 9. 
 of contempt proceedings, 137, 157. 
 does not affect property fraudulently transferred, 
 
 7. 
 legal, when acquired by receiver, 7. 
 
Index. 307 
 
 Transcript— 
 
 of inferior court must be filed within six years of ren- 
 dition of judgment, 14, 15. 
 amount of judgment jurisdictional, 15, 16. 
 Trust funds— 
 
 cannot be reached by, when, 7, 8, 105. 
 
 order for delivery of property to sheriff or receiver, 
 105. 
 surplus income of, cannot be reached when, 8, 105. 
 Undertaking— 
 
 as indemnity in contempt proceedings, 158. 
 to procure discliarge in contempt proceedings, 147. 
 upon arrest of judgment-debtor for examination, 76. 
 upon appointment of receiver, 125. 
 Tacating order- 
 appointing receiver, 135. 
 
 cannot be made on ex parte application, 108, 113. 
 can be reviewed only as prescribed by section 2433 of 
 
 the Code, 109, 112. 
 discharge in bankruptcy, 108, 110. 
 grounds of motion for, 110. 
 injunctive order, 108, 112. 
 should not be except for most substantial reasons, 
 
 109. 
 where affidavit does not state amount unpaid on judg- 
 ment, 109, 111. 
 does not truly describe judgment, 108, 115. 
 of agent does not show authority, 109, 113. 
 for order under section 2436 of the Code does not 
 
 show that a demand was made, 108, 105. 
 fails to show execution issued within five years, 
 
 109, 113. 
 
 for warrant of arrest does not show what property 
 
 the debtor has or that he has property, 108, 116. 
 
 where order for examination improvidently granted, 
 
 108, 116. 
 
 execution of inferior court not issued by clerk of 
 
 court of record, 110, 113. 
 proceedings were not brought in time. 111, 115. 
 grounds for order alleged in the alternative, 108, 
 115. 
 
308 , Index. 
 
 Yacating order — (Continued). 
 
 when affidavit fails to allege all facts presoribed by the 
 
 statute, 109, 116. 
 who may vacate, 108, 116. 
 Warrant for examination — 
 
 affidavit for, absolutely necessary, 36, 72, 73. 
 
 must show that judgment was taken upon appear- 
 ance of or personal service of summons on judg- 
 ment-debtor, 37, 73,, 74. 
 must show that judgment when taken was for not 
 
 less than twenty-five dollars, 37, 78, 75. 
 must show that there is danger that the judg- 
 ment-debtor will leave the state or conceal him- 
 self, 73, 77. 
 must show that there is reason to believe that he 
 has property which he unjustly refuses to apply, 
 74, 76. 
 how facts in, must be stated, 73, 76. 
 must show what property debtor has, 73, 77. 
 must allege in what county the judgment-roll is 
 
 filed, 37, 72, 77. 
 must truly describe the judgment, 37, 73, 76. 
 should state the amount then due on the judg- 
 ment, 37, 73, 75. 
 must specify the particular form in which the 
 
 property exists, 73, 77. 
 must positively show that debtor intends to leave 
 the state, 73, 76. 
 is issued in the name of the people, 72, 77. 
 niay be served in any part of the state, 75. 
 must recite the facts stated in affidavit, 76. 
 must direct the, sheriff of any county to arresit the judg- 
 ment-debtor, 75. 
 preliminary examination of debtor, 75, 76. 
 when undertaking may be required of debtor, 76. 
 Warrant — 
 
 to commit may issue without notice in contempt pro- 
 cpedings, when, 143, 144. 
 WaiTer— 
 
 of sorvice of order by appearance, 55, 115. 
 of what it consists, 115. 
 
Index 309 
 
 Waiver — (Continued). 
 
 what objections may be waived, 115, 116. 
 Witness- 
 answer cannot be used against him in a criminal action, 
 95. 
 
 attendance, how enforced, 93. 
 
 contents of warrant of arrest, 95. 
 
 corporation examined as a witness, 93, 96. 
 compelled to produce books, etc., 94. 
 how examined as a witness, 94, 95. 
 
 in contempt proceedings, 94. 
 
 may be called and examined by either party, 93, 96. 
 
 may be compelled to produce books and papers, 93, 96. 
 
 may have counsel, 95. 
 
 must be examined under oath, 93. 
 
 must be paid witness fees the same as in an action, 94. 
 
 must sign deposition, 96. 
 
 not excused from answering questions, 93, 94. 
 
 penalty for disobeying subpoena, 94. 
 
 right of, to counsel, 95. 
 
 signing deposition, 96. 
 
 subpoena, how served, 94. 
 
 third party not entitled to fees of, 81, 82. 
 
n/ 
 
 > ^ I' ^.