C!l0rn?U ICaui Bd^ool Slibratg Cornell University Library KFN6065.B81 1902 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022885408 :ne^w^ practice IN J SDPPLEMENTARY PROCEEDINGS ALL THE STATUTES ON THE SUBJECT AND NEW FORMS FOR EVERY CASE. BY GEO. W. BRADNER. . SECOND EDITION. ALBANY, N. Y. W. C. LITTLE & CO. LAW BOOKSELLERS AND PUBLISHERS. 1902. Copyright, 1903. BY GEOEGE W. BRADNER. PREFACE TO SECOND EDITION. Since the publioation of tlie first edition of this work the piUjr- pose Kas beieai kept in view to prepare ano'ther edition embracing all the alterations in the statutes whioh the law^makers might see fit to maka The features of the present edititon which de- serves to be specially eniumerated are the follo^wing: I. The iffew Procedure. T'his feature, it is believed, deserves the atten- tion of the p-rof ession. II. The EaglitB of the Debtor. The ob- jections that may be raised by the debtor have been carefully elaborated. Great pains have been taken to set out each and every objection which might be useful to a debtor into as few gefneral heads, or divisions, as was piraciticable. Often, a well- cbosen citation has been preferred to am explanatory circumlo- tion. I have great satisfaction i^ the indications I have received that the first edition of tMs work bas aided ooamsel in disposing of technical questions of procedure, and at getting readily at the practioe under this branch of the law. This seoond edition is larger than the first, chiefly because it includes the ISTew Procedure and all the cases reported during the last seven years. The rules applicable to these proceedings relate to^ a large ex- tent to tbe jurisdiction of the judges at chambers ; and turn on the question. Does the creditor's application state facts sufficient to give the judge jurisdiction to grant tbe order called for. In this volume I have sought to state all the oases, all the statutes and all the rules of court relating to this special branch of pro- cedure. My aim has been to state all the existing rules on the subject of supplementary proceedings, and to support tbem with all the authorities from all jurisdictions. It will be seen at once by a reference to the context and the authorities cited how useful is the light which has been tbus thrown upon the subject. I can hardly hope that every rule which I have stated will be found coirrect, but my aim has been to state nothing iv Preface. positively unless it has been settled beyond a question. The object of the work is tO' present in the smallest space possible a statement of the rules of practice governing various steps in tihis branch of procedure from the entry of judgment to the final accounting of the receiver. This neicessarily includes the mode of obtaining tie judgment and the order awarding costs, the exeeutiom, the return of the sheriff and proceedings betweeoi the entry of the judgmieait and the granting of the order of examina- tiom In carrying out this plan it has been necessajry to care- fully examine- and prepare the several statutes in relation to these proceedings and the several decisions of the courts constru- ing such statutes. The iN^ew York Code of Civil Procedure in reg'aird to these proceedings is found to contain a multitude of pitfalls and chiasms having •unkniown bottoms, without even a hand-rail for the protection of the practdtiomer. But it is hoped that the collection of ail the practice cases on this subject, with a statement of the construction put upon the statutory provisions, will furnish a practically safe guide to the practitioner a;nd to the eoTirts. GEO. W. BRADlSrER. ISTew York, April 16th, 1902. T^^^JBIJE OF CONTENTS. GHAPTEE I. PAGE. Substitute for creditor's bill ... 1 Difference between creditor's action and supplementary proceedings 1 What judgments necessary.... 2 Special proceedings in tbe ac- tion 2 Creditor's action and supple- mentary proceedings at same time on same judgment 2 Statutory proceedings 4 Power of judge 4 The three remedies by supple- mentary proceedings 4, 5 Amount of judgment or costs. . 5 Proof necessary to give judge jurisdiction 5 Fractions of a day not noticed — When 6 Justice of City Court of New York 6 Justice of Supreme Court may grant order in every ease — — When 6, 7 To whom order must be made returnable 7 General power of judge over the proceedings 7 Position of party who has an order awarding costs in a, special proceeding 7, 8 Party entitled to order for ex- amination as a matter of right— When 8 Agent or attorney of the judg- ment-creditor may institute proceedings 8, 9 Attorney having a lien may in- stitute proceedings 9 Assignee of a judgment may in- stitute proceedings 9 Return of execution by assignor of judgment sufficient 9 PAGE. Assignee may proceed in name of assignor 9 Sheriff holding an attachment may instiaute proceedings — ■ When 10 A,ssignee for benefit of creditors may institute proceedings — • When 10 Receivers may institute pro- ceedings — When 10 Representative of deceased cred- itor or assignee may institute proceedings 10, 11 Indorsing ' papers by represen- tative 11 Debtor subject to proceedings 11, 12 Proof by party to whom costs have been awarded in a spe- cial proceeding 12 Infant as debtor 13 Married woman as debtor 13 Corporation not subject to pro- ceedings — When 13 Executor of judgment-debtor. . 13 Administration of judgment- debtor 13 Trustee of judgment-debtor .... 13 Judgment against an executor or administrator cannot be enforced by 13 One discharged in bankruptcy 13 Foreign minister or his assist- ants 14 Judgment-debtor while under arrest on the judgment ..... 14 Judgment against two or more 14 Third party proceedings — Against 15 Proof to obtain order against third party 15, 16 Notice to debtor of proceedings against third party 17 (V) VI Table of Contents. OHAPTEE II. PROPERTY EXKilPT BY NEW YORK STATUTES. PAGE. Property held in trust — When exempt 18 Earnings of execution-debtor for sixty days — When ex- empt 18,19 Property — Absolutely exempt 19, 20, 21 Property — Conditionally ex- empt 20 Necessary food for team for ninety days 20 Execution for purchase money of exempt property 20, 21 Exemption in favor of women 21 Debtor must select property conditionally exempt 22 PAGE. Duty of oflBcer with execution 22 Proceeds of exempt property — When exempt 23 Labor performed as a domestic 23 Waiver of exemptions 24, 25 Alimony — When exempt 26 Life insurance — When exempt . . 26 Pension — When exempt 26 Military pay — When exempt. . . 26 Rewards — A^Tien exempt 26 Homestead exemptions 27 Widow and children of owner of homestead 28 Destruction of buildings 28 Mortgage of exempt homestead 28 OHAPTEE III. JUDGMENT. PAGE. Amount of judgment 30 Judgment — When a lien on real property 30, 31 Proceedings against represen- tatives of judgment-debtor. . 31 Surviving judgment-debtors. . . 32 Notice to sheriff by creditor necessary — When 32 Proceedings after death of judg- ment-debtor 32 Assignee of judgment-debtor ... 32 Discharge of debtor in bank- ruptcy 32 Substituted service of sum- mons 33 Misnomer of defendant 33 Proceedings by debtor — When judgment is irregular 33 Parting — Judgment against. . . 33 PAGE. Foreign judgments 34 Appearance — Judgment upon . . 35 Appearance — What is deemed to be 35,36 Summons — Service of upon an infant, idiot or lunatic 36 Amount of judgment 37 Inferior court judgment — ^Must be for twenty-five dollars ex- clusive of costs 37, 38 Substitute service of sum- mons 38, 39 Petitions and orders — Judg- ments upon 39 Federal court judgments 39, 40 Joint-debtor's judgment against one or more 40 Railroad company 40 Insurance company 40 CHAPTEE IV. EXECUTION. PAGE. Issuance of execution necessary in every case 41 Legal execution necessary 41 PAGE. Lien upon real and personal property necessary 41 Table op Contents. Vll PAGE. Legal remedy — Must be ex- hausted by 41 Costs awarded by order not sufficient on which to found proceedings 42 Form of execution 42 To what county — Must be is- sued 42, 43, 44 Place of residence of execution- debtor 43 Inconsistency of statutes in re- gard to place to which execu- tion must be issued 44, 45 Attorney must issue execution upon judgment of a justice of the peace — When tran- script is filed in New York county 46 Coroner-issue of execution to — In what cases 46 PAGE. Keturn of execution 47 Sheriff may hold execution. ... 47 Return of execution — Effect of 48 Last return — Effect of 48 Amendment of execution .... 48, 49 Variance between execution and judgment — Effect of 49 Defects in execution that will be amended 49 Two executions on same judg- ment to same county — Effect of 49 Execution after judgment has ceased to be a lien on real property 50 Setting aside sheriff's return of execution 51 Staying execution 52 CHAPTER V. PROOF NECESSARY TO GIVE JUDGE JURISDICTION TO GRANT ORDER FOR EXAMINATION. PAGE. Affidavit generally necessary, 53, 54 Affidavit of creditor generally necessary 55 Judges that have power to grant order 56 Necessary contents of affidavit 56 Form of alleging facts 57, 58 Statements as to judgment and execution 59 Statement — Where execution has not been returned 59 PAGE. Statement of demand necessary 60 Contents of affidavit for order for examination of a third party 61 Contents of affidavit — For order on judgment of a court not of record 62 Contents for affidavit — For warrant in lieu of order 63 Contents of affidavit — For sec- ond order for examination . . 64, 65 CHAPTER VI. NEW PRACTICE IN REGARD TO APPLICATION FOR ORDER OP EXAMINATION. PAGE. Who entitled to order of ex- amination 66 Jurisdiction of judge affected by time limit 67 PAGE. Time limit on order granting costs 67 Time limit on judgment of court of record 67 nil Tabi-e of Contents. FAQE. Time limit on judgment of court not of record 68 Time limit ^xed by statute for granting order ambiguous, 68, 69 Objection to application — How taken 70 What objections to application may be taken 71 Objections to application by a representative of the cred- itor, 72, 73 Objection to application by as- signee of creditor 73 Construction of statutes by court 74 Objection when application is for an order to examine a third party 75 Objection to application for an order iipon a judgment, the lien of which has been ex- tended 76 Objection that judgment has ceased to be a lien 77, 78, 79 Objection that execution was not issued within the time limited by statute 80 Who entitled to objection to ap- plication for order for exam- ination of third party 81 PAQK. Objections to application for order of examination founded on an order for the payment of costs 82 What application for order after return of execution on a judgment should con- tain 82,83 What application for an order for examination after return of an execution upon an order should contain 83, 84 What application for an order of examination after the issue and before the return of an execution upon a judg- ment should contain 84 What application for an order for examination before the return of execution upon an order granting costs must contain 84, 85 Order awarding costs 86 Construction of statutes allow- ing order of examination upon an order granting costs 86, 87, 88 CHAPTER Vn. ORDER AND WARRANT FOR EXAMINATION. PAGE. Corporations that are exempt from examination as debtors 91 Jurisdiction of subject-matter necessary to give judge power to grant order 91 Necessary facts must appear in application to give judge jurisdiction 92 What facts necessary to give county judge, special county judge and special surrogate jurisdiction to grant order, 92. 93 PAGE. Order for examination of non- resident debtor 93 Order and warrant in same matter 93 Power of justice of Supreme Court in any district 94 Proceedings do not abate 94 Death of party, referee or judge — Eifect of 94 Pacts necessary in application for order before return of execution 95 Table of Contents. IX PAGE. Supplementary proceedings are special proceedings 96 Rights of debtor before ex- amination 96 When creditor entitled to order as matter of right 96, 98 Judges empowered to grant order 97 Justices of City Court of New York 97 Order must name judge before whom it is returnable 98 Order before return of execu- tion always discretionary .. 98, 99 Entitling order 99 Order must direct party to ap- pear at some time and place 99 Order should recite jurisdic- tional facts 100 Party cannot be compelled to attend outside the county where he resides or where he has a, place for the regular transaction of business in person 101 Order made returnable before a judge of a county adjoining that in which the debtor re- sides 101 Where non-resident must be di- rected to appear 102 Injunction order as part of order of examination 102 Order of reference by whom to be made 102 Recorders of cities cannot grant order 103 Indorsing and filing papers .... 103 Warrant in lieu of order. . . 104, 105 Warrant must recite jurisdic- tional facts 105 PAGE. When warrant may be issued . . 105 Warrant against non-resident debtor l 105 Persons exempt from arrest upon warrant 105, 106 Second warrant — When may be granted 106 Warrant before return of execu- tion 107 Pacts necessary to support war- rant 107, 108 Persons that may be arrested on warrant 107, 108 Power of judge to grant order limited 108 Application for warrant on in- formation and belief 108 Form for stating facts in appli- cation for warrant 108, 109 Porm of warrant 109 Recitals in warrant 109, 110 Directions in warrant 110 Preliminary examination under warrant 110, 111 When judge to grant order that debtor give a bond for his ap- pearance Ill Order to commit may be granted — When , Ill Limitation of time of imprison- ment Ill Expense of boarding debtor. . . . 112 Service of order for examina- tion 112 When service may be made. . . . 112 Manner of service of order. . . . 113 Service upon officer of business or municipal corporation. . . . 114 Proof of service of order 115 Warrant how served 116 OHAPTEE VIII. INJUNCTION ORDERS. Persons affected by order of in- junction 117, 118 PAGE. Acts that are deemed violation of order 118 Table of O'ontents. PAGE. Order does not abate until re- ceiver is appointed 119 Debtor may deal with his ex- empt propei-ty 120 Injunction order does nof re- strain debtor dealing with after-acquired property. . 120, 121 Homestead surplus over one thousand dollars 122 Property held in trust 122 PAGE. Earnings of debtor for sixty days next before the service of order 122 Life insurance money due a married woman or widow . . . 122 Money due for exempt prop- erty 122 Alimony due debtor 123 Acts not deemed violation of injunction order 123 CHAPTER IX. VACATING, DISMISSING, SUPERSEDING AND DISCONTINUING PROCEEDINGS. PAGE. Motion in the nature of a de- murrer to vacate order on ap- plication 124 Ex parte motion to judge who granted the order 125 A motion — What is 125 Controverted questions of fact on motion — By whom de- termined 125 Affidavits when treated as pleadings 125 Who entitled to make motion to vacate order 125 Notice of motion — When nec- essary 126 Length of notice of motion. . . . 126 Order to show cause — When granted 126 Proof necessary to obtain order to show cause 126 Place where motion may be made 127 Before what judge or what court motion must be made . . 127 How order made before judge out of court received 127 Entry of order and filing pa- pers 127, 128 Objection that judge had no jurisdiction 1 28 Orders that are void 128 PAGE. Objections that cannot be waived 128 Objections that are waived. . . . 129 Effect of laches of movant 129 When judge has no jurisdic- tion 129 Burden on creditor to make a case 130 Total defect of evidence makes order void 130 Some proof of every fact — Effect of 130 No judge has common law jurisdiction in these proceed- ings 130 Object that application for order does not show that judgment was for twenty- five dollars 131 Objection that application for order does not show how judgment was rendered 131 Objection that application does not show to what county execution was issued 131 Objection that application for order on judgment of court not of record does not show judgment for twenty-five dol- lars- exclusive of costs 131 Table of Contents. XI PAGE. Objection that application does not show execution was issued within time prescribed by law 131 Objection that application does not show that creditor has exhausted his legal remedies 131 Objection that application fails to show what part of debt remains unpaid 132 Objection that application does show that execution was issued by county clerk 132 Objection that application does not. show that the form and contents of execution did not comply with the statute 132, 133, 134 Contents of execution in differ- ent cases 133, 134 Motion on affidavit necessary — When 135 Motion to set aside order for examination founded on an execution not returned. .135, 136 Motion by debtor to set aside an order of examination of his debtor 136 When third person ordered to be examined may move to set aside the order 136, 137 PAGE. Motion to set aside order for second examination 137 ^^Tien order for examination will not be vacated 138 When servi(fe of order will be vacated 139 Motion to vacate order for ir- regularity merely 139 Motion to set aside or for ex- amination founded upon an order awarding costs. . . .139, 140 Debtor may raise objection to jurisdiction of the judge over subject-matter at any time without notice of motion .... 140 Motion on ground that debtor has been discharged from the debt 140 Motion on ground that debt is barred by the statute of limi- tations 141, 142 When motion must be made to vacate order for irregularity 142 Statement of irregularity in motion papers necessary, 142, 143 Irregularities — What are 143 Effect of apearance by debtor 144 Irregularity — How affected by laches of debtor.. 144 Laches — How excused 145 CHAPTER X. REFERENCES AXD PROCEEDINGS THEREUNDER. PAGE. Power of referee appointed to take examination 146 Order of reference for examina- tion must be made — When 146, 147 Special references after service of order of examination 147 Order of reference must fix time and place of hearing. . . 147 PAGE. Debtor must be directed to at- tend within the county of his residence or place of busi- ness 147 Service of order of reference. . . 148 Death or absence of referee — Effect of 148 Order of judge after default. . . 148 xn Table of Contents. PAGE. Proceedings do not abate by reason of any absence of ref- eree or parties 149 Who may be referee 149 When referee may sit' in any county 150 Oath of office of referee 151 Referee has no judicial power upon examination 152 Referee must have witnesses sign depositions 152 Referee may, report the facts.. 152 PAGE. Evidence must be certified to judge and filed 153 Exceptions to findings of ref- eree 153 Duties of referee upon the ex- amination 154 Subpoena by referee 155 Power of judge over witnesses subpoenaed before referee. . . . 156 Subpoena duces tecum issued by referee 156 Power of judge to change referee 157 CHAPTER XL EXAMINATION. PAGE. Nature of the proceedings .... 158 Power of judge during examina- tion 158, 159 Proceedings do not abate.. 158, 159 Practice upon examination.... 159 Proceedings similar to trial of an issue of fact 159 Swearing by witnesses 159 Witnesses not excused from answering in regard to fraud- ulent transactions 159 PAGE. Examination may proceed after appointment of receiver or the bringing of a creditor's action 160, 161 Debtor's answer to defense. . . . 160 Extent of examination 161 Impertinent questions 162 Witness entitled to counsel . . . 162 Answers must be responsive. . . 163 Corporation must answer by officer 163, 164 CHAPTER XII. ORDER REQUIRING DELIVERY OF MONEY OR PROPERTY TO SHERIFF OR RECEIVER. PAGE. What judge may grant order. . 166 Personal property only to be ordered to be delivered. .166, 167 Remedy unsatiafactoiy in all cases 167 Judge has no authority to de- termine questions of fact. . . . 167 Pacts necessary to be shown to give judge power to grant order 167 PAGE. Judge may order debtor to make an assignment of debts or chattels 168 Order should be made on notice to debtor 168 What application for order must show 169 Dipputed title — What is... 169, 170 Injunction order necessary — When 170 Table op Contents. xui PAGE. Form and contents or order di- recting a delivery of prop- : erty 171 What property may be reached by order 171, 172 PAGE. Order permitting person in- debted to debtor to pay debt to sheriff 173 Receiver may obtain order .... 173 How property disposed of by sheriff 174 OHAPTEE XIII. RECEIVER. PAGE. Receiver may be appointed as soon as order for examina- tion has been made 175 Judge that may make the order 175, 179 Creditor bound to show exhaus- tion of his legal remedy 176 Lien of judgment on real prop- jerty necessary 176 Eights of debtor on applica- tion 176, 177 Notice to debtor necessary — = When 177 Appointment before return of execution doubtful 178 Proof necessary to give judge power to appoint receiver be- fore return of execution.... 178 Objection to application may be taken — When 179 Debtor may controvert facts in application — When 179 In what county application for order must be made 179, 180 Who may act as receiver 180 Proof of property belonging to debtor 180, 181 Order made on return of order for examination 181 Length of notice for application for order 182 When notice of application not required 182 PAGE. Notice to other creditors nec- essary — When 183 Form and contents of order. . . 183 Injunction order — With 184 Filing order 184 Order extending receivership. . 184, 185 One receiver only can be ap- pointed 185 Notice to debtor of order ex- tending receivership 185 Debtor's right to move to set aside order appointing re- ceiver 186 Bond of receiver 186 Power of judge over receiver.. 187 Service of order of receiver on debtor 187, 188 What court controls receiver. . 188 Vesting property in receiver. . . 188 What property vests in receiver 188, 189 Power Of receiver 190 Actions that may be brought by receiver 191 Leave of the court necessary be- fore action by or against re- ceiver 191, 192 How receiver must obtain pos- session of the debtor's prop- erty 192, 193 Receiver must give bond for costs when he commences an action 192, 193 XIV Table of Contents. OHAPTEE XIV. CONTEMPT PEOCEBDINGS. PAGE. When contempt proceedings are independent special proceed- ings 194 The Supreme Court has power to punish in every ease 194 County court has power — When 194 A judge has power to punish for contempt — ^When 195 Acts that are punishable. . .195, 198 Contempt statutes must be strictly considered 196 Punishment for neglect to at- tend before judge or referee. . 197 Affidavit of neglect or refusal to attend necessary 197 Certificate of referee has no force 197 Party must appear and raise his objection to order 198 Erroneous order while it stands must be obeyed 198, 199 Neglect or refusal to obey a, subpoena or to do any other act directed to be done by an order is a punishable offense 198, 199 Demand upon party — When necessary 198, 199 Disobedience of injunction order a contempt— When 200, 201 When punishment may be sum- mary 201 Warrant to commit without notice 202 Form and contents of order to commit without notice 203 Order to show cause — When necessary in every case 203 Proof to obtain order to show cause 203 PAGE. Proceedings to punish witness for refusal to answer ques- tions 204 Warrant of attachment and ap- plication for the same 204 Indorsement on warrant 205 Proceedings by sherifi' — Under warrant of attachment 205 Discharge of debtor on under- taking 206 When debtor must be brought up on writ of habeas corpus . . 206 Proceedings under writ of habeas corpus 206 Interrogations necessary when debtor is proceeded against by warrant of attachment. . . 207 Answers to interrogatories .... 207 Proceedings on interrogatories and answer 208 Contents of order to punish debtor 208 Adjudication of contempt must appear in order 209 The acts of misconduct must appear in the order 210 Acts to be done by debtor must appear in order 210 How order may be reviewed. . . . 211 Punishment for contempt. .211, 212 Fine, how fixed 212 Punishment on habeas corpus proceedings 213 Punishment under order to show cause 213 Amount of fine 214 Costs of contempt proceedings 215 Length of imprisonment 216 Jail liberties 217 Release of ofl'ender 218 Action on undertaking 219 Table of Contents. XV OHAPTEE XV. COSTS ON TERMINATION OF PEOCEEDINaS. PAGE. Termination of proceedings, 220, 221 Cost to creditor 221, 222 PAGE. Cost to debtor or third party . . 223 CHAPTEE XVI. REVIEW OP ORDER. PAGE. Appeal from discretionary orders 225 PAGE. Appeal from order made out of court 226 T^BLE OF C^SES. A. Page. Abels V. Westervelt, 15 Abb. Pr. (N. Y.) 230 49 Aekerly, G. C, v. Partz, 20 N. Y. Civ. Pro. Eep. 382 56 Ackerly & Gerard Co. v. Partz, 39 N. Y. State Rep. 17, 14 N. Y. Supp. 466; 22 N. Y. Civ. Pro.xRep. 382 56 Ackroyd v. Ackroyd, 3 Daly (N. Y. ) 38 204 Adams v. Haokett, 7 Cal. 201 99 Adams v. Welsh, 43 N. Y. 461 42, 13,2, 562 Adsit V. Butler, 87 N. Y. 588 , 77, 90 Ainore v. La Mothe 5 Abb. N. C. (N. Y.) 146 9 Albany City Bank v. Gaynor, 67 How. Pr. (N. Y.) 421 171 Albany City Bank v. Schermerhorn, 9 Paige (N. Y.), 372 204, 210 Albright v. Keapton, 4 N. Y. Cjv. fro. Rep. 16 172 Aldrich v. Davis, 46 N. Y. State Rep. 587 7, 194 Allen V. Fritch, 5 Colo. 226 170 Allen V. Starring, 26 How. Pr. (N. Y.) 59 120, 149, 222 Andrews v. Glenvolle Woolen Co., 11 Abb. Pr. N. S. (N. Y.) 83 185 Andrews v. Schofield, 27 App. Div. (N. Y.) 90 142 Anon, 32 Barb. 201 5 Anon, 18 Abb. N. C. (N. Y.) 216 • 216 Anon, Code Rep. N. S. (N. Y.) 113 56 Anonymous, il Abb. Pr. (N. Y. ) 108 224 Ansonia, B. & Co. v. Conner, 103 N. Y. 502; 11 N. Y. Civ. Pro. Rep. 371 ; 3 N. Y. State Rep. 682 75, 123 Anway v. Davis, 9 Hun (N. Y.) , 297 101, 102 Arctic F. Ins. Co. v. Hicks, 7 Abb. Pr. (N. Y.) 204 100, 198 Arnot V. Wright (55 Hun (N. Y.), 561 42, 132, 162 Arrex v. Blodgett, 19 Hun (N. Y.), 269 134 Ashley v. Turner, 10 N. Y. Week. Dig. 444 161 Atkinson v. Lewine, 11 Abb. Pr. N. S. (N. Y.) 304 172 Anltman, &e., Co. v. Lyme, 87 Hun (N. Y. ) , 205 '. . 2 Austins V. Byrnes, 12 N. Y. Civ. Pro. Rep. 332 5 Austin V. Figuriva, 7 Paige (N. Y. ) , 58 77 Avery v. Achert, 20 Misc. (N. Y.) 631 l'20 B. Baird v. Heifer, 12 App. Div. (N. Y. ) '23 112 Baker v. Brundage, 79 Hun (N. Y.), 383 58, 186 Bakei: v. State, 109 Ind. 57 99, 138 Baker v. Van Epps, 58 How. Pr. (N. Y.) 401 187 Baldwin v. Perry, 25 Hun (N. Y.), 12 94 xvii xviii Table of Cases Cited. PAGE. Ballqu V. Boland, 14 Hun (N. Y.), 355 218 Balz V. Bennighof, 5 Ind. App. 522 59, 135 Barber v. Briscoe, 9 Mont. 348 60, 136 Bareither v. Brisehe, 19 N. Y. Civ. Pro. 466 : 184, 186 Barker v. Benninger, 14 N. Y. 270 '^1 Barker v. Cook, 40 Barb. 254 1^2 Barles v. Comstock, 104 Mich. 129 57, 99, 162 Barnes v. Levy, 23 Misc. (N. Y.) 254 165 Barnes v. Morgan, 3 Hun (N. Y.), 703 76, 87, 90, 172 Barnet v. Biker, 13 Misc. (N. Y.) 338 168 Barret v. American Tel. & Teleg. Co., 56 Hun (N. Y.), 430 114 Barrington v. Watkins, 36 App. Div. (N. Y.) 31 100 Baskin v. Huntington, 41 N.' Y. State Rep. 635 76 Batchelder v. Nugent, 23 N. Y. Civ. Pro. Rep. 178 58 Bates V. International Co., 84 Fed. Rep. 518 98, 132, 165 Batterman v. Finn, 32 How. Pr. (N. Y.) 501 117 Baumler v. Ackerman, 63 Hun (N. Y.), 40 62 Beach v. Nixon, 9 N. Y. 36 128 Bean v. Tonnele, 1 N. Y. Civ. Pro. Rep. 33 58, 137 Beard v. Snock, 47 Hun (N. Y.), 158 .201 Beardsley v. Johnson, 121 N. Y. 224 114 Becker v. Becker, 47 Barb. 497 120 Becker v. Torrence, 31 N. Y. 631 118 Benjamin v. Myers, 3 N. Y. State Rep. 284 185 Bennett v. McGuire, 58 Barb. 625 218 Bernard v. Kobbe, 54 N. Y. 521 169 Bernheimer v. Kelleher, 31 Misc. (N. Y.) 464 196, 197 Betts V. Garr, 26 N. Y. 383 69 Bevans v. Pierce, 1 City Ct. (N. Y. ) 259 103 Billings V. Carver, 54 Barb. 40 198 Billington v. Billington, 16 N. Y. Civ. Pro. Rep. 58 224 Billson V. Lindenberg, 66 Minn. 66 103 Bingham v. Disbrow, 14 Abb. Pr. (N. Y.) 256 101, 150 Bipan v. Deer, 106 Ind. 135 164 Birnham v. Thompson, 5 N. Y. L. Bui. 30 169 Blabon v. Gilchrist, 67 Wis. 38 , 168. 224 Blake v. Balte, 10 Misc. (N. Y. ) , 333 209 Blanehard v. Reilly, 11 N. Y. Civ. Pro. Rep. 278 132, 194 Board of Water Co. v. Lansing, 45 N. Y. 19 114, 115 Boiee v. Turner. 4 How. Pr. (N. Y.) 195 224 Bolt V. Hauser, 19 N. Y. Civ. Pro. Rep. 214 68, 147 Bond V. Bond, 69 N. C. 97 198 Bostwick V. Henck, 40 N. Y. 385 184 Bowery Bank v. Widmer, 9 N. Y. Supp. 629 61, 80, 109, 116 Brett V. Brett, 33 Hun (N. Y.), 547 214 Brett %'. Browne, 1 Abb. Pr. N. S. (N. Y.) 155 99 Brinkley v. Brinkley, 47 N. Y. 40 210 Brooklyn Daily Union v. Hayward, 11 Abb. Pr. N. S. (N. Y.) 235 108 Table or Cases Cited. xix PAGE. Brown v. Anderson, 1 Barb. 227 ; 206 Brown v. Daly, 24 Hun (N. Y.), 520 37 Brown v. Gump, 59 How. Pr. (N. Y.) 507 59, 101 Brown v. Lesaerige, 8 Abb. N. C. (N. Y.) 148 152 Brown v. Walker, 28 N. Y. State Rep. 36 55 Browning v. Chadwiek, 29 Mise. (N. Y.) 617 201 Browning v. Hayes, 41 Hun (N. Y.), 382 7, 222 Browning v. Hayes, 1 N. Y. State Rep. 502. ... 94, 97, 132. 157 Browning v. Marvin, 5 Abb. N. C. (N. Y.) 285 151 Bruen v. Nichols, 30 App. Div. (N. Y.) 396 61, 99, 138 Brush V. Lee, 6 Abb. Pr. N. S. (N. Y.) 50 196, 203 Brush V. Lee. 1 Abb. Ct. App. Dec. (N. Y.) 89 30, 46 Bryan v. Grant, 87 Hun (N. Y.) , 11 3 Buchanan v. Hunt, 98 N". Y. 560 168, 171 Bucki V. Bucki, 26 Minn. 69 14 Bumpus V. Maynard, 38 Barb. 626 19, 121 Bunn V. Daly, 24 Hun (N. Y.), 526 57, 181 Bunn V. Fonda, 2 Code Rep. (N. Y.) 70 71 Burgett V. Fancher, 35 Hun (N. Y.)," 647 27 C. Campbell v. Foster, 16 How. Pr. (N. Y. ) 275 43 Canandaigua First N. Bank v. Martin, 15 N. Y. Civ. Pro. 328 ; 49 N. Y. 574 '. 2, 132 Canaran v. McAndrews, 20 Hun (N. Y. ) , 46 64 Cauda v. Gallner, 73 Hun (N. Y.), 493 201 Cantrell v. Conner, 51 How. Pr. (N. Y.) 45 23 Capitol City Bank v. Parent, 26 N. Y. Civ. Pro. Rep. 38; 34 N. Y. State Rep. 826; 12 N. Y. Supp. 235 72, 134 Carnes v. Piatt, 59 N. Y. 405 76 Carnigham v. Exporters & P. Oil Co., 11 N. Y. Supp. 172 114 Carpenter v. Herington, 25 Misc. (N. Y.) 370 120 Carpenter v. Stillwell, 11 N. Y. 61, 71 78, 80 Carpentier v. Minturn, 65 Barb. 298 35 Carroll v. Lufkins, 29 Hun (N. Y. ) , 17 149 Carter v. Clarlc, 7 Robt. (N. Y.) 490 61, 165 Carter v. Young, 42 N. Y. Supr. Ct. 169 38 Cassidy v. Meaeham, 3 Paige (N. Y. ) , 312 48 Catholic University v. Conrad, 27 Misc. (N. Y.) 326 181 Catlin V. Maas, 17 N. Y. Week. Dig. 14 35 Caton V. Southwell, 13 Barb. 335 123 Champlin v. Stoddard, 64 How. Pr. (N. Y.) 378 105 Childs V. Brace, 4 Paige (N. Y. ) , 309 77 Church V. Olendorf, 19 N. Y. State Rep. 700 131 Citizens Sav. Bank v. Bauer, 49 Hun (N. Y.), 238 126 Clan Randall v. Wyckoff, 41 N. Y. Supr. Ct. 527 168 Clapp V. Lathrop, 23 How. Pr. (N. Y.) 441 196 XX Taijlh of Cases Cited. PAGE. Clare v. Lockard, 122 N. Y. 263; 1!) N. Y. Civ. Pro. Rep. 278 38 Clark V. Beninger, 75 N. Y. 344. . 202, 214 Clark V. Bergenthal, 52 Wis. 103 5"' ^^^ Clark V. Gilbert, 10 Daly (N. Y.), 316 192 Coats V. Wilkes, 92 N. C. 376 23, 220 Collins V. Beebe, 54 Hun (N. Y.), 61 ■ 27 Collins V. DeEevere, 7 Hun (N. Y.), 61 11, 120 Coins V. Girard,,9 Abb. N. C. (N. Y.) 288 222 Columbian Institute v. Cregan, 3 N. Y. State Rep. 287; 11 N. Y. Civ. Pro. Rep. 87 128 Conger v. Lands, 19 How. Pr. (N. Y.) 8 187 Conner v. Todd, 48 N. J. L. 361 175 Connely v. Krelz, 78 N. Y. 620 ■ • • • 185 Const. (N. Y.), sec. 5, art. VI 102 Const. (N. Y.), sec. 18, art. VI 103 Const. (N. Y.), sec. — , art. 51 103 Conyngham v. DufFay, 125 N. Y. 200; 34 N. Y. State Rep. 736. . .58, 83, 132 Cooper V. Bigelow, 1 Cow. (N: Y.) 56 14 Courtois V. Harrison, 12 How. Pr. (N. Y.) 360 96, 132 Courron v. Dearborn, 7 Robt. (N. Y.) 107 7, 220 Cox V. Stafford, 14 How. Pr. (N. Y.) 519 22 Craft V. Curtis, 25 How. Pr. (N. Y.) 164 3 Craneh v. Mulhane, 63 How. Pr. (N. Y.) 79 35 Crawford v. Lockwood, 9 How. Pr. (N. Y.) 547 12, 90, 220 Grill V. Ronunayer, 56 How. Pr. (N. Y.) 276 9 Cripper v. Hudson, 13 N. Y. 161 77 Crossett v. Wiles, 13 N. Y. Civ. Pro. Rep. 327 14 Crost V. Greeley, 5 N. Y. L. Bui. 69 176 Crounse v. Whipple, 34 How. Pr. (N. Y.) 333 5 Crouse v. Wheeler, 33 How. Pr. (N. Y.) 337 4, 101 Crowley v. Royal Exeh. Shipping Co., 2 N. Y. Civ. Pro. Rep. 174 125 Curtis V. Greene, 28 Hun ( N. Y. ) , 204 127 Cushman v. Gephant, 97 Ind. '46 3, 178 Cushman v. Johnson, 4 Abb. Pr. (N. Y.) 257 6 D. Dains v. Prosser, 32 Barb. 290 20, 121 Dandislel v. Kronenberger, 39 Ind. 405 41, 43 Darling v. Littlejohn, 12 N. Y. Supp. 20.") 76 Davenport v. Kelly, 42 N. Y. 199 118 Davidson v. Horn, 47 Hun (N. Y. ) , 51 68 Davis V. Biirns, 23 Hun (N. Y. ) , 648 40 Davis V. Herrig, 65 How. Pr. (N. Y.) 290 31 Davis V. Jones, 8 N. Y. Civ. Pro. Rep. 43 35 Davis V. Jones, 65 How. Pr. (N. Y.) 290; 8 N. Y. Civ. Pro. Rep. 43. . 75 Davis V. Turner, 4 How. Pr. (N. Y.) 190 222 Day V. Brosman, 6 Abb. N. C. (N. Y.) 312 100, 138 Table of Cases Cited. xxi PAGE. Day V. Lee, 52 How. Pr. (N. Y. ) 96 137 Dean v. Hyatt, 5 N. Y. Week. Dig. 67 201 Decamp v. Dempsey, 10 N. Y. Civ. Pro. Rep. 213 181 Dent V. Watkins, 49 How. Pr. (N. Y.) 275 143 Deposit Nat. Bank v. Wickham, 40 How. Pr. (N. Y.) 422 196 De Vivier v. Smyth, 1 How. Pr. N. S. (N. Y.) 48 175 Dewey v. Finn, 18 N. Y. Week. Dig. 558 192 DeWitt V. Demiia, 30 How. Pr. (N. Y.) 131 138, 202, 206, 209 Deyo V. Barley, 43 N. Y. State Rep. 638 62 Dilling V. Poster, 21 S. C. 340 22:2 Diming v. Schieflfelin, 26 N. Y. State Rep. 96 63, 105, 178 Dioasy v. West, 1 N. Y. L. Bui. 23 - . 65 Diossy V. West, 8 Daly (N. Y.) , 298 35 Dix V. Briggs, 9 Paige (N. Y. ) , 575 77 Dodge V. Brown, 9 N. Y. Week. Dig. 494 70 Deran v. Ellis, 29 Ind. 72 163 Dorsey v. Cumminga, 48 Hun, (N. Y. ) , 76 227 Douglas V. Mainger, 40 Hun (N. Y. ) , 75 53 Dudley v. Maben, 5 N. Y. 9 128 Duffus V. Brown, 46 Hun (N. Y.), 320; 12 N. Y. State Rep. 454 210 Duffus V. Cole, 15 N. Y. Supp. 370 123, 201, 212 Duncan v. Guest, 2 N. Y. Civ. Pro. Rep. 274 ' 107 Dunham v. Reilly, 110 N. Y. 366; 18 N. Y. State Rep. 227 15, 18 Dunlery v. Tallmadge, 32 N. Y. 460 77 Durfee v. Bitsford, 24 Hun (N. Y. ) , 317 72 Dusenbury v. Dusenbmy, 48 N. Y. Supr. Gt. 205 62 E. Earle v. Skiles, 93 Ind. 178 17, 136 Earle v. Stokes, 5 S. C. 339 57, 59, 60 Edgartou v. Hanna, 11 Ohio St. 323, 99 Edmonston v. MeLoud, 16 N. Y. 543 220 Edw. on Receivers ( 98 ) 11 Egan v. Lynch, 3 N. Y. Civ. Pro. Rep. 236 .1 . 216 Eleventh Ward Bank v. Heather, 22 Misc. (N. Y.) 88 54, 135 Ellingwood v. Stevens, 4 Sandf. Ch. (N. YJ 366 107 Ellsworth V. Cuyler, 9 Paige (N. Y.), 418 172 Emerson v. Auburn & 0. L. R. Co., 13 Hun (N. Y.), 150 114 Emery v. Emery, 9 How. Pr. (N. Y. ) 130 14 Engle V. Bowneaw, 2 Sandf. (N. Y.) 679 (i Enoch V. Ernst, 21 How. Pr. (N. Y.) 96 106, 107 Ensign v. Nelson, 49 Hun '(N. Y.), 215 107 Erickson v. Quinn, 15 Abb. Pr. N. S. (N. Y.) 166 95 Erie Railway Co. v. Ramsey, 45 N. Y. 637 201, 214 Erwin v. Oregon S. N. Co., 22 Hun (N. Y.), 598 114 Estey. v. Puller Implement Co., 82 Iowa, 678 3, 224 Evans v. Hill, 18 Hun (N. Y.), 464 76 xxii ^ Table of Oases Cited. PAGE. Evans v. Burgess, 15 Abb. Pr. (N. Y.) 474 42 Ex parte Hollis, 59 Cal. 414 169 Ex parte Kellogg, 64 Cal. 343 194 Ex parte Latlner, 47 Cal. 131 4, 196 E. Falker v. New York, W. S. & B. R. Co., 100 N. Y. 86 104 Eall Brook Coal Co. v. Heekscher, 6 N. Y. State Rep. 676 209 Farmers, &c., Nat. Bank v. Burns, 109 N. C. 108 59 Farmers' L. & T. Co. v. Dickson, 17 How. Pr. (N. Y.) 177 115 Farmers v. Hoffman, 67 Iowa, 678 196 Farnham v. Heldreth, 32 Barb. 277 133 Farquharson v. Kimball, 18 How. Pr. (N. Y.) 37 52, 91 Farrel v. Higle, Hill & D. Supp. 87 19 Feely v. Glennen, 2 N. Y. L. Bui. 19 212 Fellerman's Case, 9 Abb. Pr. (N. Y. ) 155 220 Keller v. Randall, 40 Barb. 242 184 Fennen v. Malloz, 33 N. Y. Supr. Ct. 382 192 Fenner v. Sanborn, 37 Barb. 610 118, 196 Fenton v. Dempsey, 22 Abb. Pr. N. S. (N. Y.) 114; 15 N. Y. Civ. Pro. Rep. 393 214 Fenton v. Flagg, 24 How. Pr. (N. Y. ) 499 50, 135 Ferris v. Plummer, 46 Hun (N. Y. ) , 515 38 Fessenden v. Woods, 3 Bosw. (N. Y.) 550 192 Field V. Ashman, 22 How. Pr. (N. Y. ) 329 115 Finek v. Mannering, 46 Hun (N. Y. ) , 323 226 Fink V. Fraulde, 20 N. Y. Civ. Pro. Rep. 404; 39 N. Y. State Rep. 194 18, 121 Finn v. Mallaw, 33 N. Y. Supr. Ct. 386 3 Firmin v. Mallory, 33 N. Y. Supr. Ct. 382 29, 175 First Nat. Bank of Canandaigua v. Martin, 49 Hun (N. Y.), 575 47 First Nat. Bank v. Beardsley, 8 N. Y. Week. Dig. 7 123 First Nat. Bank v. Wilson, 13 Hun (N. Y.), 232 80 Fischer v. Roab, 81 N. Y. 235 203 Fisher v. Langbein, 103 N. Y. 64 210 Fiske V. Anderson, 33 Barb. 71 129 Fitchburgh Nat. Bank v. Bushwiek Chemical Works, 13 N. Y. Civ. Pro. Rep. 155 17 Fitzpatrick v. Moses, 34 App. Div. (N. Y.) 242 189 Flanagan v. Finn, 53 Barb. 587 69 Fleming v. Tourgee, 40 N. Y. State Rep. 705; 21 N. Y. Civ. Pro. Rep. 297; 16 N. Y. Supp. 705 86, 137, 197, 198 Fletcher v. Froneo, 21 N. Y. Civ. Pro. Rep. 35 112 Flint V. Wettb, 25 Minn. 264 90, 160, 175 Foley V. Rathbone, 12 Hun (N. Y. ) , 589 '.....' 222 Foley V. Rathbone, 4 N. Y. Week. Dig. 71 212 215 Folsom V. Clark, 48 Ind, 416 4^ 43 Table of Cases Cited. xxiii PAGE. Forbes v. Spaulding, 52 N. Y. Supr. Ct. 167 99 Forbes v. Spaulding, 8 N. Y. Civ. Pro. Eep. 135 135 Forbes v. Walker, 25 N. Y. 430 47, 99, 135 Forbes v. Willard, 54 Barb. 523 226 Foster v. Prince, 8 Abb. Pr. (N. Y.) 407 181 Foster v. Townsend, 68 N. Y. 203 191 Fowler v. Griffin, 83 N. Y. 297 51, 165 Franey v. Smith, 88 Htm (N. Y.), 218 181 Frankenthal v. Solomonson, 20 Wash. 460 16 Frazer v. Ward, 13 Daly (N. Y.), 431 166 Frecker v. Franco, 21 N. Y. Civ. Pro. Eep. 35 91 Frederick v. Decker, 18 How. Pr. (N. Y. ) 96 10 Fretcher v. Francko, 21 N. Y. Civ. Pro. Rep. 34 198 Frost V. Craig, 16 Daly (N. Y.), 109; 30 N. Y. State Rep. 848 220 Frost V. Mott, 34 N. Y. 255 22 Frost V. Willard, 9 Barb. 440 109 Fulton Bank v. Beach, 6 Wend. (N. Y.) 36 145 Furgett V. Fancher, 35 Hun (N. Y. ) , 647 , 26 G. Gallagher v. O'Neil, 3 N. Y. Supp. 126 169, 216 Gannon v. Berry, 34 Hun (N. Y.), 138 194 Gardner v. Smith, 29 Barb. 68 192 Garfield Fat. Bank v. Bostwiek, 39 N. Y. State Rep. 338 79 Geery v. Geery, 13 N, Y. 256 77 Genesee Bank v. Spencer, 15 Misc. (N. Y.) 16 127 Gere v. Gundlach, 57 Barb. 13 38 German- American Bank v. Champlin, 11 N. Y. Civ. Pro. Rep. 452 33 German- American Bank v. Dorthey, 39 App. Div. (N. Y.) 166 142 Gerrogani v. Wheelwright, 3 Abb. Pr. (N. Y.) 264 201 Gerton Carriage Co. v. Richardson, 6 Misc. (N. Y.) 466 169 Gibbs V. Prindle, 9 App. Div. (N. Y.) 29 197, 198, 226 Gifford V. Rising, 28 N. Y. State Rep. 310 172, 192 Gilbert v. Frothingham, 13 N. Y. Civ. Pro. Eep. 288 102, 149 Gilderslee v. Lester, 69 Hun (N. Y.), 345 98, 101, 180 Gillett V. Bates, 89 N. Y. 87 172 Gillett V. Hilton, 11 N. Y. Civ. Pro. Eep. 108 19, 123, 196, 201 Gilman v. Tucker, 13 N. Y. Supp. 804 72, 134 Glacious V. Fogel, 88 N. Y. 434 31 Glover v. Geagan, 10 App. Div. (N. Y.) 527 73 Godard v. Stiles, 90 N. Y. 199 184 Goet V. Mott, 15 N. Y. State Eep. 11 76 Goodall V. Demorest, 2 Hilt. (N. Y.) 534 96 Gorham v. Gorham, 40 App. Div. (N. Y.) 564 157 Gould v. Dodge, 30 Wis. 621 4 Gould V. Terrence, 19 How. Pr. (N. Y. ) 560 1 xxiv Table of Oases Cited. PAGE. Grace v. Curtiss, 3 Misc. (N. Y.) 558 166 Graflf V. Bennett, 25 How. Pr. (N. ¥.^470 190 Grand Lodge Knights of Pythias v. Manhattan Sav. Inst., 12 Misc. (N. Y.) 626; 25 N. Y. Civ. Pro. Eep. 44; 68 N. Y. State Rep. 132. . 166, 171 Gravesmuck v. Eichards, 2 Abb. N. 0. ( N. Y. ) 359 166, 169 Graves v. Seoville, 12 Misc. (N. Y.) 558 161 Gray v. Cook, 24 How. Pr. (N". Y.) 434 201 Gray v. Lieben, 8 N. Y. Civ. Pro. Rep. 48 42 Greenhall v. Unger, 20 Misc. (N. Y.) 412 32 Green v. Ballard, 8 How. Pr. (N. Y.) 313 117 Green v. Bookhart, 19 S. C. 481 52, 135, 138 Green, v. Hauser, 18 N. Y. Civ. Pro. Rep. 358 42 Griffin v. Dominguey, 2 Duer (N. Y.), 656 14, 120 Griffin v. Su&erland, 14 Barb. 456 24 Grinnell v. Sherman, 33 N. Y. State Rep. 27 ; 19 N. Y. Civ. Pro. Rep. 139; 11 N. Y. Supp. 682 86, 222 Griswold v. Tompkins, 7 Daly (N. Y.), 214 166 Gro«;rs' Bank v. Bayand, 21 Hun ( X. Y. ) , 203 i;5 Guillotel V. Mayor, 55 How. Pr. (N. Y.) 114 141 Gurgani v. Wheelwright, 3 Abb. Pr. N. S. (N. Y.) 264 72 H. Hackney v. Arrington, 99 N. C. 112 , 41, 192 Hagerman v. Tong Lee, 12 Nev. 334 162, 194 Hall V. Ayer, 19 How. Pr. (N. Y.) 91 71 Hall V. Kellogg, 12 N. Y. 332 95 Hall V. McMahon, 10 Abb. Pr. (N. Y.) 105 169 Hall V. Penny, 11 Wend. (N. Y.) 44 120 Hancock v. Sears, 93 N. Y. 79 19, 122, 222, 224 Hankinson v. Page, 12 N. Y. Civ. Pro. Rep. 279 143 Hansee v. Fiero, 25 Abb. N. C. (N. Y.) 46; 31 N. Y. State Rep. 360 76 Harper v. Behagg, 14 Ind. App. 424 57 Harris v. Howe, 2 Ind. App. 422 2 Hart V. Johnson, 43 Hun (N. Y.) 507 ■204, 214, 226 Hart V. Stearns, 4 N. Y. Week. Dig. 540 51 Hasewell v. Penman, 2 Abb. Pr. (N. Y. ) 230 3 Hasty V. Simpson, 77 N. C. 69 3. 146 Hatch V. Wayburn 8 How. Pr. (N. Y.) 165 60 Hawes v. Barr, 7 Robt. (N. Y. ) 452 8, 220 Hayes v. McClelland, 20 N. Y. Week. Dig. 393 109 Hazard v. Caswell, 8 N. Y. Week. Dig. 492 212 Heaxter v. Pennsylvania R. Co., 43 App. Div. (N. Y.) 113 170 Hecht v. Levy, 20 Hun (N. Y. ) , 53 109 Heckman v. Bach, 20 Abb. N. C. (N. Y. ) 401 99, 138 Heller v. De Leon, 26 N. Y. State Rep. 102 63. 10.5. 139 Henderson v. Stone, 40 How. Pr. (N. Y.) 333 112 Herder V. Collyer, 22 Abb. N. C. (N. Y.) 461 69 Table of Cases Cited. xxv PAGE. Heroy v. Gibson, 10 Bosw. (N. Y.) 593 103 Herriman v. Stalp, 15 Daly (N. Y.), 290; 17 N. Y. Civ. Pro. Rep. 333; 24 N. Y. State Rep. 40 69 High Rock Knitting Co. v. Bronner, 18 Misc. (N. Y.) 632 51, 135 Hilbroimer v. Levy, 64 Wis. 637 162 Hildreth v. Seebeck, 18 Misc. (N. Y.) 388 33 Hiller v. Burlington & Missouri R. Co., 70 N. Y. 223 114 Hill V. Haynes, 54 N. Y. 153 49 Hilton V. Patterson, 18 Abb. Pr. (N. Y. ) 245 198, 212 Hilton V. Patterson, 18 Abb. Pr. (N. Y.) 247 69, 216 Hinsdale v. Sinclair, 83 N. C. 341 59, 114, 136, 178 Hirsehfield v. Helischer, 81 Hun (N. Y. ) , 606 192 Hobart v. Frost, 5 Duer (N. Y.), 673 91 Holbrook v. Orgler, 40 N. Y. Supr. Ct. 37 164, 198 Holges v. Steil, 6 Misc. (N. Y.) 362 165 Holman v. Holman, 66 Barb. 216 31 Holstein v. Rice, 24 How. Pr. (N. Y.) 135 94, 191, 196, 224 Holton V. Burton, 78 Wis. 323 181 'Hough V. Kohlin, Code Rep. N. S. (N. Y.) 232 9, 10 Howe V. Welsh, 11 N. Y. Civ. Pro. Rep. 444 102, 123, 157, 164, 194, 196 Howell V. McDowell, 47 N. J. L. 360 99, 168 Hoxie V. Kennedy, 17 N. Y. State Rep. 863; 15 N. Y. Civ. Pro. Rep. 185 31 Hoyt V. Godfrey, 58 K Y. 669 107 Hoyt V. Mann, 7 N. Y. State Rep. 346 181 Hulsaver v. Wiles, 11 How. Pr. (N. Y.) 446 96, 157 Hunt v. Enoch, 6 Abb. Pr. (N. Y. ) 212 62 Huntley v. Huntley, 73 Hun (N. Y.) , 261 .-. 154 Hutkoflf V. Maje, 20 Misc. (N. Y.) 632 220 Hutson V. Weld, 38 Hun (N. Y.), 143 60, 80, 222 I. Importers & Traders' Nat. Bank v. Quaekinbush, 143 N. Y. 570 69 74, 79, 90 Tnman v. Colenjan, 37 Hun (N. Y.), 170 224 In re Clark, 20 Hun (N. Y.), 551 216 In re Conklin, 21 N. Y. Week. Dig. 529 98 In re Corwin, 6 Abb. N. C. (N. Y.) 437 154 In re Coyne, 13 N. Y. Supp. 797 Ill In re Jones, 6 N. Y. Civ. Pro. Rep. 250 210 In re Jung, 16 N. Y. Week. Dig. 563 32 In re Knapp, 144 Mo. 653 OH. 1:;S In re Lambert, 21 Hun (N. Y.), 154 106 In re Milburn, 59 Wis. 241 196, 218 In re Perry, 30 Wis. 238 194 In re Remington, 7 Wis. 643 50, 132 In re Rindskoff, 8 N. Y. Civ. Pro. Rep. 246 162, 242 xx\'i Tabjle oi' Cases Cited. PAGE. In re Wilds, 6 Abb. N. C. (N. Y.) 307 189 Ireland V. Smith, 3 How. Pr. (N. Y.) 244 123 Irwin V. Chambers, 40 N. Y. Supr. Ct. 432 64, 99 Isaacs' V. Calder, 42 App. Div. (N. Y.) 152 198, 203, 226 Iselin V. Henlien, 16 Abb. N. 0. (N. Y.) 73 48 Jackson v. Murray, 25 App. Div. (N. Y.) 140 196, 206 Jackson v. Page, 4 Wend. (N. Y.) 578 50 Jackson v. Smith, 25 How. Pr. (N. Y.) 476 142 Jaeobson v. Doty Plaster Mfg. Co., 32 Hun (N. Y. ) , 436 67 James v. Beesley, 4 Eedf. (N. Y.) 236 , 31 James v. James Cement Co., 8 N. Y. State Rep. 490 191 Jenkins v. Lancaster, 15 Misc. (N. Y. ) 444 50 Jenkins v. McGill, 4 How. Pr. (N. Y.) 205 47 Jenkins v. Smith, 57 How. Pr. (N. Y.) 172 106 Jennings v. Lancaster, 15 Misc. (N. Y. ) 446 60 Jesup V. Jones, 32 How. Pr. (N. Y.) 192 100, 107 Johnson v. Hamilton, 5 Abb. N. C. (N. Y.) 149 165 Johnson v. Martin, 1 Thomp. & Cook (N. Y. ) , 504 187 Johnson v. Tuttle, 17 Abb. Pr. (N. Y.) 315 5 Joline V. Connely, 24 N. Y. Week. Dig. Ill 201 Jones V. Horn, 19 App. Div. (N. Y.) 259 153 Jones V. Piatt, 60 How. Pr. (N. Y.) 73 107 Jones V. Porter, 6 How. Pr. (N. Y.) 286 6, 51, 135 Jones V. Sherman, 14 Abb. N. C. (N. Y.) 461 1, 136 Jordan v. Harrison, 13 N. Y. Civ. Pro. Rep. 445 107 Journey v. Brown, 26 N. J. L. Ill 181 Joyce V. Spafiford, 9 N. Y. Civ. Pro. Rep. 345 5, 41 Juryenson v. Hamilton, 5 Abb. N. C. (N. Y. ) 149 63 K. Kaufman v. Thrasher, 10 Hun (N. Y.), 438 105, 111, 168, 220 Kay V. Viseher, 9 Minn. 272 168, 169, 272 Kearney's Case, 13 Abb. Pr. (N. Y.) 459 196, 210 Keihen v. Shipperd, 16 N. Y. Civ. Pro. Rep. 183 24 Keily v. Dusenburg, 2 Abb. N. C. (N. Y.) 360 3 Kellogg v. Collier, 47 Wis. 649 103, 163 Kelly V. McCormick, 2 E. D. Smith (N. Y.), 503 .' 194 Kelly V. Sheehan, 76 N. Y. 325 103 Kelty V. Yerby, 31 How. Pr. (N. Y.) 95 100 Kendricks v. Wandell, 88 Hun (N. Y.), 418 156, 196, 197 Kennedy v. Oarrick, 18 Misc. ( N. Y. ) 41 174 Kennedy v. Norcott, 54 How. Pr. (N. Y.) 87 157, 218 Table of Casks Cited. xxvii PAGE. Kennedy v. Thorp, 2 Daly (N. Y.), 258; 3 Abb. Pr. N. S. (N. Y.) 131. . 57 Kennedy v. Weed, 10 Abb. Pr. (N. Y.) 62 53, 198 Kennesaw Mills Co. v. Walker, 19 S. C. 104.., 104, 168, 19li Ketohum v. Clark, 22 Barb. 319 153 Kimball v. Burrell, 14 N. Y. State Rep. 536 171 Kincaid v. Richardson, 9 Abb. N. C. (N. Y.) 315 , 69 King V. Barnes, 51 Hun (N. Y.), 550; 22 N. Y. State Rep. 54 208 King V. Flynn, 37 Hun (N. Y.), 329 215 Klepsch V. Donald, 18 Wash. 150 1, 132, 168 Kloh V. New York Fertilizer Co., 86 Hun (N. Y.), 266 142 Klugman's Case, 49 How. Pr. (N. Y.) 481 ; 216 Knapp V. Bronne, 6 N. Y. Week. Dig. 570 109 Knapp V. Knapp, 46 How. Pr. (N. Y.) 143 95 Knapp V. O'Neill, 46 Hun (N. Y.), 317 121 Kneetle v. Newcomb, 22 N. Y. 251 26 Knight V. Nash, 22 Minn. 455 168 Koehler v. Farmers &; Drovers' Bank, 14 N. Y. Civ. Pro. Rep. 71 208 Krauss v. Averill, 66 How. Pr. (N. Y.) 97; 4 N. Y. Civ. Pro. Rep. 410. . 35 Kress v. Morehead, 8 N. Y. State Rep. 858 1, 224 Krone v. Klotz, 3 App. Div. (N. Y.) 589; 25 N. Y. Civ. Pro. Rep. 332. . 169 Kuh V. Bannett, 25 N. Y. State Rep. 902 109 L. La Fontaine v. Southern Underwriters' Ass'n., 79 N. C. 514 2 Lament v. Cheshire, 45 N. Y. 30 72, 134 Lamote v. Pierce, 34 Wis. 483 197, 226 Lanigan v. New York, 70 N. Y. 454 220 Lansing v. Clapp, 3 How. Pr. (N. Y. ) 238 47 Lansing v. Easton, 7 Paige (N. Y.), 365 118, 212 Lapham v. Marshall, 51 Hun (N. Y. ) , 36 160 Lasaway v. Tucker, 61 Hun (N. Y.), 6 20 Lathrop v. Clapp, 90 N. Y. 328; 239 How. Pr. (N. Y.) 423. . .156, 204, 206 Lederer v. Ehrenfeld, 49 How. Pr. (N. Y.) 403 36 Lee V. Heirberge, 1 Code Rep. (N. Y.) 38 86, 137 Leonard v. Jacobson, 27 Misc. (N. Y.) 325 197, 212, 215 Leo V. Joseph, 56 Hun (N. Y.), 644; 9 N. Y. Supp. 612 33 Leroy v. Halsey, Code Rep. N. S. (N. Y.) 275 163 Leroy v. Halsey, 1 Duer (N. Y. ) , 59 160 Leslie v. Street, 10 Misc. (N. Y.) 667 54 ^ Lessere v. Stein, 25 Misc. (N. Y.) 423 197, 203 Levery v. Bull, 47 Hun (N. Y.), 550 21 Levy V. Beacham, 64 Hun (N. Y.), 62 61, 80, 109 Levy V. Kirby, 51 N. Y. Supr. Ct. 16 69, 93 Levy V. Solomon, 105 N. Y. 529 Ill Levy V. Swick Piano Co., 17 Misc. (N. Y.) 146 14, 224 Lewis V. Penfield, 39 How. Pr. (N. Y.) 490 102, 148 Lichtenberg v. Herdtfelder, 33 Hun (N. Y.), 57; 103 N. Y. 302 31, 134 xxviii Table of Cases Cited. PAGE. Lillienthal v. Fellerman, 11 How. Pr. (N. Y.) 528 40, 52 Lindsley v. Van Cortlandt, 67 Hun (N. Y.), 145 175 Lindsley v. Sherman, Code Eep. N. S. jN. Y.) 25 9 Lingsweiller v. Lingsweiller, 18 N. Y. Civ. Pro. Rep. 81 98 Lippert v. Olejniezak, 19 N. Y. Civ. Pro. Rep. 469 72 ~ Livingston v. Cleveland, 5 How. Pr. (N. Y.) 396 50 Loekwood v. Sells, 27 Misc. (N. Y.) 826 61 Logan V. McCall Pub. Co., 140 N. Y. 447 34 Logan V. O'Leary, 43 N. J. Eq. 320 -168 Loop V. Northrup, 59 Hun (N. Y.), 78 214 Losee v. Allen, 17 Misc. (N. Y.) 275 64, 137 Lowber v. Mayor, 5 Abb. Pr. (N. Y.) 268 f>l Lowery v. McAllister, 86 Ind. 547 60 Ludlow V. Knox, 7 Abb. Pr. N. S. (N. Y.) 411 196, 212, 216 Ludlow V. Mead, 21 N. Y. State Rep. 435 63, 93, 138 Luedeke v. Courson, 3 Misc. N. Y. 559 212, 215 Lydecker v. Smith, 44 Hun (N. Y.), 454 36 Lynch v. Johnston, 48 N. Y. 33 3, 56, 87, 103 Lyons v. Mercher, 119 Cal. 382 6 Lyon V. Blatchford, 25 Hun (N. Y.), 57 214 M. MacWinnie v. Cameron, 57 Hun (N. Y.) , 463 222 Mahon v. Mahon, 5 N". Y. Civ. Pro. Rep. 38 210 Mallory v. Gulick, 15 Abb. Pr. (N. Y.) 307 226 Mandeville v. Avery, 124 N. Y. 376; 26 N. Y. State Eep. 342 192 Matter of Adams, 7 Lans. (N. Y.) 131 86, 203 Matter of Albany First Nat. Bank, 52 App. Div. (N. Y.) 601; 65 N. Y. Supp. 439 10, 60, 95 Matter of Attorney-General v. Continental Life Ins. Co., 64 How. Pr. (N. Y.) 93 153 Matter of Barber, 20 N. Y. State Rep. 136 27 Matter of Benheimer, 47 Hun (N. Y.), 567 125 Matter of Blumenthal, 22 Misc. (N. Y. ) 704 166, 704 Matter of Boyle, 29 N. Y. State Rep. 946 31 Matter of Burrows, 33 Kan. 675 171, 196, 200 Matter of Cameriek, 34 App. Div. (N. Y. ) 31 198 Matter of Castle, 2 N. Y. State Rep. 362 224 Matter of Clover, 8 App. Div. (N". Y. ) 559 3, 103 Matter of Conklin, 36 Hun (N. Y. ) , 586 .' 89 Matter of Crane, 81 Huu (N. Y. ) , 96 171 Matter of Crooks, 23 Hun (N. Y. ) , 696 l.-i2 Matter of Davis, 81 N. C. 72 203 Matter of Dunn, 37 N. Y. State Rep, 902 224 Matter of Edlands, 35 Hun (N. Y. ) , 377 18 Matter of Elbridge, 82 N. Y. 161 209 Table of Cases Cited. xxix PAGE. Matter of Falkenburg, 19 Misc. (N. Y.) 418; 43 N. Y. Supp. 1138.. 160 197, 201, 209 Matter of Fleming, 40 N. Y. State Rep. 705; 21 N. Y. Civ. Pro. Rep. 397 157 Matter of Gagnor, 32 App. Div. (N. Y.) 22 58 Matter of Gough, 31 App. Div. (N. Y.) 307 313 Matter of Hacldey, 24 How. Pr. (N. Y.) 369 210 Matter of Hartshorn, 63 Hun (N. Y.), 536; 44 N. Y. State Rep. 16; 17 N. Y. Supp. 56 89 Matter of Hatfield, 17 App. Div. (N. Y.) 431 56 Matter of Hess, 48 Hun (N. Y.), 586 202 Matter* of Holmes, 42 N. Y. State Rep. 641; 59 Hun (N. Y.), 369 27 Matter of Hone, 153 N. Y. 522 188 Matter of Leffing\vell, 30 Hun (N. Y.) .529 '. 153 Matter of Leslie, 19 Misc. (N. Y.) 667 137 Matter of Lexington Ave., 30 App. Div. (N. Y.) 602 159 Matter of Livingston, 27 Hun (N. Y.), 607 11 Matter of Loekport & B. R. Co., 77 N. Y. 563 125 Matter of Morris, 13 N. Y. Civ. Pro. Rep. 56 214 Matter of Muller, 29 Hun (N. Y.) , 418 ; 51 N. Y. State Rep. 27 210 Matter of O'Connell, 49 Kan. 415 171 Matter of Patterson, 12 App. Div. (N. Y. ) 125 226 Matter of Pennsylvania Glass Co., 28 Misc. (N. Y.) 130 iqS Matter of Pester, 2 Code Rep. (N. Y.) 98 194 Matter of Potter, 65 Barb. 625 106 Matter of Preston, 2 Code Rep. (N. Y.) 98 168 Matter of Rowland, 21 App. Div. (N. Y.) 172 41, 132 Matter of St. Johns, 1 N. Y. Law Bui. 75 91 Matter of Sickle, 52 Hun (N. Y.), 531; 17 N. Y. Civ. Pro. Rep. 144. .1, 161 Matter of Silvernail, 45 Hun (N. Y.), 575 152 Matter of Sirns, 32 N. Y. State Rep. 1004 210 Matter of Smethirst, 4 How. Pr. (N. Y. ) 369 204 Matter of Stewart, 24 Hun (N. Y.), 246 210 Matter of Surrett, 25 Misc. (N. Y.) 89 31 Matter of Swenarton v. Shupe, 40 Hun (N. Y. ) , 41 197 Matter of Talmadge, 31 App. Div. (N. Y.) 466 153 Matter of Tribune Ass'n, 13 Misc. (N. Y.) 326 184 Matter of Tufts, 87 N. Y. 568 106 Matter of Van Ness, 17 App. Div. (N. Y.) 581 127, 198 Matter of Weld, 34 App. Div. (N. Y.) 471 175, 201 Mayor, &c., of New York v. Lyons, 24 How. Pr. (N. Y.) 280 143 Mayor v. New York & S. I. Ferry Co., 64 N. Y. 622 60 McArthur v. Hayscord, 4 Paige (N. Y.) , 495 171 MeCarkin v. Van Sickle, 10 Bosw. (N. Y. ) 694 218 McCauly v. Palmer, 40 How. Pr. (N. Y.) 38; 2 N. Y. State Rep. 600; 9 N. Y. Civ. Pro. Rep. 390 208 McComb V. Weaver, 11 Hun (N. Y.), 271 201 McDonnell v. Henderson, 74 Iowa, 619 196 XXX Table of Cases Cited. PAGE. MeSkinner v. Knowlton, 20 N. Y. Civ. Pro. Eep. 274 201 Menage v. Lustfleld, 30 Minn. 487 99 Merchants' Nat. Bank v. Brathwaite, 7 N. D. 358 3, 181 Merchant v. Sessions, 5 N. Y. Civ. Pro. Rep. 24 8 MerriUe v. AUin, 46 Hun (N. Y.), 623; 3, 64, 93, 101, 132, 139 Merritt v. Judd, 18 N. Y. Civ. Pro. Eep. 160 52 Methodist B. & Co. v. Hudson, 1 How. Pr. N. S. (N. Y.) 520 64, 139 Meyers v. Dreyspring, 3 Misc. (N. Y.) 560; 52 N. Y. Statei Kep. S20. . 218 Meyers v. Herbert, 22 N. Y. Civ. Pro. Rep. 216; 64 Hun (N. Y.), 200. . 220 Miller v. Adams, 7 Lans. (N. Y.) 131 86, 203 Miller v. Brinkerhoflf, 4 Den. (N. Y.) 119 130 Miller v. Brown, 56 N. Y. 383 115 Miller v. Hooper, 19 Hun (N. Y.), 394 19 Miller v. Weaver, 23 Misc. (N. Y.) 254 168, 132 Millikin v. Thompson, 8 N. Y. State Rep. 106 9 Mills V. Young, 23 Wend. (N. Y.) 314 46 Mitchell V. Bunch, 2 Paige (N. Y.), 600 107 Mitchell V. Hall, 3 N. Y. Law. Bui. 23 218 Moffat V. Hernan, 116 N. Y. 131; 26 N. Y. State Rep. 328; 17 N. Y. Civ. Pro. Rep. 357 210, 216 Moller v. Wells, 29 Hun (N. Y.), 587 169 Monoleithic Drain, &c., Col v. Dewsnap, 25 N. Y. Civ. Pro. Rep. 382 50, 135 Montrait v. Hutchins, 49 How. Pr. (N. Y. ) 105 .' 142 Moore v. Becker, 13 N. Y. State Rep. 567 109 Moore v. Calvert, 9 How. Pr. (N. Y.) 474 108 Moore v. Duffy, 74 Hun, (N. Y.) 78 174 Moore v. Taylor, 40 Hun (N. Y. ) 56 5 Moore v. Taylor, 2 How. Pr. N. S. (N. Y.) 343 9 Morgan v. Potter, 17 Hun (N. Y. ) 403 187 Morgan v. Van Kohnstann, 9 Daly (N. Y.) 355. .. 18, 122 Morrell v. Hey, 15 Abb. Pr. (N. Y.) 430 138 Moschill V. Boor, 56 Hun (N. Y.) 557 2, 127, 194, 215, 220, 226 Moyer v. Moyer, 7 App. Div. (N. Y.) 523; 40 N. Y. Supp. 258 59 Muldoon V. Pierz, 1 Abb. N. C. (N. Y.) 309 198 Mulford V. Gibbs, 9 App. Div. (N. Y.) 490 201 N. Nagle V. James, 7 Abb. Pr. (N. Y. ) 234 47 Nagle V. Taggart, 4 Abb, N. C. (N. Y. ) 144 30 Nanz V. Oakly, 39 N. Y. State Rep. 327; 21 N. Y. Civ. Pro. Rep. 71: 15 N. Y. Supp. 1 71, 134 Nathan v. Saturlee, 18 Abb. N. C. (N. Y.) 310 169 National Bank of Port Jervis v. Hansee, 7 N. Y. Civ. Pro-. Rep. 350 . . 69 National Press Intelligence Co. v. Brooks, 18 Misc. (N. Y.) 373 186 National State Bank v. Hibbard, 45 How. Pr. (N. Y.) 280 152 Neal V. Osborne, 15 How. Pr. (N. Y.) 81 117 Table of Cases Cited. xxsi PAGE. Netzell V. Mulford, 59 How. Pr. (N. Y.) 452 61, 104, 137 Newell V. Cutler, 19 Hun (N. Y. ) 76 , 91, 138, 226 Newville First Nat. Bank v. Yates, 21 Misc. (N. Y.) 303 2, 224, 226 New York & H. R. E. Co. v. Shepherd, 5 N. Y. State Rep. 480; 12 N. Y. Civ. Pro. Rep. 126 Ill Nicholas v. Hammerstein, 1 N. Y. Law Rec. 237 50, 135 Nichols V. Kelsey, 20 Misc. (N. Y.) 14; 13 N. Y. Civ. Pro. Rep. 154.. 69 Nieholl V. Powers, 105 N. Y. 1 190 Nims V. Sabine, 44 How. Pr. (N. Y.) 252 76 Nordlinger v. De Mier, 18 N. Y. Civ. Pro. Rep. 47; 7 N. Y. Supp. 463 35 Northrup v. Smith, 31 N. Y. State Rep. 182; 58 N. Y. Supr. Ct. 123. . _ 94 0. Oakley v. Becker, 2 Cow. (N. Y. ) 454 49 O'Brien's Petition, 24 Wis. 547 164, 198, 203 O'Brien v. Long, 49 Hun (N. Y.) 80 149 Ocean Nat. Bank v. Olcott, 46 N. Y. 12, 19 48 O'Conner v. Mechanics' Bank, 54 Hun (N. Y.) 274 181 Ogdensburg & L. C. R. R. Co. v. Vermont, etc., R. Co., 63 N. Y. 176 . . 35 Olcott V. McLean, 73 N. Y. 223 35, 144 Orms V. Baker, 17 N. Y. Week. Dig. 105 181 Orr's Case. 2 Abb. Pr. (N. Y.) 457 9, 137, 218 Osborn v. Reardon, 79 Iowa, 175 166 Ottman v. Daly, 17 N. Y. Civ. Pro. Rep. 62 38 Owen V. Dupignoe, 9 Abb. Pr. (N. Y.) 190 73 P. Pacific Bank v. Robinson, 57 Cal. 520 , 3 Page V. Cole, 04 Barb. 409 3 Palen v. Bushnell, 68 Hun (N. Y.) 554 127, 224 Palmer v. Colville, 63 Hun (N. Y.) 538 183, 185 Palmer v. Coville, 45 N. Y. State Rep. 706 192 Pardee v. Tilton, 20 Hun (N. Y.) 76 11, 98, 148 Parker v. Hunt, 15 Abb. Pr. (N. Y.) 410 98 Parker v. Page, 38 Cal. 525 169 Parker v. Wakeman, 10 Paige (N. Y. ) 485 125 Paterson v. Goorly, 14 Misc. (N. Y.) 56 222 Peck V. Baldwin, 19 N. Y. Civ. Pro. Rep. 405 97 Peck V. Ormsby, 55 Hun (N. Y.) 265; 28 N. Y. State Rep. 518 27 Peel V. Elliott, 7 Abb. Pr. (N. Y.) 433 108 Pendergast v. Dempsey, 18 N. Y. Civ. Pro. Rep. 198 164 Penton v. Zebley, 19 How. Pr. (N. Y. ) 394 201 People V. Albany & Vermont R. Co., 12 Abb. Pr. (N. Y.) 171; 20 How. Pr. (N. Y.) 358 118 People V. Alexander, 3 Hun (N. Y.) 211 206 People V. Bergen, 53 N. Y. 404 210 xxxii Table of Cases Cited. 1>AGE. People V. Bowe, 21 Hun (N. Y.) 514 70, 183 People V. Campbell, 40 N. Y. 133 106 People V. Cartwright, 11 Hun (N. Y.) 362 206 People V. Compton, 1 Duer (N. Y.) 512 214 People V. Connor, 15 Abb. Pr. N. S. (N. Y.) 430 ■ • • • 210 People V. Cooper, 20 Hun (N. Y.) 486 214 People V. Cowan, 146 N. Y. 348 12 People V. Cowles, 1 Keyes (N. Y.) 38 216 People V. Davidson, 35 Hun (N. Y.) 471 210, 216 People V. Donoliue, 22 Hun (N. Y.) 470; 59 How. Pr. (N. Y.) 417.. 210 People V. Doyle, 58 Hun (N. Y.) 535; 36 N. Y. State Pep. 128 160 People V. Dwyer, 90 N. Y. 407 202, 208 People V. Faneher, 2 Hun (N. Y.) 226 210, 216 People V. Goldrick, 24 N. Y. Civ. Pro. Pep. 298 2 Pcjple V. Grant, 20 N. Y. State Rep. 48; 50 Hun (N. Y.) 243.. 204, 210 People V. Harlbert, Code Eep. N. S. (N. Y.) 75 170 People V. Jacobs, 5 Hun (N. Y.) 428 214 People V. Jones, 1 Abb. N. C. (N. Y.) 172 61, 86, 137, 198 People V. Kelly, 24 N. Y. 74 201 People V. Kenny, 4 Thomp. & Cook (N. Y. ) 572 197 People V. King, 9 How. Pr. (N. Y.) 99 198, 201 People V. Kingsland, 3 Abb. Ct. App. Dee. (N. Y.) 526 201, 215 People V. Levy, 25 N. Y. Civ. Pro. Eep. 390 , 6. 150 People V. Marston, 18 Abb. Pr. (N. Y. ) 257 198 People V. Mead, 29 How. Pr. {N. Y.) 360 3, 196 People V. Oliver, 66 Barb. 570 5, 100, 138 People v. Patten, 6 N. Y. State Rep. 753 154 People V. Randall, 73 N. Y. 416 118 People V. Recorder, 6 Hill (N. Y.) 429 139 People V. Rochester, &c., R. Co., 76 N. Y. 29 215 People V. Seaton, 25 Hun (N. Y. ) 306 70 People V. Sickles, 59 How. Pr, (N. Y.) 342 209 People V. Sturtevant, 9 N. Y. 263 . . 117, 128 People V. Warner, 51 Hun (N. Y.) 56 112, 138, 194, 198, 212 Perry v. Levy, 25 Misc. (N. Y. ) 390 6 Peters v. Kerr, 22 How. Pr. (N. Y.) 3 166. 201 Petition of New York, L. & M. R. Co., 99 N. Y. 12 125 Pettibone v. Drakeford, 37 Hun (N. Y.) 630 184 Phillips V. Wheeler, 67 N. Y. 104 127 Pierce v. Parish, 25 App. Div. (N. Y.) 22 60. 137 Pierson v. Freeman, 79 N. Y. 580 108 Pierson v. Fries, 3 App. Div. (N. Y.) 418 4, 112 Pitt v. Davidson, 37 N. Y. 235 204. 206 Place V. Riley, 98 N. Y. 1 ; 7 N. Y. Civ. Pro. Rep. 403 72, 134 Pool V. Safford, 14 Hun (N. Y.) 369 175 Pope V. Terre Haute C. & M. Co., 87 N. Y. 137; 60 How. Pr. (N. Y. ) 549 123 Potter V. Low, 16 How. Pr. (N. Y.) 549 17-2. 201 Table of Cases Cited. xxxiii PAGE. Potter V. Ogden, 136 N. Y. 384; 40 N. Y. State Kep. 835. . , 130 Potts V. Davidson, 1 How. Pr. N. S. (N. Y.) 216 61, 81 Pouder v. Tate, 111 Ind. 148 54, 135 Powell V. Waldron, 89 N. Y. 328 172, 187 Prince v. Anderson, 29 Hun (N. Y.) 644 70 Prince v. Brett, 21 App. Div. (N. Y.) 190 201 Prudens v. Tallman, 6 N. Y. Civ. Pro. Pep. 360 156 Pudney v. Griffith, 15 How. Pr. (N. Y. ) 441 41 Pulver V. Harris, 52 N. Y. 75 9 R. Eainsford v. Temple, 3 Misc. (N. Y.) 294 201 Railings v. Pittman, 49 N. Y. Supr. Ct. 308 63, 137 Band v. Rand, 78 N. C. 12 16, 135 Reardon v. Henry, 82 Iowa, 134 2, 169, 196, 201 Redman v. Goldsmith, 2 N. Y. Law. Bui. 19 100, 155 Reid V. Stegman, 99 N. Y. 646 70, 133 Re Janson's Estate, 1 Con. Surr. Rep. (N. Y.) 362; 9 N. Y. Supp. 451, 31 Renner v. Myers, 22 Abb. N. C. (N. Y. ) 438 160 Rensselaer & S. R. Co. v. Davies, 55 N. Y. 148 125 Reynolds v. Aetna Life Ins. Co., 160 N. Y. 636 156, 184 Reynolds v. Gilchrist, 9 Hun (N. Y.) 203 212, 216 Reynolds v. McElhone, 20 How. Pr. (N. Y.) 454 120 Rice v. Davies, 7 Laws (N. Y. ) 398 10 Rice V. Jones, 103 N. C. 226 99 Righton V. Pruden, 73 N. C. 61 ' 7 Rinelander v. Dunham, 2 N. Y. Civ. Pro. Rep. 32 204 Rink V. Marston, 1 N. Y. Week. Dig. 566 152 Ritter v. Grearson, 28 Misc. (N. Y.) 56 222 Ritterbrand v. Braggett, 42 N. Y. Supr. Ct. 560 3, 67 Robens v. Sweet, 48 Hun (N. Y.) 436 13, 226 Robertson v. Hay, 12 Misc. (N. Y.) 8 212, 220 Rocky Mountain Nat. Bank v. Bliss, 89 N. Y. 338 34 Rodgers v. Bonner, 45 N. Y. 379 76 Rodman v. Harvey, 102 N. C. 3 181 Rogers Wheel Co. v. Fielding, 61 How. Pr. (N. Y.) 437 ; . . . 95 Rohshand v. Waring, 1 Abb. N. C. (N. Y.) 311 63, 105 Romaine v. Chancery, 39 N. Y. State Rep. 480; 60 Hun (N. Y.) 477 18, 123 Romaine v. Chauncey, 129 N. Y. 566 ; 42 N. Y. State Rep. 267 26 Rome First Nat. Bank v. Wilson, 13 Hun (N. Y.) 232 60 Roome v. Swan, 15 N. Y. Civ. Pro. Rep. 344 172 Roosevelt v. Edson, 7 N. Y. Civ. Pro. Rep. 5 -208 Ross V. Clussman, Code Rep. N. S. (N. Y.) 91 9, 196 Ross V. Ross, 31 Misc. (N. Y.) 140 154 Rue V. Alter, 5 Den. (N. Y.) 119 120 Euland v. Caufield Pub. Co., 18 N. Y. Civ. Pro. Rep. 282 114 xxxiv Table or Cases Cited. PAGE. Eussell V. Dean, 30 Hun (N. Y.) 242 22 Eussell V. Somerville, 10 Abb. N. C. (N. Y.) 395 9 Rust V. Howsett, 46 N. Y. Supr. Ot. 22 153 Ryckman v. Ryckman, 32 Hun (N. Y.) 193 202 8. Sacket v. Newton, 10 How. Pr. (N. Y.) 560 54, 92, 132 St. Johna V. Waddell, 2 Sandf. Ch. (N. Y.) 494 76, 87 Salisbury v. Parsons, 36 Hun (N. Y.) 176 27 Salt V. Lawson, 4 Sandi. Ch. (N. Y.) 718 49 Sandford v. Carr, 7 Abb. Pr. (N. Y.) 462 160 Sandf ord v. Goodwin, 20 N. Y. Civ. Pro. Pep. 276 19, 99, 123, 212 Sandford v. Sandford, 40 Hun (N. Y.) 288 133 Sayer v. McDonald, 2 How. Pr. N. S. (N. Y.) 119 65 Sayles v. Best, 49 N. Y. State Pep. 460 187 Schenek v. Erwin, 38 N. Y. State Eep. 608; 60 Hun (N. Y.) 361; 15 N. Y. Supp. 55; 21 N. Y. Civ. Pro. Eep. 96 45, 92, 101 Schenek v. Irwin, 60 Hun (N. Y.) 363 42, 91, 226 Schermerhorn v. Owens, 29 Misc. (N. Y.) 674 65, 137 Schiller v. Maltbie, 11 N. Y. Civ. Pro. Eep. 304 35 Schmitzer v. Wilmer, 7 Misc. (N. Y. ) 497 9 Schmitz V. Langhaar, 8 N. Y. 503; 24 Hun (N. Y.) 163 31 Schrauth v. Dry Dock Sav. Bank, 86 N. Y. 390 171 Schwab V. Cohen, 13 N. Y. State Eep. 709 163 Schwringer v. Hickok, 53 N. Y. 280 33 Scott V. Durfee, 59 Barb. 390 11 Seamen v. Luce, 23 Barb. 240 r 29 Sear v. Burnham, 17 N. Y. 445 70 Seely v. Black, 35 How. Pr. (N. Y.) 359 215 Seely v. Garrison, 10 Abb. Pr. (N. Y. ) 462 99 Selon V. Forbes, 22 Hun (N. Y.) 477 142 Semmes v. Noet, 18 N. Y. Civ. Pro. Rep. 200 91, 165 Serven v. Lawerre, 3 Misc. (N. Y.) 115 168 Seyfert v. Edison, 47 N. J. L. 430 50, 224 Shaw V. Davis, 55 Barb. 389 120 Sheffield Farm Co. v. Burr, 11 Misc. (N. Y. ) 638 187 Shepherd v. Kent Circuit Judge, 109 Mich. 606 196 Sherman v. Strauss, 52 N. Y. 404 69 Sherwood v. Dolen, 14 Hun (N. Y.) 191 163 Shultz V. Andrews, 54 How. Pr. (N. Y.) 378 196, 197, 198 Simmons v. Simmons, 4 N. Y. Week. Dig. 130 214 Simms v. Frier, 2 N. Y. Law. Bui. 97 57 Simons v. Aldine Pub. Co., 12 N. Y. Civ. Pro. Eep. 290 214 Simpson v. Burch, 4 Hun (N. Y.) 315 38 Sinnott v. Hempstead First Nat. Bank, 34 App. Div. (N. Y. ) 161, 7o. 96 Smith V. Drury, 22 N. Y. Week. Dig. 3 212, 226 Smith V. Fogarty, 6 N. Y. Civ. Pro. Eep. 366 .' 39 Table of Cases Cited. xxxv PAGE. Smith V. Hill, 22 Barb. 656 120 Smith V. McDonald, 50 How. Pr. (N. Y.) 519 154 Smith V. McQuade, 54 Hun (N. Y.) 374 171 Smith V. Paul, 20 How. Pr. (N. Y. ) 97 33, 160 Smith V. Slade, 57 Barb. 637 29 Smith V. Tozer, 11 N. Y. Civ. Pro. Eep. 351; 3 N. Y. State Kep. 164 1, 5, 17S, 194, 196, 198 Smith V. Weeks, 60 Wis. 94 41, 99, 136, 178, 196, 210 Smith V. Woodruff, 6 Abb. Pr. (N. Y.) 65 191 South Bend Toy Mfg. Co. v. Pierre P. & M. Ins. Co., 4 S. D. 183 15 Spaford v. Hogan, 22 N. Y. Week. Dig. 519 198 Sparks v. Davis, 25 8. C. 384 7, 99, 175 Spencer v. Greene, 17 E. I. 727 16 Spencer v. Wait, 9 N. Y. Civ. Pro. Rep. 93 68 Sperling v. Levy, 10 Abb. Pr. (N. Y.) 428 41, 47, 99, 135 Spratt V. Huntington, 48 How. Pr. (N. Y.) 97 210 Squire v. Young, 1 Bosw. (N. Y.) 696 220 Stafford v. Ambs, 22 Alb. L. J. (N. Y.) 134 125 Staples V. Fairchilds, 3 N. Y. 41 130 State Bank of Syracuse v. Gill, 23 Hun (N. Y.) 410 183 State V. Burrows, 33 Kan. 10 163 Steinhardt v. Michalda, 15 N. Y. Civ. Pro. Rep. 323 49 Steinhart v. Farrell, 3 N. Y. State Rep. 292 160 Stevenson v. Stevenson, 34 Hun (N. Y.) 157 26 Stevens v. Dewey, 13 App. Div. (N. Y.) 312 201 Stevens v. Page, 4 Misc. (N. Y.) 518 42 Stewart's Estate, 8 N. Y. Civ. Pro. Rep. 357 3, 168 Stewart v. Biddlesome, 2 N. Y. 123 97 Stewart v. Poster, 1 Hilt. (N. Y.) 305 160 Stiefel V. ' Berlin, 28 App. Div. (N. Y. ) 105 1, 174 Strauss v. Yorkville Bank, 32 Misc. (N. Y.) 239 16 Strobridge v. Strobridge, 20 Hun (N. Y.) 288 218 Strohn v. Epstein, 6 N. Y. Civ. Pro. Rep. 36 181 Stubbs V. Eyley, 39 Hun (N. Y.) 626 202 Strybing v. Hicks, 2 N. Y. L. Bui. 6 43 Syracuse Sav. Bank v. Syracuse C. & N. Y. R. Co., 88 N. Y. 110 191 Teats V. Herrington Bank, 58 Kan. 721 175 Teft V. Epstein, 17 N. Y. Civ. Pro. Rep. 168 86 Teller v. Randall, 40 Barb. 244 169 Ten Broeck v. Sloe, 13 How. Pr. (N. Y.) 26 172 Terry v. Bange, 57 N. Y. Supr. Ct. 552 ,. . . 175 Terry v. Bange, 18 K Y. Civ. Pro. Rep. 288 183 The Mayor v. New York & S. I. Ferry Co., 64 N. Y. 622 201 Thomas v. Bogart, 33 Hun (N. Y.) 11 72, 134 Thomas v. Kircher, 15 Abb. Pr. N. S. (N. Y.) 342 187, 218 xxxvi Table of Cases Cited. PAGE. iThomaa v. Merchants Bank, 9 Paige (N. Y.) 219 77, 190 Thompson v. Best, 4 N. Y. Supp. 229; 21 N. Y. State Rep. 103 109 Thompson, &e., Mfg. Co. v. Greenthier, 5 S. D. 507 169 Thompson v. Thompson, 52 Hun (N". Y. ) 456 18, 123 Thompson v. Sargent, 15 Abb. Pr. (N. Y.) 452 13 Thorn v. Fellows, 5 N. Y. Week. Dig. 473 190 Tillotson V. Wolcott, 48 N. Y. 190 18, 123 Tinker v. Crooks, 22 Hun (N. Y.) 581 169, 215 Tinkey v. Langdon, 60 How. Pr. (N. Y.) 184 212 Tittlebaum v. Lasola, 1 N. Y. Law. Bui. 47 212 Todd V. Crooks, Code Eep. N. S. (N. Y.) 324 183 Tomlinson, &c., Mfg. Co. v. Shatto, 34 Fed. Rep. 381 51 Tompkins County Bank v. Trapp, 21 How. Pr. (N. Y.) 17 170, 196 Tompkins v. Floyd County Agr., &e., Ass'n, 19 Ind. 197 14 Towne v. Campbell, 35 Minn. 232 '■ 175, 196 Townsend v. Nebengahl, 20 Hun (N. Y. ) 84 109 Tremain v. Richardson, 68 N. Y. 617 194 Tribune Ass'n v. Sheeman, 12 N. Y. Civ. Pro. Rep. 20 112, 139 Turner v. Holden, 109 N. C. 184 2, 187 Tyler v. Whitney, 12 Abb. Pr. (N. Y.) 465 135 Tyler v. Willis, 33 Barb. 327 48 U. Underwood v. Sutcliflf, 10 Hun (N. Y.) 457 119, 192 Union Bank v. Mott, 19 Abb. Pr. (N. Y.) 106 108 Union Bank v. Sargent, 53 Barb. (N. Y.) 422 65, 135 Union Bank v. Union Bank, 6 Ohio St. 262 196 Utiea City Bank v. Buell, 17 How. Pr. (N. Y.) 498; 9 Abb. Pr. (N. Y.) 385 91, 115, 196 V. Valarineso v. Thompson, 7 N. Y. 576 129 Valentine v. Mandell, 19 N. Y. Civ. Pro. Rep. 155 218 Valentine v. Myers Sanitary Depot, 36 Hun (N. Y.) 201 35 Vale V. Brooklyn Crosstown R. Co., 12 N. Y. Civ. Pro. Eep. 102 126 Valiente v. Bryan, 3 N. Y. Civ. Pro. Rep. 358 222 Van Alstyne v. Cook, 25 N. Y. 489 118 Van Rensselaer v. Emery, 9 How. Pr. (N. Y. ) 135 192 Van Rensselaer v. Wright, 36 Hun (N. Y.), 443; 7 N. Y. ;i70 129 Van Valkenburg v. Doolittle, 4 Abb. N. C. (N. Y.) 72 215 Vegelahn v. Smith, 95 N. C. 256 52, 99 Vibert v. Frost, 3 Abb. Pr. (N. Y.) 119 : . . . 143, 187 Vilas V. Chase, 19 N. Y. Civ. Pro. Rep. 333 35 Vordermark v. Wilkinson, 147 Ind. 56 61 Vredenbergh v. Beaumont, 2 City Court (N. Y. ), 298 58 Vulte v. Whitehead, 2 Hilt. (N. Y.) 596 5 Table of Oases Cited. xxxvii PAGE. W. Wade V. De Liger, 40 N. Y. Supr. Ct. 541 .^. 69 Wainright v. Tiffing, 13 N. Y. Civ. Pro. Rep. 222 91, 165 Waldron v. Walker, 43 N. Y. State Rep. 605 169, 210 Walker v. Donovan, 6 Daly (N. Y.), 552 72, 99 Waltermiro v. Westover, 14 N. Y. 16 68 Walters v. Kenyon, 4 N. Y. State Rep. 378 218 Walter v. Pecan, 32 N. Y. State Rep. 841 64 Walter v. Pecare, 57 Hun (N. Y.), 587; 11 N. Y. Supp. 146 218 Ward V. Beebe, 15 Abb. Pr. (N. Y. ) 376 187 Ward V. Petrie, 157 N. Y. 301 166 Ward V. Roy, 69 N. Y. 96 '. 8 Watrons v. Kearney, 11 Hun (N. Y.), 584 .' 210 Watron v. Fitzsimmona, 5 Duer. (N. Y.) 629 201, 214 Weaver v. Bridges, 85 Hun (N. Y. ) , 505 99, 226 Webber v. Hobbie, 13 How. Pr. (N. Y.) 382 148 Webb V. Osborne, 15 Daly (N. Y.), 406 50, 175 Webb V. Overman, 6 Abb. Pr. (N. Y.) 92 50, 175 Webster v. Lawens, 3 How. Pr. ( N. Y. ) 320 57 Weeks v. Coe, 36 App. Div. (N. Y.) 339 143 Weiks V. Ashman, 63 Hun (N. Y.), 4] ' 69, 155 Weller v. Lawrence, 81 N. C. 65 99 Westfall V. Dunning, 50 N. J. L. 450 55 West Side Bank v. Prigsley, 47 N. Y. 373 218, 224 Weyman v. Childs, 41 N. Y. 406 50 Wialen v. Tennison, 1 N. Y. Law. Bui. 21 19 Wheeler v. Cropsey, 5 How. Pr. (N. Y.) 288 20, 121 Wheelock v. Lee, 74 N. Y. 495 35, 144 Wheer v. Gilsey, 35 How. Pr. (N. Y.) 139 118 Whitehead v. Hollen, 74 N. Y. 679 51 White V. Gates, 42 Ohio St. Ill 168, 196 Whitlock V. Case, 1 Abb. Pr. (N. Y.) 320 56 Whitney v. Welsh, 2 Abb. N. C. (N. Y.) 442 181 Whyte V. Denike, 53 App. Div. (N. Y.) 425 174 Wicker v. Dresser, 13 How. Pr. (N. Y. ) 330 194 Wilcox V. Hanley, 31 N. Y. 698 20, 29 Wilcox V. Harris, 59 How. Pr. (N. Y.) 262 196 Williams v. Carroll, 2 Hilt. (N. Y.) 439 162 Williams v. Freeman, 12 N. Y. Civ. Pro. Rep. 334 30 ' Williams v. Norton, 54 How. Pr. (N. Y. ) 509 107 Williams v. Thorn, 70 N. Y. 270 1, 22 Wilson Bros. Woodenware, &c., Co. v. Daggett, 9 N. Y. Civ. Pro. Rep. 408 160 Wilson V. Andrews, 9 Hun (N. Y.), 39 93, 157 Wilson V. Craig, 12 N. Y. Week. Dig. 73 203 Wilson V. Smith, Code Rep. (N. Y. ) 18 76 Wilson V. Wright, 9 How. Pr. (N. Y.) 459 47 xxxvm Table of Cases Cited. PAGE. Winfield v. Bacon, 24 Barb. 154 191 Wing V. De La Rionda, 34 N. Y. State Rep. 267 76 Wing V. Disse, 15 Hun (N. Y.), 190 37 Winaebrenner v. Edgerton, 8 Abb. Pr. (N. Y.) 419 143 Winslow V. Staten Island, &c., R. Co., 51 Hun (N. Y.), 298 114 Winters v. McCarthy, 2 Abb. N. C. (N. Y.) 357 166 Wolfe V. Buttner, 6 Misc. (N. Y.) 120 210 Wolfiord V. Oakley, 43 How. Pr. (N. Y.) 118 146 Wood V. Moorhouse, 1 Lans. (N. Y.) 405; 45 N. Y. 368 31 Woodward v. Hall, 75 Wis. 406 3, 132, 178 Woodward v. Murray, 18 John. (N. Y.) 400 19, 120 Woolworth V. Taylor, 62 How. Pr. (N. Y.) 90 72 World Co. V. Brooks, 7 Abb. Pr. N. S. (N. Y.) 212 33 Wright V. Nostrand, 94 N. Y. 31 10, 192, 218 Y. Yates County Nat. Bank v. Carpenter, 119 N. Y. 550 27, 121 Youngs V. Klunder, 27 N. Y. State Rep. 32 183 Youngs V. Weeks, 7 Daly (N. Y.), 115 107 Z. Zeh V. Glarkin, 54 N. Y. Supr. Ct. 351 156 Zelie V. Vroman, 22 Misc. (N. Y. ) 486 42 Ziegler v. Corwin, 12 Misc. (N. Y. ) 60 112 Code ov Civil Peoceduee Cited. 10 11 14 14, sub. 3 15 16 PAGE. , . 202 . . 202 . . 202 . . 194 , . 202 . . 203 . . 203 26 97, 179 52 98, 179 90 102 110 112 113 114 115 116 180 47 112 112 112 112 112 112 117 157 172 173 279 334 347 349 354 376 377 382 388 413 415 421 424 68 PAGE. . 112 . 217 . 46 , . 47 17, 98 , . 115 .. 115 , . 115 . . 56 73 73 68 142 141 142 35 144 Table of Cases Cited. xxxix PAGE. 426 36, 78 431 114 432 114 433 114, 116 434 115 435 38, 53 436 38, 39 437 39 445 39 448 56 472 56 548 106 550 107 553 107 554 107 555 107, 108 556 56 558 106 563 106 565 106 606 56 655 10 715 187 722 145 723 115 724 145 725 145 726 145 727 145 728 145 755 158 766 95 767 125 768 125 769 127 772 104, 125 779 12, 16, 78, 80, 223 780 : 126 782 128 825 160 845 159 846 159 847 159 848 159 849 159 850 159 8.54 154 855 156 856 156 PAGE. § 857 .' 156 § 858 156 § 862 56 § 866 156 § 867 157 § 868 157 § 869 157 § 872 56 § 889 56 § 921 115 § 922 115 § 923 115 § 978 126 § 1016 151 § 1024 149 § 1229 153 § 1251 36, 76, 80 § 1252 76 § 1347 225 § 1348 225 § 1365 70 § 1366 70 § 1367 46, 71, 133 § 1368 71 § 1369 71 § 1370 72 § 1371 134 § 1373 134 § 1375 69, 81 § 1376 11, 72, 80, 82 § 1377 69, 80, 81 § 1380 32 § 1383 32 § 1390 19, 23, 28, 120 § 1391 20, 23, 120 § 1392 120 § 1393 121 § 1394 23 § 1395 27, 122 § 1396 27, 122 § 1397 21, 22, 122 § 1398 28, 122 § 1399 28, 122 § 1400^ 28, 122 § 1401* 28, 122 § 1402 28, 122 § 1404 28 § 1812 13, 34 § 1822 31 xl Table of Cases Cited. PAGE. i 1823 31 i 1825 31 i 1871 1, 3, 90 i 1872 1, 3, 90 i 1878 90 i 1879 3, 90, 122 1913 74 i 1932' 5, 40, 133 1933 133 i 1934 40, 133 i 1935 40 : 1937 40 1938 40 1939 40 t 2267 201 i 2268 202, 205 2269 204 2273 203 2274 205 2275 205 2276 206 2277 206 2278 206 2279 206 2280 207 2281 197, 209 2282 213 2283 214 2284 214 2285 216 2286 218 2288 218 2289 219 2290 219 2432 .. 3, 8, 12, 15, 52, 80, 87 2435 1, 5, 12, 45, 53, 72, 99, 124 2434 6, 7, 56, 96, HI, 124 2435 . . 1, 5, 12, 45, 53, 72, 89, 124 2436 5, 45, 52, 80, 124, 147 2437 53, 63, 105, 124, 147 ii438 82, 105, 124, 147 2440 in, 124, 147 2441 1, 5, 151, 16, 45, 53, 60, 80 124, 176 2442 98, 101, 144, 145, 147 2443 102, 124 147 2444 114, 124 2445 144 2440 166 PAGE. § 2447 95 § 2448 173 § 2449 95, 174 § 2450 102, 117, 177 § 2451 102, 117, 186 § 2452 113, 115, 139 § 2453 110, 116 § 2454 119, 140, 117 § 2455 222 § 2456 223 § 2457 119, 140, 178, 195 § 2458 ... 5, 30, 34, 37, 42, 49, 80 § 2459 101, 147 § 2460 160 1 2462 40, 97, 98 § 2463 13, 18, 26, 91, 120 § 2464 119, 160, 173 § 2465 183 § 2466 183, 185 § 2467 184, 188 § 2468 189 § 2469 180, 189, 190 § 2470 184 § 2471 3, 188 § 2880 40 § 2881 40 § 3017 36, 46, 68, 71, 132, 233 § 3018 133 § 3020 133 § 3022 133 § 3043 36, 38, 46, 62, 71, 133 § 3343 37, 169 § 3372 88 § 3373 88 Laws 1840 (N. Y.) eh. 80 26 Laws 1842 (N. Y.) eh. 130. .. . 106 Laws 1858 (N. Y.) ch. 187 126 Laws 1866 (N. Y.) ch. 656.. 9, 26 L&,W9 1870 (N. Y.) ch. 80 106 Laws 1870 (N. Y.) ch. 277.. 9, 26 Laws 1882 (^t. y.) eh. 4}0 106 Rule 2 (N. Y.) S. C 103 Rule 75 (N. Y.) S. C 192 Rule 77 (N. Y.) S. C 191 Laws 1877 (N. Y.) ch. 417, sees. 1, 3 : 11 Laws 1881 (N. Y.l ch. 640. .. . 54 Laws 1881 (N. Y.) ch. 440 89 SUPPLEMENTARY PjROCEEDINGS. CHAPTEE I. 1. Preliminary Obseravtions. 2. Jurisdiction. 3. Order. 4. By whom Proceedings may be prosecuted. § .T. Personal Representatives. § (i. Judgment-debtors subject to granted by order. § 7. Persons Indebted to or having Property of Judgment-debtor. § 1. Peeliminart Observations. Proceedings siipplementary to execution in JSTew York and some other jurisdictions furnish for most purposes a simple substitute for a creditor's bill, or the statutory creditor's action in discovering and applying the property of a judgment-debtor, which cannot be reached by execution for the payment of his debts. 1 In New York the practice jirescribed by statute for a cred- itor's action is substantially the same as the practice prescribed for supplementary proceedings.^ The only real difference between them is that one is an action and the other is a "special proceeding."* ^Kress vs. Morehead, 8 N. Y. State Eep. 858 ; Gould vs. Tor- rance, 19 How. Pr. (N. Y.) 560; Coates vs. Wilks, 92 N. C. 3Y6; Klejjsch vs. Donald, ]8 Wash. 150; Emery vs. Emery, 9 How. Pr. (K Y".) 133. ^Code Civ. Pro. (N. Y.) sees. 1871, 1872, 1879, 2435, 2438, 2441. ^Code Civ. Pro. (N. Y.) sec. 2433 ; Fiske vs. Twigg, 5 N. Y. Civ. Pro. Rep. 41, 50 IS^. Y^. Supr. Ct. 69 ; Jones vs. Sherman, 14 Abb. 'N. C. (N. Y.) 461 ; Smith vs. Tozer, 11 N. Y. Civ. Pro. Rep. 351, 3 N.' Y. State Rep. 164; Stiefel vs. Berlin, 28 App. Div. (ISr. Y.) 105; Green vs. Hanser, 18 IST. Y. Civ. Pro. Rep. 1 2 SuPPLEMENTAEY PROCEEDINGS. An action in all jurisdictions is a proceeding instituted by the service of either a summons or a subpoena in some of the modes prescribed by law. In New York, while an action is usually commenced by the service of a summons, yet judgment upon some undertakings or recognizances are taken without the service of any summons or other process upon the debtor. Such a judgment is in the nature of a judgment taken by confession.* While in ISTew York a judgment upon which proceedings sup- plementary to execution may be founded must be rendered upon the debtor's appearance, or by a personal service of summons upon him, yet all that is required is that the debtor by his con- sent submits himself to the jurisdiction of the court in some of the modes prescribed by law. In some States supplementary proceedings are regarded as they were in 'New York prior to the Code of Civil Procedure as proceedings in an action.^ The object of making proceedings supplementary to execution special proceedings in Hew York was, it is said, for the purpose of a more complete and perfect system of compelling a dis- covery by the judgment debtor of his property for the payment of the judgment, and although made a special proceeding by the Code,® they are still said to be regarded as special proceedings in the action auxiliary to the purpose of enforcing the collection of the judgment.'^ 358 ; Moschill vs. Boor, 66 Hun (N. Y.), 557 ; Bolt vs. Hauser, 19 ISr. Y. Civ. Pro. Rep. 1 ; :^f e^wille First Nat. Bank vs. Yates, 21 Misc. (K Y.) 303 ; People vs. Goldrick, 24 N. Y. Civ. Pro. Rep. 293 ; People vs. Levy, 25 id. 390. ^People vs. Cowan, 146 N. Y. 348. ^Weyman vs. Childs, 41 IST. Y. 159; Turner vs. Holden, 109 N. C. 184 ; Smith vs. Tozer, UN". Y. Civ. Pro. Rep. 351 ; Rear- don vs. Henry, 82 Iowa, 134; Barker vs. Dayton, 28 Wis. 363 ; Harris vs. Howe, 2 Ind. App. 422 ; Dauntless Mfg. Co. vs. Davis, 24 S. C. 542 ; Walker vs. Donavan, 6 Daly (N.^ Y.), 557. «Code Civ. Pro. (N. Y.) sec. 2433. ■^Canandaigua First Nat. Bank vs. Martin, 15 N. Y. Civ. Pro. Rep. 328, 49 Hnn (¥. Y.), 574; Jones vs. Sherman, 18 JuEisDicTioN or Judge. 3 Supplementary proceedings are in all jurisdictions analogous to, and often given as a substitute for, a creditor's action.® And, as we have seen, in New York the practice in the statu- tory creditor's action is to a large extent the same as in proceed- ings supplementary to execution.^ The judgment creditor may in almost every jurisdiction pro- ceed by a creditor's action and at the same time under proceed- ings supplementary to execution.-"* The proceedings, as well as the action, is to obtain the dis- covery of the debtor's property and subject it to execution or to the control of a receiver, or have it by order applied to the satisfaction of the judgment. Both proceedings are intended Abb. N. 0. (N. Y.) 461; Newville First Nat. Bank vs. Yates, 21 Misc. (N. Y.) 374. ®La Fontain vs. Southern Underwriters Assoc, 79 N. C. 514;^ Bates vs. International Co., 84 Fed. Eep. 518 ; Woodward vs. Hall, 75 Wis. 406 ; Billing vs. Foster, 21 S. C. 339 ; Hasty vs. Simpson, 77 N. C. 69 ; Pacific Bank vs. Robinson, 57 Cal. 520 ; Ludes vs. Hood, 29 Kan. 49 ; Cushman vs. Gephart, 97 Ind. 46 ; Billson vs. Linderberg, 66 Minu. 66 ; Merchants' Nat. Bank vs. Braithwaite, 7 N. D. 358 ; Klepseh vs. Donald, 18 Wash. 150. »Code Civ. Pro. (N. Y.) sees. 1871, 1872, 1879, and 2432- 2471; Matter of Gough, 31 App. Div. (N. Y.) 307; Lynch vs. Johnson, 48 N. Y. 33 ; Matter of Penn. Glass Co., 28 Misc. (N. Y.) 130; Ritterbrand vs. Braggett, 42 N. Y. Supr. Ct. 560; Bryan vs. Grant, 87 Hun (N. Y.), 71; Finn vs. Mallow, 33 N. Y. Supr. Ct. 386; Spencer vs. Cuyler, 9 Abb. Pr. (N. Y.) 382 ; Levy vs. Kirby, 51 N. Y. Supr. Ct. 69 ; Joyce vs. Spaf- ford, 9 N. Y. Civ. Pro. Eep. 342 ; Matter of Clover, 8 App. Div. (N. Y.) 559 ; Keiley vs. Dusenburg, 2 Abb. N. C. (N. Y.) 360 ; Sehloss vs. Wallach, 16 id. 319 ; Page vs. Cole, 64 Barb. 409 ; Duffy vs. Dowson, 22 N. Y. Civ. Pro. Eep. S35 ; Webb vs. Overman, 6 Abb. Pr. (N. Y.) 92; People vs. Mead, 29 How. Pr. (N. Y.) 360. '"Matter of Sickle, 52 Hun (N. Y.) 527; Barnes vs. Levy, 23 N. Y. Civ. Pro. Eep. 254 ; Estey v.s Fuller Implement Co., 82 Iowa, 678; Hasewell vs. Penman, 2 Abb. Pr. (N. Y.) 230; Stewart's Estate, 8 N. Y. Civ. Pro. Eep. 357. 4 SUPPI.EMENTABY PROCEEDINGS. to reach the dishonest debtor who fails or refuses to turn over to his creditor his property not exempt from execution. ■'■^ § 2. Jurisdiction. In almost every jurisdiction supplementary proceedings are the creature of the statute; and the statute in every case must be strictly followed ; and while the statutes regulating the prac- tice in supplementary proceedings in almost every State has been copied from the ISTew York statutes, there are in each State some minor details which are different. ^^ In almost every jurisdiction a judge has almost the same power over these proceedings that the court would have if the authority to make the order and conduct the proceedings had been conferred upon it. He may dismiss the proceedings for want of jurisdiction, or for insufficiency or irregularity in the affidavit or evidence upon which the order was made. He may adjourn the matter from time to time, suspend the examination indefinitely; examine witnesses, admit or reject evidence; and punish parties and witnesses for disobedience of orders. In short, after the proceedings have been duly instituted, the juris- diction of the judge remains until the proceedings are com- pleted and all orders made by him in respect to the property of the judgment debtor or otherwise, are fully executed.-'^ The New York Code of Civil Procedure provides three dis- tinct remedies and modes of proceeding to reach the property of a judgment debtor in supplementary proceedings. The first "Clapp vs. Lathrop, 23 How. Pr. (K Y.) 425; Becker vs. Torrance, 31 K Y. 631 ; Folsom vs. Clark, 48 Ind. 414; Bryan vs. Grant, 87 Hun (IST. Y.) Yl ; Lyons v. Mercher, 119 Cal. 382; Reardon vs. Henry, 82 Iowa, 134; Rand vs. Rand, 78 N. C. 21. i^Gould vs. Dodge, 30 Wis. 621 ; Blake vs. Respass, 77 N. C. 196; Pierson vs. Fries, 3 App. Div. (K Y.) 418; Matter of Morris, 39 Kans. 29 ; Ex parte Latimer, 47 Cal. 131. i^Oowdrey vs. Carpenter, 17 Abb. Pr. (IST. Y.) 107; Grouse vs. Wheeler, 33 How. Pr. (JST. Y.) 337 ; Genesee Bank vs. Spen- cer, 15 id. 16. Jurisdiction of Judge. 5 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, or against a person having property of the judgment debtor, after the issuing of the execu- tion and before or after its return. *'' A person who is served vsfith an order for examination may show that he was never made a party to the action in which the judgment was taken. ^^ A judgment which was when rendered less than twenty-five dollars, and (probably) an order for less than twenty-five dol- lars costs, do not, in 'New York, come within the, provisions of the statutes in relation to supplementary proceedings.^® But if a judgment of a court of record, or an order granting costs was originally for twenty-five dollars, the fact that part has been paid does not take away the jurisdiction of the judge.-^'' A judgment for costs in favor of either party is a judgment within the statute.-'* Where the proof presented to the judge for the order is insuffi- cient, the judge acquires no jurisdiction over the subject-matter, and it is said that in such a case the voluntary appearance of the debtor or third party, as the case may be, does not give the judge jurisdiction.^' While an execution must, in ISTew York, "Code Civ. Pro. (N. Y.) sees. 2435, 2436, 2441; Smith vs. Tozer, 42 Hun (IST. Y:), 22, 24, 3 K Y. State Rep. 363. i^McGill vs. Weill, 19 IST. Y. Civ. Pro. Rep. 43, 10 IST. Y. Supp. 246. "Code Civ. Pro. (JST. Y.) sec. 2458 ; Vulte vs. Whitehead, 2 Hilt. (K Y.) 596; Mason vs. Hackett, 35 Hun (IST. Y.), 238; Butts vs. Dickinson, 20 How. Pr. (E". Y.) 230, 12 Abb. Pr. (W. Y.) 60; Anon., 32 Barb. 201; People vs. Oliver, 66 Barb. 5Y0; Crounse vs. Whipple, 34 How. Pr. CN. Y.) 333. "Johnson vs. Tuttle, 17 Abb. Pr. (K Y.) 315; Austin vs. Byrnes, 12 IST. Y. Civ. Pro. Rep. 332. ^^Davis vs. Jones, 8 N. Y. Civ. Pro. Rep. 43. ^*De Conveau vs. People, 7 Robt. (N". Y.) 498; Sackett vs. 6 ■ SuPPLEMENTAllY PeOOEEDINGS. in one special proceeding be actually returned, before the order for exajnination can be issued, yet the court will not take notice of a fraction of a day, where the execution is filed on the same day the order is granted.^** § 3. By Whom Oedee fob Examination May Be Made. In New York either form of supplementary proceedings may be instituted before a judge of the court out of which, or the county judge, the special county judge, or the special surrogate of the county to which, the execution was issued; or when it was issued in the city and county of ISTew York, from a court of record other than the city court of that city, before a justice of the supreme court, for that city and county.^ ^ Where the judgment upon which the execution was issued was recovered in a district court of the city of New York, either special proceeding must be instituted before a justice of the city court of the city of New York; where the execution was issued out of a court other than the supreme court, and it is shown by affidavit that each of the judges before whom the special proceedings might be instituted, is absent from the county, or, for any reason, unable or disqualified to act, the proceedings may be instituted before any justice of the supreme court.^^ Newton, 10 How. Pr. (N. Y.) 560; Carter vs. Clark, 7 Robt. (N. Y.) 490. 20Blydenburg vs. Cotheal, 5 How. Pr. (N. Y.) 286; Engle vs. Bowneau, 2 Sandf. (N. Y.) 679; Jones vs. Porter, 6 How. Pr. (N. Y.) 286; Sackett vs. Newton, 10 id. 560. "Code Civ. Pro. (N. Y.) sec. 2434; Peck vs. Baldwin, 19 N. Y. Civ. Pro. Rep. 405, 58 Hun (N. Y.), 309; Baldwin vs. Perry, 1 N. Y. Civ. Pro. Rep. 122 ; Terry v. Hultz, 8 Abb. Pr. N. S. (N. Y.) 109 ; People vs. Levy, 25 N. Y. Civ. Pro. Rep. 390 ; Graves vs. Scoville, 12 id. 167 ; Jacobson vs. Doty Plaster Mfg. Co., 32 Hun (N. Y.) 436; Cushman vs. Johnson, 4 Abb. Pr. (N. Y.) 257. 22Code Civ. Pro. (N. Y.) sec. 2434; Peck vs. Baldwin, 19 N. Y. Civ. Pro. Rep. 405 ; Perry vs. Levy, 25 id. 390. Pbbsons Entitled to Prosecute. T- If the justice of the supreme court does not reside within the judicial district embracing the county to which the execution was issued, the order made or warrant issued by him must be returnable to a justice of the supreme court residing in the district, or the county judge, or the special county judge, or special surrogate, of that or any adjoining county, as directed in the order or warrant.^^ But no judge except a justice of the supreme court has power to make an order in these proceedings, unless an execution has been issued upon the judgment to his county.^* Jurisdiction to grant the original order of examination is given to a judge, and not to any court,^® and the jurisdiction of the judge making the order remains until the proceedings are completed, and until all orders made by him in respect to the proceedings are fully executed. In these proceedings he has the same general power as though he were sitting as a court. ^® § 4. Bt Whom Pboceedings Mat Be Prosecuted. Any judgment creditor, be he plaintiff or defendant in an action, may institute supplementary proceedings.^^ In l^ew York the legislature has attempted to give the party to whom costs are awarded in a special proceeding the same ■ remedies under the same circumstances, as near as may be, as a judgment creditor. The legislature has provided that the party to whom such costs are awarded is deemed a judgment creditor, and the ^^Code Civ. Pro. (K Y.) sec. 2434. 2*Terrv v. Hultz, 8 Abb. Pr. (K Y.) Ill; Mclntyre vs. Allen, 43 Hun (IST. Y.), 124; Aldrich vs. Davis, 46 N. Y. State Rep. 58Y; Browning vs. Hayes, 41 Hun (IST. Y.) 382. ^^Douglas V. Mainzer, 40 Hun (N. Y.), Y5. ^^Cowdrey vs. Carpenter, 17 Abb. Pr. (IST. Y.) 107; Crouse vs. Wheeler, 33 How. Pr. (K Y.) 337. • 2VEleventh Ward Bank vs. Heather, 22 Misc. (jST. Y.) 87; Eighton vs. Pruden, 73 ]S"". C. 61 ; Sparks vs. Davis, 25 S. 0. 384. 8 Supplementary Pboceedings. party against whom liiey are awarded is deemed a judgment debtor.^* The New York practice, as we have seen, provides for three distinct remedies: (1st) An order made or a warrant issued against a judgment debtor after the return of an execution. (2) An order made or a warrant' issued against a judgment debtor after the issuing and before the I'eturn of an execution. (3) An order made after the issuing, and either before or after the return of an execution against a person who has property of the judgment^debtor, 6r who is indebted to him. The pro- ceedings against a debtor of the judgment-debtor may be pursued either alone or simultaneous with the proceedings against the judgment-debtor personally.^® The right of a creditor to an order for the prosecution of either of these remedies is not discretionary when the affidavit for such order complies with the requirements of the statute, as construed by the courts. He is entitled to proceed under th& statute as a matter of course, as much as he would be to com- mence a creditor's action against the same debtor.*" A judge who makes some orders may vacate or modify them, and the order, or the order vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued. Where the execution was issued out of the county court, any order made therein is an order of the county court for the purposei of an appeal therefrom.*^ Either special proceeding allowed by the 'New York Code of Civil Procedure may be instituted by any duly authorized agent or attorney of the jiidgment creditor.*^ 28Code Civ. Pro. (N. Y.) sec. 2432; Laws 1896 (K Y.), ch. 176. 29Code Civ. Pro. (N". Y.) sec. 2432. soEleventh Ward Bank vs. Heather, 22 Misc. (IST. Y.) 87. 3iCode Oiv. Pro. (N. Y.) sec. 2433. 32Ward vs. Roy, 69 N. Y. 96; Hawes vs. Barr, 7 Robt. (K Y.) 452. Pebsons Entitled to Prosecute. 9' And an attorney having a lien upon the judgment may insti- tute either special proceedings for the recovery of his costs, or ihe amount of his lien.'*'' The refusal of the client to consent to the institution of either special proceedings by the attorney, in such a case is immaterial.^* Directions by a client to his attor- ney to collect a judgment, is a sufficient authority to the attorney to institute either proceeding in the name of the client.*'' After the death of the judgment creditor the attorney has no power to institute any proceedings in his name.** The assignee of the judgment has the same power as the judg- ment creditor, to institute either special proceeding.* '^ Such assignee takes all the rights and is subject to all the liabilities of his assignor.** The death of the judgment creditor does not in any way affect the assignee's right to institute either special proceeding.*^ And where the first execution upon the judgment has been duly issued by the assignor and returned unsatisfied, the assignee may at any time within ten years after the execution was returned institute either special proceeding allowed by statute after the return of the execution without showing that he has had any execution against property issued or returned.** The assignee may institute either special proceeding in his ovth name or in the name of the judgment creditor.*^ In all such **Merchant vs. Session, 5 IST. Y. Civ. Pro. Rep. 24. **Russell vs. Somerville, 10 Abb. N. C. (IST. Y.) 395 ; Pulver vs. Harris, 52 IST. Y. 75 ; lloore vs. Taylor, 2 How. Pr. N. S. (K Y.) 343. *«Ward vs. Roy, 69 N. Y. 96. *«Ainore vs. La Mothe, 5 Abb. N. C. CN. Y.) 146. *^Orr's Case, 2 Abb. Pr. (N. Y.) 457. *«Hough vs. Kohlin, Code Rep. K S. (K Y.) 232; Schmit- zer vs. Wilbner, 7 Misc. (N. Y.) 497; Lindsav v. Sherman, Code Rep. K S. CN. Y.) 25. *»Crillvs. Kommayer, 56 How. Pr. (K Y.) 276. ^^Wilson vs. Daggett, 9 JST. Y. Civ. Pro. Rep. 408. "Ross V. Clussman, Code Rep. IST. S. (IST. Y.) 91; Orr's Gase, 2 Abb. Pr. (K Y.) 457. 10 SUPPLEMENTAKT PkOCEBDINGS. cases the assignee must show the assignment, and that he is insti- tuting the proceedings as assignee of the judgment.*^ In New York, the sheriff holding a warrant of attachment against a judgment debtor may institute either special pro- ceeding in his own name, or in the name of the judgment debtor, when necessary for the purpose of collecting the debts, judg- ments, effects and things in action, attaelied by him, and to re- duce to his actual possession an article of personal property capable of manual delivery, but of which he has been unable to obtain possession. ^^ An assignee for the benefit of creditors of the judgment creditor may institute either proceeding in a proper case.*"* So may a receiver of the property of the judgment-creditor.*^ § 5. PEESoisrAL Repeesentatives. At any time within ten years after the return, wholly or par- tially unsatisfied, of an execution against property, issued upon a judgment, or upon an order for the judgment of costs awarded in a special proceeding, as prescribed by the ITew York Code of Civil Procedure, the representative of the judgment-creditor, or the representative of the party to whom costs have been awarded by the order, or the representative of the assignee of the judgment, or of the costs, upon proof of all the necessary facts, by affidavit, or other competent written evidence, is entitled to an order in either of the special proceedings allowed after the return of an execution unsatisfied. The right conferred by the Old Code upon the personal representatives of the judgment- creditor to institute the proceedings was not taken away from ^^Frederick vs. Decker, 18 How. Pr. (N. Y.) 96 ; Wright vs. ISTostrand, 94 K". Y. 31 ; Hough vs. Kohlin, Code Rep. 1*1". S. (K Y.) 232. «Code Civ. Pro. (K Y.) sec. 655, sub. 1. **Orill V. Kornmeyer, 56 How. Pr. (N. Y.) 276. *^Moore vs. Taylor, 40 Hun (N. Y.), 56; Wright vs. E"os- trajid, 94 IST. Y. 30. Persons Entitled to Peosecutb. 11 them by the subseqiient repeal of that Code,** but was preserved and continued in full force.*'' It seems that such representative would be entitled to insti- tute either special proceeding independent of any statute. In New York, when the party recovering 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. While tiie execution must be indorsed with the name and residence of the person issuing the same,** the failure to indorse upon the execution the statement that it was issued by the personal representatives of the deceased judgment-cred- itor, will not invalidate the proceedings, where no objection is made until after the appointment of a receiver.*^ While the personal representative of a deceased judgment- creditor or of an assignee of a judgment may institute either special proceeding where an execution duly issued by his intes- tate or te-stator, or the judgment-creditor, as the case may be, bad been duly returned unsatisfied within the time allowed by the New York Code of Civil Procedure, yet to warrant his institut- ing the proceedings he must sbow the recovery of judgment, the issue and return of execution, and his appointment as repre- sentative.^" §-6. Judgment-Debtors Subject to Proceedings. In JSTew York, as a general rule, either spepial proceedings may be instituted against any person against whom within ten years there has been duly returned wholly or partially unsatis- fied, an execution against property issued out of a court of *«Subd. 8 of sec. 1, ch. 417, Laws 1871. *^Sec. 3, ch. 417, Laws 1877; Pardee vs. Tilton, 20 Hun (N. Y.), 76. *«Code Civ. Pro. (IST. Y.) sec. 1376. *»Dego V. Borley, 43 N. Y. State Eep. 638. ""Scott vs. Durfee, 59 Barb. 390n. ; Collier vs. De Revere, 7 Hun (K Y.), 61; Walker vs. Donovan, 6 Daly (K Y.), 552; Code Civ. Pro. (IST. Y.) sec. 2435; Matter of Livingston, 27 Hun (IST. Y.) 607. 12 SUPPLEMBNTABY FeOCBEBINOS. record, upon a judgment rendered upon the judgment-debtor's appearance or upon tJie personal or upon the substituted service of the H nmm nTiH upon him in the manner prescribed by statute for a sum not less than twenty-five dollars ; so either proceedings may be instituted against any judgment-debtor upon a judgment by confession or upon a judgment entered upon a written con- sent for such entry in a recognizance. By the word "appear- ance" in the New York Code of Civil Procedtire is meant the voluntary submission to the jurisdiction in whatever form mani- fested.^-' In N^ew York either proceeding is allowed to be insti- tuted against any person against whom costs have been awarded in a special proc^iding. Such party is deemed a judgment- debtor for the purposes of proceedings supplementary to execu- tion.B2 But to entitle the party to whom such costs have been awarded, or his assignee or legal representative, to maintain the proceedings, he must show that more than ten days after the service of a copy of the order, upon the person against whom the costs were awarded, or his attorney, an execution against the personal property only of the party required to pay such costs, was duly issued, by a party or person, to whom the said costs or sum of money was made payable by such order or his assignee or legal representative, or in case permission of the court was first obtained by any party or person having an interest in compell- ing payment thereof, and that such execution was in the same form as nearly as may be, as an execution upon a judgment, except the recitals and directions relating to real property, and that such an execution is either in the sheriff's hands or that it was within ten years from the time of making an application for the order of examination duly returned, wholly or partly unsatisfied.^^ Either special proceeding may be instituted "People vs. Cowan, 146 N. Y. 348. ">2Code Civ. Pro. (K Y.) sec. 2432, subd. 3. "^Oode Civ. Pro. (N. Y.) sees. YY9 and 2435. Peesons Subject to Pboceedings. 13 against an infantj^'' or a married woman.^^ The only limita- tion in the ITew York Code of Civil Procedure upon the right to take proceedings supplementary to execution against any class of debtors is that the statute does not apply where the judgment- debtor is a corporation created by or under the laws of the State, or a foreign corporation doing basiness within the State, or hav- ing within the State a business agency or a fiscal agency, or an agency for the transfer of its stock.^^ The exception does not embrace a foreign corporation doing no business and having no agency in the State.^' It seems that under the !New York practice either proceed- ings may be instituted against any representative or against any trustee, except an executor or an administrator, against whom a judgment has been rendered in their representative capacity, or against whom an order has been granted in their representative capacity for the payment of costs, whore the applicant shows that the statute in such case made and provided has been strictly complied with. ^^ A judgment recovered against an executor or administrator, as such, is not a judgment attended with the ordinary rights of the judgment-creditor to issue execution upon it, or in any manner to interfere with the property of the decedent's estate ; and such a judgment cannot be enforced by either special j)roceedings.^® Neither special proceeding can be maintained against one discharged in bankriiptcy or insolvency proceedings,®" nor ^^Lederer v. Ehrnfeld, 49 How. Pr. (IST. Y.) 403. ^^Thompson vs. Sargent, 15 Abb. Pr. (N. Y.) 452; Clink- scales V. Hall, 15 S. C. 602 ; Logan vs. McCall Pub. Co., 23 K Y. Civ. Pro. Kep. 246. ^''Code Civ. Pro. (K Y.) sees. 1812 and 2463. "Logan vs. McCall Pub. Co., 140 JST. Y. 449, 55 N. Y. State Eep. 794. ^»Matter of Gough, 31 App. Div. (E". Y.) 307. »»Collins vs. Beebee, 54 Hun (N. Y.), 318, 27 JST. Y. State Rep. 4. «0Robens vs. Sweet, 48 Hun (X. Y.) 436; Smith vs. Paul, 20 How. Pr. (K Y.) 97. 14 Supplementary Peocbedings. against a foreign minister or his assistants,*^ nor against a debtor while he is under arrest on execution against his person, issued upon the judgment, or while he is under arrest upon the order for the payment of costs.**^ It seems that there is no case, with the specific exceptions, where an execution has befeu regularly issued and returned as required by the New York Code of Civil Procedure, in which the creditor may not proceed under those statutes in either special proceeding. The fact that the judgment was recovered against one of two or more joint-debtors is immaterial. All the law requires is that the party instituting the proceedings has a judgment against the party against whom the proceedings are instituted, which when rendered was not less than twenty-five dollars, and which was rendered either upon personal or substituted service of the sum- mons, or upon the appearance of the debtor, or upon confession ; and that within ten years an execution thereon has been re- turned unsatisfied.®* The ISTew York rule that the statute in regard to supplement- ary proceedings do not apply where the judgment-debtor is a corporation created by or under the laws of the State, or a for- eign corporation doing business in or having an agency within the State,®* prevails in Iowa, Indiana ajid South Dakota.®* While in some jurisdictions this rule applies to all municipal ®^Griffin vs. Dominguez, 2 Duer (IST. Y.), 656. ^^Cooper vs. Bigelow, 1 Cow. (N. Y.) 56. ®'Emery vs. Emery, 9 How. Pr. (K Y.) 130; Crossett vs. Wiles, 13 N. Y. Civ. Pro. Eep. 327. «*Logan vs. McCall Pub. Co., 140 1^. Y. 449, 55 N". Y. State Eep. 794, 23 K Y. Civ. Pro. Eep. 249 ; Code Civ. Pro. (N. Y.) sec. 2463; Bucki vs. Bucki, 26 Misc. (K Y.) 69; Levy vs. Swick Piano Co., 17 id. 146 ; Vielor vs. Eichards' Co., 20 id. 14, 26 K Y. Civ. Pro. Eep. 296. ®^Esty vs. Fuller Implement Co., 82 Iowa, 678 ; Bates vs. International Co., 84 Eed. Eep. 518; Tompkins vs. Floyd County Agr. etc. Assoc, 19 Ind. 197. PEBSOisrs Subject to Proceedings. 15 corporations,®^ the New York rule excepts those actions or special proceedings brought by or against the people of the State. § 7. Persons Having Peopeety of the Judgment-Debtob, OR Indebted to Him. In New York, any person owning a judgment rendered for twenty-five dollars or more may, where he shows that he has complied with the practice prescribed by the Code of Civil Procedure, obtain an order of examination after the issuing, and either before or after the return of an execution, against a person who has property of the judgment-debtor, or is indebted to him. These proceedings may also be instituted by the as- signee of the judgment or the personal representatives of either the judgment-creditor or the assignee of the judgment. They may also be instituted by the party to whom costs are awarded in a special proceeding, or by his assignee or representatives. They may be pursued either alone or simultaneously with the proceedings against the judgment-debtor.*'' But in order to in- stitute them, the creditor must produce before the judge an affi- davit or other competent written evidence, from which it appears to the satisfaction of such judge that an execution of a court of record against property has been issued upon a judgment which when rendered was for not less than twenty-five dollars, and that sach judgment was rendered upon consent or upon confes- sion or upon the judgment-debtor's appearance or upon the personal or substituted service of the summons upon him in accordance with the provisions of the Code of Civil Procedure. Similar proof is required where the application is upon an order for costs in a special proceeding awarded against the debtor.®* It must also appear that such execution was duly issued to the sheriff of the county where the judgment-debtor has, at the time «« South Bend Toy Mfg. Co. vs. Pierre P. & M. Ins. Co., 4 S. D. 183. «^Code Civ. Pro. (N. Y.) sec. 2432, subd. 3. ««Code Civ. Pro. (N. Y.) sees. 2482, 2441, 2458. It; SUPPLEMEJSTAEY PhOOEEUINGS. of the application for the order, a place for the regular trans- action of business in person, or, if the judgment-debtor is then a resident of the State, to the sheriff of the county where be resides; or, if he is not then a resident of the State, to the sheriff of the county where the judgment roll is filed, unless the execution was issued out of a court other than that in which the judgment was rendered or order entered, and, in that case, to the sheriff of the countj^ where the transcript of the judgment or order is filed. It must also appear either that such execution has within ten years been duly returned wholly or partly unsatisfied, or that it has not been returned. It must also appear that a person or corporation named has personal property of the judgment debtor exceeding ten dollars in value or is indebted to him in a sum exceeding ten dollars.®* Where the execution was issued upon an order awarding costs in a special proceeding, the party instituting the special proceed- ing against a third person must show that the execution was not issued until ten days after a copy of the order awarding the costs was served upon the debtor, and that it was issued against the debtor's personal property only.'^" In almost every State which has followed the New York practice in supplementary'^ proceedings, a creditor is allowed to maintain proceedings against a debtor of the judgment-debtor, or one having property of the judgment-debtor in his posses- sion.^^ In New York, with some rare exceptions, the proceed- ings may be institiited against any person, copartnership or cor- poration. '^^ The same rule prevails in other States.''^ 69Code Oiv. Pro. (K Y.) sec 2441. ^«Code Civ. Pro. (¥. Y.) sec. Y79. "Clark vs. Nebraska Nat. Bank, 57 Neb. 314; Murphy vs. Busick, 22 Ind. App. 247 ; Cushman vs. Gephart, 97 Ind. 46. "Strauss vs. Yorkville Bank, 32 Misc. (N. Y.) 239 ; Matter of Garnon, 32 App. Div. (N. Y.) 22; Sinnott vs. Hempstead First Nat. Bank, 34 App. Div. (N. Y.) 161. ■^^Spencer vs. Greene, 17 E, I. 727 ; Miirphv vs. Busick, 22 Ind. App. 247; O'Brien's Petition, 24 Wis.' 547; Rand vs. Peksohs Subject to Peoceedings. 17 But while in New York the proceedings may be pursued either alone or simultaneously with proceedings directly against the debtor,^* and notice to the judgmentr debtor is unneces- sary/^ in some States the jvidgment-debtor is a necesary party, and the proceedings can be maintained only in connection with proceedings against such debtor.'"' In New York, however, the judgment-debtor has such an interest in the proceedings that he should have notice of the proceedings, and he may compel the creditor to file any order in the proceedings. ^'^ It seems that the proceedings against a third party cannot be maintained where the judgment-debtor at the time is exempt from the proceedings, as in the case of certain corporations.'^'* Nor can such proceed- ings be maintained while the judgment-debtor is, imprisoned on an execution in the same case. And while it has been held that proceedings against a third party cannot be maintained where an order for examination has not been served upon the judg- ment-debtor,''® these decisions are not only contrary to the plain provisions of the statute,*" bixt have been ignored by later decisions of the same courts.*^ Rand, 78 N. C. 12 ; Clark vs. Nebraska Nat. Bank, 57 Neb. 314; Frankenthal vs. Solomonson, 20 Wash. 460. '*Code Civ. Pro. (N. Y.) sec. 2432, subd. 3. ^^Sinnott vs. Hempstead First Nat. Bank, 34 App. Div. (N. Y.) 161; Gibson vs. Haggerty, 37 N. Y. 555. ■'"Earle vs. Skiles, 93 Ind. 178; Spencer vs.Greene, 17 R. I. 727; Clarke vs. Nebraska Nat. Bank, 57 Neb. 314; Pranken- thal vs. Solomonson, 20 Wash. 460. '^''Sinnott vs. Hempstead Pirst Nat Bank, 34 App. Div. (N. Y.) 161. '^Fitchburg Nat. Bank vs. Bushwick Chemical Works, 13 N. Y. Civ. Pro. Rep. 155. '^Merrill vs. AUin, 46 Hun (N. Y.) 623; People ex rel. Grant vs. Warner, 51 id. 63. 8»Code Civ. Pro. (N. Y.) sec. 2432. ^^Sinnott vs. Hempstead First Nat Bank, 34 App. Div. (N. Y.) 161. 2 18 SUPPLBMENTAEY PeOCBEDINOS. CHAPTEE II. -PROPERTY EXEMPT BY NEW YORK STATUTES. § 1. Preliminary Observations. § 2. Personal Property which is Exempt. S 3. Absolute and Conditional Ex- emption. § 4. Proceeds of exempt Property. § 5. Judgment for Labor Performed as a Domestic. § 6. Waiver of Exemptions. § 7. Alimony. § 8. Life Insurance. § 9. Pensions, Military Pay, Re- wards. § 10. Homesteads. § 11. Rights and Liabilities of Cred- itors. § 1. Peeliminaby Obseevations. The New York statutes in relation to supplementary proceed- ings do not authorize the seizure of, or other interference with, any property, which is expressly exempted by law from levy and sale by virtue of an execution.-' So any m.oney, thing in action or other property, held in trust for an execution-debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other that the execution-debtor, cannot be seized or interfered with in these proceedings." So the statute does not authorize the seizure of, or other inter- ference with, the earnings of the execution-debtor having a ^Code Civ. Pro. (N. Y.) sec. 2463; Fink vs. Fraenkle, 20 K Y. Civ. Pro. Rep. 404, 39 N". Y. State Eep. 194; Baron vs. Brummer, 100 K Y. 372 ; TiUotson vs. Wolcott, 48 IT. Y. 188 ; Matter of Edlunds, 35 Hun (N. Y.), 367 ; Dickinson vs. Onder- donk, 18 Hun (N". Y.) 479. ^Code Civ. Pro. (K Y.) soc. 2463 ; Thompson vs. Thompson, 52 Hun (N. Y.), 456; Romaine vs. Chancerv, 39 IST. Y. State Rep. 480, 60 Hun (K Y.) 477; ITorgan vs. 'Von Kohnstamm, 9 Daly (K Y.), 355; De Camp vs. Dempsey, 10 IST. Y. Civ. Pro. Rep. 210; Manning vs. Evans, 19 Kxm (K Y.), 500; McReoy vs. Appleby, 15 ISJ". Y. Week. Dig. 233 ; Lew vs. Bull, 47 Hun (K Y.), 350. Property Absolutely Exempt. 19 family for which he provides, ,f or his persoiial services, rendered within sixty days next before the institution of the special proceeding.* § 2. Personal Propekty Which xs Exempt. At common law, neither a debtor nor his family had any way of exempting any portion of his property from execution for his or their benefit. Any privileges that a debtor may now have in the way of exemptions, must be sought for in the statutory law. The New York statutes provide for a large number of exemptions in favor of a householder. They also provide that the articles continue to be exempt while the family or any ox them is removing from one residence to another.^ The original exemptions are: (1) All spinning-wheels, weaving-looms and stoves, put up or kept for use in a dwelling house, and one sew- ing machine. (2) Books not exceeding in value fifty dollars, also family pictures and school books. (3) A seat or pew in church, ten sheep with their fleeces, and the yarn or cloth manufactured therefrom; one cow, two swine, the necessary food for those animals during the next foddering season after the harvest.' The fleeces, or yarn or cloth manufactured from the fleeces of ten sheep, is exempt while in the hands of a householder, whether he be or not the owner of the sheep.® The ISTew York »Code Civ. Pro. (N". Y.) sec. 2463; Whalen vs. Tennison, 1 K Y. Law Bui. 21; Martin vs. Sheridan, 2 Hilt. (IST. Y.) 586; Miller vs. Hooper, 19 Hun (IST. Y.) 394; Gillett vs. Hil- ton, 11 :N'. Y. Civ. Pro. Eep. 108 ; Hancock vs. Sears, 93 K Y. 79 ; MeSkiman vs. Knowlton, 20 IST. Y. Civ. Pro. Eep. 274 ; Bush vs. White, 12 Abb. Pr. (IST. Y.) 21; Sandford vs. Good- win, 20 N. Y. Civ. Pro. Rep. 276 ; Cummings vs. Timberman, 49 How. Pr. (K Y.) 236. *Code Oiv. Pro. (K Y.) sec. 1390; Lashaway vs. Tucker, 61 Hun (IST. Y.), 6. ^Woodward vs. Murray, 1 8 John. IST. Y. ) 400 ; Farrell vs. Higle, Hill & D. Supj). 87; Code Civ. Pro. CN. Y.) sec. 1390. «Brockettvs. Watkins, 21 Wend. (¥. Y.) 68. 20 SuPi'I.KMJENTAEY PkOCEEDINGS. statutes exempt all necessary meat, fish, flour, groceries and vegetables actually provided by a householder for family use;^ this includes all vegetables planted for family use,* though wheat is not within the meaning of the word "flour."® The statute exempts all fuel, oil and candles necessary for the use of the family for sixty days.*" The original statutes exempt cer- tain enumerated articles of household furniture; they also ex- empt the tools of a mechanic, not exceeding in value twenty-five dollars. The statutes as amended in 1842, 1866 and 1879 exempt, in addition, necessary household furniture, working tools and team, professional instrimients, furniture and library, not exceeding in value two hundred and fifty dollars. •'•'^ The "team" includes any team Avhich a householder or head of a family may or can use in and about the business of providing for his family.-'^ The statutes exempt the necessary food for ninety days for a householder's team.^^ The statutes then provide that such exemptions — in the second class — do not extend to an execution issued upon a judgment, recovered wholly upon one or more demands for the purchase money of one or more articles exempt by such statutes.^* This exception to the exemptions named refers only to such household furniture as is not specially enimi- erated and to such working tools as belong to a person other than a mechanic, and to the tools of a mechanic in addition to those of the value of twenty-five dollars, and to a team, and also to professional instruments, furniture and a library of a profes- ■^Lashaway vs. Tucker, 61 Hun (IST. Y.) 6. ^Carpenter vs. Harrington, 25 Wend. (N. Y.) 3T0. ^Salsbury vs. Parsons, 36 Hun (N. Y.), 12. i»Code Civ. Pro. (K Y.) sec. 1390. "Code Civ. Pro. (JST. Y.) sec. 1391. i^McGivney vs. Childs, 5 IST. Y. State Rep. 251 ; Dains vs. Prosser, 32 Barb. 290 ; Wheeler vs. Cropsey, 5 How. Pr. (K Y.) 288; Pinnin vs. Malloy, 33 IST. Y Supr. Ct. 382; Cogsdill vs. Brown, 5 Duer (IST. Y), 341. "Code Civ. Pro. (N. Y.) sec. 1391. i*Code Civ. Pro. (K Y.) sec. 1391. Pbopkkty GoNniTioNAi.i-Y Exempt. 21 sional man. While this last clause of the statute has been con- strued to mean most everything/^ yet it seems to be settled at the present time that any exempt property of the second class may be sold upon a judgment recovered wholly for any class of groceries^ vegetables, fuel, wearing apparel, furniture, and al- most anything that is used in a family.^* It seems that the above construction has not been questioned since it was made, and that it must be followed. Where the execution-debtor is a woman, married or single, she is entitled to all the exemptions heretofore mentioned. ^^ § 3. Absolute and Conditional Exemption. In New York there are two classes of exemptions. One re- lates to certain specified articles which are exempt, no matter what their value may be.^^ The articles exempted in the second class are not specially itemized. The value of all the articles in the second class is limited to two hundred and fifty dollars, and there may be claimed under it property of the kind men- tioned to that amount, but to that amount only.^^ 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. The articles mentioned in the first class of exemp- tions are absolutely exempt, if the owner is a householder, and the officer has no right to levy upon them. The articles specially itemized and named as exempt cannot be levied upon to satisfy any execution whatever, not even though it be upon a judgment recovered wholly upon a demand for the purchase money of the 15 Craft vs. Curtis, 25 How. Pr. (¥. Y.) 164. "Snyder vs. Davis, 47 How. Pr. (N. Y.) 147; 1 Hun (¥. Y.), 350; 3 Thomp. & C. (K Y.) 596. "Fink vs. Fraenkle, 39 IST. Y. State Rep. 195 ; Code Civ. Pro. CN.Y.) sec. 1392. i^Code Civ. Pro. (N. Y.) sec. 1390. "Code Civ. Pro. (K Y.) sec. 1397. 22 SUPPLEMENTAKY PeOCEEDINGS. article levied upon.-" As we have seen, it seems to have been settled that all the articles named in the first class of exemptions are absolutely exempt,^^ and that the exemption is not affected by the fact that such articles are of the value of $5,000. The other class of exemptions is in addition to the property absolutely exempt; and the property conditionally exempt must be "necessary household furniture, vi^orking tools and team, professional instruments and library, not exceeding in value $250." The whole of this property cannot be exempt if it ex- ceeds in value $250, and where the debtor has property of this character of greater value than $250, it is dependent upon his election as to the particular property that may be retained by him as exempt. An officer with an execution, it has been said, must take notice that the articles named in the statute as being absolutely exempt cannot be levied upon by him upon any execution.^^ But as to the property which is exempt only if it does not exceed in value $250, the rule is different. In the latter case the owner must select and point out to the officer such property as he claims to be exempt. The exemption is a quali- fied one, and the debtor must claim it and notify the officer of his claim before he can maintain an action either for its conversion or to recover its possession. But this rule, it seems, might be doubtful if the debtor had no other property to which such exemption might apply. The rule, however, seems to be that Tinless the debtor claims, at the time of a levy upon property which is only qualifiedly exempt, that the property is exempt, he waives his exemption to such property.^^ Whether the debtor, who was present at the time the officer came to make the levy, and who was notified by the officer as to ^oCox vs. Stafford, 14 How. Pr. (IST. T.) 519 ; Frost vs. Mott, 34 N. T. 255 ; Russell vs. Dean, 30 Hun, 245 ; Wilcox vs. Howe, 36 ]Sr. Y. State Rep. 303, 59 Hun (IS^. Y.), 268 ; 20 ISJ". Y. Civ. Pro. Eep. 214. 2iWilcoxvs. Howe, 59 Hun (N. Y.), 268. 22Wilcox vs. Howe, 36 K Y. State Rep. 305. 23Rus8ell vs. Dean, 30 Hun (IST. Y.), 242. Pkopeety Conditionally Exempt. 23 what property he intended to levy upon, absolutely waives his exemption to that property by not then claiming it as exempt, or whether he has a right to make such claim at any time before the actual sale of the property, quaere. It would seem, however, that the debtor would have a right to claim the property as exempt at any time before the officer sold it. But the debtor could not, it seems, claim any damages for the levy, if the officer delivered the property to him upon demand. The debtor in every case, to entitle himseK to the benefit of the exemption, must be a householder, or one having a family for which he provides.^* § 4. Peooeeds of Exempt Property. 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, are exempt for one year after the collection thereof, from levy and sale by virtue of an execution and from seizure in any other legal pro- ceedings.^^ § 5. Judgment for Labor Performed as a Domestic. While all the personal property specially named in the statute is absolutely exempt, the property which is qualifiedly exempt, or exempt when it does not all — except the food for a team for ninety days — exceed in value $250, is none of it exempt as against an execution upon a judgment, recovered wholly upon one or more demands for work performed in the family as a domestic.^^ The word "domestic" means one living in the fam- ily of another as a hired servant, whether male or female. ^■•Code Civ. Pro. (N. Y.) sees. 1390, 1391; Cantrell vs. Con- ner, 51 How. Pr. (I^. Y.) 45; Griffin vs. Sutherland, 14 Barb. 456 ; Hutchinson vs. Chamberlain, 11 IST. Y. Leg. Obs. 248. 25Code Civ. Pro. (1ST. y.) ggc. 1394; Tillotson vs. Wolcott, 48 ISr. Y. 190. 2«Code Civ. Pro. (N. Y.) sec. 1391. 24 Supplementary Pbooeedings. Whether the rule applies to one doing work outside of the employer's house, quaere. § 6. Waiver of Exemptions. A waiver is not, and bears no analogy to, a contract. No con- sideration is necessary to siipport a waiver. Gifts can only be made to take effect in praesenti. Of course, then, a gift must be of something in praesenti at the time. To give implies ex determini, 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 that when the time arrives I will not insist upon a 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 contingency, 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 contract, and not a matter of fact. In ISTew York, it seems that a person contracting a debt cannot agree with his creditor that in case of non-payment he shall be entitled to levy his exe- cution upon property exempt from levy by the general laws of the State.^^ The stattites which allow a debtor, being a house- holder or having a family for which he provides, to retain, as against 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 en- tered 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 intention of the legis- lature. If effect shall be given to such contracts, it is likely that they will be generally inserted in obligations for small demands, and in that way the policy of the law will be completely over- ^^Crawford vs. Lockwood, 9 How. Pr. (W. Y.) .'>4'?'. Waivek of Exemption. 25 thrown. Every honest man who contracts a debt expects to pay it, and believes he will be able to do so without having his property sold on execution. No one worthy to be trusted would therefore be apt to object to a clause subjecting 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 fami- lies of articles indispensable to their comfort, that the legisla- ture 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 im- providence in giving such consent. The statutes contain many examples 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 redemption after the sale of land on execution. In these cases the law seeks to mitigate the consequences of man's thoughtlessness and improvidence, and it does not allow its policy to be evaded 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 execution, or he may release an equity of redemption, and he will be bound by the act, and while the statute 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 articles of personal property specially named in statutes of exemptions which are absolutely exempt from levy and sale by virtue of an execution.^* 28Code Civ. Pro. (N. Y.) sec. 1390; Kneetle vs. Xewcomb, 22 K Y. 251. 26 SuPPLEMfeNTAEY PeOCEEBINGS. § 7. Alimony. Alimony awarded to a wife cannot be taken for a debt con- tracted prior to the decree granting it. Such alimony is in the nature of a trust created by a third person for the benefit of the debtor, and comes within the statute in that respect.^® The rule is different when the debt is contracted subsequent to the decree awarding the alimony and upon the strength of it.^" § 8. Life Insubance. In New York life insurance policies upon a husband's life in favor of his wife are exempt from the liens of creditors either of the husband or the wife,^^ but the premiums paid on such policies in excess of $500 in any one year may be reached.'^ Beyond this no lien or claim can exist in favor of creditors.*^ § 9. Pensions^ Militaey Pay, Rewaeds. The pay and bounty of a non-comnaissioned officer, musician or private in the military or naval service of the United States or the State; a land warrant, pension or other reward granted by the United States or by a State for military or naval service ; a sword, horse, medal, emblem or device of any kind presented as a testimonial for services rendered in the military or naval ser- vice of the United States or a State ; and the uniform, arms and equipments which were used by a person in that service, are ex- empt in ISTew York from levy and sale by virtue of an execution and from seizure for non-pajTnent of taxes or in any other legal proceedings.^* When money received as aforesaid can be traced 29Code Civ. Pro. (?!". Y.) sec. 2463; Romain vs. Chauney, 129 ]Sr. Y. 566, 43 IST. Y. State Eep. 267. ^"Stevenson vs. Stevenson, 34 Hun (IST. Y.) 157. "Laws 1840 (IST. Y), ch. 80; Laws 1858 (W. Y.), ch. 187; Laws 1866 (N. Y.), ch. 656. 32Laws 1870 (K Y.), ch. 277., ^'Baron vs. Bmmmer, 100 'N. Y. 372. »*Code Civ. Pro. (IST. Y.) see. 1303; Furgett vs. Pancher, 35 Hun (K Y.), 647. HoMESTJiAD, When Exempt. 2Y directly to the purchase of property necessary or convenient for the support of the debtor and his family, such property is ex- empt,^^ but where a debtor purchases ten horses or fifty watches with his pension money, the rule, it seems, might be different.^* And while the statutes protect the accrued pension after a pen- sioiier's death in favor of his widow or his children who are under the age of sixteen years,^'' the liew York State exemp- tions do not apply to property left by a deceased pensioner.^^ § 10. Homesteads. In New York, the family burying-ground, when set apart in the manner prescribed by law, is exempt and remains so after the death of the owner.^® So a lot of land set apart as a home- stead in the manner prescribed by law is exempt and remains, so after the death of the owner.*" But in order to entitle a man to such homestead exemption, he must be a housfeholder having a family, and the property must be occupied by him as a resi- dence. The property is exempt only to the amount of one thou- sand dollars. The New York exemption laws in regard to homesteads do not, neither can they, affect the rights of one who has recovered a judgment, either for a debt contracted by the debtor before the designation of the property or for the purchase money thereof.*-' The person desiring the benefit of the homestead exemption must either cause to be recorded a con- veyance thereof, stating in substance that it is designed to be held as a homestead, exempt from sale by virtue of an execution, or a notice containing a full description of the property and stat- ^^Yates County :N"at. Bank vs. Carpenter, 119 IST. Y. 550; Burgett vs. Fancher, 35 Him (IsT. Y.), 64Y. 3«Salsbury vs. Parsons, 36 Hun (K Y.), 17. 3^Stat. U. S. sec. 4718. 88Matter of Barber, 20 IS^. Y. State Bep. 136. 8»Code of Civil Procedure (K Y.), sees. 1395, 1396. *<»Code Civ. Pro. (j^. Y.) sec. 1397. "Code Civ. Pro. (N. Y.) sec. 1397; Rice vs. Davis, 7 Lans. (N. Y.) 393; Smith vs. Brockett, 36 Barb. 57; Peck vs. Ormsby, 56 Hun (N". Y.), 265, 28 W. Y. State Rep. 518. 28 Supplementary Proceedings. ing that it is designed to be so held. The notice must be sub- scribed by the owner, duly acknowledged and recorded in what is known as the "Homestead Exemption Book."*^ A married woman has the same right as a man to such exemp- tion.** This exemption continues after the death of the owner for the benefit of the minor children of the owner or the widow of the owner. But the exemption ceases when the property ceases to be occupied as a residence by the owner or his widow or minor children.** A suspension of the occupation of the premises for one year, caused by the injury or destruction of the dwelling house thereon does not affect the right of the person entitled thereto.*" Where the vahie of the premises exceeds $1,000, the only way to reach the surplus is by a creditor's bill.*® A mortgage executed upon property so exempt after the notice of exemption has been filed is ineffectual until the exemption has been cancelled, except that such a mortgage is valid to the extent of the purchase money of the same property secured thereby.*^ § 11. Rights and Liabilities of Creditors. A vehicle and harness for the exempt team of a debtor are also exempt. A team^ consists of one horse or two horses, one mule or two mules, one ox or two oxen. It consists of one cow or two cows if broken for and used as a team.** To exempt a team, the debtor owning it or them, as the case may be, must, if a man, be a householder or have a family for which he provides. The value of all the personal property of such debtor which is not absolutely exempt must not exceed two hundred and fifty dollars.** That is to say, if the debtor has property of this class *2Code Civ. Pro. (N. Y.) sec. 1398. *3Code Civ. Pro. (K Y.) sec. 1399. **Code Civ. Pro. (IST. Y.) sec. 1400. *5Code Civ. Pro. (IST. Y.) sec. 1401. *«Code Civ. Pro. (JST. Y.) sec. 1402. *^Code Civ. Pro. (N. Y.) sec. 1404. *«Brown vs. Davis, 9 Hun (K Y.), 143. *»Code Civ. Pro. (K Y.) sec. 1391. Homestead^ When Exempt. 29 which in the aggregate exceeds in value two hundred and fifty dollars, he must select such articles as he claims to be exempt which do not exceed in value that amount.'^" It seems that if the debtor sells his exempt property for property that is not ex- empt, he cannot claim the property purchased as exempt.^ ^ It is usually said that the necessary wearing apparel of every debtor is exempt.^^ ^"Seaman vs. Luce, 23 Barb. 240; Wilcox vs. Hawley, 31 W. Y. 648 ; Russell vs. Dean, 30 Hun (N. Y.), 242 ; Brooks vs. Hathaway, 8 Him ^N. Y.), 290; Tirmin vs. Mallory, 33 IST. Y. Supr. Ct." 382 ; Smith vs. Slade, 57 Barb. 637. ^^Salisbury vs. Parsons, 36 Him CS. Y.), 17. s^Bumpus'v. Mavnard, 38 Barb. 626 ; Matter of Edlunds, 35 Hun CN. Y.), 367'. 30 SUPPLEMBNTAEY PeOCEEDINGS. I CHAPTEK III. JUDGMENTS. In almost every jurisdiction supplementary proceedings may be instituted upon a money judgment recovered in a court of record where anything remains unpaid thereon, provided the proceedings are instituted while the judgment is a lien on the debtor's property. ^ In New York, to entitle any one to an order in supplementary proceedings founded upon a judgment, the judgment must have been rendered for a sum not less than twenty-five dollars.^ But where the jiidg-ment when rendered in a court of record or when docketed as a judgment of a court of record amounts to twenty-five dollars, the proceedings may be instituted thereon irrespective of the amount due on the judgment at the time the proceedings are instituted. Such judgment is a lien on the judgment debtor's real estate, what- ever its amount* It is immaterial whether the judgment is in favor of the plaintiff or in favor of the defendant, or whether it is for damages or for costs, or both. In ~Sew York the only questions that can be raised to the sufficiency of a judgment ren- dered in a court of record in this twentieth century are (1) was it for twenty-five dollars or more when docketed? (2) has it been duly docketed in the proper county clerk's office within ten years ? (3) was it recovered either upon confession, by consent, upon the appearance 6f the judgment debtor in some of the modes provided by law, or upon the personal service of the stun- mons upon the defendant, or upon certain substituted service of the summons allowed by the Code of Civil Procedure ?* But ^Barker vs. Dayton, 28 Wis. 367 ; Gibson vs. Gorman, 44 K J. L. 326. 2Code Civ. Pro. (IST. Y.) sec. 2458. ^2 Til. & Sh. Pr. 855 ; Williams vs. Freeman, 12 N. Y. Civ. Pro. Rep. 334; Johnson vs. Tuttle, lY Abb. Pr. (IST. Y.) 315. ^Bmsh vs. Lee, 1 Abb. Ct. App. De«. (IST. Y.) 89; Cod(^ Civ. Judgment Upon Substituted Service. 31 it seems that a judgment against executors or administrators as such is not in New York sufficient upon which to found either special proceeding. Such a judgment is not one attended with the ordinary right of the judgment creditor to issue an execu- tion upon it, but its object is to secure the legal existence of a disputed demand as provided by the Code of Civil Procedure.® The recovery of such a judgment gives the plaintiff no right to issue an execution, or in any manner to interfere with the prop- erty of the decedent's estate, but the surrogate is authorized to permit an execution to be issued upon the judgment.® Real property which belonged to the decedent is not bound or in any way affected by such judgment, and cannot be sold upon an exe- cution issued upon such judgment unless the jiidgment is ex- pressly made, by its terms, a lien upon specific real property therein described, or when it expressly directs the sale thereof.^ 'No preference is given to such judgment-creditor, and the execu- tion is to be paid only in the proportion paid to other creditors.* These proceedings (probably) may be taken against the repre- sentative of the judgment-debtor upon a judgment, where the execution is issued against the debtor in his lifetime ; as in such case it may be enforced after his death without leave of any court.® Pro. (K Y.) sec. 2458; Burks vs. Burke, 27 Misc. (K Y.) 684 ; Matter of Sirrett, 25 id. 89 ; Davis vs. Herrig, 65 How. Pr. (K Y.) 290; Russell vs. Sonimerville, 4 N". Y. L. Bui. 3. ^Code Civ. Pro. (K Y.) sec. 1822. «Code Civ. Pro. (K Y.) sec. 1825. ^Oode Civ. Pro. (K Y.) sec. 1823; Hoxie vs. Kennedy, 17 K Y. State Rep. 863, 15 IST. Y. Civ. Pro. Rep. 185 ; Re Jan- sen's Estate, 1 Con. Surr. Rep. (K Y.) 362, 9 W. Y. Supp. 451; James vs. Beesly, 4 Redf. (JST. Y.) 236; Lichtenberg vs. Herdtfelder, 33 Hun (N. Y.) 57, 103 K Y. 302. »Schmitz vs. Langhaar, 8 N. Y. 503, 24 Hun (K Y.), 168; Matter of Boyle, 29 jST. Y. State Rep.' 946 ; Glacius vs. Fogel, 88 ]Sr. Y. 434. »Wood vs. Moorhouse, 1 Lans. (IST. Y.) 405, 45 E". Y. 368 ; Holman vs. Holman, 66 Barb. 216 ; Kennedv vs. Geoghegan, 1 ]Sr. Y. State Rep. 135. 3^ BuPl'LEMENTAKY PeOOEEDINGS. So it seems tliat a judgment against one or more surviving judgment-debtors may be enforced by supplementary proceed- ings as if all the judgment-debtors vs^ere living. In that caso an execution must be issued in the usual form ; but the attorney for the judgment-creditor must indorse thereupon a notice to the sheriff, reciting the death of the deceased debtor, and requir- ing the sheriff not to collect the execution out of any property belonging to hini.^*^ But where the judgment-debtor, or all the jiidgment-debtors, die after the entry of judgment and be- fore an execution on the judgment has been issued, the judg- ment-creditor (probably) cannot enforce the collection of the judgment by these special proceedings. This seems to follow from the fact that as a general rule an execution issued on such a judgment would not be a lien upon the personal property of the decedent or decedents, as the case may be. And as a gen- eral rule, an execution upon such a judgment where the debtor has no real estate cannot be issued until after one year from the time of the death of the judgment-debtor, and not even then unless upon leave of the surrogate's court and the court out of which the execution is to be issued. And where the judgment is a lien ui^on the real estate of the decedent, the leave cannot be granted until after the expiration of three years from the time letters testamentary or letters of administration have been granted upon the estate of the deceased. ^^ The exceptions to this rule are ( 1 ) where the real property of the decedent is sold in proceedings to pay debts, and (2) where such real estate was transferred by the decedent in his lifetime to defraud his creditors. These special proceedings cannot be enforced against an assignee for the benefit of creditors upon a decree entered against him as assignee. ^^ So these proceedings cannot be maintained after, upon a judgment obtained before, the discharge of the judgment-debtor in bankruptcy proceedings "Code Civ. Pro. (N. Y.) sec. 1383. "Code Civ. Pro. (N. Y.) sec. 1380. i2In re Jung, 10 TST. Y Wceklv Dig. 563. Judgment Upon Substituted Sbbvice. 33 of any kind.^^ Prior to the amendraents of the New York Code of Civil Procedure in 1897 these proceedings could not be insti- tuted upon any judgment taken upon any kind of substituted service of the summons.^* These proceedings cannot be main- tained in JSTew York upon a judgment entered upon a summons which when served did not give the judgment-debtor's correct Christian namCj and which was amended by the court without any appearance upon the part of such debtor. That is to say, where John Smith is named in the summons served upon James Smith, the court has not without some appearance by the party served, power to amend the summons by changing the name John Smith to James Smith. Though it is the practice in special proceedings founded upon a judgment taken upon a summons so amended to allow the defendant to raise the question upon motion to dismiss the proceedings,-'^ yet it has been said that in these pro- ceedings the alleged judgment-debtor cannot obtain a dismissal of the order upon proof that the summons was not personally served upon him; his remady, it is said, is by motion to vacate the judgment. It does not seem to be a fatal error for the judgment-creditor to institute these pro- ceedings upon a judgment entered against, and upon an execu- tion issued against the several partners of a firm, where the summons was served upon part of the partners only.-''^ These ^^Cleveland vs. Johnson, 5 Misc. (ISF. Y.) 484; T.eo vs. Joseph, 56 Hun (K Y.), 644, 9 W. Y. Supp. 612; World Co. vs. Brooks, Y Abb. Pr. E". S. (K Y.) 212; Smith vs. Paul, 20 How. Pr. (]Sr. Y.) 97. ^*Schwinger vs. Hickok, 53 IST. Y. 280 ; People vs. Cowan, 10 Misc. (K Y.) 258, 11 id. 302, 24 K Y. Civ. Pro. Kep. 147; Bartlett vs. MclSTeil, 60 IST. Y. 53, 49 How. Pr. (N. Y.) 56; Hildreth vs. Seeback, 18 Misc. (N". Y.) 388; Importers' & T. IvTat. Bank vs. Quackenbush, 143 N. Y. 572. i^McGill vs. Weill, 19 IST. Y. Civ. Pr6. Rep. 43 ; Muldoon vs. Piers, 1 Abb. IST. O. (jST. Y.) 309. "Greenhall vs. Unger, 20 Misc. (IST. Y.) 412. "Perkins vs. Kendall, 3 N. Y. Civ. Pro. Rep. 242. 3 34 SUPPX/EMENTARY PeOCEEDIHGS. proceedings cannot be maintained in New York upon any judg^ ment of a foreign court entered upon substituted service of the summons or subpcena, as the case may be ; nor, in fact, upon any judgment taken in any court outside of the State that cannot by filing a transcript in the proper clerk's ofEce in the State become a lien upon the debtor's real estate.^** While these proceedings arc not allowed to be maintained upon a judgment against a cor- poration crea.ted by or under the Laws of the State of Kew York, Or a foreign corporation doing business in or having an agency in that State, except those proceedings brought by or against the people of the State/" yet it is said that such proceed- ing may be maintained upon any such judgment to reach prop- erty of the corporation held by a third party.^" So a foreign corporation not doing business in the State, nor having any busi- ness or fiscal agency therein, nor an agency for the transfer of its stock, does not come within the prohibition of the statute.^' In most cases, however, the remedy of the judgment-creditor is by sequestration of the property of the corporation and the ap- pointment of a receiver. ^^ The New York Code of Civil Pro- cedure provides for the maintaining of these special proceedings upon any judgment of a court of record or other court entered upon the appearance of the defendant where such judgment when docketed in the county clerk's office was for twenty-five dollars.^* And this Code provides that such appearance in a court of record must be made by serving upon the plaintiff's "Importers' & T. Nat. Bank vs. Quackenbush, 143 N. Y. 567; Eocky Moimtain SsA. Bank vs. Bliss, 89 K Y. 338; Thomas vs. Merchants' Bank, 9 Paige (K Y.) 216. "Code Civ. Pro. (N. Y.) sees. 1812, 2463; Fitchburg Nat. Bank vs. Bush^^ick Chem. Works, 13 N. Y. Civ. Pro. Rep. 155. ^''McBride vs. Farmers' Branch Bank, 7 Abb. Pr. (N. Y.) 347; Nowber vs. New York, 7 Abb. Pr. (N. Y.) 248. "Logan vs. McOall Pub. Co., 140 N. Y. 447. 22Stephens vs. Paige, 54 N. Y. State Rep. 133 ; Fitchburg Nat. Bank vs. Bushwick Chem. Works, 13 N. Y. Civ. Pro. Rep. 135. 28Code Civ. Pro. (N. Y.) sec. 2458. Judgment Upon Substituted Sebvice. 35 attorney within twenty days after the service of the summons, a notice of appearance, or a copy of a demurrer, or of an answer, it also provides that a notice or pleading, so served, must be subscribed by the defendant's attorney, who must add to his signature his office address.^* While theire are many acts of the defendant deemed equivalent to the service of a notice of appearance,^^ yet when the plaintiff relies upon a simple no- tice of appearance, he has the burden, in most cases, of showing that the attorney serving the notice had authority to appear.^* In ~New York, in all courts, a voluntary general appearance of the defendant is equivalent to personal service of the summons upon him,^^and appearance is predicable of every party to an action who submits himself to the jurisdiction of the court, whether 'plaintiff or defendant. The plaintiff does this by com- mencing his action, and supplementary proceedings may be maintained by the defendant against the plaintiff where he re- covers a judgment in a court of record against him for either damages or costs for twenty-five dollars or more.^^ The term appearance as used in the ISTew York Code of Civil ^*Code Civ. Pro. (N. Y.) see. 421; Douglass vs. Haberstro, 58 How. Pr. (^. Y.) 276, 8 Abb. X. C. (N. Y.) 230; Cranch vs. Mulhane, 63 How. Pr. (JT. Y.) 79; Valentine vs. Myers Sanitary Depot, 36 Hun (N". Y.), 201. 25Krause vs. AveriU, 66 How. Pr. (N. Y.) 97, 4 W. Y. Civ. Pro. Eep. 410 ; Catlin vs. Moss, 1 5 IST. Y. Week. Dig. 14 ; Ger- man-American Banlc vs. Champlin, 11 IN'. Y. Civ. Pro. Rep. 452 ; Marks vs. Epstein, 13 ¥. Y. Civ. Pro. Rep. 293. 2«Vilas vs. Chase, 19 IST. Y. CW. Pro. Rep. 333 ; ISTordlinger vs. DeMier, 18 Iv^. Y. Civ. Pro. Rep. 47, 7 K Y. Supp. 463 ; Marks vs. Epstein, 13 N. Y. Civ. Pro. Rep. 293 ; Schiller vs. Maltbie, 11 JST. Y. Civ. Pro. Rep. 304. ^^Code Civ. Pro. (K Y.) sec. 424; Carpentier vs. Minturn, 65 Barb. 298 ; Ogdensburgh & L. C. R. R. Oo. vs. Vermont, etc. R. Co., 63 ]Sr. Y. 176; Diossy vs. West, 8 Daly (K Y.), 298; Wheelock vs. Lee, 74 N. Y. 495 ; Brett vs. Brown, 13 Abb. Pr. W. S. (K Y.) 295 ; Olcott vs. McLean, 73 N. Y. 223. 28Davis vs. Herrig, 65 How. Pr. (IST. Y.) 280; Davis vs. Jones, 8 K Y. Civ. Pro. Rep. +3. 36 Supplementary Prooeedings. Procedure in regard to supplementary proceedings is meant the voluntary submission to the jurisdiction of the court, m whatever form manifested.^® While as a general rule it is always sufficient personal service of a summons to deliver him a copy thereof, yet where he is an infant, under the age of four- teen years, it must not only be delivered to him, but a copy must also be delivered to his father, mother or guardian, or the person with whom he resides. So where the defendant is under a legally appointed committee a copy of the summons must not only be delivered to him, but a copy must also be delivered to his committee.^" It seems that supplemental proceedings may be maintained against an infant, the same as against a person of full age.^^ It may also be maintained against one who is by order of the court directed to pay the damage resulting from his refusal to complete his purchase at a judicial sale. Such order is docketed as a judgment and an execution may be issued there- on the same as upon any judgment for money.^^ It is neces- sary, however, in every case that the judgment when docketed in the clerk's office is for at least twenty-five dollars. It seems that any judgment, no matter for how small amount, if recov- ered in an action in a court of record, is, when duly docketed, a lien upon the judgment-debtor's real property and chattels real.^* But any judgment recovered in a court not of record, though duly docketed and made a judgment of a court of record, is not a lien on the judgment-debtor's real property unless it was when entered and when docketed for twenty-five dollars exclus- ive of costs.^* The statute provides that in case a judgment rendered in a justice's court or in any other inferior court of limited jurisdiction, not of record, is for a sitiq less than twenty-five dollars damages, the provisions of the stat- 29People vs. Cowan, 146 1ST. y. 348, 69 IST. Y. State Rep. 185. soCode Civ. Pro. (K Y.) sec. 42G. ^^Lederervs. Ehrenfekl, 49 How. Pr. (K Y.) 403. ^^Lydecker vs. Smith, 44 Ilim (N. Y.), 454. *3Code of Civ. Pro. CS.Y.) sec. 1251. »*Code Civ. Pro. (K Y.) sees. 3017, 3043. Okdbe Granting Costs. 37 ute relating to the satisfoction of an execution out of the judgment-debtor's real property are not applicable, and that the execution issued on such a judgment shall not contain any direction to satisfy the same out of the real property of the judgment-debtor. Such an execution is hardly such an execution as the courts hold to be sufficient upon which to predicate supplementary proceedings. The word "property" in the statute regulating these proceedings includes real as well as personal property.*^ This question would be free from all doubt except for the amendment of the statute made in 1897, which provides that the judgment shall not be less than twenty- hve dollars.'''® It seems that the statutes relating to supple- mentary proceedings, and to the sale of real and personal prop- erty on execution, are in pari materia, and must be considered together.*'^ AVe find therefore that a judg-ment-cr editor cannot, even at the present time, maintain either proceeding upon a judgment of a justice's court, or upon the judgment of any other court of inferior jurisdiction, not of record, where the judgment was not, when recovered and when docketed, for at least twenty-five dollars, exclusive of costs.* ^ Where the judgment is recovered in a court of record, it is im- material whether it was recovered for damages or costs.*® It is also immaterial, it seems, whether there is still due and unpaid upon the judgment when the application for the order is made, one dollar or five thousand.^" The provisions of the New 3^Code Civ. Pro. (K Y.) sec. 3343; Importers' & T. ITat. Bank vs. Quackenbush, 143 IST. Y. 567. *«Code Civ. Pro. (N. Y.) sec. 2458. *^Wing vs. Disse, 15 Hun (IST. Y.), 190; Brown vs. Daly, 24Hun (K Y.), 520. *8Importers' & T. Nat. Bank vs. Quackenbush, 143 N. Y. 567; Mason vs. Hackett, 35 Hun (K Y), 238. *9Davis vs. Jones, 8 IST. Y. Civ. Pro. Rep. 43 ; Matter of Sir- lett, 25 Misc. (N. Y.) 31 ; Mason vs. Hackett, 35 Hun (N. Y.), 238. *•> Johnson vs. Tuttle, 17 Abb. Pr. (N. Y.) 315. 88 SUFPI>EMENTARY PeOCEEUJ ACS. York Code of Civil Procedure in regard to transcripts of judg- ments of jvistice's courts filed in the county clerk's office are, it seems, made applicable to all courts of inferior jurisdiction not of record. *i By the amendment of the Code of Civil Procedure in 1897, these special proceedings are allowed to be maintained upon a judgment rendered upon the substituted service of the summons vipon the defendant.*,^ The statute in regard to such substituted service of siimmons provides that "where a summons is issued in any court of record, an order for the service thereof, upon a defendant residing within' the State, may be made by the court, or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affi- davit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the Summons upon the defendant, and that the place of his sojourn cannot be ascer- tained, or, if he is within the State, that he avoids service, so that personal service cannot be made.*^ The order must direct that the service of the summons be made, by leaving a copy thereof, and of the order, at the residence of the defendant, with a person of proper age, if u})on reasonable application admit- tance can be obtained and such a person found who will receive it; or, if admittance cannot be so obtained, nor such person foimd, by affixing the same to the outer door of the defendant's residence, and by depositing another copy thereof, properly in- "Code Civ. Pro. (N. Y.) sec. 3043. ■*2Code Civ. Pro. (K Y.) sec. 24-58. «Code Civ. Pro. (K Y.) see. 435; Ottman vs. Dalv, IT N. Y. Civ. Pro. Eep. 62 ; Burton vs. Burton, 45 Hun (IS".' Y.), 68, 9 N. Y. State Rep. 405 ; Ferris vs. Plummer, 46 Hun CN. Y.) 515 ; Clare vs. Lockard, 122 IST. Y. 263, 13 K Y. Civ. Pro.- Rep. 2Y8 ; McCarthy vs. McCarthy, 84 N. Y. 671, 35 Hoav. Pr. XK^Y.) 418; HosM^ell vs. Lincks, 87 N. Y. 637, 8 Dalv (N. Y.), 518; Carter vs. Young, 42 N. Y. Supr. Ct. 169; Gere vs. Gundlach, 57 Barb. 13; Collins vs. Campfield, 6 How. Pr. (K Y.) 519; Simpson vs. Burch, 4 Hun (W. Y.), 315; ISTade vs. Taggart, 4 Abb. IST. C. (N. Y.) 144. yUBSTlTUTJEi> 8eKVICE OF SuMMONS. 39 closed in a post-paid wrapper, addressed to him, at his place of residence, in the post-office in the place where he resides; or, upon proof being made that no such residence can be found, service of the summons may be made in such manner as the court may direct.''* The order, and the papers upon which it was granted, must be hied and the service made within ten days after the order i« granted; otherwise, the order becomes in- operative. On filing an affidavit showing service according to the order, the summons is deemed sei'ved, and the same proceed- ings may be taken thereupon, as if it had been served by pub- lication.''^ A judgment predicated upon such a service of the summons is not conclusive upon the defendant until one year after he has been served with written notice thereof, or where no such notice is given until seven years after the filing of the judgment-roll.*® There is no reason why supplementary pro- ceedings in New York cannot be instituted upon those judg- ments entered upon orders granted on petitions. It is provided by the rules of the supreme court that "orders granted on peti- tions, or relating thereto, shall refer to such petitions by the names and descriptions of the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Any order or judgment directing the payment of money, * * * if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed, as other judg- ments.''''^ While it is said that a judgment-creditor in a judg- ment taken in a Federal court located in the State cannot enforce **Code Civ. Pro. (K Y.) sec. 436. "Code Civ. Pro. (X. Y.) sec. 4.37; Smith vs. Fogarfv, 6 1^. Y. Oiv. Pro. Eep. 366. *8Code Civ. Pro. (X. Y.) sec. 445. ''^Rule 27 (X. Y.), S. C. ; Myers vs. Abbett, 20 App. Div. (]Sr. Y.) 390; Matter of Lexington Ave., 30 App. Div. (IST. Y.) 602, 157 K Y. 678 ; Barard vs. Hevdrich, 2 Abb. Pr. '^. S. (K Y.) 4S. 40 SuPn.EMBNTAKY Peocbedings. such judgment by supi)lementary proceedings/** yet the Federal courts have to, in most cases, follow the practice of the State courts in which they are located/^ In an action wherein the complaint demands judgment for a sum of money against two or more defendants, alleged to be jointly indebted upon contract, if the summons is served upon one or more, but not upon all of the defendants, the plaintiff may proceed against the defendant or defendants served.®" An exe- cution upon such judgment must be issued, in form, against all the defendants, but the attorney for the judgment-creditor must indorse thereupon a direction to the sheriff, containing the name of each defendant who was not summoned, and restricting the enforcement of the execution to the sole property of the defend- ant or defendants served with summons ; and the personal prop- erty owned^by him, jointly with the parties not served.^^ The plaintiff may under a proper complaint obtain a judgment against the joint-debtor or joint-debtors not served in the orig- inal action.®^ An execution may be issued upon the judgment, and it may be enforced by supplementary proceedings.'* A judgment of a justice's court against a railroad company, an express company or an insurance company may be entered upon the service of the summons upon almost any employee of such company found in the county of the justice.®* *8Tarbell vs. Griggs, 3 Paige (K T.), 207; Davis vs. Burns, 23 Hun (]Sr. Y.), 648. «Telles vs. Lynde, 47 Fed. Rep. 912. soCode Civ. Pro. (IST. Y.) sec. 1932. "Code Civ. Pro. (K Y.) sees. 1934, 1935. '^Decker vs. Kitchen, 26 Hun (IT. Y.), 173; Code Civ. Pro. (N. Y.) sees. 1937, 1938, 1939. s^Code Civ. Pro. (K Y.) sec. 2461. "Ct.de Civ. Pro. (IST. Y.) sees. 2880, 2881. Execution to Proper County. 41 CHAPTEE IV. EXECUTION. It seems to be the rule in all jurisdictions that the issuance of an execution, in some of the forms prescribed bv law, is a pre-requisite to the granting of an order for the examination of either the judgment-debtor or a third party in supplementary proceedings.-' And every application for an order of examina- ,tion must show that a legal execution has been issued in a bona fide attempt to reach the whole of the property of the debtor, not exempt from levy and sale by execution.- And such execu- tion, it seems, must be one that is when issued a lien upon, or which may be levied upon, both the real and personal property of the judgment-debtor.^ That is to say, to entitle a judgment- creditor to maintain the proceedings, he must show that an execution upon the judgment has been issued which is effectual to exhaust his legal remedy.* This seems to be the rule in New ^In re Remington, 7 Wis. 643 ; Balz vs. Benninghof, 5 Ind. App. 522 ; Klepsch vs. Donald, 18 Wash. 150 ; Green vs. Hau- ser, 18 ]Sr. Y. Civ. Pro. Rep. 358 ; Barber vs. Briscoe, 9 Mont. 341; Matter of Rowland, 21 App. Div. (JST. Y.) 172; McKin- ney vs. Snider, 116 Ind. 160 ; Sperling vs. Levy, 10 Abb. Pr. (K Y.) 428. ^Lederer vs. Ehrenfeld, 49 How. Pr. (N. Y.) 403; Pander vs. Tate, 111 Ind. 148 ; Pudney vs. Griffiths, 15 How. Pr. (N. Y.) 411, 6 Abb. Pr. (K Y.) 211; Importers' & T. Is^at. Bank vs. Quackenbush, 143 JST. Y. 5Y2; Burke vs. Burke, 27 Misc. (K Y.) 684; Fowler vs. Griffin, 83 Ind. 299. *In re Remington, 7 Wis. 643 ; Hackney vs. Arrington, 99 N". C. 112; Sackett vs. Newton, 10 How. Pr. (K Y.) 560; Zelie vs. Vroman, 22 Misc. (N. Y.) 486; Hutchinson vs. Symons, 67 K C. 166 ; Smith vs. Weeks, 60 Wis. 94; Canandaigua P. Nat. Bank vs. Martin, 15 N. Y. Civ. Pro. Rep. 324, 49 Hun (K Y.), 571. *Dandislel vs. Kronenberger, 39 Ind. 405 ; McKeithan vs. Walker, 66 N. C. 98. ^'2 Sui.'l'LM.MUNTAS.Y PeOCEEDINGS. York, iiotwithstajidirig the statutes purporting to extend the remedy of supplementary proceedings to cases where an execu- tion can be issued against personal property only. Thus, while the statute in New York attempts to annex to these proceedings a remedy for the collection of costs granted by an order without aiiy judgment, the court of last resort in that State expressly holds that the proceedings cannot be maintained unless it is shown that an execution has been issued which is effective to reach all the debtor's property.''^ The same principle applies to an execution issued upon a judgment rendered in justice's or other inferior court, not of record, for less than twenty-five dol- lars exclusive of costs, or where such judgment, when docketed in the county clerk's office, is for less than twenty-five dollars exclusive of costs.® The execiition must be issued in the form prescribed by the statute of the State. In New Y"^ork it must be issued out of a court of record. '^ Where it is issued upon a judgment rendered by a coiirt of a justice of the peace, it must be issued out of the county court, and by the coimty clerk of the county in which a transcript of the justice's judgment has been filed; or the clerk of the county where a transcript of the judg- ment from some other county clerk's office has been filed.^ In New York the execution imist be issued either (1) to the sheriff of the county w^here 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 (2) if the judg- ^Importers' & T. Nat. Bank vs. Qnackenbush, 143 N. Y"'. 572. «Mason vs. Hackett, 35 Hun (N. Y.), 238. 'Joyce vs. Spafford, 9 N. Y^. Civ. Pro. Rep. 342 ; Code Civ. Pro. (N. Y^.) sec. 2458 ; Green vs. Hauser, 18 N. Y. Civ. Pro. Rep. 358; Burke vs. Burke, 27 Misc. (N. Y^) 684. ^Gray vs. Lieben, 8 N. Y. Civ. Pro. Rep. 48. "Burke vs. Burke, 27 Misc. (N. Y.) 684; Batcheldor vs. Nugent, 23 N. Y. Civ. Pro. Rep. 179 ; Code Civ. Pro. (N. Y.) sec. 2458; Arnot vs. Wright, 55 Hun (N. Y.), 561; Zelie vs. Vroman, 22 Misc. (N. Y.) 486; Ewans vs. Burs-ess, 15 Abb. Pr. (N. Y.) 474; Schenck vs. Irwin, GO Hun (N. Y.), 363; Stevens vs. Page, 4 Misc. (N. Y.) 518. ExELUTiox TO Pkopeb Cotjntt. 43 ment-debtor is then a resident of the State, to the sheriff of the connty where he resides,'" or (3) if he is not then a resident of the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued- out of a court other than that in which the judgment was rendered, and in that case to the sheriff of the county where the transcript of the judgment is filed." It seems that the ])ar1y instituting the proceedings must show directly to what county the execution was issued, .and that a statement of the facts in the disjunctive will not be sufficient.'^ The statiite of New York provides that the execution must be issued to the county ^vhere the debtor has "at the time of the institution of the proceedings a place for the regular transaction of blisiness in person," or "where he then resides."'^ A tem- porary residence seems to be sufficient.'* The place of business of the debtor is where he is regularly employed.''' The first subdivision of the J^ew York statute on this subject is vague '"Matter of Rowland, 21 App. Div. (X. Y.) 1Y3 ; Bates vs. International Co., S4 Fed. Rep. 518; Beebe vs. Fridley, 16 Minn. 518; Zelie vs. Vroman, 22 Misc. (X. Y.) 486; Fowler vs. Griffin, 83 Ind. 297 ; Jesup vs. Jones, 32 How. Pr. (K Y.) 192 ; Dandistel vs. Kronenberger, 30 Ind. 406 ; Arnot vs. Wright, 55 Hun (X. Y.), 561; McEwen vs. Burgess, 15 Abb. Pr. (K. Y.) 474; Campbell vs. Foster, 16 How. Pr. (IST. Y.) 275; Code Civ. Pro. (X. Y.) sec. 2458. "Strybing vs. Hicks, 2 X. Y. L. Bui. 6 ; Green vs. Hauser, 18 X". Y. Civ. Pro. Rep. 358; Code Civ. Pro. (X. Y.) sec. 2458; Logan vs. McCall Pub. Co., 140 X. Y. 449, 23 X. Y. Civ. Pro. Rep. 250; Stevens vs. Page, 4 ilisc. (N. Y.) 517, Campbell vs. Foster, 16 How. Pr. (K Y.) 275; Folsom vs. Clark, 48 Ind. 415; Arnot vs. Wright, 55 Hun (K Y.), 561; Dandistel vs. Kronenberger, 39 Ind. 406 ; Schenck vs. Irwin, 60 Hun (N. Y.) 363. '^Zelie vs: Vroman, 22 Misc. (K Y.) 486. '^Code Civ, Pro. (K Y.) sec. 2458. '^Matter of Rowland, 21 App. Div. (N. Y.) 173; Schenck vs. Irwin, 60 Hun (X. Y.), 363, 21 'N. Y. Civ. Pro. Rep. 96. '^Burke vs. Burke, 27 Misc. (IST. Y.) 684; Batcheldor vs, Xugent, 23 X. Y. Civ. Pro. Rep. 179. 44: SuPPLEMBNTAEY PbOCBEDINQS. and uncertain when examined in the light of the decisions of the courts. It provides in substance that it is sufficient in any case that the execution has been issued to the sheriff of the county where the judgment debtor has, at the time of the insti- tution of the special proceedings, a place for the regular transac- tion of business in person.^" The literal reading of the statute authorizes the order against a judgment-debtor who resides in one county and has sufficient real estate in the county where he resides and where the judg- ment-roll is filed out of which to collect the judgment in full, if the execution is issued to another counly where he has a place for the regular transaction of business in person; and according to the literal read- ing of the statute, it matters not where the judgment- debtor resides, when the execution is issued, or when it is re- turned, or to what county the execution is issued, provided the judgment-debtor at the time the proceedings are instituted has a place for the regular transaction of business in person in the county to the sheriff of which the execution was issued. It matters not, if we are to follow the literal reading of the statute, that the judgment-debtor has in the county where he resides and where the judgment-roll is filed sufficient property to pay ten such judgm.ents. So, according to the literal reading of such statute, a judgment-creditor who has recovered and dock- eted a judgment in New York county and had an execution issued to the sheriff of JSTew York county, against a judgment- debtor who at the time resided in Albany county, could, if the judgment-debtor at any time within ten years thereof had a place for the regular transaction of business in person in New York county, maintain either special proceedings against him as a matter of right. But the issuing and return of such an execution is not a compliance with the conditions which the courts have always held to be indispensable in order to maintain these proceedings. It is the settled rule that unless the creditor has exhausted all his remedies at law, or in case he is not in a i«Code Civ. Pro. (N. Y.) sec. 2458. Execution to Pbopee County. 45 position to avail himself of all the ordinary remedies which courts of law give for the enforcement of judgments, the pro- ceedings cannot be maintained. The courts inform us that the creditor must pursue his remedy at law to every available extent before he can resort to these proceedings. It is not enough that forms are observed by the return of an execution which is not effective to reach all of the debtor's property. ^'^ The second sub- division of that section of the New York statute, which pre- scribes the county to which an execution must be issued in these proceedings, is obnoxiovis to the same objection. The use of the present tense of the verb in the phrase "is then a resi- dent" plainly shows that the reference is to the present residence of the judgmen1>debtor at the time the application for the order is made. The effect of the provision is that in order to give the judge jurisdiction to make the order for the examination of either the judgment-debtor or a third person, the creditor must show that the execution upon which the proceeding is based had been issued to the sheriff of the county where the judgment- debtor then, presently, resides.^® According to the literal read- ing of that and other sections of the jSTew York Code of Civil Procedure relating to these proceedings,^® a judgment-creditor who had recovered and docketed a judgment in ISTew York county, and had an execution issued to that county against the judgment-debtor who at the time resided in Albany county, could, at any time within ten years thereafter, maintain either special proceedings against him in case he had at the time of instituting the proceedings become a resident of New York county. But such proceedings are not a compliance with the condition which courts of equity have alwaj^s held to be indispensable in order to maintain supplementary proceedings. As the various "Importers' & T. Nat. Bank vs. Quackenbush, 143 N. Y, 5Y2, 62 K Y. State Eep. 781. ^^Schenck vs. Erwin, 38 N. Y. State Eep. 603, 60 Hun (N. Y.), 361, 15 N. Y. Supp. 55, 21 N. Y. Civ. Pro. Eep. 96. 19 Code Civ. Pro. (N. Y.) sees. 2435, 2436, 2441, 2458. 46 Supplementary Peoceedings. provisions of the Code authorizing these proceedings must be examined and considered together, it follows that the section in regard to the county to which the execution must be issued must be read with the section limiting the time for the granting of the order. If the execution is issued to the county where the judgment-debtor resides, and is returned unsatisfied on the first day of a month, and the debtor removes across the county line the next day, an execution will have to be issued to the county to which he has removed before the proceedings can be insti- tuted.^* So the judgment will have to be docketed in the latter county before the execution can be issued to that county.^ ^ If the judgment was rendered by a justice's court, the execution must be issued by a cjoiinty clerk of the latter county in the form prescribed by statute.^^ But where the transcript of the justice or a transcript from the county clerk's docket of any other county of the judgment is filed with the clerk of the court of common pleas of the city and county of New York, the execu- tion may be issued by the judgment creditor or his attorney.^* Where the sheriff is a party or interested, a coroner of the same county has all the power, and is subject to all the duties of a sheriff, in a cause to which the sheriff is not a party.^* A mandate in a civil action or special proceeding which must or may be executed by the coroners, or by a coroner, of a county, must be directed either to a particular coroner, or generally to the coroners of that county. ^ Where such a mandate is directed generally to the coroners of a county, or requires them to do an act, it may be executed, and a return thereto may be made and signed by one of them, but such an act or return does not affect 2«Code Civ. Pro. (N. Y.) sec. 2458; Schenck vs. Erwin, 60 Hun (ISr.Y.), 361. 2iDix vs. Briggs, 9 Paige (K Y.), 595. 22Code Civ. Pro. (N. Y.) sees. 136Y, 3017, 3043. 23McDonald vs. O'Flynn, 2 Daly (IST. Y.), 42 ; Brush vs. Lee, 34 How. Pr. (TSr. Y.) 283, 36 N". Y. 49. 2*Oode Civ. Pro. (N. Y.) sees. 1Y2, 1Y3 ; Carpenter vs. Stil- well, 11 ]Sr. Y. 61 ; Mills vs. Young, 23 Wend. (N. Y.) 314. Return of Exbcutiost. 47 the others. ^^ A sheriff or other officer to whom a mandate is directed and delivered, mnst execute the same according to the command thereof, and make a return thereon of his proceedings, under his hand. He may retiirn it by depositing the same in the post-office, properly inclosed in a post-paid wrajiper, ad- dressed to the clerk, at the place where his office is situated, un- less the officer making the return in the name of the sheriff re- sides in the place where the clerk's office is situated. ^^ He may return an execution at any time during the sixty days named therein, though he cannot be compelled to return it in less than tJiat time.^^ By the request of the judgment-creditor, the sheriff may hold the execution any reasonable leng-th of time, so far as the' judg- ment-debtor is concerned.^* The plaintiff may renew the exe- cution from time to time during the life of the judgment, and such renewal will be good as against tlie judgment-debtor. So far as the supplementary proceedings are concerned, it is imma- terial that the return was made before the expiration of sixty days.^® It seems, however, that the judgment-debtor may raise the question that he had property which the sheriff ought to have taken and sold for the purpose of satisfying the judgment.'* This question, if allowed to be raised in proceedings founded upon an execution issued upon an order for the payment of 2^Code Civ. Pro. (K Y.) sec. 173; Lansing vs. Clapp, 3 How. Pr. (IST. Y.) 238; Douglass vs. Warren, 58 id. 264. 2«Oode Civ. Rep. (K Y.) sec. 102; Wilson vs. Wright, 9 How. Pr. fW. Y.) 459 ; Jenkins vs. McGill, 4 id. 205. ^TPudney vs. Griffith, 6 Abb. Pr. (K Y.) 211, 15 How. Pr. (]Sr. Y.) 410; ISTagle vs. James, 7 Abb. Pr. (K Y.) 234; Spen- cer vs. Ouyler, 17 How. Pr. (K Y.) 157; Ansonie B. & C. Go. vs. Conner, 103 N. Y. 502, 11 IST. Y. Civ. Pro. Rep. 371, 3 K Y. State Rep. 682. 2«Crouse vs. Bailey, 10 K Y. Supp. 273. ^^Forbes vs. Waller, 25 IST. Y. 430 ; Sperling vs. Levy, 10 Abb. Pr. (K Y.) 426. "First l^Tat. Bank of Oanandaigua vs. Martin, 49 Hun (1^. Y.), 573. 48 SUPPLEMENTAEY PbOCEEDIHGS. costs, would, it seems, be fatal to the jurisdiction of the judge; so it would be fatal to the jurisdiction of the judge in proceed- ings founded upon an execution issued upon a justice's judg- ment which when docketed was for less than twenty-five dol- lars, exclusive of costs. When the return of the execu- tion unsatisfied is made the evidence upon which juris- diction depends by the statute, if the eixecution was not what the law requires, its issue and return would be a useless proceeding. The ground upon which the jurisdiction of the judge rests is, that the legal remedy of the creditor has been exhausted without satisfaction of the judg- ment, 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 property 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 proof s produced. It is the re- turn made by the sheriff on the execution that the precept is unpaid wholly or in part, and not the mere filing of it with the process in the county clerk's office, with which the court deals in determining whether the remedy at law has been exhausted.' -^ When the return is written out and signed by the sheriff, it is made, athough it has not then reached the files of the clerk's office. The fact that it is lost in the mails, and that it never reaches the clerk's office, will not affect its force as a return.'* The coiirt will not go behind the return except upon a clear case of fraud and upon a motion by the debtor.'' The court ■will amend either the execution or the return as to a mere informal- ity, and the judgment-debtor can take advantage of amendable 'iQlark vs. Dakin, 3 Barb. Ch. (IST. Y.) 36; Iselin vs. Hen- lein, 16 Abb. iNT. C. (IS^. Y.) 73 ; Cassidv vs. Meacham, 3 Paige (K Y.), 312. '^Ocean Nat. Bank vs. Olcott, 46 N. Y. 12, 19. "Wright vs. ISTostrand, 94 N. Y. 33 ; Tyler vs. Willis, 33 Barb. 327; Sperling vs. Lew, 10 Abb. Pr. (iST. Y.) 426; Marks vs. Spaulding, 3.5 Hun (JST. Y.), 478. ToiiM AKD Contents of Execution. 49" defects in any order or precept in no other way than upon a direct motion on notice. It seems that a variance betv.'een the amount of an execution and the judgment will not render the exec;ition void.^* An execution which claims too much is not void if any sum whatr ever be due upon the judgment.^^ The amount named in the execution may be amended so as to make it conform with the amount of the judgment.^'' An execution which gives unau- thorized directions as to its return is not void, as the law pre- scribes the sheriff's duty in making returns, and he is not con- tEoUed by such directions.^ ^ The court may amend errors in the description of the court and the place where the judgment- roll was iiled.^^ While the judgment-creditor may issue an execution during the pendency of supplementary proceedings founded upon the return of an execution unsatisfied,^® yet the levy upon property under such aecond execution suspends the special proceeding until the return of such second execution.*" The sam.e rule applies to supplemen Lary proceedings as to a creditor's bill, either under the old system or iinder the new.*^ It has been said that the fact that a second execution upon the judgment is in the sheriff's hands does not prevent the judg- ment-creditor from proceeding under these special proceedings upon the execution which has been i-eturned unsatisfied.*^ Not- withstanding many decisions to the contrary, we think that in order to institute either branch of supplementary proceedings *■* Jackson vs. Page, 4 Wend. (IST. Y.) 578; Boreland vs. Stewart, 4 id. 568. ''speck vs. Tiffanv, 2 K. Y. 451. 3«0akley vs. Becker, 2 Cow. (N. Y.) 454. "Hutchinson vs. Brand, 2 N. Y. 208. s^Abels vs. Westervelt, 15 Abb. Pr. (N. Y.) 230; and see Jlill vs. Haynes, 54 N. Y. 153. ^^ Gates vs. Young, 17 E". Y. Week. Dig. 551. -"•Steinhardt vs. Michalda, 15 ¥. Y. Civ. Pro. Eep. 323. "Salt vs. Lawson, 4^Sandf. Ch. (IST. Y.) 718 ; Lilliendahl vs. Tellerman, 11 How. Pr. (IST. Y.) 528. ^^Farqueherson vs. Kimball, IS Hoav. Pr. CN. Y.) 33. 4 Sfl SUPPLEMENTAEY PeOCEEDINGS. tinder the jSfew York Code of Civil Procedure there must have been issued and returned an execution against real property. It follows, therefore, that these proceedings cannot be insl^ituted after the judgment upon which they are founded has ceased to be a lien upon real proper,ty.*^ It seems to be necessary that the judgment should, be a lien upon the debtor's real property where the proceedings are founded upon an execution issued and not returned.** In all jurisdictions where the proceedings are founded upon the return of an execution, it must appear that the execution was of the kind to exhaust the judgment-creditor's remedies against both the real and personal property of the debtor.*^ But by the New York Code of Civil Procedure the lawmakers have attempted to change this rale indirectly in many ways without introducing any new proceedings.*® While in every case the return imsatisfied of a regular execution against the real and *3Evans vs. Hill, 18 Hun (I«r. Y.), 464; Dix vs. Briggs, 9 Paige (]Sr. Y.) 596; Baumler vs. Ackerman, 63 Hun (N. Y.), 40, 43 N. Y. State Eep. 8Y, IT IST. Y. Supp. 436 ; Eleventh Ward Bank vs. Heather, 21 Misc. (IST. Y.) 639; Moyer vs. Moyer, 7 App. Div. (ISr. Y.) 523; Mcholas vs. Hammerstein, 1 IST. Y. Law Rec. 237 ; In re Remington, 7 Wis. 643 ; Klepsch vs. Don- ald, 18 Wash. 150 ; Monolithic Drain, etc. Co. vs. Dewsnap, 25 !N^. Y. Civ. Pro. Eep. 382 ; Livingston vs. Cleveland, 5 How. Pr. (K Y.) 396; Code Eep. IST. S. (K Y.) 54; Saekett vs. Newton, 10 How. Pr. (N". Y.) 560; Webb vs. Osborne, 15 Daly (N. Y.), 406; Fenton vs. Flagg, 24 How. Pr. (¥. Y.) 499; Importers' & T. Nat. Bank vs. Quackenbush, 143 N. Y. 572 ; Spencer vs. Ctiyler, 9 Abb. Pr. (N. Y.) 382 ; Pudnev vs. Grif- fiths, 15 How. Pr. (N. Y.) 411 ; Canandaigua First Nat. Bank vs. Martin, 15 N. Y. Civ. Pro. Rep. 324. ** Jenkins vs. Lancaster, 15 Misc. (N. Y.) 444; Webb vs. Os- borne, 15 Daly (N. Y.), 406; Clark vs. Bergenthal, 52 Wis. 103. *«Dean vs. Tonnele, 1 N. Y. Civ. Pro. Eep. 33 ; In re Knaup, 144 Mo. 653; Klepsch vs. Donald, 18 Wash. 150; Seyfert vs. Edison, 47 N. J. L. 430 ; Eand vs. Eand, 78 N. C. 12 ; Mer chant's Nat. Bank vs. Braithwaite, 7 N. D. 369; Johnson vs. Tuttle, 17 Abb. Pr. fN. Y.) 316. *«rnde Civ. Pro. fN Y.) spc. 2432, snbd. n, and see. 2458; Execution Against Realty Necessaey. Si personal property of the judgment-debtor is prmia facie proof that the creditor has exhausted his legal remedies against the debtor's property,*'' the debtor may by a direct motion show that at the time the execution was issued the judgment was not a lien upon his real estate, or any other fact to show that the judgment- creditor had not exhausted his legal remedies.*® And while the execution may be returned by the sheriff unsatisfied the same day he receives it, and the creditor may proceed at once under an order for examination,*^ and the fact that the objection that the execution was returned at the request of the creditor cannot be raised collaterally while the sheriff's return is allowed to remain upon the files of the court,^" yet the judgment-debtor may, upon a proper motion for that purpose, obtain an order setting aside the sheriff's return and the supplementary proceed- ings, where he shows that he has been injured by collusion be- tween the creditor and the sherift' or by some wrongful act of the sheriff independent of any collusion between the creditor and sheriff.®^ In ISTew York and in almost every other State, supplementary proceedings may be instituted after the issue but see Max vs. Spaulding, 16 Abb. IsT. C. (N. Y.) 309 ; Silver man vs. Henant, 40 How. Pr. (IsT. Y.) 88; Muldowney vs. Comy, SDaly (K Y.), lYO. *'MeElwain vs. Willis, 9 Wend. {'E. Y.) 560; Fowler vs. Griffin, 83 Ind. 29Y; Eleventh Ward Bank vs. Heather, 21 Misc. (N. Y.) 539 ; Flint vs. Webb, 25 Minn. 264; High Rock Knitting Co. vs. Bronner, 18 Misc. CE. Y.) 632. *8Tvler vs. Whitney, 12 Abb. Pr. (IST. Y.) 465. *9Whit€head vs. Hellen, Y4 IST. C. 679 ; Tomlinson, etc. Mfg. Oo. vs. Shatto, 34 Fed. Rep. 381 ; Sperling vs. Levy, 10 Abb. Pr. (K Y.) 426; Jones vs. Porter, 6 How. Pr. (K Y.) 286; Barker vs. Dayton, 28 Wis. 367. ^"Sperling vs. Levy, 10 Abb. Pr. (K Y.) 426; Hart vs. Stearns, 4 IST. Y. Week. Dig. 540 ; High Rock Knitting Co. vs. Bronner, 18 Misc. (K Y.) 632; Forbes vs. Spaulding, 8 IST. Y. Civ. Pro. Rep. 136; Second Ward Bank vs. Upmann, 12 Wis. 49*9. "Eleventh Ward Bank vs. Heather, 22 Misc. (N. Y.) 87; Pudnev vs. Grifiiths, 15 How. Pr. (N. Y.) 411 ; Spencer vs. Cuyler, 17 id. 157. , ^ 52 • Sui'l'LEMENTAKY PROCEEDINGS. and before the return of an execution.^^ The creditor under such an order has all the rights that he would have under an order made after the return of an execution.^^ It seems that no judge, except a justice of the supreme court, can, as a general rule, grant an order of examination in these proceedings unless the execution was issued to his county.^* The court will, upon motion, set aside an order granted by a judge not having jurisdiction, or an order founded upon a void execution.^^ But not where the execution is amendable.^* So the court will, upon motion, stay supplementary proceedings founded upon an execution returned unsatisfied where it ap- pears that a second execution upon the judgment is in the sheriff's hands.^'' Though the creditor may issue a second exe- cution after the proceedings have been instituted, without dis- continuing the proceedings, while such second execution is in the sheriff's hands the proceedings are stayed.^* "^Code Civ. Pro. (S. Y.) sec. 2436; Green vs. Bookhart, 19 S. C. 471 ; Dillman vs. Dillman, 90 Ind. 585 ; Band vs. Band, 78 ]Sr. C. 12; Sackett vs. l^Tewton, 10 How. Pr. (N. T.) 560; Ponder vs. Tate, 111 Tnd. M8; Vegelahn vs. Smith, 95 K C. 256. 53Bank V. Sargent, 35 How. Pr. (X. Y.) 87; Code Civ. Pro. (X. Y.) sec. 2436. ^''Terry vs. Hultz, 39 TIow. Pr. (X. Y.) 169; Code Civ. Pro. (X. Y.) sec. 2434. ^^Baumler vs. Ackerman, 63 Hun (X. Y.), 40 ; Gray vs. Lie- ben, 8 X. Y. Civ. Pro. Bep. 48 ; Merritt vs. Judd, 18 X. Y. Civ. Pro. Bep. 160. ^•'Bareither vs. Brosche, 19 X. Y. Civ. Pro. Rep. 447 ; Wrighi vs. Xostrand, 94 X. Y. 47 ; Union Bank vs. Sargeant, 53 Barb. 422; High Rock Knitting Co. vs. Bronner, 18 Misc. (X. Y.) 631. "Lillienthal vs. Fellerman, 11 How. Pr. (X. Y.) 528 ; Stein- hardt vs. Michalda, 15 X. Y. Civ. Pro. Rep. 324 : Smith vs. Davis, 63 Hun (X. Y.), 102. s^Smith vs. Mahoney, 3 Daly (X. Y.), 287; Farqueharson vs. Kimball, 18 How. Pr. (X. Y.) 37; Vegelahn vs. Smith, 95 X. C. 258; Smith vs. Davis, 63 Hun (X.^Y.), 102; Levy vs. Kirby, 7 X. Y. Civ. Pro. Rep. 99 ; Steinhardt vs. Michalda, 15 id. 324. PiiooF Necessary j?or Ordee. 53 CHAPTER V. PROOF NECESSARY TO GIVE JUDGE JURISDICTION TO GRANT ORDER FOR EXAMINATION. WTiile it is said that an order of examination in supplemen- tary proceedings may be granted either upon an affidavit of some one having personal knowledge of the facts in regard to the docketing of the judgment, the issue and the return of the exe- cution, the residence or place of business of the debtor and other necessary facts, or upon other competent written evi- dence,-' yet it is difficult to se-e how a sufficient case could be made to give a judge jurisdiction to issue the order without an affidavit of some kind. The lawmakers of ISTew York have left it to the practitioner to make a case for an order by an affidavit in the nature of a complaint or to produce the facts before the judge to whom the application is made by "other competent written evidence." It may be possible that a judgmen1>creditor who is named as a party in the judgment, might be able to make a case where the application for the order is founded upon the fact of an execution returned unsatisfied, by presenting to the judge a certified copy of the judgment-roll, of the execution, and of the sherifF's return, a transcript of the docket, and the written admission of the debtor of the amount due on the judg- ment, and that he is a resident of the county to the sheriff of whom the execution was issued.^ It seems that it is not enough for the creditor in his affidavit to aver, in the words of the statute, that the execution was re- turned "partly unsatisfied" — the amount remaining unsatisfied should be specified. The amount may be so small that if it were ^Code Civ. Pro. (K Y.) sees. 2435, 2436, 2437, 2441 ; Leslie vs. Street, 19 Misc. (N. Y.) 667; Oollins vs. Angell, 72 Cal. 513. ^Douglass vs. Mainzer, 40 Hun (N". Y.), 75; Kennorv vs. Weed, 10 Abb. Pr. CN. Y.) 62. 54 SUPPI^EMENTARY PROCEEDINGS. stated, it would be unjust and oppressive to institute the pro- ceedings De minimis non curat lex.^ It is not enough for the creditor to show by a certified copy of an execution and by a cer- tified copy of the sheriff's return that an execution had been duly issued and returned, he must show that the execution waa issued to the sheriff of the county mentioned in the statute. He must certainly show in some way the residence of the debtor. The proper practice, therefore, is for the applicant to present to the judge an affidavit setting out all the facts as completely and as positively as in a creditor's bill or in a statutory creditor's action. This seenjs to be necessary in all jurisdictions.* With- out such proof of the facts by competent written evidence the judge acqiiires no jurisdiction over the subject-matter. An affidavit which states conclusions merely or leaves tlie facts to be deduced from presumptions will not sustain an order under either special 'proceeding. The facts and all the facts required by statute in an affidavit for an order must be alleged as posi- tively, as completely and as affirmatively as would be necessary in a complaint in a creditor's action to withstand a demurrer on the ground that it does not state facts sufficient to constitute a cause of action.^ When the facts are thus stated by the applicant he is entitled to the order as a matter of right.® The proceeding allowed in New York to collect a tax,'' is no part of the various provisions of the code authorizing these proceedings.^ These proceedings ^Douglass vs. Mainzer, 40 Hun (K". Y.),-75. *Seyfert vs. Edison, 47 N. J. L. 428 ; Ponder vs. Tate, 111 Ind. 148 ; Smith vs. Weeks, 60 Wis. 84 ; Magruder vs. Shilton, 98 N. C. 545; Collins vs. Angell, 72 Cal. 513; Webster vs. Sawens, 3 How. Pr. (N". Y.) 320; Matter of Gagnon, 32 App. Div. (]Sr. Y.) 22; Zelie vs. Vroraan, 22 Misc. (K Y.) 486; Joyce V. Spaford, 9 IST. Y. Civ. Pro. Rep. 345 ; McKinney vs. Snider, 116 Ind. 160. ^Sackett vs. Newton, 10 How. Pr. (IST. Y.) 560. BEleventh Ward Bank vs. H:eather, 22 Misc. (IST. Y.) 88; Davis vs. Jones, 8 IST. Y. Civ. Pro. Rep, 45. ^Laws 1881 (K Y.), ch. 640. sin re Conklin, 21 N. Y. Week. Dig. 529. Peoof IsTecessaby foe Oedee. 5^ were instituted to take the place of the f ormeo" bill in chancery, and they are all based upon the assumption that an execution against real and personal property is necessary, and that at the time of issuing the execution the creditor had a judgment which was a lien on the debtor's real estate and chattels real, which would make the return effective to exhaust all remedies at law. They were not framed to meet a case of a delinquent tax-payer, where the only lien is a tax warrant. The affidavit in proceed- ings supplementary to execution may be made by any one who could verify a complaint in a creditor's action founded upon the same facts. So the affidavit may be made by any one who could verify a complaint in any action brought by the applicant for the order. And where the affidavit is not made by the applicant personally it shoiild allege all the facts necessary to be stated in the verification of a pleading made by an agent or attorney. When the affidavit is made by an assignee of the judgment, or by the representative of the judgment creditor it must show as much, and it need not state more than would be necessary to be stated in a complaint in an action by such assignee or represen- tive, as the case may be, founded on the judgment.^ Where these proceedings are instituted and the affidavit therefor is made by an agent or attorney of the creditor it should allege that the affiant is an agent or attorney, as the case may be, of the creditor, and authorized to institute the proceedings.^" The affidavit of the creditor should be produced or the reason for its non-production should be alleged by the agent or attorney making the application for the order. ^^ Where the application is made after the return of execution unsatisfied the applicant need not, in E"ew York, state anything in relation to the debtor's "Collier vs. Eevere, 1 Hun C^. Y.) 61. "Kress vs. Morehead, 8 N. Y. State Eep. 258. "Hawes vs. Barr, 7 Eobt. (IST. Y.) 4,52; Brush vs. Lee, 1 Abb. Ct. App. Dec. (IST. Y.) 238; Brown vs. Walker, 28 IST. Y. State Rep. 36;. Walker vs. Donovan, 6 Daly (IST. Y.), 552; Westfall vs. Dunning, 50 IST. J. L. 459 ; Frederick vs. Decker, 18 How. Pr. (K Y.) 96. ;">*' Suppj.EMENTAKy Peoceedings. property. ^^ But in North Caj-olina the applicant must allege the want of known property of the debtor liable to execution.*' In all cases the applicaat must in some way describe the judg- ment.^* In New York the county judge, special county judge and special surrogate are authorized to sign almost any ex parte order/* no matter in what court the action in which the order is made is pending or the judgment taken. But in supplement- ary proceedings the jurisdiction of these judges is limited to granting orders where the execution is either issued out of the county court of their county or the execution is issued to their county. ^^ But the proceedings may in some cases be made re- turnable before a County Judge, Special County Judge or Special Surrogate even where he has not authority to issue the original order.* ^ Where the applicant in his affidavit makes the judgment^roll a part thereof, he need not state the amount of the judgment, if it appears by the judgment roll that the amount exceeds twenty- five dollars. So where tbe affidavit shows that the judgment was rendered in a court of record, and the amount due thereon, and it appears that it must have been rendered for twenty-five dol- lars, it is not necessaiy that it should be alleged that the judg- ment when docketed amounted to twenty-five dollars.** Where it appears that the judgment has been docketed it is not absolute- ly necessary that the application for the order shows the exact date of such docketing.*^ These special proceedings should not i^Anon. Code Eep. N. S. (N. Y.) 113. i^Code (N. C), sec. 488. **Kennedy vs. Weed, 10 Abb. Pr. (N. Y.) 62; Ackerly & Gerard Co. vs. Partz, 39 N. Y. State Rep. 17, 14 N. Y. Supp. 466, 22 N. Y. Civ. Pro. Eep. 382. "Code Civ. Pro. (K Y.) sees. 354, 435, 440, 472, 5.^f!, 606, 862, 872, 889. "Code Civ. Pro. (N. Y.) sec. 2434. *^Code Civ. Pro. (N. Y.) sec. 2434. *»Whitlock's Case, 1 Abb. Pr. (N. Y.) 320. '^Hawes vs. Barr, 7 Robt. (K Y.) 454; Matter of Hatfield, 17 App. Div. (N. Y.) 431. AriiDiviT Necessary. 57 be entitled in any action but as special proceedings. And the affidavit need not necessarily show in whose favor the judgment was rendered. But the affidavit must show in what court the judg-ment was rendered.^" And if it appear that it was not ren- dered in a county court, it must show, where the application for the order of examination is made to a county judge, a special county judge or a special surrogate, that it was docketed in the county where such judge resides.^ ^ Though tbe affidavit fails to show that the judgment was dock- eted before the execution was issued thereon, yet if it appear that the jiidgment was entered on the same day that the execu- tion was issued, it will be presumed that the jtidgment was duly docketed before the execution was issued.-^ It is better, how- ever, for the applicant to allege in his affidavit the time of the docketing of the judgment, and that afterwards (and on a day named) an execution upon such judgment was duly issued, &c.^^ The proof should show that the execution was issued against the property of the debtor, tliat it was directed to the proper sheriff and duly delivered to him; and where the pro- ceedings are founded on the return of the execution unsatisfied it must appear that it has been duly returned wholly or partly unsatisfied, as the case may be.^'* Each act should be alleged to have been duly performed. Thus it should be alleged in the affidavit that the jiidgment was duly talven, that the transcript 20Webster vs. Sawens, 3 How. Pr. IST. S. (N. Y.) 320; Kress vs. Morehead, 8 IST. Y. State Eep. 858. ^^Ludlow vs. Mead, 21 N. Y. State Rep. 435; Kennedy vs. Thorp, 2 Daly (K Y.), 258, 3 Abb. Pr. IST, S. (K Y.) 131. ^^Simms vs. Prier, 2 jST. Y. Law Bui. 97 ; Webster vs. Sawens, 3 How. Pr. K S. (N. Y.) 320. 23Hawes vs. Barr, 7 Robt. fW. Y.) 454. ^^Klepsch vs. Donald, 18 Wash. 150; Harper vs. Behagg, 14 Ind. App. 424; Henry vs. Furbish, 30 Misc. (IST. Y.) 822; Berles vs. Oomstock, 104 Mich. 129 ; Earle vs. Stokes, 5 S. C. 339 ; Cushman vs. Gephart, 97 Ind. 48 ; Ackerly & G. Co. vs. Partz, 20 IST. Y. Civ. Pro. Rep. 383 ; McKinnev vs. Snider, 116 Ind. 160. 58 SuPPiEMENTAEY PROCEEDINGS. was duly issued and duly filed, that the judgment was duly docketed, that the execution was duly issued, that the judgment roll was duly filed, that the execution was duly delivered to the sheriff, and that the execution was duly returned. When facts are alleged in that way the court will presume that everything was done in a proper matmer.^^ So wheca facta ai-e alleged in that manner the applicant need not give the date of the execution, nor the date of its return, nor allege that it was issued against property.^® It seems that the applicant must show that the execution was retiirned within ten years ;^^ and where it is alleged that it was returned partly unsatisfied it must appear how much is still unpaid upon the judgment^* But it seems that no one except the debtor can take advantage of such irregularity and that he can take advantage of it only by motion.^^ The applicant must show affirmatively that the execution was delivered either to the sheriff of the county where the debtor resides — if he is a resident of the state — or to the sheriff of the county where he has a place for the regular trans- action of business in person.^' Where it appears that the debtor is not a resident of the state the application for the order must show that the execution was delivered either to the county where the debtor has a place for the transaction of business in person, or to the sheriff of the 2BM' Arthur vs. Lansburgh, Code Rep. JS^. S. (IST. Y.) 211; Bean vs. Tonnele, 1 'N. Y. Civ. Pro. E«p. 33. 2«Batcheldor vs. Ts^ugent, 23 IST. Y. Civ. Pro. Eep. 178 ; M'Ar- thur vs. Lansburgh, Code Rep. "JST. S. (N. Y.) 211. ^■'Conyngham vs. Duffy, 125 N. Y. 200, 34 IST. Y. State Rep. 736 ; McGuire vs. Hudson, 41 IST. Y. State Rep. 295. ^^Douglass vs. Mainzer, 40 Hun (JST. Y..), 75. 29Baker vs. Bnlndage, 79 Hun (N. Y.), 383. ^"Zelie vs. Vroman, 22 Misc. (IST. Y.) 486 ; Vrendenbergh vs. Beaumont, 2 City Court (K Y.), 298; MattCT of Gagnon, 32 App. Div. (I^. Y.) 22; Henry vs. Furbush, 30 Misc. (K Y.) 822; Ponder vs. Tate, 111 Ind. ]48; Earle vs. Stokes, 5 S. C. 339; Campbell vs. Foster, 16 How. Pr. (K Y.) 275; Batehel- dorvs. Nugent, 23 IST. Y. Civ. Pro. Rep. 178. Ordeb Before Retuen of Exboution. 59 county where the judgmen1>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 judgment is filed.^^ It seems that the legis- lature intended to permit every class of judgmemt-debtors,' whether they reside within or without the State to be examined, where the execution has been issued to the county where such judgment-debtor has a place for the regular transaction of busi- ness in person.^^ Where the application is made after the exe- cution is issued to tlie sheriff of the proper county and before it is returned, the applicant, in order to give the judge jurisdic- tion, must go into details. He must not only show a judgment which is a lien on the debtor's real property, but he must show an execution in the sheriff's hands that is a lien upon the real and personal property of the debtor in the county where he re- sides. Tie must also show the amount unpaid on the judgment and execution. He should show that the sheriff has been unable with due diligence to find sufficient property of the judgment- debtor, which is subject to levy and sale under execution, to satisfy the judgment.^^ It is not sufilcient for the applicant to show that the judg- ment-debtor has property subject to levy and sale upon execu- tion which is tangible and can be reached by the sheriff, which upon a proper demand he has refused to apply upon the judg- ment. The ordinary remedy of the judgment-creditor as to such property is to sell it upon execution.** The applicant must "Code Civ. Pro. (K Y.) sec. 2458. ^^MeEwan vs. BurgeSs, 15 Abb. Pr. (N. Y.) 474; Batcheldor vs. Nugent, 23 IST. Y. Civ. Pro. Rep. 178 ; Brown vs. Gump, 59 How. Pr. (N. Y.) 507. ^^Hinsdale vs. Sinclair, 83 IST. C. 341 ; Matter of Albany First Nat. Bank, 52 App. Div. (N. Y.) 601, 65 N. Y. Supp. 439, 99 N. Y. State Eep. 439 ; Earl vs. Skiles, 93 Ind. 178. s^Moyer vs. Moyer, 7 App. Div. CN. Y.) 523, 40 K Y. Supp. 258 ; Bunn vs. Daly, 24 Hun (JST. Y.), 526 ; Sackett vs. Newton, 10 How. Pr. (N. Y.) 560; Balz vs. Benninghof, 5 Ind. App. 522 ; Farmers' &c. Nat. Bank vs. Bums, 109 N. 0. 108. cr editor, as the case may be; that an execution upon said judgment was, within the time allowed by law for the issuing of an execution, or after obtaining leave of the court, duly issued to the county Avhere the jiidgment-debtor has a place for the regular transaction of business in person or where he resides, or to the county "where the judgment-roll is filed, as the case may be; that such execution has been duly returned wholly or partly unsatisfied, as the case may be, and the said judgment remains wholly or partly unpaid, and that a person, copartnership, or corporation (naming him or it), as the case may be, has personal property of the judgment-debtor, naming it, not exempt from levy and sale by virtue of an execution ex- ceeding ten dollars in value, or is indebted to him in a sum exceeding ten doUars.^^ II. Where the application is founded upon the return of an execution unsatisfied upon an order for the payment of costs in a special proceeding, the applicant for ^^Importers' & T. Nat. Bank vs. Quackenbush, 143 IST. Y. 571, 62 K T. State Rep. 781; Conyngham vs. Duffy, 135 K Y. 200, 34 ]Sr. Y. State Rep. 736. 84 Siri'rl.EMKKTAKY Pjmjckedings. the order must show that on a certain day in certain proceedings (describing them) an order was made awarding certain costs (probably) amounting to more than twenty-five dollars to the applicant or to his testator, intestate or assignor, as the case may be; that on a certain day named, and within ten years, the said order was duly entered in the office of the clerk of a certain named county ; that on a day named a copy of said order was duly and personally served upon the party against whom ,the said costs were awarded and the payment of said costs was then and there duly demanded of said debtor; that more than ten days afterwards and within five years after the entry of said order, or within such time as the creditor was entitled by law to issue au execution upon said order, an execution in the form prescribed by the Code of Civil Procedure was duly issued and delivered to the sheriff of tbe eouuty where the debtor then re- sided, or to tiiie sheriff of the county where the debtor has a place for tlie regular ti-ansaction of business in person, or to the sheriff of the county where tbe order was filed, as the case may be, and that such execution has been duly returned wholly or partly unsatisfied, and the said costs remain wholly or partly unpaid, as the case may be ; that the applicant is the owner and entitled to tlie payment of the said sum of money; and that a person, or corporatitm named, as the case may be, has personal j)roperty, naming it, of the debtor, exceeding ten dollars in ■\'alue, or is indebted to him in a sum exceeding ten dollars. III. Where the application is made after the iss\ie and before the return of an execution, and tbe apjDlication is founded upon a judgment, the applicant must show to the satisfaction of the court that he is the owner of a judgment rendered for tAventy- five dollars or over against the defendant, in the manner pret- scribed by the Code of Civil Procedure, which was duly dock- eted in the proper county within ten years last past, that an execution was duly issued thereon to the proper county within the time allowed by the Code of Civil Procedure, that such exe- cution has not been returned and remains wholly or partially unpaid, as the case may be; that the judgment-debtor has cer- New PnocEDUiiE. 85 tain naiued property wkich is not exempt from levy and sale upon execution ; that at a time named a demand was duly made upon the judgment-debtor to apply such property in payment of such jtidgment, and such debtor refused to apply the said property or any part thereof, as requested. That a person or corporation (named), as the case may be, has property (named or described) of the judgment-debtor exceeding ten dollars in value or is indebted to him in a sum exceeding ten dollars. IV. Where the application is founded upon an execution issued upon an order for th.e payment of costs awarded in a special proceeding, and not returned unsatisfied, the applicant must show by affidavit or other competent written evidence that on a certain day named an order in certain named special proceed- ings was duly granted by a certain named court, and that said order granted a certain named amount of costs against the debtor (named) ; that said order was duly entered in the proper county clerk's office (named) on a day named and (probably) within ten years, that on a day named a copy of the order was duly and personally served upon the debtor, and that more than ten days after the service of such order, an execution against the personal property of the debtor was issued in due form and delivered to the sheriff of the county where the debtor has an office for the transaction of business in person, or where he re- sides, or where the order was filed, as the case may be; and that the applicant is the party to whom such costs were awarded or the assignee or legal representative of such party, that the execution has not been returned, and the said costs are wholly or partly unpaid, as the oase may be; and that the debtor has certan personal property (named) which is not exempt by law from levy and sale upon execution which he has upon demand refused to apply upon said debt, and that a certain person or corporation (named), as the case may be, has personal property (named or described) of the debtor, exceeding ten dollars in value, or is indebted to him in a smn exceeding ten dollars. When the application is for an order for the examination of a person or company alleged to have property of the debtor or 86 SUPPLEMENTAKY PbOCEEDIKGS. indebted to him, the greatest care is necessary in preparing the proof' to be presented to the judge. In some cases it is held that the courts will set aside an order which is granted solely upon facts stated upon information and belief, though the order is not absolutely void,^* while in other cases it is held that such proof is sufficient.''^ So while it has been often held to be in- sufficient in these cases for the applicant for the order to state in the alternative form that a person named has property of the judgment-debtor or is indebted to him,^* the contrary seems to be held in some cases.^^ It seems to be immaterial that the alleged debt from the debtor of the judgment-debtor is not due at the time the order is made."^ § 7. Ordee Awaedikg Costs as Basis foe Oedek of Exam- INATIOK". We have yet to meet the question whether or not the new provisions of the ISTew York Code of Civil Procedure which provides that "the party to whom costs are awarded in a special proceeding shall be entitled" to an order or warrant against the party against whom they are awarded after a return of an execution upon the order awarding the costs, or after the issue and before the return of such execution, or an order, made after the issuing and either before or after the return, of an execution s^Fleming vs. Tourgee, 40 K Y. State Eep. 705, 21 K Y. Civ. Pro. Eep. 297, 16 IST. Y. Supp. 705 ; Leonard vs. Bowman, 40 N. Y. State Rep. 135, 21 N. Y. Civ. Pro. Rep. 237, 15 IST. Y. Supp. 822; People vs. Jones, 1 Abb. N. C. (K 1^.) 172. «»Teft vs. Epstein, 17 IST. Y. Civ. Pro. Rep. 168 ; Grinnill vs. Sherman, 33 IS^. Y. State Rep. 27, 19 IST. Y.'Civ. Pro. Rep. 139, 11 IST. Y. Supp. 682. ^^CoUins vs. Beebe, 27 IST. Y. State Rep. 4 ; Lee vs. Heirberge, 1 Code Rep. (N. Y.) 38 ; Leonard vs. BoAvman, 40 N. Y. State Rep. 135, 21 N. Y. Civ. Pro. Rep. 237, 15 IST. Y. Supp. 822. B^Miller vs. Adams, 7 Lans. (N. Y.) 131; aff'd 52 K Y. 409. ''^Davis vs. Jones, 8 IST. Y. Civ. Pro. Rep. 43, 65 How. Pr. (K Y.) 290. New Peoceduke. 87 against a person wko has property of tbe party against whom the costs are aAvarded, or is indebted to him, will be allowed to be enforced under the present statutes regulating proceedings in regard to supplementary proceedings.^® It would seem from the present constmction of the statutes in regard to supplementary proceedings that the provisions lately annexed to those statutes, in regard to the enforcement of the payment of costs, will sooner or later be held to be repug- nant to the other provisions of the law, and not enforceable. If it is necessary for a party instituting these proceedings to show a compliance with the conditions which courts of equity have always held to be indispensable in order to maintain them, then they cannot be maintained for the enforcement of the pay- ment of costs granted by an order in a special preceding. We know that proceedings supplementary to execution are remedies in equity for the collection of the creditor's judgment, and were intended as a substitute for the creditor's bill as formerly used in chancery.** It must be constantly kept in mind that the proceedings for the collection of costs awarded by an order in a special proceeding are to be carried on under the statutes for the enforcement of the collection of a judgment. And it must also be constantly kept in mind that si^ch an order cannot be made a lien upon real property or chattels real ; nor can an execution against real property be issued thereon. In order to give an applicant for an order a standing under the statutes in regard to supplementary proceedings, he must, it seems, show that he has exhausted all his remedies at law.*^ And it seema that the proceedings cannot be had where the execution did not or does not, as the case may be, bind all the debtor's prop- erty. It would seem that the issue and return of such an exe- "^Code Civ. Pro. (]Sr. Y.) sec. 2432, subd. 3, and sees. 2435, 2436, 2437, 2441. ^"Lvneh vs. Johnson, 48 IST. Y. 27; Storm vs. Waddell, 2 Sandf. Ch. (N. Y.) 494; Barnes vs. Morgan, 3 Hun (N. Y.), 703 ; Faneuil Hall Nat. Bank vs. Bussing, 147 N. Y. 665. '^Austin vs. Pigueira, 7 Paige (N. Y.), 58. 88 SuprLEMENTAKY Pkoceedings. eution as is allowed to be issued upon an ordeir of this kind is not such exhausting of the creditor's remedy at law as the law requires. It now seems to be the rule that the proceedings can- not be maintained upon a judgment, after it haa ceased to be a lien upon real estate; at least it is not sufficient that an execu- tion which is only a lien upon personalty, has been issued or that it has been returned unsatisfied.*^ The law-makers, in making the provision for the collection of costs by these proceed- ings, could not have referred U) an order awarding costs in pro- ceedings for condemnation of real property,^* as in that case a judgment-roll is filed and a judgment duly docketed, as in an action ; and it has all the force and effect of a money judgment in an action in the Supreme Court ; and collection of the same may be enforced under the provisions of the Cbde of Civil Pro- cedure as a judgment.^* The law-makers must have intended the provisions as to costs to apply to that provision of the Code of Civil Procedure which provides that "Where costs of a motion or any other sum of money directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after the service of a copy of the order, BJi execution against the personal property only of the party- required to pay them, may be issued by any party or person, to whom the said costs or sum of money is made payable by said order, or in case permission of the court shall be first obtained, by any party or person having an interest in compelling pay- ment thereof, which execution shall be in the same form as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property."®^ This view is confirmed by the new provisions in r^ard to the time when the order may be granted after the return of an exe- ^^Importers & Traders' JS'^at. Bank vs. Quackenbush, 143 N. Y. 5Y1, 62 ISr. Y. State Eep. 781, 783. "^Code Civ. Pro. C^^- Y.) sees. 3372, 3373. "^Code Oiv. Pro. (N. Y.) sec. 3373. '"'Code Civ. Pro. (^. Y.) sec. 779. Mew Pjjoceduiie. 89 cution. That section jirovides that "At any time within tem years aftea- the return, wholly or partly unsatisfied, of an exe- cution against property, * * * or, in case of an order issued in the same manner so far as the provisions of said sec- tion can be applied in substance, the creditor upon such judg- ment or order, upon proof of the facts, by affidavit or other competent written evidence, is entitled to an order requiring the debtor under the judgment or order, to attend and be examiiind concerning his property at a time and place specified in the order. "®^ The first section of the Code relating to these proceedings provides that "the party to whom costs are awarded in a special proceeding * * * shall be entitled to the same remedies under this title, under the same circumstances, as near as may be, as a judgment-creditor. And for the purposes of this title, the party to whom such costs are awarded shall be deemed a judgmentcreditor, and the party against whom they are awarded shall be deemed a judgment-debtor.""^ As this provision is placed at the head of the title, and as this title includes the whole of the practice in relation to supplementary proceedings, it must refer to every provision in every section of the titla The proceedings provided by statute for the collection of taxes®' do not purport to be any form of supplementary proceedings allowed for the examination of delinquent taxpayers.®* The practice is prescribed by the law providing for the examination, and the decisions under that statute throw no light upon the question as to the right of the legislature to empower a judge to grant an order in supplementary proceedings upon an execu- tion issued upon an order. The objections that could be raised to the power of a judge to grant such order are almost infinite. ««Code Civ. Pro. (N. Y.) sec. 2435. «^Code Civ. Pro. (N. Y.) sec. 2432. «»Laws of 1881, ch. 640, sec. 1. «*Matter of Hartshorn, 63 Hun (IST. Y.), 536, 44 IST. Y. State Eep. 16, 17 IST. Y. Supp. 567 ; Inman vs. Coleman, 37 Hun (N'. Y.), 170; Matter of Conklin, 36 Hun (N. Y.), 588. 90 SUPPI-EMENTABY PbOOEEDINGS. But seemingly the most insuperable objection is that there is no limitation fixed when the creditor's remedy becomes barred by lapse of time. There is no time fixed for filing or entering the order awarding the costs ; there is no time fixed for issuing an execution upon the order ; there is no time fixed for the com- mencement of an action for the costs, if such an action is main- tainable. iNo creditor's action either under the statute or at common law can be maintained after the return of an execu- tion issued upon such an order.''" "When the various provisionB of the IvTew York Code of Civil Procedure in regard to supple- mentary proceedings are considered as a general scheme to take the place of the former bill in chancery, the conclusion is rea- sonable that they were not framed to meet a case based upon an execution issued upon an order, where at best the execution could reach only personal property.''^ ^"Code Civ. Pro. (N. Y.) sees. 1871, 1872, 1878, 1879 -Aus- tin vs. Kgueira, 7 Paige (S. Y.), 58; Adsit vs. Butler, 87 N. Y. 588 ; Barnes vs. Morgan, 3 Hun (K Y.), 703. '^Importers' & T. Nat. Bank vs. Quackenbush, 143 N". Y. 571. Obdek and Wareant foe Examination. 91 CHAPTEK VII. 0RD15R AND WARRANT FOR EXAMINATION. § 1. Preliminary Observations. § 2. The Order. § 3. Warrant in lieu of Order. § 4. Preliminary Examination on Return of Warrant. § 5. Service of Order or Warrant. § 1. Peeliminauy Obseevatioits. While the power of a judge to make an order for the examina- tion of certain do'naestic and certain foreign corporations as judgnient-creditors or parties against whom costs have beea awarded by an order, is taken away by the ITew York Code of Civil Procedure/ yet any corporation may be examined as to property of an individual judgment-debtor held by it, or as to money due from it to such a judgnaent-debtor.- Appearance by the party served with an order without objection is a waiver of any defect in the service;® and the order for examination is never affected by an order setting aside the service thereof.* But where the judge granting the order did not obtain juris- diction over the subjectrmatter, the party directed to appear does not waive the objection by appearance. In such case the objection can be raised at any time, even collaterally.® It is iCode Civ. Pro. (K Y.) sec. 2463. ^Code Civ. Pro. (N. Y.) sec. 2441 ; Lowber vs. Mayor, 5 Abb. Pr. (K Y.) 268, 1 id. 248; Wainright vs. Tiffing, 13 K Y. Civ. Pro. Rep. 222 ; Semmes vs. l^foel, 18 N. Y. Civ. Pro. Rep. 200. ^Methodist Book Concern vs. Hudson, 1 How. Pr. N". S. (N. Y.) 520 ; Dilling vs. Foster, 21 S. C. 334 ; Hart vs. Johnson, 43 Hun (K Y.), 507; Matter of Johns, 1 K Y. Law Bui. 75; ISTewell vs. Cutler, 19 Hun (IST. Y.), 76 ; Farqueharson vs. Kim- ball, 18 How. Pr. (E". Y.) 33; Htica City Bank vs. Buell, 17 How. Pr. (K Y.) 498, 9 Abb. Pr. (K Y.) 385. ^Frecker vs. Franco, 21 IST. Y. Civ. Pro. Rep. 35. "Hobartvs. Frost, 5 Duer (IST. Y.), 673; Schenck vs. Irwin, 60 Hun (K Y.), 361. 92 Supplementary Proceedings. otherwise, however, where the objection is that the judge haa not jurisdiction over the person of the party directed to appear. In short, any objection, except that the judge has no jurisdic- tion of the subject-matter, may be waived by a general appear- anca^ According to the New York statutes, where after the execution is issued or after it is returned, aa the case may be, the debtor removes from the county to which the execution was issued, no order can be granted until an execution has been issued to the county in which he resides or in which he has a place for the transaction of business in person at the time of granting the order. ^ But when the debtor resides in one county and has a place for the regular transaction of business in person in another, the order may be granted when an execution has been issued to either county.* The order for the examination of a third party must be founded upon an affidavit that an execution has been issued either to the sheriff of the county where the judgment-debtor has, at the time, a place for the regular transaction of business in person ; or if the execution-debtor is then a resident of the State, to the sheriff of the county where he resides; or, if he is not then a resident of tJie State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court other than that in which the judgment was ren- dered, and in that case, to the sheriff of the county where the transcript of the judgment is filed.® And as a county judge or a special county judge, ot a special surrogate, cannot grant an order except where the execution has been issued to his county,^" and as a party cannot be compelled to attend in any other county than that in which he resides or where he has an 'Jennings vs. Lancaster, 15 Misc. CN. Y.) 444; Sackett vs. Newton, 10 How. Pr. (N. Y.) 560. ^Code Civ. Pro. (N. Y.) sec. 2458; Schenck vs. Erwin, 38 N. Y. State Rep. 603. ^McEwan vs. Burgess, 25 How. Pr. (N. Y.) 92; Bowen vg, Gump, 59 id. 507. ^CodeCiv. Pro. (N. Y.) sees. 2441, 2458. "Code Civ. Pro. CTST. Y.) sec. 2434. OkDEK AMD \VaJ{J!AiS T i'OE ExAMliS ATION. 03 office for the regular transaction of business in person/^ and as an order cannot, ecxcetpt in case of the death or absence of such judges, be granted by a Supreme Court justice upon a judg- ment of the County Court, it follows that when a person ordered to be examined does not reside in the county where the judg- ment-debtor resides, the order must be made returnable either before a judge of the county where the person to be examined resides, or that the judge gTanting the order must attend in the county \\'here such person resides, or the order of examination must appoint a referee and direct the person to be examined to appear before him at a place in the county where he (the person to be examined) resides.-'^ While tlie New York statutes do not in express terms pre- scribe in what county a non-resident judgment-debtor, who has no office for the regular transaction of business in person within the State, can be compelled to attend and be examined, it must be infeiTcd from those statutes-'^ that such judgment-debtor can be compelled to attend only in the county where the order is served upon him.-'* Where a warrant is issued after an order for examination,^'' each proceeding is separate and independent and the vacating of the order will' not affect the proceedings under the warrant, neither will the vacating of the warrant affect the proceedings under the order.'*' Neither an order for examination nor a wan-ant will be set aside for failure of the creditor to show in his application that tlie judgment was dock- eted where obtained.^^ It has been said that tlie court has no power to direct a debtor or a third person to appear and be examined, even where the order is made upon denying a motion "Code Civ. Pro. (¥. Y.) sec. 2-159. '^Merrille vs. Allen, 46 Hun (N. Y.), 623; Shults vs. An- drews, 54 How. Pr. (N. Y.) 376; Peck vs. Baldwin, 58 Hun (K Y.), 308. '^Code Civ. Pro. (K Y.) sees. 2458, 2459. '^Wilson vs. Andrews, 9 Hun (N. Y.), 39. "Code Civ. Pro. CR. Y.) sec. 2438. ^ "Frost vs. Craig, 30 IST. Y. Civ. Pra Rep. 849. '^* "Ludlow vs. Mead, 21 K Y. State Eep. 435. 94 SUPPLBMBNTAEY PeOCEEI>INGS. made by the debtor to vacate the original order made by a judge for want of prosecution." A justice of the Supreme Court of any district can grant an order of examination when all the officers usually qualified to grant the order in the county to which the execution was issued are shown to be absent or dead or disqualified, though the execution was not issued out of the Supreme Court. ■^'* Except in New York City and Buffalo, a judgment of an inferior court docketed in the county clerk's office becomes a judgment of the County Court, and the execution thereon must be issued by the county clerk. The same rule applies where the transcript of such judgment from another county clerk's office is filed in the clerk's office of tlie county to the sheriff of which the execution must be issued.^" While the jurisdiction of the judge to whom an order for examination is made return- able continues until the proceedings are finished, yet where during such proceedings the judge goes out of office, or dies, they must be continiied before his successor.^* A' special pro- ceeding does not abate by any event, if the right to the relief sought in such special proceeding survives or continues.^^ In case of the death of a sole party to a special proceeding, if the right to the relief sought in such proceeding survives or con- tinues, the court must, upon a motion, allow or compel such proceeding to be continued by or against his representative or successor in interest.^^ Where a special proceeding is author- ized or directed by law to be brought by or in the name of a public officer, or by a receiver, or other trustee appointed by virtue of a statute, his death or removal does not abate the pro- i^Douglass V. Mainzer, 40 Hun (IST. Y.), 75. ^^Browning vs. Hayes, 1 IST. Y. Stat© Eep. 502 ; Baldwin vs. Perry, 25 Hun (N. Y.), 72 ; Peck vs. Baldwin, 34 IST. Y. State Eep. 511. ^oTerry vs. Hultz, 39 How. Pr. (IST. Y''.) 169. 2iHolstein vs. Rice, 24 How. Pr. (N. Y.) 135. 22Code Civ. Pro. (K Y.) sec. 755. 23Code Civ. Pro. (N. Y.) sec. 757; Worthmp vs. Smith. 81 'N. Y State Rep. 182, 58 IST. Y. Supr. Ct. 123. I Oedee and Waeeant I'OE Examination. 95 ceeding; but the same may be continued by his successor, who must upon his application, or that of a, party interested, be sub- stituted for that purpose by the order of the court or judge.^* Where the order is granted before the return of execution, if it is necessary for the applicant to show that a demand was made upon the debtor to apply his property in payment of the judg- ment, he must show that such demand was either made by the sheriff holding the execution, or that the sheriff was present when the demand was made ready to take the property.^^ The granting of an order for examination before the return of an execution is discretionary with the judge ;^® and the order of examination generally limits the examination to the property specified or mentioned in the affidavit or proof on which the order was issued. Under such an order the question is, what intangible property did the debtor own when the demand was made ? If it appears by the examination that he has property not exempt from levy and sale under execution, but which is not subject to levy, the judge will make an order for its delivery to the sheriff or to a receiver, and the creditor acquires the right to a preference to any other creditor of the debtor in the property.^^ § 2. The Okdee. Supplementary proceedings in ITew York are remedies in equity for the collection of a creditor's judgment, and were intended as a substitute for the creditor's bill, as formerly used in chancery. Each of the remedies is a special proceeding, and the papers ^^Code Civ. Pro. (K Y.) se^. 76G. ^^Stewart vs. Biddlecome, 2 N. Y. 103 ; Code Civ. Pro. (N". Y.) sec. 2447. 2«Eoger ^Vheel Co. vs. Feilding, 61 How. Pr. (K Y.) 437; Erickson vs. Quinn, 15 Abb. Pr. K S. (K Y.) 166 ; Knapp vs. Knapp, 46 How. Pr. (K Y.).143. "Duffy vs. Dawson, 19 K Y. Snpp. 186 ; Hall vs. Kellog^r, 12 K Y. 332; Code Civ. Pro. (K Y.) sec. 2449. 9t) iSuPl'LEAlENTAKY I-'rOCEEDINGS. are to be entitled as such, not as in the court in which judgment was rendered or into which it was docketed from an inferior court; and other persons than the parties to the judgment may be named as parties thereto.^* The order for examination takes the place of a summons in an action, and the sei'vice of the order takes the place of the commencement of a suit under the old chancery system.^^ These proceedings afte.r the service of tlie order of examination, are in all respects eqiiivalent to a new suit. They are placed under the control of the court out of which the execution was issued.^" The applicant for the order of examination must file an affidavit or other competent written evidence showing a compliance with all the require- ments of the statute giving a judge jurisdiction.'^' While the debtor is not entitled to notice of the application for an order for his examination, he may move upon the application, if he gives proper notice to the creditor, to set it aside on the ground that it does not show the statutory facts required to give the judge jurisdiction.*^ The judge to whom an application for an order of examina- tion, after return of execution unsatisfied, is presented must, when the applicant has shown the statutory facts, grant the order; and it seems that he has no power to vacate it on an ex farte application.^* The order for examination in jSTew York is a chamber order, and cannot be made by the court** 28Code Civ. Pro. (ISF. Y.) sec. 2433; Milliken vs. Thompson, 8 N". Y. State Rep. 106, 12 N. Y. Civ. Pro. Eep. 168. 2»Importers' & T. ]S"at. Bank vs. Quackenbush, 143 W. Y. 571; Driggs vs. Williams, 15 Abb. Pr. (N". Y.) 478. soCode Civ. Pro. (W. Y.) sec. 2433. "Zelie vs. Vroman, 22 Misc. {^. Y.) 486; Courtois vs. Har- rison, 12 How. Pr. (K Y.) 360; Code Civ. Pro. (N. Y.) sec. 2435, 2436, 2437, 2441 ; Hulsaver vs. Wiles. 11 How. Pr. (N. Y.) 446; Goodall vs. Demarest, 2 Hilt. (N". Y.) 534. '^Gibson vs. Haggerty, 37 IS^. Y. 55ri ; Seyfert vs. Edison, 47 N. J. L. 431 ; Sinnott vs. Hempstead First Xat Bank, 34 App. Div. (K Y.) 161. **Code Civ. Pro. ("NT. Y.) sees. 2435, 2436. **Douglass vs. Mainzer, 40 Hun (N. Y.), 76. Okder and Wakeant koe Examination. 97 The ordeir in either special proceedings may be instituted before a judge of the court out of which, or the county judge, or the special county judge, or the special surrogate, of the county to which, the execution was issued; and where it was issued to the city and county of New York from a court of record other than the City Court of that city, before a justice of the Supreme Court of that county. Where the execution was issued out of any court other than the Supreme Court the proceedings can be instituted before a justice of the Supreme Court living out of the district embracing the county to which the execution was issued, upon proof by affidavit that each of the judges ordinarily qualified to grant the order living in the district is absent from the county, or for any reason unable or disqualified to act. If in such case the order is granted by a justice residing without the district embracing the coimty to which the execution was issued, the order or warrant, as the case may be, issued by such Supreme Court justice must be made returnable to a justice of the Supreme Court residing in that district, or the county judge, or the special county judge or special surrogate of that or an adjoining countj-. Where the judgment upon which the execution was issued was recovered in a District Coiirt of the city of jSTew York, either special proceeding must be instituted before a justice of the City Court of the city of ISTew York.'^^ In the city and county of New York and in the county of Kings, where these proceedings are instituted before a judge of a court of record, they may be continued from time to time before one or more other judges of the same court with like effect, as if they had been instituted or commenced before the judge who last hears the same.^^ In case of the death, sickness, resignation, removal from ''^Code Civ. Pro. (N". Y.) sec. 2434; Ackerly vs. Partz, 20 N. Y. Civ. Pro. Rep. 382 ; Browning vs. Hayes, 11 id. 223 ; Peck vs. Baldwin, 19 id. 403. seCode Civ. Pro. (K Y.) sees. 26, 2462; Dresser vs. Van Pelt, 15 How. Pr. (N. Y.) 1!}. 7 98 JSuPl-LEMESTAJiY PiiOCBEDIJSGti. office, abseuce from the county or other disability of the officer before whom these proceedings are pending or have been insti- tuted, where no express provision is made by law for the con- tinuance thereof, they may be continued before the judge's successor or any other judge residing in the sanie county, before whom they might have been originally institiited, or made return- able; or, if there is no such judge in the same county, before a judge of an adjoining county, who would originally have had jurisdiction of the subjec1>matter, if it had occurred or existed in the latter county.^ ^ These special proceedings instituted before a judge of the Superior Court of BufFalo, or the City Court of Brooklyn, or before a judge of either of those courts, could, while such courts were in existence, have been continued "from time to time, before one or more other judges of the same court as prescribed' by law, with respect to like proceedings before a judge of a court of record in tlie city of !N'ew York.** An order in these proceedings requiring a person to attend and be examined must require him so to attend and be examined either before the judge to whom the order is returnable, or • before a referee designated therein.*^ Where the 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. While these proceedings may, in some cases, be instituted at any time after a proper execution has been issued to the proper county, yet the creditor is entitled to an order for such examina- tion as a matter of right only after such execution has been dvly retiirned wholly or partly unsatisfied.*'* The creditor, as a gen- "Code Civ. Pro. (N". Y.) sees. 52, 2462. 38Code Civ. Pro. (N. Y.) sees. 2Y9, 2462; In re Conklin, 57 1ST. Y. Supp. 844. •'^Code Civ. Pro. (jST. Y.) sec. 2442; Bates vs. International Co., 84 Fed. Pep. 518 ; Pardee vs. Tilton, 58 How. Pr. (IST. Y.) 476; Sparks vs. Davis, 25 S. C. 381; Marriage vs. Woodruff, 77 Iowa, 293; Gildersleeve vs. Lester, 69 Hun (K Y.), 345; Shults vs. Andrews, 54 How. Pr. (N. Y.) 376. ^''Lins'sweiler vs. l.incr^wpiler, IS IST. Y Civ. Pro. Pep. 81 ; Oebbe and Waeeant for Examination. 99 eral rule, is entitled to an order before tlie return of an execu- tion only where ke shows that the (Jebtor has some particular property not capable of being reached by execution, such as choses in action, or same property subject to levy and sale, but which the sheriff is unable to get possession of.''^ While, as we have seen, the order in these proceedings in Xew York is not usually entitled in the action in which the judgment was ren- dered, yet it may be so entitled without affecting its efficiency.*^ Though the order may be directed to the debtor or person named therein, it need not be directed to any person. It must direct the debtor or third person against whom it is obtained to appear before some judge or referee.*^ And where the order is made after the return of an excution, unsatisfied, it must direct him to appear at a time and place specified in the order.** The order usually recites every jurisdictional fact on which it In re Knapp, 144 Mo. 653 ; Adams vs. Hackett, 7 Cal. 201 ; Berles vs. Comstock, 104 Mich. 129; McDaniel vs. Stokes, 19 S. C. 60 ; Vegelahn vs. Smith, 95 jS". C. 256 ; Baker vs. State, 109 Ind. 57 ; Forbes vs. Spaulding, 52 K Y. Supr. Ct. 167 ; Walker vs. Donovan, 53 How. Pr. (N. Y.) 4; Flint vs. AVebb, 25 Minn. 264; Irwin vs. Chambers, 40 N. Y. Supr. Ct. 434; Shults vs. Andrews, 54 How. Pr. (IST. Y.) 276. *iSandford vs. Carr, 2 Abb. Pr. (N. Y.) 462; Smith vs. Weeks, 60 Wis. 94; Sperling vs. Levy, 10 Abb. Pr. (K Y.) 426 ; Edgarton vs. llanna, 11 Ohio St. 323 ; Seeley vs. Garrison, 10 Abb. Pr. (N". Y.) 462; Magnider vs. Shelton, 108 IST. C. 548; Weiller vs. Lawrence, 81 IST. C. 65. *2Ackley & G. Co. vs. Parts, 20 N. Y. Civ. Pro. Rep. 382 ; Milliken vs. Thompson, 54 JS^. Y. Supr. Ct. 393, 12 IST. Y. Civ. Pro. Eep. 168. *3Heckman vs. Bach, 20 Abb. N. C. (IST. Y.) 401; Gould vs. Dodge, 30 Wis. 621; Bmen vs. Nickels, 30 App. Div. (IST. Y.) 396; Eice vs. Jones, 103 N. C. 226; Baker vs. State, 109 Ind. 57 ; Fleming vs. Tourgee, 21 T^. Y. Civ. Pro. Pep. 297 ; Brett vs. Browne, 1 Abb. Pr. IST. S. (IT. Y.) 355; Menage vs. Lust- field, 30 Minn. 487; Sparks vs. Davis, 25 S. C. 12; Howell vs. McDowell, 47 E". J. L. 360 ; Weaver vs. Bridges, 85 Hun (N. Y.) 505. **Code'civ. Pro. (K Y.) sec. 2435. 100 SuprLJiMENTAKY Peoceedings. is founded, though it is not necessary that it should do so, when it is served with the affidavit upon which it is granted, and such affidavit contains the necessary jurisdictional facts. ""^ While it has been said that an order returnable before another judge or an order of reference to take the examination of the judg- ment-debtor, or third person, as the case may be, need not neces- sarily name the time and place for his appearance, and that it would be sufficient if it directs the party to appear at such times and places as may be duly appointed by the judge or referee, as the case may be, before whom the examination is to be had ; and that in such cases the party directed to appear will be guilty of contempt of court if he fails to obey a summons for his ap- pearance issued by the judge or referee, as the case may be, which is duly served upon him,*^ yet it would seem from the statute that every order of examination that fails to specify the time and place where the debtor or other person to be examined is directed to appear is fatally defective.*^ Where the order is returnable before the judge granting it, it must direct the party to appear at a time and place therein mentioned.** And it has been said that every order that fails to state the place where the debtor or person directed to appear is to attend is fatally defective.*^ While the statutes of New York provide that if the judgment-debtor or other person required to attend and be examined, or the officer of a corporation required to af> tend in its behalf, is at the time of the service of the order upon ''^Rugg vs. Spencer, 59 Barb. 397 ; Day vs. Brosman, 6 Abb. TsT. C. (W. Y.) 312; People vs. Oliver, 66 Barb. 575. ^''Redmaji vs. Goldsmith, 2 IT. Y. Law Bui. 19. *^Shults vs. Andrews, 54 How. Pr. (JST. Y.) 376. *SBarrington vs. Watkins, 36 App. Div. (JST. Y.) 31; Clarke vs. Nebraska JSTat. Bank, 57 JSTeb. 314; Foster vs. Prince, 8 Abb. Pr. (]Sr. Y.) 407 ; Arctic F. Ins. Co. vs. Hicks, 7 Abb. Pr. (]Sr. Y.) 204; Jesup vs. Jones, 32 How. Pr. (K Y.) 192; Bruen vs. Nickels, 30 App. Div. (K Y.) 396. «Kelty vs. Yerby, 31 How. Pr. (N. Y.) 95; and see Bar- rington vs. Watson, 36 App. Div. (N. Y.) 31; Code Civ. Pro. (N. Y.) sec. 2435. Oeder and Warrant h'oe Examination. 101 him, a resideoit of the State, or then has an office, within the Stat© for the regular transaction of business in person, he cannot be compelled to attend pursuant to the order of examination or to any adjouminejit at a place without the county wherein his residence or place of business is situated,^" and while the order, according to the above statutes, must direct the person to be examined to appear in some place in the county where he resides or where he has a place for the regular transaction of business in person,'-' yet some provisions of the statutes seem to be incon- sistent with the provisions of the same statutes in prescribing before what judges the proceedings may be instituted,^^ and what judges the person to be examined must be directed to attend before.®* If a Supreme Court justice can make the order re- turnable before a judge of a county adjoining that in which the judgmentdebtor or person ordered to appear resides, or has a place for the regular transaction of business in person, then he must direct such debtor or other person to attend before such judga®* But by the terms of the statute the judge granting the order must fix the place for such attendance in the county where the party directed to attend resides or has a place of busi- ness.®" The judge granting the order must fix the time, aa well as the place, for stich attendance.®* The same rule applies when the debtor does not reside in the State and has no place for the regular transaction of business in '"Code Civ. Pro. (N". Y.) sec. 2459; Foster vs. Wilkinson, 37 Hun CN. Y.), 242 ; Merrill vs. Alin, 46 Hun (T^T. Y.), 623, 626 ; Brown vs. Gump, .59 How. Pr. (IsT. Y. ) 507. '^Graves vs. Scoville, 12 IST. Y. Civ. Pro. Rep. 165; Gilder- sleeve vs. Lester, 69 Hun (N". Y.), 344; Crnuse vs. Wheeler, 33 How. Pr. (N. Y.) 345 ; Bingham vs. Disbrow, 14 Abb. Pr. (IST. Y.) 256; Jesup vs. Jones, 32 How. Pr. (IST. Y.) 192; Anway vs. Davis, 9 Hun (N. Y.), 297. ®2Code Civ. Pro. CK y.) sec. 2434. s^Code Civ. Pro. (N. Y.) sec. 2442. ®*Code Civ. Pro. (N. Y.) sees. 2434, 2442. ®®Co"9Code riv. Pro. (N. Y.) sees. 2434, 2437. 110 Supplementary Proceedings. was issued, and that it was issued within five years after the judgment was docketed, or pursuant to an order of the conrt.^*' It must also recite either that the judgment was entered by con- sent or upon confession, or upon some appearance by the judg- ment-debtor, or upon the personal sorrice of the summons upon the debtor, or by a substituted service of the summons upon him in the manner prescribed by law.^^^ It must also recite that the execution was issued to the proppr county ; that there is dan- ger that the judgment-debtor will leave the State, ar conceal himself, as the case may be, and that there is reason to believe that he has property, which he unjustly refuses to apply to the . payment of the judgment.^^^ The warrant must direct the sheriff of any county where the judgmen1>debtor may be found, to arrest him aiid bring him before the judge granting the order, or, if the judge does not reside within the judicial district embracing the county to which the execution was issued, the warrant must direct the sheriff to talce the debtor before a judge of the district where the debtor resides -and to a place in the county where the debtor resides or has a place for the trans- action of business in person. ^^* The sheriff when he arrests a judgmentdebtor by virtue of a warrant must deliver to him a copy of the warrant and of the affidavit upon which it was granted. •''* § 4. Preeiminart Examination. When a debtor is arrested upon a warrant and brought before a judge he is entitled to a preliminary examination on which the creditor must show to the satisfaction of ^ the judge that such debtor has property which he unjustly refuses to apply to the payment of the judgment or costs, as the case may be, and that there is danger that such debtdr will leave the State or conceal ""Hutson vs. Weld, 38 K T. 142. "^Code Civ. Pro. (K Y.) sec. 2458. "^Code Civ. Pro. (IST. T.) sec. 2437. "^Code Civ. Pro. fK T.) sees. 2434, 2437. "*Code Civ. Pro. (IST. Y.) sec. 2453. Oedee and Wakeant foe Examinatioh^. Ill himsedf. The parties may produce such witnesses as they may deem necessary ; and if the creditor upon such preliminary ex- amination fails to make a case to the satisfaction of the judge, the debtor must be discharged from arrest. ^^^ If the judge is satisfied that the debtor has personal property not exempt from levy and sale on execution, that he has unjustly refused to apply it in payment of the judgment or costs, as the case may be, and that there is danger that he will leave the State or conceal him- self, he may make an order requiring him to give an undertaking with one or more sureties in a sum fixed and within a time specified in the order, to the effect that he will from time to time, as the judge directs, attend before that judge or before a referee appointed or to be appointed in the proceedings ; and that he will not until discharged from arrest by virtue of the warrant, dispose of any of his property which is not exempt from seizure and sale by virtue of an execution. 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, except that the judge may direct the sheriff to produce him from time to time, as required in the course of the proceed- ings.-^^® Where the debtor is held upon preliminary examina- tion, the proceedings are the same as an examination upon an order. ^^'^ Where the debtor fails to give the undertaking when ordered to do so by the judge, the sheriff is liable for his safe- keeping the same as in cases where a debtor is arrested in a civil action. ''^^ But the limitation of the time of imprisonment upon final process or mandate does not apply to an arrest upon a warrant in supplementary proceedings. ■'■^' The debtor must "^Code Civ. Pro. (K Y.) sec. 2440. "«Kaufman vs. Thrasher, 10 Hun (N. Y.), 438, 4 K Y. Week. Dig. 312. "^Code Civ. Pro. (K Y.) sees. 2437, 2438, 2440. "8Code Civ. Pro. (N. Y.) sec. 110. "»Levy vs. Soloman, 105 IS^". Y. 529 ; :NTew York & H. R. R. Co. vs. Shepherd, 5 IST. Y. State Rep. 480, 12 IST. Y. Civ. Pro. Rep. 126; In re Coyne, 13 IST. Y, Supp. 79Y. ri2 iSui-'PLKMENT.VliY Pk,0C1;E])INGS. be safely kept at his own expense until discharged according to law.^-*' But if he makes oath before the sheriff, jailor, or deputy-sheriff that he is unable to support himself during his imprisonment, his support is a county charge. ■'^^ § 5. Service of Ordee for Examination. These proceedings are special proceedings commenced by the service of an order for examination.-'^^ Like a summons, the order cannot, in New Tork, be regularly served upon a non- resident while attending a trial of an action as a witness in that State. ^^^ It is different as to the service of an order upon a resident who is attending court as a witness.-'^* The order must be served a sufficient length of time before the return day to give the party served time to appear at the place where it is made returnable. ■'^^ The Superior Court of the city of New York, the Court of Common Pleas for the city and county of New York, the S\iperior Court of Buffalo, and the City Court of Brooklyn were abolished in 1892 and the jurisdiction exer- cised by those several courts was vested in the Supreme Court ■'^^ The County Courts were given additional jurisdiction. ■'^'^ No inferior local court can be made a court of record.-'^* The juris- diction of a local court must be exercised within the locality fixed by law, and it has been held tliat its process cannot be executed outside of it.-'^® An order made by a Supreme Court i^oCode Civ. Pro. (N. Y.) sec. 110. i"Code Civ. Pro. (N. Y.) sees. 112, 113, 114, 115, 116, 117. '^^PeO'ple vs. Warner, 51 Hun (N. Y.), 56 ; Dorsey vs. Cum- mings, 48 Hun (N. Y.), 78. ^^^Tribune Assoc, vs. Sleeman, 12 N. Y. Oiv. Pro. Eep. 20. i24Fletcher vs. Franco, 21 N. Y. Civ. Pro. Rep. 35. i25Henderson vs. Stone, 40 How. Pr. (N. Y.) 383. i26Const. (N. Y.) sec. 5, Art. VI. 12^ Const. (N. Y.), sec. 14, Art. VI. ^2sConst. (N. Y.) sec. 18, Art. VI. i29Ceraty vs. Reed, 78 N. Y. 65 ; Baird vs. Heifer, 12 App. Div. (N. Y.) 23; Pierson v. Fries, 3 id. 418; Ziegler vs. Cor- win, 12 id. 60. Oedeb and Waeeant poe Examination. 113 justice or by a county judge, special county judge or special surrogate may be served in any county of the State/^" The New York Code of Civil Procedure 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 of the State for service or execution, and to enforce obedience thereto with like power and authority as the Supreme Court. ^^^ It also provides that the county judge — which includes the special county judge, and special surrogate when acting at chambers — possesses the same power and author- ity in a special proceeding out of court which a justice of the Supreme Court possesses in a like special proceeding.-'^- It seems that the power of the recorders of the cities of Oswego, Troy, Albany and other places to grant an order in supplement- ary proceedings was taken away by the New York Constitu- tion.-'^* § 6. How Sbeved. In New York an injunction order or an order for examina- tion in either special proceedings must be served by exhibiting to the party named therein and against whoiUi it is made, the original order, and (probably) the signature of the judge mak- ing it, and by delivering to and leaving with such party a copy thereof and also a copy of the affidavit upon which the order was made.-'** Where the person is not designated in the order upon whom it is to be served, the service must be made upon a domestic business corporation by exhibiting the original order, under the hand of the judge making it, to the president or other head of the corporation, the secretary or clerk to the corpora- tion, the cashier, the treasurer, or a director or managing agent, isoConst. (K Y.) sec. 16, Art.. VI; Code Civ. Pro. (N. Y.) sees. 347, 349. i"Code Civ. Pro. (N. Y.) sec. 347. i^^Code Civ. Pro. (K Y.) sec. 349. i**Const. (N. Y.) sec. 18, Art. VI. i**Code Civ. Pro. (N. Y.) sec. 2452. 114 SuPL-LEMEiSiTAEY PuOCEEDIMGS. and by delivering to and leaving with such person a copy thereof and of the affidavit upon which it was made.^^® Where the judge granting the order designates some officer of the corpora- tion upon which it is to be served, it must be served in like man- ner upon him.^^® Service upon the city of New York is suffi- cient, if made upon the mayor, comptroller, or counsel to the corporation. ^^''^ Service upon any oth^r city is sufficient, if made upon the mayor, treasurer, counsel, attorney or clerk; or if the city lacks either of those officers, upon the officer perform- ing corresponding functions, under another name.^^* Service upon a foreign corporation is siifficient, if made upon the presi- dent, treasurer or secretary, or if the corporation lacks either of these officers,, upon the officer performing corresponding func- tions under another name. So it will be sufficient if made upon a person designated for the purpose by a writing, under the seal of the corporation and the signature of its president or other acting head, if accompanied with the written consent of the person designated and filed in the office of the Secretary of State. 13" It seems that proof of service of an order for the examination of a party should bo by affidavit or by tlie oath of the party serving it; and it has been said that the sheriff's certificate of "sCode Civ. Pro. (K Y.) sees. 431, 2452. iseCode Civ. Pro. (IST. Y.) sees. 2444, 3452. is^Code Civ. Pro. (K Y.) sees. 431, 2452. i38Code Civ. Pro. (IST. Y.) sec. 431. ""Code Civ. Pro. (IST. Y.) sees. 432, 433, 2452; Quade vs. IsTcw York, N. H. & H. E. Co., 39 IS^. Y. State Eep. 157 ; Carngham vs. Exporters' & P. Oil Co., 11 IST. Y. Supp. 172; Beardsley vs. Johnson, 121 IST. Y. 224; Ruland vs. Canfield Pub. Co., 18 ]Sr. Y. Civ. Pro. Rep. 282 ; Barrett vs. Ameri- can Tel. & Teleg. Co., 56 Hun (IT. Y.), 430; Flynn vs. Hud- son R. R.. Co., 6 How. Pr. (X. Y.) 308; 'Winslow vs. Staten Island, &c. R. Co., 51 Hun (N". Y.), 298; Emerson vs. Auburn & 0. L. R. Co., 13 Hun (IST. Y.), 150; Hiller vs. Bur- lington & Missouri R. Co., 70 IST. Y. 223 ; Pope vs. Terre Haute, C. & M. Co., 87 K Y. 137, 60 How. Pr. (N". Y.) 419; Ervin vs. Oregon S. N. Co., 22 Hun (T^. Y.) 598. OeBEE and WAEEiiNT lhaa his option to move beef ore the judge who granted the order, or to move in the first instance before the court out of which the execution was issued.^ ^ While the debtor may move upon notice before the judge before whom the proceedings were instituted or who granted the order,^" no provision is made for an application to a judge to whom these proceedings are made returnable to vacate or modify an order of examination made by another judge. That is to say, when the debtor wishes to obtain an order vacating an order of examination, the motion must be made to the judge who granted the order or to the court.^^ The debtor or the creditor, may move before the court out of which the execution ■was issued to vacate or modify an order made by a judge, vacating or modifying a prior order made by him.^* No appeal lies to the general term of the Supreme Court in New York' from an order made by a judge out of court., unless such order affects a substantial right. Such an order is reviewable in the first instance by a motion to the court out of which the execution was issued to vacate or modify it, as the case may be, and from the order made upon such motion an appeal lies.-^ When an order is entered in any case, all papers, used in or read on the motion on either side, must be specified in the order "Code Civ. Pro. (N. Y.) sec. 769. 20Phillips vs. Wheeler, 67 N. Y. 104; Curtis vs. Greene, 2S Hun (N. Y.), 294. 2iWest Side Baiik vs. Piigsley, 12 Abb. Pr. IST. S. (N. Y.) 28 ; Dorsey vs. Cummings, 48 Hun (N. Y.) 78. 22Code Civ. Pro. (K Y.) sec. 2433. 23Code Civ. Pro. (N. Y.) sec. 2433. ^^Moschell vs. Boor, 60 Hun (N. Y.), 55Y; Levy vs. Swick Piano Co., 17 Misc. (K". Y.) 147; Palen vs. Bushnell, 68 Hun (N. Y.), 554. 25Fink vs. Mannering, 46 Hun (K Y.), 323 ; Matter of Van Ness, 17 App. Div. (N. Y.) 581: Palen' vs. Bushnell, 68 Hun (jST. Y.), 554; I^roschell vs. Boor, 66 Him (N. Y.), 557. 128 SuPPLEMEJNTAEY PrOOEEBINGS. and must Le filed with the clerk, unless already on file or other- wise ordered by the court, or the order may be set aside as irregulaa', with costs. The clerk cannot enter such order unless the papers are filed, except when otherwise specially directed by the court.^" § 2. Objections to Pboceedings. The most vital objection to these proceedings that can be taken is that the judge who granted the order, or to whom the proceed- ings ar6 made returnable, had or has, as the case may be, no jurisdiction of the subject-matter or of the person of the debtor, or both. Jurisdiction in these proceedings is that power which the law confers on judges, to take cognizance of them, to decide them according to law, and to carry their orders into execution. AVhere the judge has jurisdiction he has power to decide every question which occurs in the proceedings, and whether his deci- sion be correct or erroneous, his oirders, until reversed, are re- garded as binding in every court. But if he acts without authority, his orders are regarded as nullities. They are not voidable, but simply void.^'' If the law does not give the judge jurisdiction over the subject-matter of the proceeding, no con- sent given by the parties will be of any avail ; and the objection may be interposed at any time, since in that case there can be no waiver of it, but the order will be held entirely void at all times and in all places.^® Where a judge is disqualified to act in the proceedings by reason of consanguinity to one of the par- ties, any order made by him will be vacated.^^ Though where the judge has no jurisdiction over the subject-matter of the pro- ceedings, an objection may be taken at any time, yet, where the objection relates to the person of the debtor, or person directed to be examined, as tlie case may be, he may waive any irregular- ity in the mode of bringing him into court; and when once 2«E,ule 3 (jSr. Y.) S. C. "People vs. Sturtevant, 9 JST. Y. 263, 266. 28Beach vs. 'Nixon, 9 N. Y. 36 ; Dudley vs. Ifaben, 5 K Y. 9. 2»Oald6y vs. Aspinwall, 3 A^". Y. 54Y.' Vacating Oedee of Examination. li^O waived, the jurisdiction of the judge over his person will be com- plete^ Such waiver may be express or implied, anid if the party ordered to be examined proceeds in the matter by taking any steps therein, without objection, his conduct will amount to a waiver of all objections of that kind. If the judge has failed to acquire jurisdiction in some of the modes prescribed by law, he cannot gain it by any delay on the part of the debtor in raising an objection to the invalidity of the proceedings. Laches never confer jurisdiction, and although it may waive an irregu- larity, it cannot impart vitality to an order.''"' In every case it is the statute that confers jurisdiction ; a judge can exercise it only to the extent of the authority thus conferred, and an order of a judge in these proceedings acting without proper jurisdic- tion will be no better than blank paper.^^ So the judge may possess the requisite jurisdiction over the subject-matter, and yet the creditor be debarred from instituting the proceedings, because of a want of jurisdiction in the judge as to the debtor. Thus a State judge, it seems, cannot exercise jurisdiction in these proceedings against a foreign minister.^^ So a judge has no jurisdiction to gTant an order in these pro- ceedings for examination of some domestic and some foreign corporations as debtors of the creditor instituting the proceed- ings.^^ A judge has no jurisdiction where the judgment when entered did not amount to twenty-five dollars.^* So the judge has no jurisdiction where the execution was not issued to the sheriff of the proper county.^^ The same rule applies where the judgment was not taken upon the appearance of the debtor or by tlie service of the summons in some of the modes pre^ ^Tiske vs. Anderson, 33 Barb. Tl ; Titus vs. Relyea, 16 How. Pr. (W. Y.) 371. ^ ^Borden vs. Fitch, 15 Johns. (IST. Y.) 121 ; ISToyes vs. Butler, 6 Ba,rb. 613. ^^Valarino vs. Thompson, T IST. Y. 576. s^Code Civ. Pro. (K Y.) sec. 2463. 3*Code Civ. Pro. (IST. Y.) sec. 24-58. 35Code Civ. Pro. (K Y.) sec. 24-35. 9 130 SUPPLEMENTABY PliOCEEDINGS. scribed b}' law."" The creditor in these proceedings has, as we have seem, the burden of showing every jurisdictional fact in his application for the order of examination. It is well settled that when certain facts are to be proved to a judge having only a special and limited jurisdiction as a basis for his action, a total defect of evidence as to any essential fact will make his action void, while some proof of every such fact may enable him to proceed.'^' In one case the court acts without authority, in the other it only errs in judgment upon a question properly be- fore it for adjudication. In one case, there is a defect of juris- diction, in the othef 'there is only an error of judg-ment. Want of jurisdiction makes the act void ; but a mistake concerning the just weight and importance of evidence, only makes the act erroneous, and it will stand good until reversed. It matters not what the general powers and jurisdiction of the judge may be; if he act without authority in the particular case his orders axe mere nullities, not voidable, but simply void, protecting no one acting under them. The statutes in relation to supplementary proceedings are cleai'ly original regulations. The judges have no common-law jurisdiction over a debtor, and their authority is confined altogether to the exercise of such express and inci- dental powers as are conferred by the statute,^ ^ and the maxim of "expressio unius est exclusio alterius" has uniformly been applied to the construction of statutes by courts. § 3. Grounds of MoTIO^-. The debtor upon whom an order or a warrant in these pr'O- ceedings is served shoiild, as soon as possible, examine the papers served with the warrant or order, as the case may be, and the records of the court in the clerk's office in which the judgment- ■'«Code Civ. Pro. (IST. Y.) see. 2458. "Miller vs. Brinkerhoff, 4 Den. (X. Y.~) 119; Staples vs. "Fairchilds, 3 N". Y. 41; Potter vs. Oijden, 13G ^t. Y 384, 4!) ]Sr. Y. State Eep. 835. 380odeCiv. Pro. (K Y.) sees. 2432, 2433, 2434, 2435, 2436. 243Y, 2441. : ^'ACAT1NG OrDEK of ExAillNATiOA". Vol roll, transcript or order for costs, a& the case may be, is filed, in order to ascertain whetlier the application for the order or warrant, as the case maj- be, is supported by such records. The debtor in these proceedings may raise by a proper motion, an almost infinite number of objections to the creditor's right to proceed under the ordei- or warrant, as the case may be, which has been granted. Where the order or warrant, as the case may be, is founded upon a judgment and the return of an execution, and the order or warrant is for the examination of the judg- ment-debtor, he is entitled to an order vacating the proceed- ings — 1. Where the creditor has failed to show by his applica- tion that the judgment when rendered was for twenty-five dol- lars or over; 2. Where the creditor has failed to show how the judgment was rendered ; 3. Where the creditor has failed to show where the judgment was docketed ; 4. Where the creditor has failed to show that an execution against the debtor's prop- erty in the form prescribed" by law was duly issued upon the judgment to the sheriff of the county where the debtor resides, or to the county where the debtor has a place for the regular transaction of business in person ; or where the debtor is a non- resident, that he has no place for the regular transaction of busi- ness in person in the State, and that the execution was issued to the county where either the judgment-roll in the action is filed, or if the order or warrant, as the case may be, is founded upon a judgment of a court not of record, that the execution was is- sued to the sheriff of the county where the original transcript of such court is filed ; 5. Where the order or warrant, as the case may be, is fotinded upon a judgment of a court not of record where the creditor has failed to show that the judgment when docketed in a court of record was for twenty-five dollars or over, exclusive of costs ; 6. Where the creditor has failed to show that the execution was duly issued within the time prescribed by law ; 7. Where the creditor has failed to show that the first execution on the judgment was issued within ten years; 8. Where the creditor has failed to show that he has exhausted his legal remedy against the debtor; 9. Where the creditor has failed to 132 SurPI.lOilK.XTAKY P];OCEEDlNGS. show what, if any, part of the judgment remains unpaid.^^ The debtor is entitled to an order vacating the order of examination, where he moves upon notice before examination, if the order was not granted by a judge authorized to grant the order.*" So the debtor is entitled to an order vacating the order of ex- amination, where it is founded on a judgment rendered in a court of a justice of the peace, and the execution was not issued by the county clerk of the proper county, or where the execution does not give the name of the justice before whom the judgment was rendered ;*i or where it does not appear that the judgment when docketed was for at least twenty-five dollars, exclusive of s^Code Civ. Pro. (N. Y.) sees. 2435, 2458; Schenck vs. Erwin, 30 N. Y. State Eep. 603, 60 Hun (JST. Y.), 360, 21 ]Sr. Y. Civ. Pro. Rep. 96 ; Courtois vs. Harrison, 12 How. Pr. (N. Y.) 359; Baumler vs. Ackerman, 17 N. Y. Supp. 436; Conyngham vs. Duffy, 125 JS^". Y. 200; Importers' & T. ISTat Bank vs. Quackonbush, 143 JST. Y. 567 ; Thomas vs. Merchants' Bank, 9 Paige (K Y.), 216; Mason vs. Hackett, 35 Hun (N. Y.), 238; Woodward vs. Hall, 75 Wis. 409; Sackett vs. New- ton, 10 Ho^v. Pr. (N. Y.) 560; Hackney vs. Arrington, 99 X. C. 112 ; Canandaigua First JSTat. Bank vs. Martin, 49 Hun (JSr. Y.), 571, 15 N. Y. Civ. Pro. Eep. 324; In re Eemington, 7 Wis. 643; Klepsch vs. Donald, 18 Wash. 150; Green vs. Hauser, 18 JS^. Y. Viv. Pro. Eep. 358 ; Matter of Eowland, 21 App. Div. (X. Y.) 172; Joice vs. Spaford, 9 IST. Y. Civ. Pro. Eep. 342; Burke vs. Burke, 37 Misc. (jST. Y.) 684; Gray vs. Lieben, 8 N. Y. Civ. Pro. Eep. 48 ; Stevens vs. Paige, 4 Misc. (N. Y.) 518; Batcheldor vs. I^Tugent, 23 N". Y. Civ. Pro. Eep. 178 ; Amot vs. Wright, 55 Hun (N". Y.), 561 ; Bates vs. Inter- national Co., 84 Fed. Eep. 518; Stat. (Minn.) sec. 5486. ^^Graves vs. Seoville, 12 IsT. Y. Civ. Pro. Eep. 165 ; Merrill vs. AUin, 46 Hun (IST. Y.), 523; Code Civ. Pro. (N. Y.) sec. 2434; Terry vs. Hultz, 8 Abb. Pr. JST. S. (N". Y.) 109, 39 How. Pr. (]Sr. Y.) 169 ; Jacobson vs. Doty Plaster Mfg. Co., 32 Hun (ISr. Y.), 436; Browning vs. Hayes, 41 Hun (N. Y.), 382; Blanchard vs. Eeilly, 11 IST. Y. Civ. Pro. Eep. 278 ; Pardee vs. Tilton, 58 How. Pr. (IST. Y.) 476. ■ "Merritt vs. Judd, 18 IT. Y. Civ. Pro. Eep. 159 ; Code Civ. Pro. (K Y.) sees. 3017, 3043. Vacating Order of Examination. 133 costs ;*^ or where it appears that the transcript of the judgment was not filed within six years after the judgment was ren- detred;*'^ or where it appears that the execution was issued by leave of the county court of a county other than the county where the original transcript of the justice was filed ;** or where the execution is not indorsed in the manner prescribed by law for an execution upon a judgment rendered upon service of the summons upon only one of two or more joint debtors ;*^ or where the justice's transcript is not in the form prescribed by law;"** or where the docket of the justice's judgment by the county clerk is not in the form prescribed by law. The debtor is entitled to an order vacating the order of exam- ination if he moves upon notice before making a general appear- ance, where the execution does not intelligently describe the judgment. That is to say, where it does not state the names of the parties in whose favor and against whom, the time when and the cO'Urt in which the judgment was rendered.*'' And where it does not direct the sheriff to return it to the clerk of the county where the judgment-roll is filed ; or when the execution is issued out of a court, other than that in which the judgment was ren- dered, and it does not direct the sheriff to return it to the clerk of the county where the original transcript of the inferior court is filed. ^^ The same rule applies where the execution does not specify in the body thereof the sum recovered, or directed to be paid, and the sum actually due when it is issued.*^ So the same rule applies where the execution does not require the sheriff to *2Code Civ. Pro. (JST. Y.) sees. 1367, 3017, 3043; Dunham vs. Keilly, 110 N. y. 366. «Code Civ. Pro. (JST. Y.) sec. 3017. **Code Civ. Pro. (K Y.) sec. 3022. «Code Civ. Pro. (IST. Y.) sees. 1932, 1933, 1934, 3020. «Code Civ. Pro. (IT. Y.) sec. 3018. ^^Reid vs. Stegman, 99 N. Y. 646 ; People vs. Bowe, 21 Hun (]Sr. Y.) 614; Clarke vs. Miller, 18 Barb. 269; Farnham vs. Hildreth, 32 Barb. 277. *«Code Civ. Pro. CN. Y.) sees. 1366, 1367. 49Code Civ. Pro. (K Y.) sec. 1368. 134 Supplementary Proceedings. satisfy the judgment out of tlie personal property of the judg- ment-debtor; and, if sufficient personal property cannot be found, out of the real property belonging to him.^'* So the same rule applies where the execution is issued after a warrant of attachment has been levied and it does not re- quire the sheriff to satisfy the judgment, out of the personal projDerty attached ; and if that is insufficient, out of the other personal property of the judgment-debtor; and if both are in- sufficient, out of the real property attached; and if that be in- sufficient, out of the real property belonging to the judgment- debtor.^-' The same rule applies where the execution was issued against real or personal property, in the hands of an execufeir, administrator, heir, devisee, legatee, tenant of real property, or trustee, where it does not require the sheriff to satisfy the judg- ment, out of that property.^^ Where the execution is for the delivery of property and for the collection of a sum of money and is not in form prescribed by law, the debtor in these pro- ceedings may obtain an order vacating the order for examination upon that ground, if he moves on notice before mailing a general appearance.^^ The same rule applies to an execiition issued after the judg- ment-creditor's death.^* So it seems that the debtor is entitled to an order vacating the order of examination or the warrant, as the case may be, where it appears that the judgment upon 50]Sranz vs. Oaldey, 15 IST. Y. Supp. 1 ; Code Civ. Pro. (N. Y.) sec. 13Y0. "Gilman vs. Tucker, 13 N. Y. Supp. 804; Capital City Bank vs. Pai-ent, 34 N. Y. State Rep. 82G, 20 N. Y. Civ. Pro. Rep. 38 ; Lamont vs. Cheshire, fi5 IST. Y. 30 ; Thomas vs. Bogert, 33 Hun (N. Y.), 11 ; Place vs. Riley, 98 N. Y. 1, 7 IST. Y. Civ. Pro. Jleip. 403; Code Civ. Pro. (IS^. Y.) sec. 13Y0. 52Lichtenburg vs. ITerdtfelder, 5 IST. Y. Civ. Pro. Rep. 426 ; Code Civ. Pro.''(N. Y.) sec. 1371. ^*Van Rensselaer vs. Wright, 56 Hun (IST. Y. ), 39 ; Code Civ. Pro. (K Y.) sec. 1373; Arrcx vs. Brodhead, 19 Hun (K Y.), 269. "Code Civ. Pro. (IS^. Y.) soo. 1376. Vacating- Oex>ee of Ex am j nation. 1'T5 which the execution -vN-as issued was not a lien upon his real estate.^^ J^o one but the debtor can raise either objection.^* Where the debtor wishes to attack the sheriff's return he should move upon notice to set it aside. He cannot attack it in any other way.^'' He cannot, in the absence of evidence of collusion or fraud in malting the return, take advantage of the fact that it was returned on the next da;y after it was issued;^* nor that the return was made at the solicitation of the creditor ;^^ nor that the return had not reached the clerk's office before the application for the order was made.®" Where the order of examination or the warrant, as the case may be, is granted before the return of an execution, the debtor is entitled to an order vacating it upon any of the grounds except that the execution has not been returned, that would entitle him to an order vacat- ing an order of examination or a warrant, as the c.ase may be, founded tipon the return of an execution unsatisfied. He is also entitled to an order vacating the order of examination or the warrant, as the case may be, where the application fails to show an execution in the sheriff'ss hands, *^ or where the application fails to show that the debtor has property which upon demand «»Eleventh Ward Bank vs. Heather, 21 Misc. (IST. Y.) 539; K"icholas vs. Hammerstein, 1 jST. Y. Law Eec. 23Y ; In re Rem- ington, 7 Wis. 643 ; Monolithic Drain, &c. Co. vs. Dewsnap, 25 ISr. Y. Civ. Pro. Eep. 382 ; Jennings vs. Lancaster, 15 Misc. (ISr. Y.) 444. s^Tyler vs. Whitney, 12 Abb. Pr. (IsT. Y.) 465. ^;' Sperling vs. Levy, 10 Abb. Pr. (IST. Y.) 426; Flint vs. Webb, 25 Minn. 265; Tvler vs. Whitney, 12 Abb. Pr. CN. Y.) 465; Fenton vs. Flagg, 24 How. Pr. (K Y.) 499. s^Forbes vs. Walter, 25 How. Pr. (K Y.) 166, 25 N. Y. 430. ^*High Pock Knitting Co. vs. Bronner, 18 Misc. (IST. Y.) 632 ; Forbes vs. Spaulding, 8 N". Y. Civ. Pro. Eep. 135. «" Jones vs. Porter, 6 How. Pr. (K Y.) 286. "Matter of Albany First ISTat. Bank, 52 App. Div. (IST. Y.) 601; Balz vs. Benninghof, 5 Ind. App. 522; Union Bank vs. Sargeant, 35 How. Pr. (K Y.) 8Y; Green vs. Bookhart, 19 S. C. 472 ; Pouder vs. Tate, 111 Ind. 148 ; Rand vs. Rand, 78 N. C. 12. 136 Supplementary Proceedings. lie has refused to apply to the paymeait of the judgment f^ or where the application fails to show that the execution was is- sued within the time allowed by law f^ or where the application fails to show that the debtor has not sufficient property subject to execution to satisfy the judgment, and that he has choses in action, or money which the sheriff cannot reach and which is not exempt by law and which upon request he has refused to apply in pa,yment of the debt.®* That is to say, unless the application shows that the debtor has no property liable to execution, or not sufficient to pay the debt, as clearly as though it had been shown by a sheriff's return of nulla bona, the debtor is entitled to an order vacating the order of examination.®^ The debtor is entitled to interpose and move to set aside an order gi-anted for the examination of a per- son holding property of his or indebted to hiuL He may make the motion upon the same grounds as though the order had been granted for his own examination. So the person ordered to be examined may raise the objection that the application fails to show facts sufficient to give the judge jurisdiction to grant the order ; and in many cases such party is bound at his peril to make the motion. If the application does not set forth a com- pliance with all the statutory provisions the order will be void and no protection to any one. The person ordered to attend and be examined may obtain an order vacating the order of examination where the application for the order does not state some facts positively or does not state circumstances showing ^^Bowery Bank vs. Widmayer, 9 'S. Y. Supp. 629 ; Mankem vs. Pape, 65 How. Pr. (IST. 'Y.) 453; Levy vs. Beacham, 18 N. Y. Supp. 748. ^^Hutson vs. Weld, 38 Hun (IST. Y.), 142. «*Matt6r of Albany First l^at. Bank, 52 App. Div. (IST. Y.) 601; Smith vs. Weeks, 60 Wis. 94; Earle. vs. Skiles, 93 Ind. 178 ; Hinsdale vs. Sinclaim, 83 'S. C. 341 ; Barber vs. Briscoe, 9 Mont. 384; Lew vs. Beacham, 64 Hun (K Y.), 62. «'Rome First Nat. Bank vs. Wilson, 13 Hun (N. Y.), 232; Jennings vs. Lancaster, 15 Misc. (E". Y.) 446; Manken vs. Pape, 65 How. Pr. (X. Y.) 453. Vacating Oedek ov Examixation. 1^7 that he has property of the debtor or that he is indebted tx) him.®® The same rule applies where the applicant states the facts as to the person having property of or being indebted to the debtor in the alternative.®'' So the rule applies where the application states the residence of either the debtor or the third person in the very words of the statute.®* Where the order is granted for the second examination of the debtor he is entitled to an order vacating it where he moves upon notice before he has made a gene];al appearance in the proceeding, if the application for the order fails to show special reasons why such examination should be had.®^ That is to say, the order will be vacated unless the application shows that since tlie last examination the debtor has acquired property that should be applied to the payment of' the debt.'''' But no order of examination will be vacated for the sole reason tha.t the applicant failed to state that no previous application for the order had bean made to any court or judga^^ ®®]Sretzel vs. Mulford, 59 How. Pr. (X. Y.) 452; Pierce vs. Parrish, 28 App. Div. (IST. Y.) 24; Schermerhorn vs. Owens, 29 Misc. (jST. Y.) 674; Manken vs. Pape, 65 How. Pr. (K Y.) 453; Lockwood vs. Sello-, 27 Misc. (N. Y.) 826; Leonard vs. Bowman, 21 N. Y. Civ. Pro. Rep. 237; Bucld vs. Bucki, 26 Misc. (K Y.) 69 ; People vs. Jones, 1 Abb. IST. C. (N. Y.) 172 ; Matter of Leslie, 19 Misc. (N. Y.) 667 ; Day vs. Lee, 52 How. Pr. (K Y.) 96; Clarke vs. Nebraska Nat. Bank, 57 Neb. 314: Fleming- vs. Tourgee, 21 N. Y. Civ. Pro. Rep. 300. s^Zelie vs. Vroman, 22 Misc. (N. Y.) 486 ; Amot vs. Wright, 55 Hun (N. Y.), 562; Lee vs. Heirberger, 1 Code Rep. (K Y.) 38; Collins vs. Beebe, 54 Hun (IST. Y.), 318; Leonard vs. Bowman, 21 N. Y. Civ. Pro. Rep. 237. ®8Amot vs. Wright, 55 Hun (JST. Y.), 561. ®90rr's Case, 2 Abb. Pr. (JST .Y.) 457; Railings vs. Pitman., 49 Supr. Ct. 308 ; Losee vs. Allen, 17 Misc. (N. Y.) 275. 49 ]Sr. Y. Supr. Ct. 308 ; Losee vs. Allen, 17 Misc. (N. Y.) 275. ^"Schermerhorn vs. Owens, 29 Misc. (N. Y.) 674; Railings vs. Pitman, 49 K Y. Supr. Ct. 307 ; Lose© vs. Allen, 17 Misc. (N. Y.) 275 ; Grocers' Bank vs. Bayaud, 21 Hun (N. Y.), 303 ; McGuire vs. Schroeder, 31 Misc. (N. Y.) 179 ; Canavan vs. Me- Andrew, 20 Hun (JST. Y.), 46. •'iBean vs. Tonnele, I N. Y. Civ. Pro. Rep. 39, 24 Hun 138 SUPPLEMENTAEY PjJOCEEDINGS. It has been said that where the order of ecxamination fails to specify before whom it is returnable, the debtor or other person ordered to attend may, upon motion made before he has made an appearance in the procedings, obtain an order vacating it.''^ But tlie rule is different where the order directs the party to attend before the judge granting it. The order for examination will not be vacated for the sole reason that it is entitled in the action in which the judgment was rendered or because it is not entitled at all.''^ So the order will not be vacated for the sole reason that it is not directed to any one.''* That is to say, if in the body of the order a person is directed to attend and be ex- amined the fact that there is no direction at the top or at the bottom or on- the back of the order is immaterial. '''' An order for exammation will not be vacated upon the sole ground that it does not recite the facts giving the judge jurisdiction, when the application for it is served with it.''* Where the order does not direct the debtor to appear at any specified time, or where it does not direct him to appear at any specified place, it is (probably) a nullity and incapable of being enforced. The judge may, however, by an order of reference, issued at the same time cure any such defects.''^ Where the (K Y.), 353; Sayer vs. MacDonald, 2 How. Pr. K S. (IST. T.) 119; Schauck vs. Conover, 56 How. Pr. (N. Y.) 437; Ludlow vs. Mead, 21 N. Y. State Eep. 435. ^^Shults vs. Andrews, 54 How. Pr. (IST. Y.) 3Y6. "People vs. Oliver, 66 Barb. 570 ; Lvnch vs. Eiley, 22 IST. Y. Week. Dig. 357 ; Graves vs. ScoviUe, 12 IsT. Y. Civ. Pro. Eep. 165 ; Milliken vs. Thompson, 12 W. y. Civ. Pro. Rep. 168. ^*Heclanan vs. Bach, 20 Abb. N. C. CN. Y.) 401 ; Coates vs. Wilkes, 94 K C. 180; Bronzan v. Drobaz, 93 Oal. 647; Terry vs. Hultz V. Hultz, 39 How. Pr. (N. Y.) 170. 'f'Morrell vs. Hey, 15 Abb. Pr. (IST. Y.) 430 ; Baker vs. State, 109 Ind. 57; Weaver vs. Bridges, R5 Hun (K Y.), 505; In re Knaup, 144 Mo. 653. ■'^Day vs. Brosman, 6 Abb. IST. C. (N. Y.) 312; People vs. Oliver, 66 Barb. 575. ■'^Code Civ. Pro. (K Y.) sees. 2435, 2436, 2441; Bruen vs. ISTickels, 30 App. Div. (N. Y.) 396; Bates vs. International Vacating Oedee of Examination. 139 order directs the person to attend in a county where he neither resides nor has a place for the regular transaction of business in person, if he has a residence or place of business in the State, the order will be vacated upon a proper motion made for that purpose. If it is not absolutely 'A'oid it is certainly voidable.''^ Where the order is not served in the maimer prescribed by statute,' the service will be vacated upon motion made upon no- tice where the movant has not appeared generally in the proceed- ings.'^^ The same rule applies where the order or papers are not properly indorsed.®" So the same rule prevails where the party on whom the order is served was a.t the time exempt from the ser^dce of such an order.*-'^ Where the judge has no jurisdic- tion to grant the order, the defect is not waived by a general appearance.®^ A debtor arrested upon a warrant in these proceedings®" may obtain an order vacating it upon any of the grounds heretofore mentioned, and also upon the ground that the application for the warrant fails to show that he had property which he un- justly refused to apply to the payment of the debt.®^ Where the order of examination is founded upon an order awarding Co., 84 Fed. Eep. 518 ; Clai'k vs. Nebraska Nat. Bank, 5Y Neb. 314; Barrington vs. Watkins, 36 App. Div. (N. Y.) 31. "Graves vs. ScoviUe, 12 N. Y. Civ. Pro-. Rep. 165 ; Foster vs. Prince, 8 Abb. Pr. (N. Y.) 40 Y; Green vs. Bookhart, 19 S. C. 470 ; State vs. Burrows, 33 Kan. 10. ^^People vs. Warner, 51 Hun (N. Y.), 56. s^Dorsey vs. Cummings, 48 Hun (K Y.), 78; Code Civ. Pro. (K Y.) sec. 2452; Newell vs. Cutler, 19 Hun (N. Y.), 74 ; Methodist Book Concern vs. Hudson, 1 How. Pr. N. S. (N. Y.) 520; Billing vs. Foster, 21 S. C. 334. ®iTribune Assoc, vs. Sleeman, 12 N. Y. Civ. Pro. Eep. 20; Fleming vs. Tourgee, 21 N. Y. Civ. Pro. Rep. 297. *^ Jennings vs. Lancaster, 15 Misc. (N. Y.) 444; Sackett vs. Newton, 10 How. Pr. (N. Y.) 560; Schenck vs. Erwin, 21 N. Y. Civ. Pro. Rep. 96. ®3Code Civ. Pro. (N. Y.) sees. 2437, 2438. ®*Heller vs. DeLeon, 26 N. Y. State Rep. 102 ; People vs. Re- corder, 6 Hill (N. Y.),429. 140 Supplementary Peoceedings. costs, the debtor may move to vacate it upon any of the grounds heretofore mentioned; and it would seem that such an order could not be upheld when thus attacked upon any theory of sup- plementary proceedings.*' § 4. Special Ground for Vacating. The debtor may obtain an order vacating the order of exami- nation where he moves upon notice before a general appearance upon the ground that the court rendering the judgment upon which the proceedings are founded had no jurisdiction over his person,®^ or upon the ground that the creditor's application for the order failed to state sufficient facts to give the judge juris- diction.*^ "Where the facts disclosed by the creditor's applica- tion are not such as to make a case, the debtor's motion to vacate is in the nature of a demurrer. The debtor can raise the question at any time, without notice and without any formal motion. In such a case the voluntary appearance of the debtor and his examination is no waiver of his right to raise the objection. The debtor may move on notice to set aside an order for examination granted before return of execution on the ground that the application fails to show that he has property of such a nature or so circumstanced that it could not be reached by execution. In such cases the applica- tion for the order must show 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 ex- ecution. The debtor may obtain an order vacating the order for examination by proof that he has been discharged from the judg- ment upon which the order is founded.** So it has been said *^Impoirters and Traders' Nat. Bank vs. Quackenbush, 143 N. Y. 567, 62 ]Sr. Y. State Eep. 781. *«McG-ill vs. Weill, 19 N. Y. Civ. Pro. Rep. 43, 10 N. Y. Supp. 246. *^Sackett vs. Newton, 10 How. Pr. (IST. Y.) 560. **World Co. vs. Brooks, 7 Abb. Pr. N. S. (N. Y.) 212; Leo vs. Joseph, 9 ]Sr. Y. Supp. 612; Smith vs. Paul, 20 Hoav. Pr. (K Y.) 97; Code Civ. Pro. (K Y.) sec. 2454. Vacating Oedee of Examination. 141 that the debtor may obtain such O'rder where the application fails to show what paxt of the judgment or debt remains un- paid.;*^ ox where any material facts are stated in the application in the alternative;^" or where the judgment is not truly de- scribed in the application;®^ or where the sole proof is by an affida,vit of one in no way a party to the proceeding and such proof do-es not show why the facts or any facts are not shown by the creditor.®^ If it is facts or any facts are not shoavn by the creditor.^^ If it is necessary that the application show the amount due on the judgment an affidavit of the creditor or some one having posi- tive knowledge of the fact is always necessary.®* Where the order for eixamination or the warrant, as the case may be, is granted before the return of an execution, the statute has placed no limit either as 'to the length of time in which the eKecution may remain in the sheriff's hands before the application for the order, or how long after the entiy of the judgment the creditor must apply for the order. The New York statutes provide that the objection that the action was not commenced within the time limited can be talien only by answer, that those provisions apply and constitute tlie only rules of limitations applicable to a civil action, or a special proceeding, except where a different limitation is specially prescribed by law.®* The Legislature has power to change the statute of limitations at its will and pleas- ure.®^ If the proceedings before the return of an execution comes ^®Douglass vs. Mainzer, 40 Hun (N. Y.), 75. ®»Arnot vs. Wright, 55 Hun (N". y.), 561; Collins vs. Beebe, 54 Hun (K Y.), 318. s^Kennedy vs. Weed, 10 Abb. Pr (W. Y.) 62. ®2Brown vs. Walker, 28 N. Y. State Eep. 36 ; Lindsay vs. Sherman, 5 How. Pr. (IST. Y.) 308. ®*Douglass vs. Mainzer, 40 Hun (IST. Y.), 75. ®*Code Civ. Pro. (In". Y'.) sexjs. 413, 414. ®sGuillotel vs. Mayor, 55 How. Pr. (IST. Y.) 114; Conyng- ham vs. Duffy, 125 K Y. 200 ; Church vs. Olendorf, 19 IST. Y. State Eep. 700. 142 SUPPLEMENTAEY PeOCEEDINGS- within the provisions of tbe statute which provides that " An action, the limitation of which is not specially prescribed by law, mnst be commenced within ten years after the cause of action accrues,®^ the period of limitation must be computed from the time of the accruing of the right to relief by these special proceedings to the time when the claim to relief is actually demanded by the creditor.^^ The only question then is \vhen does the creditor's right to these proceedings accrue ? He is entitled to an execution upon his judgment on the day it is docketed. The sheriff has sixty days to seaeh for property. The creditor may also issue his iirst execution by leave of the court near the end of the twentieth year after the judgment was docketed. He may also issue execution from time to time during the twenty years without leave of the court^* § 5. iMoTioiq- TO Vacate eoe lEE_EGtrLAB.iTiEs. It is provided by the rules of the Supreme Court in l^ew York that when the motion is for irreg'ularity the notice or order to show cause, as the case may be, must specify the irregularity complained of.^^ This rule is an answer to a motion to vacate an order or any proceedings upon the sole ground of irregu- larity, where the notice or order to show couse, as the case may be, fails to point out the irregularity complained of.^"" An irregularity consists in the doing of some act at an unreasonable ««Code Civ. Pro. (N. Y.) sec. 388. "^Code Civ. Pro. (K Y.) sec. 415. »«Hutson vs. Weld, 38 Hun (IST. Y.) 142. 99E.ule 3Y (K Y.) S. C. ; Andrews vs. Schofield, 27 App. Div. (N. Y.) 90; Barker vs. Cook, 40 Barb. 254. ""Montrait vs. Hutchins, 49 How. Pr. (IS"". Y.) 105; Seloon vs. Forbes, 22 Him (IST. Y.), 477 ; Kellogg vs. Howell, 62 Barb. 280; Perkins vs. Mead, 22 Hun (~S. Y.), 476; Winnebrenner vs. Edgerton, 8 Abb. Pr. (K Y.) 419; Mayor vs. 'Lyon, 24 Hun (ISr. Y.), 280; Jackson vs. Smith, 25 How. Pr. (N. Y.) 476 ; Peck vs. Coler, 20 Hun (jST. Y.), 534 ; Kloh vs. J(&w York Fertilizer Co., 86 Hun (N. Y.), 266; German-American Bank vs. Dorthoy, 3!) App. Div. (IST. Y.) ]66. Vacating Okdkk oh- Examiaatio^'. liS time, or in an improper manneir, — as in omitting to do some- thing that is necessaiy for the due and orderly conduct of the proceedings. ^°^ It is the want of adherence to some prescrihed rule or mode of proceeding from the granting of the order of examination to the dicharge of the receiver. ^"^ There is a sub- stantial distinction between defects which constitute irregulari- ties and those that render the proceedings a total nullity.^"* Where the proceeding adopted is that prescribed by the statutes and rules of practice of a State or country, and the error is an merely in the manuer 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 itseK is altogether unwarranted, totally dissimilar to that which the law autliorizes, then the proceeding is a nvdlity, and cannot be made regular by any act of either party. ^*"' 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 applicant for an order, his next subsequent proceeding may be set aside for irregularity. Thus the failure of the creditor to indorse any order or paper served or filed by him in the manner prescril>ed by the rules of practice will make his proceeding obnoxious to a motion to set it aside. ^''^ So it is an irregularity for the creditor to serve the order of examination himself or to proceed before "lEule 2 (N. Y.) S. C. ; Weeks vs. Coe, 36 App. Div. (JS". Y.) 339; Kellv vs. Sheehan, 76 IST. Y. 325; Evans vs. Backer, 101 K Y. 289. lo^Dentvs. Watkins, 49 How. Pr. (j^. Y.) 275. lo^Andreiws vs. Schofield, 27 App. Div. (N". Y.) 90; Kellogg vs. Plowell, 62 Barb. 280 ; Winnebrenner vs. Edgerton, 8 Abb. Pr. (E". Y.) 419 ; Jackson vs. Smith, 25 How. Pr. (IST. Y.) 476 ; Peck vs. Coler, 20 Hun (IST. Y.), 534. ""Kloh vs. New York Fertilizer Co., 86 Hun (IST. Y.), 266 ; German-American Bank vs. Dorthey, 39 App. Div. (IST. Y.) 166. i»5 Andrews vs. Schofield, 27 App. Div. (IST. Y.) 90. lo^Weeks vs. Coe, 36 App. Div. (1ST. Y.) 339 ; Rule 2 (1\. Y.) S. 0. ; Evans vs. Baker, 101 Is. Y. 289. 144 Supplementary Pkoceedings. the referee before such referee has taken the oa.th required by Jaw."'' It has been said that where :ill the facts exist which are necessary to vest a judge with jurisdiction in any special pro- ceeding, he will acquire jurisdiction of the subject-matter of the proceedings as fully by the debtor's voluntary appearanc© and submission to the control of the judge, as though the creditor had filed an affidavit containing all the facts necessary to confer jurisdiction, and the judge had granted a proper order, and that the same had been duly served upon the party examined. But this rule must be limited to cases where the necessary facts have been shown and the order duly granted.^"* While the service of an order like the service of a summons is waived by a general appearance of the debtor,^"" the rule is different where the judge has no jurisdiction of the proceedings.^^" A motion to set aside an order or any other proceedings for irre^- larifry must be made at the first opportunity after it has come to the knowledge of the movant, and before any further pro- ceedings have been taken in the proceeding. ^^-^ If a party with knowledge of the irregularity takes subsequent steps in the pro- ceedings he waives such irregularities. The same rule applies where a party with knowledge of the irregularity remains passive and allows the other party to take the subsequent step. If there has been any delay it must be excused in the motion i«^Code Civ. Pro. (^. Y.) sec. 2445. lo^Viburt vs. Frost, 3 Abb. Pr. (IN". Y.) 119; Bowery Bank vs. Widmayer, 9 N". Y. Supp. 629 ; Schenck vs. Irwin, 38 IST. Y. State Kep. 603; Arnot vs. Wright, 55 Hun (IT. Y.), 561; Mc- Guire vs. Hudson, 41 ^N". Y. State Rep. 295 ; Fleming vs. Tour- gee, 21 IS!". Y. Civ. Pro. Rep. 297, 40 IT. Y. State Rep. 705; Brown vs. Walker, 8 N. y. Supp. 59, 28 N. Y. State Rep. 36. i^^Hart vs. Johnson, 43 Hun (N. Y.), 505 ; Viburt vs. Frost, 3 Abb. Pr. (N. Y.) 119; ITndenvood vs. Sutcliff, 10 Him (K Y.), 453; Code Civ. Pro. (K Y.) sec. 424; Olcott vs. McLean, 73 JST. Y. 223 ; Hankinson vs. Page, 12 IST. Y. Civ. Pro. Rep. 279. "«Wheelock vs. Lee, 74 N. Y. 495. "iMavor, &c, of New York vs. Lvons, 24 How. Pr. (IST. Y.) 280. Vacating Order ov Examikation. 145 papers. ^^^ What constitates a reasonable excuse is addressed to the discretion of the judge or court, and depends upon the> particular circumstances of each case.^" Want of knowledge of the irregularity against which relief is sought is always an ex- cuse for delay in moving to set aside the irregular proceedings. There can be no waiver of an irregularity until such irregularity is kno-wn to the party affected. ^^* In general any mere irregu- larity, of Avhatever nature, is amendable under specific con- ditions.-'^^ And though it has been said that an irregularity in an affidavit cannot be amended, ■'■''' yet the ISTew York Code of Civil Procedure gives the judge or court power to amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the naine of a party, or a mistake in any other i-espect.^^'^ ^^"Lawrence vs. Jones, 15 Abb. Pr. (X. Y.) 110. ""Fulton Bank vs. Beach, 6 Wend. CN. Y.) 36. "*Wolfiord vs. Orkley, 43 How. Pr. (N. Y. ) 118. "5 Code Civ. Pro. (N. Y.) sec. 721. ""Clickman vs. Clickman, 1 JST. Y. 611. i"Code Civ. Pro. (X. Y.) sees. 722, 723, 724, 725, 726, 727, 728. 10 146 SuPPLEME.XTAltY PuOCEEUlNGS. CHAPTER X. REFERENCE AND PROCEEDINGS THEREUNDER. 1. Preliminary Observations. 2. Who May Act as Referee. 3. Oath of Referee. § 4. Power of Referee. § 5. Proceedings Upon the Hearing. § 6. Referee's Subpoena. § 1. PKELiMiisrAEy Observations. The judge granting an order of examination in either of the special proceedings allowed by the New York statutes ma^y require the debtor or the third person, as the case may be, to attend and be examined before a referee designated therein.^ This is also the practice in almost every State.^ Only the exami- nation or trial proper so far as taking all the testimony is con- cerned is referred; the proceedings themselves always remain before the judge granting the order. But a referee appointed by the judge granting the order has power to take the whole exami- nation. He has to certify the evidence and other proceedings taken before him to the judge to whom the order is returnable. Thus when a judge grants an order of examination he may make it returnable before another judge, and at the same time ap- point a referee and direct the debtor or 1hird person to attend before such referee. In such case the power of the judge grant- ing the order (probably) ceases with tlie order, so far as the ax- amination proper is concerned, and the judge to whom it is made returnable has tliea-eafter control of such proceedings. This mle, however, goes no farther. ^Code Civ. Pro. (1ST. y.) sec. 2U:> ; Maas vs. McEntegart, 21 Misc. CN. Y.) 462; Pardee vs. Tilton, 83 K Y. 623 ;'^ People vs. Levy, 25 E". Y. Civ. Pro. Ecj). 390. ^Gould vs. Dodge, 30 Wis. 621; Sparks vs. Davis, 25 S. C. 381 ; Marriage vs. Woodruff, 77 Iowa, 294 ; Hastv vs. Simpson, 77 N. C. 69. liEiEKEXCE AA'U PkOCEDUKE T HE J;.E Li jN'JJEK. 14:7 Wheire tke debtor is directed to attend bei'ore tlie judge before whom the ordei- for examination is made returnable, such judge may, at any stage of the proceedings, make an order directing that any other examination, or testimony, be taken by, or that a question arising therein be referred to, a referee designated in the order.^ While this last section of the Isew York Code does hot apply to an order of reference to examine the debtor or third party and the witnesses of the pai-tiee in the proceedings proper, but applies only to incidental questions of fact arising at any stage of the proceedings before tlie judge to whom the order is returnable,* yet the judge to whom the order for examination is made returnable may (probably) appoint a referee to take any testimony, and even the whole examination, and direct the debtor to appear before such referee. ° The order for examination must in all cases direct the debtor or third person, as the case may be, to attend before the referee in the first instance, at a time and place named in the order.® So where the order of reference is made after the order for examination, and not as a part thereof, the judge granting the order of reference must direct tlic debtor or third pei-son to appear liefore the referee at a time and place therein specified. '^ The debtor or third paxty must, if he is a resident of the State, or if he has a place for the regailar transaction of business in person within tlie State, be directed to attend in the county where he has such place of business or residence, as the case may be, and a direction to appear in any other county would, it seems, be a nullilT)^.^ If the order of reference is not contained in the order of examination, it or the order of examination must direct the debtor or third person, as the case may be, to attend ^Code Civ. Pro. (X. Y.) sec. 2-143. ••Howe vs. Welch, 11 A^. Y. (Uv. Pro. Pep. 445. ^Code Civ. Pro. (ISl. Y.) sees. 243.5, 2436, 2440, 2441, 2442. "Code Civ. Pro. (IN'. Y.) sees. 243.5, 2436, 2440, 2441, 2442. 'Code Civ. Pro. (IST. Y.) sec. 2440. sCode Civ. Pro. (1^. Y.) sec. 2459; Brown vs. Gump, 50 How. Pr. (N. Y.) 507; McEwan vs. Burgess, 15 Abb. Pr. (¥. Y.) 473. 148 SuPPLE.ME-MAl.'Y rKUCKJiDlJSUS. before the referee at a time and • place therein meaitioiied.® Such order of reference, when not contained in the order for examination, must be served upon the debtor or person ordered to appear and be examined by exhibiting to the party directed to appear the original order, under the hand of the judge making it, and by delivering to and leaving with him a copy thereof. •"' When in the original order for examination the debtor or third person is directed to appear before a referee, the referee must^ it seems, be appointed at the same time the order is granted. ^^ If the referee appointed in these proceedings dies, or is removed, or fails to qualify, the judge to v?hom the proceedings are re- turnable may appoint another person to act as referee.-'* Such order must direct the debtor or party to be examined to appear before such new referee at a time and place therein mentioned. And such order must be served upon the person directed to be examined in the same manner as an original order. It seems that where the referee fails to appear at the time and place where the person ordered to be examined is directed to appear, the judge appointing hini has no power, without some proof that he refuses to qualify, to appoint anothetr referee in the proceedings. In such a case the creditor should obtain from the referee originally appointed the appointment of a time when and place where he A^dll hear tlie matter; and upon such appointment obtain froin tlie judge an order directing the per- son ordered to be examined to attend before the referee at such time and place ; and serve such order and appointment upon the person directed to bo examined in the same manner as tliough they were an affidavit and an original order. ^^ The absence of the judge or referee, as the case may be, before whom the pro- ceedings are pending at the time when and the place where a »Code Civ. Pro. (E. Y.) sees. 2435, 2436, 2440, 2441, 2442. "Code Civ. Pro. (N". Y.) sec. 2452: Lewis v. Penfield, 39 How. Pr. (K Y.) 490. "Code Civ. Pro. (N. Y.) sec. 2442. i^Allen vs. Starring, 20 ILw. Pr. (X. Y.) 57: Pardee vs. Tilton, 83 N. Y. 623. "Webber vs. Hobbie, 13 How. Pr. (IS^. Y.) 382. Reference aau Pkoceuuj!E Tiikrei[aii)ek.' l-t'J person is directed to- attend, or even the absence of tlie creditor at svich time and place, does not amount to an abandonment or discontinuance o£ the proceedings. The order of examination ij not a mere process to enforce the payment of the judgment or costs, as the case may be, and is not founded on the judgment or order for costs, as the case may be, bvit upon new facts in part. As a substitute for a creditor's bill it is in its nature a new suit.^* It is instituted before a judge pursuant to authority given by statute, and tlie jurisdiction of tlie judge before whom the pro- ceedings are returnable must continue luitil the examination is completed. The only way that the judge or referee, before whom the per- son is directed to attend loses control of the iiroceedings is by the entry of either an order of disontiuuance "v an order dis- missing or vacating the original order of examination.^^ § 2. Who May Be Referee. It seems that a referee in these proceedings must be free from all just objections; and that no person can be appointed to whom all the parties object.^® In Xcav York no one can be .appointed unless he is an attorney of tlie coiirts in good stand- ing, and no one can be appointed who is the partner or clerk of the attorney, or counsel, or the party in whose behalf such ap- pKcation for an appointment is made, or who is in any way con- nected in business with siich attorney or counsel, or who occupies the same office with such attorney or counsel.^'' If the person directed to appear before a referee is dissatisfied with his ap- pointment he must move upon notice before the judge to whom ■'^Griffin vs. Domniquez, 2 Duer (]Sr. Y.), fi."')6. ^'Code Civ. Pro. (¥. Y.) sec. 24.54; Allen vs. Starring-, 26 How. Pr. (]Sr. Y.) 57; Stanley vs. Lovett, 14 Hun (IST.'y.), 412 ; Underwood vs. SutclifFe, 10 id. 453. "Code Civ. Pro. (K Y.) sec. 1024. i^Rule 79 (N". Y.) S. C. ; Carroll vs. Lufkins, 29 Hun (N. Y.), 17; O'Brien vs. Long, 49 Hun fK Y.), SO; Gilbert vs. Frothingham, 13 X. Y. Civ. Pro. Rep. 2SS. 150 Sui'PLEMENTARY PROCEEDINGS. the order is retiirnaMe to appoint some otker person referee.** The judge granting an order for examination of a party hav- ing property of or indebted to the judgment-debtor must, where such person is either a resident of the State or where he has a place for the regular transaction of business in the State, direct such person to attend before the referee in a county, either where he resides or where he has such place for the regular transaction of business in person.** Where the person ordered to be examined neither has a residence nor a place for the regu- lar transaction of business mtbin the State, the judge granting the order for his examination may direct him to appear before a referee in any county in the State in which the order is served upon him. It seems that where the person against whom the order is granted is the debtor that the judge may direct him to appear before a referee in the county where the judgment-roll or a transcript of the justice's judgment is filed, as the case may ]jg,_2o ■\;y'}iere proceedings are instituted on a judgment of any court, except the Supreme Court, against a debtor who has neitlier a residence nor a place for the regular transaction of business within tlie State, the order of reference must, as a general rule, be granted by the county judge, special county judge, or special surrogate of the county where the judgment-roll or a transcript of the justice's judgment is filed.^* So the order of examination and order of reference in such a case of one alleged to have property of such debtor or to be indebted to him must be made by one of those judges. The application for either order in such a case must show that the execution was directed to the sheriff of the county where the judgment-roll or a transcript of the justice's judg- ment, as the case may be, is filed. ^^ The same rule applies where *«People vs. Lew, 25 N. Y. Civ. Pro. "Rep. 393, 40 TST. Y. Snpp. 743, 16 Misc. (K Y.) 615. "Code Civ. Pro. (IST. Y.) sees. 2434, 2441, 2459. 2«Code Civ. Pro. (IST. Y.) sec. 245R ; Bingham vs. Disbrow, 3Y Barb. 24. 2*Code Civ. Pro. (K Y.) sees. 2434, 2458. 22Code Civ. Pro. (K Y.) sec. 2458. Refeeejstce and Procedure Tiieeeundee. 151 the applicalion is for a warrant.-^ It is not sufficient in such a case for the applicant for either an ordeir of ecsaminatioii or for a warrant to show that the execution was issued to the sheriil of the county where the judgment had been docketed upon a transcript of the judgment from the docket of the county where the judgment-roll or transcript of the justice's judgment, as the case may be, was filed. Where the judgTuent is in the Supreme Court a justice thereof in any district may grant either order where the application shows that the execution has been issued to the county where the judgment-roll is filed, and in no othev § 3. Oath of Office. Unless the parties expressly waive the referee's oath, he must, before entering uj)on an examination, or taking testimony, sub- scribe and take an oath, that he will faithfully and fairly dis- charge his duty upon the reference, and mate a just and true report, according to the best of his understanding.^® But where all the parties whose interests will be affected by the restilt, are of age, and present in person or by attorney, they may ex- pressly waive the referee's oath. The waiver may be'made by written stipulation or orally. If it is oral, it must be entered in the referee's minutes.^' § 4. Power of Referee. While the referee in these proceedings exercises the same power as a judge or court, to grant adjournments, to preserve order, to administer an oath tuee Theeeundee, 157 tiie officer thereof in whose custody the books or papers are, but the corporation may produce the books or papers by any clerk or porter.^*^ The New York statutes pi*ovide that any person who refuses or neglects to obey an oral direction of a referee given directly to him, in the course of tlie special proceedings, or to attend before a referee according to the command of a subpoena, dulj- sei-ved upon him, may be punished by the judge or l>v the court out of which tbe execution was issued as for a contempt.®'^ At the conclusion of the examination before the referee he certifies tlie evidence and proceedings to the judge before whom the order of examination is made returnable; but files the same with the clerk of the court, and he usually makes a report and files the same with his certificate.^^ Though the judge to whom the order of examination is made returnable may upon motion for sufficient reasons change the referee, he cannot, it seems, where the order of examination was made by another judge, vacate or set aside the order of reference. Such a discretionary order may, however, be reviewed by the court out of which the eixecution was issued. The judge granting the original order cannot, it has been said, upon an ex parte motion vacate it. '^"Code Civ. Pro. (N. Y.) sec. 867 ; Clyde vs. Rogers, 24 Hun (N. Y. ) 145; Pnidens vs. Tallman, 6 X. Y. Civ. Pro. Rep. 360 ; Zeb vs. Glaskin, 54 JST. Y. Supr. Ct. 351. "Code Civ. Pro. (IST. Y.) sees. 868, 869. '^^Code Civ. Pro. (K Y.) sec. 2457; Howe vs. ^Yelch, 11 xN". Y. Civ. Pro. Rep. 444; Lathrop vs. Clapp, 40 K Y. 328, 23 How. Pr. (N. Y.) 423; Kendrick vs. Wandall, 88 Hun (K T.), 418. s»Hulsaver vs. Wiles, 11 How. Pr. (K. Y.) 446; Brush vs. Kelsey, 47 App. Div. (N. Y.) 270; Coates vs. Wilkes, 92 IST. C. 383; Browning vs. Hayes, 41 Him (IST. Y.), 383; Wilson vs. Andrews, 9 How. Pr. (IST. Y.) 44; Kennedy vs. ISTorcott, 54 How. Pr. (N. Y.) 87. Supplementary Proceedings. CHAPTER XI. EXAMINATION. § 1. Preliminary Observations. I § 2. ]<]xtent of Examination. §1. Preliminary Observations. Supplemeiitary proceedings in !New York are, in their natTure, a new suit, and are carried on substantially like an action in a court of chancery. They do not abate by any event, if the right sought in such proceedings survives and continues.^ Where the judge before whom, they are made returnable dies or goes out of office, his successor in office takes the same as though they were originally returnable before him. Where the referee before whom the debtor is directed to attend dies, resigns or is removed, his place may be filled by the judge, and the proceed- ings continue before such successor the same as though he had been appointed by the original order. The absence of the judge or referee, as tiie case may be, at any time appointed for a hearing has no other or different effect than the absence of a judge or referee at the time appointed for the hearing of a trial of an issue of fact in an action. Though a referee in these proceedings may appoint a new time and place for a hearing, and may by his summons direct the debtor or third person, as the case may be, to attend at such time and place, he has no power to compel an appearance. The judge may, however, enforce any directions either made by himself or by the referee.^ iCode Civ. Pro. (N. Y.) sec. 755. ^Oode Civ. Pro. (JST. Y.) sec. 2457; Matter of Fleming, 40 N. Y. State Rep. 705, 21 IST. Y. Civ. Pro. Rep. 397 ; Shutts vs. Andrews, 54 How. Pr. (N. Y.) 378; Perldns vs. Kendall, •". N. Y. Civ. Pro. Rep. 240; Allen vs. Stai-ring, 26 How. Pr. CN. Y.) 59. Peogebuee on Examination. 159 Where the judge, referee or creditor fails to appear at the time when and the place where the debtor is directed to appear the judge by an order or summons may direct the debtor to ap- pear at another time, and the debtor must obey such direction.' The practice in this respect which had been placed in doubt by prior conflicting decisions was settled by the statutes.* The examination is conducted in the sam.e manner as the trial of ail action in equity, excerpt that the examination of each witness should be taken in, the form of a deposition and when complete read to and sigTied by the witness and filed in the clerk's office.'* Each party may call any witness who can testify tO' any perti- nent fact, and he may introduce any class of evidence that a party could give in an equity action. Each witness must be sworn. The ustial mode of administering an oath now practiced, by the person who swears laying his hand upon and kissing the Gospels must be observed. Where the laying of the hand upon and kissing the Gospels are omitted the form of the oath is "You do swear' in the presence of the ever living God." Where the witness affirms the form of the oath must be "Yo\i do sol- emnly, sincerely and truly declare and affirm."® So any Avitness may be sworn according to the popular seremony, if any, of hi? religion.'^ ISTeither a party nor a witness, examined in supplementary proceedings, is excused from answering a question on the gTound that his examination will tend to convict him of the commission of 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, or that he or another person claims to be entitled, as against the creditor, or a receiver appointed or to be appointed in the proceedings to hold property, derived from ^Keihen vs. Shipherd, 16 K T. Civ. Pro. Eep. 183, 24 IST. Y. State Eep. 739, 4 JST. Y. Supp. 1T3. *Code Civ. Pro. ^N. Y.) sec. 2454. ^Fiske vs. Twigg, 5 K". Y. Civ. Pro. Rep. 41. «Code Civ. Pro. (N". Y.) sees. 845, 846, 847. ^Code Civ. Pro. (N. Y.) sees. 848, 849, 850. to loo Sli'fli-;me.\taky Phocekukngs. or through, the debtor, or to be discharged from the payment of a debt wliich was due to the debtor or to a iierson in his behalf'.* But an answer cannot be used as evidence against the person so answering in a criminal action or original proceed- ings." The examination is in no way affected by the apj)oint- ment of a receiver at the co-mmencememt of the proceedings.-'* The appointment of a receiver sheds no light upon the dark places in which the debtor has concealed his property. It is a common practice for a dishonest debtor to taie refuge behind a friendly receivership. The statutes in every State give the creditor the right to a full and searching examination of tlie 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.-'^ When a debtor first comes before the judge be- fore whom the order is made returnable, if the creditor is present, he may put in an answer or an affidavit in the nature of an answer, and in siich affidavit state any facts showing that he is exempt from the examination which he is directed to undergo. Any defense which he might make to a creditor's bill or to the enforcement of the judgment, he may set up in such affidavit or verified anST^ei-.^^ Where the debtor is di- ^Steinhart vs. Farrell, 3 JST. Y. State Rep. 292. »Code Civ. Pro. (IvT. Y.), sec. 2460; Wright vs. STostrand, 94 ]Sr. Y. 31 ; Lapham vs..Marshall, 51 Hun (K Y.) 36 ; People vs. Doyle, 58 Hun (K Y ), 535, 36 N. Y. State Rep. 128 ; Dusen- bury vs. Dusenburv, 48 JST. Y. Supr. Ct. 205, 62 How. Pr. (K Y.) 349. loCode Civ. Pro. (N. Y.) sec. 2464. "Lathrop vs.. Clapp, 40 N". Y. 462, 100 Am. Dec. 493 ; Sand- ford vs. Carr, 2 Abl>. Pr. (IT. Y.) 462; Barles vs. Comstock, 104 Mich. 129; Seligman vs. Wallach, 67 How. Pr. (N. Y.) 514, 6 K Y. Civ. Pro. Rep. 232, 16 Abb. K C. (IST. Y.) 317; Fliat vs. Webb, 25 Minn. 265; Leroy vs. Halsey, 1 Duer (N. Y.), 591 ; Miller vs. Wenver, 23 Misc. (Is. Y.) 254; Matter of Sickle, 52 Hun (N. Y.), 531. i^World Co. vs. Brooks, 7 Abb. Pr. T\t. S. (N. Y.) 212; Leo vs. Johnson, 9 K Y. Supp. 612; Smith vs. Paul, 20 How. Pr. Peoceduee oa' Examination. Itil rected to appear before a referee he may either move upon notice before the judge before whom the proceedings are made returnable, before the time set for the hearing to vacate the order for examination, tlie order of reference, and the order of injunction upon an affidavit showing any defense that would be available to him as an answer to a creditor's bill, or he may iile such affidavit ^\'ith the referee and then move before the judge in one of the modes provided by law to vacate the or- der.^* The fact that the creditor has, after the instituting of sup- piemen tai-j' proceedings, brought an action to set, aside an al- leged fraudulent assignment by the debtor of some of his prop- erty is no answer to the proceedings. The creditor may take any number of concurrent remedies against his debtor and is not bound to elect between them.'* The examination in these proceedings is a record of the court. All papers, orders and depositions used during the progress of the proceedings must be filed Avith the county clerk. They constitute a part of the record of the court had in the proceedings, although the exami- nation is uncompleted.-'''' § 2. Extent of Inquiry. The extent of the inquiry in each particular case must be left to the judicial discretion and to the good sense of the of- ficer under whose direction it takes place. It is said that where an examination under either proceedings has been fully completed, and the debtor offers to produce the examina- tion to another creditor who seeks an , investigation by this (!N". Y.) 97; Wilson Bros. Woodenware, etc., Coi. vs. Daggett, 9 ISr. Y. Civ. Pro. Kep. 408. "Walker vs. Donovan, 6 Daly (K Y.), 55Y. i*Matter of Sickle, 23 K Y. State EeJ5. ,585, .52 Hun (N". Y.), 527,- 17 K Y. Civ. Pro. Kep. 138. i^Kenner vs. Mvers, 22 Abb. IST. C. CN. Y.) 438; Code Civ. Pro. (N". Y.) sec. 825 ; Eiske vs. Twigg," 5 IST. Y. Civ. Pro. Rep. 41; Matter vs. Falkenburg, 10 Misc. (N. Y.) 418, 77 'N. Y. State Rep. (43 IST. Y. Supp.) 1138. 11 162 Supplementary Peoceedikgs. means, he should not, in the absence of some evidence of fraud or collusion, be put to the annoyance of a re^examinatiou in re- lation to the same facts. In all cases the examination must proceed upon, the theory of ascertaining whether or not the debtor has property not exempt from levy and sale by execution, which may be reached for the payment of the creditor.^® Any question tending to show that the debtor has property or that the witness has prop- erty of tlie debtor is pertinent and proper.-''' But the creditor should not be allowed to examine a debtor or a witness as to irrelevant and impertinent matter.-'* Great latitude is usually allowed in the examina,tian. The creditor is always allowed to prosecute tlie inquiry to such an extent as to enable "him to ascertain the true condition of the property and business af- fairs of the debtor.-'^ The examination is seldom, if ever, limited to the strict technical rules which govern the examina- tion of witnesses upon the trial of actions upon contract.^** While there is a point beyond which, the examination ought not to go, yet to restrict the examination to the strict rul^ applicable to even a cross-examination in an action would tend to impair the usefulness of tiie remedy. The debtor and (probably) e^-ery witness is entitled to have the aid of counsel ^^Millar vs. Weaver, 23 Misc. (IST. Y.) 254; Schneider vs. Altman, 8 N". Y. Civ. Pro. Ptep. 242 ; Matter of Sickles, 52 Hun CN. T.), 531; 17 N. Y. Civ. Pro. Rep. 144; McCuUough vs. Clark, 41 Cal. 302 ; Seliginan vs. Wallach, 6 X. Y. Civ. Pro. Rep. 234; Flint vs. Webb, 25 Minn. 264; In re Rindskopf, 8 N". Y. Civ. Pro. Rep. 246. ^'Hart vs. Johnson. 4:5 Hun (N. Y.), 505, 508; Seligman vs. Wallach, 67 How. Pr. (N". Y.), 514. "Hxmt vs. Enoch, 6 Abb. Pr. (IS^. Y.), 212; Williams vs. Carroll, 2 Hilt, (N. Y.) 439. ^"Seligman vs. Wallach, 16 Abb. N". C. (N. Y.) 317, 6 K Y. Civ. Pro. Rep. 234 ; Flint vs. Webb, 25 Minn. 265 ; Heilbronner vs. Levy, 64 Wis. 637 ; Clapp vs. Lathrop, 23 How. Pr. CN. Y.) 423 ; Hagerman vs. Tong Lee, 12 ISTev. 334. -20Steinha.rt vs. Farrell, 3 N. Y. State Rep. 292. Procedure on Examinatiojs'. 163 in framing Ids answer.-^ He is also entitled to have his de- position read over to him and corrected or changed so aa to agree with what he has stated-- before he can be compelled to sign it.^^ The answer of a witness must be responsive to the inteiTogatory, and if not the party propoimding the interroga- tory is entitled to have it stricken out.^* A creditor may ex- amine a debtor who has made an assignment alleged to be for the benefit of his creditors as to each and every act of his prior and subsequent to such assigmiient.-'' In short, it is a dogma that the practice on this subject in every State conteonplates a thorough and searching examination into all fraudulent dis- positions of property made to defeat creditors, and does not allow the inquiry to be ea^aded upon any ground of the self- criminating answer which may follow.^ ^ That is to say, a question must be answered whatever its bearing upon the vsdt- ness and however strongly tending to show his fraudulent conduct, because this is necessary to the creditor's relief, and fraud finds no favor in the law.^'^ The creditor is entitled to examine into the bona fides of every alleged sale of property by the debtor, where he can throw any doubt upon its having been a real sale.^* A corporation, whether a domestic or a 2iSchwab vs. Cohen, 13 jST. Y. State Rep. 709. ^^Sherwood vs. Dolen, 14 Hun (IST. Y.), 191; Renner vs. Myer, 22 Abb. N. 0. fK Y.) 438. 23Code Civ. Pro. (JST. Y.) sec. 856. 24Leroy vs. Halsey, Code Rep. X. S. (W. Y.) 275. 2SIn re Rindskopf, 8 JST. Y. Civ. Pro. Rep. 242 ; Bannington vs. Pick, 8 N. Y. Civ. Pro. Rep. 247 ; Schneider vs. Altman, 16 Abb. 1^. C. (E". Y.) 312, 8 X. Y. Civ. Pro. Rep. 242. 26Code Civ. Pro. (X. Y.) sec. 2460 ; La Fontaine vs. Southern Underwriters Assoc., 83 'N. C. 143 ; Forbes vs. Williard, 54 Barb. 527; Clapp vs. Lathrop, 23 How. Pr. CS. Y.) 423; State vs. Burrows, 33 Kan. 10 ; Marx vs. Spaulding, 43 Hun (N. Y.), 366 ; Keily vs. Dusenbury, 52 How. Pr. 280 ; Lathrop vs. Clapp, 1 40 N". Y. 332. 2^Matter of Sickle, 52 Hun (N". Y.), 531, 17 S". Y. Giv. Pro. Rep. 144. 28Mechanics', &c. Nat. Bank vs. Healy, 14 1ST. y. Week. Dig. 120; Clapp vs. Lathrop, 23 Plow. Pr. (N. Y.) 423. 164 SuPPLBMENTAEY Jr'EOCEEDINGS. foreign business corporation, or a municipal or any other cor- poration, must answer under tiie oath of one of its officers.^* Eithei" party is entitled to- be sworn in his own behalf, as in the trial of an issue of fact in an action. So either party may examine, cross-examine, or re-examine each and every witness the same as upon a trial of an issue of fact. Either party may call any witness he desires.^" Where the examination is upon an order against any per- son or corporation alleged to have property of the debtor or in- debted to him, it may proceed either alone, or simultaneously, ^with the proceedings against the debtor, which has been insti- tuted either after the issuing and before the return of an exe- cution against the debtor or after the return of an execution against him returned wholly or partly unsatisfied.^^ The judge may, in his discretion, require notice of all proceedings after tlie granting of the order of examination to be given to the debtor in such manner as he deems just. So the debtor must have notice of an application for the appointment of a receiver in these proceedings. While it has been said that under an order for the examination of one alleged to "have property of the debtor, or indebted to him, such third person cannot be re- quired to answer in relation to anything except the property which he is alleged to hold for the debtor, or the debt which the creditor claims he owes the debtor, yet the statutes place no limit upon the examination.^" The creditor is entitled to ^^Devan vs. Ellis, 29 Ind. 72 ; Pendergast vs. Dempsev, 18 'N. T. Civ. Pro. Rep. 198. ^^Oode Civ. Pro. (N. Y.) sec. 2444 ; Coates vs. Wilkes, 92 N. C. 382 ; McCuUough vs. Clark, 41 Cal. 303 ; Howe vs. Welch, 11 ]Sr. T. Civ. Pro. Eep. 445; Bipus vs. Deer, 106 Ind. 135; Colton vs. Bigelow, 41 N". J. L. 267 ; McDonnell vs. Henderson, 74 Iowa, 621 ; Seyfert vs Edison, 47 N. J. L. 432 ; O'Brien's Petition, 24 Wis. 547 ; Ponder vs. Tate, 111 Ind. 150. ''^Oode Civ. Pro. (K Y.) sees. 2432, 2441. s^Oode Civ. Pro. (IST. Y.) sec. 2441; Holbrook vs. Orgler, 40 N. Y. Supr. Ct. 37 : Lathrop vs. Clapp, 40 W. y. 328. Peoceduee on Examination". 165 have every witnefis and every party called by him produce books and papers as though he were a party to a civil' action.^* It is said that a commission cannot issue in these proceedings to take the testimony of a foreign witness.^'' The order for ex- amination in either special proceedings must in every juris- diction, as we have seen, direct a resident debtor or a third person who is a resident of the State, to appear in the county of his residence, or in the county in which he has a place for the reg'ulax transaction of business, in person.-''^ So in all juris- dictions the creditor is not entitled as a matter of right to an order for the second examination of his debtor covering the same time. Thus, ' where the creditor has been given a full and fair trial he is concluded as to all matters existing at the time of his examination, and which he might have investigated under the order.^® 33Matt©r of Sickle, 52 Hun (X. Y.), 529, 17 IST. Y. Civ. Pro. Eep. 138 ; Coates vs. Wilkes, 92 IvT. C. 376 ; Wainright vs. Tif- fany, 13 ]Sr. Y. Civ. Pro. Rep. 222 ; Barnes vs. Levy, 23 id. 254; Pendergast vs. Dempsey, 18 id. 198; Holges vs. Steitz, 6 id. 362 ; Semmes vs. iSToell, 18 id. 200. 3*Champlin vs. Stoddard, 64 How. Pr. (N". Y.) 378. ^^Fowler vs. Griffin, 63 Ind. 297 ; Bates vs. International Co., 84 Fed. Rep. 518 ; Union Banlc vs. Lathrop, 19 S. 0. 473 ; State vs. Burrows, 33 Kan. 10 ; Clark vs. Berganthal, 52 Wis. 103 ; Matter of Rowland, 21 App. Div. (N". Y.) 172. 3« Johnson vs. Hamilton, 5 Abb. IS^. C. (N. Y.) 149; Clarke vs. Londrigan, 40 IST. J. L., 312 ; McOuUough vs. Clark, 41 Oal. 298; Jurgenson vs. Hamilton, 5 Abb. N". C. (IST. Y.) 149; Methodist Book Concern vs. Hudson, 1 How. Pr. IS!". S. (IST. Y.) 520; Carter vs. Clark, 7 Robt. CN. Y.) 490; Weiss vs. Ashman, 11 Misc. (K Y.) 379, 24 K Y. Civ. Pro. Rep. 268; Canavan vs. McAndrews, 20 Hun (K Y.), 47. 166 SUPPLEMENTAKY PeOCEEDINGS. CHAPTER XII. ORDER REQUIRING DELIVERY OF MONEY OR PROPERTY TO SHERIFF OR RECEIVER. In alraost every jurisdiction the statutes provide that where it appears, from the examination or testimony taken in supple- mentary proceedings, that the judgment-debtor has in his pos- session or. under his control, money or otlier personal propeirty, not exempt from levy and sale on execution, belonging to him; or that one or more articles of personal property, capable of delivery, not exempt by law from levy and sale on execution, his right to the possession whereof is not substantially disputed, are in tbe possession or under the control of anotheir person, the judge by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, and upon such notice, given to such persotns as he deems just, or without notice, make an order directing the jiidgment-debtor or other persou, immediately to pay the moneij^, or deliver the articles of personal property, to a sheriff designated in the order, unless a receiver has been appointed, or a receivership has been ex- tended, to the special proceedings, and in that case to the ret- ceiver.-' The ISTew York statutes authorize a judge, who has ceased to have control of the proceedings by making them re- turnable before another judge, to grant the order. That is to say, the judge Avho grants an order for examination, and makes it returnable before anothea- judge, seems to still have control of the proceedings.^ ^Ward vs. Petrie, 157 N". Y. 301; Matter of O'Conndl, 49 Kan. 415 ; Matter of Blumeutbal, 22 Misc. (JST. Y.), 704; Gris- wold vs. Tompkins, 7 Daly (1^. Y.) 214; Code Civ. Pro. (N. Y.) see. 2447; Matter of Burrows, 33 Kan. 675; Peters vs. Kerr, 22 How. Pr. (N. Y.) 3; Winters vs. McCarthy, 2 Abb. K C. (K Y.) 357. ^Code Civ. Pro. (N. Y.) sees. 2446, 2447. OitDEB FOR Delivery of Money or Peoperty. 167 The statute does not authorize a judge to direct a third party to pay any money to a sheriff or receiver. It authorizes him only to direct a third pajty to deliver articles of personal prop- erty. And although a judge makes an order directing a third person to pay money to a sheriff or to a receiver, and the party against whom it is made pays the money in obedience to the ordea-, the order is no protection to him in an action brought for the moner)' by one to whom it had been assigned by the judgment-debtor prior to the service of the order. ^ These or- ders are very precarious authority at best, and should not be granted except where the facts show the title to be in the debtor beyond any controversy.* The remedy depends upon the nature of the property. Grenerally a receiver may seize any property of the judgment-debtor not exempt by law, but where the property is delivered to the sheriff by virtue of an order he must levy upon and sell it. Where there is a dispute as to the title of the property or the amotmt, the remedy is by an action by the receiver. This rule appliee to money alleged to be due the debtor by a tliird person. To authorize the order it must appear that not only both the title and the amount is ad- mitted, but that the person against whoin it is made is able to comply with the order. The statutes do not mention real prop- erty or chattels real, and the judge cannot compel a debtor by an order to convey any real estate to a receiver. The creditor's remedy is in a creditor's action. Where there is any substantial dispute as to the title to per- sonal property, the judge cannot order the property turned over to the sheriff or receiver, as the case may be.^ While the judge has no power to cornpel a debtor to pay over to the sheriff or to a receiver money held by him in another State, he may be ^Fraser vs. Ward, 13 Daly (jST. T.), 431; Osborne vs. Rear- don, 79 Iowa, 175 ; Waxd vs. Petrie, 157 IST. Y. 301. ^Grand Lodge Knights of Pytliias vs. Manhattan Sav. Inst., 12 Misc. (N. Y.) 626, 25 'N. Y. Civ. Pro. Eep. 44, 68 IST. Y. State Rep. 132. ^Stewart vs. Foster, 1 Hilt. (IST. Y.) 505; Grassmuck vs. Richards, 2 Abb. K C. (IST. Y.) 359 ; West Side Bank vs. Pugs- 168 SuiTLEMENTARY PeOCEEDINGS. compelled to make an assignment of such money to tke re- ceiver," and tke denial by tke debtor tkat he kas funds will not deprive tke judge of jurisdiction to make tke order, wkere it appears from otker proof tkat ke kas money sufficieoit to pay tke debt.' K'otiee to tke debtor of an application for tke order is never absolutely necessarj', but is usually given.* But wken tlie order is duly made, it must be duly served upon tke debtor, and a demaud made upon kim to do tke act tkerein directed bec fore ke can be pimisked fi>r a refusal to comply witk tke order.* Tke order must direct tke debtor or tkird person, as tke case may be, to deliver tke property, or to pay tke money, as tke case may be, to a skeriff or to a receiver designated in tke or- der." Tke judge may order tke debtor to execute an assignment of any ckose in action to tke skeriff or to a receiver, as tke case may be.-'-' Wkere tkere is a receiver tke order must direct tke property delivered to kim.^^ An order for tke debtor to pay ley, 47 N. Y. 368 ; Frost vs. Craig, 18 IST. Y. Civ. Pro. Rep. 296 ; Bamet vs. Biker, 13 id. 338 ; Oleatkam vs. Seawrigkt, 30 S. C. 101. "Buckanan vs. Hunt, 98 IST. Y. 560. ^Logan vs. O'Leary, 43 IsT. J. Eq. 320 ; Knigkt vs. E"ask, 22 Minn. 4.55; Matter of Prester, 2 Code Rep. (X. Y.) 98. *Serven vs. Lowerre, 3 Misc. (IST. Y.) 115 ; Moyer vs. Moyer, Y App. Div. CN. Y.) 529; Canandaigua First Nat Bank vs. Martin, 49 Hun (N. Y.) 574. "McCombvs. Weaver, 11 Hun (N. Y.), 271. '"Klepsck vs. Donald, 18 Wask. 150 ; Hatkawav vs. Brady, 26 Cal. 581 ; Blabon vs. Gilchrist, 67 Wis. 38 ; Kay Vs. Yisckers, 9 Minn. 272; Kennesaw Mills Co. vs. Walker, 19 S. C. 104; Hagerman vs. Tong Lee, 12 Nev. 335 ; Wkite vs. Gates, 42 Okio St. Ill ; Howell vs. McDowell, 47 K J. L. 361 ; Coates vs. Wilkes, 92 IST. C. 380; :\[atter of Weld, 34 App. Div. CN. Y.) 471 ; Matter of Bhimentral, 22 Misc. (N. Y.) 704. " Collins vs. Ane-ell, 72 Cal. 513 ; Clan Ranald vs. Wyckoff, 41 K Y. Supr. Ct. 527 ; Pacific Banl^ vs. Robinson, 57 Cal. 520. ^2 Ward vs. Petrie, 157 1^. Y. 301 ; Stewart's Estate, 8 K Y. Civ. Pro. Rep. 354; Columbia Bank vs. Tno-orsoll, 21 x\bb. IST. O. CK Y.) 241, Obder for Delivery op Money or Property. 169 over money to the creditor cannot be eaiforced, as such, an order is a nullity. ^^ In every case the creditor has the burdeoa of showing not only that the property ordered to be delivered is owned by the debtor, but also that he has the absolute control of it, and .that it is not exempt by law.-'* In short, where there is any dispute about the title of the debtor to the money, or to the property, the creditor is not entitled to the order. ^^ That it is a dogma that where it appears tliat there is any siibstantial dispute as to the title of the money or other prop- erty, the judge has no authority to make the order,^® yet " sub- stantial dispiite " means some bona fide controversy. It does not include a mere ^lorable dispute designed only to render the law ineffectual and to defeat this remedy by order. ^'^ In all cases where there is any dispute it is safer for tbe creditor to proceed by a creditor's action, either in his own name or in the name of the receiver.'* A judge on a motion for an order of ^^Severn vs. Lowerre, 3 Misc. (!N". Y.) 118; Dickinson vs. Onderdonk, 18 Hun (IST. T.), 479; Gray vs. Ashley, 24 Misc. (X. Y.) 398 ; Bimhaum vs. Thompson, 5 N". Y. L. Bui. 30. "Hall vs. McMahon, 10 Abb. Pr. (^N. Y.) 105; Hathaway vs. Brady, 26 Cal. 581 ; Kay vs. Vischers, 9 Minn. 272 ; Rear- don vs. Henry, 83 Iowa, 136. i^Hayes vs. McClelland, 20 N . Y. Week. Dig. 393 ; Locke vs. Mabbetit, 3 Abb. Ct. App. Dec. (N. Y.) 68 ; McDoweU vs. Bell, 86 Cal. 615; Blabon vs. Gilchrist, 67 Wis. 38; Thompson, &c. Mfg. Co. vs. Guenthier, 5 S. D. 507 ; Bernard vs. Kobbe, 54 IST. Y. 521 ; Teller vs. Eandall, 40 Barb. 244; Gerton Carriage Co. vs. Richardson, 6 Misc. (N. Y.) 466 ; Ex parte HoUis, 59 Cal. 414 ; Waldron vs. Walker, 43 IST. Y. Stat© Rep. 605 ; Maas vs. McEntegart, 20 Misc. (ISJ". Y.) 676; Tinker vs. Crooks, 22 Hun (]Sr. Y.), 581; Ward vs. Petrie, 157 K Y. 301. "Gallagher vs. O'lSTeil, 3 IST. Y. Supp. 126 ; Parker vs. Page, 38 Cal. 525; West Side Bank vs. Pugsler)^ 12 Abb. Pr. IST. S. (]Sr. Y.) 28; Frost vs. Craig, 16 Dalv (K Y.) 107, 18 K Y. Civ. Pro. Rep. 299. "Dewey vs. Finn, 18 K Y. Week. Dig. 558 ; I^J'athans vs. Sat- tea-lee, 18 Abb. K C. (K Y.) 310; Lilienthal vs. Wallach, 37 Fed. Rep. 241. i^Grassmuck vs. Richards, 2 Abb. IsT. C. (iST. Y.) 359; Gris- 170 SUPPLEMENTAEY PbOCEEDINGS. this nature has no jurisdiction to determine a disputed question of title so as to laake it res adjudicata. While the judge may ordej- a person haying the property to deliver the same to a re^ ceiver, although the person so having possession claims to own it, the judge has no power to enforce the order as for a con- tetoipt, however plain it may seem to him that such claim of ownership is wholly unfounded. A court of equity in an action in the nature of a creditor's bill, or a court of law in an action hy the receiver in the nature of trover or replevin, is the only tribunal in which such dis- puted questions of title can be settled. -"^ The same rule seems to apply where the debtor claims the property to be exempt.^** It seems that the judge cannot pass on the title even by consent of parties,^ ^ and the court will restrain a receiver from taking possession of property on an order of the judge, where the title is substantially disputed. ^^ The creditor who commences an action either in his own name or in the name of a receiver, to test the title to the property, is entitled to a temporary in- junction restraining the claimant from disposing of the prop- erty during the pendency of the action. ^^ He may bring all the parties before the court.^* While in wold vs. Tompkins, 7 Daly (IST. Y.) 214; Krone vs. Klotz, 3 App. Div. (]Sr. Y.) 589, 25 W. Y. Civ. Pro. Rep. 322; Moller vs. Wells, 29 Hun (N. Y.) 587; Miller vs. Lyons, 17 IST. Y. Week. Dig. 86. i^Tompkins County Bank vs. Trapp, 21 How. Pr. (jST. Y.) 17; People vs. Harlbert, Code Rep. N. S. (N". Y.) 75; White vs. Gates, 42 Ohio St. 109 ; Bates vs. International Co., 84 Fed. Rep. 518 ; Serven vs. Lowerre, 3 Misc. (JST. Y.) 118 ; Halton vs. Burton, 78 Wis. 323 ; Heaxter vs. Pennsylvania R. Co., 43 App. Div. (]Sr. Y.) 113; Allen vs. Fritch, 5 Colo. 226; Kennedv vs. Cartick, 18 Misc. (N. Y.) 39. 2»Dickinson vs. Onderdanli, 18 Hun (1ST. y.), 480. ^^Maas vs. McEntegart, 20 Misc. (N. Y.) 676. -^McDowell vs. Bell, 86 Cal. 615. ^^Bates vs. International Co., 84 Fed. Rep. 518; Coates vs. Wilkes, 91 IST. C. 1 80 ; McDowell vs. Bell, 86 Cal. 616. ^*Hexter vs. Pennsylvania R. Co., 43 App. Div. (N. Y.) 113. Obdee fok JDelivbey of Money oe Propebty. lYl Neiw York the judge is not authorized to make an order for the delivetry of amy real estate or chattels real from the debtor or from a third person to the receiver,^^ yet he may, it seems, com- pel the delivery of land contracts, leases and other muniments of title.^^ In all jurisdictions the order muBt describe and name the particular thing which the debtor or third person, as the case may be, is directed Co deliver to the sheriff or receiver, as the ease may be.^^ One not a party to the proceedings or to the motion for the order is not bound by it, aiid a payment of money or the delivery of property pursuant to the order will be no defense to an action by such owmer against the party pay- ing the money or delivering the property, as the case may be.^* § 2. Peopeety akd Mois^EY That may' Be Directed to Be Deliveeei). It is said that a debtor's interest in an estate as next of kin or in a, pai-tnership, may be reached by an order.^^ So may the debtor's right to redeem real estate,^** and tbe right of dower of 25 Albany City Bank vs. Gaynor, 6Y How. Pr. (K T.) 421; Smith vs. To-zer, 11 jST. Y. Civ. Pro. Eep. 346, 42 Hun (N. Y.) 22 ; Kimball vs. Bui-rell, 14 IST. Y. State Rep. 536 ; Canandaigua First Nat. Bank vs. Martin, 49 Hun (JST. Y.), 574; Mover vs. Moyer, 7 App. Div. (IST. Y.) 530. 28Mattai- of Crane, 81 Hun (N. Y.), 96. 2'^Moyer vs. Moyer, 7 App. Div. (JST. Y.) 523 ; Smith vs. Mc- Qnade,'59 Hrni (N. Y.), 374; Dickinson vs. Onderdonk, 10 Hun (]Sr. Y.), 479 ; Matter of Burrows, 33 Kan. 675 ; Buchanan vs. Hunt, 98 'N. Y. 560 ; Kennesaw Mills Co. vs. Walker, 19 S. C. 104 ; Matter of O'Connell, 49 Kan. 415. 28Sehrauth vs. Dry Dock Sav. Bank, 86 IST. Y. 390; Wright vs. Cabot, 89 li. Y. 576 ; Bice vs. Jones, 103 N". C. 226 ; Grand Lodge Knights of Pytliias vs. Manhattan Savings Institiition, 68 ]S". Y. State Rep. 132. 29 Webb vs. Overman, 6 Abb. Pr. (IT. Y.) 92; McArthur vs. Haysord, 11 Paige (1^. Y.), 495. ^"Van Rensselaer vs. Sheriff of Onondaga, 1 Cow. (W. Y.) 443. 172 SUPPLBMENTABY PROCEEDINGS. a widow'' ^ and an annuity bequeathed to a widow in lieiu of dower.^^ So may tlie inteirest of the debtor in a contraxit foi the purchase of real estate.^'' The judge may compel the debtor to convey to the receiver any property which he has outside of the State.^* Money due on a contract for work, if not exempt, may be reached.^^ So may any annuity which is due.** All choses in action that are assignable may be reached by an. or- der. Thus, a bank account may be reached.^'' So may a right of action for damages upon contract.*^ So may a seat in an exchange, and the debtor may be compelled to sign a consent that tlie purchaser of such seat be vested with all rights and benefits which inure to his membership, and the exchange may be compelled to receive and accept such new member and fully recognize his membership.^® A judgment in an action for tort may be reached by an or- der.** So may a patent-right.*-' But property which the debtor acquires after the making of the order for examination cannot be reached.*^ So it is said that debts which fall due "Boali vs. Coates, 33 Barb. 498. ^'^Degrauvs. Clason, 11 Paige (N. Y.), 136. s^EUsworth vs. Cuyler, 9 Paige (K Y.) 418. 3*Bunn vs. Fonda, 2 Code Kep. (E. Y.) TO ; First Nat. Bank of Canandaigua vs. Martin, 49 Hun (N. Y.), 574. 35Burnett vs. Eicker, 13 IsT. Y. Civ. Pro. Rep. 338. 3«Gifford vs. Eising, 28 IST. Y. State Eep. 310. "23 K Y. State Eep. 218. *«Tan Broeck vs. Sloe, 13 How. Pr. (IST. Y.) 26. ^^Eitterbrand vs. Baggett, 4 Abb. N". C. (IST. Y.), 67; Eoome vs. Swan, 15 IST. Y. Civ. Pro. Eep. 344; Powell vs. Waldron, 89 K Y. 328. *"Mallory vs. Norton, 23 Barb. 424. ^^Bames vs. Morgan, 3 Hun (N. Y.), 703 ; Gillett vs. Bates, 86 K Y. 87. ^^McGivney vs. Childs, 41 Hun (IST. Y.), 607; Atkinson vs. Sewine, 11 Abb. Pr. K S. (N. Y.) 304; Potter vs. Low, 16 How. Pr. (IST. Y.) 549 ; Guregani vs. Wheelwright, 3 Abb. Pr. ]Sr. S. (IST. Y.) 264; Albright Vs. Tvompton, 4 N. Y. Civ. Pro. Eep. 16; Columbian, Institute vs. Cregan, 11 IST. Y. Civ. Pro. Eep. 87 ; First Nat. Bank vs. Beardsley, 8 K Y. Week. Dig. 7. Okdee fob Dbliveby of Money oe Peopeety. 1Y3 after the service of the original order of eixajnination cannot be reached. § 3. Oedee Peemittikg Peeson Indebted to Pay Debt to Sheeiff. After an order for examination is granted and before a re- ceiver has been appointed, the judge by whom the order or warrant was granted or to whom it is returnable, may, upon proof, by affidavit, that a person or corporation is indebted to the debtor, for a debt which if paid to the debtor would not be exempt, and upon such notice, given to such persons, ■ as. he deems just, or without notice make an order permitting the person or corporation, to pay to a sheriff, designated in the order, a sum, on account of the alleged indebtedness, not ex- ceeding the sum which will satisfy the execution. A payment thus made is to tlie extent thereof, a discharge of the indebted- ness, except as against a transferee from the judgment-debtor, in good faith and for a valuable consideration, of whose rights tlie person or corporation had actual or constructive notice, when the payment was niade.*^ If the sheriff does not then hold an execution upon the judg- ment against the property of the debtor, he has the same rights and powers, and is subject to the same duties and liabilities with respect to money or property so delivered to him by virtue of an order in supplementary proceedings, as if the money had been collected, or the property had bean levied upon by him, by virtue of such an execution.'''' After a receiver has been ap- pointed, or a receiveirship hais been extended to the special pro- ceedings, the judge must, by order, direct the sheriff to pay the money or the proceeds of the property, to the receiver ; or if the case so requires, to deliver to* the receiver the property in his «DufEeld vs. Ilorton, Y3 N. Y. 218, IQ Him (:N'. Y.), 140; Gibson vs. Ilaggerty, 37 IST. Y. 555; Code Civ. Pro. (N. Y.) sec. 2446. ^*Code Civ. Pro. (1ST. y.) gee. 2448; Adams vs. Welsh, 43 ]ST. Y. Su])r. Ct. 52 ; Baker vs, Kenworthy, 41 W. Y. 215. 174 SuPPiEMENTAKY PllOCEEDINGS. hands. But if it appears that an order, appointing a receiver or ecxtending a receivership is not necessary, he may by an or- der reciting that fact, direct the sheriff to apply the money so paid, or the proceeds of the property so delivered upon an exe^- cution in favor of the creditor, issiied either before or after the paymaat or delivery to the sheriff.*" Where the money is paid or property is delivered to the sheriff or to a receiver by order of a judge, and afterwards the special proceedings are discon- tinued or dismissed, or the judgment is satisfied without resort- ing to that money or property; or a balance of the money, or of the proceeds of the property, or a part of the property, re- mains in the sheriff's or receiver's hands, after satisfying the judgment and the costs and expenses of the special proceed- ings, the judge must make an order directing the sheriff or re- ceiver, as the case may be, 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 Civ. Pro. (IST. Y.) 2449 ; Ward vs. Petrie^ 157 K Y. 301. *«Code Civ. Pro. (N". Y.) sec. 2450 ; Moore vs. Duffy, 74 Hun (K Y.) 78; Stiefel vs. Berlin, 28 App. Div. (N. Y.) 103; Whyte vs. Denike, 53 App. Div. (IST. Y.) 425; Kennedy vs. Carrick, 18 Misc. (IST. Y.) 41; Grand Lodge K. P. vs. Manhat- tan Sav. Inst., 25 W. Y. Civ. Pro. Rep. 44. Proceedings fob Appointment up E/Eceiver. 175 CHAPTER XIII. RECEIVER. 1. Appointment Before Examina- tion. 2. Appointment Before Return of Execution. 3. Who Maj' Appoint Receivers. 4. Who May Not Act as Receiver. 5. Proof of Property Belonging to Debtor. § U. Notice of Application for Order Appointing Receiver. § 7. Notice to Other Creditors. § S. Order Appointing Receiver. § 9. Order Extending Receivership. § 10. Completing Receivership. § 11. Proceedings Under Receiver. § 12. Vesting Property in Receiver. § 13. Power of Receiver. § 1. Appointment Befohe Examination. In ^ew York and in tkose States following tlie Xew York practice, the statutes provide that at any time after making an order requiring the judgmen1>debtor, or any other person, to attend and be examined, or issuing a warrant in these proceed- ings for the examination of the debtor, the judge to whom the order or warrant is returnable may make an order, appointing a receiver of the property of the judgment-debtor. -"^ iWard vs. Petrie, 1&7 IS^. Y. 301 ; Sparks vs. Davis, 25 S. C. 381 ; Hathaway vs. Brady, 26 Cal. 581 ; Conner vs. Todd, 48 :N". J. L. 361 ; Teats vs. Herington Bank, 58 Kan. 721 ; Towne vs. Campbell, 35 Minn. 232 ; Coates vs. Wilkes, 92 IST. C. 376 ; Wright vs. Nostrand, 94 N". Y. 43; Code Civ. Pro. (E". Y.) sec. 2464; Pool vs. Safford, 14 Hun (IST. Y.), 369; Dilling vs. Foster, 21 S. C. 334; Wing vs. Disse, 15 Hun (]N". Y.), 190; Eand vs. Rand, 78 IS^. C. 12 ; Smith vs. Fozer, 42 Hun (N. Y.), 22, 11 ]Sr. Y. Civ. Pro. Rep. 343 ; Colton vs. Bigelow, 41 IST. J. L. 266 ; Terry vs. Bange, 57 K Y. Supr. Ct 552 ; Flint vs. Webb, 25 Minn. 263; Finin vs. Mallory, 33 K Y. Supr. Ct. 385 ; Matter of Weld, 34 App. Div. (K Y.) 471 ; Canandaigua First 'Na.t. Bank vs. Martin, 49 Hun (IST. T.), 573 ; Darrow vs. Lee, 16 Abb. Pr. (IST. Y.) 217; Lindsley vs. Van C'ortlandt, 67 Hun (K Y.), 145; Webb vs. Osborne, 15 Daly (N. Y.), 406 ; De Vivier vs. Smvth, 1 How. Pr. K S. (K Y.) 48. 170 SuPPLEMJiJSfTAEY PliOOEJiDlNGS. Tlie only yei'iuus question in any case is, kas the creditor de- li^'ered to tke sheriff of the proper county an execution which is et&'eotive to exhaust his remedy at law ? It is not enough, it seems, that forms have been obsen'ed by the issuing or by the return of an execution which was not effective to reach all the debtor's property. It seems to be the rule that the right to an order appointing a receiver does not arise unless at the time of the application for the order the creditor has a judgment which is a lien on the debtor's real estate^ so that the receiver could reach it as well as his personalty.- The law-makers have, it seems, paid no attention to the question of the lien of the exe- cution. They have provided for the appointment of a receiver before the service of the order for exam.ination oa* the warrant, as the case may be.^ If a receiver can be appointed at any time after the making of an order for examination in either of the special proceedings, or a warrant in lieu of an order of ex- amination, upon two days' notice to the debtor, it would seem that tke debtor's property could be taken from him before he had a chance even to see tke application for tke order of exami- nation OT tke warrant, as tke case may be.* Tke statutes do not provide for tke service of tke affidavit used by tke creditor in obtaining tke order of examination or warrant, as tke case may be, on tke debtor. It would seem from tke literal reading of tke statute tkat tke creditor may, after issuing an execution to tke skeriff and obtaining an order of ex- amination for a person wkiok ke claims is indebted to tke debtor, upon two days' notice of an application given to tke debtor, and upon application to the judge to whom the order is ^Importers & Traders' ISTat. Bank vs. Quackenbush, 143 W. Y 567, 62 ]ST. Y. State Eep. 781. ^Code Civ. Pro. (N. Y.) sec. 2464; Croot vs. G-reeley, 5 K Y. L. Bui. 69 ; lie Vivier vs. Smitk, 6 IsT. y. Civ. Pro. Rep. 395, 1 How. Pr. 'N. S. (1ST. y.) 49; Union Bank vs. Sergeant. 35 How. Pr. (ISr. Y.) 87. *Peoplevs. Mead, 29 How. Pr. (N". Y.) 360; Code Civ. Pro. (N. Y.) sec. 2464. ; ^Code Civ. Pro. (IST. Y.) see. 2441. Peoceedings for Appointment ok Reoeivbe. 177 returnable, obtain an order appointing a receiver of the debtor's property, and then serve the order of examination and the papers upon which it is founded at any future time that is most convenient to him. The debtor is not entitled, as a matter of right, to notice even of the proceedings against the third per- son. According to the literal reading of the statute a debtor must allow a receiveo- to take his propecrty, and rely upon the generosity of tlie creditor or third person to allow him to see the application for the order of examination.® That a receiver may, in tbe discretion of the judge, be appointed immediately upon the- granting of the order for the examination, where the applicant upon application for such order has shown all the necessary jurisdictional facts, there can be no doubt. Where the debtor has had an opportunity to examine the applicaticm for the order of examination and to oppose the motion for an appointment of a receiver, such practice, it seems, is safe, and the better practice, inasmuch as it secures to the prosecutino^ creditor that priority of lien upon his debtor's property which his vigilance justly entitles him to, and where the debtor has had time to examine the records and tbe application for the order of examination it is not perceived how in any case harm can result to the debtor by the appointment of a receiver in the first instance; but tbe debtor must have a chance to examine, not only the creditor's application for an order of examination, but the order founded thereon. The ser^dce of a notice of ap- plication for a. receiver, standing alone, should not be deemed sufficient. The injunction order which the creditor is entitled to is generally a sufficient protection to him until tbe debtor can be heard in the matter. '^ § 2. Appointment Bepoee the Return of Execution. By the literal reading of the !N'e\v York Code of Civil Pro- cedure a receiver may be appointed at any time after the issu- «Oode Civ. Pro. fN". Y.) sees. 2441, 2464. ^Code Civ. Pro. CR. Y.) sec 24.51. 12 178 Supplementary Puoceedings. ing of an execution to the sheriff of tlie propeo- county, when an order for examination of the debtor or a third person, or a warrant for the examination of the debtor, founded on such ex- ecution, has been granted.* But to entitle the creditor to an order appointing a receiver he must show that he was entitled to an order of examination or to a warrant, as the case may be.^ The application for the order of examination or for the warrant, as the case may be, must show all the jurisdictional facts, with some particularity.^" Such application must show that the debtor has not siifficient tangible property, which is not exempt from sale to pay the debt. He must also show that the execution is in the sheriff's hands, ■'■' and that the debtor has choses in action, or moner^' which is not exempt by law, and which he has refused upon demand to apply tO' the payment of ,the debt.^^ The applicant must state facts and circumstances from which the court may determine whether the debtor's refusal to apply any specific property was unjust or whether the remedy of the creditor by execution is inadeqtiate.-^* Where the application for the appointment of a receiver is made at the time of the return of the order of examination or prior to such return, the creditor must sho-w clearly every jurisdictional fact, sCode Civ. Pro. (IST. Y.) sees. 2436, 2437, 2441, 2454. »Frost vs. Craig, 18 N. Y. Civ. Pro. R«p. 296; Code Civ. Pro. (ISr. Y.) sec?. 2437, 2441; Denning vs. Schieffelin, 26 K Y. State Pep. 96; Smith vs. Weeks, 60 Wis. 94. "Mauken vs. Pae, 65 How. Pr. (:S. Y.) 453; Levy vs. Beacham, 64 Hun (JST. Y. ), 62; Jennings vs. Lancaster, 15 Misc. fN. Y.) 446; Hinsdale vs. Sinclair, 83 JST. C. 343; Woodward vs. Hall, 73 AVis. 406 : ]\ratter of Albanv First ISTa-t. Bank, 53 App. Div. (K Y.) 601. "Matter of Albany First ITat. Bank, 52 App. Div. (N. Y.) 601 ; Bale vk. Benninghnf, 5 Ind. App. 522. i^CodeCiv. Pro. (K Y.) sees. 2436, 2437; Hutson vs. Weld, 38 Hun (N. Y.), 143; Farmers", etc. Jv'at. Bank va. Bums, 109 N. C. 108 ; Smith vs. Weeks, 60 Wi>^. 94 : Dillman vs. Dillman, 90 Ind. 385. ^^Matter of Albany First ISFnt. Bank, 52 App. Div. (N. Y.) 60] : Cuslnnaji vs. Gefliart, 97 TiuL 49. Proceedings foe Appointment of Receivee. 179 and upon. tJie return day of the notice of application the debtor may raise every objection tliat he could raise upon a motion to vacate the order of examination ur tlie wairant, as the case may be.^'* The debtor may aloi.i, where tlie application for a recei\'er is founded upon an order of examination or upon a warrant granted before the return of an execution, controvert any facts in the creditor's application for tlie order of exami- nation, or foT the warrant, as the case may be. It seems that the creditor must show that the execution is one upon which the debtor's real estate may be sold.^^ § 3. Who JVIay Appoint Regeivee. The order appointing a receiver in these proceedings must be made by the judge before whom the order for examination or the warrant, as the case may be, is made returnable;-'^ and tbe order or warrant may be made returnable before any judge who has power to entertain these proceedings.^' The judge before whom the proceedings are continued is deemed to be the judge before whom an order or warrant is re- turnable.-'® The order is a chamber order, ^^ though it must be filed in the office of the clerk of the court out of which the exe- cution issued.^** Wbile an order of examination or a warrant may be granted in special cases by any Supreme Court justice in tbe State and at any place in the State, all proceedings after the granting of the order or warrant, as the case may be, must be made returnable before a judge in the district and in the i^Manken vs. Pac, 6.5 How. Pr. (JST. Y.) 453; Levy vs. Beacbam, 64 Hun (X. Y. ), 62; Rome First J!Tat. Bank vs. Wilson, 13 Hun (K Y.), 232. ^^Importers & Traders' iSTat. Bank vs. Quackenbush, 143 ]Sr. Y. 562, 62 X. Y. Stale Rep. 781. "Code Civ. Pro. (i\^. Y.) sec. 2464. "Code Civ. Pro. (X. Y.) sec. 2434; Hyatt vs. Dusenbury, 12 K Y. Civ. Pro. Rep. 152, 5 K Y. State Rep. 846. i^Code Civ. Pro. (K Y.) sees. 26, 52, 279 and 2464. "Ball vs. Goodenough, 37 How. Pr. (X. Y.) 479. ^ojVTover vs. Mover, 7 App. Div. (IST. Y.) 525. 180 SuPPLEMJiJN'TAJiY PltOUIiBDIMUtt. county where tlie judgmentrdebtor resided or where he had a place for the regular transaction of business in person at the time liie order or warrant, as the caae may be, was served.^ ^ That is to say, where a judgment-debtoir resided in one counly and an order for the examination of a debtor of such judgment- debtor who resides in another coimty is made, such order must be made returnable in the county where the judgment-debtor resided at the time the order was served. And proceedings for the appointment of a receiver must be had in the county where the judgment-debtor resides, or where he resided at the time of the service of the order, and cannot be prosecuted elsewhera^^ § 4. Who Mat Act as Eeceivee. No one can be appointed a receiver who is not a resident of the State.^^ In ISTew York city a clerk, deputy clerk, special deputy clerk or assistant in the clerk's office of a coiirt of record within the county cannot be appointed receiver.^* § 5. Peoof of Pkopertt Belonging to Debtoe. Where the application for an order appointing a receiver is made before the examination the applicant is not bound to show anything except that he is entitled to an order of examination, or a waiTant, as the case may lie.^° That is to say, the order of examination or the warrant, as the case may bo, the application upon which it was founded, with proof of the service of such papers, and a notice of the application for the appointment of a receiver, upon the judgment-debtor two days or more before the time fixed for tlie hearing of the application is all that the creditor is required to present to the judge in order to make a prima facie case.^" ' 2iQj^g, QiY_ pro^ (•j^_ Y.) sees. 2434, 2459, 2464; Gilder- sleeve vs. Tester, 69 Him (IST. Y.) 344. 22Merrill vs. Allen, 46 Hun (IS^. Y.), 626, 627. 23Code Giv. Pro. CN. Y.) sec. 2469, subd. 5. 2*Code Giv. Pro. (li^. Y.) sec. 90. 2»Gode Giv. Pro^ (N". Y.) sec. 2464. 28Gode Giv. Pro. (IsL Y.) sec. 2464. Peoceedings foe Appointment of Reoeivei:. 181 The rule is different, it seems, where the application is made after the examination is closed.^ ^ In the latter case while it is not necessary that it should appear with certainty that the debtor has property which should be applied on the judgment, it should appear that there is a reasonable ground to believe that he has. Mere suspicion or siirmise falls fax short of what is required to justify the exeircise of a, power which should be sparingly used.^* Where the application for the appointment of a receiver is made upon the return of an order or upon the retaim of a warrant personally served for the examination of the debtor, no proof of property owned by the debtor except such as appears in the application for the order or warrant, as the case may be, is required. The creditor must, however, have made a case in his appli- cation for the order of examination or for the warrant, as the case may be. He is not entitled -to an order appointing a re- ceiver unlras he produced proof upon his application for the order of examination or for the warrant, as the case may be, of every jurisdictional fact.^® In these cases no notice of the application for the appointment of the receiver is required ; and the debtor upon tlie return of the order of examina- tion or the warraxLt, as the case may be, may attack the cred- itor's application for the order of examination, or for the war- "Bxmn vs. Dalv, 24 Hun (IST. Y.), 526 ; Rodman vs. Harvey, 102 ISr. C. 3 ; Gibney vs.' Reilly, 26 Misc. (N. Y.) 375 ; Faneuil Hall ISTat. Bank vs. Bussing, 147 IST. Y. 671 ; Billing vs. Foster, 21 S. C. 334; Importers & Traders' Xat. Bank vs. Quacken- bush, 143 N. Y. 567; Heroy vs. Gibson, 10 Bosw. (N. Y.) 591; Holton vs. Burton, 78 Wise. 323; Merchants' Nat. Bank vs. Braithwaite, 7 N. D. 369. ^^Journey vs. Brown, 26 IST. J. L. Ill ; DeOamp vs. Deonp- sey, 10 N. Y. Giv. Pro. Rep. 213 ; Ormes vs. Baker, 17 IST. Y. Week. Dig. 105; Hoyt vs. Mami, 7 X. Y. State Rep. 346; Cbates vs. Wilkes, 92 IST. C. 380 ; Br^-an vs. Grant, 67 Hun (IST. Y.) 70; Hancock vs. Sears, 93 N. Y. 81; Gibnev vs. Really, 26 Misc. (K Y.) 275. 290ode Giv. Pro. (^. Y.) sees. 2434. 243.-;, 2436, 2437, 2441. 182 SuPPLEMENTAKY PrOCEEIJINGK. rant, as the case may be; and he may show any fact that will tend to controvert the creditor's proof or that will show that the creditor is not entitled to any warrant or order. § 6. Notice of Application foe Obdee Appointing Re- ceiver. Before a receiver can be appointed notice of the application for the order inilst be given personally tO' the debtor, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the State.^" The notice must be in writing and served personally upon the debtor. It must not foi the time for the application for a time less than two days after it is served.^ ''■ Where the judge is satisfied that the debtor cannot, with reasonable diligence, be found within the State, and he ex- cuses the personal service of a notice of the application for an order appointing the receiver upon him, the order must recite that fact and that such, notice is dispensed with.^^ The order should recite that the debtor cannot be found within the State, or there must be some equivalent recital.^^ Though the statute allows the judge to appoint a receiver at the close of the exami- nation without any other notice to the debtor,^* yet personal ^nVhitney vs. Welch, 2 Abb. IST. C. (IST. Y.) 442; Ashley vs. Turner, 10 IST. T. Week. Dig. 444; Catholic University vs. Conrad, 27 Misc. (N. Y.) 326; Grace vs. Curtiss, 3 Misc. (K Y.) 558; Strohn vs. Epstein, 6 IST. Y. Civ. Pro. Rep. 36; Henrv vs. Furbish, 30 Misc. (X. Y.) 822. siCode Civ. Pro. (K Y.) sec. 24«4 : De A'i^der vs. Smith, 6 'N. Y. Civ. Pro. Pep. 394: Merrill vs. AUin, 46 Hun (N. Y.) 626; Clark vs. Clark, 11 Abb. N. C. (N. Y.) 333; Hancock vs. Sears, 4 ?\^. Y. Civ. Prartj defendant will be granted nunc pro tunc.''^ X recc'i\t^r rcipresents the creditor, and possesses the same rights as the creditor under whose judgment he was appointed to prosecute actions, to seft 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 may follow the fund or ])roceeds of the sale thereof into the posses- sion of any person not a hand fide owner thereof.'* While the receiver cannot take the exempt property of the debtor from him,''^ nor taJse forcible possession of property held by a third person who claims to own it,^** he may take the property of the debtor from such debtor.*-' A chattel mortgage, executed be^ fore but not filed until after the order of examination is served, is void as to the receiver.*^ So the title of the receiver to claims upon which the debtor has brought suit is superior to that of an assignee of the judgment-debtor, under an assignment made subsequent to the filing of the order appointing the receiver.*^ Whenever a recei-\'er appointed in these proceedings applies for leave to bring an action, he must present and file with his application, the vsrritten request of tlie creditor in whose behalf he was appointed, that such action be brought or else h.e must file with such application a bond, with sufBcient sureties, ap- proved by the court, to the person against whom the action is to be brought, conditioned for the payment of any costs which may be recovered against such receiver ; and leave to bring an action cannot be granted, except upon such written request, or ■'^Hirshfield vs. Kelischer, 81 Hun (N. Y. ) 606. "Mandeville vs. Averv, 124 N. Y. 376, 26 IST. Y. State Eep. 342. '«Fenninvs. Molloz, 33 W. Y Supr. Ct. 382; Code Civ. Pro. {E.Y.) sec. 2463. '^Dewey vs. Fimi, 18 K Y. Week. Dig. 558. *"Van Eensselaer vs. Enerv, 9 How. Pr. (N. Y. ) 135. "Clark vs. Gilbert, 10 Daly (K Y.), 316. ^^Fitzpatrick vs. Moses, 34'.\pp. Div. (N. y.) 242. «3Eule75 (W. Y.) R. C. i'owEKs A.\i> Dlttucw of Iveceivek. 11>3 on the gi^ing of such seciirit}.*'' This rule applies to an appeal talten by a receiver.*^' Upon the trial of an action by or against a receiver, the production of an order duly made by a judge authorized by la,w to make it, reciting facts necessary to give such judge jurisdiction to act in the proceedings furnishes con- clusive evidence of the regularity of such order, and -prima facie evidence of the existence of the facts necessary to confer juris- diction.^® Where the debtor refuses to deliver property to the received upon demand, the receiver may sue in trover or he may replevy the property.*' It seems that the receiver may recover of the sheriff or of a judgment-creditor for any personalty sold by such sheriff which was levied iipon after the order for ex- amination was served,*® yet it seems that the receiver cannot maintain an action to reach lands paid for by the debtor, and deeded to another ; such action, it seems, rawst be brought by the creditor direct. «*Kifford vs. Rising, 48 Hun (N. Y.), 128. *^Palmer vs. Coville, 45 N. Y. State Rep. Y06 ; Wright vs. ISTostrand, 94 ~S. Y. 45. *«G-ardner vs. Smitli, 29 Bai-b. 68. "Code Civ. Pro. (N. Y.) sees. 2468, 2469; Pessenden vs. Woods, 3 Bosw. (N. Y.) 550. ««ITnderVood vs- Sutliffe, 77 N. Y. 58. 13. 194 Supplementary Peoceedings. CHAPTER XIV. CONTEMPT PEOCEEDIlsGS. § 1. §■'2. § 3. § 4. § 7. Preliminary Observations. Acts that are Punishable. When Punishment may be Sum- mary. Warrant to Commit Without Notice. Order to Show Cause. Interrogatories, Necessary When. Order Directing Offender Pun- ished. 8. Punishment. 9. Punishment on Habeas Corpus Proceedings. 10. Proceedings Under an Order to Show Cause. 11. Amount of Fine. 12. Length of Imprisonment. 13. Jail Liberties. 14. Release of Offender. 1,5. Undertaking for Indemnity. § 1. Pbeliminart Oeseevations. Proceedings for contempt are themselves special proceed- ings, independent of the action or special proceedings in which they may be taken; and an order made therein cannot be re- garded as an order made in the course of the original proceed- ings.^ A court of record has power to punish by fine and im- prisonment, or either, a neglect or violation of duty or other m.iscondiTct by which a right or remedy of a party to a special proceeding, pending in the court, may be defeated, impaired, impeded or prejudiced.^ A person who refuses or ^vithout suf- ficient 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 to him by a jiidge or referee, in the course of the special proceedings, or to attend before a judge or referee; according to the coinmand of a subpoiena duly iPeople vs. Warner, 31 Hun (¥. Y.), 53, 20 N. Y. State Rep. 5Y3 ; aff'd 125 IST. Y. 746 ; Moschell vs. Boor, 50 IST. Y. State Rep. 238. = Oode Civ. Pro. (K Y.) sec. 14. OojsTTBMPT Proceedings. 195 served upon liiiii, may be punished by tbe judge, or by the court out of which tlie execution was issued.'^ The Supreme Court in ,New Vorlc seems to have power to punish a party disobeying aji order of a judge made out of court, whether the proceedings was upon a judgment of that court of not.'' Any judge who has power tq gTant an order in these proceedings has power to punish a person for disobeying it.^ The word "judge" in the statute means (probably) either the judge who grants the order for eEsamination or the judge before whom the proceedings are made returnable.® A motion in contempt proceedings noticed before one judge may be con- tinued before his successor in office.^ § 2. Acts That aee Punishabi^e. 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 wilful disobedience tO' its mandates. In tbe former case the purpose being to preserve private rights, it is inunaterial whether the contempt was de- signedly or negligently committed; the power and -duty of the judge 01- court to redress the wrongs of the injiired party are - tihe same.^ Any person may be punished for contempt in every juris- diction who refuses or without sufficient cause neglects to obey , sCode Civ. Pro. (K Y.) sec. 2457. *Smith vs. Tozer, 11 IST. Y. Civ. Pro. Eep. 349 ; Tremain vs. Richardson, 68 ll^T. Y. 617 ; Hagenuan vs. Tong Lee, 12 ISTev. 335. ■ ^Oode Civ. Pro. (N". Y.) sees. 2434, 2457, 2462. "Blanchard vs. Eeilly, 11 IST. Y. Civ. Pro. Rep. 278; Wicker vs. Dresser, 13 How. Pr. (IST. Y.) 331; Kelly vs. McCormick, 2 E. D. Smith (K Y.), 503; Code Civ. Pro. (W. Y.) sees. 2434, 2437, 2457 ; Aldrich vs. Davis, 46 K Y: State Rep. 587. ■^Gamman vs. Berry, 34 ITun (ST. Y.), 138. ^People vs. Aitken, 19 Hun (1ST. y^^ 32Y. 196 Sui'plemejmtaky Peocebdings. a valid order of a judge or referee duly served ujiou him, or a proper oral direction given directly to him, by such judge or referee.* All statutes providing for conteanpt proceedings must be con- strued strictly, and all proceedings under them must foUov? the statute strictly, or no authority is conferred by them. They are proceedings in which a debtor on a debt on contract may be imprisoned, and the paxty seeking to emforce the remedy must strictly comply with the law.-*" These proceedings are not to be lightly entertained. In a proper case the court should not »Code Civ. Pro. (IST. Y.) sec. 2457 ; Matter of Pester, 2 Code Rep. (K Y.) 98; Tompkins County Bank vs. Trapp, 21 How. Pr. (S. Y.) 19 ; In re Perry, 30 Wis. 268 ; Ex part© Kellogg, 64 Cal. 343; Clapp vs. Lathrop, 23 How. Pr.' (K. Y.) 441; In re Milbum, 59 Wis. 24; Holstein vs. Rice, 24 How. Pr. (JSr. Y.) 137; Ross vs. Clussman, Code Rep. N. S. (N. Y.) '.•7; People vs. Mead, 29 How. Pr. (K Y.) 357; Kennesaw Mills Co. vs. Wa.lker, 19 S. C. Ill; Deposit Nat. Bank vs. Wickham, 40 How. Pr. (N". Y.) 422 ; White vs. Gates, 42 Ohio St. 112; Kearney's Case, 13 Abb. Pr. (1ST. y_) 459. ghultz vs. Andrews, 54 How. Pr. (N". Y.) 378; Gillett vs. Hilton, 11 JST. Y. Civ. Pro. Rep. IDS ; Fanner vs. Hoffman, 67 Iowa, 678 ; Wilcox vs. Haa-ris, 59 How. Pr. (IST. Y.) 262; Union Bank vs. Union Banlc, 6 Ohio St. 262 ; Howe vs. Welch, 11 N. Y. Civ. Pro. Rep. 444; Kendrick vs. Wandall, 88 Hun (K Y.) 519; Ex parte Latimei-, 47 Cal. 131 ; Fenner vs. Sanborn, 37 Barb. 610 ; Towne vs. Campbell, 35 Minn. 232 ; Mattel- of Hatfield, 17 App. Div. (1ST. Y.) 430 ; Smith vs. Tozer, 11 IST. Y. Civ. Pro. Rep. 349; Shepard vs. Kent Circuit Judge, 109 Mich. 606; Jackson vs. Murray, 25 App. Div. (IST. Y.) 140; Reaxdon vs. Henry, 82 Iowa, 130; Rugg vs. Spencer, 59 Barb. 383 ; Matter of Burrows, 33 Kan. 675 ; Utica City Banlc vs. BueU, 9 Abb. Pr. (IST. Y.) 385; Bernheimer vs. Kellelier, 31 Misc. (IST. Y.) 464; Sickles vs. Hanly, 4 Abb. N. C. (IST. Y.) 231 ; McDonnell vs. Henderson, 74 Iowa, 619; Brush vs. Lee, 6 Abb. Pr. N. S. (K Y.) 50. i»Ludlow vs. Knox, 7 Abb. Pr. N. S. (N. Y.) 411 ; Smith vs. Weeks, 60 Wis. 107; Holstein vs. Rice, 24 How. Pr. (N. Y.) 139. Contempt Peoceedings. 197 be slo'W to assert and enforce its authority, but its sumniaj-y process in this regard can be invoked only in the cases prei- scribed by statute.^' A party who interferes with a witness who is being sworn may be punished for contempt. ^^ But it seems that a debtor who comniits perjury as to his property cannot be punished therefor by contempt proceedings.'* A debtor or a third person who fails to appear at the time and place fixed in an order for examination, where the application foT the order gave the judge jurisdiction to make it, and ^vhere such order has been duly served upon him, may be punished for contempt, if the order was one which the judge had the power to maka^* The same rule applies where a person fails to appear as directed on an adjourned day, though the adjourn- ment was made in his absence by consent of his attorney.^® An affidavit showing a direction by a referee and a failure of a party to attend as directed is necess.ary, and the certificate of the referee as to such facts is not sufiicient.^® In every con- tempt proceeding the party against whom it is instituted may attack the order which he is charged with disobeying, by show- ing that the judge or referee, as the case may be, had no power "Code Civ. Pro. CR. Y.) sec. 2281; Matter of Swenarton vs. Shupe, 40 Hun (I^. Y.), 41; Brenheimer vs. Kelleher, 31 Misc. (W. Y.) 464. ' • ' i^Matter of Falkenberg, 19 Misc. ^N. Y.) 418. ^^Bemiieimer vs. Kelleher, 31 Misc. (IST. Y.) 464. i*Parker vs. Hunt, 15 Abb. Pr. (1^. Y.) 410; Perkins vs. Kendall, 3 E". Y Civ. Pro. Rep. 240 ; Lamote vs. Pierce, 34 Wis. 483; People vs. Kenny, 4 Thomp. & C. (W. Y.) 572; Shepard vs. Kent Circuit Judge, 109 Mich. 606 ; Fleming vs. Tourgee, 21 'N. Y. Civ. Pro. Rep. 297 ; Lessere vs. Stein, 25 Misc. (ISr. Y.) 423; Shults vs. Andrews, 54 How. Pr. (K Y.) 378; People vs. Warner, 51 Hun (H. Y.), 53; Leonard vs. Jacobson, 27 Misc. (E". Y.) 325; Isaacs vs. Calder, 42 App. Div. (K Y.) 152; Kendrick vs. Wandall, 88 Hun (K Y.), 519; Gibba vs. Prindle, 9 App. Div. (E". Y.) 29. i^Parker vs. Hunt, 15 Abb. Pr. (1ST. y.) 410. i«Code Civ. Pro. fK Y.) sees. 855, 856, 2444, 2457. lyS SuPPLEMEJSTAKY PkOCEJSMKGS. to inalie it." While the creditor has the burden of showing that the order was sen'ed upon the party charged with con- tempt in the manner prescribed by law,^^ it has been said that the party directed to appear must appear and raise his objec- tions, and that he cannot attack the order collaterally, though he may obtain an order setting aside the proof of service. ^^ It is a good excuse that the service of the order was made too short a time before the time at 'which the party was directed to^ appear at a particular place, for the party to reach such place by due diligence.^" Where an order is issued by a judge having jurisdiction of the subject-matter, tlie person upon whom it is duly served has two remedies to pursue, and only two-, if he desires to avoid being- punished for contempt, he must either obey it or obtain an order setting it aside. Eveai if it be erroneous he has no right to disregard it.^-' If the party served with the ordeir is at the time of the service exempt from the service of such an order he must present proof of his exemption to the jiidge or court in some of the modes prescribed by law. He has no right.:to disobey the order.^" So in every case where an ordetr is duly served upon a party he cannot obtain relief therefrom upon the ground of tlie irregularity of the creditor, or the irreg- ularitj' in the papers upon which the order is founded, or upon i^Kennedy vs. Weed, 10 Abb. Pr. (N. Y.) 62: Smith vs. Tozer, 11 IST. Y. Tiv. Pro. Rep. 349 ; DeWitt vs. Dennis, 30 How. Pr. (1ST. Y.) 131; Muldoon vs. Pierz, 1 Abb. N. C. (N. Y.) 309; Gilbert vs. Frothiusrham, 13 X. Y. Civ. Pro. Rep. 288. I'People vs. Warner, 51 Hun (~N. Y.), .^3. "Billings vs. Carver, .54 Riirb. 40; Fretcher vs. Francko, 21 W. Y. Civ. Pro. Rei-i. 34. 20Gibbs vs. Prindle, 9 App. Di^'. ("NT. Y.) 29. -iHiltonvs. Patterson, 18 Abb. Pr. (IST. Y.) 245; Shulta vs. Andrews, 54 How. Pr. (IST, Y.) 378: Flemings vs. Tourgee, 21 ISr. Y. Civ. Pro. Rep. 29'7 ; Arctic F. Ins. Co.' vs. Hicks, 7 Abb. Pr. riS^. Y.) 204; Wilcox vs. Han-is, 59 How. Pr. (K Y.-) 263. ^^Coursen vs. Dearborn, 7 Robt. (N. Y.) 143 ; Hilton vs. Pat- terson, 18 Abb. Pr. (^. Y.) 245. Contempt Peoceedinos. lt>9 the maimer of its service, ecscept upon a motioiL (probably) upon notice to the creditor.^^ Where a person directed to a,t- tend and be examined or served with a subpoena refuses with- out reasonable cause to be examined or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring by tlie terms of the subpoina, or by a direct tion of tlie judge or referee, as the case may be, or to subscribe his deposition after it has been correctly reduced to writing, he is liable to be ptmished for contempt;^* and a party or witness is not excused from answering a question on the ground that his answer will tend to convict him of the commission of a fraud. ^^ Where one is directed by aai order to pay money or deliver articles of personal property to a sheriff, designated in the order, or to a receiver, his refusal to obey the order is- deemed a contempt;^® and when the order is for the payment of money by the debtor he may be punished for its disobedience by precept in the first instance.^''' Thus, a judge who orders fi debtor to pay a judgment may, without any preliminary pro- ceedings, enforce the order by imprisoning the debtor.^* But in these proceedings the ser\'ice of the order for the delivery of property is never, it seems, suiScient,. A demand for the prop- erty, it seems, by the sheriff named in the order, or by the receiver named in the order, is necessary before the party who ^"Spaford vs. Hogan, 22 IST. Y. Week. Dig. 519 ; People vs. ■Tones, 1 Abb. IS^. C. (Isr. Y.) 172; Holbrook vs. Orgler, 40 IST. Y. Supr. Ct. 33. 2 ^People vs. JMarston, 18 Abb. Pr. (IST. Y.) 257; O'Brien's Petition, 24 Wis. 547 ; Lathrop vs. Clapp, 40 N. Y. 328 ; Code Civ. Pro. (]ST. Y.) sees. 2457, 2460. 25rode Civ. Pro. CN. Y.) sec. 2400. 26Code Civ. Pro. (W. Y.) sees. 2447, 2457; Matter of Cara- erick, 34 App. Div. fW. Y.) 31; Matter of Blumenthal, 22 Misc. CK Y.) 704; Tinkev vs. Langdon. 60 How. Pr. (K Y.) 184; Matter of Van Wess, 21 Misc.' CIST. Y.) 249. ^^Brush vs. Lee, 1 Ab1>. Ct- App. Dec. (N. Y.) 238; People vs. King, 9 How. Pr. (IST. Y.) 99. 28Brush vs. lee, 1 Abb. Ct. App. Dec. fX. Y ) 238 ; Bond vs. Bond, 69 K C. 97. 200 SuPPLEMENTAEY PbOCEEDINGS. is directed to dediver tlie property caji be punished for contempt in neglecting to obey the order.^^ So to bring a party into con- tempt for disobeying an order or judgment requiring the pay- ment of money, it is not sufficient that the order or judgment, as the case may be, be served upon him ; a compliance with the order or judgment, as tbe case may be, must be explicitly de- manded by a party who has a right to make such demand ; and when the order is to deliver the money over to a sheriff named in the order, or to a receiver named in the order, the money must be demanded by the sheriff or the receiver named, as the case may be, personally. The proceeding for contempt is stricti juris, and all the rights of the debtor or party ordered to pay tihe money or deliver the property, must be carefully preserved.^" The creditor who applies for an order punishing a debtor, or third person for not delivering property to a sheriff or to a receiver named in an order, as the case may be, has the burden of showing that the party was in control of the property which he was ordered to deliver, that it was not exempt by law, and that it belonged to the debtor.^-' A party bound to obey an injunction order may be guilty of a violation thereof as well by aiding, abetting and countenancing 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 creditor are concerned.^* While the party upon whom an injvmction order is duly served will, as we have seen, be punished for disobeying it,^* ^^McCornb vs. Weaver, 11 Hun (IST. Y.) 271; Reardon vs. Henry, 82 Iowa, 13-1; Gray vs. Cook, 24 How. Pr. (IST. Y.) 434; People vs. King, 9 How. Pr. (IST. Y.) 97. '"Pentonvs. Zeblov, 19 How. Pr. (ST. Y.) 394. "Peters vs. Kerr,' 22 How. Pr. (IST. Y.) 3; Matter of Bur- rows, 33 Kaa. 678. 32Bro\TOing vs. Chadwick, 30 Misc.. (N. Y.) 420. s^The :\layor vs. New York & S. I. Ferry Co., 64 JST. Y. 622. ^*Watson vs. Fitzsimilions, 5 Duer (IST. Y.) 629 ; Stevens vs. De«-ey, l.T App. Div. fX. Y.~) 312; .Vvery vs. Aokert,-20 ^Miso. Contempt Pkoceedings. 201 yet iu cwder to support a ooiiviction for contempt in transfer- ring property whan restrained from doing so', the legal title to the property, the transfer of which forms the alleged contempt, must be proven to ba in the debtor.''^ It must also affirma- tively appear that it was acquired before the order of injunc- tion was served.^'^ It has always been held that the disposition of property a,cqiTired by the debtor after ,the order of injunc- tion was served upon him was not a contem.pt.''* ^ While the fact that the order of injunction was erroneously granted is no ex- cuse for not obeying it, the rule is different where the judge had no jurisdiction to grant it.^* § 3. When Punishment May Be Summabt. When the act constituting the contempt is committed in the presence of the jiidge, or (probably) the referee, upon the trial or hearing, the judge must make ^ an order, stating the facts which constitute the offense and bring the case within the pro- visions of the statute, and plainly and specifically prescribe the punishment to be inflicted therefor.^® The contempt which (K Y.) 631; Mulford vs. Gibbs, 9 App. Div. (N. Y.) 490; G-illet vs. Hilton, 11 IN". Y. Civ. Pro. Eep. 108 ; Cauda vs. G-aU- ner, 73 Hun (N. Y), 493; Prince vs. Brett, 21 App. Div. (IST. Y.) 190; Deposit If at. Bank vs. Wickham, 44 How. Pr. (K Y.) 422; People vs. Kingsland, 3 Abb. Ct. App. Dec. (IST. Y.) 526; Browning vs. Chadwick, 29 'i/I^isa. (N. Y.) 617; Jackson vs. Murray, 25 App. Div. (IST. Y.) 140 ; Wynkoof vs. Myers, 17 K Y. Civ. Pro. Eep. 443 ; Matter of Weld, 34 App. Div. (IST. W.) 471; Rainsford vs. Temple, 3 Misc. (¥. Y.) 294. ssDuffers vs. Cole, 39 1ST. y. State Rep. 838 ; Dean vs. Hyatt, 5 ISr. Y. Week. Dig. 67; Beard vs. Snook, 47 Hun (N. Y.), 168 ; Joline vs. Connelly, 24 IST. Y. Week. Dig. 111. 3«Potter vs. Low, 16 How. Pr. (N. Y.) 549. "McSkiman vs. Knowlton, 20 K Y. Civ. Pro. Eep. 274; Rainsford vs. Temple, 3 Misc. (If. Y.) 294; Gerrogani vs. Wheelwright, 3 Abb. Pr. (N. Y.) 264. ^*Erie Railway Col vs. Ramsey, 45 IST. Y. 637. 89Code Civ. Pro. (N. Y.) sec. 2267; People vs. Kelly, 24 N". Y. 74; Matter of Falkenburg, 19 Misc. (Tf. Y.) 420.' ^Oi! iSuPPl^EMENTAKY PkuOEEDJNGS. can be puiiislied id this summary manaer co^nsists, it seems, of the following acts, and no others: (1) Disorderly, contemptu- ous or insolent behavior, connnitted during the sitting of the judge, or (probablyj the referee, in his immediate view and presence, and directly tending to interrupt his proceedings or to impair the respect due to his authority. (2) Breach of the peace, noise, or othei' disturbance, directly tending to interrupt the proceedings. (3) Wilful disobedience to his lawful man- date. (4) Eesistance wilfully offered to his lawful mandate. (5) Contumacious and unlawful refusal to be sworn as a wit- ness; or, after being sworn, to answer any legal and proper interrogatory. ^° § 4. Waeeant to Commit Without JSTotice. Where the offence consists of a neglect or refusal to obey an order of the judge or court, requiring the payment of costs, or of a specified sum of money, and the court is satisfied by proof, by aflSdavit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money and the costs and expenses of the proceedings are paid, or until he is discharged according to law.*^ The order cannot, however, be made, ex- cept in a case where by law execution cannot be awarded for the collection of such sum.*^ To givp the judge jurisdiction to grant a warrant for coinmitment without notice, it must be shown that a certified copy of the order requiring the payment had been duly served upon the person against whom the war- rant is issued, and that a specific demand had been made for the amount named in the order. *^ A warrant which fails to ^"Stubbs vs. Rvlev, 39 Hun (K Y.), 626 ; People vs. Dwyer, 90 ]Sr. Y. 407; Code Civ. Pro. (K Y.^ sees. 8, 9. 10. 11. "Code Civ. Pro. dST. Y.) sec. 236S. ^^Code Civ, Pro. CX, Y.) gee. 14, subd. 3; Clark vs. Binin- ger. 75 IST. Y 344 : Matter of Hess, 48 Hun (IS^. Y.), 586. ^^Pvckman vs. T?vclr judge, as the case may be, imist deteniiine whether the accused has committed the offence charged.'"' 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.''-^ It is only necessary to file interrogatories Avhcre the proceedings are com.- menced by warrant or habeas corpus.^- Where tlie proceedings are commenced by an order to show cause, an order of reference may be m.ade in lieu of inteirrogatories.''^ Where the accused refuses to put in any written answers, the judge or the court, as the case niay be, may commit him foa- contempt for not answering.'''* On a motion to commit for contempt for dis- obedience, the only issues are as to the regularity of the pro- ceedings under the order and the excuse for disobedience.''® s^DeWitt vs. Dennis, 30 How. Pr. (IST. Y.) 131; Code Civ. Pro. ( N^. Y.) sec. 2280 ; Pitt vs. Davison, 57 'N. Y. 238 ; People vs. Grant, 13 JST. Y. Civ. Pro. Eep. 305. ■«Code Civ. Pro. (K Y.) sec. 2280; Lathrop vs. Clapp, 40 X. Y. 528; People vs. Cartwright, 11 Hun (IST. Y.), 362; Pitt vs.. Davison, 37 N. Y. 235. ''^Brown vs. Anderson, 1 Barb. 227. '-Mayor vs. New York & S. T. Ferry Co., 64 IST. Y. 622. ■^^Roosevelt vs. JEdson, 7 N. Y. Civ. Pro. Rep. 5 ; People vs. Alexander, 3 Hun (K Y.), 211. ■'^DeWitt vs. Dennis, 30 How. Pr. (IST. Y.) 132. ■^"Hilton vs. Patterson, 18 Abb. Pr. (IST. Y.) 245. 208 iSuPPLEMENTABY PfiOCJiJiJJINGS. And the plea tkat the disobedience of the order was harmleea, and the act done ineffectual and a nullity, is no answer to a proceeding to punish the party who disobeyed the order.'''' No inquii-y into the merits of the order will be allowed.''^ Tke usual practice is to send the interrogatories and answers to a referee to exaanine the parties and their witnesses on oath, and t() aiicrtain what injury, if an}-, the relator has sustained in consequence of the disobedience to the- order, with his 'opinion thereon.''* In all tliese cases, in order to constitute a con- tempt, the court or judge, as tlie case may be, must find as a fact and adjudge that the act of Hie accused was such as , to defeat, impair, impede or prejudice a right or remedy of the creditor.'^® It is said that neither the judge nor the court kas any right to take oral testimony on a motion to punish for con- tempt.*" It has also been said that whei*e the debtor fails to appear on the return day of an order of examination, and upon proceedings to punish him for contempt, an order is made by the court directing him to appear at a subsequent day and submit to an examination, such second order is a nullity for the reason that it was made by a court instead' of a judge.*-' Where the proceedings for contempt are sent to a referee, or where the issues are tried in any other way, the affidavits and papers upon which the procee-dings were instituted are not evidence upon the issues, but simply fo^mi the office of pleadings or statements of the charges relied upon. Upon the trial of the ^"People vs. Dwyer, 90 1^]". Y. 402. ''''Koehlei- vs. Farmers & Drovers' Bank, 14 N. Y. Civ. Pro. Rep. 71. '*Code Civ. Pro. (JST. Y.) sec. 2443. ^^Sandford vs. S.andford, 40 Hun (K. Y.), 540, 2 N". Y. State Eep. 133 ; Fisher vs. Eaab, 81 JST. Y. 235 ; Hart vs. John- son, 43 Hun (N. Y.), 505, 7 :N". Y. State Eep. 133. «»King vs. Barnes, 51 Hun (jST. Y.), 550, 22 IST. Y. Staff Rep. 54. *iMcCauley vs. Palmer, 40 Hun (N. Y.), 3S, 2 N. Y. State Rep. 600, 9 N". y. civ. Pro. Rep. 390. , Contempt Peoojsedikgs. ^*^>^ proceedings the ooininon-law rules of ©vidtoce must be- ob- served.** § 7. OeDER JJlKECTlMG AcCUSEU PuNISHED. If it is deteannined that the accused has committed the offence charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to the proceedings brought before the judge, the court or judge, as the case m.ay be, m.ust make an order accordingly, direct- ing that he be punished by fine or im^prisonment, or both, as the nature of the case requires.^^ The warrant of commitment must be issued upon the order.** The order must, however, contain an adjudication of the contempt. That is to say, it must recite that the coutem.pt has impaired or prejudiced the remedy or right of the relator, and the warrant cannot be legally issued without such adju.dication.*^ So if the order of commitment is in the alternative, directing the payment of a fine, or in default thereof, imprisonment, it will be defective.** The order should be recited in the warrant.*^ Where the warrant of commitment recites the jurisdictional facts required by statute, its validity is not affected by its fail- ure to recite the service of the order requiring the performance of the acts for failure to do which the party was adjudged in '^-Matter of Elbridge, 82 iST. Y. 161 ; Fall Brook Coal Co. vs. Heckscher, 6 IST. Y. State Rep. 676. *3Code Civ. Pro. (IST. Y.) sec. 2281; People vs. Sickles, 59 Hun (N. Y.) 342; Matter of Falkenburg, 19 ^klisc. (IST. Y.) 420. »*Kearne5''s Case, 13 Abb. Pr. CN. Y.) 459. «5Blake vs. Bolte, 10 Misc. (N. Y.) 333; Wolfe vs. Buttner, 6 Misc. (K Y.) 120. ""People vs. Sickles, 59 Hun (K Y.), 342; Matter of Fal- kenburg, 19 Miso. (IST. Y.) 420. «'DeWitt vs. Dennis, 30 How. Pr. (IST. Y.) 131; Smith vs. Weeks, 60 Wis. 1 05. 14 310 iSuPPLUMENTAKY PhoCEEDUNGS. contempt.**^ The order must recite the substance of the alleged misconduct, the adjudication of the judge or court, as the case may be, tiiat the misconduct was calculated to and did impair, defeat and prejudice the rights or remedies of the relator, and direct the payment of a line, stating its several items, if any. The costs should be taxed and inserted in the order, as part of the line imposed. Where anything remains to be done to purge the contempt, the order should specify what is to be done, and the manner.'*" Where the waxrajit of conunitmeait of a witness is for refusing to answer a question, it should show that the question was pertinent or legal and proijer in the proceeding pending, and the question which the witness has refused to answer should be set out in haec verba in the commitment.** While this last rule applies more particularly to courts of inferior and limited jurisdiction, the adjudication seems to be necessary in every case.'-'-'^ As a general rule, the propriety of a coramitment 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 tlie conduct charged as constituting the con- tempt must be such that some degree of delinquency or mis- behavior can be predicated of it; for if the act be plainly in- different or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a contempt by «8Matter of Muller, 29 Hun (N. Y.) 418, 51 K Y. State Rep. 2Y. ssPeoplevs. Connor, 15 Abb. Pr. N. S. (IST. Y.) 130; Albany City Bank vs. SchermerhoTu, 9 Paic;e (IST. Y.) 372; Matter of Sims, 32 ¥. Y State Pe]). 1004. ^oDuffus vs. Brown, 46 Hun (K. Y.), 320, 12 ^^ Y. State Rep. 454; People vs. Davidson, 35 Hun (IST. Y.), 471. ® ^People vs. Fancher, 2 Hun (X. Y'.), 226; In re Jones, 6 ]Sr. Y Civ. Pro. Rep. 250; People vs. Bergen, 53 X. Y'. 404; Cleary vs. Christie, 41 Hun (N. Y .) 466; Malion vs. ilahon, 5 ]Sr. y'. Civ. Pro. Rep. 38; Moffat vs. Horma.ii, 116 N. Y. 131, 26 JSr. Y. State Rep. 328, 17 X. Y. Giv. Pro. Rej. 357; Fisher vs. Lanffbein, 103 N. Y. 64. Contempt Peocebdings. iill being adjudged to be so. But the question, whether the alleged oft'endeiT reaiiy com.niitted the act charged is conclusively deter- mined by the order.''- Where a iinal order has been made, convicting a person oi: contempt and pronouncing judgment of iine and iniprisoninent, the proceedings may be reviewed either by an appeal from the order or by a certiorari.^^ But the questions as to whetlier orders in contempt proceedings ara properly served, whether an order of 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^* The court or judge has power to refuse to hear a party while he is in contempt for disobeying its or his order, as the case may be.^^ Yet while a party in contempt, and until he is purged of it, will not b0 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 erroneous.*® § 8. Punishment. In these proceedings, where the order determines that the accused is guilty of the offence charged, and that such offence Vvas calculated to, and did, defeat, impede or prejudice the rights or remedies of the relator, the judge or court, as the case may be, will punish the offender. Where the acts of the ac- cused were not of the kind specified, the accused will not be »2Matter of Hackley, -24- N". Y. 74, 24 How. Pr. CN. Y.) 369. 83People vs. Donolme, 22 Hun (N". Y.), 470, 59 How. Pr. (K Y.) 417. **Wa,trous vs. Kearney, 11 Hun (1ST. y.), 584; People vs. Grant, 13 ^. Y. Civ. Pro. Rep. 305. "^Walker vs. Wallrer, 82 K Y. 260, 20 Hun (IST. Y.), 400; Shelp vs. Morrison, 13 Hun (N". Y.), 110. "^Brinkley vs. Brinkley, 47 ivT. Y. 40 ; Spratt vs. Himtington, 48 How. Pr. (K Y.) 97; Matter of Stuart, 24 Hun (N.Y.), 246. 212 Surri.EMBJ!fTAEY Procisemngs. punish.ed.^'' A dediberate and wilful disobedience of an ordei of the judge or referee is a serious matter, and the due and orderly administration, of justice requires that when a party assumes wilfully to violate an order, relying upon its supposed invalidity, he should not be relieved from substantial punish- ment in case his contention is unfounded ; but the rule is differ- ent where his disobedience is shown to have been the result of a mistake, and that he acted in good faith, or when the disobedi- ence arose from a misconception of the practice.®* Where the alleged contempt is a disobedience of the subpoena of the judge or the referee, as the case may be, the proceediiigs for contempt are prosecuted for the purpose of viadicating the power and dignity of the court whose process the accused has treated with contempt, and not for the purpose of indemnifying the relator for any loss he raay have suffered by reason of the witness failing to testify.^® The fine should, as a general rule, not be fixed until the proper inquiry has been made as to the amount of damages which the relator has suffered by reason of -the accused's miscondtict, and the fine should be made pro- portionate to such damages. ^*° The court or judge usually imposes a fine which is reasonable as shown by the circum- stances. Thus, where the proof does not show that the accused meant to violate the order, no fine will be imposed.-***^ And the "Hilton vs. Patterson, 18 Abb. Pr. (IST. Y.) 245; Smith vs. Drury, 22 IST. Y. Week, Dig. 3 ; Duffus vs. Cole, 39 IST. Y. State Rep. 838 ; Sandford vs. Goodwin, 20 N. Y. Civ. Pro. Rep. 278. »sWilcox vs. Hanis, 59 How. Pr. (N. Y.). 264; Smith vs. Drury, 22 IST. Y. Week. Dig. 3 ; Robertson vs. Hay, 12 Misc. (ISr. Y.) 8; Sandford vs. Goodmn, 20 K Y. Civ. Pro. Rep. 278 ; Wolf vs. Buttner, 6 Misc. (N. Y.) 120. ""People vs. Warner, 51 Hun (K Y.) 53. looPoley vs. Rathbone, 4 1ST. y. Week. Dig. 71 ; Reynolds vs. Gilchrist, 9 Hun (IST. Y.), 203 ; Leonard vs. Jacobson, 27 Misc. (N. Y.) 325 ; Tittlebaum vs. Lasola, 1 N. Y. Law Bul. 47. "^Feely vs. Glennen, 2 N. Y. Law Bul. 19 ; Hazard vs. Cas- well, 8 N. Y. Week. Dii;-. 492 ; Revnolds vs. Gilchrist, 9 Hun (K Y.) 203. CojsTTEMPT Proceedings. 213 amount of tlie fine skould never be in excess of the actual dam- ages whicli the relator has suffered. ^"^ Thus, a fine imposed for the violation of an injunction by the accused in transfer- ring property should ne^'^er exceed the value of the property transferred."^ The court or judge must, in case the act is one which the accused may perform, direct that the accused be imprisoned until he has paid the fine imposed and performed the acts v?hich he has failed to perform. § 9. PuisrisHMEisTT ON Habeas Coepus Peocbbdings. Where the accused is brought before the judge or court, as the case may be, on a vrrit 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 was directed. If the final order directs that he be punished by imprisonment, or commit ted until the payment of a sum of money, he must be so im- ■ prisoned or committed, upon his discharge from custody under the mandate by virtue of which he is held by the sheriff or other officer.^"* § 10. Peoceedings ITndee an Oedee to Show Cause. Upon the return of an order to show cause, the questions which arise must be determined, as upon any other motion; and if the determination is to the effect that the accused has committed the offence charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of the relator, the order therenpon must direct that the accused be punished by fine or imprisonnieint, or both, as "^Leonard vs. Jacobson, 27 Misc. (IST. Y.) 325. "^Meyer vs. Ereyspring, 3 Misc. fjST. Y.) 860; Feeley vr. Glennen, 2 IST. Y. Law Bui. 19 ; Ludlow vs. Knox, 7 Abb. Pr. ]Sr. S. (E". Y.) 411; Tinkey vs. Langdon, 60 How. Pr. (W. Y.) 184. ^"*Oo.de Civ. Pro. (jST. Y. ) sec. 2382; Leonard vs. Jacobson, 27 Misc. (K Y.) .^2.=;; Tinkey vs. Langdon, 60 How. Pr. (K Y.) 184; Lippert vs. Olejniezak, 10 ^'. Y. State Rep. 463. 214 Supplementary Peoceedings. ^' ■ the nature of the case requires. Upon a certified copy of the order so made, the offetader may be imprisoned without further process. ^"^ Under an order to show cause, a reference is usually ordered to ascertain and determine the loss or injury occasioned by the contempt. ^°® § 11. Amount of Fine. If any loss or injury has been produced to a party to these proceedings, by reason of the misconduct proved against the offender in contempt proceedings, a fine, sufficient to indemnify the relator, must be imposed upon the offender, and collected and paid over to such relator under the direction of the judge or court, as the case may be.-^"'' Where it is not shown that an actual loss or injury has been produced, a fine must be imposed lo^Code Civ. Pro. (N. Y.) sec. 2283. "«Hart vs. Johnson, 43 Hun (JST. Y.), 508; Br\ish vs. Lee, 1 Abb. Ct. App. Dec. CN. Y.) 238; Watson vs. Fitzsimmons, 5 Duer (N. Y.), 629. lo^Code Giv. Pro.. CN. Y.) sec. 2284; Foley vs. Rathbone, 4 E". Y. Weak. Dig. 71; Reynolds vs. Gilchrist, 9 Hun (¥. Y.), 203; Ludlow vs. Knox, 7 Abb. Pr. N. S. (N. Y.) 411; Tinkey vs. Langdon, 60 How. Pr. (N. Y.) 184; Luedeke vs. Coursen, 3 Misc. (N. Y.) 559; Clark vs. Bininger, 75 IST. Y. 344; People vs. Cooper, 20 Him (N. >Y.), 486; Erie R Co. vs. Ramsey, 45 'N. Y. 637 ; People vs. Brown, 46 Hun (K Y.), 320, 12 N. Y. State Rep. 454; Stubbs vs. Rip- ley, 39 Hun (ISr. Y.), 626; Feeley vs. Glennen, 2 K Y. Law Bui. 19; Simmons vs. Simmons, 4 N. Y. Week. Dig. 130; Brett vs. Brett, 33 Hun CS. Y.) 547; Hatter of Morris, 13 ]Sr. Y. Civ. Pro. Rep. 56; People vs. Jacobs, 5 Hun (N. Y.\ 428; Fenlon vs. Dempsey, 22 Abb. IST. C. (ISr. Y.) L14, 15 ISr. Y. Civ. Pro. Rep. 393; Fall Brook Coal Co. vs. Hecksher, 42 Him (IST. Y.), 534; Dejonge vs. Brenneman, 23 Hun (TST. Y.), 332; People vs. Comp- ton, 1 Duer (S. Y.), 512; Lansing vs. Easton, 7 Paige (K Y.), 364; Lyon vs. Botchford, 2.''. Hun (K Y.), 57; Moffat vs. Herman,' 116 K Y. 131; In re Jones, 6 IST. Y. Civ. Pro. Rep. 250 ; Loop vs. Worthriip, 59 Him (IST. Y.), 78 ; Simon vs. Aldine Pub. Co., 12 IST. Y. Civ. Pro. Rep. 290. COJSITEMPT PKOCEEDINGa. iil5 not exceeding the amount of the relator's costs and expenses and two hundred and fifty dollars in addition tkereito.^** Though the judge or court cannot allow counsel fees in sup- plementary proceedings/"® such fees may be allowed in the con- tempt proceedings, as such proceedings are independent of the supplementary proceedings. ^^° And costs ai'e allowed as in an original action, not as in special proceedings. ^■'^■'^ While the fine for the transfer of property by one restrained from such transfer by an order of injunction should be the value of the property transferred, ^^^ for faihrre to appear the fine should be limited to such a sum as will reimburse the relator for his costs and expenses. ■'■'^ Where the relator claims actual damages he must show such damages by common-law evidence.^^* While the including of improper items of costs in the fine does not render the coaumitment void, it may be reviewed on motion or on appeal, as the case requires. ■'■'^ Though the statute has made it mandatory on the judge or court, as the ease may be, to im- pose a fine of two hundred and fifty dollars, in addition to costs and expenses, yet tlie courts claim the right to impose any fine which they deem just, though it be no more than ten dollars. ■'■'® lo^Code Civ. Pro. (N. Y.) sec. 2284; King vs. Flinn, 37 Hun (1ST. Y.)^ 329; Fenlon vs. Dempsey, 15- i^. Y. Civ. Pro. Eep. 393; Clark vs. Bininger, 75 N. Y. 244; Leonard vs. Jacobson, 27 Misc. (jST. Y.) 325. '"9 Van Valkenburg vs. Doolittle, 4 Abb. N. C. CN. Y.) 72. I'OMoschell vs. Boor, 50 IST. Y. State Rep. 238; People vs. Grant, 41 Hun (N". Y.), 351 ; People vs. Eochester, &c. P. Co., 76 TT. Y. 29. "iSeeley vs. Black, 35 How. Pr. (K Y. ) 359. "^People vs. King-sland, 3 Keyes (IST. Y.), 325; Lippert vs. Olejniezek, 19 N. Y. State Pep. 463. "^Reynolds vs. Gilchrist, 9 Hun CN. Y.), 203. "*Ludeke vs. Coursen, 52 Is^. y. State Pep. 516. "^People vs. Jacobs, 66 ]Y. Y. 8. "^King vs. Flynn, 37 Hun (IST. Y.), 329; Code Civ. Pro. (ISr. Y.) sec. 2284; Foley vs. Rathbone, 4 'N. Y. Week. Dig. 71 ; Leonard vs. Jacobson, 27 Misc. (N". Y.) 325 ; Reynolds vs. Gilchrist, 9 Plun (K". Y.) 203; Meyers vs. Dreyspring, 52 IST. 216 SUPPLBMENTAKY PliOCJOKDINGS. Where a person is imprisoned by order of a court or judge in these proceedings for an alleged contempt, his remedy is by an. appeal from the order ; and he cannot, it seems, be released by wTit of habeas' corpus. '^^ § 12. Length of Imprisonment. Where the misconduct proved consists of an omission to per- form an act or duty, which it is yet in the power of the accused to perform, he can 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 the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid, and the order and the warrant of commitment, if any, must specify the amount of the fine and the duration of imprison- ment. ^^^ A provision in an order adjudging a debtor in con- tempt and requiring him to obtain a reassignment of certain rights transferred by him prior to the institution of the supple- mentary proceedings is unauthorized ; such transfer can be at- tacked only by a creditor's action.-'^® So a judge cannot make an order directing the debtor to pay a certain sum of money by a day fixed by the order, and in the same order fix the punish- T. State Eep. 520 ; Fall Brook Coal Co. vs. Hecksher, 42 Him (N. T.), 534; Fenton vs. Dempsev, 15 N. Y. Civ. Pro. Eep. 93, 22 Abb. N". C. (ISr. Y.) 114; Clark vs. Bininger, 75 K Y. 344 ; Rugg vs. Spencer, 59 Barb. 383 ; Ludlow vs. Knox, 7 Abb. Pr. K S. (K Y.) 411. i"Moffat vs. Herman, 116 K Y. 131, 26 IST. Y. State Eep. 328 ; Gallaghex vs. O'lfeal, 21 IST. Y. State Eep. 161. "80odeCiv. Pro. (K Y.) sec. 2285; Klugman's Case, 49 How. Pr. (N". Y.) 4R1; Fenlon vs. Dempsev^ 17 N. Y. Civ. Pro. Eep. 388 ; People vs. Grant, 50 Hun (JSf. Y.), 243, 20 K Y. State Ee[p. 48 ; King vs. Barnes, 113 K Y. 476 ; Anon., 18 Abb. K C. (K Y.) 2i6. ""Meyers vs. Dreyspring, 5 Misc. (IST. Y.) 560, 52 IST. Y. State Eep. 520. Contempt Pkoceedings. 317 ment to be inflicted in case tlae offender fails to pay the moneiy. He can be punished only upon conviction of contempt upon the return of an attachment ox an order to show cause. ■'^° When the misconduct proved consists of an omission to perform an act or duty which it is in the power of the offender to perfoirm, the commitment need not specify the duration of the imprison- ment, but only the act or duty to be performed and the sum to be paid.^^' The commitment of a witness for refusal to answer questions must limit the confinement to the time when the wit ness is willing to answer the iiuestions that have been propounded to him, and for a refusal to answer which he has been convicted of contempt. ■'-^ § 13. Jail Liberties. A party committed for contempt miist be actually confined within the walls of the prison, and is not entitled to the liberties of the jail.^^^ Thus, in ITew York it is provided by statute that a prisoner, committed to jail for contempt or committed for misconduct in a case prescribed by law, must be actually confined and detained within the jail, until he is discharged by due course of law. A sheriff or keeper of a jail, who suffers such a prisoner to go or be at' large out of his jail, except by virtue of a vm.t of habeas corpus or by the special direction of the judge or court committing him, or in a case specially prescribed by law, is liable to the party aggrieved for his damages sustained thereby, and is guilty of a misdemeanor. If the coommitmeint was for the non-payment of a sum of money, the amount thereof, with interest^ is the measure of damages.-'^* "OTinker vs. Crook, 22 Hun (IST. Y.), 579. i^iAnon., 18 Abb. K c. (K Y.) 216. "2Peoplevs. Davidson, .S5 Hun (JST. Y.), 471. i23People vs. Fancher, 4 Thomp. & C. (¥. Y.) 467; In re Clark, 20 Him (N. Y.), 551; Egan vs. Lynch, 3 K Y. Civ. Pro. Eep. 236; People vs. Cowles, 4 Keves CN. Y.), 3S. i24Code Civ, Pro. (T^T. Y.) sec 157. ' 218 SuPPLEMBJNTAEY PeOCEDDINGS. § 14. Kei^easb of Offender. Where an offender who has been duly convicted of contempt ajid imprisoned in contempt proceedings, is unable to endure the imprisonment, or to pay the sum, or perform the act or duty required to be performed o^r paid, as the case may be, in order to entitle him to ba released the court out of which the execution was issued may, in its discretion, and upon such terms as justice requires, make an order, directing him to be discharged from the imprisonment. ^^^ But the offender cannot be admitted to bail pending an appeal from an order denying a motion for his dis- charge, ■''" Where the offender seeks to obtain his discharge for inability to perform the act required or to endure the imprison- ment, he mxist serve his motion papers upon the relator, with a regular notice of motion. ^^'^ The Supreme Court has the power in every case to discharge a prisoner in these proceedings, though the execution was issued out of another court. ^^^ § 15. UlTOEltTAKIITG FOE INDEMNITY. Where a person -arrested by virtue of a warrant of attachment has given an undertaking for appearance in the contempt pro- ceedings, and fails to appear, on the return day of the warrant, the court may either issue another warrant, or make an order directing the iindertaking- to be prosecuted, or both.^^® The order directing the undertaking to be prosecuted may, in the discretion of the court, direct the prosecution thereof, by and i25C'ode Civ. Pro. (IST. Y.) sec. 2286; Valentine vs. Mandell, 19 ]Sr. Y. Civ. Pro. Pep. 155; Mitchell vs. Hall, 3 K Y. Law Bui. 23 ; Walters vs. Kenyon, 4 N. Y. State Rep. 378 ; McCar- tin vs. Van Syckel, 10 Bosw. (K Y.) 694; Tn re Milburn, 59 Wis. 24 ; West Side Bank vs. Piigsley, 47 N. Y. 373. i^eValentine vs. Mandell, 19 i«I". Y. Civ. Pro. Rep. 155. i27,Strobridge vs. Strobridije, 21 Ilun (N. Y), 288. i^speople vs. Warner, 125 K Y. 745. 51 Hiin CK Y.) ; 53; Moschell vs. Boor, 50 IST. Y. State Rep. 938. >29Code Civ. Pro. CN. Y.) sec. 2288. Contempt Proceedings. 219 in the name of any party aggriea'^ed by the misconduct of the accused. In such a case the plaintiff may recover damages to the extent of the loss or injurj' sustained by him, by reason of the misconduct, together with tlie costs aud expenses of prosei- cuting the special proceeding in which the warrant was issued, not exceeding tlie sum specified in the undertaking.^^" If no party is aggrieved by the misconduct of the accused, the order must, and in any case where the court thinks proper so to direct, it may direct the prosecution of the undertaking, by the attor- ney-general or by the district attorney of the county in which it was given, in tbe name of the people. In such an action the people are entitled to recover the entire sum specified in the undertaking. Out of the money collected, the court which directed the prosecution must direct that the person, at whose instance the warrant was issued, be paid such a sum as it thinks proper to satisfy the costs and expenses incurred by him by reason of the misconduct. ^^•' 130 131 Code Civ. Pro. (E. Y.) sec. 2289. Code Civ. Pro. (N. Y.) sec. 2290. 220 SUPPLEMENTAEY PROCEEDINGS. CHAPTER XV. COSTS ON TERMINATION OF PROCEEDINGS. § 1. Teemination of Peoceedings. It was formeirly said that the judge to whom these proceed- ings were made returnable lost jurisdiction, and that the pro- ceedings were terminated by failure of the creditor to have them adjourned to a particular time and place, or by the creditor's failure to appear at the time and place fixed either by the judge or by the referee, as the case may ba^ It may be that after the lapse of years the proceedings must be considered as abandoned.^ But the only statutory mode of ending the proceedings is by the entry of an order founded either upon the stipulation, of the parties or the direction of the judge to whom the proceedings were made returnable.^ The second order for examination of the debtor does not have the effect of discontinuing tbe prior proceedings.* iN'either does the act of obtaining a warrant for the arrest of the debtor ^Kaufman vs. Thrasher, 10 Hun (IST. Y.), 442; Hawes vs. Barr, 7 Eobt. (IST. T.) 452; Wright vs. JSTostrand, 47 IT. Y. Supr. Ct. 454; Bennett vs. McGuire, 58 Barb. 625; Ballon vs. Boland, 14 Hun (IST. Y.), 355; Edmonston vs. McLoud, 16 1ST. Y. 543 ; Myers vs. Herbert, 64 Hun (K Y.), 200, 22 K Y. Civ. Pro. Eep. 216 ; Thomas vs. Kircher, 15 Abb. Pr. IST. S. (K Y.) 343. 2Mevers vs. Herbert, 22 IST. Y. Civ. Pro. Eep. 216, 64 Hun (K YJ, 200; Squire vs. Young, 1 Bosw. (K Y.) 696; Rob- ertson vs. Hay, 12 Misc. (jST. Y.) 9; Edmonston vs. McLoud, 16 K Y. 543. »Code Civ. Pro. (IST. Y.) sec. 2454. ^Walter vs. Pecare, 57 Hun (¥. Y.), 587, 11 K y. Stipp. 146. "' Power oj? Judges to Gkaxt Cost. 3^1 by warrant in these proceedings.^ It seems that after a referee has been appointed in the proceedings, the judge cannot dismiss the proceeding for want of prosecution while the referee is taking the examination.® When an examination has been com- pleted and closed it cannot be reopened except by special order of the judga^ When the judgment is satisfied in any way the proceedings are at an end.* But an order should be entered showing that it is terminated." The final order should direct the sheriff or receiver, as the case may be, to pay any money in his hands, after the payment of the debt of the creditor and all costs and expenses tO' the debtor.^" The creditor is allowed an order discontinuing the proceed- ings at any time;-'-^ and the debtor is allowed an order dismiss- ing the proceedings when he shows that the creditor has un- reasonably neglected or delayed to proceed. § 2. Costs to Ceeditoe. The !N'ew York statutes provide that "the judge" may make an order allowing to the judgment-creditor a fixed sum, as costa, consisting of his witnesses' fees and other disbursements, and of a sum, in addition thereto, not exceeding thirty dollars ; and directing the payment thereof, out of any money .which has come, or may come, to the hands of the receiver, or of the sheriff ; ^Code Civ. Pro. (N". Y.) sec. 2438; Frost a-s. Craig, 16 Daly (K Y.), 109, 30 N. Y. State Rep. 848; Fellerman's Case, 2 Abb. Pr. (jST. Y.) 165; Cowdrey vs. Carpenter, 17 Abb. Pr. (K Y.) 107; Weiss vs. Ashman,' 11 Misc. (N. Y. ) — ; Dorsey vs. Oommings, 48 Hun (IST. Y.), 76. ''Kennedy vs. l^orcott, 54 How. Pr. (N. Y.) 90. ^Orr's Case, 2 Abb. Pr. (K Y.) 457. »Avery vs. Ackart, 20 Misc. (IST. Y.) 631 ; Hutkoff vs. Maje, 20 Misc. (ISr. Y.) 632. ^Walter vs. Pevare, 32 IST. Y. Stat© Eep. 841. "Lanigan vs. New York, 70 N. Y. 454 ; Code Civ.' Pro. (K Y.) sec. 2450. "Code Civ. Pro. (JST. Y.) sec. 2454; Kennedy vs. ISTorcntt. 54 How. Pr. CN. Y.) 87. 222 SuppLEMfiJMTAEY Pkogeedings. or within a time specified in the order, by the judgment-debtor, or other person against whom the special proceeding is insti- tuted.^^ The granting or refusing of costs or of disbursements, or of both, is left to the discretion of the judge; the phraae, "the judge," used in these proceedings is the only hand-rail we have to aid us in construing these most indefinitei and uncertain statutes. In some of the provisions, the lavnnaJiers have given the power to maJie the most important orders to the judge by whom the order of examination or the warrant, as the case may be, was granted; or to whom it is returnable. ^^ But then we have the construction of the statutes by the court, by which it is intimated that in some cases at least the judge granting an order of examination which is made returnable before another judge ceases to have any further control of the proceedings.^* Costs of the proceedings can be granted only when the proceedings have been brought to an end in favor of the party asking for costs. ^^ The judge may grant the allow- ance, though the judgment is paid on the same day that the order of examination is served on the debtor, and before any- tiling farther has been done.-'® While ordinarily costs cannot be granted against one examined as a third person,^'^ yet the judge has power to direct such third party to pay the costs. ^^ The attorney for either party has no lien for costs in these pro- i^Code Civ. Pro. (K Y.) sec. 2455; Valenta vs. Bryan, 3 'R. Y. Civ. Pro. Rep. 358; Ilutson vs. Weld, 38 Hun (ISl. Y.) 142. "Code Civ. Pro. (IST. Y.) sees. 2446, 2447. "Browning vs. Hayes, 41 Hun (N. Y.) 382, 11 IT. Y. Civ. Pro. Eep. 223. i^Davis vs. Turner, 4 How. Pr. (K Y.) 190; Dilling vs. Foster, 21 S. C. 340; Allen vs. Starring, 26 How. Pr. (IST. Y.) 57. i«Colnevs. Girard, Abb. K C. (K Y.) 288. "Grimmell vs. Shecrman, 33 W. Y. St. Eep. 28, 19 N. Y. Civ. Pro. Rep. 139. "Code Civ. Pro. (IST. Y.) sec. 2455. PowEE OF Judges to Geant Cost. 223 ceedings hy wtich he can prevent his client from settling with the debtor before costs have been awarded. ^^ It has been said that where the creditor during the pendency odi these proceedings issues a new execution and collects his judgment, that the judge has no power to grant him costs.^"* The disbursements allowed must be taxed either by the judge granting the order allowing them, or the order must direct that they be taxed by the clerk.^^ The costs granted by an order made by the judge cannot be collected by execution.^^ § 3. Costs to Debtoe oe Thied Peeson. Where the debtor or other person against whom the special proceeding is instituted has been examined, and property appli- cable to the payment of the judgment has not been discovered in the course of the special proceeding, the judge may make an order allowing him his disbursements and thirty dollars in addi- tion thereto ;^^ and directing the payment thereof, within a time specified in the order, by the judgment-creditor ; or except where it is allowed to the judgment-debtor out of any money which has come, or may come, to the hands of the receiver, or of the sheriff.^* Where, after the costs are duly granted tO' the debtor, the creditor assigns the jiidgment, the debtor is entitled to have the costs paid before the assignee issues an execution upon the judgment.^^- The judge, it is said, may allow costs of any motion to either party, whether an examination has been had or not^® Where costs are allowed to the debtor, they should be "Paterson vs. Goorley, 14 Misc. (K T.) 56. 20Ritter vs. Grearson, 28 Misc. (jS^. Y.) 656. ^iPoley vs. Eathbone, 12 Hun (N. Y.), 589. 22Code Civ. Pro-. (TST. Y.) sec. 779; Valiente vs. Bryan, 3 ]Sr. Y. Civ. Pro. Rep. 358. 23 Hancock vs. Sears, 93 W. Y. 81. ^''Code Civ. Pro. (K Y.) sec. 2456; Colne vs. Girard, 10 Abb. K C. (K Y.) 288. -^MacWhinnie vs. Cameron, 57 Hun (N. Y.), 463. 26Hutson vs. Weld, 38 Him CS. Y.), 142. 224 Supplementary Peocbediwgs. ordei'ed to be deducted from the debt due the creditor.^ ^ The rule is different where the costs axe allowed a third party. The order requiring the third party to attend and submit to an eocam- ination as to property in his possession, or as to a debt owing by him to the debtor, is a special proceeding.^* A motion for costs must be made upon notice to- the apposite party, and upon facts showing the movant entitled to the order. ^^ ^^Kress vs. Morehead, 8 N. Y. State Esp. 858 ; •Newville First Nat. Baiik vs. Yates, 21 Misc. (N. Y.) 374; Blabon vs. G-ilchrist, 67 Wis. 38 ; Esty vs. Fuller Implement Co., 82 Iowa, 678 ; Seyfert vs. Edison, 47 K". J. L. 431 ; Hancock vs. Sears, 93 ]Sr. Y. 81. 28Code Civ. Pro. (N. Y.) sees. 2433, 2441; Heckman vs. Bach, 20 Abb. N. C. (N. Y.) 401; Blabon vs. Gilchrist, 67 Wis. 38 ; Webber vs. Hobbie, 13 How. Pr. (jST. Y^) 382 ; Anony- mous, 11 Abb. Pr. (ISr. Y.) 108 ; Boice vs. Turner, 4 How. Pr. (N. T.) 195 ; Matter of Castle, 2 IST. Y. State Rep. 362. 29Kennedy vs. Norcott, 54 How. Pr. (N. Y.) 87; Davis va. Turner, 4 How. Pr. (N. Y.) 190. Review of Oe-dees. 225 CHAPTER XVI. REVIEW OF ORDERS. §1. Preliminaet Obseevations. Proceedings for conteunpt axe tlieimselves special proceedings, indepemdemt of the proceedings in which, they may be taken, and an ordea' made therein cannot be regarded as an order in the course of the original proceedings.^ While the statutes regulating supplementary proceedings do not permit of an appeal from an order made by a judge directly to the Appellate Division, the mode of review prescribed in such proceedings has no application to an order made in proceedings to punish for contempt, as that practice is limited to orders which affect only parties to the pending proceedings appealed from. That is to say, au order made by a judge upon notice in contempt proceed- ings may be appealed from directly to the Appellate Division.^ In supplementary proceedings proper, aJi order made by a judge out of court may be vacated or modified by the judge who made it, as if it had been made in an action ; or it, or the order of the judge vacating or modifying it, may be vacated or modified, on motion, by the coiurt out of which the execution was issued.^ While no appeal lies from an ex parte order* yet orders made by a judge out of court upon notice^ when they affect a substan- tial right, are, it seems, appealable directly tO' the Appellate ^Moschell vs. Boor, 50 N. T. State Rep. 238. ^Code Civ. Pro. (E". Y.) sees. 134Y, 1348; People vs. War- ner, 51 Hun (K Y.), 53, 20 K Y. State Rep. 573; aff«d 125 K Y. 746. 3 West Side Bank vs. Pugsley, 12 Abb. Pr. K S. (IST. Y.) 28; Code Civ. Pro. (IST. Y.) sec. 2433; Palen vs. Bushnell, 68 Hun (N. Y.), 554; Levy vs. Swick Piano Co., 17 Misc. (IST. Y.) 147; Moschell vs. Boor, 66 Hun (K Y.), 557. ^Matter of Dumi, 37 K Y. State Rep. 802. 226 SUPPLEMENTAEY PeOCEEDINGS. Division.^ It seems that in every case where an order made by a judge out of court upon notice does not affect a substantial right, it cannot be reviewed upon appeal directly, but can be reviewed only by motion to the court to vacate or modify it.® An appeal may be taien either from, an order of a judge out of court made upon notice, vacating of modifying a previous order made by him, or from an order denying a motion to vacate or modify such order; and, as we have seen, an appeal lies direct from an order made upon notice by a judge out of court, adjudging a person guilty of contempt.'^ It is only necessary that the order, to be appealable, must effect a substantial right — a matter of substance and not of mere form — and it may be such an order, and yet be discretionary.* ^Robens vs. Sweet, 48 Hun (IST. Y.), 436 ; Forbes vs. Willard, 54 Barb. 523; Finck vs. Mannering, 46 Hun (K T.), 323; Matter of Patterson, 12 App. Div. (N. Y.) 125; Newell vs. Cutler, 19 Hun (K Y.), 75. ^Matter of Van Ness, lY App. Div. (N. Y.) 581; Palen vs. Bushnell, 68 Hun (N. Y.) 554. ^Code Civ. Pro. (N. Y.) sec. 2457; Moschell vs. Boor, 66 Hun (K Y.), 557; Holstein vs. Eaee, 15 Abb. Pr. (K Y.) 307 ; Smith vs. Drury, 22 K Y. Week. Dig. 3 ; Gibbs vs. Prin- dle, 9 App. Div. (IST. Y.) 29; Hart vs. Johnson, 43 Hun (N. Y.), 505 ; Foorbes vs. Willard, 54 Barb. 523 ; Isaacs vs. Calder, 42 App. Div. CN. Y.) 152'; Newell vs. Cutler, 19 Hun (N. Y.), 75; Lamonte vs. Pierce, 34 Wis. 483. ^Scbenck vs. Irwin, 21 N. Y. Civ. Pro. Rep. 96; Mallory vs. Gulick, 15 Abb. Pr. (IST. Y.) 307; Weaver vs. Brydges, 85 Hun (K Y.), 505; Billington vs. Billington, 16 N. Y. Civ. Pro. Rep. 58. FORMS, 1. COURT— County of In the Matter or the Examina- tion or "E. K. B.," A JUDGMENT- debtob in Peoceemnqs Supple- mentaey to execution upon a Judgment entitled SUPREME COURT W. C. S. V. E. R. B. Affidavit for order for examination v^ 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 on the day of , 1901, 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 per- sonal appearance of the defendant or plaintiff), (or upon con- fession), (or upon the service of the summons upon the judg- ment-debtor in the manner prescribed by sees. 435, 436 and 437 of the Code of Civil Procedure), 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 the day of , 1901. (That after- (227) 228 Supplementary Proceedings. wards and on or about the day of , 1901, the said judgmeoit-creditor duly sold and assigned said judg- ment to , who is now the owner thereof.) (That thereafter the said judgmeatoreditor died at , intestate), (leaving a last will and testament), and letters of administration were thereafter duly issued to , who duly qualified and entered upon the duties of his office. That an execution against the property of the said judgment- debtor was thereafter and within iive 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 judgmenl^debtor then resided and still resides (or where the judgmentrdebtor now has a place for the regular transaction of business in person), (or that the judgment-debtor is not a resident of this State and has no place within this State for the regular transaction of business in person, and the exe- cution was issued to the sheriff of the county where the judg- ment-roll is filed), and that said execution has been duly re- turned by the sheriff, wholly imsatisfied (or partly unsatisfied, and there is still due upon said judgment the sum of $ ), and the said judgment remains wholly unpaid. That W. C. S. is the owner of said judgment. 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, and that the deponent , is authorized to make this affidavit. Sworn to before me this day of , 1901. (Indorse as prescribed by K.ule 2, S. 0.) Forms. 329 COUNTY COURT— County op In the Mattek of the Examina- tion OF "E. E,. B.," A JUDGMENT- DEBTOB IN PbOCEEDINGS SuPPLE- mentaet to execution upon a Judgment entitled COUNTY COURT. w. c. s. V. E. E. B. Affidavit for order after return of y- execution on judgment of inferior court. County of , ss: , being duly swo'm, says he is the judg- ment-creditor hereinafter mentioned (or assignee of the judg- ment hereinafter mentioned), (or executor or administrator of the judgment-creditor hereinafter mentioned), (or attorney for the judgment-creditor hereinafter mentioned). That a judg- ment was duly recovered on the day of , 1901, in a justice's court of county, before , Esq., a justice of the peace of the town of , in an action wherein 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, exclusive of costs). That a transcript of said judgment was duly filed in the ofiice of the clerk of county, on the day of , 1901, and within six years from the date of its recovery, and said judgment was on said date duly docketed in said county clerk's ofiice for twenty-five dollars, exclusive of costs. That aftetnvards, and within five years from the time said judgment was docketed in said clerk's oiEce, 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 230 Supplementary Peoceedings. the akeriff of co'imty, where the said judgmeut- debtor then resided, and yet resides (or wheci*e the said judg- ment-debtor has a place for the regiilar transaction of business in perso'h) ; that afterwards the said sheriff duly returned said execution wholly unsatisfied, and the said judgment remains wholly unpaid (or partly unsatisfied and there is stiU due upon said judgment the sum of $....■.. ). That the first execution issued upon said, judgment was returned within tea years last past. That deponent is the owner of said judgment. That no previous application has been made for the order asked for here- in. That deponent is authorized to make this affidavit. Sworn to before me this day of , 1901. (Indorse as prescribed by Rule 2, S. C.) 3. COUET. lis' THE Matter of the Examina- tion OF "E. R. B.," A JUDGMENT- DBBTOB, IN PeOCEEDINGS SUPPLB- mentaet to execution upon the Appucation of "W. C. S." upon A Judgment entitled COUET. W. C. S. V. E. R. B. Affidavit for warrant for examina- tion. Code, § 2437. County. gg_ . State of Wbw Yoek, , being duly sworn, says that he is the judgment-creditor herein mentioned. That judgment was duly rendered on the ..... day of , 190 . . , 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 sum- mons in the action upon the judgment-debtor (or upon the said Forms. 231 judgment-debtor's appearance), (or upon the substituted ser- vice of said summons upon the defendant in the maimer pre- scribed by sees. 435, 436 and 437 of the Code of OivU Proced- ure), as appears by the judgment-roll therein, filed in the office of the clerk of the said county of ., reference to which is hereto- had, and the saime is miade 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 , 190. . (That a tramscript of said docket was, on the day of , 190. ., 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 , 190 . . , 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 delivered to the sheriff of county, where the said judgment^debtor tiben resided and still resides (or where the judgment^de'btor has a place for the regular trans^ action of business in person), (or that the judgment- debtor does not reside within this State, and has no place for the regular transaction of business in person within this State, and the execution was issued toi the sheriff of the county where the judgment-roll is filed) . That said exe^ cution was duly returned by said sheriff whoUy. unsatisfied (or partly unsatisfied). That ten years have not elapsed since the return of the first execution upon said judgment (or that said execution is now in the hands of the sheriff unretumed), and the said judgment remains totally unpaid (or there is still un- paid uponi said judgment the sum of $. . . . ). Deponent further says, that said , the judg- ment-debtor, has property not exempt from these proceedings by section 2463 of the Code of Civil Procedure, viz., That on the .... day of , 190 . . , the judgmenl^creditor caused a demand to be made by the sheriff upon said judgment-debtor to apply his said property to the satisfac- tion of said judgment, a copy of which said demand is hereto 232 /SUPPLEMENTAEY PeOOEEDIKGS. armiexed and forms a part of this affidavit. Tliat the said judg- ment-debtor refused and neglected, and still refuses and neg- lects, to apply Lis said property as thereby requested. (Here insert a statement of fact showing that debtor's refusal to apply the property was unjust.) That said sheriff was duly author- ized to make such demand for the judgment-creditor, and was present to receive said property or an assignment thereof. 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 judgment-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 resigned his position and is disposing of his and is about to leave , and that on the day of . , 189 . ., deponent was informed by , 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 tJiat the said judgment-debtor will leave the State (or con- ceal himself), is apparent from the facts above stated, and deponent believes from said facts that said has property which he unjustly refuses to apply to the payment of said judgment. Deponent further says that he is the owner of said judgment. Sworn' to before me this day of , 190. . (Indorse as prescribed by Rule 2, S..0.) ToEMs. 233 4. COURT. In be Examination of "B. R. B.," A JifDGMENT-DEBTOB, IN PSOOEBD- INGS SUPPLEMENTABT TO EXECU- TION, UPON THE Application op "W. C. S.," A JUDGMENT-OREDITOE, UPON A Judgment entitijed COURT, W. C. S. V. E. R. B. Warrant for examination under Code, §§ 2437, 2438. The people of the State of New York to the sheriff of amy county where . ., the judgment-debtor herein^ may he found: It having been' made to appear to me by the affidavit of that judgment was rendered on the day of , A. I>. 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 the personal service of the summons in the action upon the judgment-debtor (or upon the said judgmeui^debtor's appearance in the action), (or upon the substituted service of the summons tipon the judgment-debtor as prescribed by sees. 435, 436, 437, of the Code of Civil Procedure), and that the judgment-roll therein was duly filed and the judgment duly docketed in the office of the clerk of county, oni the day of , 189 . . , as appears by thfe judgment-roll 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 234 SuPPLEMEliTTAET pEOCEEDINGS. 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 resides (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 execution has been duly returned by the said sheriff, wholly 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 satisfaction 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 proiperty 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 judg- ment. You are hereby required to arrest said judgment-debtor and bring him before me (or bring him before at ) . (I hereby order and direct that this warrant be made returnable before Hon at his chambers in the ; of ) Witness my hand this day of • • • ? 189 • • ., , Judge. (Indorse as prescribed by Rule 2, S. C.) Ji'oBMS. 235 COTJRT. In- BE Examination op "E. K. B.," A JUDGMENT-DBBTOE, IN PeOCEBD- INGS SUPPUEMENTABT TO EXECU- TION UPON THE Application of "W. S. C." UPON A Judgment ENTITUa) COURT. W. C. S. V. E. E. B. AfEdavit for order that third party y pay over money, etc. Code, § 2446. Conuity, ss: bedng duly sworn, says he is the herein mentioned ; that heretofore and on the ...... day of , 189. ., upon the applioatiom of depomienit, an order herein was duly granted by , judge, for the examination of the judgment-debtor under section .... of the Oode of Civil Procedure, which said order, and the affi- davit upon which it was founded, was on the. . . . day of , 189. ., duly served upon the said judgment-debtar, a copy of which said order and affidavit are hereto annexed and form a part of tMs affidavit. That of is indebted to the judgment-debtor in the sum of $......, and that no receiver has been appointed in these proceedings, nor has any receiver- ship been extended to these proceedings. That no previous api- plieation 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. Deponent further says that is the owner of said judgment. Sworn to before me this day of 189. (Indorse as prescribed by Rule 2, S. 0.) 236 Supplementary Peoceedings. 6. OOUET. In the Matter of the Examina- tion OF "B. E. B,," A Judgment- debtor, IN Proceedings Supple- mentary TO Execution on a Judgment entitled SUPREME COURT. W. C. S. E. R. B. Order for examination of judgment- debtor after return of execution. y Code, § 2435. It having been made to appear to me by the annexed affidavit of that judgment was rendered on the day of , 1902, in the court of county, in ani action wherein "W. 0. S." was plaintiff, 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), (or upon the substituted service of the summons upon the judgmentdebtor in the manner prescribed by sees. 435, 436, 437, of tE^i Code of Civil Pro- cedure), 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 , 1902. (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 returned by the said sheriff unsatisfied. That the first execution issiied upon said judgment FoEMS. 237 was returned within the past ten years, and that said judgment remains impaid as stated in said affidavit. I do-, therefore, hereby order that it be referred to , Esq., counselor of , W. T., and I do hereby apipoint the said a referee in these proceedings, with the powecr and subject to the limitations pre- scribed by sections 2442-2M4 of the Code of Civil Procedure, to examine the judgment-debtor and such witnesses as may be offeired 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 oon- eerning his property before said referee at , in the of , IST. Y., on the day of , 1902, at o'clock in the noon, and for that purpose to appear before said referee from time tO' time as he shall direct and appoint. I do further order and direct that these prooeedings be and the same are hereby made return- able before Hon at his chambers in the of And the said is hereby forbidden from making or suffering any transfer or other disposition of or inter- ference with the property of , or in wbicih has any interest, 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 , 1902. , Judge.' (Indorse as prescribed by Rule 2, S. C.) 238 SuPPLEMENTAET PeOCEEDINGS. COURT. Iiv THE Matter of the Examina- tion OF "E. E. B./' A Judgment- debtor, IN Proceedings StrpptE- mbntaby to execution -upon a Judgment entitled COUNTY COURT. W. C. S. V. E. R. B. Order for examination of judgment- debtor after return of execution on judgment of inferior courts. Code, § 2436. It having beem made to appear to me by the annecxed affidavit of , that judgment was rendered on the day of , 1902, 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, exclusive of costs), upon the per- sonal service of the summons upon the judgmemthdebtor (or upon the personal appearance of the judgment-debtor), as ap'pears to us by the judgment docket of the said justice. That a transcript of said judgment 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 , 1902), and said judgment then duly docketed therein against the said judgment-debtor for twenty-five dollars or more exclusive of costs, and that an execution against the paroperty of the said judgment-debtor was duly issued out of the county court of said county of by the clerk of said county to the sheriff of the said county of upoml the aforesaid judgment, within five years froan the date of its said docket in said clerk's office, and that such execution FoEMS. 239 was afterwards duly returned by the said aheriff unsatisfied, and that said judgment still remains unpaid. That the first exeeoition issued upon the aforesaid judgment, by the derk of the county where the transcript was filed, was returned within the past ten years as stated in said affidavit. That said executiood was issued to the county where the judgment-debtor resides (or where he has a place for the regular transaction of business in person), (or that the judgment-debtor is not a resi- dent of this State, and has no place within this State for the regular transaction of business in person), and that the execu- tion was issued to the county where the original transcript of the justice's judgment was filed. 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 pro- ceedings, with powers and subject to 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 furthea* order and direct the said , judgment-debtor, to attend and submit to an examination con- cerning his property, before said referee at in the of , N. Y., on the day of , 1902, at o'clock in the noon, and for that purpose to appear before said referee fro^m time to time as he shall direct and appoint. I do further order and direct iihat these proceedings be and they are hereby made returnable before Hon at his chambers in the of And the said is hereby forbidden from making or suffering any transfer or other dis- position of or 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 Oode of Civil Procedure, until further direction in the premises. Dated the day of , 1902. , Judge. (Indorse as prescribed by Rule 2, S. C.) 240 SUPPLEMBNTAEY PeOCEBDINGS. 8. COUKT. In ke Examination of "J. C. T.," AN EXECUTION-DEBTOB, JN PeO- CEEDINQS SUPPLEMENTAET TO EXE- CUTION, UPON THE Application OF "F. F.," AN BXECUTION-CEEDI- TOB, UPON AN OBDBE GeANTING Costs, entitled COURT. In the Mattes of Affidavit for order of examination r" for collection of costs, under Code, §§ 2434, 2435. County of , ss.: , being ivlj sworn, says he is the execution creditor lieireinafter mentioned (or that he is assignee of the execution creditor herein), (or attorney of record for the exe- cution creditor herein), (or execTitoo" of the last will and testa^ ment of the execution creditor hereinafter mentioned), (or the administrator of the estate of G. W. B., deceased) ; that an order was duly granted on the day of , 1902, in court of county in a special proceeding, entitled ; upon personal services of herein upon the execution debtor (or upon the personal appearance of the said ) ; that by said order the court (or judge) awarded the sum of $ costs to against the said That the said order was duly filed in the office of the clerk of county on the day of , 1902 (and a certified copy of said order was duly filed in the office of the clerk of , on the day of , 1902), a copy of which said order is hereto annexed and forms a part of this affidavit (that afterwards, and on or about the day of , 1902, the said duly sold and assigned the said costs and the said order to , who is now the owner and holder thereof). (That afterwards the FoBMS. 241 said died at intestate, and that deponent has, been duly appointed administrator of his estate, and has duly qualified and entered upon the duties of his (iffice.) (That afterwards the said died, leaving a last will and testament, in and by which this deponent was uiiiiied sole executor; that afterwards the said will was duly proved, and entered to probate in the proper county; and d&- po'iieut has duly qu.alified and entered upon the duty of his office.) 'Jliat on the day of , 1902^ the said order was duly and personally served upon the said , and the payment of the said costs was duly demanded (or tbat the time for ther payment of said costs was fixed by said order for the day of , 1902). That on the day of , 1902, and more than ten days after the service of said order upon the said , an execution against the property of , upon said order for the collection of said costs was duly issued (or was issued in the maimer prescribed by section 779 of the Code of Civil Procedure) , to the sheriff of the county of , where the said execution-debtor resides (or where he has a place for the regular transaction of business in person), (or that tlie execution-debtor is not a resident of the State and has no place within the State for tbe regular transaction of business in per- son ; and the said execution on the day of , 1902, was duly issued to the sheriff of the county where tlie original order was filed), and said execution has been duly re- turned by said sheriff, wholly unsatisfied (or partly unsatisfied, and there is still due upon said order for costs the sum of $....), and said costs remain wholly unpaid (or there is still due upon said order the sum of $....) . That the first execu- tion issued upon said order was returned within ten years. That no previous application has been made for the order asked for herein to any judge. G. W. B. Sworn to before me this day of , 1902. W. C. S., 'Notary Public. 242 SUPPLEMENTAEY PeOOEEDINGS. (Indorsed :) OOUET. In re eixamiiiation of J. C. T., an execution-debtor in pro- ceedings supplementary to execution, upon the applicatioii of F. F. &C. Affidavit K. T., Attorney for Qreditor, Office, , K Y. COURT. Iiv BE Examination of "J. C. T;," AN EXECTJTION-DEBTOE, IN PeO- CEEDINGS STTPPLEMENTART TO EXE- CUTION, UPON THE Application OF "F. F.," etc. Order of examination of one against whom coats have been awarded by an order. It having been made to appear to m© by the anmexed affidavit of that in a certain special proceedings in the court of the county of on the day of , 1902, a certain order was granted in favor of against the said , award- ing to the said the sum of $ costs against the said , upon the personal appearance of the said (or upon the service of the notice of motion upon the said personally). That the said order was duly filed in the office of the derk of the county of on the day of , 1902, and the said order was afterwards and on the day of duly and personally served upon the said , and the payment of the said costs duly demanded of the said , which was refused. That afterwards aiwi more than ten days after the said order was served upon the said as aforesaid, an execution upon the said order for the said costs was duly issued in the form prescribed by section FoEMS. 243 779 of the Code of Civil Procedure to thie skeriff of the county of ■. , and that said execution, was duly returned by said sheriff -within ten years last past, wholly unsatisfied, and that the said costs remain unpaid. I do therefore hereby order that it be referred to , Esq., counsel, or of , N. Y., and I do hereby appoint the said a referee in these proceedings, with the power and subject to the limita- tioais prescribed by sections 2442-2444 of the Code of Civil Procedure, to examine the above named execution^debtor and suchi witnesses as may be offered by the respective parties. I do further order and direct the said execution-debtor to attend and submit to an examination concerning his property before said referee at the office of said referee in the of , ISr. Y., on the day of , 1902, at 10 o'clock in the forenoon, and for that purpose to appear before said referee from time to time, as he shall direct and appoint. I do further order and direct that these prooeediugs be and the same are hereby made returnable before Hon^ at his chambers in the of , and that all subsequent proceedings herein be had before said judge. And the said is hereby forbidden from making or suffering any transfer, or other disposition of or inter^ ference with' the property of or in which the said has any interest, legal or equitable, and not exempt from these proceedings by section 2463 of the Cfede of Civil Procedure, until further directions in the premises. Dated at the day of , 1902. , Judga (Indorse as prescribed by Rule 2, S. C.) 244 SUPPI.EMENTAEY PeOCEEDINGS. 10 COURT. In re Examination of "E. R. B.," A Judgment-debtor, in Supple- mentary Proceedings, upon the Application of "W. C. S." Older for undertaking by party arrested for examination. Code, § 2440. A warrant having been keretofore issued by me under section 2437 of the Code of Civil Procedure for the arrest of , a judgment-debtor, and the said judgment-debtor having been arrested upon said warrant, and brought before me, and it appearing to my satisfaction, upon a preliminary exami- nation 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 unjustly refused to apply to the satisfaction of the judgment, for the satisfaction of which these proceedings were instituted. Now, therefore, I do hereby order and direct the said judgment-debtor to execute and deliver tO' the sheriff of , within ten days from the time of the service of this order upon him., an undertaking to the people 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 appointed in the proceedings; and that he will not, until discharged from arrest by virtue of the warrant, dispose of any of his property, which is not exempt from seizure by section 2463 of the Code of Civil Procedure. Dated day of , 1902. , Judge. (Indorse as prescribed by Rule 2, S. C.) EoEMs. 245 11. COURT. In re Examination of "E. R. B.," A Judgment-debtor, in Proceed- ings Supplementary to Execu- tion ON THE Application of "W. C. S." upon a Judgment ENTITLED COURT. W. C. S. V. E. R. B. Undertaking by party arrested for examination. Code, § 2440. Eaiow all men by these presents : That we, of ,hj occupation a , and of , by occupation a , are held and firmly bound unto the People of the State of New York in the sum of $ , to be paid by the said , for which payment well and truly to be m.ade, we bind ourselves, our heirs and representatives, jointly and severally. Sealed with our seals ; dated the day of , 1902. Whereas, the above bounden was here^ tofore duly arrested upon a warrant as prescribed by section 2437 of the Code of Civil Procedure, and whereas, by an order made by on the day of , in the matter of the examination of , in proceed- ings supplementary to execution upon a judgment entitled Court, "W. C. S." against "E. E. B.," the above bounden was required to give an undert.ai;ing as prescribed by section 2440 of the aforesaid Code. ISTow, 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 246 Supplementary Peocebdings. appointed, or to be appoimted by tKe said judge in, tlie prooeed- ings ; and shall not, tLiitil disebarged from arrest by virtue of the aforesaid warrant, dispose of any of bis property wbicb is not exempt' from seizure by section 2463 of tbe Code of Civil Pro^ cedure, tben tbis 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 Yoek, ) County of _, j above named, being duly and severally sworn, says each for himself that he is a resident of, and a holder in the State of E'ew York, and is worth the sum of $ over and above all debts and liabilities he owes or has incurred, and exclusive of property exempt by law from levy and sale under execution. Severally sworn to before me this day of , 1902. ss. State of New Yoek, ) County of On this day of , 1902, before me, the subscriber, 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. (Indorse as preeoribed by Rule 2, S. C.) FOEMS. 247 13. COUET. In ee Examination op "E. E. B.," a judgment-debtoe, ttpon appli- cation of "w. c. s.," upon a Judgment entitled COURT. w. c. s. I). E. E. B. Warrant of Cominitment of party V refusing to give undertaking. Code, § 2440. J The People of the State of New York, to the Sheriff of the County of , Greeting:' Whereas, I, > , as , did, on the day of , 1902, upon the proper affi- davit, issue a warrant under section 2437 of the Code of Civil Procedure for the arrest of , a judgment-debtor, and whereas the said was duly arrested and brought before me, and, whereas, I did, on the day of , 1902, make an order directing 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 , 1902, 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 within the walls of the jail until he gives the undertaking herein mentioned, or until finally discharged from the afore- said warrant, and that you produce the said judgment debtor 248 SuPPLBMENTAET PeOCEEDINGS. before me, or a referee appointed by me, at such times and places as T may appoint and direct. Date the day of , 1902. , Judge. (Indorse as prescribed by Rule 2, S. C.) 13. COURT. In the Mattbe of the Examina TION OF "j:/. E. B.," a JtJDGMENT- DEBTOE, IN PbOCEEDINQS SuPPLE- MENTAET to EXECtTTION XIPOBT A Judgment entitled COURT. W. C. S. V. E. R. B. Affidavit for order for examination >- in aid of an execution. Coda, § 2436. ss. State of INew Toek, County of , being duly sworn, says he is th© judgment- creditor herein That judgment was rendered on the day of , 1901, 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 said judgment-debtor's appearance in the action (or upon the personal service of the summons in the action upon the judgment-debtor), (or upon the substituted service of the sum- mons in tlie manner prescribed by sections 435, 436, 437, of the Code of Civil Procedure), as appears by the judgment-roll filed in the office of the clerk of the said county of , reference to vvhich is hereto had, and the same is made a part of this affidaA'it, and that the said judgincnt was duly docketed and Forms. 249 the judgment-roll duly filed in the office of the clerk of on the day of , 1902. (That a transcript of said docket was on the day of , 1902, duly filed and the judgment duly docketed in the office of the olerk of county.) That within five years after the original entry of said judg- ment, and on the day of , 1902, an execu- tion was duly issued out of said court, it being a court of record, upon said judgment against the pToperty of the said , judgment-debtor, and delivered to the sheriff of the 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), (or that the judgment-debtor is not a resident of this Stat© and has no place for the regular transaction of business in person within this State, and the execution was duly issued to the county where the judgment-roll is filed (or the transcript of the justice's judg- ment) . That said execution is now in the hands of said sheriff unretumed, and that said judgment remains unpaid (or that there is still unpaid upon the said judgment the sum of $ ). Deponent further says that said judgraentrdebtor has property not exempt from these proceedings by section 2463 of the Code of Civil Procedure, viz. : That on the day of , 1902, the judg- ment-creditor caused a demand to be made by the said sheriff upon said judgment-debtor to apply the said property 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 demand for the judgment-creditor, and was present to receive said property or an assignment thereof. That deponent is the owner of said judgment and entitled to control these proceeding's. Deponent further says that the said judgmontrdebitor, upon demand as aforesaid, unjiistly refused and still unjustly refuses, 250 SUPPLEMENTAET PEOCEEDIlirGS. to apply his propecrty towards the satisfactioii of said judgment, as deponent is informed and verily believes. That deponent derived a portion of his information from the sherifF, whose affidavit is hereto annexed, and deponent's belief is founded in part upon such affidavit. That no p'revious application has been made herein for the order here asked for. Sworn to before me this day of , 1902. (Indorse in manner prescribed by Rule 2, S. O.) 14. COUET. IjT THE MaTTBB of THE EXAMINA- TION or "E. R. B.," A Judgment- debtor, . IN Pboceedings SUPPtE- mentabt to execution upon the Application op upon A Judgment entitled COURT. "W. C. S." , V. R. Affidavit for order of examination >- in aid of execution on a judgment of inferior courts. Code, § 2441. "E. B." ss.: State of New York, County of , being duly sworn, says he is the judgment-creditor herein That judgment was duly rendered on the .... day of , 1902, 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 plaintifP, 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, exclusive of costs). That said judgment was so rendered upon the personal service of the summons duly issued and signed by said justice in said action upon the judgment-debtor (or upon FoEMS. 251 the personal appearance of the judgment debtor before the said justice, in said action), and the judgment so rendered was duly docketed by said justice on the aforesaid day, as appears by the said justice's docket, reference to -which is hereto had and the same to make a part of this affidavit. That a transcript of the original docket of said judgment was on the day of , 1902, and. within six years of the time of its said docketing, duly filed, and said judgment was duly docketesd in the office of the clerk of the county of , for a sum not less than twenty-five dollars, exclusive of costs. (That a transcript of said docket of the said clerk was after- wards and on the day of , 1902, 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 ini the office of the clerk of the county of , an exeoiition upon said judgment against the property of the said judgmentrdebtor was duly issued by the said clerk of the eoiuity of out of said county court, the same being a couit of record, and on the day of , 1902, duly delivered to the sheriff of the county of , where the said judgmen'tdebtor then resided and still resides (or where the said judgment-debtor now has a place for ^e re^lar transaction of business in person). (That said judg- ment-debtor is not a resident of this State, has no place within this State for the regular transaction of business in person, and tbe execution was duly issued to the sheriff of the county where the original transcript of the justice's judgment is filed.) That said execution is now in the hands of said sheriff, un- returned, and that said judgment remains , unpaid (or that there is still unpaid upon 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 252 SurPLEMENTABY Peoceedings. , 1902, the judgment-creditor caused a demand to ba made by the said sheriff 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) . 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 receive said property or an assignment thereof. Deponent further says that the said judgrdent-debtor, upon demand as aforesaid, unjustly refused and still unjustly re- fuses to apply his property towards the satisfaction of said judgment as deponent is informed and believes. That depon- ent's information was derived in part from the sheriff holding said execution, the affidavit of whom is hereto annexed, and deponent's belief is founded in part upon said affidavit. That no previous application has been made herein for the order here asked for. Sworn to before me this day of , 1902. (Indorse in manner prescribed by Rule 2, S. C, ) 16. COURT. In the Matter oi-' the Examina- tion OF "K. K. B.," A JaUG.MENT- debtor, in Pkoceeuinqs Supple- mentary TO l']XECUTI0N QPON THE Application of "W. C. S.," o.\ a .TnnGMENT entitleu COITRT. '■W. C. S." V. "E. R. r,." Older for examination in aid of execution upon a judgment ren- '' dered in a court of record. Code, It having been made to apiioar to me by the annexed affidavits of that j\idgTnent was rendered on the ... . day of , 190 . . , in the FoEMS. 253 court oif ^ county in an action wherein was plaintiff, and was defendant, in favor of the said against the said , for a srnn not less than twenty-five dollars, upon personal service of the summons in the action upon the judgment-debtor (or upon the appearance in the action by the judgment-debtor), (or upon the stibstituted service of the summons upon the debtor in the manner prescribed by sections 435, 436, 43Y, of the Code of Civil Procedure), as appears 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 tliat such execution has not been returned by the said sheriff, and that such judg-ment still remains unpaid (or that there still remains unpaid upon said judgment the sum of dollars). That the said judgment-debtor has property not ex- empt from these proceedings by section 24-63 of the Code of Civil Procediire, which he unjustly refuses to apply towards the satisfaction of said judgment, as stated in said affidavit. I do, therefore, hereby order that it be referred to , Esq., counselor, of , IST. 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 judgmenlh debtor, to attend and be examined before the said referee at in the of , IST. T., on the day of , 1902, at A. M., concern- ing his property mentioned in the affidavit hereto annexed. And I do hereby further order and direct that these proceedings be and the same are hereby made returnable before Hon at his chambers in the of And the said , his agents and servants, are hereby forbidden from making or suffering any transfer or 254 SuPPLEMEISTTAEY PeOCEEDINGS. otheir interference with the property of , or in ■wMch lie has any interest, legal or equitable, and not exempt by seetion 2463 of the Code of Oivil Procedure, until further direction in the premises. Dated the day of , 1902. , Judge. (Indorse in manner prescribed by Rule 2, S. C.) 17. COURT. In be Examination of "E. R. B.," a jxidgmbnt-debtob, in proceed- INGS Supplementary to Execu- tion UPON A Judgment entiti.ed ... ^ c^ ■ j „„ „„ L amination as to aiter-acquirea COURT. r i. W. C. S. V. E. R. B. Affidavit for an alias order for ex- amination property. County, ss. being duly sworn, says he is , that heretofore and on the day of , 1902, this deponent obtained an order herein for the examina- tion 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 , 1902, and said proceedings are now pending, and the judgment herein remains wholly unpaid. That after the service of said order, and on or about the day of , 1902, the judg- ment-debtor received and became the ovsmer of certain property, viz. : of which he is still the owner. That no previous application for an alias order for the exami- nation of the judgment-debtor has been made herein. Sworn to before me this day of , 1902. (Indorse in manner prescribed by Rule 2, S. C.) FoKMS. 255 18. COURT. Isr RE Examination of "E. R. B.,'" A Judgment-debtor, in Proceed- ings Supplementary to Execu- tion UPON A Judgment entitled COURT. W. C. S. ■17. E. R. B. Alias Older for examination of party as to after-acquired property. It appeariiLg to me bj the affidavit of and an order of examination in tkese proceedings granted by Hon on the day of , 190'2, thereto annexed, that an order for the examination of the .... judgment-debtoiT herein has been heretofore 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 the first execution upon said judgment in due form of law was duly issued to the sheriff of said last-mentioned county, and was duly returned by him within ten years last past wihoUy 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 proceedings, 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 , K T., on the day of , 1902, at .... A. M., and the said is hereby for- bidden from m'aking or suffering any transfer or other disposi- tion of, or interference with, the property of or in which has any interest, 256 SuPPLEMENTAEY PeOCEEDINGS. legal or equitable, not exeanpt from these proceedings by section 2463 of the Code of Civil Procedure until further direction in the premises. , Judge. Dated , 1902. (Indorse as prescribed by Pule 2, S. C.) 19. COUKT. In the Matter of the Examina- tion OF "E. E,. B.," A Third Per- son, IN Proceedings Supple- mentary TO Execution upon the Application op "S. C." upon A Judgment entitled COUET, County. w. c. s. V. E. r. b. Affidavit for order for examination of tbird party after return of exe- cution. Code, § 2441. State of New Yobk, ss.: County of ( 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 day of , 1902, .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 service of the summons in the action upon the said judgment-debtor (or upon the personal appearance of the judgment-debtor in the action), (or upon the substituted service of the summons upon the defendant in the manner pre- scribed by sections 435, 436, 43*7, of the Code of Civil Pro- ceduiei), the judgment-roll of which was duly filed, and the FoEMS. 25Y judgment duly docketed in the clerk's office of the county of om the day of , 190 .. , reference to which judgment^roU 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 judgment-debtor now has a place for thei transaction of business in person), (or where the judgmentroU in the action is filed). That said execution has been returned by said sheriff wholly unsatisfied, and the said judgment remains, wholly un- paid (or that said execution has been returned partly unsatis- fied, and there is still due upon said judgment the sum of $ )• That the first execution issued upon said judgment was re- turned within ten years last past. Deponent further says, that "E. E,. B.," of the of ,1^. 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 exceeding ten dollars), and that no previous application has been made herein for an order tO' examina said third person. Sworn to before me this day of , 1902. (Indorse as prescribed by Rule 2, S. 0.) 17 258 SUPPLEMENTAEY PeOCEEDINGS. •20. COURT. Ik ee Examination of "J. W. S.," A Thibd Person, in Pbooeedings StIPPLEMENTABT to EXBCTJTipN, UPON THE Application op "W. J. S.," upon a Judgment en- titled COUET— County. W. S. C. V. E. E. B. Affidavit for order of examination of third party, after issue and before return of execution. Code, § 2441. ss.: State ob- jN'ew Yoek, County, being duly sworn, says he is tKe jtudgmjeut- creditor herein af tar mentioned (or that he is the assignee of the judgment hereinafter described), (or that he is the executor of the last will and testament of the judgment-creditor), (or that he is the attorney of record of the judgmeat-crieditor) ; that judgmerut was rendered on the day of , 1902, in the court of exmihtj 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 said judgment- debtor (or upon the personal appearance of the debtor in the action), (or upon the substituted service of the summons upon the defendant in the manner presoribed by sections 435, 436 and 437 of the Code of Civil Procedure), the judgjnent-roU of which was duly filed, and the judgment duly docketed in the office of the clerk of the county of on the .... day of , 1902, reference to which judgment-roll is hereto had and the same is made a part of this affidavit (that a tran- script of said docket was oni the day of , 1902, FoEMS. 259 duly filed and the judgment duly docketed ini the office of the clerk of the couaty of ). That within five years after the original entry of said judgment, and on the day of : . . . , 1902, 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, to the sheriff of the county wheire the judgment-debtor resided (or to the counity wh©re the judgment-debtor has a place for the regular transaction of business in person), (or that the judg- ment-debtor does not reside within the State and ha^ no place for the regular transaction of business in person within this State, and the execution was issued toi the county where the judgment-roll aforesaid is filed). That said execution is now in the hands of the sheriff unreturned, and the said judgment re- mains wholly unpaid (or that there is still unpaid upon said judgment the sum of $....). Deponent further says that he is the owner of said judgment.. Deponent further says that , debtor, has property not exempt from these procreditor caused a demand to be made by the said sheriff upon the said judgment-debtor to apply the 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 judgment-debtor has neglected and refused to apply the said property (or the said money), or any part thereof to the satisfaction of thei said judgment. That the affidavit of the said sheriff is hereto annexed and forms a part of this affidavit. Deponent further says that G. W. of the of , N". T., has personal property of the said judgmentrdebtor exceeding ten dollare in value, (or that the said G. W. is indebted to the judgment-debtor in a sum exceed- ing ten dollars). Deponent further says that his Imowledge in regard to this indebtedness from the said G. W. to the said ju'lgment-debtor, is as follows : (Here state all the facts within the affiant's knowledge. ) 260 SUPPLBMENTAEY PeOCEBDINGS. Deponent further says that he was informed by , who resides at (here state the information), that since said time deponent went tO' for the purpose of obtaining the afl&darit of the said to be used upon this application, but deponent was unable to find the said , and that he has ever sinice been un- able to obtain the affidavit of said Deponent further says that no previous application for this order has been made to any judge. (Signature of affiant.) Sworn to before me this day of , 1902. (Signature of officer.) (Indorse as prescribed by Kule 2, S. C.) 31. SUPREME COURT— County of In the Matter of the Examina- tion OF "E. R. B.," A Judgment- debtor, IN Proceedings StrpptE- mentart to execution, upon a Judgment entitled SUPREME COURT. W. C. S. V. E. R. B. Affidavit of service of order, war- rant, attachment, etc. County of , ss.: , being duly sworn, says, that at the of , on the .... day of , 1902, he served the annexed affidavit and order upon by deliver- ing to, and leaving with him personally, copies thterwf, 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 FoEMs. 261 person served to be t;liie person mentioiied and described in the ■witbini order and affidavit (Sigaatuire of affiant.) Sworn to before me tbis day of , 1902. (Signature of officer.) 23. COIIRT. Ik ee Examination of "E. R. B.," A JUDQMBNT-DEBTOK, IN PeOCEED- INGS SUPPLEMENTAEY 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 per- " son. Code, § 2441. It baving been made to appear to me by the affidavit of , that judgment was rendered on tbe ...... day of , A. D. 1902, in the court of county in an action wherein was plaintiff, and was defendant, in favor of tbe said against tbe said for the sum of $ ... . (or for a sum not less than twenty-five dollars), upon personal secrvice of tbe summons in the action upon the defendant (or upon the per- sonal appearance of the defendant in the acition), (or upon the service of the summons upon the defendant in the manner prescribed by sections 435, 436, 437, of tbe Code of Civil Pro^ cedure). 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 pay- 262 Supplementary Peocebdings. able on said judgment thB sum of $. . . . ), (or that said ©xecu- tion is yet in tihie hands of the sheriff wholly unsatisfied, and the said judgm.ent remains wholly unpaid), and that ., of the of , has personal proiperty of the said judgment-debtor exceeding ten dollars in value (or is in- debted to the judgmentdebtor in a sum exceeding ten dollars), as stated in said affidavit. I do, therefore, hereby appoint , Esq., counselor, of ■ , N. Y., a referee in tiese prooeedngs, with the power and subject to tha 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., on the .... day of , 1902, 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 , 1902). I do further order and direct that these proceedings be and the same are hereby made returnable before Hon at his chambers in the of , and the said judg- ment-debtor and the said are severally forbidden from making or suffering any transfer or other disposition of, or intei-ference with, the property of said judgment-debtor, or in which he has any interest, legal or equitable, not exempt from these proceedings by section 2463 of the Code of Civil Pro- cedure, or debt oonoeming which said is re- quired to attend and be examined, until further direction in the premises. Dated at this day of , 1902. , Judge. FOEMS. 263 33. COUET. Ik the Matter of the Examina- tion OF "E. E. B.," A JUDGMBNT- DBBTOB, IN Proceedings SupptE- mentaet to execution upon a Judgment entitled COURT. W. C. S. V. E. R. B. Referee's summons for attendance r of debtor. To . ; ' I, , duly appoimted a referee in these pro- oeedings, unideir sectdcmj 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., coomty judge, and dated the day of , 1902, and here^ tofore duly served upon you; do hereby summon, direct and require you to attend in person before me at in the ,~S. Y., on the day of , at .... A. M. of said day, to be efxamimed as in said order di- rected and required. Dated this day of , 1902. , Referee. 264 Supplementary Peoceedings. S4. COUET. In ee Examination or "E. K. B.," A JUDQMENT-DEBTOB, IN PbOCEBD- iNGs Supplementary to Execu- tion, UPON the ApPUCATION OP "W. C. S.," THE Judgment- CBEDITOB. Affidavit for order or directions to appear, ina,de after service of order of examination. Oounty, ss. : , being duly sworn, says he is th.e ; that on or about the day of , 1902, an order for the examination of , the judgmaat-debtor heredn, ■mas duly granted, and on the day of , 1902, the said order and the aflSdavit upon which it was founded, was duly served upon the said , the judgment- debtor, reference to which said order and affidavit is hereto had, and the same are made a part of this affidavit and -snll be read }xpan the motion to be made herein. That by said order G-. W. E. was duly appointed referee, to take the examination herein ; and the said was directed to appear and be exam- ined before the said referee at the office of in the of in the of on the day of , 190 , at 10 o'clock in the forenoon of said day. That at the time and place mentioned in the order of examination the said referee duly took the oath prescribed by law, which is hiereto annexed, and made a part of this affi- davit. That at said time the said referee called said proceed- ings, and the said , judgtuent-or editor, duly appeared before said referee and filed an affidavit of service of the said order of examination upon the said judgment-debtor, which said affidavit of service is hereto annexed and forms a FoEMs. 265 part of this affidavit. That , the said judgmefiit- debtor, failed and nieglected to appear before the said referee, although a full hour was allowed for him to appear (or the said referee failed to appear at the time and place mentioned in said order of examination, though deponent and the said judgment- debtor were at the place at the time mentioned in said order and for an hour after such time), (or that deponent at the time mentioned in the said order of examination was taken suddenly ill and was unable to appear before the said referee, withouit any fault on his part, and lie was also unable to send anybody to appear for kim at such time) . Tkat no previous application for the order asked for herein has been made to any judge. W. O. S. Sworn to before me this day of , 1902. 25. COUET. Ib ee Examination of "E. E. B.," A Jtidgment-debtoe, in Proceed- ings Stjpplementaky to Execu- tion, upon the Application of "w. c. s.," the judgment- ckeditob. Appointment of referee, and direc- tions to debtor to appear. I, Gr. W. R., referee duly appointed to take the examination in the above-entitled proceedings, do hereby appoint th.e day of , 1902, at 10 o'clock in the forenoon, as the time, and my office in the of , IST. Y., as the place, for th.e hearing of this matter. Dated , 1902. G. W. R., Referee. (Title of Proceedings.) (Direction of Judge.) Upon the annexed affidavit the order of examination, the affi- vit upon which the order of examination was founded, the 266 SUPPLEMEMTAEY PeOCEEDINGS. affidavit of service of said order of examination; upon the judg- mentrdebtor, the appointment of the refere© in these proceed- ings, and upon motion of , attorney for , the judgment-creditor ; ordered that , the judg- ment-debtor, appear before the said referee at the time and place mentioned in his appointment. Let this order, the an- nexed affidavit and the appointment of th© said referee be served upon the said , judgment-debtor, on or before P. M. of the day of , 19. ., and such service shall be deemed sufficient. Dated , 1902. , Judga 25 1-3. OATH OF REFEEER COURT. In the Matter of the Examina- tion OF "E. E. B.," A Jtjdsment- debtoe, in Peockedings Supple- mentaby to execution upon a Judgment ENTiTtsD COURT. W. C. S. V. E. R. B. County, ^ g^_ , State of New Yoek, being duly svpom, says that he will faithfully and fairly discharge his duty as referee upon the matter referred to him, and make a just and true report, aooording to the best of his understanding. (Signature of referee.) Subscribed and sworn to before me this .... day of , 1902. Forms. 267 SiTBPOENA Duces Tecum. State of JSTew Yoek, {^g. County of \ The People of the State of Neiu York, to . Greeting : You are commanded that all and singular business and ex- cuses being laid aside to be and appear in your own propeir person before , the undersigned referee, at in the of on the day of , 1902, 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 b© 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 betweeoi' the day of , 1902, and the day of , 1902, also a cash book kept by you during the aforesaid time now in your custody or control, and all 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 subpcena, 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 , 1902. (Signature of referee or judga) (Signature of attorney.) 268 Supplementary Peoceediugs. 36. COURT. In the Matter of the Examina- tion OF , A IN Pbooeedings Suppubmbntaby TO Execution, upon a Judgment ENTITMS) COURT. W. C. S. V. E. R. B. > Referee's subpoena. Code, § 854. The People of the State of New York to Greeting : 1, , duly appointed a referee iiereia by an order made by Hon. M. L. W., a county jndge, dated the day of , 1902, under section 2442 of tbe Code of Civil Procedure, do h'ereby command you that aU busi- ness and excuses being laid aside, you, and each of you, appear and attend before me at , in the of on the day of , 1902, at .... A. M., to testify and give evidence in these proceedings (and that you bring vsdth you, and then and there produce the books of containing certain entries , and all books, papers, deeds, contracts, in your possession or under your con- trol, relating to ), and for a failure to attend or p^ro- duee said documents you vsdll be deemed guilty of a contempt of court. , Referee. Dated the day of , 1902. FOBMS. 269 2G 1-3. COURT. In the Matteb of the Examina- tion Off "E. R. B./' A JtlDQMENT- DEBTOB, IN SUPPIiEMENTABY PBO- CEEDINGS ITPON A JTTDQMENT EN- TITLED COURT. w. c. s. V. E. R. B. ^Deposition taken before referee or judge upon examination. 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 "K B.," a witness produced by the judg- ment-creditor), under section 2435 (or 2436), taten by "Gr. W. B.," Esq., referee appointed under section 2442 in the .... on the day of , 1902. Said "E. E.. B." being duly sworn, testified: (Here insert testimony.) Subscribed and sworn to before me this .... day of , 1902. (Signed by witness.) (Title of Matter.) Notice of motion for confirmation of referee's report. Sir: Take notice that upon the report of J. B., referee, the evi- dence on these proceedings, the exceptions filed to said report, and all the proceedings herein, the undersigned will move before Hon , to whom these proceedings were made returnable, at his chambers in the of , IST. T., on the day of , 1902, at .... o'clock in the noon of said day for a rule or order: 270 SUPPLEMENTAEY PeOCEEDINGS. I. Oonfirming the report of said referee. II. For the ooats of these proceedings. III. For the appointment of a receiver hereon. IV. For such other further or different relief as to the judge may seem meet. , Judge. To E. R, N. S., Attorney for Attorney for , , N. Y. (Title of Matter.) Judgment-debtor's exception to the report of referee. The above named judgm,©nt-debtor hereby excepts to the de- cision, findings and report of J. B., the referee herein, on the following grounds : 1st. Because said referee found (here state in detail the mat- ters objected to). 2nd. Because said referee did not find (here state in detail what is claimed thut the referee should have found). Dated , 1902. E. K, Attorney for , , K Y. Sir: Take notice of exceptions to the referee's report herein filed in the county clerk's office , 1902, of which the within is a copy. Yours, etc., E. K, Attorney for , ToKS., , K Y. Attorney for the judgment-creditor. i'oKMs. 271 27. COUKT. In re Examination of "E. E. B.," A JUDGMENT-DEBTOE, IN PeOOEED- INOS SUPPLEMENTAEY TO EXECU- TION, UPON THE Application of Order granting leave to a debtor of ^ the judgment-debtor to pay debt to sheriff. A motion kaviiig been duly noticed to be made before me at this time aiid place by the judgment-creditor for a rule or order that , a debtor of the judgment-debtor, might have leave to pay his dehts to , sheriff of , to be applied upon the judgmeaat of the judg- ment-oreditor, 'Now, upon reading and filing the affidavit of , verified on. the day of , 1902, the applieatiou for the original order of examination herein, the order of exami- nation, the notice of motion, the affidavit of as to the service of the notice of motion, application and order upon the judgment-debtor, and after hearing in favor of said motion, and of counsel for the judgment-debtor, opposed, it is ordered anid adjudged, and I do heireby order and adjudge, that aji order has been heretofore granted in these proceedings for the examination of the judg- ment-debtor, and duly served upon the said judgment-debtor, and that is indebted to the said in the sum of $ It is further ordered that the said .... may pay the said debt to sheriff of Dated , 1902. (Indorse as prescribed by Rule 2, S. O.) 272 Supplementary Peoceedings. (Title of Matter.) The undersigned, appointed by an order of , Judge, dated the .... day of , 19 . . , a referee to take the examination in these proceedings, having taken and reduced to "writing the testimony of all the witnesses and certified all the evidemce to the judge before whom the proceedings were made returnable, respectfully reports : I. That I have taken all the proofs in these proceedings offered by either party, which are hereto annexed as part of this report. II. I find that A. B. is indebted to the judgment-debtor in the sum of $ , over and above all counterclaims, which debts are now due and payabla III. That the said judgment-debtor has a one-third interest in the firm business of the firm of C, D. & Co., and that the value of said interest of the said judgment-debtor is $ ... . IV. That on or about the day of , 19 . . , the judgmenlhdebtor, in anticipation of the judgment upon which these proceedings are f oimded, transferred to , his wife, certain notes, of which the following are copies : That said transfer^ were made without consideration, and for the express purpose of hindering, delaying, or defrauding the judgment-creditor herein. Dated , 1902. J. B., Referee. FOEMS. 273 27 1-2 COURT. In an Examination of "E. E. B.," A Judgment-debtor, in Procebd- iNHS Supplementary to Execu- tion, upon a Judgment entitled COURT. W. C. S. V. E. E. B. Notice of motion for order vacating y order of examination. Take notice that upon the order O'f examination herein, and the affida^-its and evidence upon which it was granted, the undersigned will move at Special Term of this court, set down to be held at the court house in the of , N. Y., on the day of , 1902, at 10 o'clock in the forenoon of said day (or bef oire Hon. , at his chambers in the of , IST. Y., on! the day of , 1902, at noon of said day), for a rule or order, vacating the said order of examination on the following ground: 1. That the. evidence set forth' ini the apiplication for said order of examination were not sufficieait to give the judge juris- diction to grant the order. 2. That the application fails to show 3. That the application fails to show Dated , 1902. Yours, etc., E. 0., Attorney for , ,KY. To T. W. S., Attorney for 274 Supplementary Peoceedings. COURT. In be Examination of "E. E. B.," A Jttdgmbnt-debtob, in Peoceed- ings SUPPLEMENTABY TO EXECU- TION, UPON A Judgment en- titled COURT. W. C. S. V. E. E. B. » Certificate of referee. Code, § 2442. To the Hon : The undersigned refereei appointed under section 2442 of the Code of Civil Proeedrure in the above proceedings does hereby certify and return : That before entering upon the examination or taking testimony, I took the oath prescribed by 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 returned) . That at the time and place men- tioned in the order hereto annexed, viz. : at .... A. M., on the day of , 1902, at in the of ,1^. Y., I called said proceedings, and said judg- ment-creditor appeared before me by , Esq., his attomiey, but E. R. B., the judgment-debtor (or E. B., the witness named in the annexed subpoeua), came not, but made default, although a full hour was allowed for him to apN T—( Continued) . judge may raafca, 154, 158. order of, need not be served on judgment -debtor if present, 157. parties may adjourn by stipulation, 15s. referee may adjourn, 154, 158. may in parties absence, 154, 158. tlie absence of defendant, 154, 158. proeeeidings where no regular made, 119. siuould be ser^'ed witb summons to bring into contempt, 1.jS, 151). wlien judgment-debtor absent, 158, 159. ADMI^ISTKATOES— exempt from proceedings wben, 31, 33. AFFIDAVIT— for order founded upon a debt for costs, 84, 85. against a fo^reign, corporation must allege tbait it is not do- ing business in tliis state, nor bas it any business or fiscal agency therein, or agency for tke transfer of its stock, 91, 92,. 93, 129. attorney of record need not state special autboritv, 55, 96. by eixeoutors and aidministrators must sbow death of judg- mienit-creditor, 56, 59, 62, 96. must sliow their appoin,tme(nt and qualifications, 56, 62. defendant as judgment-creditor, 53, 57, 64, 107. for ooBts, 217, 218, 221, 222. , order for examination of third party, 61, 79, 88, 90, 96. examination of judgment-debtor after return of execu- tion, 53, 60, 77, 89, 92. judgment-debtor after return of execution upon judgmenjt of inferior courts, 62, 7^4, 77. second or subsequent order must show subsequently ac- quired prop'arty, 63, 64, 165. order mnst sIioav facts newly leai"ned, 64, 65. warrant absolutely necessary, 63, 73, 107, 108. how rosideiicia or place or businees or non-residence tlO' be allogod in, 58, 92. Index. 335 AEFIDAVIT— ( Continued ) . judgmjemt and execution to be alleged in, 53, 54, 55, 56, 57, 92, 131. facits to be alleged in, 53, 54, 55, 56, 85, 88, 91, 92, 131. if judgmemt-debitor rasidee and lias a place of businiess in tba county, sucli facts may be alleged in the conjunotive, 54, 64, 65, 92, 129. a disjujnctive stiatement is not sufficient, 54, 60, 62, 69. jodnt-debtiors must allege what facts, 34, 40, 48. judgment for defendant must allege wlnat facts, 54, 57, 62. against infant must allege what facts, 34, 36, 40. by confession, appeairanee or peirsomal service pre^ siumed, 62, 129. musiti be truly described, 53, 62, 37, 66, 68, 69, 81, 88, 129. exclusively for costs sufficient, 53,' 56, 58, 87, 89. of exemption from exaaninatiom, 160. in niatnope of answecr, 160, 161. for recedveir before return of execution, 178. for order of examination before return of 'execution uipoii order awarding costs, 84, 85. should be marked by judge "read on motion," 116. - m.ust allege actual return of the sli.erifE of execution un- satisfied, 54, 57, 60, 80, 84, 92, 129. allege present residence of debtor, 54, 92, 131, 140. evei-y fact necessary to give judge juTisdiatdooi, 53, 54, 55, 56, 57, 58, 59, 60, 80, 84, 92, 129. show that first execution was retumied within ten years from- time of making application, 58, 62, 131, 132. no priotr application for the order has been made to any judge, 62. transcript of a judgment of an inferior court was filed within six years after its rendition, 62, 63, 64, 65, 92, 132. five years have not elapsed sine© tlie entry of judgment, 53, 60, 62. 336 Index. AFFIDAVIT— (Continued). execution) was issued as prescribed by tbei Code of Civil Procedure, 54, 60, 80, 83, 84, 92. judgmemit was taken uponi the judgroBDiriehtm'a personal appearance, or personal service of summons upon him, 54, 58, 59, 62, 129, 131, 174. judgment kas been duly docketed, ajid ia what county the judgment-roll is filed, 57, 59, 92, 129, 173. execution, of inferior court was issued by derk of a court of record, «2, 63, 64, 66, 74, 84, 132. judgmient was originally foT twenty-five dollars or over, 56, 66, 74, 84, 129, 132. sufficient if this fact appears on the face of the papers, 54, 129. must show the amount remiaininjg unsatisfied upon the judg- ment, 54, 66, 77, 84, 132. show by what right the affiant miakes the affidavit, 55, 62, 66, 85. wht)i is the owuer of the judgmient, 53, 62, 74, 84. truly describe the judgmient, 57, 58, 73, 84, 92, 129. contain a clear statemient that thie judgment-debtor is a resident of the county to which the execution was issued,' 57, 58, 49, 92, 93, 128. of contested factis in upon motion, 125, 167. necessary foundation for contempt proceedings against witness, 194, 197, 200. must show exhausition of legal remedy, 77. and interrogatoriee and answea- in contempt proceedings used as pleadings, 208. necessary allegatinufi in, 78, 79, 80, 81. for examination of third party, 81, 82. order fo^r piayment of money considered a judgment, 36. of attorney of record, 55. agent of judgment-creditor, 55. assign,ee of judgment, 62, 67. representative of judgment-creditor, 30, 34, 69. Index. 337 AFFIDAVIT— ( Continued ) . proof of service of order for esaminatioii. must be made by, 112, 113, 114. shotiid state tbat judgment was duly taken or bad, 54, 56, 129, 74, 83, 98, 107, 111, 120. "wbat should be alleged wbeu judgment is of cauirt of record, 62, 68, 79, 87, 88, 94, 132. must be alleged "vvbein judgment is of inferior oourts, 62, 68, 69, 132. wben made by agent must sboiw the nature of the ag^cy, 55, 56. ■where the judgment-debtior is a non-resident and bias a plaoe of business witbin the state, tbat fact should be positively alleged, 58, 131, 141. who must make, 55, 56. for order aftej issuing and before return of exeoution, 59, 60. must sitiate that judgmen<>debtor has property not exempt, 59, 60, 107, 167. tbat judgment-debtor unjustly refuses to apply his property, 109, 132. that a demand has been maide for tbe application of the propertr)-- 60, 61, 109, 131. x AGEl^T— may institute proceedings, 8,- 9. affidavit bv, must state what, 54, 141. ALIAS ORDER^ when may issue while first order is in life, 63, 64, 65. wbat miist be shovni to obtain., 63, 64. ALiMoisry— cannot be reached in supplementary proceedings, when, 19, 26, 120, 121. ALTER^vTATIVE STATEMEJsTT OF FACTS^ not sufficient, 61. AIVIEWDME'JSTT— absolute nullity not subject to, 48, 49. execution on transcript of inferior court, amendable, 49, 70, 71, 83, 115. 338 Index. AMENDMENT— ( Continued) . in descriptio'ii of court where judgmeBt is obtained, 48, 49. 115, 116. iiTegulaxiities in afSda\at not subjeot to, 48, 49. of execution, wlien allowed, 70, 44, 46, 50. place where judgmentrroU is filed, 47, 51. order foT examination may be ameandeid, 48, 49. vairianc© between amount of execution and judgmemt, 70, 25. want of service of order not subject to, 116, 123, 129, 206. what piroceedings amendable, 49, 70, 115, 116. AJfSWEE— to application for order, 160. cannot be used in a criminal action, 160, 163. counsel may advise in framing, 158, 159, 160. each on examination must be. under oath, 154, 159. party not excused from answering questions, 160, 163. of party to interrogatories, 158, 160, 207, 208. proceedings upon interrogatories, etc., 207. APPEAI^ lies only from' an order made by the court granting or deny- ing a motion to vacate an otpdeT made by a judge out of court, 125, 127. APPEAEAlSrCE— what is deemed to be, 34, 35. judgmenjt by confession, 2, 34, 35. for defendant-plaintiff's, 35, 91. agadnsit infants, 34, 35. joint-debtors, 3i, 35. must have been taken upon, ot pcreonal seirvice of summonB, 62, 129. order for th© payment of unmey deemed a judgment, 33, 34, 46. party miust attend within a, reasonable time after time specified in the order, 158. waiver of ser\'ice of order of examina,tion by general, 91, 144, 145. Index. 339 APPLICATION FOR ORDEE— affidavit of creditor necessary upon, 53, 55. amounit unsatisfied must be sluown upon, 53, 67. must show esecutioni w^as issued tO' the sheriff of the proper county, 54, 56, 92. must be as complete as a creditor's bill, 54, 6*7, 77. must state facts positively, 54, 67. must shoav that creditor has exh'austed ail leg,al remedies, 55, 67, 77. need not show exact date of docketing judgment, 56, 67. judgment-roll, etc., part of, 53, 56, 62., sho^^ld not be entitled in action, 57, 67. must show in what court judgment was rendered, 57, 67. when must show in what county juidgment docketed, 57, 67. must show execution issued against property, 57, 67, 84. when must show retui*n of execution, 57, 67. should state tliat acts were duly done, 57, 58, 67. must show residence of debtor, 59, 67, 92. for order after issue and before return of execution, 59, 67. must sliow demand of property of debtor, 60, 67. must show execution in shcrift''s hands, 135. for order to examine third person, 61, 67, 82. must show filing of justice transcript within six years, 62, 67. by aissigTiee of judgmeuti, 62, 67. by representative, 30, 35, 63, 67. for warrant, 63, 67, 107. for second order of examination, 63, 64, 65. for order to examine founded upon order awarding costs, 66, 68, 69, 85, 88, 89, 90. for order founded on justice's judgment, 68. mo time limit for, 69, 84, 85. must show a legal execution, 71, 85. must show judgment a lien on real estate, 74, 76, 77. form of, 78, 79, 80. new practice, 82, 83. to show absence of judges, 97. marking papers used' on, 116. 340 Index. APPLICATIO'JSi for order— (Continned). for injuncition, 117, 118, 119. rattst shiow execution issued by county clerk, ■whiem, 38, 135. must noit state facts in the alternative, 141. for order that judgment-debtor deliver property to sberiff, 168. for receiver, 175, 176, 177. for receiver upon return of order for examination of third persom, 176, 177. for reeeiveir before return of execution, 178. for receiver need not show debtor has property, 180, 181. to extend receivership', 184, 185. for leave to sue by receiver, 190, 191. for leave by receiver to sue debts, 191. for oa'der to punish for contempt, 195, 196, 198. for ordei' to pimish for refusal by debtor to pay money to sheriff, 199, 200. for order to punish for -^dolation of injunction order, 200, 201. for waaTant without notice, 202, 203. for non-paymemit, of costs, 203. for order to show cause in cooatempt proceedings, 203, 204. for attachment in contempt proceedings, 204, 205. for habeas corpus, 206. papers should be marked by judge "read on motion," 116. must show valid judgment, 30, 33, 38. founded upon substituted sendee of sumanons, 38, 39. for OTder against two or more judgment-debtors, 40. upon execution against pei'sonalty only, 41, 42, 43. must show coiunity to which execution issued, 42, 44. must show residence of debtor, 43, 44, 45, 46. wfhere sheriff is a party, 46. where justice's transcript is filed in ISTew York city, 46. where execution was issued to a coroner, 46. must show wiien execntion wias returned, 47. must show the kind of execuition issued, 48. may show loss of executiou and return befo^re they have been filed, 48. fonnded upon execution issued and not retiirned, 50, 51. Index. 341 ARREST— exeanption froim, 105. ASSIGITEE— ma(y institiitB pirooeediiigs, 9. of judgiBient muist siiO'W wbat, 62, 85, 88, 130. for credittors, proceedinga by and against, 32. ATTAOKMEJSTT— bailable, 194, 195, 196, 198, 200, 204, 205, 216, 217. caomot be issued by refetee, 155, 156, 197. effect of warramt of, 194, 196, 198, 200, 203, 205, 215, 217. for failure to appear, 154, 158, 194, 196, 200, 203. fouuidationi for, 204, 205. affidavit necessary to support, 204, 205. wlijat is, 205. service of, 205. how parity kept under, 205, 216, 217. for refusal to obey subpoena, 197, 198, 199, 205, 216. refusal to b© s-worn, 156, 197, 198, 199, 205, 215, 217. piroducia books, etc., 155, 156, 199, 205, 216. ans^retr questions, 155, 156, 197, 198, 199, 205, 216. sign deposition, 155, 156, 197, 199, 205, 216. oomply witb otrder, 198, 199, 205, 216. interference with property, 199, 205, 216. disobedieneei of injunotion order, 199, 200, 205, 216. indorsement upon warrant of, 205, 206. inifcerrogatoiries and proof necessary, when, 206, 207, 211, 212. naiture of, 204, 205, 211, 212, 216. of witness, 165, 156, 197, 199, 204, 216. practice on return of, 205, 206, 207, 211, 213. review of order of, 205, 207, 211. order to show oause for order of, 204, 205, 214. tbafc court or judge h.as jurisdiction to grant, 196, 199, 200, 204. unldertaking to procure discbarge from, 205, 206, 219. wiarrant of, bow executed, 204, 205. whien issued summarily, 194, 195, 196, 203. wbo m.ay apply for order of, 194, 195, 204. 342 Index. ATTOEiXEY— may institute piroceedings, 9. of record, affidavit or for O'rder, 56, 141. EANKRUPTOY PROCEEDINGS— effect of, 33. OOMMITMEJfT— warramtof, 209, 210. CO'XEESSION OF JUDGMEISTT— apipearan'Ce or personal service of summons need not be alleged in, 130. CONTEMPT PKOCEEDINGS— are tiliamBielves special proceedings independent of the sup^ plementary priooeeidings, 153, 194, 195. aiOtH tihjait are piuniahable, 155, 194, 195, 196. amouinjt of fine, 155, 156. excuses, sufScieney of, 156, lYO, 171, 196, 198. effect of order to slipw causei and of warrant, 196, 198, 200. failure to appear, 155, 195, 196. form of order, 197, 206, 207, 208. baiboas carpus may issue, wben, 204, 205, 206. interference vwth property, 194, 196. interrogatories and p^roof, 204, 205, 206, 207. jadl liberties, 217. leng-tb of impTisonment, 216, 217. foT refusal to obey directions of judge, 15'6. for refusal to ans-vwr questions, 156. wairT'anit of commitment of witneB®, 156. foir refusial to obey direction of referee, judge or court, 194, 195, 196. who may be punished by, 196, 197. answer to inteirrogato'ries, 207. GommitmeoQit for r'efuisdng to amswer intei'TOgatories, 207. trial of, 208. common law rules nf ovidemce must be observed in trial of, 208, 209. finding of facts necessary, 209. amocreditor, 286, No. 35. to show cause for an order that the judgmient-debtor or third ptarty deKver property tc* sheriff, 276, 277, No. 28-J. for leave to discontinme, 278, 279, No. 29^. why party shoaild not be piunished for neglecting to appear, 290, Na 39. why party should not be pimished for' refusing to be sATOTu, 290, No^. 39. for refusing to sign deposition!, 290, No. 39. for refusing to answer questions, 290, No. 39. for' order appointing receiver. Codei, § 2265, 313, 314 No. 62.' 354 Index. rOEMS—Affida.vit—( Continued) . ' warrant for eixammatiorb, 230, 231, 232, IsTo. 3. of service of order, 260, Noi 21. far delivery of property, 235, No. 5. . aud demand of piaymmti, 240, 241, No. 8, 248, 249, JSTo'. 13. of receiver aa to refus^al of party to deliver ehiattels, 319, 320, No. 68. ocf JTistifiicaitdoin of suireities on ap,' iindeirtaMiig upon ordter of arresit,, 246, No. 11. ALIAS— oirdetr for esaminiaitioni of juidgmentrdebtor, 255, No. 18. affidavit foir, 254, Na lY. ANSWEE— of defenidant in aontempit pirocetadings, 301, 302, No. 51. tOi iaterrogatiories. Cbide^ § 2280, 238. verification of, 302, No- 51. appodntmemit by refeireie, 265, No. 25. APPEOVAL— of iinjdertaking given by receivoT, 317, No. 65. ATTACHMENTL- by order of the court. Oodfe, §§ 2269, 2273, 29Y, No. 46. order for ciammitraent for non-paymient of monkey or costs. Code, § 2282, 309, 310, Nol 59. order for aoimmfttlmieut for punisbment, 312, No. 61. warrant -of, 300, No. 50. of court tibjat it isBiue|, 306, No. 56. petition for writ of habeas corpus, 307, 308, No. 57. wiarramt of. Cbde, § 2268, 294, No. 42. Code, §§ 2269, 2273, 284, 295, No. 43. conunitnieint by judge, 294, 295, 43. OEETIFICATE— of referee, 274, 275, No. 31. OOlVOilTMENT— for nionrpaymient of naoney or costs, 309, 310, No. 59. order for, until payment of fine, 310, 311, No. 60. for punishment, 312, No. 61. Index. 355 FORMS— Ctotemp'th- affidayit of servioe of osrdeia and d'erri^and of paymietnit, 319, No. 68. for delivery of property^ 319, JSTo'. 68. for oi'der to sihoiwi cimse why paTtty shauld not be punished for megleoting to appear, 290, No. 39. whj party sliould nioib be p^imisilied for refusing to be swoim, 291, No. 39. why party sbjould iwt be punislied for refusing to aniswer questions, 291, No. 39. why party sho^ild mot be punished for refusing to s^ga deposition, 290, 291, No. 39. attaciinient,, wairrant of. Code, §§ 2269, 22Y3, 297, No. 44, 46. .amswer of defenidanit in, 235. indorsemeint of warrant. Code, § 2275, 297, Nos. 45, 46. initeoTogatoiries to be administered, 303, No. 53. order for commitnuent. Code, § 2267, 312, No. 61. for punishment, 312, No. 61. for nom-payment of money or costs, 319, No. 58. warrant of attaclTanent., 300, No. 50. interrogatories. Code, §2280, 303, No. 53, 54. on hearing' aftier returnj of intiarrogatorieB, 314, Na 55. of court tfafat attachment issue, 296, 297, No. 46. to show caaise why a party sho'ukl not be punished for contempt for neglecting to appear, 290, 291, No'. 39. to show cause why a party should not be punishteid for refusing to be sworn, 290, 291, No*. 39. OT'deir to show cause why a party should not be punished far refusing to sign dcptosition, 291, No. 39. shbuM be punished for refusing to answer quelations, 290, 291, No-. 39. pefcitioni for writ of habeas corpus, 307, No. 57. Warramtt of co-mnaitment, 294, No. 42. by jtidge upon attachment, 295, N«. 43, 44. OOSTS^ affida,vit for order for costs to judgment-debtor, 284, No. 33. 356 Index. FOEMS— Costs— (Gratinued). agajiust jiidgmieaiib-deibltloa', 286, N"©. 35. nabiee ocf motion for costs to judgmeat-oreditor, 384, 285, No. 33. against jnidgmiein1>creditoir, 286, 287, ISTo. 35. orfer allowing costs to jujdgnaieait-cirBditor, 287, No. 36. againisit judgmeuiixar editor, 287, 288, 'No. 36. commitmeiit fotr neglect to pay, 309, No. 59. oTider foa-, until paiyment of, 310, No. 60. DEPOSITION— takemi before referee or upon esamination, 275, No. 28. taken before judge, 269, No. 26^. direGtiomB of judge that piarty do somiertihing, 265, No. 25. DISCONTINUANCE— peifcition for leave to, 278, No. 29^. oi'der to sbow cause for leave to, 279, No. 30. order of, 278, No. 30. EXCEPTIONS— to report and findings, 270, No. 26^. FINE^ order for commitment until payment of, 310, No. 60. oommitmenit until paiymient of, 311, No. 61. HABEAS GOEPUS— petition for writ of, 307, No. 57. n verification of, 308, No. 57. mit of, 309, No-. 58. INDORSEMENT— of wiarrant of attaclianent issued by ondtesr of the court, 298, No.. 47. of wairi-ant. Ctaide, §§ 2269, 2273, 297, No. 45. Code, § 2275, 297, 298, No. 45, 47. by order of the court Code, §§ 2269, 2273, 298, ' No. 47. INJUNCTION— alias order for eixaanination of party as to aftei'-acquired property, 255, 256, No. 18. m'der for examination of third person 261, 262, No-. 22. judgmlent-debtor after retiu-n of execution, 236, No. 6. on judgments of inferior courts, 238, No. 7. Ikdex. 357 FOKji^Si — InjunotioiQ — (Oomtiimed) . in order of exaiminiaitioin f oimdad ■uipoii' exeoatioii isBued upon ani order, '^A'2,, 243, JSTo. 9. on wiarT'ant for examanaition, 223, No. 4. onder for examinaitdon in aid of execiutioai, 252, 253, :So. 16. appointing receiver, 314, 315, ISTO'. 64. INTEREOGATORIES— ordeo- for, 302, 303, No. 52. order onheaaing after return, 304, 305, 'No. 55. of eoiurt that attaAmeot isBue, 306, No. 56. to b© administered. Ctade, § 2280, 303, No. 53. answer to, 304, No. 54. INVENTORY— by receiver of debtor's property, 317, No. 66. verificatioaa of inventory, 318, No. 66. JUSTIFIOATION OE SURETIES— upofn nnideirtaking by party arresteid for examination., 246, No. 11. of receiver, 316, 317, No. 65. MOTION— notice of, for dismissal of proceedings, 273, Noi. 27-|. order vacating proceadings, 280, No. 30^. for costs to' judgment-creditor, 284, Noi. 33. against judgmient-creditor, 286, No. 35. NOTICE— of exceptions, 270. of appiUcaitiofn of appointment of receiver, Noi. 25-|. of motion for an oirder for costs to judgntent-ereditor, for confirmation of referee's report, 269, Noi. 26-J. for order vacating order of examination, 273, No. 271. against judgment-creditor, 286, No. 35. /' of receiver and demand of property, 318, No. 67. reoeiver's, of sale of doubtful claims, 328, No. 73. OATH— of referee, 266, No. 25^. alias, for examination as to after-acquired property, 255, No. 18. 3S8 Index. FORMS— Oath^ ( Ctoiiiimredi) . allowing ciosts to judgmeGnl^ccreiditor, 285, ISTo-. 34. . against jiidgment-cxeditor^, 287, No. 36. reaeivCT to sub, 321, JSTo. 70. sell doubtful claims, 323, ISTo. 72. reial estate, 328, No. 78. aippdiniting a receiver, 314, No. 64. dismissing proceedings, 283, No. 32. for commitment for non-piaymemt of moimey or costs, 284, 285, Na 33. of esamination of one againist wliom costs have been grant«id by order in special proceedings, 242, No. 9. ordteir for aommituaenti f or putnisbmieiit, 226. fo* delivery of property to sLeiriff. Oode, § 2447, 277, No. 29. fotr discbarge of receiver, 264. for examination of judgmJeintti-debtor after reituim of esBau:- tiom, 286, 237, No. 6. on jtidgment of inferior courts, 238, 239, No. 7. in aid of execution in court of record, 252, 253, No. 16. of third person. Codcj § 2441, 261, 262, No. 22. for interrogatoriea Cfede, § 2286,' 302, No. 52. for paymJecat of money or cosits, 288, No. 37. for undertaldng by party aTTes.ti6d for examinaittion, 244, No. 10. " ' for -wairrant of attadiment, 293, No. 41. of eoiuj* that attachment iseuie, 306, No. 56. of discontdnuianice of the proceeding, 278, No. 29^. of reference to take receiver's aocpiunt and report priority of oreditons, 329, No. 79. OQ hearing after ret.um of intertrOgatories, 304, 305, No. 55. that third party pay his debt to slieriff. Cbde, § 2446, 271, No. 27. •l-eoeiver pay jitdgment>ci"editoir, 326, No. 76. ■to shlovpi eatise for the application of fimds, 325, No. 75.' Vacating proceedings, 281, No. 31, Index. 359 FOORMS' — Ordeo- to Show Cause — for appiHoatdoDi of funds, 325, No. 75. teave to discontliiiue, 278, No. 30. "Why paj% sihiQiuild' not pay money to sheriff, 276, 277, 'N'o. 284. be pTiioishleid' for coatemipt for meglectdng to appear, 290, 291, No. 39. for nef-using to be awtom, 291, No. 39. to sign deposition, 290, No. 39. . ' to answer questions, 291, Noi. 39. deliver pcroperty tb receiver, 320, 329, No. 67. PETITION— by receiver for leave to sell doubtful daims, etc, 328, No. 72. verifioation of, 321, No. 69. for wiriifc of habeas corpus. Oode, § 2278, 307, No. 56. of juidgpalent-cxeditor for oirder tibat receiver pay money on jndgpient, etc., 325, No. 75. verification of, 321, No. 69. of relceiver for leave to sue, 320, No. 69. verifioation of, 321, No. 69. , of receiver for leave to saD. real estate, 326, 327, No. 77. verifioation of, 321, No. 69. PUNISHJVEENT-^ ordeo" foo- oommitmient of, 312, No. 61. EEOEIVEE^ aekmoiwleidgmlent of unidertaking of, 307, No. 65. affidavit foir orideir appointing, 313, Nlo. 62. as td rfefusal of party to deliver cihiattefls, 319, No. 68. appfToval of judge of undertaking of, 307, No. 65. jusibifiaaition of Siurfeifcies, 246, No. 11. iaventory of, 307, No. 66. notice of sale of doubtful debts and daims, 323, No. 73. EECEIVEES^ noitdcia of applioation for appoimtmient of, 314, No. 63. receiver and demand of property, 318, No. 67. ardetr appointing, .314, No. 64. 360 Index. FO'EMSi — Eaceivars— ^( Cantkuuied) . to stow: oauise wiby parity sihiauld. not deliver pTOperty to receiver, 319, No. 68. to aboiwi eause for applioatiom of funds of, 325, No. Y5, allowing Tiiim to sua, 321, No. 70. thie siale of real estate, 328, No. 78. to pay juldgment-debtDr, 326, No. 76. to take aooofunt amd report pmority of cireiditlorB, 329, No. 79. for discihiairge of, 330, No. 80. petition for leave to sue, 320, No.' 69. verification of, 321, No. 69. petition for leave to s:ell estate, 322, No. 71. doiibtf-ul claims, etc., 322, No. 71. verification of, 321, No. 69. petitiom of judgpient-creditor for order for payment of moniey on judgment, 324, No. 74. verification of, 321, No. 69. referee's repomt on aioeount, 320, No.. 81. unldtertaMng of receiver, 316, No. 65. EiEuDEREE' — ' appointment of, 265, No. 25. certificate of. Oode, § 2442j 274, No. 31. oath' of, 266, No. 25^. report of, on receiver's account, 320. subpoena of. Code, § 854, 267. diu;es tecwrp,, 269. sutmmonB of, for attendance of judgmeint-debtor, eta, 263. deposition taken before, 275, No. 27. EEFERENCE— onder of, for examination' of juidgmlent^dteibtor after retuim of eKeoutiomi, 236, 237, No. 6. in aid of execution, 252, 253, No. 16. of MtA. person, 261, 262, No. 22. to take receiver's account and repoa-t priority of creditors, 329, No. 79. EOBTUEN— sbieriff's, to attachment, 298, No. 48. Index. 361 FOEMS^Service— affidavit of service of ordeir, 260, "No. 21. of demand of paymeii,fc, 240, 241, No. 8, 248, 249, No. 13. of sulKpcema, 260, No. 21. of suiDimomis of referee, 260, No. 21. of Bjotic© by receiveo" and dem'and of piropeinty, 318, No. 67. SUBPOENA— of referee, 26Y, No. 26. duces tecuTTi, 267, No. 25'|. SUMMONS— of referee for atteirudaince of debtor, 263, No. 23. UNDERTAKING— by party arrested for examiniatdoui, 45, No. 11. on attadmemtt. Ck>d6, § 227Y, 299, No. 49. , of reeieiver, 316, No. 65. VEEIEIOATION— of answier by defendainit in cantempt, 302, No. 51. , of inventory of recedver, 318, No. 66. of petition for writ of habeas corpus, 308, No. 57. of judgment-creditor for order thiat receiver pay money on jndgm:ent, 324, 325, No. 74. of oituber craditors for order ttuat recedvecr pay on juldg- ment, 327, No. 77. of receiver's petition for leave to sue, 320, No. 69. to sell donbtftd claims, 322, No. 71. to sell reial estate, 326, 327, No. 77. WAREANT— by oirder of the aonnt, 295, 297, 306, No. 56. for examination under C'ode,- 233, 234, No. 4. of attacihment. Cod'e, § 2268, 294, No. 42. Code, §§ 2269, 2273, 294, No. 43. OTdeo- foir, 306, No. 56. of ooonmitmient, 247, No. 12. by jn'dge upon attaohimienit, 30O, No. 5. of pairty refusing to give undertakinig, 247, No. 12. indorsement under Cbde, § 2275, 231, 232. affidavit for of examination, 230, 237, No. 3. 362 Index. EKAUD'UUENT TEANSFEE— of real estate, 321. of proiparty not off acted by apipointment of receiveir, 186, 189, 191. FUEKITUEJE^ exemption of, 20, 21, 23, 28, 29. HABEAS CORPUS— to bring up party in cooteanpt pnoceedlingB, 206, 207, praotioe nmder, 207, 208, 209, 213. HARJSTESS— exempt whan, 21, 23, 27. HOMESTEAD— exempt when, 27, 28, 121. in favor of widow, 23, 25, 27. minor oMldjren, 25, 27. of nmnarriad women^ 24, 27. HOUSEHOLDER— not affected by inj-umction as to bds exempt p'roperty, 19, 25, 120. wk) is, 20, 24, 26, 29, 121. widow as, 21, 23, 25, 28, 121. ■ummaxTied womam, 121. Liomestead of, 27, 121. earnings of, 21, 25, 122. insuranoe money of, 26, 122. money dne foa", exempt property, 24, 123. tools of, 20, 25, 28. INDORSE-MEWT— ail papers must show when, 103, 104. of papeiTB, when assignee executor, etc., asks for orders, omission of, an irregularity, 103. of warrant of attachment, 203, 204, 206, 211, 213, 215. , IWFAl^TS— judgment agains.t, miay bo enforoad by, 36, 107. INFORMATTOlSr AND BELIEF— affidavit upon insaifficieniti, whera, 54, 61, 107, 109, 141. for order before retuam of axeicfution insufficaent, 61, 69, 108, 109. for waiTant upon, iriBufficienit when, 106, 107, 109, 111, 141. , Ijnpex, 303 INJUNCTION— does not afiect alimoay awarded to a wife, 118, 120. debts subsequenitily to become due om a contingency, 118, 120. earnings of judgment-debtotr wiitliin sixty days, 120, 122. reoeived or becoming due afteir service of oaider, 119. from wbjait it nesta-adns, 117, 118, 119, 200. does not restnain a party, 117, 119, 120, 121, 200. failure of judge or referee to be presemit doies not nei- voke, 103, 119. does not affect income of property held in trust, 120. necessary weaa^inig apparel of unmarried mani, 120, 121. violation, of, what is, 200, 201. knowledge of sufEcient, 200, 201. proof necessaTy to sbow violatioia of, 200, 201. fine for violation of, 211, 212, 213, 216. ordter for, may be contained in the order for examimatibn, 102, 117, 118. appointing reoeiver disisolveB,, 118, 185. property which is expressly exempt by law, 120, 200. ^aoquiaied after service of oirider, 120, 201. pemsdon mioney of any kind, 120. ■ vaeatSng order of, 128, 130, 132. wihen judgmeait-debtoir is a wtomian, 30, 35, 47, 58, 63, 76. shbuld be contained in an ordeoi appointing receiver, 118. INTEBEOGATOEIES^ answer of, by debtor, 198, 199, 206, 207. in contempt proceedings, 206, 207. paroceadings upon hearing on, 207, 208, 209. IRREGULARITIES— appearance, effect of, 127, 129, 144. are divided into twio clasBCB, thbee whiidh, effect the merits, , and those which do not, 103, 142, 143, 198. distinction between, and nullity, 142, 143, 198. I 364 Index. IKEEGULAHITIES— (Cmxtimued). matio'n to vacate order or wiairrairit for, mjust specify, 142, 143, 198, 199. prooeedings before referee before taking th© oatiii, 14Y, 154, 159. th'e gTOiunds of, 125, 129, 142, 143, 198, 199. ■waiver of, 129, 144, 198, 199. "wiieii atmianidable, 144. motiooi must be made to set aside for, 128, 129, 142, 198. wiho may move to -set aside for, 125, 126, 142, 198. graoat order alloiwing am-emdmant of, 145. what are, 103, 127, 142, 144. laichas, effect of, 129, 143, 198. JOHSTT-DEBTORS— affidavit necessary to proiciir© order for tibe examination of, 128, 130. esecutlion is to collect balamce after joint property bas been eKbiaiostad, 40. judgmemt against, 40. JUDUB WHO MAY GRAl^T ORDERS— befofra wbbm proceeidings aire continiieid, 4, 56, 91, 93, 97, 127. contimaaitioiu of proceedings before different, 97, 98, 127. coxtmty judges, 56, 97, ill, 127, 132, 179. city coiurt of Bltjoklyn, 98, 127. oaminot pass upon contested facts on affidavits, 125, 167, 169. relationsMp to party, effect of, 128. general po^ver of not sufiieient, 130. power of limited, 130, 132. appointing receiver, 175, 176, 179, 180. deiatb oir vadancy of office, effect of, 97, 98. in contempt porooeiedings, 128, 194, 196, 198, 200. city oouTt of city of ISTew York, 61, 97, 127. sbiouid mark papers "Read on Motion," 116. justices of thie supreme court, 7, 93, 94, 95, 97, 127, 132, 179, 195. Index. 365 JUDGE WHO MAY GEANT OEDERS— (Continued).' of amy coiart of record, 6, 56, 97, 127, 132, 179, 195, 196. orders can only be granted by, out of court as a separate judicial officer, 93, 96, 97, 127, 179. order of may be served in any county in tihe state, 101. spaiial surrogates, 7, 127, 179, 180. surrogate of Steuben county, 52, 63, 78. JUDGMEl^T— action upon limited, 73. amount of, necessary to give judge jurisdiction, 30, 56, 60, 129, 131. due on judgment of court of record immaterial, 30, 33, 56, 131. against infants, 30, 31, 33, 36. by confession, appearance or personal service presumed, 2, 72, 74, 76, 88, 129. roll pant of application for order, 62. for defenid,ant, appearance of plaintiff, 53, 62, 72. less thian twenty-five dollars, exoliisive of costs, when not a lieu on real estate, 33, 62, 74, 87, 88, 129, 131. miust be taken upon judgment-debtor's aippearance or per- sonal service of process upon him, 31, 33, 34, 85, 87, 129, 130. of federal courts cannot be enforced by, 30, 33, 35, 88. order for payment of money considered £s such, 30, 33, 36. transciript of inferior court must be filed within six years from time to time of rendition of, 62, 66, 132. presuaned to be paid, when', 72. JUEISDICTION— affidavit must show that execution of judgment of inferior court was issued by clerk of cOiUrt of record, 1, 4, 8, 13, 63, 56, 60, 99, 128, 132. execution was issued to county where judgmient- debtor then resided, 59, 60, 128, 129. that transcript was filed within six years after ren- dition of judgment, 62, 99, 128, 131, 132. must show' that execution was issued within five years after rendition of judgment, 56, 58, 62, 99, 132. Index. JUEISDICTIO'N— ( Continued) . objection to, koiw raised, 128, 140. relationsitijip of judge to piarty, 129. no proof, what is, 130, 140. defecftive proof, 130. to try disputed title, 169. affidavit must show that execution! was issued, withiu six yeiare as against deceased judgmeoit-debtiofr, 36, 66, 61, 65, 68, 73, 82, lOT. repreaeintatives have been duly appointed, 55, 62. authority of ag,eni1^ assignee or representative to make appilicatiom, 55, 56. that transcript of inferior court was filed within six years after the rendition of judgment, 62, 132, 170. after ten' years as against real estae, 74, 128, 134. twenty years as against personal property, 73, 74, 80, 128. against oo'rporations doing business in this state, 129. foreign ministers, consuls, etc., 129. consideration of land conveyed to another, 167 OOGiBent aamnot confer over subject matter, 128, 130. discharge ini banlcruptcy takes away, 4, 5, 6, 8, exeieution issued by leave of surrogate not sufficient, 62. of execution upon order awardinjg costs, 85, 86, 87. first execution must be shown to have been returned' within ten yeiars, 73, 74, 80, 81, 82, 83, 84, 128. none to reach' surplus premium' life inBUPancei, 20, 23, 26, 68. income of trust funds, 129. omission of teste in execution not fatal to, 120, 213. on judgment of federal courts, 129. order for examination sliould state all facts necessary to confer jurisdietionv 56, 64, 74, 82, 83, 84, 99. must be made returnable to a judge or justice in the county where the judgm'ent-debtor resides, 99. where mlade retiumable to a judge other than the qne signing it must name the juidge, time and place of appeariancB, 62, 78, 97. Index. 36T JURISDICTION— ( Continued) . second and subsequent order for examination, 65, 166. wbat judgeis lia^e, in contempt proceedings, 203, 208. wheire judgmemt is rendered, for lees tiian twemtif-five dol- lars, 53, 57, 60, 128. tranisoript of jindgment of infer ioT court "wias not filed ■within six years after rendition of judgment, 62, 68, 73, 128, 132. over subject-matter, 128, 140. over the person, 128, 140. in contempt prooeedings, 195, 196, 197. affidavit necessary to give in contempit piroceedings, -wihien, 197. findings and adjudication in order of commitment nec- essary to give, 209, 210. reratals in oirder in contempt proceedings, 209, 210. order in eocajtempt must specify wihat is to be done, etc., 209, 210. JUSTICE COURT— judgment of, 67, 69, 70, 73. LAND COIT^EYED TO AIYOTHER^ consideration of, cannot be reachied in supplementary pro- ceedings, 118, 119. LIBRARY— exempt vrhea, 20, 21, 22, 23, 25, 29. LEVY- of execution on land after ten years, 76. of judgpnent on land, haw extended, 76. abates unless receiver appointed. 111, 117. absoluteness of^ upon appointment of receiver, 175, 180, 185. on land not affected by supplementary proceedings, 103. creditors bill superioo' wKen,, 103. dates from service of order of examination, 185, 187. none on property previonsly transferred by judgment- debtor, 180, 185, 187. old rule changed by section 2469 of the Code, 184, 187. limitation of judgments on real estate, 67, 73, 74, 76. 368 JwDEx. LEVY— (Continued). cm equitable interest in the hands of third party, 185, 188. fumd by ardeir for delivery of praperty or money to sheTiff or receiver, ITS, 174. priority of, bobween judgiruentrcireditor having an order for eixamination; and one having an eixeoution in the sheriff's hands, 103. STiperioir to any claim subsequent to seTA'iee of order, 103, 184, 186. on real praperty, 76, 134, 184, 186. LIMITATION— hoiwi set up, 72, 73, 74, 75. ^B against hona fide purohasers and inoumbranceB, 118, 214. effect of, 73, 74. execution must be issued on judgment within five years, 60, 66, 74. after five years by leave of court, 55, 60, 73, 74. against deceaBed judgmenifc-debtor within six years after rendition of judgment, 72, 73, 74, 75, 141. first execution must be retumied within ten years to give judge jurisdiction!, 53, 55, 60, 66, 68, 70, 73, 74. in favor of representative of judgment-creditor, 73, 74. judgment whien presumed to have been paid, 66, 67, 70, 73, 74. of lien of judgment aa, 67, 73, 75, 129. stay of judgmenit-oreditor by injunction or operation of an appeal, 67, 68. of extent of examination on warrant of arrest, 104, 107, 109, 158. upon an order issued, before return of execution, 53, 62, 66, 71, 80, 85. when none fixed' by statute,' 141, 142. MARRIED WOMAIST- rights of, 21, 23, 26, 28. MEOHAlSriC— tlools of, exempt when, 20, 23, 25, 27, 29. MINO'E OHILDRElSr— rights of, 25. Index. 369 MOTIO'i^— before judg,e to vacate ex fo/rte order made by him, 65, 109, 175, 178. what is, 125. in what coimty must be heard^ 126. oiQ affidavit nieceesary in comiteiapt proceedings, whem, 197. for leave to issue execution, 69, 70, before judge to vacate order made OiUt of court, 65, 124, 125, 126, 127, 128, 129. to modify order madei out of court, 65, 125, 127. or vacate order mlad© by him must be on notice, 124, 125, 197. for ardea" to punish for contempt, 197, 198, 199. for costs by judgm-^ntKireditor, 221, 222. judgmentrdebtor, 222. third person, 222. on grounds of execution of inferior court not issued by clerk of court of record, 129, 130, 132. of discharge of debtor in banikruptcf, 132, 134, 140. of amount due on judgmeoit, 132, 116. of facts stated in the alternative, 141, 142, 197, 198. that affidavit does not describe judgment, 131, 132. that ordeo" does not state all juirisdictionail facts, 70, 71, 131, 132, 113. that proceedings were not commenced in time, 67, 68, 69, 124, 126, 128, 197. that no dem'and for application of monejr or property Wasi mad^e before granting ordea* for examination before return of execution, 84, 197, 198. that it does not appear that eixecution was iss.ue'd within five years after entry of judgment, 82, 83, 197, 198. that it does not appear that execution was retuirneid with'in ten years before gnantang of order for ex- amination, 198, 199. that it does not appear that third party has property of the judgmeTitdebtor, 109, 113, 170, 181. that it does not appear that party arrested has prop- erty, 110, 111, 178, 180, 197, 198. 3T0 Index. MOTIOIT— ( Continued) . that affidavit for order for examination before return of execution doiee not sbo^wi that debtor has property ■wbicih he refuses to apply, 66, TO, 83, 84, 197, 198. notice of, for irnegularitiesi, 126, 128. orders reviewed in first instant upon, 125, 126. to what court or judge to be made, 125, 126, 127, 177, 183. controverted facts upon, how determineid, 125. length of notice of, 126. sea-vice of papers through post office, 126. for receiver, 176, 176, 177, 178. for commitmant for disobedience, 207, 208. issues on, 207, 208. inquiry into merits of ordeir, 207, 208. to court out of which execution issued, 124, 126, 128. in contempt proceedings, 119, 125, 173, 184, 206, 215. when must be made for irregularities, 44, 65, 82, 105, 173. when more than one ground of motion, 49, 54, 63, 79, 85, 102. . JSTAME— the correct of debtor necessary, when, 33. NEW PEACTIOE^ proceeding'^ for collection of costs, 66, 67, 68, 69, 70, 71, 85. form of application, 78, 79, 80. when execution has not been reitumed, 80, 84, 85. for exaimiiniation of third party, 82, 83. foo- warrant, 106, 107, 109. for proof of service of order of examination, 114. as to interrogatories in contempt proceedingp, 207. findings of judgie or court in oontetrnpt proceedings, 208, 209. answer to interrogaitories and proceedings thiereon, .207. party adjudged toi be in contempt will not be heard, 211. fines in contempt proceedings, 211, 212, 213. length of imprisonment, 216. Index. 3Y1 lemgtii otf, 126, 175. miufit specify tJM irregularities, 124, 140, 142, 143. filing otf to eKtBnidi lien of juidgmieait, 16. of motiocQi necessary to vacatei ex parte order, 126, 127, 197, 198. for discontinuance, 224. by -wibbomi to be made, 228, 280. for dismissal of proceeidings, 124, 126, 140. for coats by judgment-creditor, 221. judgment-debtor, 222. third party, 222. of application for receiver, 175, 182. on motion to Taoaite order foir irregularity, 125, 126, 142, 143. servie© otf, tkrough post office, 126. isrO'isr-EEsiDEisrT— affidaivit for order for examination of, must sbow that exeoution -wiaa issued to the county in which the judg- menjt)-roll is filed, 62, 65. third party must be examined in the ooiunty where the order ifl sarived upon him, 131, 132, 133. "who haia no place otf business in the sitate must be examined in the Goomty in which the judgment-roll is filed, 92, 93, 147, 150. FULLITY— appearance does no* waive, 91, 128, 129. consent cannot confer jurisdiction over the subject-matter, 128, 129, 186. restrifibed or limited appearance, effect of, 34, 35. what are, 128, 129, 186. when judges fail to obtain jurisdiction, 53, 56, 62, 70, 81, 128, 186. OATH— of referee before proceeding, 147, 154. power of referee to administer, 148, 154. examination of witness must be upon, 147, 154, 159. form otf, 159. 372 Index. OOCUPATION— STiapienKsiom of exempt homesteiad, 26, 28. OBJEOITION— to contempt proceedings, 197, 198. to validity of execution caimot be taten except upon motion to set aiiide, 128. that there was property which the sherifl: OiUght to have taken, must be raised by motion, 128. to jurisdiction of judge, 128, 129, 197, 198. when in nature of demnrrer, 140. motion not necessary to raise, when, 140. to appodntimenib of receiver before return of ©xeoution^ 178. that ©xecutioni was not endorsed as required by sieotdon ' 1376 of the Ctode, 132, 145, 175. OFFICE^ address should be indorsed on papers, 104. for the regular transactioai of business in person, 66, 67. etxeeution must issne to county where debtor has, 66, 67. OFFIOEE^ service uponi, 113, 114. OKDEEr— what is, 125. after issuing, anid before return of execution, 65, 71. ex pwrte, 65, 91, 93, 124, 127, 158, 171. for examimationi must be made retnmable to a judge or justice in the coiumty where the judgment-debtor or third party resides, 91, 92, 101, 147, 148. of a non-resident m^ist be miade returnable to tlie oonnty where the judgmient-roll is filed, 101, 148, 149. upon juidgment of inferior courts must be made re- turnable to the coiinty where the transcript is filed, 62, 92, 147, 148, 149. in final contempt proceedings, 207, 208, 209. is a process by which the proceeding is commenced, 53, 91, 92, 109. after return of execution, 62, 92. niay contain an order of injunction, 186, 187. Index. 373 OEDEK— ( Oorutinued) . reference, 63, 80, 10-5, 147, 148. oaamiotb be aibtaoked coUatieaiailly, 197, 198. may te seirvedj ini any county of the state, 43, 53. must state all facts neoesaary to confer jurisdiction, 87, 171, 182. must contain an adjudicatioin in coniteimipt oaseis, 209, 210. niTUst dir^ect the debtoir or third person to appear in per- son before the judge to wluom, it is returnable, or a referee, 94, 100, 101, 147, 148. filing papers "with, 128. OEDEK AWAiRDING COSTS— order of examination, 7, 66, 67, 68, 79, 85. tune not limited for applicationi, 69, 70, 71. "When execution is not a lien on real estata, 73, 74, 87. third party order, 83, 85, 86. ■wiien execution bas not been returned, 84, 85, 86. executiani, 88. condeannation piroceadings, 88. "Warrant in lieu of order, 106, 107. injunction order in, 117. OEDEK TO SHOW OAUSEr- effect of, 126, 127, 213. proper notice of motion in oontempit proceedings, 203. thtei only "way of bringing party into contempt under Code, §§ 2267, 2268, 203, 204. "wiho may grant, 126. "Wiiy parity should not be punished for failure to appear, 203, 204. refusal to produce books, etc., 203, 204, 213. refusing to pay over money, 203, 204, 213. interference "witb propert)'", 203, 204. trtanfefer of property, 202, 203, 213. Jivhy "witness should not be p^unisbed for failure to obey subpoena, 203, 204, 213. proof necessaiy to obtain, 126. must fix time, 126 service of papers, 126. practice in contempt proceedings, 213. 374 Index. OEDEK TO SHOW C^USiE^(Ooiitimed). whj witness ahioiild) not ba piinished. for refusal to be sworn, 203, 204, 213. nefms'al to anawar a questioini, 204, 213. OEDEE FOE PAYMENT OE MONEY— no* enforcieiable, 175, 177, 180. oonsidieirad a judgment, 16. pension, 26, 28, 120, 122. PAETJSTEES— piTOoeiedings against, 33. PEESONS EXEMPT EEOM AEEJEST AND EXAMINA- TION— electors on general election day, 105, 106, 160, 199. foreign ministers and their domiestics, 105, 106, 160, 199. hjaaids of foredgn gowemments, 105, 106, 160, 199. eniistad men of the United Stateis, 105, 160, 199. meonbers of eongrees, 105, 106, 160, 199. members of tba legislature, 105, 106, 160, 199. militiamien of tbe state, 105, 106, 160, 199. New York city policemen, 105, 106, 160, 199. officers of ©itihier bouse of the legislature, 105, 106, 160, 199. officaPs of a corart of recoTid during actual sittings, 105, 106, 160, 199. parties to action wMle in attendance at coiurt, 105, 106, 160, 199. ■witness in attendance of coiixt, 105, 106, 160, 199. "wootnen, except for willful injury toi person, ohiairaciter or pa-opieirty, 105, 106, 160, 199. disdiarged under tihia two-thirds act, 160, 199. a debtor under arrest on execution, 160. motion to vaoate order, 139, 160, 199. PETITION— judgment dooketed uipon, 39, 40. PLACE— for regular transaction of business in person, 66, 67. wbere pajrty miost b© examined, 101, 102, 131, 147, 148, 150. wbere receiver must be appointed, 179, 180. Index. 375 PRACTIOE— adjoiummeiijt of prooeediiigB, 148, 149, 150, 159. absemce of judge or refecree, 147, 148, 158. affidavit for ardeir of examiiuatioia after retlim of execju- tioD, 53, 66, 70, 80, 82, 85, 92. by whiOim imade, 53, 92. rertjuim of execmtioii, oomitieinitls of, 34, 36, 41, 53, 68, 79. rattiTii of execiuitiom for seooiid order, 33, 36, 48, 71, 92. after issue and before retturn of execiuitioii, 80, 81, 82, 84, 85. affidavit for order of ecsamiiiiatio'ii of third person:, 82, 83, 85, 86, 129. wlarnant for examiniatioin, 56, 74, 88, 90, 109, 111, 129. against wbtom' siujppleanentary proceedings may be insti- tuted, 78, 81, 82, 84, 87, 91. by wboom suppilementary proceedings may be instituted, 16, 17, 78, 79, 80, 83, 87, 90-, 131. contested facts on motion, 125. affidavits when treated as' pleadings, 125. order to sboiw aause', 126. in what oouaty motion mnist be heai'd, 127. by persotaal rep'resenttation, 53, 60, 78, 80; contempt ptrooeiedings for, 187, 198, 199, 201, 202, 203. nabune of, 194, 195, 196, 197, 199, 201, 202, 203. wliat court or judge bas jurisdicition, 56, 62, 196. "wbo may apply for order in, 194, 195, 196, 197. acts thiat are p.unisikable by, 197, 198, 199. failure to appear, 197, 198, 199. . refusal to comply wiih order, 197, 198, 199, 202. initerfereoacie witb property, 197, 198, 199. wbien p'Unisbment may be summary, 194, 195, 196, 202, 203. ■when "wiarrant to commit may issuei, 194, 198, 200. order! to sbbwl causey 199, 200, 204, 213. effect of, 204, 205, 214, 216. 376 Index. PEAOTICE^( Continued). ' imteirrogatoiries, 207, 208, 212, 215. ■undertaikiiig, 111, 205, 206, 219. amo^imt of fine, 216, 217, 218. length of irapirisonmeiit, 216,- 217, 218. jail libemties, 205, 217. release of ocflfenjder, 207, 208, 217, 218. costs, how GoUectad, 66, 68, 221, 222, 224. examination, etxfceat of inquiry, 159, 160, 161, 162, 163, 164. on ■warrant of arre&t, 109, 111, 160. on order issued befoM reifcum of eixecution, 33, 68, 69, 78, 85, 87. against third petrsoni, 80, 81, 82, 85, 88, 90. execution against property, 54, 70, 82, 88. foinn of, 67, 69, 80. issuing after five years, 69, 80. of inferioir oouirt must be issueid by clerk, 132. suffioietnicy of return of, 44, 48, 49, 63, 77. wibemi must be returned, 43, 69, 70, 77, 79. wkat amounts to a return, 44, 46, 47, 49. second aifter ofcder for examinataan,, 63, 64, 65. ten years limitation after, 131. levy of, on real property after ten years, 77, 78. countermand of, effieot of, 45, 70, 79. against join-t-debtor, 48, 53, 73. juidgment, amount of, 53, 85, 129, 132. against infants, 107. by confession, 129. judgment, amount of limitation of lien of, 87. of federal oomrts^ 35, 37, 41, 43, 48. for defendant, 34, 35, 38, 40, 44. of inferior donrt must be dodceted witliin six years, 62. nature of supplementary piroceedingB., 53, 109, 111. a special proceeding, 57, 63, 70, 81. what statutory righttis cannot be inforced by, 9. order for debtor to appear after return of execution, 91, 93, 147, 148. PEAOTIOE— (Continued) . miaJdng amd servioe of, 91, 112, 147. by wihoim made, 53, 57, 59, 62, 80, 93. winere ae(rved, 112, 147. hiowi served, 112, 131. wdieni served, 112, 147. ■waiv€ir of sieirvice of, 91. return of, 57, 68, 109, 111, 147, 148. for examinatioo after i'sisu© ainid before return of execution, 80, 81, 85, 87, 131, 147. third pei-son, 81, 82, 85, 132, 148. service of, 112. for voluntary payment of judgment by tbird person, 167, 169. of inrjuncbion., 117, 120, 199. effacft of, oni esempt property, 21, 23, 24, 26, 29. . property acquired after servioe of order, 26, 28. fro'm. wbat it restrains, 119, 120. superseding of, 118, 119, 140, 145. vacating of, 118, 119, 125, 141, 144. dismissing of, 125, 126, 138, 143. groujidsi for, 125, 140, 145. proceedings after return of executiLoro, 82, 93. for collecting of judgment before appointment of re- ceiver, 167, 170, 172, 173. disputed title, 55, 61, 167, 168, 170, 171. lien on fund, 189, 190. exempt property, 24, 26, 28. trust fuads, 25, 28. alimony, 26, 29. laiches, effect of, 129. piroceedings. permitting debtor of judgment- debtor to pay his deibt to the sbariff, 173, 174. receiver, appointment before service of order for examina- tion, 117, 175, 176, 178, 180. ■without noitiea to judgment-debtor, 118, 175, 176, 177. 3*78 Index. PEAOTICE— ( Contiauied) . before reittuB of ecsojutioin, 118, 175, 176, 177, 178. as plaintiff, 170, 174, 179. by -whom apipointed, 180, 183. oantTOilled, 184, 187. duties of, 185, 186, 188. exteinisio'n of, 184. filing ocdea" appoiating, 183, 184. from ■wihatl time absolute title vests, 186, 187. groTuads for appointinig, 118, 175, 182. leave to sue, 187, 188. notice of appliciation fo.r, 121, 175, 176, 177, 178, 182. priority of lien of, 184, 185, 186, 187. seourity of, 185, 187. title of real estate vests iit, wlieai, 184, 186. wbat property vests in, 187, 188. wben title to property extends back, 184, 186, 188. who may act as, 176, 182. reference, by wboni' appointed, 98, 140, 147. oatb of referee, 147, 148.- power of referee, 148, 149. proceedings before referee, 147, 148, 149, 159, 160, 163. where may be exeoutei, 147, 148. whoi may be referee, 148, 149. residemce and place of examination of debtor or party, 99, 147, 148. warrant of arrest for examination, 109, 111. persoaos exempt from,, 106, 107, 131, 142 . preliiuinary exam,iniaition iluder, 109, 111. return of. 111. undertaking. 111. service of, 112. witness, attendance, how enforced, 148, 159. how sulbpoenaed, 155, 159. must sign deposition, 158, 159. right of, to counsel, 162, 165, 180. Index. 379 , PEAGTICE^ ( Continued) . ptmisihiment for con. tempt, 197, 198. answering interrogatO'ries, 207, 208. in disposing of interrogatories and answar in oonteanpt matters, 207, 208. in pToeeedings by o»der toi show cause in miattcirs of contempt, 207, 208. of judge taking oral testimony in' contempt matters, 208. on trial of comtamipt proceiadiiigs, 208, 209. iinditLgs and adjudication in order for committment for contempt, 203, 209, 210. as to amount of fine, 212, 215, 216. as to cantentis of order of commitment, 216. PEELIMINAEY EXAMIl^ATION UJSTDEK WAEJRAI^T. examination after, 110, 111. judgment-creditor must subetapitdaite cbairge in affidavit, 110, 111. must m:ake it appear that there is danger that the debtor will leave tlie state oar conceal himfielf, 110, 111. must make it appear that tlie debtor has property which he unjustly refuses to apply, 110, Lll. undertaking miay be required of debtor, 110, 111. witness may be called by either side on, 110, 111, 158, 159. persons arrested entitled to, in the first instance, 110. PROCEEDS— of exempt property, 20, 31, 22, 23, 25, 29. PROOEE'DIlSrGS AFTEE THE ISSiUING AND BEEORE RETUim OF EXECLTTIOlsr— upon an order awarding costs, 84, 85, 86, 87, 88, 89. affidavit to obtain, 58, 59, 60, 68, 71, 78, 80, 84, 85, 92, 98, 129, 141. must allege that execution is yet in the hands of the sheriff unsatisfied, 59, 81, 84, 85, 93, 99,' 135. must allege that thie judgment debtor has property not exempt from execution, 80, 81, 85, 87, 91, 99, 140. 380 Index. PROOEEDINaS AFTER THE ISSUIJSTG- Aim BEFORE RETfDR^" OF EXECUTION— (Contiuued). imist allege tli'a,t he unjustly refuses to aipply hna prop- erty to the paymeoat of the judgmBnt, 59, 19, 80, 85. 92. 99. mtiBt show that a demaiud has been made upon the juidgment-debtor for the app'lieation of his prop- erty, 59, 60, 79, 80, 86, 93, 96, 99, 140. miist show that executiomi was issued withiu five years after rendition of judgjnemt, 79, 80, 85, 91, 140. musit show: that juidgment-debtor was a resident of the oouuity to which the exeoution was issued, 59, 60, 66, 70, 79, 80, 92, 131. must show that judgrrDent-dabtor's property could not be reached by execution, 59, 60, 85, 87, 93, 95, 141. miust show that property was not sroibjeot to levy, or cannot be clearly idenifcified, 59, 60, 85, 87, 95. by and agiai.nst what persons, 95, 110. warrant may be issuied instead of order in, 110, 111. exiaaniniation muist be limited to property mentioneid in affidavit, 95, 140. motioDi to vacate order for, 140. PEOOEEDnSTG-S AFTER RETURIST OF EXECTJTIOlSr— affidavit necessiaay to obtain, 53, 80, 85, 127, 129. must shiow that judgment-debtor is then a residtent of the county, 53, 62. affidavit must show, that first execution on the judgpaent was returned within ten years, 53, 62, 80, 85, 131. must shioiwl that no prior application has been made for the order, 68. ' upon judgment otf infeirior coumt mus.t shtow that traaaiscript Wias filed within six yeaxs after its rendi- tion, 62, 132. ahouid show the amount remiaining unsatisfied, 59, 132. for wa,rrant is absolutaly necessary, 110. itKiflt show that juidgment was taken iipon ap- pearance of or personal service of sumanons on judgment-debtor, 130, 131. ISTDEX. 381 PEOC'EEDINGS AFTEK RETURN OE EXEOUTIOJST— (Oomtinue'd). order for eixaimnatiom, 67, 69, 80, 92. two separaiie and distinet prooaedings, 80, 84. wairrant for exanndnaition, 104, 110, 111. PRO'OEEDlis'GS FOR COLLECTION OF JUDGMENT BEFORE APPOINTMENT OF RECEIVER— applicationi of money or property to paymeiiit of judgment, 166, 199. disputad titla, 16Y, 168, 199. eaimings of judigmerKtrdebtor for sixty days before seirvioe of order eanmot be reached, 121, 122. exempt property, 121, 122. kind of property that may be ordered delivered, 167, 199. lien on fnnd, 185, 190. order for voluntary payment by debtor of judgmentrdebtor, 180, 187. no proitaotion, when, 167, 19,0. requiring delivery of money to sberiff or receiver, 167, 168, 199. "vvben to be miade, 167, 199. property aicquired after miaking of order or "Warrant for examination, 121, 123. trust funds created by a person othjer than the debtor, 121, 122. whiat property cannot be raachbd, 167, 168. PROFESSIONAL IlfSTRUME'NTS— exempt, when, 20, 23, 26, 28. PROPERTY— whaib Mnid can be ordered delivered to a sheriff, 167, 168, 171, 172. acquired after making of order for examination, 64, 65, 172, 201. disputed title toi, cannot be tried when, 167, 170, 172, 199. of coorporations, when eannort) be reached, 104. disposition of whteM delivered to sheriff by order, 174. in' sheriff's or receiver's hands whbn proceedings are finishteid, 174. pr'oof nieoessary to give judge or oourti jurisdicition to' pun- ish for refusal to deliver on oirider, 200. 382 Index. REAL ESTATE— liow far vests in a reeeiveir of juidgment-debitor, 186, 187, 190. hoiw a receiver must seiQ, 192, 193. may be leased by a reoeiver, 188, 189. order to tramsfeir, 16Y, 168. RBCEIVEES^ noitioe of aipplieaitioin for, 175, 176, 182. appoin,tm.ein,t of, before service of order for etxaminataani, 118, 119, 175. before return of execaitiom,, 175. without notice to judgmen1>d©btor, 118, 175, 180, 18S by wiiom appointed, 175, 178, 179. in -whait oouaty, 179, 180, 188, 189. comteoliad, 134. coimpiletinig receivership, 183, 184, 186, 187, 188, 189; filing order, 184, 185, 186, 187. filing security, 185, 186, 187, 188. duties of, 167, 185, 186, 187. exbensiom of receivership, 184, 185. from wliat time absolute title vesitisi, 184, 185, 186, 187, 188. grounds for appointing, 175, 182. leave to svie, 190, 191, 192. as plaintiff, 190, 191, 192. notice of applioaitiom for, 175, 180, 183. proof as to pendency of other pTOoeediugs, 175, 177, 183, 184. property aioquired after ser^'ice of otnder for examiniataomi, 185, 188, 190. priotrity of lien on the personal property of thie jud^mant- deibtor, 186, 187, 189^ 190, 191. real estate, 186, 187, 189, 190. title of receiver in, 187, 189, 190, 191, 192. vacating oi^deir appointing, 119, 180, 183, 184. vpih'at property veists in, 186, 187, 188, 190. wihen title extiends badv by rela,tiion, 184, 186, 190, 191. whio may not act aa, 180. debtor of judgmienit-debtor may pay, Avhien, 173. Index. 383 REFEREE— oanaiot piUBish, piaxty or witaess for co'iitempitj 148, 149, 155, 156. lias same power as if apipointed in an aotioin to taike taati- mo^ny, 148, 149, 155. . may issai© sumniioins appointing time and plaxie of lieiairlng, 100, 101, 148, 149, 155. iruaiy be removed, winem, 149, 150. must not ]ia,ve an offioa "witSb, judgnneiLt-creditOir's attomiey, 148, 149, 150. judge may change, 149. for examdniation of a niom-resident, 150. report of, 151, 152; contiempt cammot be pimished by, 152. must direct piairty or witness, 154. certificartie of not siifficieat, 155, 156, 15Y. must eertify to tbie judge to wbom tbia order is returujabl© all evidence, etc., 148, 150, 152, 156. must issue subposna requiirinig witness to appear, 14Y, 149, 155. order for exa,m;inatioiii may designate, 98, 102, 146, 147. require judgmenitrdebtor or tbird person to atteind and be examined before, 101, 102, 14Y, 150. oatb of, 148, 150. power of, 149, 150, 151, 152, 155, 156. proceedings before, 125, 126, 147, 149, 152, 154, 155. upon death of, 145, 146, 147, 148, 149. remedy of party wbere adjoummetnt refused by, 149, 150, 151. REFEREIvrCE— in contempt proicieedings, 206, 207, 208. depoisitioin must be signed by witniess and filed, 148, 149. read to witness, 149, 150, 151, 152, 156. coTTeoted to agree wiitbi witnesses' statement, 150, 151, 152, 156, 157. exaininiation muist be taken, in form of depositiom, 148, 150, 151, 152, 153, 156, 157. if edther party fails to appear tbfe referee must enter pro- ceedings in bis minutes, 148, 149. 384 Index. REFEE.E]SrCE—( Continued) . incidental order of, when granted, 102, 125, 126, 148, 150, 207. order of, may be part of thje oirder for examiruatioin, 98, 102, 146, 147. desiignatie a referee, 98, 148. require the judgmenit-debtior or third person to attend, and be examined before sncb refeiree, 98, 147, 148, 150. order of, must be made ait time of granting order of exami- nialion, 98, 146, 148. may be executed, ■where, 148, 149. exceptions to report of, 153. EEMEDIES^- levy of execution suspends, when, 44, 49, 60, 71, 77, 92. of party when adjournmeait refused by referee, 148, 159, 160. two by pai-ty served with o^nier, 198. proceeding's against judgment-debtor after issue of and before return of execution, 53, 62, 80, 92, 98. after reituirn of execution unisatisfied, 62, 80, 85. the debtora of the judgm0at-(febtoir, 60, 63, 80, 85, 164. thiree distinct remiedias in supplemientary proceedings, 53, 63, 161. oomicuTTeniti, what ssce, 161. two or mjoona at sianae time, 164. by order, foir deliyeay of prnperty, 167. wbera title to proipeirty is disputed, 169. EESII>E:FC[E^- execution must be iseued to place of judgment-debtor's, 58, 91, 92, 93, 131. judgmjarut-debtor must be exanained in place of, 132, 139, 147. order for exaoniniation must be made returnable to a judge or justioe in the county where the judgment-debtor or third party resides, 92, 93, 139, 147. Index. 385 RESIDENCE^ ( ComtiDLued) . of a nom-rraLdeint mnmt be maide retomable in the idO'imty whieria tiho j-udgmiemti-roill is filed, 92, 93, 147, 150. ujpon juidgmecorti of an infe(rioT coiicrt mixsit be miadie net- turnable to the county where the transciript is filed, 57, 59, 93, 131, 139, 147. third party must be ecsaimined in place of, 139, 150. ■vviharei judgmienfrdeibtoir resides withoiut the state, 58, 59, 150. "whare a person resides in one coninty and has place of buisi- ness in another, eKecution m'ay be issued to eithteir, 92, 93, 131. witness may be examined aniywhere, 147, 148, 149, 150. RETUKlSr— effect of collusion' of Sihariff with creditor, 47, 135. equivocal, effect of, 47. by mail, 47. filing of, to eKeoutioni not jurisdictioinal, 71, 135. first exeoutioo must be within ten years, 54, 60, 63, 132. imimiaterial that it is made at creiditor's requieat, 47, 48. may be at any time after it is issued, 135. of order for examination, 100, 175. of siheriff to warrant of arrest must shioiw dediveoy of, and of affidavit to debtor, 111, 112. sihetriff's, conclusive in favor of creditor, 135. < ■ whiat amoumts to, 135. ■wheaoi oouirt will go beihind, 135. appointimient of receiver upon, of oirder, 175. EEVIEW OE ORDERS— appeal HeB from an order of court vacating or denying a motioiQ to vaoate order, 125, 127, 225. general term miay review disicriationary ordters, 127, 128, 225, 226, 227. in coflitenpt proceedings, 225. motion to vacate ex parte oirder may be mad© to judge wihb granted it, 125, 127, 225, 226. m^ay be made to the court out of which the execution was issued, 125, 126, 127, 225, 226. 386 ISTDEX. EEYIEW OF OEDERS— (Comtinued). by what judge, 104. no appeal lias from, order- for examinaifcioii, 125, 126, 225, 226. any order granted ex parte, 124, 125, 127, 225. EIGHTS OE DEBTOE— upon application for second order of examinatiooi, 64, 65, 75. to set aside second order, 30, 64, 65. to have applicant for order of examination show all facts, 66, 67, 7S. to set up statute of limitatiooois, 67. to attiack proceedings founded on juatiae's judgment, 68. to attack order and applioation on every ground, 30, 70, 87, 89, 91, 96. where execxiition was not in the fomii pTiescaubed by law, 71, 90, 93. when application does not show judgment a lien on reial estate, 30, 33, 74, 75, 76, 88. where cT'editor does not shoiw exhaustion of legal remiedies, 77, 87, 89. where new formula is not followied, 78, 79, 80, 96. when exeioutioai has not been ratiurnad, 80, 95. where ocfder is for exaimination of tliird party, 77, 78, 80, 81, 82, 83, 136. for ordea" is founded upon order awairding costs, 87, 88, 89. where debtor is not a reisidenit of county when order is issued, 92. as to place of examination, 92, 93. when order is made by coairt^ 93. may appear at ainj time, 96. arrested on Warrant, 105, 106, 107, 108, 109. as to order made by judge not authoirizeid, 112. as to proof of service of order, 114. after service of oirder of injunctioai, 117, 119. upon order for examiination of third party, 124, 125. where creditor does not show how judgmenit was taken, 130. when creditor fails to show judgmeait when taken Was for sufficient, 131. Index. 387 EIGHTS OF DEBTOE,~(Ooii,tiiiiied). ■winem aipiplioatioaoi fails to shiow: execution in stonifE's hajnidla, 135. Avheai fa,cits aire abated in the alternative, 141. "Whiem no limit fixed by stiattirtia for grianting; otrdiar af teir iisaiia and before ratxtrn of exeontioii, 141, 142. wbiere tbird pairty ordered to delivei' property to sbeiriff, 168. ■wibeoi ordered to make an assignment of propenty, 168. "wbeini tbieire is a dispntad title, 169. wihiere piroperty is in sberiff's or recmvar's baaidis, 174. upon application for reQeiver, 175, 176, 186. upon appointmeinit of receiveir upon return of ordar f oir ecs- aminatiion of tbird person, 175, 176, 177, 186. upon appointlment of receiver before return of execulfcioin, 178, 186. iipon the retui'u of "warr'ant, 175, 186. to set aeidie order of reeeiveirsbiip, 186. "wbeo order of receiversbip not served upon biaii, 186, 187, 188. wbere receiver commences action, 190, 191. wben in oomtampt, 194, 195, 196, 197. to aittack orders in oomtempt proceedings, 197, 198. when procieeded against for contempt for acts, befone referee, 197. must move to set aside errooojeous orders, 197, 198. to set aside proof of siervice, 198. ■wbere be is ordered to pay money, 199, 200. when cbarged witb violation of an injunction order, 200, 201. when summarily punisbed for contempt, 201, 202. ■wben arrested for non-payment of oositsi, 203. wben ordered to sbow: cause in contempt proceedings, 204. wben attaobied in contempt piroceedingB', 205. Avben brougbt up on habeas corpus, 206. in answeiring interrogatories, 207. on trial of contempt proceedings, 207, 208, 209. 388 Index. EIGHTS OF DEBTOEr-(Coiitimied). to have judge or eotiirt find as maittera of fact, tiia.t his acts AVere cailcuilated to or actually did, defeaifc, impair, im.'- pede or prejudice of the creditor, 209. whem order does not recite the substance of the alleged misconduct of, 210. "whfen warrant does not siet out the acts to be dome, 210. to test the adjudication of a judge or coort in coaitjemipt proceedings, 210. to appeal from order, 210. may show upon motion that order is erromeous, 211. to contiest amount of fine, 212. when imprisoned and fined, 213. as to length of imprisonment, 216. as to release from imprisonment, 218. to give undertaking for indemnity, 218, 219. to show he was never served with summons, 5, 30, 33. to pension exemption, 26, 29, 120. to military pay exemption, 26, 27, 121. to rewards, 26, 27, 121, 122. to alimony, 26. to Homestead exemption, 27. to proceeds of exempt property, 23, 28, 121. to food for a team for ninety days, 23, 29. to pay for labor for sixty days, 23, 24, 120. toi claim exempt property, when, 22, 24. to property absolutely exempt, to show that he hiad piop- erty which the sheriff could reach, 47. RULES— rule 25, supreme court, 65, 137. length of notice of motion, 126. order to show cause, 126. as to filing papers, 127. SECOND O'E SUESEQUElSrT OEDERS EOR EXAMESTA- TION— affidavit for, maist show subsequently a.cquir©d propertjy, 63, 64, 65, 140, 145. , must show facts newly learned, 63, 64, 65. Index:. 389 SECOND OB SUBSEQUENT OEDERS FOE EXAMINA- TION^ ( Oontiiiued) . miay ahaw troperty which he unjustly refuses to apply, 63, 104, 106, 107, 108. how facts in, must be stated, 56, 58, 63, 105, 107, 108. must show wliat property debtor has, 63, 105, 107, 109. must allege in what county the judgment-roll is filed, 54, 58, 63, 110. must truly describe the judgment, 104, 110, 111. should state the amount then due on tlie judgment, 53, 73, 107, 109, 110. must specify the particailar form in which the prop- erty exists, 63, 77, 107, 109, 110. must positively show that debtor intends to leave the state, 63, 105, 107, 110. is issued in the naane of the people, 105, 109, 110. may be served in any part of the state, 107, 109, 111. how served, 113, 114. must recite the facts stated in affidavit, 105, 110, 111. must direct the sheriff of any county to arrest the judg- ment-debtor, 111. IliTDEX. 395 WAREANT FOE EXAMINATION— (C'ontimied). preliminary eKamiiiation of debtor, 110, 111, 112, 113, when undertaking may be required of debtor, 113. value of exempt property, 20, 28. appointmeiiit of receiver upon, 180, 184, 188. WAEEANT— coratents of, 203, 204. to eommdt may issue without notice in contempt procieed- ings, when, 156, 157, 201, 202. proof neieess'ary to obtain, 202. WAIVEE— of aiervicie of order by appearanice, 128, 129. of what it consists, 125, 128, 130, 144. of jurisdiction over tlie person may be., 128. of jiirisdiction over the subject-matter cannot be, 128. wh'at objection may be waived, 125, 128, 129, 144. WEAEING APPAEEL— axempt, 20, 23, 29. WITNESS— anjswer cannot be used against him in a criminal action, 159, 161, 163. attendance, how enforced, 155, 156, 159, 199. contents of warrant of arrest, 195, 196. corporation examined as a witness, 154, 156. compelled to produce books,- etc., 154, 156, 199. hoiw examined as a witness, 154, 155, 156. in contempt proceedings, 194, 195, 196. may be oallejd and examined by either party, 154, 155, 158, 162. may be compelled to produce books and papers, 156, 15Y, 184, 195. may have counsel, 162. must be examined und.ea- oath, 154. must be paid witness fees the same as in am acition, 155, 159. must sign deposition, 156, 159, 199. not excused from answering questions, 156, 15Y, 159, 161. penalty foir disobeying' subpoena, 155, 156, 199, 212. 396 Index. WITIS'ESS— (Cooitiiraed) . right oi, to coimsel, 162. signing depositdom, 156, 163, 199. suhpcenia, haw served, 155, 166, 159. third party moib emtitled t-o feias of, 181, 182. (xxmmisaiouj to take testimony of, 165. how punished for refusing to appear or to testify, 194, 195, 196. who maiy punish, 195, 196. affidaivit necessary as. foundation for comteraipt ptroceedingia againist, 194, 195, 196, 200. summary punishment of, 201, 202. • direction to necessarj', 203. on attachment p'roceedings, 206, 207. trial of issues in contempt proceedings, 208, 209. findings and adjudication in order for pixnashinent of, 209, 210. wairrapt for commitment of, 209, 210. order for contempt miist set out question which hais refused to answer, 210. amount of fin© for contempt, 212. length of imprisonment, 216, 21Y. jail liberties, 217. release from' imprisonment, 218. undertaiking for indemnity, 219. WO'MElSr— rights, 20, 28. WOOL— exemption of, 20, 22, 25, 28. WOEK AISTD LABOE^ money due for sixty days exempt, 121, 123. judgment foir domestic superior to exemiptioiii laws, wihten, 121, 123. WORKIJSTG TOOLS^ exempt when, 19, 21, 23, 25. necessary, what are, 20, 25, 27, 29. professional instrumentsi, 19, 21, 25. '^i^H^^ r-iHVrM^i^v k >»,ii-,i-.Jj*ji-»i-ii»i-viT-*. ». ••• .*..>(...* . tJJ-..t jj..^ ■■<■. Wtj JJ.*-iA-U-^J.J-.J-.-l-^*-.i.jfcJ>j^t-.-.--.-..j...... -».-■-■*,». it'SS.Tij ' •.;;ci7;;mi: "fr lit it 1 III I I 1 t I t I 1 "C'K^iSikr »THia