ARTICLE THIRD. DISCHARGE OF AN IMPRISONED JUDGMENT DEBTOR FROM IMPRISONMENT. SEC. 2200. Who may be discharged. 2201. To what court application to be made. 2202. When petition may be presented. 2203. Contents of petition; schedule. 2205. Notice to creditors. 2206. Id.; when service cannot be made. 2207. Id.; when State a creditor. 2208. Proceedings on presentation of petition. 2209. Adjournment. 2210. Proceedings on adjourned day. 2211. Assignment; effect thereof. 2212. Discharge; when to be granted. 2213. Petitioner's property still liable. 2214. When creditor may issue new execution against person. 2216. Creditor may notify debtor to apply for discharge. 2217. Effect of failure so to apply. 2218. Debtor to United States, etc., not to be discharged. $2200. Who may be discharged.-A person imprisoned by virtue of an execution to collect a sum of money, issued in a civil action or special proceeding, may be discharged from the imprisonment, as prescribed in this article. A person who has been admitted to the Jail liberties, is deemed to be imprisoned, within the meaning of this article. On justice's transcript, § 3033. 2 R. S. 31,81 (2 Edm. 31), as amended, L. 1847, ch. 390, 1. Comstock's Case, 16 Abb. Pr. 233; s. c., 25 How. Pr. 429; Coman v. Storm, 26 id. 84; Dickerhoff v. Ahlborn, 2 Abb. N. C. 373; Matter of Fitzgerald, 5 id. 357; Maas v. O'Brien, 14 Hun, 95; Coffin v. Gourlay, 20 id.308; see 23163, post; Moore v. McMahon, 20 Hun, 44; Matter of Rosenberg, 10 Abb. N. S. 450; Brown v. Bradley, 5 Abb. 141; People v. Mullin, 25 Wend. 698; Holmes Lansing, 3 Johns. Cas. 75; Peters v. Henry, 6 Johns. 121; Van Wezel v. Van Wezel, 3 Paige, 38; People v. Cowles, 4 Keyes, 38; 3 Abb. Ct. App. 507; Ford v. Ford, 41 How. 169; Patrick v. Warner, 4 Paige 397; Dusart v. Delacroix, 1 Abb. Pr. N. S. 409, note; People v. Marine Court, 3 Cow. 366; Ex parte Thayer, 4 id, 66; Hayden v. Palmer, 24 Wend. 364; Luther . Deyo, 19 id. 629; Grocers' Nat. Bank v. Clark, 31 How. 115, 127; see People v. Campbell, 40 N. Y. 133; Jackson v. Smith, 5 Johns. 115: Bissell 3. Kip, id. 89. § 2201. [Amended, 1895.] To what court application to be made.- Application for such a discharge must be made by petition, addressed to the court from which the execution issued; or to the county court of the county in which he is imprisoned; or, if he is imprisoned in the city of New-York, to the supreme court. In effect Jan. 1, 1896; L. 1895, ch. 946. Id., part of 1, amended. Mather's Case, 14 Abb. Pr. 45; Matter of Walker, 2 Duer, 655; People ex rel. v. Machado, 16 Abb. 460; Bullymore . Cooper, 46 N. Y. 236, 241; Hart v. Dubois, 20 Wend. 236; People v. Brennan, 61 Barb. 540; Matter of Thomas, 10 Abb. N. S. 114. §2202. When petition may be presented.-A person so imprisoned may apply for such a discharge, at any time; unless the sum, or, where he is imprisoned by virtue of two or more executions, the aggregate of the sums, for which he is imprisoned, exceeds five hundred dollars in which case, he cannot present such a peti tion, until he has been imprisoned, by virtue of the execution or executions, for at least three months. Id., 2, and part of 1. See Browne v. Bradley, 5 Abb. Pr. 141; Dusart v. Delacroix, 1 Abb. Pr. N. S. 409, note; Matter of Rosenberg, 10 Abb. Pr. N. S. 450. $2203. Contents of petition; schedule. The peti tion must be in writing; it must be signed by the peti tioner; and it must state the cause of his imprisonment, by setting forth a copy, or the substance, of the execu tion, or, if there are two or more executions, of each of them. The petitioner must annex thereto, and present therewith, a schedule, containing a just and true account of all his property, and of all charges affecting the same, as the property and charges existed at the time when he was first imprisoned, and also as they exist at the time when the petition is prepared; together with a just and true account of all deeds, securities, books, vouchers, and papers, relating to the property, and to the charges thereupon. Id., 4, amended. Browne v. Bradley, 5 Abb. Pr. 141; Matter of Rosenberg, 10 Abb. Pr. N. S. 450; Bullymore v. Cooper, 46 N. Y. 236; People v. Bancker, 5 id. 106; People v. Brooks, 40 low. 165; see Hall v. Kellogg, 12 N. Y. 325, 333. § 2204. Affidavit of petitioner.-An affidavit, in the following form, subscribed and taken by the petitioner, on the day of the presentation of the petition, must be annexed to the petition and schedule: "I,, do swear" (or" affirm," as the case may be), "that the matters of fact, stated in the petition and schedule hereto annexed, are, in all respects, just and true; and that I have not, at any time or in any man. ner whatsoever, disposed of or made over any part of my property, not exempt by express provision of law from levy and sale by virtue of an execution, for the future benefit of myself or my family, or disposed of or made over any part of my property, with intent to injure or defraud any of my creditors." 1d., 5, amended; see 2 2163 and 2191. Browne v. Bradley, 5 Abb. Pr. 141; Bullymore v. Cooper, 2 Lans. 71; s. c., 46 N. Y. 236; Matter of Brady, 69 id. 215; Hillyer v. Rosenberg, 11 Abb. Pr. N. S. 402; Hughes v. Taylor, 1 Law Bulletin, 23; Matter of Watson, 2 E. D. Smith, 29. § 2205. Notice to creditors.—At least fourteen days before the petition is presented, the petitioner must serve, upon the creditor in each execution, by virtue of which he is imprisoned, a copy of the petition and of the schedule; together with a written notice of the time when, and place where, they will be presented. If, by reason of changes occurring after the service, it is necessary, before presenting the petition and sched. ule, to correct any statement contained in the schedule, the correction may be made by a supplemental schedule, a copy of which need not be served, unless the court so directs. Sec. 3, R. S., amended. Hall v. Kellogg, 12 N. Y. 323, 333; Bates v. Williams, 1 Johns. Cas. 30; Hart v. Dubois, 20 Wend. 237; Dicker hoff v. Ahlborn, 1 Abb. N. C. 372. § 2206. Id.; when service cannot be made. The papers, specified in the last section, may be served, either upon the creditor or his representative, or upon the attorney whose name is subscribed to the execution; and, in either case, in the manner prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court. Where it is made to ap pear by affidavit, to the satisfaction of the court, that service cannot, with due diligence, be so made within the State, upon either, the court may make an order, prescribing the mode of service, or directing the publication of a notice in lieu of service, in such a manner and for such a length of time, as it thinks proper; and thereupon, it may direct an adjournment of the hearing to such a time as it thinks proper. Part of 3 R. S. § 2207. Id.; when State a creditor.- Where the State is a creditor, the papers must be served upon the attorney-general, wno must represent the State in the proceedings. Art. 7, 30, R. S. 2208. Proceedings on presentation of petition.-Upon the presentation of the petition, schedule, and affidavit, with due proof of service or publication, as prescribed in the last three sections, the court must make an order, directing the petitioner to be brought before it, on a day designated therein; and on that day, or on such other days as it appoints, the court must, in a summary way, hear the allegations and proofs of the parties. If the court is satisfied that the petition and schedule are correct, and that the petitioner's proceed. ings are just and fair, it must make an order, directing the petitioner to execute to one or more trustees, designated in the order, an assignment of all his property, not expressly exempt by law from levy and sale by virtue of an execution; or of so much thereof as is suffi. cient to satisfy the execution or executions, by virtue of which he is imprisoned. Art. 6, 6, R. S., amended. Bullymore v. Cooper, 46 N. Y. 236; Matter of Brady, 69 id. 215; affirming 8 Hun, 437; Gaul v. Clark, 1 Weekly Dig. 209: Matter of Watson, 2 E. D. Smith, 429; see, also, People v. White, 14 How. Pr. 498; Dickerhoff v. Ahlborn, 2 Abb. N. C. 372; Matter of Adriott, 2 Daly, 24; People v. Brooks, 40 How. Pr. 165; Spear v. Wardell, 1 N. Y. 144; Hall v. Kellogg, 12 id. 325; Corning v. White. 2 Paige, 567; Matter of Thomas, 10 Abb. Pr. N. S. 114; see, also, ?? 2191 and 2163 and cases there cited, referring to similar subjects; also Coffin v. Gourlay, 9 N. Y. Week. Dig. 498; People v. White, 14 How. 498. 2209. Adjournment.-Upon sufficient cause being shown by a creditor, the court may, from time to time, adjourn the hearing; but not to a day later than three months after the presentation of the petition. Id., 27, amended. People v. Brooks, 40 How. 165; Bylandt. Comstock, 25 id. 429: s. c., 16 Abb. 233. 2210. Proceedings on adjourned day. An objec tion to a matter of form shall not be received upon an adjourned day; and, unless the opposing creditor satis fies the court that the proceedings on the part of the petitioner are not just and fair, the court must direct an assignment, as prescribed in the last section but one, and must grant a discharge, as prescribed in the following sections of this article. Id., 8. Matter of Brady, 69 N. Y. 215. $ 2211. Assignment; effect thereof. The assign ment must be acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, and must be recorded in the clerk's office of the county where the petitioner is imprisoned. Where it appears, from the schedule or otherwise, that real property will pass thereby, the assigument must also be recorded as a deed, in the proper office for recording deeds, of each county where the real property is situated. The assignment vests in the trustee or trustees, for the benefit of the judgment creditors in the executions, by virtue of which the petitioner is imprisoned, all the estate, right, title, and interest of the petitioner in and to the prop crty, so directed to be assigned. Id., part of 9; also part of 20, art. 7; see 2177, ante, and cases there cited. § 2212. Discharge, when to be granted. Upon the production, by the petitioner, of satisfactory evidence, that the petitioner has actually delivered to the trustee or trustees all the property so directed to be assigned, which is capable of delivery; or upon the petitioner's giving security, approved by the court, for the future delivery thereof; the court must make an order, discharging the petitioner from imprisonment, by virtue of each execution, specified in his petition. The sheriff, apon being served with a certified copy of the order, must discharge the petitioner as directed therein, with out any detention on account of fees. Id., 22 10 and 11 and 32200, ante, and cases there cited. Bullymore v. Cooper, 46 N. Y. 236; s. c., 2 Lans. 71; see, also, Bennett v. Burch, 1 Denio, 141; In re Von Schoening, I Law Bulletin, 4; Hayden v. Palmer, 24 Wend. 364. 2213. Petitioner's property still liable.-Notwithstanding such a discharge, the judgment creditor in the execution has the same remedies, against the property of the petitioner, for any sum due upon his judgment, which he had before the execution was issued; but the petitioner shall not, except as is otherwise specially prescribed in the next section, be again imprisoned by vir tue of an execution upon the same judgment, or arrested In an action thereupon. Id. 12, amended. $2214. When creditor may issue new execution @gainst person.—If the petitioner is convicted of per Juy, committed in any of the proceedings upon his petition, any judgment creditor, by virtue of whose exe cution he was imprisoned, may issue a new execution against his person, Id.. 13 |