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is entitled to an order, requiring the judgment debtor to attend and be examined concerning his property, at a time and place specified in the order.
Code of Proc., 8292, subd, 2. Sackett v. Newton, 10 How. 568; Owen o. Dupignac, 9 Abb. 180; 8. C., 17 How. 512; First Nat. Bank v. Wilson, 5 Week. Dig. 565. $ 2437. Warrant of arrest instead of order.
Upon proof entitling a judgment creditor to an order, under either of the last two sections ; and also proof, by affi. davit, to the satisfaction of the judge, that there is danger that the judgment debtor will leave the State, or conceal himself, and that there is reason to believe that he has property, which he unjustly refuses to apply to the payment of the judgment; the judge may, in. stead of making an order, issue a warrant under his hand, reciting the facts and requiring the sheriff of any county, where the judgment debtor may be found, to arrest him, and bring him before the same judge, or bem fore another judge, if the case is one where the war. rant must be returnable to another judge.
Code of Proc., & 292, subd. 4, amendedi. Rohsand v. Waring, 1 Abb. N. C. 311; King v. Kirby, 28 Barb. 49; see 1 Barb. Ch. Pr. 649-50 ; Andrews D. Wilson, 9 How, 39.
§ 2438. Id.; after the order has been made. – Where the facts, specified in the last section, are made to apo pear, as therein stated, at any time after the making of an order, requiring the judgment debtor to attend and be examined, and before the close of his examination, the judge may issue a warrant, as therein prescribed ; and, if necessary, may direct the adjournment, or, if the return day of the order has elapsed, the continuance of the proceedings under the order, until after the re. turn of the warrant, and his decision thereupon. New.
$ 2439. Warrant; how vacated, etc. - A warrant, is sued as prescribed in the last two sections, may be vacated or modified, as prescribed in section 2433 of this act, with respect to an order. New.
§ 2440. Undertaking may be required, etc. - Where a judgment debtor has been arrested and brought before a judge, by virtue of a warrant, issued as prescribed in this article; and it appears to the satisfaction of the
judge, from his examination, or other proof, that there is danger that he will leave the State, or conceal him. self, and that he has property, which he has unjustly refused to apply to the satisfaction of the judgment; the judge may make an order, requiring him to give an undertaking, with one or more sureties, in a sum fixed and within a time specified in the order, to the effect, that he will, from time to time, as the judge directs, attend before the judge, or before a referee, appointed or to be appointed in the proceedings; and that he will not, until discharged from arrest by virtue of the war. rant, dispose of any of his property, which is not er. empted from seizure by section 2463 of this act. If he fails to comply with the order, the judge must forthwith, by warrant, commit him to prison, there to remain until the close of the examination, or the giving of the re. quired undertaking; except that the judge may direct the sheriff to produce him, from time to time, as required in the course of the proceedings. Code of Proc., part of % 292, subd. 4, amended.
§ 2441. Order to examine person having property, etc., of judg ent debtor. — Upon proof, by affidavit, or other competent written evidence, to the satisfaction of the judge, that an execution against property has been issued, as prescribed in section 2458 of this act, and either that it has been returned wholly or partly unsatisfied, or that it has not been returned ; and also that any person or corporation has personal property of the judgment debtor, exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars ; the judgment creditor is entitled to an order, requiring that person or corporation to attend and be examined con. cerning the debt, or other property, at a time and place specified in the order. The judge may, in his discretion, require notice of the subsequent proceedings to be given to the judgment debtor, in such a manner as he deems just. But a receiver shall not be appointed without such a notice , except as otherwise prescribed in article second of this title. See 8 Daly, 106.
Code of Proc., % 294 ; see % 218, post; and, also, People v. Norton, 4 Sandf, 640; & 2469, post'; Sherwood v. Buffalo & N. Y. C. R. R. Co., 12 How. Pr. 136 , Gibson 'v. Haggerty, 37 N. Y. 555, Lowber v. Mayor, 5 Abb. 261; 8. C. , id. 248; McBrilie v. Farmers' Branch Bank, 7 id, 317; B. C., 28 Barb. 476; Courtois v. Harrison, 3 Abb. ; s. C., 12 How. 359; Hilt. 110: Lathrop v. Ciapp, 40 N. Y. 328; 8. C., 23 How. 423; Foster v.
Prince, 18 id. 258; 8. C., 8 Abb. 407; Seely v. Garrison, 10 id, 460; Ward u. Beebe, 17 id. 1; 8. c., 15 id. 372; Roy v. Baucus, 43 Barb. 310; Hauptman 0. Catlin, 1 E. D. Smith, 730; Brett v. Browne, 1 Abb. N. S. 155; Lee 0. lleirberger, 1 Code R. 38; Van Wyck v. Bradley, 3 id. 157; Town o. Safeguard Ins. Co., 4 Bosw. 683 ; People v. Hulbert, 5 How. 446 ; Catlin v. Doughty, 12 id. 459; Corning v. Tooker, 5 id. 19; Woodman v. Goodenough, 18 Abb. 265; Kemp v. Harding, 4 How. 178; Barker v. Johnson, 4 Abb. 437; Holmes v. Jordon, 15 id. 410, note; Parker v. Hunt, id. Ward v. Beebe, id. 372; Hanson v. Tripler, 3 Sandf. Sup. Ct. 733; People v. Norton, 4 id, 610; Hind v. Canandaigua and Niagara Falls R R. Co., 10 How. 487; Lynch v. Johnson, 48 N. Y. 27 ; Smith v. McNamara, 15 Hun, 417; Graves v. Lake, 12 How.33 ; Day v. Lee, 52 How. Pr. 95; 1 Abb. N. C. 72; Grassmuck v. Richards, 2 id. 359; Sebrauth v. Dry Dock Sav. Bank, 20 Alb. L. J. 197.
§ 2442. Either order may require attendance be fore a referee. An order, requiring a person to attend and be examined, made pursuant to any provision of this article, must require him so to attend and be exam. ined, either before the judge to whom the order is re. turnable, or before a referee designated therein. Where the examination is taken before a referee, he must cer tify, to the judge to whom the order is returnable, all the evidence and the other proceedings taken before him,
Code of Proc., & 296; Hatch v. Weyburn, 8 How. 163, 313 ; 11 id. 446; Couway v. Hitchins, 9 Barb. 378; Allen v. Starring, 26 How. 57; Holo lister v. Spafford, 3 Sandf. 742; s. c., 1 Code R. 120; Dickinson v. Van Tipe, 1 Sandif. Sup. Ct. 724; Hudson v. Plets, 11 Paige, 180; Kaufman v. Thrasher, 10 Hun, 438 ; Dorr v. Noxon, 5 How. 29; Corning v. Tooker, id. 16; Redmond v. Goldsmith, 2 Law Bulletin, 19; Sickles v. Hanley, 1 Abb. N. C. 231; Kennedy v. Narcott, 54 How. 87; Lewis v. Penfield, 39 id. 490,
S 2443. Reference may be ordered at any time. At any stage of the proceedings, the judge to whom the order is returnable may, in his discretion, make an ore der, directing that any other examination, or testimony, be taken by, or that a question arising be referred to, a referee, designated in the order. Where a question is so referred, the referee may be directed to report either the evidence or the facts,
Code of Proc., 8300. See Dorr v. Noxon, 5 How. 29; and see cases cited under % 2442, ante.
§ 2444. Proceedings upon examination; adjourn. ment.-Upon an examination under this article, each answer of a party or witness examined must be under oath. A corporation must attend by, and answer under the oath of, an officer thereof; and the judge may, in his discretion, specify the officer. Either party may be examined as a witness, in his own behalf, and may pra
duce and examine other witnesses, as upon the trial of an action. The judge or referee may adjourn any pro ceedings, under this article, from time to time, as he thinks proper.
Substituted for Code of Proc., 88 292 and 296, or such parts thereof as relate to examinations. Canavan v. McAndrew, 20 Hun, 46; Kanf. man v. Thrasher, 10 id. 438 ; Mason v, Lee, 23 How. 466 ; Orr's Case, 2 Abb. 457; Lockwood v. Wartzell, 15 id. 430 n; People v. Marston. 18 id. 257; Carter v. Clarke, 7 Rob. 490; Hudson v. Plets, 11 Paige, 180; 3 N. Y. leg. Obs. 120 ; Allen v. Starring, 26 llow.57 ; Graham v. Colburn, 14 id. 52; 6 Duer, 678; Morrell v. Hey, 15 Abb. 430 ; 24 How. 48 ; Corning o. Tooker, 5 id. 16; Sherwood v. Dolen, 14 Hun, 191; Lathrop v. Clapp, 43 N. Y. 328; Sandford v. Carr, 2_Abb. 462; Graves v. White, 12 How. 33; LeRoy v. Halsey, 1 Duer, 589; Williams v. Carroll, 2 Ililt. 438; Wicker o. Dresser, 14 How. 465; Forbes v. Willard, 37 id. 193; 54 Barb. 520.
$ 2445. Referee to be sworn.-Unless the parties expressly waive the referee's oath, a referee, appointeu as prescribed in this article, must, before entering upon an examination, or taking testimony, subscribe and take an oath, that he will faithfully and fairly discharge his duty upon the reference, and make a just and true report, according to the best of his understanding. The oath may be administered by an officer designated in section 842 of this act, and must be returned to the judge, with the report or testimony. New. See % 1016, ante.
$ 2446. Order permitting person indebted to pay debt to sheriff.- At any time after the commencement of a special proceeding, authorized by this article, and before the appointment of a receiver therein, or the es. tension of a receivership thereto, tie judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, upon proof, by affidavit, to his satisfaction, that a person or corporation is in. debted to the judgment debtor, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, permitting the person or corpora. tion, to pay to a sheriff, designated in the order, a sum, on account of the alleged indebtedness, not exceeding the sum which will satisfy the execution. A payment thus made is, to the extent thereof, a discharge of the indebtedness, except as against a transferee from the judgment debtor, in good faith and for a valuable corsideration, of whose rights the person or corporation hyd actual or constructive notice, when the payment wns nade.
Code of Proc., 2293, amended. See Caikins ”. Packer, 21 Barb. 275, 283; Richardson v. Ainsworth, 20 low. 521; Leyman v. Cartwright, 3 E. D. Smith, 117; Robinson v. Weeks, 6 How. 161; Countryman v. Boyce, 3 id. 386 ; Huse v. Guyot, 3 T. & C. 790 ; Bishop v. Garcia, 14 Abb. N. S. 69; Hale v. Olney, 65 Barb. 27; Mallory v. Norton, 21° id. 424; Davenport v. Ludlow, 3 C. R. 66; Handly v. Greene, 15 id. 601 ; Baker 7. Kenworthy, 41 N. Y. 215; Duffield v. Norton, 73 id. 218; Adams v. Welch, 43 N. Y. Super. 52.
$ 2447. Order requiring delivery of money or prop. erty to sheriff or receiver.Where it appears, from the examination or testimony taken in a special proceeding authorized by this article, that the judgment debtor has, in his possession or under his control, money or other personal property, belonging to him ; or that one or more articles of personal property, capable of de. livery, his right to the possession wliereof is not substantially disputed, are in the possession or under the control of another person ; the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, directing the judgment debtor, or other person, immediately to pay the money, or deliverthe articles of personal property, to a slieritt, designated in the order, unless a receiver has been appointed, or a receiversliip has been extended to the special proceeding, and in that case to the receiver.
Substituted for Code of Proc., & 297. Lynch 1. Johnson, 48 N. Y. 27; Potter ». Low, 16 How, 549; Aikinson 2. Lewine, l1 Abb, N. S. 384; Stewart v. Forster, I llilt. 505; McCormick ". Kehoe, 7 N. Y. Leg. Obs. 184: Westside Bank 2. Pugsley, 47 N. Y. 368; 8. C., 12 Abb. N. S. 28; Campbell v. Foster, 35 N. Y. 361; Locke v. Mabbett, 2 Keyes, 457; Graff o. Bennett, 31 N. Y. 9; s. C., 2 Roh. 54; 25 How. 470; Genet v. Foster, 18 Hlow. 50: Woodman 1. Goodenough, 18 Abb. 265; Watrous v. Lathrop, 4 Sandf. 700; Ten Broek 2. S100, 2 Abb. 231; s. c., 13 Ilow. 28; Davenport v. Ludlow, 30. R. 66; S. C., 4 Ilow. 337; IIudson 1. Plets, il Paige, 180 : Sands v. Roberts, 8 Abb. 313; Browning, v. Bettis, 8 Paige, 568 ; McCoun v. Dorsheimer, Clarke, 141; Ireland v. Smith, 1 Barb. 419; Caton 2. Southwell, 13 il. 335; Stewart 2. Martin, 5 id. 433 ; Moak v. Coates, 33 id 498; Beamish v. Hoyt, 7 Roh. 307; Gerregani v. Wheel. wright, 3 Abb. 201; Barnes v. Morgan, 3 ilun, 703; Bush v. White, 12 Abb. 21; Tripp v.' Chills, 14 Barb. 8); Cummings v. Timberman, 49 How. 236 ; Martin v. Sheriden, 2 Hil.5-6; Van Vechten v.llull, 14 Ilow, 436; Cox v. Staitord, 15 il. 519; Tillotson v. Wolcoit, 48 N. Y. 188:8 1394, ante; Bunu. Fonda. 2('. R. 70; Baily ? Rurier, !0 N. Y. 363; Jenner
. Sanborn, 37 Barb, 610; Alexander v, Richardson, 7 Rob. 64 ; Sandford v. Moshier, 13 Hlow. 103; People v. Cowies, 34 id. 481; (rounse v. Whipple, 11. 3?3; Peters 1. Kerr, 22 i1. 3; Hall v. VoMahon, 10 Alb. 103 ; Gasper v. Bennett, 12 low. 307: Clapp 2. Lathrop, 40 N. Y. 328; $. C., 23 How. 423; Teller 0. Randall, 26 id. 15; Barnart .. kobbe, 64 N. Y. 516: 8. C., 3 Daly, 372; Leebe 2. Kenyon, 3 Thun, 73; Rodman v. Henry, 17 N. Y. 484: Tiller v. Randall, 40 Bart. 212; llavens 2. Nat. City Bank of Brooklyn, 4 Ilu, 101; Glenville Woolen ('o. 2. Hiples, 43 N. Y. 206; Reynolds 1. McElhone, 20 Ilow. 451; Koruny's Casa, 13 ALD. 439 ; llola stein v. Rice, 15 id, 307; Joyce v. Holbrook, 7 id. 33; Hautman v. Cat.