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thereof out of any money which has come, or may come, to the hands of the receiver, or of the sheriff; or, within a time specified in the order, by the judgment debtor, or other person against whom the special proceeding is instituted.
Code of Proc., ? 301, in part, amended. Davis v. Turner, 4 How. 190; Kearney's Case, 13 Abb. 459; Provost v. Farrell, 13 Hun, 303; Engle v. Bonneau, 2 Sandf. 679; Hulsaver v. Wiles, 11 lIow. 446; Webber v. Hobo bie, 13 id. 382.
§ 2456. Id.; to judgment debtor, etc. - Where the judgment debtor, or other person against whom the special proceeding is instituted, has been examined and property, app icable to the payment of the judgment, has not been discovered in the course of the special pro. ceeding, the judge may make an order, allowing him a like sum as costs; 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.
Id., & 301, in part, amended. Davis v. Turner, 4 IIow. 190; Anonymous, 3 Sandf. 125; 1 C. R. N. S. 113; Anonymous, 11 Abb. 108.
§ 2457. Disobedience to order; how punished. —A person who refuses, or without sufficient excuse neglects, to obey an order of a judge or referee, made pursuant to the last two sections, or to any other provision of this article, and duly served upon him, or an oral direction, given directly to him by a judge or referee, in the course of the special proceeding; or to attend before a judge or referee, according to the command of a subpoena, duly served upon him ; may be punished by the judge or by the court out of which the execution was issued, as for a contempt.
Code Proc., 8302. throp v. Clapp, 40 N. Y. 328; People r. Marston, 18 Abb. Pr. 257; People v. Dutcher, 3 Abb. N. S. 151; Tremain o. Richardson, 68 N. Y. 617 ; Sickles v. Hanly, 4 Abb. N. C. 231; Shepherd 0. Deane, 13 How, 173; 3 Abb. 424; Re Smethurst, 2 Sandf. 724; People 9. Kelly, 22 How. 309 : 13 Abb.459 ; Dresser v. Van Pelt, 15 low, 19; Kelly v. McCormick, 28 N. Y. 318; Holstein v. Rice, 15 Abb. 307 ; 24 Ilow.135: Muldoon v. Pierz, 1 Abb. N. C. 309; Matter of Johns, 1 Law Bull. 75; Shults v. Andrews, 54 Ilow. 378; Miller v. Adams, 52 N. Y. 409; People 0. Jones, 1 Abb. N. C. 172; Sloane v. Higgins, 1 Law Bull. 59; Potter v. Low, 16 How. 549; Deposit Nat. Bank v.Wickham, 44 id. 421; Taggard 0. Talcott, 2 Edw. 628 ; People v. Kingsland, 3 Abh. Ct. App. 325; Joyce 0. Holbrook, 7 Abb. 338; DeWitt v. Dennis, 30 Ilow. 131; Pitt v. Davison, 37 N. Y. 235; Watson v. Fitzsimmons, 5 Duer, 629; Dean v. llyatt, 5 Week. Dig. 67; Ross v. Clussman, 3 Sandf. 676; Richardson v. Rust, 9 Paige, 243: West Side Bank w. Pugsley, 12 Abb. N. S. 28; 47 N.Y. 368; Fisher », Doyle, 2 Law Bull. 43.
* See 2 Month. L. Bull. 97.
*$ 2458. (Amended, 1881.) Upon what judgment, and to what county, the execution must have issued. - In order to entitle a judgment creditor to maintain either of the special proceedings, autliorized by this article, the judgment must have been rendered upon the judgment debtor's appearance, or personal service of the summons upon him for a sumi not less than twenty-five dollars, and the execution must have been issued out of a court of record; an either
1. To the sheriff of the county where the judgment debtor has, at the time of the commencement of the spe ial proceedings, a place for the regular transaction of business in person ; or
2. If the judgment debtor is then a resident of the State, to the sheriff of the county 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 tran. script of the judgment is filed.
Part of Code of Proc., & 292, amended. Bartlett v. McNeil, 60 N. Y. 63 ; Schwinger v. llickok, 53 id. 280 ; Bartlett v. Spicer, 75 id. 528; Chan. tauqua County Bank v. White, 6 id. 236 ; Same v. Risley, 19 id. 369; McCartney v. Bostwick, 32 id. 53; Payne v. Sheldon, 63 Barb. 169; Bingham v. Disbrow, 14 Abb. Pr. 251 ; Jessup v. Jones, 32 How. Pr. 191 , Belknap v. llasbrouck, 13 Abb. Pr. 418, note; McEwen v. Burgess, 15 id. 473; s. C., 25 How. 92; Stryking v. Hicks, 2 Law Bulletin, 6.
& 2459. In what county judgment debtor, his bailes, etc., must attend. — If the judgment debtor, or other person, required to attend and be examined, as prescribed in this article, or the officer of a corporation, required to attend in its behalf, is, at the time of the service of the order upon him, a resident of the State, or then has an office within the State, for the regular transaction of business, in person, he cannot be compelled to attend, pursuant to the order, or to any adjournment, at a place without the county wherein his residence or place of business is situated.
Id., & 292. Belknap v. IIasbrouck, 13 Abb. 418, n; McEwan v. Burgess, 15 id. 473; 25 How. 92; Gould v. Moore, 51 id. 188; Foster v. Prince, 18 id. 258; 8 Abb. 407; Anaway v. David, 9 Hun, 296.
$ 2460. (Amended, 1881.) No person excused from answering on the ground of fraud. - A party or a witness, examined in a special proceeding, authorized by
See 2 Month. L. Bull. 94, 96.
this article, is not excused from answering a question, on the ground that his examination will tend to convict him of the commission of a fraud ; or to prove that he has been a party or privy to, or knowing of, a conveyance, assignment, transfer, or other disposition of property for any purpose; or that he or another person claims to be entitled, as against the judgment creditor, or a receiver appointed or to be appointed in the special proceeding, to hold property, derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor, or to a person in his behalf. But an answer cannot be used, as evidence against the person so answering in a criminal action or criminal proceeding.
Ia., & 292, amended. Barber v. People, 17 Hun, 366; Lathrop o. Clapp, 10 N. Y. 328 ; Forbes v. Willard, 54 Barb. 520.
§ 2461. Proceedings where judgment is against joint debtors. -- Where the execution was issued as pre. scribed in section 1941 of this act, a debt due to, or other personal property owned by, one or more of the defend. ants not summoned, jointly with the defendants sum. moned, or with any of them, may be reached by a
special proceeding, instituted as prescribed in this article, and founded upon the judgment.
Id., & 294, amended; see ? 1871, ante. Billhofer v. Heuback, 15 Abb. Pr. 143; Field v. Chapnian, id. 434; Produce Bank v. Morton, 67 N. Y.
§ 2462. Proceedings commenced before one judge may be continued before another. - Sections 26, 52, and 279 of this act apply to a special proceeding, insti. tuted as prescribed in this article; and the judge before whom it is continued, as prescribed in either of those sections, is deemed to be the judge to whom an order or warrant is returnable, for the purpose of any provision of this or the next article. New.
§ 2463. [Amended 1886.] Cases where this chapter is not applicable; what property cannot be reached.This article does not apply where the judgment debtor is a corporation created by or under the laws of the State, or a foreign corporation specified in section 1813 of this act, except in those actions or special proceed. ings brought by or against the people of the State. Noo does it authorize the seizure of, or other interference
with, any property which is expressly exempt by law from levy and sale by virtue of an execution; or any money, thing in action, or other property, held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from a person other than the judgment debtor; or the earn. ings of the judgment debtor for his personal services, rendered within sixty days, next before the institution of the special proceeding; when it is made to appear, by his oath or otherwise, that those earnings are necessary for the use of a family, wholly or partly supported by his labor.
New. Morgan v. N. Y. & A. R. R. Co., 10 Paige, 290; Hinds o. Canandaigua R. R. Co., 10 How. Pr. 487; Hammond v. Hudson R. Iron Co., 11 id. 29; Sherwood v. Buffalo R. R. Co., 12 id. 136 ; see Bartlett u. Drew, 60 Barb. 648; 8. C., 4 Lans, 444; Fennin v. Malloy, 33 N. Y. Super. Ct. (1 J. & S.) 382; Campbell Foster, 35 N. Y.361; Miller v. Hooper, 19 Hun. 994; Newell v. Cutler, id. 74; Tillotson v. Wolcott, 48 N. Y. 188; Dick Inson v. Onderdonk, 18 Hun, 479; Van Vechten v. Hall, 14 How. 436; Martin v. Sheriden, 2 Hilt. 586 ; Whalen v. Tennison, 1 Law Bulletin, 22, Cummins v. Timberman, 49 How, 236; Bush v. White, 12 Abb. 21; Gerregani v. Wheelwright, 3 Abb. N. S. 264 ; Woodman v. Goodenough, 18 Abb. Pr. 265; Tripp v. Childs, 14 Barb. 83; Potter v. Low, 16 How. 049.
SEO. 2464. When and how receiver may be appointed.
2465. Notice to other creditors.
2471. Receiver to be subject to control of court. § 2464. When and how receiver may be appointed. -At any time after making an order, requiring the judgment debtor, or any other person, to attend and be examined, or issuing a warrant, as prescribed in article first of this title, the judge to whom the order or war. rant is returnable may make an order, appointing a re. ceiver of the property of the judgment debtor. At least two days' notice of the application for the order ap. pointing a receiver, must be given personally to the judgment debtor, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the ¿ State ; in which case, the order must recite that fact, and may dispense with notice, or may direct notice to
be given in any manner which the judge thinks proper, But where the order to attend and be examined, or the warrant, has been served upon the judgment debtor, a receiver may be appointed upon the return day thereof, or at the close of the examination, without further no. tice to him.
Code of Proc., 298. Chamberlain v. Greenleaf, 4 Abb. N. C. 92: Underwood v. Sutcliffe, 10 Hun, 453, reversed on another ground, 77 N. Y. 58; Dollard v. Taylor, 33 N. Y. Super. 496; Bingham 2. Disbrow, 14 Abb. 251; 37 Barb, 24; Andrews v. Glenville Wool Co., 11 Abb. N. S. 78: Kemp v. Harding, 4 How. 178: Buinacleugh v. Boolman, 3 Daly, 236; Ball v. Goodenough, 37 lIow. 479; Meyers' Case, 2 Abb. 476 ; Baily v. Lane, 15 Abb. 373, n ; Heroy v. Gibson, 10 Bosw. 591; Tood v. Crooke, Sandf. 694 ; see Holbrook v. Orgler, 8 J. & Sp. 33; s. C., 49 How. Pr. 289; see, also, Whitney v. Welch, 2 Abb. N. C. 442 ; Pool v. Safford, 14 Hun, 369; Morgan v. Potter, 17 id. 403.
§ 2465. Notice to other creditors.—The judge must ascertain, if practicable, by the oath of the judgment debtor, or otherwise, whether an action, specified in ar. ticle first of title fourth of chapter fifteenth of this act, or a special proceeding instituted as prescribed in article first of this title, is pending against the judgment debtor. If either is perding, and a receiver has not been appointed therein, notice of the application for the appointment of a receiver, and of all the subsequent proceedings respecting the receivership, must be given, In such a manner as the judge directs, to the judgment creditor prosecuting it. Id., part of 8 298.
§ 2466. Only one receiver to be appointed. Former receivership may be extended.-Only one receiver of the property of a judgment debtor shall be appointed. Where a receiver thereof has already been appointed, the judge, instead of making the order prescribed in the last section but one, must make an order, extending the receivership to the special proceeding before him. Such an order gives to the judgment creditor the same rights as if a receiver was then appointed upon his application ; including the right to apply to the court to control, direct, or remove the receiver, or to subordinate the proceedings in or by which the receiver was appointed, to those taken under his judgment. Id., part of 8 298; see Rules 84 and 85. Howell v. Ripley, 10 Paige, 43.
$ 2467. Order to be filed and recorded. An order appointing a receiver, or extending a receivership, must