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1896,

1896,

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1896,

567 1899,

1897,

1897,

PAGE. 1896, chap. 908, art. 10, as amd.... 564 1897, chap. 612, $ 51......

378 1896, 908, S 21.... 254 1897, 754.

213 908, § 55.. 255 1897, 784.

210 1896, 908, § 56.

255 ! 1898,

186.

276, 277, 523 1896, 908, § 182. 578-581 1898, 469.

301 1896, 909, $ 189, subd. 1. .... 579 1898, 469, 87.

302 908, § 220... 289, 460, 556 1898, 577.

380, 383 1896, 908, § 220, subd. 5. 288-290 1899,

76..

289, 290, 461, 462 1896, 908, 8 227....

459 | 1899,
226.

214, 216 908, § 230.... 289, 290, 461 1899, 359

214, 216 462 1899,

370, $ 21. 271, 272, 274, 368 1896, 909, $ 12..

451..

587-591 1896, 909, § 31.

362 1899,
473, $ 11.

566, 567 1897, 284. 288, 460 1899, 712, $ 3.

255 312.

525 | 1900,
248.

169 1897, 378, § 707.

10 1900,
517.

214 378, § 887. 274, 275 1901, 68.

215 1897, 378, § 895..

49 | 1901,
95.

567 1897, 378, § 906... 49 1901, 128.

312 378, § 1117.. 539 1901, 171.

587-591 1897, 378, § 1406.. 10, 11 | 1901, 209

301, 302 1897, 378, § 1542. 522, 523 1901, 397.

229 378, § 1543.. 275, 522 1901, 409.

97 378, § 1610.

11 1901,
466, S 300.

311, 312 1897, 414..

213 | 1901, 466, S 302. 311, 312 1897, 414, § 104.

254 1901,
466, $ 685

353, 3.75
414, § 106.
255 1901, 466, § 707.

10 1897, 414, $ 110..

255 1901, 466, § 887.... 271, 274, 275 1897, 414, S 114.

253 1901,
466, § 1409.

11 414, § 115.

235 1901,

466, § 1543.. .275, 538–510 1897, 414, S 159.

215-217 1901,
466, § 1610.

11 1897, 417, § 4.. 414, 415, 424, 425 | 1901, 503..

587-591 1897, 418, S 4..

4:0 1901,
513..

09 1897, 418, § 13.

144 | 1901,
538

453, 434 1897, 418, S 90.

169 1902,

270..

271, 274, 368 1897, 446.

532-535 | 1902,

580, SS 248, 249.. 630

1897,

1897, 1897,

1897,

1897,

SECTIONS OF THE CODE OF CIVIL PROCEDURE

CITED.

PAGE.

033

Code C. P. S 8.....

PAGE.

284 Code C. P. & 431...... 279, 282, 283

11...
15.
73

74, 75. $$ 340, 341

$ 347.

$ 494, 286

$ 500 583-585

$ 501. 584

S508. 633

$ 516, 633

S 525..

516 546 387

516 546, 547 562, 563

PAGE.

Code C. P. SS 535, 536.

715..
$ 829.
$ 831
& 999.
$ 1022..
$ 1186..
$ 1221..
$ 1279..

1326...
$ 1917..

PAGE. 516 Code C. P. & 2344..

560 .552-554 8 2433..

4 385

$ 2472, subds. 3, 4.. ... 457 162 8 2518..

156 90, 473 SS 2519–2524..

360 485, 504, 506

2596.

54 508 $ 2606.

97 388 $ 2653a.

291, 293 470 $ 2730

99 504, 505 8 2749....

158 591 8 2749 et seq

176 12 $ 2750.

157 12 SS 2752-2755

156 12 $ 3236..

565 § 3240....

565 276

8 3251, subd. 3.. 565 282 § 3256....

565 280 $ 3343, subd. 9..

516 313

$ 3357 et seq... 65, 216, 217 12

SS 3357–3384. 216, 217 560

& 2015 et seg
$ 2016....

12

$ 2019
$ 2032..
$ 2120..
$ 2135..
$ 2138..
$ 2140..
$ 2148..
$ 2336..

SECTIONS OF THE CODE OF CRIMINAL PROCEDURE

CITED

PAGE

Code Cr. P. & 515.....

12

SECTIONS OF THE PENAL CODE CITED.

PAGE.

Penal Code, ss 4-6......

$ 351.
& 363.

PAGE. 10 Penal Code, $ 640d.. 337, 339–342, 346 533, 535

349 43, 341, 342

$ 675...

11

Cases

DETERMINED IN THE

FIRST DEPARTMENT

IN THE

APPELLATE DIVISION,

July, 1903. *

In the Matter of David LISNER, Respondent, v. Samson L. TOPLITZ,

Defendant. NATIONAL CITIZENS' BANK OF THE CITY OF NEW YORK, Appellant. Supplementary proceedings an execution issued and returned unsatisfied is a pre

requisite thereto when sustained where they are instituted before, and a receiver

is appointed after, the return of the execution. Proceedings supplementary to execution have taken the place of the former bill

of discovery, and as such a bill would lie only where a valid execution had been issued and returned unsatisfied, such matters are prerequisites to the

institution of proceedings supplementary to execution. Cpon an affidavit made by a judgment creditor's attorney, alleging that an execu

tion had been issued on the judgment and had been returned unsatisfied, an order for the examination of the judgment debtor in proceedings supplementary to execution was granted March 13, 1902. The order recited that the issuing of the execution and its return unsatisfied had been shown to the satis

faction of the court. The execution upon the judgment was not formally returned and filed with the

county clerk until the morning of March 14, 1902, although the deputy sheriff who had charge of the execution had made an entry of its return upon the

sheriff's records on March 13, 1902. March 14, 1902, after the return of the execution, a receiver of the judgment

debtor's property was appointed in the proceeding. Hed, that an order denying a motion made by a junior judgment creditor to

Facate the order for the examination of the judgment debtor and the order appointing the receiver should be affirmed. VAN BRUNT, P. J., and O'BRIEN, J., dissented. * The other cases of this term will be found in volume 85 App. Div.– [REP.

APP. Div.-VOL. LXXXVI. 1

First DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

APPEAL by the National Citizens' Bank of the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of May, 1903, denying its motion to vacate an order made by a justice of the Supreme Court on the 13th day of March, 1902, for the examination of the defendant Toplitz, a judgment debtor in supplementary proceedings, and also to vacate an order made by a justice of the Supreme Court on the 14th day of March, 1902, appointing a receiver of said judgment debtor in supplementary proceedings.

Charles Blandy, for the appellant.

llerbert A. IIeyn, for the respondent. Laughlin, J.:

On the 11th day of March, 1902, one David Lisner obtained a judgment for $7,837.10 against Samson L. Toplitz by confession in an action pending in the Supreme Court in the county of New York. Two days later, on the affidavit of one of the attorneys for the plaintiff showing the recovery of the judgment, that execution thereon had been duly issued to the sheriff of the county of New York and returned by him unsatisfied, the order for the examination of the judgment debtor was obtained ex parte and served on the same day. The judgment debtor appeared for examination pursuant to the requirements of the order on the 14th day of Marclı, 1902, and it appearing from his examination that he had property not exempt from execution the order appointing the receiver was made the same day. The appellant recovered a judgment for $1,583.77 against the same defendant in the City Court on the day the receiver was appointed. Execution was issued on its judgment on the same day and returned unsatisfied on the sixth day of May thereafter. On the 3d day of June, 1902, the appellant obtained and served an order for the examination of the judgment debtor in proceedings supplementary to execution upon its judgment. Upori his examination pursuant to this order the appellant first learned of the respondent's judgment and proceedings thereon. The appellant, on the 31st day of March, 1903, obtained an order to show cause why the order for the examination of the judgment debtor in pro

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