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tition as prescribed in this title, in payment of, or as security for, an existing or prior debt, or for any other consideration; or a judgment thereafter rendered against the corporation by confession, or upon the acceptance of an offer, is absolutely void, as against the receiver appointed in the special proceeding, and as against the creditors of the corporation.
Id.. 70. Matter of Waterbury, 6 Paige, 380; Matter of Berry, 26 Barb. 55; Matter of Eagle Iron Works, 3 Edw. 385; Chamberlain v. Rochester S. P. V. Co., 7 Hun, 557; Sands v. Hill, 55 N. Y. 18.
2431. [Amended 1884.] Certain corporations excepted from this title. This title does not apply to an incorporated library society, to religious corporation, or to a select school or academy, incorporated by the regents of the university or by the legislature, or to a municipal or other political corporation. In case of corporations affected by the provisions of this title, and not having stockholders, it shall be sufficient for the purposes of this title to notify, name and refer to the "members" of such corporations instead of "stockholders" as herein provided,
Proceedings supplementary to an
ARTICLE 1. Proceedings to compel an examination of the judgment debtor, and of his debtor or bailee. 2. The receiver.
PROCEEDINGS TO COMPEL AN EXAMINATION OF THE JUDGMENT DEBTOR, AND OF HIS DEBTOR OR BAILEE.
SEO. 2432. The different remedies under this title.
2433. Nature of the remedies. Review of orders.
2435. Order to examine judgment debtor after return of execu
2436. Id.; before return of execution.
2441. Order to examine person having property, etc., of judgment
2442. Either order may require attendance before a referee.
SEC. 2443. Reference may be ordered at any time.
2446. Order permitting person indebted to pay debt to sheriff.
2448. Duty of the sheriff.
2449. How money or property applied to pay the judgment.
2452. Mode of service of certain orders.
2453. Service of a warrant.
2454. How proceedings discontinued or dismissed.
2455. Costs to judgment creditor.
2456. Id.; to judgment debtor, etc.
2457. Disobedience to order; how punished.
2458. Upon what judgment, and to what county, the execution must have issued.
2459. In what county judgment, debtor, his bailee, etc., must at
2460. No person excused from answering on the ground of fraud.
2463. Cases where this chapter is not applicable; what property cannot be reached.
í § 2432. The different remedies under this title. This title provides for three distinct remedies, as fol. lows :
1. An order made or a warrant issued against a judg ment debtor, after the return of an execution.
2. An order made, or a warrant issued against a judg ment debtor, after the issuing and before the return 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, or is indebted to him.
The proceedings under subdivision third of this section may be pursued, either alone, or simultaneously with the proceedings under either subdivision first or subdivision second.
New in form. Crouse v. Wheeler, 33 How. 337; Union Bank v. Sar geant, 53 Barb.422; 37 How.87; Mallory v. Gulick, 15 Abb. 307 n; Gould & Torrance, 19 How. 560; Sluyter v. Smith, Sup. Ct., Feb. 1858; O'Neil v. Martin, 1 E. D. Smith, 404; Holstein v. Rice, 15 Abb. 307; 8. C., 24 How. 135; Hawes v. Barr, 7 Rob. 452; Crouse v. Whipple, 34 How. 333; Davia v. Turner, 4 id. 190; Bank of Gennesee v. Spencer, 15 id. 14; People ex rel. v. Oliver, 66 Barb. 570; Dresser v. Van Pelt, 15 How. 19; 6 Duer, 687; Billing v. Vandenburgh, 17 How.80; Miller v. Rossman, 15 id. 510; Webber v. Hobbie, 13 id. 382; Lynch v. Johnson, 48 N. Y. 27; Griffin v. Do minguez, 2 Duer, 656; 11 N. Y. Leg. Obs. 285; Carter v. Clarke, 7 Rob. 43: Orr's Case, 2 Abb. 457; Myers' Case, id. 476; Driggs v. Williams, 15th 477; Sandford v. Carr, 2 id. 462; Lilliendahl v. Feherman, 11 How. 528
§ 2433. Nature of the remedies. Review of orders. Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows:
1. An order, made by a judge, out of court, may be vacated or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued.
2. Where the execution was issued out of a county court, an appeal from an order, made in the course of the proceedings, may be taken in like manner, as if the order was made in an action brought in the same court. New. Griffin v. Dominguez, 2 Duer, 656; Miller v. Rossman, 15 How. Pr. 10; Dresser v. Van Pelt, id. 19; Bank of Gennesee v. Spencer, id.412; Billing v. Vandenburgh, 17 id. 80; Seely v. Black, 35 id. 369; Driggs v. Williams, 15 Abb. Pr. 477; Holstein v. Rice, id. 307; West Side Bank v. Pugsley, 47 N. Y. 368; Ward v. Roy, 69 id. 96; Amore v. La Mothe, 5 Abb. N. C. 146; Carter v. Clark, 7 Rob. 43; Orr's Case, 2 Abb. 458; Davis v. Turner, 4 How. 190; Myers' Case, 2 Abb. 476; Crounse v. Whipple, 34 How. 333; Bank of Gennesee v. Spenser, 15 id. 14; O'Neil v. Martin, 1 E. D. Smith, 404; Hulsaver v. Wiles, 11 How. 446.
§ 2434. [Amended, 1895.] What judge may entertain the proceedings. Either special 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 where it was issued to the city and county of New York, from a court other than the city court of that city, before a justice of the supreme court for that city and county. 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, as prescribed by this section, is absent from the county, or, for any reason, unable or disqualified to act; the special proceedings may be instituted before a justice of the supreme court. In that case, if he does not reside within the judicial district, embracing the county to which the execution was issued, the order made or warrants issued by him must be returnable to a justice of the supreme court, residing in that district, or the county judge or the special judge or special surrogate of that or an adjoining county, as directed in the order
In effect Jan. 1, 1896; L. 1895, ch. 946.
Code of Proc., § 292, amended. Bingham v. Disbrow, 14 Abb. 251; s.
c., 37 Barb. 34, reversed on other grounds; Terry v. Hultz, 8 Abb. N. S. 109; s. c., 39 How. 169: People ex rel. v. Oliver, 66 Barb. 570; Hulsaver v. Wiles, 11 How. 446; Wilson v. Andrews, 9 id. 39; Miller v. Rossman, 15 id. 10; Billing v. Vandenburgh, 17 id. 80; Dresser v. Van Pelt, 15 id. 19; 8. C., 6 Duer, 687; Miller v. Adams, 52 N. Y. 409; People ex rel. Dutcher, 3 Abb. N. S. 151; Allen v. Starring, 26 How. 57; Holbrook v. Orgler, 49 id. 289.
§ 2435. Order to examine judgment debtor after return of execution. At any time within ten years after the return, wholly or partly unsatisfied, of an exe cution against property, issued upon a judgment, as prescribed in section 2458 of this act, the judgment creditor, upon proof of the facts, by affidavit, or other compe tent written evidence, 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., 292. Storrs v. Kelsey, 2 Paige, 418; Tyler v. Whitney, 12 Abb. 465; 33 Barb. 327; Livingston . Cleveland, 5 How. 396; Engle v. Bonneau, 2 Sandf. 679; Cavanau v. McAndrew, 20 Hun, 46; Collier v. De Revere, 7 id. 61; Orr's Case, 2 Abb. 457; Ross v. Clussman, 3 Sandf. 676; Krill v. Cornmeyer, 56 How. 276: Frederick v. Decker, 18 id. 96; Scott v. Durfee, 59 Barb. 390, note; Walker v. Donovan, 6 Daly, 552; Amore v. La Mo he, 5 Abb. N. C. 146; Pardee v. Tilton, 20 Hun, 76; 58 How. 476; Griffin v. Dominguez, 2 Duer, 656; Thompson v. Sargeant, 15 Abb. 452 Lederer v. Erenfeld, 4 How. 403; Johnson v. Tuttle, 17 Abb. Pr.315; People ex rel. Oliver, 66 Barb. 570; Anonymous, 32 id. 201; Butts v. Dickinson, 20 How. 230; 12 Abb. 60; Sluyter. Smith, Super. Ct., Feb. 1868; Blydenburgh v. Cotheal, 5 How. 200; Sperling v. Levy, 10 Abb. 426; Tyler v. Whitney, 12 id. 465; 33 Barb. 327; Forbes v. Waller, 25 N. Y. 430: Farquaharson v. Kimball, 9 Abb. 385, (n); 18 How. 33; Sackett v. New ton, 10 How. 560; Carter v. Clarke, 7 Rob. 490; De Comeau v. People, id. 498; Lindsay v. Sherman, 5 How. 308; Hawes v. Barr, 7 Rob. 452; Ĥof v. Kohlin, 1 C. R. N. S. 232; Kennedy v. Ward, 10 Abb. 62; Kennedy . Thorp, 3 Abb. N. S.; Reynolds v. McElhone, 20 How. 454; Bingham v. Disbrow, 14 Abb. 251; 37 Barb. 24; 5 Trans. App. 198; Whitlock's Case, I Abb. 320, Schanck v. Conover, 56 How. 437; Day v. Brosnan, 6 Abb. N.C. 312; Arctic F. Ins. Co. v. Hicks, 7 Abb.204; Hulsaver v. Wiles, 11 How. 446: Kelty v. Yerby, 31 id. 95; Shults v. Andrews, 54 id. 376; Dresser v. Van Pelt, 15.19; Bank of Savings v. Hope, 8 Week. Dig. 452; First Nat. Bank v. Deering, 8id. 261; Grocers' Bank v. Bayard, 10 id. 124; Irwin v. Chambers, 40 N. Y. 432; Gaylord v. Jones, 7 Hun, 480; Brockway v. Brien, 37 How. 270; Belknap v. Hasbrouck, 13 Abb. 418; Sale v. Lawson, 4 Sandf. 718; Courtois v. Harrison, 1 Hilt. 109; Union B'k of Troy v. Sergeant, 53 Barb. 422; World Co. v. Brooks, 7 Abb. N. S. 712; Driggs v. Williams, 15 Abb. 477; Smith v. Paul, 20 How. 97; Lindsay v. Sherman, 5id. 608: Arnoux v. Homans, 32 id. 382; Wolf v. Jacobs, 36 N. Y. Super. Ct. 408; see Owen v. Dupignac, 9 Abb. Pr. 180.
2436. Id.; before return of execution. At any time after the issuing of an execution against property, as prescribed in section 2458 of this act, and before the return thereof, the judgment creditor, upon proof, by affidavit, or other competent written evidence, that the judgment debtor has property, which he unjustly re fuses to apply towards the satisfaction of the judgment,
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., 292, subd. 2. Sackett v. Newton, 10 How. 568; Owen v Dupignac, 9 Abb. 180; s. 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 affidavit, 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, instead 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 before another judge, if the case is one where the warrant must be returnable to another judge.
Code of Proc., 292, subd. 4, amended. Rohsand v. Waring, 1 Abb. N. C. 311; King v. Kirby, 28 Barb. 49; see 1 Barb. Ch. Pr. 649-50; Andrews . Wilson, 9 How. 39.
§ 2438. Id.; after the order has been made. — Where the facts, specified in the last section, are made to ap 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 return of the warrant, and his decision thereupon.
§ 2439. Warrant; how vacated, etc. - A warrant, issued 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.
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