TITLE XII. Proceedings supplementary to an execution against property. Article 1. Proceedings to compel an examination of the judgment debtor, and of his debtor or bailee. 2. The receiver. ARTICLE FIRST. Proceedings to compel an examination of the judgment debtor, and of his debtor or builee. Sec. 2432. The different remedies under this title. 2433. Nature of the remedies. Review of orders. 2434. What judge may entertain the proceedings. 2435. Order to examine debtor after return of execution. 2436. Id.; before return of execution. 2437. Warrant of arrest instead of order. 2438. Id.; after the order has been made. 2439. Warrant; how vacated, etc. 2440. Undertaking may be required, etc. 2441. Order to examine person having property, debtor. etc., of judgment 2442. Either order may require attendance before a referee. 2444. Proceedings upon examination; adjournment. 2445. Referee to be sworn. 2446. Order permitting person indebted to pay debt to sheriff. 2447. Order requiring delivery of money or property to sheriff or receiver. 2448. Duty of the sheriff. 2449. How money or property applied to pay the judgment. 2450. Balance to be paid or delivered to judgment debtor, etc. 2451. Judge may enjoin transfer, etc., of property. 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 attend. 2460. No person excused from answering on the ground of fraud. 2461. Proceedings where judgment is against joint debtors. 2462. Proceedings commenced before one judge may be continued before another. 2463. Cases where this chapter is not applicable; what property can not be reached. § 2432. [Am'd, 1896.] The different remedies under this title. This title provides for three distinct remedies, as follows: 1. An order made or a warrant issued against a judgme debtor, after return of an execution. 2. An order made, or a warrant issued against a judgment 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 the person who has property of the judgment debtor, or is indebted to him. The proceedings under subdivision third of this section, may pursued either alone or simultaneously with the proceedings under subdivision first or subdivision second. The party to whe costs are awarded in a special proceeding shall be entitled to the same remedies under this title, under the same circumstances, as near as may be, as a judgment creditor. And for the purposes , the party to whom such costs are awarded shall be udgment creditor, and the party against whom they d shall be deemed a judgment debtor. 176. In effect September 1, 1896. ature of the remedies. Review of orders, hose remedies is a special proceeding. But an order, e course thereof, can be reviewed only as follows: er, made by a judge, out of court, may be vacated or the judge who made it, as if it was made in an action; order of the judge vacating or modifying it, may be modified, upon motion, by the court out of which the as issued. the execution was issued out of a county court, an an order, made in the course of the proceedings, en in like manner, as if the order was made in an ght in the same court. m'd, 1895.] What judge may entertain the pro ecial proceedings may be instituted before a judge t, out of which, or the county judge, the special e or the special surrogate of the county to which the as issued; or where it was issued to the city and ew York, from a court other than the city court of fore a justice of the supreme court for that city and ere the execution was issued out of a court other reme court, and it is shown, by affidavit, that each s, before whom the special proceedings might be inprescribed by this section, is absent from the county, reason, unable or disqualified to act; the special proy be instituted before a justice of the supreme court. , if he does not reside within the judicial district, he county to which the execution was issued, the or warrants issued by him must be returnable to a e supreme court, residing in that district, or the or the special judge or special surrogate of that or county, as directed in the order or warrant. 292, am'd; L. 1895, ch. 946. n'd, 1896.] Order to examine debtor after recution. e within ten years after the return, wholly or partly f an execution against property, issued upon a judgscribed in section 2458 of this act, or, in case of an in the same manner so far as the provisions of can be applied in substance, the creditor under such order, upon proof of the facts, by affidavit or other ritten evidence, is entitled to an order, requiring der the judgment or order, to attend and be examing his property, at a time and place specified in the 1896, ch. 176. In effect September 1, 1896. See § 2458, post. before return of execution. e after the issuing of an execution against property, in section 2458 of this act, and before the return udgment creditor, upon proof, by affidavit, or other competent written evidence, that the judgment debtor has property, which he unjustly refuses 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. Co. Proc., § 292, subd. 2. § 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 judg ment 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 aother judge. Id., § 292, subd. 4, am'd. § 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 war rant, 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 be fore 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 w leave the State, or conceal himself, 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 giv an undertaking, with one or more sureties, in a sum fixed and within a time specified in the order, to the effect, that he wil from time to time, as the judge directs, attend before the judg or before a referee, appointed or to be appointed in the proceed ings; and that he will not, until discharged from arrest by virtue of the warrant, dispose of any of his property, which is not ex empted from seizure by section 2463 of this act. If he fails to comply with the order, the judge must forthwith, by warran commit him to prison, there to remain until the close of the examination, or the giving of the required undertaking; except that the judge may direct the sheriff to produce him, from time to time, as required in the course of the proceedings. Co. Proc., part of § 292, subd. 4, am'd. Order to examine person having property, etc., ent debtor. of, by affidavit, or other competent written evidence, faction of the judge, that an execution against propen issued, as prescribed in section 2458 of this act, that it has been returned wholly or partly unsatist it has not been returned; and also that any peroration has personal property of the judgment debtor, en dollars in value, or is indebted to him in a sum en dollars; the judgment creditor is entitled to an order, at person or corporation to attend and be examined the debt, or other property, at a time and place speciorder. The judge may, in his discretion, require nosubsequent proceedings to be given to the judgment 1ch a manner as he deems just. But a receiver shall inted without such a notice, except as otherwise prerticle second of this title. 294. See § 2458, post. ither order may require attendance before a requiring a person to attend and be examined, made any provision of this article, must require him so d be examined, either before the judge to whom the urnable, or before a referee designated therein. xamination is taken before a referee, he must cerjudge to whom the order is returnable, all the evihe other proceedings taken before him. ference may be ordered at any time. ge of the proceedings, the judge to whom the order e may, in his discretion, make an order, directing er examination, or testimony, be taken by, or that a ing be referred to, a referee, designated in the order. estion is so referred, the referee may be directed to the evidence or the facts. ceedings upon examination; adjournment. -xamination under this article, each answer of a ness examined must be under oath. A corporation oy, and answer under the oath of, an officer thereof; e may, in his discretion, specify the officer. Either e examined as a witness, in his own behalf, and and examine other witnesses, as upon the trial of he judge or referee may adjourn any proceedings, ticle, from time to time, as he thinks proper. · Co. Proc., §§ 292 and 296, or such parts thereof as relate to eree to be sworn. parties expressly waive the referee's oath, a refd as prescribed in this article, must, before enterxamination, or taking testimony, subscribe and take he will faithfully and fairly discharge his duty rence, 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. 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 re ceiver therein, or the extension of a receivership thereto, the 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 indebted 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 corporation, to pay to a sheriff, designated in the order, a sum, on account of the alleged indebtedness, not exceesing the sum which will satisfy the execution. A payment th made is, to the extent thereof, a discharge of the indebtedness except as against a transferee from the judgment debtor. good faith and for a valuable consideration, of whose rights the person or corporation had actual or constructive notice, when the payment was made. Co. Proc., § 293, am'd. § 2447. Order requiring delivery of money or property to sheriff or receiver. Where it appears, from the examination or testimony taken 1 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 articies of personal property, capable of delivery, his right to the posses sion whereof is not substantially disputed, are in the possessi or under the control of another person; the judge, by whom th order or warrant was granted, or to whom it is returnable, mai in his discretion, and upon such a notice, given to such persoLs! as he deems just, or without notice, make an order, directing the judgment debtor, or other person, immediately to pay the money, or deliver the articles of personal property, to a sheri designated in the order, unless a receiver has been appointed. a receivership has been extended to the special proceeding, and in that case to the receiver. Substituted for Co. Proc., § 297. § 2448. Duty of the sheriff. If the sheriff, to whom money is paid, or other property is de livered, pursuant to an order made as prescribed in either of the last two sections, does not then hold an execution upon the judgment against the property of the judgment debtor, he has the same rights and powers, and is subject to the same duties and liabilities, with respect to the money or property, as if the money had been collected, or the property had been levied upby him, by virtue of such an execution; except as otherwise 1 scribed in the next section. Co. Proc., § 297. |