d. Motion papers should be entitled in all the causes containing the judgments which are the subjects of the applications. Alcott v. Davison, 2 How. 44.

e. Appeal pending.-Judgments cannot be set off, if one of them has been appealed from, and the appeal is still pending. De Figaniere v. Young, 2 Rob. 670.

f. The question of costs.-Although, on motions to set off judgments, courts can protect their officers by refusing to set them off, yet it is fully settled that the statute respecting set-off overrides the lien of an attorney. De Figaniere v. Young, 2 Rob. 670; Purchase v. Bellows, 16 Abb. 105; Martin v. Kanouse, 17 How. 146; S. C. 9 Abb. 370 (n.); Hayden v. McDermott, id. 14; Nicoll v. Nicoll, 16 Wend. 446. The rule, from these cases, seems to be, that if an action is brought, the statute must govern and the judgments will be set off, but on a motion, the matter being discretionary, the court will, if it sees fit, refuse to allow the set-off, and preserve the attorney's lien. See, especially, Martin v. Kanouse, 17 How. 146; S. C. 9 Abb. 370 (n.), and cases cited therein; also, Ely v. Cook, 9 Abb. 366; S. C. 2 Hilt. 406; 28 N. Y. (1 Tiff.), 365. See notes under § 303, post; see subd. h. In case of a recovery by one party, when costs are awarded to the other, the court will, in a proper case, set off the one against the other. Spence v. White, 1 Johns. Cas. 102; § 370, post.

g. Judgment discharged. The court refused to set off a judgment which had been discharged of record, although it was claimed that the judgment was canceled, only for a particular purpose, and has not in reality been paid. Smith v. Briggs, 9 Barb. 252.

h. Assignment.-Since the right to set off judgments does not accrue until judgment has been perfected, the bona fide assignment, previous to the entry of judgment, will cut

off the right to have such judgment set off, as against the party in whose favor it was recovered. Roberts v. Carter, 38 N. Y. (11 Tiff.), 107; S. C. 6 Trans. App. 253; 35 How. 642; Rev'g S. C. 24 id. 44; 9 Abb. 366 (n.); Mackey v. Mackey, 43 Barb. 58; Nash v. Hamilton, 3 Abb. 35. But see Pignolet v. Geer, 19 Abb. 264; S. C. 1 Rob. 626.

An assignment by a party to his attorney, of the verdict and judgment to be entered upon it, as compensation for his services, etc., was held to be valid, and that it defeated the right to set-off. Mackey v. Mackey, 43 Barb. 58; Nash v. Hamilton, 3 Abb. 35. But see Brooks v. Hanford, 15 Abb. 342; Noxon v. Gregory, 5 How. 339; Crocker v. Claughly, 2 Duer, 684. And see Roberts v. Carter, 17 How. 341. In this case, such an assignment had been made to the attorney, which was finally sustained, the court of appeals refusing to allow the set-off. See that case cited, supra. See, also, Ely v. Cook, 9 Abb. 366; S. Č. 2 Hilt, 406; 28 N. Y. (1 Tiff.), 365. In Barker v. Spencer, 11 Paige, 517, the court says, that an equitable set-off will be allowed where the right to such set-off existed in equity previous to the transfer of the demand of the defendant (in the application against the complainant to a third person). Thus, the complainant had purchased and paid for a judgment against his creditors (but had not taken an assignment) before they assigned to a third party their demand against him, and the court allowed the set-off. Barker v. Spencer, 11 Paige, 517; Ainslie v. Boynton, 2 Barb. 258; Spencer v. Barber, 5 Hill, 568; Graves v. Woodbury, 4 id. 559; Chamberlain v. Day, 3 Cow. 353. And see, also, Betts v. Garr, 26 N. Y. (12 Smith), 383; Rev'g S. C. 1 Hilt. 411; Butler v. Niles, 35 How. 329; S. C. 7 Rob. 336.

i. Satisfaction of judgment.-In case a judgment is set off, the court will order it discharged of record. Schroeppel v. Jewell, 1 Cow. 208.

XX. DISCHARGING RECORD OF JUDGMENT. a. Satisfaction acknowledged.-The docket of a judgment may be canceled by the clerk, upon filing with him an acknowledgment of satisfaction, signed by the party in whose favor such judgment was obtained, or by his executors, etc. When payment of any judgment has been made, satisfaction thereof shall be acknowledged upon payment of the fees by the defendant. 2 R. S. 362.

c. Satisfaction entered.-Merely filing the satisfaction piece is not per se sufficient to discharge the judgment. It must be actually entered by the clerk. Beers v. Hendrickson, 6 Rob. 53; Lownds v. Remsen, 7 Wend. 35.

b. Acknowledgment by attorney.The satisfaction piece may be executed with like effect by the attorney on record of the party in whose favor the judgment was obtained; but such satisfaction must be made within two years after filing the record of such judgment. 2 R. S. 362, § 24. And then only upon payment of the full amount thereof. Beers v. Hendrickson, 6 Rob. 53; Lewis v. Woodruff, 15 How. 539; Steward v. Biddlecum, 2 N. Y. (2 Comst.), 103; Benedict v. Smith, 10 Paige, 127.

d. Execution satisfied.-Where an execution issued upon any judgment shall be returned satisfied, in whole or in part, such judgment shall be deemed satisfied to the extent of the amount so returned as having been collected on such execution, unless such return shall be vacated by the court; and upon any execution being so returned, the clerk of the court shall enter in the docket of such judgment the fact that the amount stated in the return has been collected. 2 R. S. 362, § 26.

Upon the payment to the sheriff of any county, the amount due on the execution in his hands, issued on a judgment obtained in any other county, such sheriff shall deliver to

CHAPTER II.

Proceedings supplementary to the execution.

SECTION 292. When execution returned unsatisfied, order for discovery of property allowed; also when judgment debtor refuses to apply property to satisfy judgment; manner of proceeding to examine judgment debtor.

293. Any debtor may pay execution against his creditor.

294. Examination of debtors of judgment debtor, or of those having property belonging to him.

295. Witness required to testify.

296. Compelling party or witnesses to attend; examination, when to be on oath.

297. Judge may order property to be applied on execution.

298. Judge may appoint receiver, and prohibit transfer, etc., of property.

299. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor.

300. Reference by judge.

301. Costs of proceedings

302. Disobedience of order, how punished.

§ 292. [247.] (Am'd 1849, 1851, 1858, 1859, 1863, 1867.) When execution returned unsatisfied, order for discovery of property allowed; also when judgment debtor refuses to apply property to satisfy judgment; manner of proceeding to examine judgment debtor.

When an execution against property of the judgment debtor, or any one of several debtors in the same judgment, issued to the sheriff of the county where he resides or has a place of business, or, if he do not reside in the State, to the sheriff of the county where a judgment roll, or a transcript of a justice's judgment for twenty-five dollars or upward, exclusive of costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property before such judge, at a time and place specified in the order, within the county to which the execution was issued. But, in case of an order made by a justice of the supreme court, all subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides, to be specified in the order. After the issuing of an execution against property, and upon proof, by affidavit of a party, or otherwise, to the satisfaction of the court, or a judge thereof, or county judge, or any judge of the court of common pleas for the city and county of New York, that any judgment debtor, residing in the county where such judge or officer resides, has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Whenever it shall satisfactorily appear, by affidavit, to a justice of the supreme court, that such county

judge, or judge of said court of common pleas, is incapacitated from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such justice of the supreme court shall have the same powers and authority, in all cases whatever, as are herein conferred upon him as to cases of judgments in the supreme court. On an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. Instead of the order requiring the attendance of the judgment debtor, the the judge may, upon proof, by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and if it then appears that there is danger of the debtor's leaving the State, and that he has property which he has unjustly refused to apply to such judg ment, ordered to enter into an undertaking with one or more sureties, that he will from time to time attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property, not exempt from execution. In default of entering into such undertaking, he may be committed to prison by warrant of the judge as for a contempt. No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. Nor shall he be excused from answering any ques tion on the ground that he has, before the examination, executed any conveyance, assignment or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution,

I. SUPPLEMENTARY PROCEEDINGS.

a. Substitute for creditors' bill.— Proceedings supplementary to execution were intended as a substitute for creditors' bills, and must be regarded as in the nature of those suits in equity; the judgment creditor, in both instances, must have exhausted his remedy at law, in order to entitle him to equitable relief, and so in both cases the ultimate decision of the court or judge must be considered res judicata, upon the facts. Carter v. Clarke, 7 Rob. 43; Sale v. Lawson, 4 Sandf. 718. See People ex rel. Fitch v. Mead, 29 How. 360. In such a sense it is a new suit, and if commenced before the expiration of twenty years, will stop the operation of the statute, presuming payment. Driggs v. Williams, 15 Abb. 477; Griffin v. Dominguez, 2 Duer, 656; S. C. 11 N. Y. Leg. Obs. 285. The settled rules for proceeding under a creditor's bill may be considered as controlling when not altered by the Code or the practice under it. Orr's Case, 2 Abb. 457; Lilliendahl v, Fellerman, 11 How. 528; S. C. 2 Abb. 155,

sub nom. Fellerman's Case; Davis v. Turner, 4 How. 190, and cases, supra.

b. Not special proceedings.-It seems now to be settled that these are to be regarded as proceedings in the action, and not special proceedings. Seeley v. Black, 35 How. 369; Bank of Genesee v. Spencer, 15 How. 412; Dresser v. Van Pelt, id. 19; S. C. 6 Duer, 687. And see Holstein v. Rice, 15 Abb. 307, and notes; S. C, 24 How. 135. See, ante, 18, sub. II.

c. Object of provisions-DANIELS, J., in Forbes v. Willard, 54 Barb. 520; S. C. 37 How. 193, says: "The provisions of the Code were intended to give the creditor complete authority for a full and searching examination of the judgment debtor, for the purpose of ascertaining particularly the amount and condition, as well as the disposition the debtor had made, or attempted to make of his property." d. Jurisdiction generally.-A mere voluntary appearance does not confer jurisdic

tion. Sackett v. Newton, 10 How. 561. It is only acquired by an affidavit containing the proper allegations. id. Until the judge makes a final order in the matter, his jurisdiction continues. Webber v. Hobbie, 13 How. 382.

e. How jurisdiction lost.-Jurisdiction will be lost by a failure to continue the proceedings by regular adjournments. Carter v. Clarke, 7 Rob. 490, 497; Squire v. Young, 1 Bosw. 690. Unless the debtor appear without objection. Hawes v. Barr, 7 Rob. 452. It does not deprive a county judge of jurisdiction in the proceedings, where he appoints a receiver of the effects of the debtor. People ex rel. Fitch v. Mead, 29 How. 360.

f. In case of bankrupt.-Proceedings supplementary to execution were stayed on the ground that the defendant had been discharged in bankruptcy, although the debt was not proved and the defendant did not apply for a stay previous to judgment. World Co. v. Brooks, 7 Abb. N. S. 212.

g. In case of insolvent.-Proceedings supplementary to the execution, founded upon a judgment obtained prior to the discharge of the defendant from his debts under the twothird act, will be vacated upon application, although the plaintiff produces affidavits to show that the discharge is invalid. Smith v. Paul, 20 How. 97.

But where the plaintiff, during the pendency of the action, petitioned for his discharge as an insolvent debtor, and afterwards suffered a default to be taken in the action, and a judgment for costs was rendered against him before his final discharge as an insolvent, held, that the plaintiff was not discharged from the judg

ment by the insolvent discharge. Gardner v. Lay, 2 Daly, 113. As a general rule, the courts will not try the validity of an insolv ent's discharge by affidavits on motion, but will put the party to an action upon the judgment to determine the question. id. Smith v. Paul, 20 How. 97; Stuart v. Salhinger, 14 Abb. 291; Rich v. Salinger, 11 id. 344; Dresser v. Shufeldt, 7 How. 85. But where the only question is, whether a discharge, admitting it to be valid, operates to discharge a particular judgment, and there is no question as to the facts, the question can be disposed of upon motion. Gardner v. Lay, 2 Daly, 113.

h. Corporations. -These proceedings cannot be taken against corporations who are debtors. Sherwood v. Buffalo and New York City Railroad Co. 12 How. 136; Hinds v. Canandaigua and Niagara Falls Railroad Co. 10 id. 487; Hammond v. Hudson River Iron and Machine Co. 11 id. 29; S. C. 20 Barb. 378; approved Carter v. Clarke, 7 Rob. 490.

In case of judgment against a corporation, and execution returned unsatisfied, the judgment debtor may, by petition to the supreme court, have the property of such corporation sequestered and a receiver thereof appointed. 2 R. S. 463, § 36. This is a summary remedy and is not affected by the Code. Corning v. Mohawk Valley Insurance Co. 11 How. 190. The receiver in such case acts for all the creditors. Angell v. Silsbury, 19 How. 48. As to proceedings by the receiver, see Noble v. Halliday, 1 N. Y. (1 Comst.), 330; Rev'g S. C. 1 Barb. 137, sub nom. Halliday v. Noble.

II. IN WHAT CASES PROCEEDINGS MAY BE HAD. a. Second execution.-After an execution has been returned unsatisfied, these proceedings may be had, notwithstanding the fact that another exécution has been issued upon which a levy has actually been made. Farqueharson v. Kimball, 18 How. 33; S. C. 9 Abb. 385 (n.); Fellerman's Case, 2 id. 155; S. C. 11 How. 528, sub nom. Lilliendahl v.

satisfaction of his judgment. Emery v. Emery, 9 How 130; Jones v. Lawlin, 1 Sandf. 722; S. C. 1 Code R. 94. In the latter case, judgment was entered before the Code took effect. See § 294, post.

Fellerman; citing Sale v. Lawson, 4 Sandf. 718. Unless it is clear such levy will satisfy the execution. Ib.

b. Attachment.-The proceedings may continue, although pending them the plaintiff has issued an attachment against the defendant as a non-resident debtor. Hanson v. Tripler, 1 Code R. N. S. 154; S. C. 3 Sandf. 733.

c. Joint debtors.-Where judgment has been obtained against joint debtors, by a service of process upon only one, according to the provisions of § 136 of the Code, supplementary proceedings may be taken to enforce such judgment against those not served; and in the decision of that case, HARRIS, J., said: I know of no case, where an execution has been properly issued and returned unsatisfied, in which the creditor may not proceed under the 292d section of the Code, to obtain

d. Execution issued before Code.Where judgment was recovered and the execution issued before the Code took effect, the proceedings were sustained. Dickerson v. Cook, 16 Barb 509.

e. In causes transferred to supreme court, from the court of common pleas, under the constitution of 1846, the execution may be issued, supplementary proceedings had, and a receiver appointed in the supreme court; so held, although judgment was perfected in the common pleas before that provision of the constitution went into effect. Wegman v. Childs, 41 N. Y. (2 Hand), 159; Rev'g S. C. 44 Barb. 403.

f. Justice's judgment.-Before this section was amended to that effect, the court held, that by implication this section allowed proceedings to be had on a justice's judgment. Conway v. Hitchins, 9 Barb. 378.

The judgment now must be for $25 or upwards. Butts v. Dickinson, 20 How. 230; S. C. 12 Abb. 60; Vulte v. Whitehead, 2 Hilt.