VIII. DISCONTINUANCE.

§ 293. [248.] (Am'd 1849.) Any debtor may pay execution against his

After the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid.

a. The payment.-There is no compulsory provision in this section, and, consequently, a party paying his debt to the sheriff, does so at his own risk as to an action by the creditor. Calkins v. Packer, 21 Barb. 275, 283. And a voluntary payment, such as this section provides for, by a judgment debtor, of an execution against him to the sheriff, to be applied on other judgments against his creditor, will not prejudice prior bona fide assignees of the judgment. Richardson v. Ainsworth, 20 How. 521; Lyman v. Cartwright, 3 E. D. Smith, 117; Robinson v. Weeks, 6 How. 161; S. C. 1 Code R. N. S. 311.

b. Assignment.—If, after the judgment is rendered, the judgment creditor makes an assignment of his judgment, in good faith, he has no further claim against the judgment debtor as such; and a payment of the amount of the execution in the hands of the sheriff, in satisfaction of judgments against the original judgment creditor, is no bar to an execution issued by the assignee of the judgment, and such an execution will not be set aside. Richardson v. Ainsworth, 20 How. 521; Countryman v. Boyer, 3 id. 386; S. C. 2 Code R. 4. Notice of such assignment is not necessary. Ib.

c. Tort.-If the action be one founded on tort, and the defendant, after verdict, but before judgment, pays the amount of such verdict | to the sheriff on an execution in his hands against the plaintiff, and, afterward, judgment is perfected and assigned to the plaintiff's attorneys, an execution issued by the assignees will be effectual against the judgment debtor, and the previous payment will be no defense. Davenport v. Ludlow, 3 Code R. 66. The indebtedness, in such an action, does not arise until judgment is consummated. id. Mallory v. Norton, 21 Barb. 424. But after the recovery of the judgment in an action for tort, any person indebted to the judgment debtor may pay the amount to the sheriff. id. Still, however, running the risk of an assignment. Robinson v. Weeks, 6 Ilow. 161; S. C. 1 Code R. N. S. 311.

d. Payment by sheriff.-When an execution in favor of a party is paid into the hands of the sheriff, he has no right to apply such amount in payment of a judgment and execution, also in his hands, against such party; and such application of funds would

be of no avail against the previous assignees of the judgment. Baker v. Kenworthy, 41 N. Y. (2 Hand), 215. Without regard to the matter of assignment, the sheriff who has collected money on an execution is not to be regarded a "debtor" in the sense of the term here used, and cannot pay the amount he thus holds for an individual on an execution levied under a judgment against him; the permissive nature of this section does not comprehend the case of the sheriff. Ib.

e. Defense.-As the payment permitted by this section is not a payment to the creditor himself, nor a payment by his direction or consent, but only a payment to his use or in his stead, it can only be made available against the creditor as a defense in an action on the debt in the way of counterclaim, as money paid to his use. Calkins v. Packer, 21 Barb. 275; Handly v. Greene, 15 id. 601. The payment should be set up specifically in the answer. Calkins v. Packer, supra. And the party interposing the defense of payment under this section must not only produce the sheriff's receipt, but he must prove the judgment by the production of the record, or a certified copy thereof. Handly v. Greene, 15 Barb. 601. A certified copy of a transcript of a judgment filed in a county different from that where the judgment is docketed, will not be sufficient. Ib.

f. Involuntary payment.-Where the payment is made under orders pursuant to

294, the proceedings resulting in such payment having been instituted and carried through, after a summons is issued in an action for the debt, the defense of such payment can only be pleaded on special application to the court. Waldheim v. Bender, 36 How. 181.

g. Voluntary payment.-That an order was issued and served on a judgment debtor under § 294, but by consent of the parties was withdrawn, is no excuse for such debtor voluntarily paying the judgment to the sheriff, to be applied on another judgment against his creditor; the payment under such circumstances is a payment under § 293, and is no bar to an execution issued by the assignees of the judgment where the assignment was given previous to the payment. Richardson v. | Ainsworth, 20 How. 521. See next section, notes.

§ 294. [249.] (Am'd 1849, 1863.) Examination of debtors of judgment debtor, or of those having property belonging to him.

After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon an affidavit that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, the judge may, by an order, require such person or corporation or any officer or member thereof, to appear at a specified time and place, and answer concerning the same. The judge may also, in his discretion, require

notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.

The proceedings mentioned in this section, and in section 292, may be taken upon the return of an execution unsatisfied, issued upon a judgment recovered in an action against joint debtors, in which some of the defendants have not been served with the summons by which said action was commenced, so far as relates to the joint property of such debtors; and all actions by creditors, to obtain satisfaction of judgments out of the property of joint debtors, are maintainable in the like manner and to the like effect. These provisions shall apply to all proceedings and actions now pending, and not actually terminated by any final judgment or decree.

belonging to the judgment debtor in his possession, it is not necessary that the execution should issue to the county where the debtor in-resides (as would be the case if the judgment debtor himself were to be examined); it is only requisite to issue the execution to the county where the property is most likely to be found, and where the person resides who is alleged to have it in possession. People v. Norton, 4 Sandf. 640. And where the execution was issued to the county of Queens, where the judgment debtor resided, but was returned unsatisfied, an order was issued by a judge of New York county and city, compelling a debtor to the judgment debtor residing in New York, to appear and be examined in reference to property of the judgment debtor in his custody, or debts owing by him, and directing him to apply such property, or make payment of such debts, upon the judgment. Foster v. Prince, 8 Abb. 407; S. C. 18 How. 258. Nor is it necessary that the execution should be returned before making the order for the examination under this section. Gibson v. Haggerty, 37 N. Y. (10 Tiff.), 555, 558; S. C. 5 Trans. App. 143, sub nom. Gibson v. Haggarty; Seeley v. Garrison, 10 Abb. 460; People v. Norton, supra.

a. This section independent of § 292.-It has been a subject of various and contradictory adjudication, whether the proceedings provided in this section could be stituted independently of the proceedings mentioned in section 294, and whether the one was not auxiliary to the other; but while all cases agree that they may co-operate and assist each other, the court of appeals have decided that the proceedings allowed for the benefit of the judgment creditor, by this section, may be also instituted alone and independent of § 292. Gibson v. Haggerty, 37 N. Y. (10 Tiff.), 555; S. C. 5 Trans. App. 143, sub nom. Gibson v. Haggarty; Aff'g S. C. 15 Abb. 406; S. C. 23 How. 260. And see, in accordance with this doctrine, also, De Comeau v. People, 7 Rob. 498; Holmes v. Jordan, 15 Abb. 410 (n.); Parker v. Hunt, id.; Seeley v. Garrison, 10 id. 460, 463; Foster v. Prince, 8 id. 407; S. C. 18 How. 258. The following cases have held that the proceedings authorized by the two sections cannot be had independently of each other. Lord v. Ford, 15 Abb. 409 (n.); Sherwood v. Buffalo and New York City Railroad Co. 12 How. 136; Hinds v. Canandaigua and Niagara Falls Railroad Co. 10 id. 487, 489. b. Notice. It is discretionary with the judge whether notice of the proceedings shall be given to the judgment debtor or not. Gibson v. Haggerty, 37 N. Y. (10 Tiff.), 555; S. C. 5 Trans. App. 143, sub nom. Gibson v. Haggarty; Aff'g S. C. 23 How. 260; 15 Abb. 406; De Comeau v. People, 7 Rob. 498; Lynch v. Johnson, 46 Barb. 56; Ward v. Beebe, 17 Abb. 1; S. C. 15 id. 373; Seeley v. Garrison, 10 id. 460; Foster v. Prince, 8 id. 407; S. C. 18 How. 258; Sherwood v. Buffalo and New York City Railroad Co. 12 How. 138. And the proceedings may be instituted, conducted and completed without the knowledge of the judgment debtor. id. And the judgment debtor not being summoned or informed of the proceedings by notice, is no party to them, and is not even entitled to appear therein by counsel of his own motion. De Comeau v. People, 7 Rob. 498; Corning v. Tooker, 5 How. 16.

c. Execution.-To warrant the examination of a person understood to have property

d. Jurisdictional.-It is regarded so indispensable that jurisdiction be acquired in a proper way, that a voluntary appearance of the party sought to be examined, and his equally voluntary submission to the examination, does not confer such jurisdistion. De Comeau v People, 7 Rob. 498, 501; Sackett v. Newton, 10 How. 561. But having been once acquired, such jurisdiction continues until the termination of the proceedings. De Comeau v. People, 7 Rob 498, 501; Webber v. Hobbie, 13 How. 382. The powers conferred by this section are exercised by the judges not as a court, but as judicial officers. Ib.

e. Who may be examined. — The judgment creditor may examine any person in regard to the transfer and disposition of property under proceedings supplementary to execution. Clapp v. Lathrop, 23 How. 423; S. C. Aff'd in 40 N. Y. (1 Hand), 328, sub nom. Lathrop v. Clapp. And this is the rule whether the judgment be against a corporation or an individual. Any person holding

to the indebtedness, and not to the value of the property. Brett v. Browne, 1 Abb. N S. 155. And the affidavit need not state the

that an examination may be had where the value of the property is less than $10. Ib.

h. Effect of an order to stay proceedings.-Although the judgment creditor has been prohibited from taking further proceedings under the execution, this does not prevent him from instituting proceedings to examine a debtor of the judgment debtor in accordance with the provisions of this section. Lowber v. Mayor, etc. of New York, 5 Abb. 268; S. C. 7 id. 248.

property belonging to the defendant (judged $10, held, that the limitation only applied ment debtor) may be examined with reference to it. Gibson v. Haggerty, 37 N. Y. (10 Tiff.), 555; opinion of BACON, J. 559; S. C. 5 Trans. App. 143, sub nom. Gibson v. Hag-value of the property. id. It seems, therefore, garty; McBride v. Farmers' Branch Bank, 7 Abb. 347; S. C. 28 Barb. 476, sub nom. McBride v. Farmers' Bank of Salem; Lowber v. Mayor, etc. of New York, 7 Abb. 248; S. C. 5 id. 268; Courtois v. Harrison, 3 id. 96; S. C. 12 How. 359; 1 Hilt. 110. But see, apparently to the contrary, Sherwood v. Buffalo and New York City Railroad Co. 12 How. 136. Any person having funds of a municipal corporation, as, for instance, a debtor, or even an officer of the municipality, may be examined by a judgment and execution creditor of such corporation. Lowber v. Mayor, etc. of New York, supra. And funds in the hands of a trust company or bank here, may be inquired into and reached by an order in supplementary proceedings after judgment against a foreign corporation owing such funds. McBride v. Farmers' Branch Bank, 7 Abb. 347; S. C. 28 Barb. 476, sub nom. McBride v. Farmers' Bank of Salem. And so the president of a joint-stock association may be examined with reference to the property of the association in his hands after judgment in an action against such association in the name of such president. Curtois v. Harrison, 3 Abb. 96; S. C. 12 How. 359, sub nom. Courtois v. Harrison, 1 Hilt. 110. Or if he is indebted to

the association in the sum of more than $10.

Ib.

f. Clerk or chamberlain.-In Anonymous, 1 Code R. N. S. 211, it is said that a clerk or chamberlain is an officer of the court, and not a "person" or "corporation," subject to examination under this section in regard to funds in his hands. So held, where, in an action of foreclosure, there were surplus moneys in the hands of the clerk or chamberlain, which were sought to be obtained under a judgment against one of the parties entitled to such surplus. Ib.

g. Affidavit.-For form of affidavit and order instituting supplementary proceedings under this section, Seeley v. Garrison, 10 Abb. 460, 461, is recommended. Where the affidavit, after reciting the judgment and the issuing of the execution thereon, stated that a person has property of the judgment debtor, and is indebted to him in amount exceeding ten dollars," the order was granted thereon. id. But where the language of the closing part of the affidavit was, has property of the judgment debtor, or is indebted to him," held insufficient. Lee v. Heirberger, 1 Code R. 38. The language must be positive, either that the person "has property of the judgment debtor," or "that he is indebted to him," or that he "has property and is indebted to him." EDMONDS, J., in id. Where the affidavit stated only that the person "has property of the judgment debtor," and an objection was raised that it ought to have stated that the value of such property exceed

i. Nature and extent of the in

quiry. In regard to the extent of the ex-
amination in proceedings supplementary to
execution, where the indebtedness is disputed
or the title to the property is claimed to be
in the person so examined, there has been
which hold that where the indebtedness is
some diversity of adjudication. The cases
disputed, the judge has no right to go on and
examine witnesses and settle the question of
indebtedness, are these: Catlin v. Doughty,
12 How. 457; Sherwood v. Buffalo and Neu
York City Railroad Co. id. 139; People ex
S. C. 5 How. 446.
rel. Williams v. Hulbert, 1 Code R. N. S. 75;
And the examination

must stop and the party be remanded to an
Bank v. Trapp, 21 How. 17, it was held, that
action by a receiver. id. In Tompkins County
a denial on oath, by the party examined, that
he was indebted to the judgment debtor, and
held property belonging to him, determined
the examination. And as to the question of
title. Town v. Safeguard Insurance Co. of
New York, 4 Bosw. 683, and Van Wyck v.
Bradly, 3 Code R. 157, hold that when the
title is disputed, the party cannot be examined
as to how he acquired the property, and the
nature of his claim. But in the case of
Clapp v. Lathrop, 23 How. 424, affirmed and
approved, as to this point, in the court of
appeals, it was held, that a party examined in
supplementary proceedings, in regard to prop-
erty, and who sets up title thereto, can be
examined as to the bona fides of the transfer,
and the consideration and all matters pertain
ing to the acquirement of title; S. C. 40 N
Y. (1 Hand), 328, 334, sub nom. Lathrop v
Clapp; Sandford v. Carr, 2 Abb. 462. See,
further, § 297 (n.)

j. Injunction.-The party against whom the order of examination is directed, may also be enjoined from disposing of any property he may have belonging to the judgment debtor, or from paying the debt due. De Comeau v. People, 7 Rob. 498, 502; Seeley v. Garrison, 10 Abb. 460. Where such an injunction was issued to the debtor (a bank) of the judgment debtor, but was vacated by the order of the officer who granted it under deceitful representations by the judgment debtor, held, that although the parties to such a deceitful proceeding might be

§ 295. [250.] Witness required to testify.

Witnesses may be required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue.

a. Fullness of the examination.-A | the attendance of witnesses; it should be witness examined under this section may be compelled to testify fully in regard to what he knows of the matter, and this is the case, even when he puts in a claim to the property. Tompkins County Bank v. Trapp, 21 How. 17, and notes to §§ 292 and 293. The same doctrine is substantially declared in Lathrop v. Clapp, 40 N. Y. (1 Hand), 328; Aff'g 23 How. 423, sub nom. Clapp v. Lathrop.

§ 296. [251.] (Am'd 1849.) Compelling party or witness to attend; examination, when to be on oath.

The party or witness may be required to attend before the judge or before a referee appointed by the court or judge; if before a referee, the examination shall be taken by the referee, and certified to the judge. All examinations and answers before a judge or referee, under this chapter, shall be on oath, except that when a corporation answers, the answer shall be on the oath of an officer thereof.