CHAPTER XVII. Certain Special Proceedings Instituted Without Writ. TITLE 1.- Proceedings Relating to Insolvent Debtors and to Prisoners. TITLE II. Summary Proceedings to Recover the Possession of Real Property. TITLE III.- Proceedings to Punish a Contempt of Court, other than a Criminal Contempt. TITLE IV. Proceedings to Collect a Fine. TITLE V.- Proceedings to Discover the Death of a Tenant for Life. TITLE VI. Proceedings for the Appointment of a Committee of the Person and of the Property of a Lunatic, Idiot, or a Habitual Drunkard; General Powers and Duties of the Committee. TITLE VII.- Proceedings for the Disposition of the Real Property of an Infant, Lunatic, Idiot, or Habitual Drunkard. TITLE VIII.- Arbitrations. TITLE IX. Proceedings to Foreclose a Mortgage by Advertisement. TITLE XI. Proceedings for the Voluntary Dissolution of a Corporation. TITLE I. Proceedings relating to insolvent debtors and to prisoners. Article 1. Discharge of an insolvent from his debts. 2. Exemption from arrest, or discharge from imprisonment, of an insolvent debtor. 3. Discharge of an imprisoned judgment debtor from imprisonment. 4. Care of the property of a person confined for crime. ARTICLE FIRST. Discharge of an insolvent from his debts. Sec. 2149. Who may be discharged. 2150, To what court application to be made. 2151. Contents of petition. 2152. Consent of creditors to be annexed. 2153. Consent of executor, administrator, receiver, etc. 2154. Id.; of corporation, etc. 2155. Id.; of partnership. 2156. Effect of consent where petitioner is a joint debtor. 2157. Consent of purchaser of debt, ete. 2158. Consenting creditor must relinquish security. 2159. Penalty if creditor swears falsely. 2160. Affidavit of consenting creditor. 2161. When non-resident creditor to annex account, etc. 2162. Petitioner's schedule. 2163. His affidavit. 2164. Order to show cause. 2165. How order published and served. 2166. Hearing. 2167. Putting cause on calendar. 2168. Opposing creditor to file specifications, and may demand jury trial. Sec. 2169. Id.; to file proofs, if not named in schedule. 2170. Proceedings if jurors do not agree. 2171. When insolvent required to produce his non-resident wife. 2172. Examination of an insolvent. 2173. When insolvent cannot be discharged 2174. When assignment to be directed. 2175. Assignment; contents, and to whom made. 2176. Id.; trustees, how designated. 2177. Effect of assignment. 2178. When discharge to be granted. 2179, 2180. Proceedings where trustee refuses to give certificate, etc. 2181. Discharge, etc., to be recorded. 2182. Effect of discharge. 2183. Id.; exception as to foreign contracts or creditors. 2184. Id.; as to debts, etc., to the United States and the State. 2185. Insolvent to be released from imprisonment. 2186. Discharge; when void. 2187. Invalidity may be proved on motion to vacate order of arrest, etc. § 2149. Who may be discharged. An insolvent debtor, who is a resident of the State at the time of presenting his petition, may be discharged from his debts, as prescribed in this article. 2 R. S. 16, § 1 (2 Edm. 17), am'd. § 2150. [Am'd, 1895.] To what court application to be made. Application for such a discharge must be made, by the petition of the insolvent, addressed to the county court of the county in which he resides; or, if he resides in the city of New York, to the supreme court. See 3 R. S., 5th ed., 109, §§ 1 and 2 (2 Edm. 35); L. 1895, ch. 946. § 2151. Contents of petition. The petition must be in writing; it must be signed by the insolvent, and specify his residence; it must set forth, in substance, that he is unable to pay all his debts in full; that he is willing to assign his property for the benefit of all his creditors, and, in all other respects, to comply with the provisions of this article, for the purpose of being discharged from his debts; and it must pray that, upon his so doing, he may be discharged accordingly. It must be verified by the affidavit of the insolvent, annexed thereto, taken on the day of the presentation thereof, to the effect, that the petition is in all respects true, in matter of fact. § 2152. Consent of creditors to be annexed. The petitioner must annex to his petition one or more written instruments, executed by one or more of his creditors, residing in the United States, having debts owing to him or them in good faith, then due or thereafter to become due, which amount to not less than two-thirds of all the debts, owing by the petitioner to creditors residing within the United States. Each instrument must be to the effect, that the person or corporation, executing it, consents to the discharge of the petitioner from his debts, upon his complying with the provisions of this article. 2 R. S. 36, § 2 (2 Edm. 37). § 2153. Consent of executor, administrator, receiver, etc. An executor or administrator may become a consenting creditor, under the order of the surrogate's court from which his letters issued. A trustee, official assignee, or receiver of the property of a creditor of the petitioner, whether created by operation of law or by the act of parties, may become a consenting creditor, under the order of a justice of the supreme court. A person who becomes a consenting creditor, as prescribed in this section, is chargeable only for the sum which he actually receives, as a dividend of the insolvent's property. 2 R. S. 36, § 3, and L. 1850, ch. 210, § 1 (4 Edm. 482), am'd and consolidated. § 2154. Id.; of corporation, etc. Where a corporation or joint-stock association becomes a consenting creditor, its consent must be executed under its common seal, and may be attested by any director or other officer thereof, duly authorized for that purpose; who may make any affidavit, required of a creditor in the proceedings. Id., § 7 (2 Edm. 37), am'd. § 2155. Id.; of partnership. Where a partnership becomes a consenting creditor, the consent may be executed in its behalf, and any affidavit, required of a creditor in the proceedings, may be made, by either of the partners. Id., § 8, am'd. 2156. Effect of consent where petitioner is a joint debtor. A creditor's consent does not affect his remedy against any person or persons indebted jointly with the petitioner; and the petitioner's discharge has the effect, as between the creditor and the other joint debtors, of a composition between the petitioner and the creditor, made as prescribed in article third of title fifth of chapter fifteenth of this act. L. 1849, ch. 176 (4 Edm. 451), am'd. 1838, ch. 257, § 3. See §§ 1942 and 1944, ante; also, L. § 2157. Consent of purchaser of debt, etc. Where a consenting creditor is the purchaser or assignee of debt against the petitioner, or the executor, administrator, trustee, or receiver of such a purchaser or assignee, he is deemed, For all the purposes of this article, except as to the declaration and ceipt of dividends, a creditor only to the amount, actually and in good faith pail for the debt, by him, or by the decedent or other person; from whom he derives title, and remaining uncollected. This section is not affected by the recovery of a judg ment for the debt, after the purchase or assignment; but in that case, the consenting creditor may include the uncollected costs, as if they were part of the sum paid for the debt. 2 R. S. 36, § 10, am'd. 2158. Consenting creditor must relinquish security. A creditor who has, in his own name, or in trust for him, a mortgage, judgment, or other security, for the payment of a sum of money, which is a lien upon, or otherwise affects, real or personal property belonging to the petitioner, or transferred by him since the lien was created, cannot become a consenting creditor, with respect to the debt so secured, unless he adds to or includes in his consent, a written declaration, under his hand, to the effect, that he relinquishes the mortgage, judgment, or other security, so far as it affects that property, to the trustee to be appointed pursuant to the petition, for the benefit of all the creditors. Such à declaration operates, to that extent, as an assignment to the trustee, of the ortgage, judgment, or other security; and vests in him accordingly all the right and interest of the consenting creditor therein. 2 R. S. 36, § 11, am'd. § 2159 Penalty if creditor swears falsely. ( If a creditor knowingly swears, in any proceedings authorized by this article, that the petitioner i, will become, indebted to him, in a su of money which not really due, or thereafter to become due; or in more the the true amount; or that more was paid for a debt, which as purchased or assign 1, than the sum, actually and in good faith paid therefor; he forfeits to the trustee, to be recovered in an action, twice the sum, so falsely sworn to. Id., § 12, am'd. § 2160. Affidavit of consenting creditor. The consent of a creditor must be accompanied with his affidavit, stating as follows: 1. That the petitioner is justly indebted to him, or will become indebted to him, at a future day specified therein, in a sum therein specified; and, if he, or the person from whom he derives title, is or was the purchaser or assignee of the debt, he must also specify the sum, actually and in good faith paid for the debt, as prescribed in section 2157 of this act. 2. The nature of the demand, and whether it arose upon written security, or otherwise, with the general ground or consideration of the indebtedness. 3. That neither he, nor any person to his use, has received from the petitioner, or from any other person, payment of a demand, or any part thereof, in mon or in any other way, or any gift or reward of any kind, upon an express or implied trust, confidence, or understanding, that he should consent to the discharge of the petitioner. Where a consenting creditor is an executor, administrator, trustee, receiver, or assignee, he may state the necessary facts, in his affidavit, upon information and belief, setting forth therein the grounds of his belief; but in that case, the consent must also be accompanied with the affidavit of the insolvent, to the effect, that all the matters of fact stated in the affidavit of the consenting creditor are true. 2 R. S. 16, § 4 (2 Edm. 17), as modified by L. 1850, ch. 210, § 2 (2 Edm. 482), am'd. See § 2157, ante. § 2161. When non-resident creditor to annex account, etc A consenting creditor, residing without the State, and within the United States, must annex to his consent the original accounts, or sworn copies thereof, and the original specialties or other written securities, if any, upon which his demand arose or depends, provided, however, that when such original specialties, or other written securities, are lost, such fact must be stated as a reason for not annexing thereto the consent, and the fact of the loss, and the manner of the loss thereof must be stated in the affidavit of the creditor to the best of his knowledge, or must be otherwise proved by affidavit to the satisfaction of the court; and the court may thereupon, in such case or proceeding, by its order, dispense with the annexing to such consent of the original specialties or other written securities. Art. 7, § 9, R. S., am'd. § 2162. Petitioner's schedule. The petitioner must annex to his petition a schedule, containing: 1. A full and true statement of all his creditors. 2. A statement of the place of residence of each creditor, if it is known; or, if it is not known, a statement of that fact. 3. A statement of the sun which he owes to each creditor, and the nature of each debt or demand, whether arising on written security, on account or otherwise. 4. A statement of the true cause and consideration of his indebtedness to each creditor, and the place where the indebtedness accrued. 5. A statement of existing judgment, mortgage, or collateral or other security, for the payment of the debt. 6. A full and true inventory of all his property, in law or in equity, of the incumbrances existing thereon, and of all the books, vouchers and securities, relating thereto. Art. 3, § 5, R. S. § 2163. [Am'd, 1896.] His affidavit. An affidavit, in the following form, subscribed and taken by the petitioner before the county judge, or, in the city of New York, before the judge holding the term of the court, at which the order specified in the next section is made, must be annexed to the schedule: "I, do swear" (or " affirm ", as the case may be), "that the matters of fact, stated in the schedule hereto annexed, are, in all respects, just and true; that I have not, in contemplation of my becoming insolvent, or within two years before presenting the petition herein, disposed of or made over any part of my property, not exempt by express provision of law from levy and sale by virtue of an execution, for the future benefit of myself or my family, or disposed of or made over any part of my property, in order to defraud any of my creditors; that I have not, in any instance, created or acknowledged a debt for a greater sum than I honestly and truly owed; and that I have not paid, secured to be paid, or in any way compounded with, any of my creditors, with a view fraudulently to obtain the Drayer of my petition; that I have not done, suffered or been privy to any act, matter or thing which, if accomplished, would be ground for withholding my discharge under the provisions of this act, or invalidate such discharge if granted." Id., § 7, am'd. See § 2175, post. In effect May 1, 1896. L. 1896, ch. 278. 2164. Order to show cause. The petition and other papers, specified in the foregoing sections of this article, must be presented to the court, and filed with the clerk. The court must thereupon make an order, requiring all the creditors of the petitioner to show cause before it, at a time and place therein specified, why an assignment of the insolvent's property should not be made, and he be thereupon discharged from his debts, as prescribed in this article; and directing that the order be published and served, as prescribed in the next section. Id., 8, and part of 8 10, am'd. |