to notice of application for a receiver, but not to service of a copy of the examination on which it is founded (Todd v. Crook, 4 Sand. 694). The proceeding, in theory, follows directly on the close of the debtor's examination, he being present, and no notice being necessary. Where other creditors are proceeding, they must have notice; and so must the debtor, when his examination has been taken before a referee (id.) The notice need not be a notice of eight days; a less notice is sufficient (Leggett v. Sloan, 24 How. 479). a. It is no answer to an application for the appointment of a receiver, that the examination has not shown the debtor to be the owner of any property (Myers' Case, 2 Abb. 476). Nor, that the debtor has property which he is willing to have sold under execution (Bailey v. Lane, 15 Abb. 373, note; Heroy v. Gibson, 10 Bosw. 591; see Webb v. Overmann, 6 Abb. 92; Todd v. Crooke, 4 Sand. 695; Corning v. Tooker, 5 How. 16; and see in note to § 297). The receiver's appointment is not complete until his bond is filed (Voorhies v. Seymour, 26 Barb. 570; Conger v. Sands, 19 How. 8). Where he has given ample security on his first appointment, he need not give further security on being appointed, pending his first appointment, receiver of the same estate in another action (Banks v. Potter, 21 How. 469). An order for appointing a receiver, founded on the voluntary appearance and examination of the judgment debtor, is valid (Bingham v. Disbrow, 14 Abb. 251); see in note to § 244. b. Vesting of property in receiver—his powers and duties. -The receiver is not vested with the property until a certified copy of the order has been delivered to him, and the order has been filed and recorded. The property vested is only such as the debtor owned at the time of the granting the order for his examination (Campbell v. Genet, 2 Hilton, 290; Graff v. Bonnett, 25 How. 470). The judge cannot require any assignment, but can only appoint the receiver, and leave him to sue under the title derived from his office merely (Ten Broeck v. Sloo, 2 Abb. 236; 13 How. 31; see The People v. Hulbert, 5 How. 446; Hulsaver v. Wiles, 11 How. 446; see 2 Abb. 477). The receiver is not trustee alone for the parties at whose instance he was appointed, but for all the creditors of the judgment debtor (Bostwick v. Beizer, 10 Abb. 197). He does not stand merely in the place of the debtor, but represents the creditors (Seymour v. Wilson, 15 How 355). He is to administer the property vested in him, under the direction of the court, for the benefit of all the creditors, first discharging those debts which have acquired an equitable priority (Bostwick v. Beizer, 10 Abb. 197); he may maintain an action to set aside an assignment of real and personal property made by the debtor in fraud of his creditors (Seymour v. Wilson, 15 How. 355; Bostwick v. Beizer, 10 Abb. 197), and, where he succeeds in setting aside an assignment made for the benefit of creditors, he may sell such assigned property, under the direction of the court, and apply the proceeds in satisfaction of the debts of the fraudulent assignor (Porter v. Williams, 9 N. Y. 142, and see Chautauque Co. B'k v. White, 6 N. Y. 237; Bostwick v. Mench, 40 N. Y. 383). He may maintain an action against the judgment debtor, of whose property, he is receiver, for a conversion thereof, where the debtor has converted the same after the title of the receiver accrued (Gardner v. Smith, 29 Barb. 68). c. Where a receiver demands the delivery to him of personal property, as being the property of the judgment debtor, if the demand is sufficient in other respects, the objection cannot be taken at the trial, that he did not exhibit, at the time of such demand, the evidence of his appointment as receiver, if the refusal to deliver was not placed on that ground (Livingston v. Stassel, 3 Bosw. 19). d. A receiver is entitled to recover from a creditor, by judgment recovered subsequent to that in which such proceedings were had, but prior to his appointment, the value of property afterwards levied upon by by such creditor's direction, under such subsequent judgment, and sold (Fessenden v. Woods, 3 Bosw. 550). e. A receiver cannot maintain an action to subject the surplus of a trust fund, created by a person other than the debtor, to the payment of the judgment (Campbell v. Foster, 35 N. Y. 361). a. A debtor cannot be punished as for a contempt, in refusing to deliver property to a receiver, until an order for such delivery has been made and disobeyed (Watson v. Fitzsimmons, 5 Duer, 629). b. Receiver subject to the control of the court.-The receiver is subject to the order of the judge. He may be required to account for the property which may come to his hands; and the jurisdiction of the judge must necessarily continue until the judgment creditor is paid, or all the funds or property in the hands of the receiver are applied on the judgment, or are exhausted (Webber v. Hobbie, 13 How. 384). c. Where a receiver having, without specific direction by the referee, taken goods apparently in the debtor's possession, but which were claimed by one not a party to the suit, he was ordered to restore them, on the claimant's undertaking to hold them subject to the order of the court, and a reference as to the title was directed (Dickerson v. Van Tine, 1 Sand. 724). d. The court will not enjoin a receiver, by injunction in a separate action, from taking possession of the execution debtor's property (Van Rensselaer v. Emery, 9 How. 136). A receiver had the supposed value of $60,000 of property in his power, and the amount which was likely to be required to satisfy the demand in suit was only about $1,000: the court restrained him from making sale by auction of the whole property in his hands (Wardell v. Leavenworth, 3 Edw. Ch. R. 244). No order will be made on the motion of a receiver to sell the estate of the debtor, consisting of his interest as cestui que trust under a will (Scott v. Nevius, 6 Duer, 672). e. Order forbidding transfer of property.-The forbidding a transfer of the defendant's property under this section, is a different proceeding from an injunction granted in an action as a provisional remedy. There should, no doubt, be some reason appearing in the affidavit, before the judge should forbid a transfer or other disposition of the property of a judgment debtor (Green v. Bullard, 8 How. 316). Semble, that after service of an order forbidding a judgment debtor to interfere with his property, it would be a contempt for him to collect money previously earned, and apply it to debts for family supplies (Taggard v. Talcott, 2 Edw. Ch. R. 628). To put a judgment debtor in contempt for interfering with his property, it must be affirmatively shown that the property in question was acquired prior to the granting of the order (Potter v. Low, 16 How. 549). The debtor proceeding to judgment, in a suit pending at the time of service of an order restraining interference with his property, is not a violation of such order (Parker v. Wakeman, 10 Paige, 485); nor is confessing a judgment (McCredie v. Senior, 4 Paige, 378; see, however, Lansing v. Easton, 7 Paige, 364; Ross v. Claussman, 3 Sand. 676). Nor is merely carrying into effect, by procuring novation, a previous assignment of a right of action (Richardson v. Rust, 9 Paige, 243; see Ireland v. Smith, 3 How. 244; 1 Barb. 419). $299. (Am'd 1849.) Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor. If it appear that a person, or corporation, alleged to have property of a judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, such interest or debt shall be recoverable only in an action against such person or corporation by the receiver; but the judge may, by order, forbid a transfer, or other disposition of such property or interest, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution; but such order may be modified or dissolved, by the judge granting the same, at any time, on such security as he shall direct. a. Section 299 applies only to actions between third persons, not to those between the judgment creditor and the judgment debtor only (Catlin v. Doughty, 12 How. 459). It should be confined to cases where proceedings have been instituted under § 292 or § 294 (Goodyear v. Betts, 7 How. 188; see Edmonston v. McLoud, 19 Barb. 357; King v. Tuska, 1 Duer, 635. Sherwood v. Buffalo R. R. 12 How. 459; The People v. King, 9 How. 97; Rodman v. Henry, 17 N. Y. 484; and notes to §§ 294, 298). § 300. (Am'd 1849, 1857.) Reference by judge. The judge may, in his discretion, order a reference to a referee agreed upon by the parties, or appointed by him, to report the evidence or the facts, and may, in his discretion, appoint such referee in the first order, or at any time. b. In the New York common pleas, it is the settled practice, in cases where a transcript has been filed from the marine or a district court, to order the debtor to appear and be examined before a referee, and the referee is named and appointed in the order in the first instance. c. The referee has no right to adjourn the examination indefinitely, without the consent of the defendant, and to summon the defendant again before him at a future day. But he should require the plaintiff to proceed with all reasonable diligence (Hudson v. Plets, 11 Paige, 180). He may, in his discretion, allow corrections or explanations to be made by any party to the examination, after the same has been concluded and signed (Corning v. Tooker, 5 How. 16). If appointed to report the facts, he is not at liberty to report the evidence at large (Dorr v. Noxon, 5 How. 29). He should decide what effects are to be delivered to the receiver, and specify the same particularly (Dickerson v. Van Tine, 1 Sand. 724). If the articles are ponderous, the referee should designate a time for the debtor to attend at the place where they are situate, and deliver the same to the receiver (ib.) § 301. (Am'd 1849.) Costs of proceeding. The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs. d. The application for costs, under this section, cannot be made until the proceedings have been terminated, and in favor of the party applying (Davis v. Turner, 4 How. 190). This section does not apply to cases where no examination of the judgment debtor has taken place e. Until the judge makes the final report for the application of the funds in the hands of the receiver, he has power to make the allowance under this section (Webber v. Hobbie, 13 How, 384). § 302. (Am'd 1849, 1851). Disobedience of order, how punished. (1.) If any person, party, or witness, disobey an order of the judge or referee, duly served, such person, party, or witness, may be punished by the judge, as for a contempt. (2.) And in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just. a. Punishing for contempt.-The judge who made the order has full power, out of court, to punish for contempt (Shepherd v. Dean, 13 How. 174; 3 Abb. 424; Lathrop v. Clapp, 40 N. Y. 337; Re Smethurst, 2 Sand. 724); the judge at special term has the same power (Dresser v. Van Pelt, 15 How. 19; The People v. Kelly, 22 How. 309; Kearney's Case, 13 Abb. 459). The enforcement of an order in supplementary proceedings, is a proceeding as for contempt to enforce a civil remedy; such a proceeding is a proceeding in the action (Pitt v. Davison, 37 N. Y. 235); and the papers may be entitled either as in the action (4 Paige, 360), or as The People, &c., on the relation of A. [the plaintiff] (7 Paige, 325). In such a proceeding reference must be bad to the revised statutes (2 R. S. 535) as to the mode of procedure (Re Smethurst, 2 Sand. 724). An order requiring a debtor to show cause why he should not be punished for a contempt, is well served upon the attorney for the debtor (Pitt v. Davison, 37 N. Y. 235). b. Where the debtor is ordered to pay the judgment, and a specified sum for costs, within a specified time, on his failing to do so he may be proceeded against as for a contempt, and imprisoned until the order be complied with (Brush v. Lee, 2 Trans. App. 95); and on violating an order, forbidding transfer of property, the court may impose a fine (The People v. Kingsland, 3 Keyes, 325; 5 Abb. N. S. 90; 1 Trans. App. 270). c. When a referee, on the examination before him, directs a witness to answer, that is a sufficient order, and the question being proper, if the witness refuse to answer, he is guilty of contempt (Lathrop v. Clapp, 40 N. Y. 337; The People v. Marston, 18 Abb. 257). d. Where a party disobeys an order for payment of money, the precept to commit may issue at once (The People v. King, 9 How. 97); or the party may proceed by order to show cause (Brush v. Lee, 2 Trans. App. 97; 6 Abb. N. S. 50); if the proceeding is by order to show cause, no interrogatories need be filed (Pitt v. Davison, 37 N. Y. 235; Lathrop v. Člapp, 40 N. Y. 335; Brush v. Lee, 2 Trans. App. 97; Watson v. Fitzsimmons, 5 Duer, 629). e. An attachment, to bring a party before the court to answer for alleged disobedience of an order of the court or a judge, cannot be granted without proof, by affidavit, both of the service of such order and of the failure to appear (Ward v. Arenson, 10 Bosw. 589). An affidavit by the attorney that the order was personally served by the sheriff is not sufficient. Nor is it sufficient to state in the affidavit that some of several orders have been duly served (De Witt v. Dennis, 30 How. 131). The attachment should be made returnable before the judge by whom it was issued, and not before one of the judges of the court at chambers (Kelly v. McCormick, 28 N. Y. 318). A copy of the affidavits on which the attachment issued should be served a reasonable time before the return of the attachment, to enable the party to prepare his defense (Ward v. Arenson, 10 Bosw. 589). If, on being brought into court, the party does not admit the contempt, interrogatories must be filed, copies furnished to the party, and time given him to answer them. Refusing to answer the interrogatories is a contempt (De Witt v. Dennis, 30 How. 131). If on the return of an attachment, or order to show cause for an alleged con tempt in not attending to be examined, the party submits to an examination, usually the court proceeds no further for the contempt (Hilton v. Patterson, 18 Abb. 245). a. Discharge under subdivision 2.—This provision is applicable, in the discretion of the court, to cases of imprisonment under the Act of 1831, but in such cases, the prisoner should not be discharged where his proceedings have not been fair, and his inability to pay is not clearly established (Maass v. La Torre, 6 Abb. N. S. 219). SECTION 303. 304. 305. 306. TITLE X. Of the costs in Civil Actions. Existing statutes regulating costs repealed. Costs, when allowed of course to the plaintiff, costs where the court. 307. Amount of costs allowed. 308. Allowance in addition to costs. 309. Allowance, how computed. cases. Difficult and extraordinary 310. Interest on verdict or report, when allowed. 311. Costs, how to be inserted in judgment. Adjustment of interlocutory costs. 312. Clerk's fees. 314. Costs on postponement of trial. 315. Costs on a motion. 316. Costs against an infant plaintiff. 317. Costs in an action by, or against, an executor or adminis trator, trustee of an express trust, or a person expressly authorized by statute to sue. Security for costs. 318. Costs on review of a decision of an inferior court in a special proceeding. 319. Costs in actions by the people. 320. The like. 321. Costs against assignee of cause of action, after action brought. 322. Costs on a settlement. $303. Fee bill abolished. All statutes establishing or regulating the costs, or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed; and hereafter the measure of such |