him to have been guilty of a fraud (see Forbes v. Willard, 54 Barb. 520; 37 How. 193; Lathrop v. Clapp, 40 N. Y. 328.

a. The wife of the debtor can be examined as a witness for the purpose of discovering his property (Lockwood v. Worstall, 15 Abb. 430, note).

b. It is at the creditor's option whether or not he will examine the debtor (Webber v. Hobie, 13 How. 383; 12 How. 33).

c. A witness examined as to the property of the debtor, cannot stop the examination by stating that he owns the property (Sandford v. Carr, 2 Abb. 462); where it appears that the judgment debtor has transferred his property to the witness, the latter must answer all questions touching the transfer (Lathrop v. Clapp, 40 N. Y. 328).

d. Where it appears that the debtor has sold portions of property at its full value, an inquiry as to the name of the purchaser is immaterial; otherwise where the property is sold for less than its value, with a proviso for repurchase (Williams v. Carroll, 2 Hilton, 438).

e. "The judgment creditor may be examined in the same manner as a witness," and has the right to be examined by his own counsel (Le Roy v. Halsey, 1 Duer, 589).

ƒ. As the examination is taken orally, great liberality should be allowed in correcting mistakes; which should be done by supplemental statements, leaving the original unaltered (Corning v. Tooker, 5 How. 16).

9. A person not a party to the proceedings, upon examination, should not be allowed to appear by counsel (ib.; see § 295; and 2 Abb. 463).

h. A commission cannot issue to take the deposition of a witness out of the State, to be used in a proceeding under this section (Graham v. Colburn, 14 How. 52).

i. Proceedings, how discontinued.—The proceedings may be terminated as absolutely by the creditor's abandonment of it, as by an order of the judge before whom it is pending (Squire v. Young, 1 Bosw. 690). The creditor designedly omitting to attend on any day to which the proceedings stand adjourned, will be deemed an abandoment (id.)

j. An appeal from a judgment with the requisite security to effect a stay of proceedings, perfected after proceedings supplementary to the execution have been instituted, suspends such proceedings, but does not authorize a dismissal of them. The creditor is entitled to his lien obtained thereby, its enforcement only is delayed (Cowdrey v. Carpenter, 17 Abb. 107).

k. The service of a notice of appeal to the general term, from a judgment, there being no stay of proceedings, does not prevent the granting, or stay proceedings on, an order under this section (Arnoux v. Homans, 32 How. 382).

7. The presumption of the payment of a judgment after a lapse of twenty years, does not operate to abate supplementary proceedings commenced before the expiration of twenty years from the entry of the judgment (Driggs v. Williams, 15 Abb. 477; and see Van Tassel v. Van Tassel, 31 Barb. 439).

m. Supplementary proceedings pending before a county judge do not abate upon the expiration of his term of office, and may be continued before his successor in office (Holstein v. Rice, 15 Abb. 397; 24 How. 135).

n. Appeal.-Appeal lies from an order made by a county judge in a proceeding under this section, in an action originating in a justice's or county court (Crounse v. Whipple, 34 How. 333).

o. No appeal lies to the general term from the decision of a judge overruling or allowing questions put to the execution debtor (Carter v. Clarke, 7 Rob. 490). An appeal allowed from an order vacating an order for the examination of a judgment debtor (Hawes v. Barr, 7 Rob. 452).

p. An appeal from an order in supplemental proceedings can be heard only at the general term in the district in which the judgment-roll is filed (Mallory v. Gulick, 15 Abb. 307, note; Gould v. Torrance, 19 How. 560).

q. Second order.-A second order will be granted ex parte. The affidavit should mention the first order, and allege the reason for requiring a second examination (Goodall v. Demarest, 2 Hilton, 534; see Orr's Case, 2 Abb. 457; Carter v. Clarke, 7 Rob. 43).

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

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 sufficient discharge for the amount so paid.

a. This section is permissive merely.-Where it appeared that the action was to recover damages for the conversion of bank bills, that after the trial and verdict for the plaintiff, but before judgment, the plaintiff assigned his right to the judgment to his attorney in the action; the judgment was perfected August 10, 1849; and on the next day, the defendant, without any notice of the assignment, paid the amount of the judgment against him to the sheriff of Steuben county, on two executions on judgments against the plaintiff, and then in the hands of the said sheriff for collection. An execution subsequently issued on the judgment, and a motion to set that execution aside was denied, and the order denying the motion affirmed on appeal (Robinson v. Weeks, 1 Code Rep. N. S. 311; and see Lyman v. Cartwright, 3 E. D. Smith, 117; Richardson v. Ainsworth, 20 How. 521; and see Countryman v. Boyer, 3 How. 386; 2 Code Rep. 4).

b. The amount of a verdict rendered in an action of assault and battery, cannot be paid to the sheriff, on an execution against the party who recovered the verdict under this section. A verdict in tort must be consummated by judgment before it can be treated as an indebtedness (Davenport v. Ludlow, 3 Code Rep. 66).

c. After judgment, a recovery in an action for a tort becomes a debt, and the amount may be paid to the sheriff, by any person indebted to the judg ment debtor (Mallory v. Norton, 21 Barb. 424).

d. A payment under this section is not a payment to the creditor. It can only be regarded as money paid to the use of the judgment debtor (Calkins v. Packer, 21 Barb. 283); and may be set up as a counter-claim, as money paid to his use (id.) If the payment is made after an action has been commenced for the recovery of the money so paid, such payment cannot be set up as a defense, unless by leave of the court (Waldheim v. Bender, 36 How. 181).

e. Where a person, indebted to a judgment debtor, pays the amount of his debt to a sheriff holding an execution against the judgment debtor, and takes the sheriff's receipt as authorized by § 293, and an action is afterwards brought against him to recover the amount so paid, and he sets up such payment as a defense, he is bound to prove the judgment, on which the execution issued to the sheriff to whom he paid the money (Handly v. Greene, 15 Barb. 601).

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

ors.

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 two hundred and ninety-two, 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 commerced, 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.

a. Order to examine debtor to judgment debtor.-To warrant the issuing of an order for the examination of a party, alleged to have in his possession property of a judgment debtor, it is not necessary that the execution should issue to the county where such debtor resides (People v. Norton, 4 Sand. 640). It suffices that the execution is to the county where the property is expected to be found, and where the person resides who is charged with having it in his possession (ib.)

6. Where an execution was issued to the county of Queens, where the judg ment debtor resided, and returned unsatisfied, held that a judge of the supreme court, in the city of New York, had jurisdiction to make an order compelling a debtor to the judgment debtor, residing in the city of New York, on examination, to apply the property of the judgment debtor in his hands, or make payment of the debt to the judgment creditor, upon his judgment (Foster v. Prince, 18 How. 258; 8 Abb. 407).

c. Persons holding property, supposed to belong to the judgment debtor, may be examined as to the manner in which they acquired said property (Lathrop v. Clapp, 40 N. Y. 328).

d. An order staying the proceedings of the judgment creditor on an execution issued by him, does not prohibit him from instituting proceedings under this section (Louber v. The Mayor, &c. 5 Abb. 268).

e. In an order under this section, the judge may enjoin the person to whom the order is directed, from disposing of the property until further order (Seeley v. Garrison, 10 Abb. 460).

f. Whether or not notice shall be given to the judgment debtor, is in the discretion of the judge making the order (Ward v. Beebe, 17 Abb. 1; 15 Abb. 373; Seeley v. Garrison, 10 Abb. 460). It is proper, but not necessary, that he have notice (Gibson v. Haggerty, 5 Trans. App. 146; 37 N. Y. 558). A proceeding under this section may be had whether the execution has been returned or only issued. It is not necessary, prior to obtaining an order under this section, to obtain an order under § 292 (id). A payment by a debtor of a judgment debtor, in obedience to an order under this section, is a valid payment, as against an assignee of the debt who has not given notice of the assignment (id.; see Roy v. Baucus, 43 Barb. 310).

9. A payment, under an order pursuant to this section, will not prevent the judgment debtor insisting that more was due him than was paid, nor prevent him from bringing suit for the alleged balance (Hauptman 7. Catlin, 1 E. D. Smith, 730).

a. An execution creditor of a municipal corporation may have an order, under this section, to examine a person indebted to or having funds of the defendant. And an officer of such corporation, having its funds in his hands officially, e. g., as chamberlain, may be examined (Louber v. Mayor of N. Y. 5 Abb. 261, and 7 id. 248); and so the order may be had by the execution creditor of a foreign corporation (McBride v. Farmer's Branch B'k, 7 Abb. 347; 28 Barb. 476). When a joint-stock association is sued in the name of its president or treasurer, under the act of 1849, that does not make him a defendant. He is, nevertheless, subject to be examined under § 294, on showing him to be indebted to the association in a sum exceeding $10 (Courtois v. Harrison, 3 Abb. 96; 12 How. 359; 1 Hilton, 110). Where, in a foreclosure suit, there were surplus moneys in the hands of the clerk or chamberlain, and subsequently, in another action, judgment was obtained against one of the parties entitled to such surplus, the judgment creditor applied for an order on the chamberlain to appear and answer under this section, his application was refused (Anon. 1 Code Rep. N. S. 211).

b. Affidavit to obtain order.-The affidavit, to procure the examination of a third person, need not state that the property of a judgment creditor in his hands exceeds ten dollars; the limitation of ten dollars applies only where the affidavit states that such person is indebted to the judgment debtor (Brett v. Browne, 1 Abb. N. S. 155). An affidavit which follows the alternative wording of this section, that the party "has property of the judg ment debtor, or is indebted to him," is not sufficient (Lee v. Heirberger, 1 Code Rep. 38). For form of affidavit and order see Seeley v. Garrison (10 Abb. 460).

c. Proceedings on order.—The inquiry is limited to the property which the judgment debtor owns, and to the relief that may be obtained under such proceedings (Van Wyck v. Bradley, 3 Code Rep. 157; Town v. Safeguard Ins. Co. 4 Bosw. 683). The claim, alone, of a person alleged to have property of the judgment debtor, terminates the right to relief as against him under these proceedings, and no examination can be had for the purpose of defeating such claim. The claimant may be required to state the measure but not the nature of his title (ib.; see Tompkins Co. B'k v. Trapp, 21 How. 17; The People v. Hulbert, 5 How. 446; Sherwood v. Buffalo R. R. Co. 12 How. 139; Catlin v. Doughty, 12 How. 459).

d. The proceedings cannot be continued after the death of a sole defendant (Hazewell v. Penman, 13 How. 114; 2 Abb. 230).

$ 295. Witnesses 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.

e. A person examined as a witness, is entitled to witness' fees, as upon the trial of an issue (Davis v. Turner, 4 How. 190; see note to § 301). He has the same remedy for his fees, and is not bound to testify until his fees are paid (id.) f. If examined, he may be examined fully (Tompkins Co. Bank v. Trapp, 21 How. 17; see note to § 292, p. 467, ante).

§ 296. (Am'd 1849.) Compelling attendance.

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.

a. The attendance of a witness, before a county judge, is to be enforced by subpoena issued out of the court in which the judgment is obtained; and disobedience to such subpoena is to be punished by that court (The People v. Dutcher, 3 Abb. N. S. 152). A county judge cannot punish in such a case; nor can he punish for refusing to obey a subpoena issued by him (id.)

b. When the debtor has once been sworn, it is not necessary, or proper, to swear him a second time upon an adjourned examination, but the plaintiff should proceed to examine him on the oath already taken (Hudson v. Plets, 11 Paige, 180).

§ 297. (Am'd 1851.) Property ordered to be applied to execution.

The judge may order any property of the judgment debtor, not exempt from execution, in the hands either of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment; except that the earnings of the debtor for his personal services, at any time within sixty days next preceding the order, cannot be so applied, when it is made to appear by the debtor's affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor.

c. What property may be applied.-This section applies only to moneys actually due to a judgment debtor at the time the order is obtained (Potter v. Low, 16 How. 549), and not to moneys to become due on a contingency, or on an executory contract (McCormick v. Kehoe, 7 N. Y. Legal Obs. 184; Stewart v. Foster, 1 Hilton, 505). Or to the interest of the debtor in a trust fund, being the annual profits of a principal sum invested (Campbell v. Foster, 35 N. Y. 361, and see Locke v. Mabbett, 2 Keyes, 457; Stewart v. Foster, 1 Hilton, 505; Graff v. Bennett, 31 N. Y. 9; Genet v. Foster, 12 How. 50); or future earnings (Woodman v. Goodenough, 18 Abb. 265); or property which the debtor assigned for the benefit of his creditors, while the execution was in life in the sheriff's hands (Watrous v. Lathrop, 4 Sand. 700); or a right of action for a tort (Ten Broeck v. Sloo, 2 Abb. 234; 13 How. 28; Davenport v. Ludlow, 3 Code Rep. 66; Hudson v. Plets, 11 Paige, 180); or property subsequently acquired, or debt subsequently arising (Sands v. Roberts, 8 Abb. 343; see Browning v. Bettis, 8 Paige, 568; 2 Barb. Ch. Pr. 153; McCam v. Dorsheimer, 1 Clark, 144; Ireland v. Smith, 1 Barb. 419; Caton v. Southwell, 13 Barb. 335). A dower right and estate by courtesy may be reached (Stewart v. Martin, 5 Barb. 438; Moak v. Coates, 33 Barb. 498; Beamish v. Hoyt, 7 Rob. 307); and so may money earned but not payable until a future day (3 Edw. Ch. R. 457; 4 id. 653; 3 Abb. N. S. 264). Creditors are entitled to the debtor's earnings, except for the period of sixty days, computed from the time when the motion is made to have his property applied to the payment of the judgment (Rush v. White, 12 Abb. 21). Where it appeared that the judgment debtor had a family, which he swore was dependent upon him for support, but it did not appear that he contributed to the support of his family,-it was held that his earnings were not exempt (Martin v. Sheridan, 2 Hilton, 586); and so where the judgment debtor kept house, and had boarders, but was unmar