ried, although he represented that such earnings were necessary for the sup port of his concubine and her children, who resided with him (Van Vechten v. Hull, 14 How. 436). A nonresident judgment debtor may be compelled to convey, but not to deliver, property that he has out of the State (Bunn v. Fonda, 2 Code Rep. 71; Bailey v. Ryder, 10 N. Y. 363; Jenner v. Sanborn, 37 Barb. 610).

ɑ. When the order should be made.-The authority given by this section should never be exercised where the indebtedness, or the amount of the indebtedness, due from the third person, is either disputed or uncertain, or where there is any doubt as to the pecuniary ability of such third person to make present payment (Alexander v. Richardson, 7 Rob. 64). The proceeding is limited to reaching property of the debtor, in his possession or in the possession of others, conceded to be his (Stewart v. Foster, 1 Hilton, 505). When property or money, appearing to belong to him, is in the hands of others who lay claim thereto, it should be reached through a receiver, or be taken on execution (id.; Hall v. McMahon, 10 Abb. 103; The People v. King, 9 How. 97; Rodman v. Henry, 17 N. Y. 484; Teller v. Randall, 40 Barb. 242).

b. To warrant an order that the debtor apply property in satisfaction of the judgment, it should clearly appear that the property is in the hands of the debtor, or under his control, and that beyond reasonable doubt the debtor has the ability to comply with the order when made (Sandford v. Moshier, 13 How. 137). The proof should be very conclusive (Peters v. Kerr, 22 How. 3). The judge has no right to try and determine conflicting claims (The People v. King, 9 How. 97; Hull v. McMahon, 10 Abb. 103; Stewart v. Foster, 1 Hilton, 505; Gasper v. Bennett, 12 How. 307; Corning v. Tooker, 5 How. 16; Rodman v. Henry, 17 N. Y. 484; Clapp v. Lathrop, 23 How. 423; Joyce v. Holbrook, 2 Hilton, 95; 7 Abb. 338; Teller v. Randall, 26 How. 155; Crounse v. Whipple, 34 How. 333; Robson v. Ford, 3 Edw. Ch. R. 441).

c. Order against a married woman (see The People v. Cowles, 34 How. 481; Crounse v. Whipple, 33 How. 333).

d. Costs.-The judge may order payment of the costs of the proceeding out of any property found applicable to the debt (Kearney's Case, 13 Abb. 459).

e. Disobeying order.—When a debtor disobeys an order for the payment of money, the precept may issue to commit directly. In other cases he has an opportunity to be heard before the precept issues (The People v. King, 9 How. 79). The imprisonment for a contempt is not limited to thirty days (Re Pester, 2 Code R. 69). Form of order to pay over moneys, or stand committed, see Reynolds v. McElhone, 20 How. 454; Kearney's Case, 13 Abb. 459).

f. Appeal.-An order under this section is appealable (Crounse v. Whipple, 33 How. 333; Holstein v. Rice, 15 Abb. 307), unless as to any matter within the discretion of the court (The People v. King, 9 How. 97; Rodman v. Henry, 17 N. Y. 484); an order denying a motion that the debtor apply property rests in discretion (Joyce v. Holbrook, 7 Abb. 338).

§ 298. (Am'd 1849, 1851, 1862, 1863.) Judge may appoint receiver, and prohibit transfer, &c., of property. Order appointing receiver to be filed. Receiver subject to control of the court.

The judge may also, by order, appoint a receiver of the property of the judgment debtor, in the same manner, and with the like authority, as if the appointment was made by the court, according to § 244. But before the appointment of such receiver, the judge shall ascertain, if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if such pro

ceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed.

The judge may also, by order, forbid a transfer, or other disposition of the property of the judgment debtor, not exempt from execution, and any interference therewith.

Whenever the judge shall grant an order for the appointment of a receiver of the property of the judgment debtor, the same shall be filed in the office of the clerk of the county where the judgment-roll in the action, or the transcript from justice's judgment, upon which the proceedings are taken, is filed; and the said clerk shall record the order in a book to be kept for that purpose in his office, to be called "book of orders appointing receivers of judgment debtors," and shall note the time of the filing of said order therein. A certified copy of said order shall be delivered to the receiver named therein, and he shall be vested with the property and effects of the judgment debtor from the time of the filing and recording of the order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained, upon which the proceedings are founded; or if the judgment is upon a transcript from justice's court, filed in county clerk's office, then he shall be subject to the direction and control of the county

court.

But, before he shall be vested with any real property of such judgment debtor, a certified copy of said order shall also be filed and recorded in the office of the clerk of the county in which any real estate of such judgment debtor, sought to be affected by such order, is situated, and also in the office of the clerk of the county in which such judgment debtor resides.

a. Appointment of receiver.-To authorize the appointment of a receiver under this section, the proceeding should be against the debtor, to reach his property generally, and the motion to have a receiver appointed should be on notice to the debtor (Kemp v. Harding, 4 How. 178; Dorr v. Noxon, 5 id. 29; Corning v. Tooker, id. 16) personally (Barker v. Johnson, 4 Abb. 435). "The appointment in the same manner' only relates to the mode or form of the appointment. The cases or circumstances which authorize it are found in § 292" (Porter v. Williams, 9 N. Y. 142). A receiver cannot be appointed until after the return of the execution unsatisfied (Darrow v. Lee, 16 Abb. 215).

b. Where other creditors have commenced proceedings, they are entitled

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.)

The judge may allow to the judgment creditor, or to any par ty 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