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proof by affidavit, of a party or otherwise, to the satisfaction of the court, or a judge thereof, or county judge, or any judge of the court of common pleas for the city and county of New-Also, when

judgment York, that any judgment debtor, residing in the county where debtor resuch judge or officer resides, has property, which he unjustly ply proper refuses to apply towards the satisfaction of the judgment, such judgment. court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same: and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as are provided upon the return of an execution. On an examination under this section, either party

. may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. Instead of Manner of

proceeding the order requiring the attendance of the judgment deblor, the to examine

judgment judge may, upon proof by affidavit or otherwise, to his satisfac-'debtor

. tion, that there is danger of the debtor's leaving the state, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and if it then appears that there is danger of the debtor's leaving the State, and that he has property which he has unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking with one or more sureties, that he will from time to time attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property, not exempt from execution. In default of entering into such undertaking, he may be committed to prison, by warrant of the judge as for a contempt. No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud ; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.

may pay

creditor.

Examina

The execution must be actually returned before supplementary proceedings can be commenced. Engle vs. Bonneau, 2 Sand. 679; Simpkins vs. Page, 1 Code Rep. 107.

A motion may be made to the court to vacate the order, before applying to the judge to vacate the same. Lindsay agt. Sherman, 5 How. 308.

The provisions of this chapter apply to judgments obtained before the

code took effect. Jones vs. Lawlin, 1 Sand. 722. Any debtor

§ 293. [Sec. 218.] After the issuing of execution against against his property, any person indebted to the judgment debtor,

may pay to the sheriff the amount of his debt, or so much Amended thereof as shall be necessary to satisfy the execution, and

the sheriff's receipt shall be a sufficient discharge for the amount so paid.

The amount of a verdict in an action of tort, must be consummated by judgment before it can be paid under this section. Davenport agt. Ludlow, 4 How. 337.

As to paying a demand which has been previously assigned, see Country. man vs. Boyer, 3 How. 386.

294. [Sec. 219.] After the issuing or return of an execution of debt

tion against property of the judgment debtor, or of any one judgment debtor,or of of several debtors in the same judgment, and upon an in beropera affidavit, that any person or corporation has property of ing to him.

such judgment debtor, or is indebted to him in an amount Amended 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 party examined is not entitled to a cross-examination. Corning and others agt. Tooker and Ladue, 5 How. 17.

A person examined under this section is a party to the proceeding, and his examination should be conducted the same as against the original party. Corning et al. vs. Tooker et al., 5 How. 16.

Where third persons are colluding with the judgment debtor, see Dorr et al. vs, Noxen, 5 How. 29.

See section 298 infra, and notes.

ors, of

Witnesses required 10

to

Amended

.

execution.

$ 295. [Sec. 250.) Witnesses may be required to appear and testify on any proceedings under this chapter, in the testify. same manner as upon the trial of an issue.

Witnesses are entitled to fees. Davis agt. Turner and others. 4 How. 190.

$ 296. [Sec. 251.] The party or witness may be required Compelling to attend before the judge, or before a referee, appointed by Waltend. the court or judge ; if before a referee, the examination shall be taken by the referee, and certified to the judge. All 1949. examinations and answers before a judge or referee, under Examina

tions, when this chapter, shall be on oath, except that when a corpo- to be on ration answers, the answer shall be on the oath of an officer thereof.

The referee may allow corrections or explanations even after it has been concluded and signed by him. Corning et al. vs. Tooker et al. 5 How. 16.

§ 297. [Sec. 252.] The judge may order any property of the Judge may judgment debtor, not exempt from execution, in the hands either perty to be

applied on of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment, except Amended 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.

As this proceeding does not exempt anything from liability to be taken on execution, but merely affects the remedy (by special proceeding,) but not in such a manner as to impair any existing contract or obligation, it ap. plies therefore as well to old as to new debts. $ 298. [Sec. 253.] The judge may also by order appoint a

Judge may receiver of the property of the judgment debtor, in the same prohibit

iransfer, manner and with the like authority as if the appointment was &c. of pro

perty. made by the court according to section 244. But before the appointment of such receiver, the judge shall ascertain, if prac- 1849, 1861. ticable, by the oath of the party, or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if such proceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise

appoint receiver and

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Proceed. ings upon claim of aliotber party to property,

debtedness to judgment debtor.

1849.

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.

As to appointment of receiver, see Wilson, receiver, &c., vs. Allen and others, 6 Barb. 542; Corning and others agt. Tooker and Ladue, 5 How. 16. Kemp and Fiske agt. Harding, 4 How. 178, Supreme Court Rule, 81.

§ 299. [Sec. 254.] If it appear that a person or corporation alleged to have property of the judgment debtor or in

debted to him, claims an interest in the property, adverse to nial-of in- him, or denies the debt, such interest or debt shall be reco

verable only in an action against such person or corporation

by the receiver; but the judge may, by order, forbid a Amended transfer or other disposition of such property or intereste

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.

$ 300. [Sec. 255.] Thejudge may, in his discretion, order by judge.

a reference to a referee agreed upon or appointed by him, to report the evidence or the facts.

§ 301. [Sec. 256.] The judge may allow to the judgment proceeding

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.

302. [Sec. 257.] If any person, party or witness, disobey ence of or an order of the judge or referee duly served, such person, party punished.

or witness may be punished by the judge as for a contempt. Amended And in all cases of commitment under this chapter, or the act

to abolish imprisonment for debt, the persem committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the

Reference

Amended 1849.

Costs of

Amended 1349.

Disobedi

how

court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just.

Although the code gives the power of punishing disobedience of his orders to the judge, reference must be had to the Revised Statutes as to the mode in which the power is to be exercised. In the matter of Smethurst 2 Sand. 724; S. C. 4 How. 369; matter of Pester, 2 Code Rep. 98.

TITLE X.

Of the costs in civil actions.
SECTION 303. Fee bill abolished. Allowances given, termed costs.

304. When allowed, of course, to plaintiff.
305. When allowed to defendant.
306. When allowed to either party in the discretion of the court.
307. Amount of costs allowed.
308. Allowance, in addition, of a per centage on the recovery or

claim.
309. Per centage, how computed.
310. Interest on verdict or report, when allowed.
311. Costs, how to be inserted in judgment.
312. Clerk's fees.
313. Referee's fees.
314. Costs on postponement of trial.
315. Costs on a motion.
316. Costs against infant plaintiff.
317. Costs in an action by or against an executor or administrator,

trustee of an express trust, or a person expressly authorised

by statute to sue.
318. Costs on review of a decision of an inferior court, in a special

proceeding.
319, 320. Costs in actions by the people.
321. Costs against assignee of cause of action after action brought,

322. Costs on a settlement. $ 303. [Sec. 258.] All statutes establishing or regulating Else bile

Fee ,

bolished. 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 compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon

Allowanco the judgment, certain sums by way of indemnity, for his given, expenses in the action; which allowances are in this act costs. termed costs.

Costs on suits pending on the 1st of July, 1848, (except on motions,) must be taxed according to the old fee bill, where the appeal had been taken previous to the operation of the code. Doty agt. Brown, 4 How. 429; Truscutt agt. King et al., id 173.

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