§ 2449. How money or property applied to pay the judgment. After a receiver has been appointed, or a receivership has been extended to the special proceeding, the judge must, by order, direct the sheriff to pay the money or the proceeds of the property, deducting his fees, to the receiver; or, if the case so requires, to deliver to the receiver the property in his hands. But if it appears, to the satisfaction of the judge, that an order, appointing a receiver or extending a receivership, is not necessary, he may, by an order reciting that fact, direct the sheriff to apply the money so paid, or the proceeds of the property so delivered, upon an execution in favor of the judgment creditor, issued either before or after the payment or delivery to the sheriff. And a receiver appointed pursuant to the provisions of this article, may, on leave of a judge having power to appoint such receiver, lease the real property that shall come into his possession for such time as shall be necessary to realize moneys sufficient to satisfy the judgment, with interest thereon and costs of the special proceeding. From Id. Am'd by ch. 292 of 1892. § 2450. Balance to be paid or delivered to judgment debtor, etc. Where money is paid, or property is delivered, as prescribed in the last four sections, and afterwards the special proceeding is discontinued or dismissed; or the judgment is satisfied, without resorting to that money or property; or a balance of the money, or of the proceeds of the property, or a part of the property, remains in the sheriff's or the receiver's hands, after satisfying the judgment, and the costs and expenses of the special proceeding; the judge must make an order, directing the sheriff or receiver to pay the money, or deliver the property. so remaining in his hands, to the judgment debtor, or to such other person as appears to be entitled thereto, upon payment of his fees, and all other sums legally chargeable against the same. From Id. § 2451. Judge may enjoin transfer, etc., of property. The judge by whom the order or warrant was granted or to whom it is returnable, may make an injunction order, restraining any person or corporation, whether a party or not a party to the special proceeding, from making or suffering any transfer or other disposition of, or interference with, the property of the judgment debtor, or the property or debt, concerning which any person is required to attend and be examined, until further direction in the premises. Such an injunction order may be made simultaneously with the order or warrant, by which the special proceeding is instituted, and upon the same papers; or afterwards, upon an affidavit, showing sufficient grounds therefor. The judge or the court may, as a condition of granting an application to vacate or modify the injunction order, require the applicant to give security, in such a sum and in such a manner, as justice requires. From Co. Proc. §§ 298, 299 and part of § 297. § 2452. Mode of service of certain orders. An injunction order, or an order requiring a person to attend and be examined, made as prescribed in this article, must be served as follows: 1. The original order, under the hand of the judge making it, must be exhibited to the person to be served. 2. A copy thereof, and of the affidavit upon which it was made, must be delivered to him. Service upon a corporation is sufficient, if made upon an officer, to whom a copy of a summons must be delivered, where a summons is personally served upon the corporation; unless the officer is specially designated by the judge, as prescribed in section 2444 of this act. From 2 R. S. 401, § 44 (2 Edm. 417). § 2453. Service of a warrant. The sheriff, when he arrests a judgment debtor by virtue of a warrant, issued as prescribed in this article, must deliver to him a copy of the warrant, and of the affidavit upon which it was granted. § 2454. How proceedings discontinued or dismissed. A special proceeding, instituted as prescribed in this article, may be discontinued at any time upon such terms as justice requires, by an order of the judge, made upon the application of the judgment creditor. Where the judgment creditor unreasonably neglects or delays to proceed, or where it appears that his judgment has been satisfied, his proceedings may be dismissed, upon like terms, by a like order, made upon the application of the judgment debtor, or of the plaintiff in a judgment creditor's action against the debtor, or of a judgment creditor who has instituted either of the special proceedings, authorized by this article. Where an order appointing a receiver, or extending a receivership, has been made, in the course of the special proceeding, notice of the application for an order specified in this section, must be given, in such a manner as the judge deems proper, to all persons interested in the receivership, as far as they can conveniently be ascertained. § 2455. Costs to judgment creditor. The judge may make an order, allowing to the judgment creditor a fixed sum, as costs, consisting of his witnesses' fees and other disbursements, and of a sum, in addition thereto, not exceeding thirty dollars; and directing the payment thereof, out of any money which has come, or may come, to the hands of the receiver, or of the sheriff; or, within a time specified in the order, by the judgment debtor, or other person against whom the special proceeding is instituted. From Co. Proc. § 301. § 2456. Id.; to judgment debtor, etc. Where the judgment debtor, or any other person against whom the special proceeding is instituted, has been examined, and property, applicable to the payment of the judgment, has not been discovered in the course of the special proceeding, the judge may make an order, allowing him a like sum as costs; and directing the payment thereof, within a time specified in the order, by the judgment creditor; or, except where it is allowed to the judgment debtor, out of any money which has come, or may come, to the hands of the receiver or of the sheriff. From remainder of Co. Proc. § 301. § 2457. Disobedience to order; how punished A person who refuses, or without sufficient excuse neglects, to obey an order of a judge or referee, made pursuant to the last two sections, or to any other provision of this article, and duly served upon him, or an oral direction, given directly to him by a judge or referee, in the course of the special proceeding; or to attend before a judge or referee, according to the command of a subpoena, duly served upon him; may be punished by the judge, or by the court out of which the execution was issued, as for a contempt. From Co. Proc. part of § 302. § 2458. Upon what judgment and to what county the execution must have issued. In order to entitle a judgment creditor to maintain either of the special proceedings authorized by this article, the judgment must have SUR RA been rendered upon the judgment debtor's appearance or personal service of the summons upon him, for a sum not less than twenty-five dollars or substituted service of the summons upon him in accordance with section four hundred and thirty-six of the code of civil procedure; and the execution must have been issued out of a court of record; and either: 1. To the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceedings, a place for the regular transaction of business in person; or, 2. If the judgment debtor is then a resident of the state, to the sheriff of the county where he resides; or, 3. If he is not then a resident of the state, to the sheriff of the county where the judgment roll is filed unless the execution was issued out of a court other than that in which the judgment was rendered, and in that case, to the sheriff of the county where the transcript of the judgment is filed. From Co. Proc. § 292. Am'd by ch. 122 of 1881, and ch. 189 of 1897. § 2459. In what county judgment debtor, his bailee, etc., must attend. If the judgment debtor, or other person, required to attend and be examined, as prescribed in this article, or the officer of a corporation, required to attend in its behalf, is, at the time of the service of the order upon him, a resident of the State, or then has an office, within the State, for the regular transaction of business in person, he cannot be compelled to attend, pursuant to the order, or to any adjournment, at a place without the county wherein his residence or place of business is situated. From Id. $ 2460. No person excused from answering on the ground of fraud. A party or a witness, examined in a special proceeding, authorized by this article is not excused from answering a question, on the ground that his examination will tend to convict him of the commission of a fraud; or to prove that he has been a party or privy to, or knowing of, a conveyance, assignment, transfer or other disposition of property for any purpose; or that he or another person claims to be entitled as against the judgment creditor, or a receiver appointed or to be appointed in the special proceeding, to hold property, derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor, or to a person in his behalf. But an answer cannot be used as evidence against the person so answering, in a criminal action or criminal proceeding. From Co. Proc. part of § 292. Am'd by ch. 122 of 1881. § 2461. Proceedings where judgment is against joint debtors. Where the execution was issued as prescribed in section nineteen hundred and thirty-four or section nineteen hundred and forty-one of this act, a debt due to, or other personal property owned by, one or more of the defendants not summoned, jointly with the defendants summoned, or with any of them, may be reached by a special proceeding, instituted as prescribed in this article, and founded upon the judg ment. From Co. Proc. part of § 294. Am'd by ch. 217 of 1900. See § 1871. § 2462. Proceedings, commenced before one judge may be continued before another. Sections 26, 52, and 279 of this act apply to a special proceeding, instituted as prescribed in this article; and the judge before whom it is continued, as prescribed in either of those sections, is deemed to be the judge to whom an order or warrant is returnable, for the purpose of any provisions of this or the next article. 2463. Cases where this chapter is not applicable; what property cannot be reached. This article does not apply where the judgment debtor is a corporation created by or under the laws of the State or a foreign corporation specified in section one thousand eight hundred and twelve of this act, except in those actions or special proceedings brought by or against the people of the State. Nor does it authorize the seizure of, or other interference with, any property which is expressly exempt by law from levy and sale by virtue of an execution; or any money, thing in action or other property held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor; or the earnings of the judgment debtor for his personal services rendered within sixty days next before the institution of the special proceeding; when it is made to appear by his oath or otherwise that those earnings are necessary for the use of a family, wholly or partly supported by his labor. From Co. Proc. part of § 297. SUR PRA 2469. How receiver's title to personal property extended by relation. § 2464. When and how receiver may be appointed. At any time after making an order requiring the judgment debtor, or any other person, to attend and be examined, or issuing a warrant, as prescribed in article first of this title, the judge to whom the order or warrant is returnable may make an order, appointing a receiver of the property of the judgment debtor. At least two days' notice of the application for the order appointing a receiver, must be given personally to the judgment debtor, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the State; in which case, the order must recite that fact, and may dispense with notice, or may direct notice to be given in any manner which the judge thinks proper. But where the order to attend and be examined, or the warrant, has been served upon the judgment debtor, a receiver may be appointed upon the return day thereof, or at the close of the examination, without further notice to him. From Co. Proc. part of § 298. § 2465. Notice to other creditors. The judge must ascertain, if practicable, by the oath of the judgment debtor, or otherwise, whether an action, specified in article first of title fourth of chapter fifteenth of this act, or a special proceeding instituted as prescribed in article first of this title, is pending against the judgment debtor. If either is pending, and a receiver has not been appointed therein, notice of the application for the appointment of a receiver, and of all the subsequent proceedings respecting the receivership, must be given, in such a manner as the judge directs, to the judgment creditor prosecuting it. From Id. § 2466. Only one receiver to be appointed. Former receivership may be extended. Only one receiver of the property of a judgment debtor shall be appointed. Where a receiver thereof has already been appointed, the judge instead of making the order prescribed in the last section but one, must make an order extending the receivership to the special proceeding before him. Such an order gives to the judgment creditor the same rights, as if a receiver was then appointed upon his application; including the right to apply to the court to control, direct, or remove the receiver, or to subordinate the proceedings in or by which the receiver was appointed, to those taken under his judgment. From Id. See rule 81 (Sup. Ct.). |