Pruden v. Tallman. That being the case, an order may be made for the production of books, &c. under sections 867-869, instead of resorting to a subpoena. The order may be made by the referee before whom the examination is had, under the two sections cited. Motion denied. HOLMES, BOOTH & HAYDEN v. STIETZ. CITY COURT OF NEW YORK, CHAMBERS, OCTOBER, 1884. Supplementary proceedings.- Compelling production of books of corporation, called as a witness in. A corporation called as a witness in proceedings supplementary to execution may be compelled to produce its books either by order or by subpoena duces tecum. (Decided October 25, 1884.) Motion to vacate an order requiring the president of a corporation called as a witness in supplementary proceedings to produce its books. On the examination of the defendant, in proceedings supplementary to execution it appeared that he was the president and superintendent of the Otto Stietz N. Y. Glass Letter Co. Thereupon the proceedings were adjourned and he was ordered individually and as president and superintendent of said company to produce certain books and papers of the company to be used on such examination. Whereupon this motion was made. E. P. Wilder, for the judgment debtor and motion. HAWES, J.-The defendant claims that a corporation, called as a witness in a supplementary proceeding, cannot be compelled to produce its books either by order or subpœna duces tecum. There seems to be no question but what this could be done upon a trial, for whatever may have been the previous rulings in this State upon that question, it is expressly allowed by § 868 of the Code, and a corporation although not a party to the action, is brought within the same category as a natural person. I fail to discover any valid reason why the statute does not apply to a hearing in a special proceeding. It is to all intents and purposes a trial, so far as the taking of testimony is concerned, and § 2444 of the Code expressly declares that either party may be examined as a witness in his own behalf, and may produce and examine other witnesses as upon the trial of an action. I have Keeler v. McNeirney. KEELER v. MCNEIRNEY. SUPREME COURT, ONONDAGA COUNTY, SPECIAL TERM, MAY, 1883. SS 447, 1498. Action to foreclose mortgage.—Question which cannot be tried in. In an action to foreclose a mortgage where a defendant claims title paramount to the mortgagee under a deed executed before, but recorded after the making and recording of the mortgage in suit, the court can not determine whether or not the mortgagee was a purchaser in good faith and for a valuable consideration, for the purpose of deciding which of the parties had precedence under the recording act; the rights of the parties under the recording acts are legal rights triable in the forum where legal rights are triable and not at special term, and the title which passes to a purchaser on foreclosure does not include rights paramount to the title of the mortgagor or mortgagee at the date of the mortgage. Emigrant Industrial Savings Bank v. Goldman (75 N. Y. 127); Payn v. Grant (23 Hun, 134), followed; Brown v. Volkening (64 N. Y. 76), distinguished. (Decided May 4, 1883.) no doubt that §§ 868 and 869, which are new, were designed to meet such a case as is now presented, and the attempted distinction which is sought to be made between an action and a special proceeding has no foundation in fact. The right to compel the production of the books of a corporation when it is not a party to an action is valid under the statute, and the proceedings of the plaintiff in that behalf are regular. The case of Wertheim . The Continental Railway Co. (3 N. Y. Civ. Pro. 371, U. S. Circuit Court), holds that it is a right at common law, but I do not deem it necessary to consider that phrase of the case, inasmuch as I am of opinion that the Code has expressly granted the power. Although it may be added that if such a right did exist at common law, there could be no pretence of an argument that the statute, by using the word “trial,” intentionally restricted it to the trial of an action. Section 2444 of the Code, however, expressly negatives any such distinction and grants to a party in that respect all the rights which he would have upon the trial of an action. Motion to vacate the order is denied. Keeler v. McNeirney. Action to foreclose a mortgage on real property. The opinion states the facts. D. B. Keeler, plaintiff in person. Geo. N. Kennedy and M. F. Sherlock, for defendants. MERWIN, J.-The plaintiff seeks to foreclose a mortgage given October 20, 1871, by James A. O'Hara, to Charles C. Gustin for $435.60 recorded same day and assigned November 10, 1876, to the plaintiff, the assignment not being recorded. The complaint is in the ordinary form and alleges that the defendants McNeirney and O'Riley, have or claim some interest in or lien upon the mortgaged premises, which interest or lien, if any, has accrued subsequently to the mortgage. There is no special allegation as to the character of the interest of those defendants. Those defendants answer and deny the mortgage and assignment, and allege that said premises were on April 27, 1871, for a valuable consideration duly conveyed by said O'Hara by warranty deed to Bishop Conroy, who on September 25, 1878, for valuable consideration by quit-claim deed, duly conveyed them to the defendant McNeirney, that Bishop Conroy went into possession at the date of the deed to him and so remained till he conveyed to McNeirney; and the latter then went into possession and has since so remained; and that the said mortgagee and plaintiff had full notice of said conveyances. It appeared on the trial that the deed to Conroy was recorded September 23, 1872, being after the giving and recording of the mortgage, so that the real question between the parties is which has precedence under the recording acts, and that depends upon whether the mortgagee was a purchaser in good faith and for a valuable consideration (3 R. S. 7 ed. 2215). The point is taken by the defendant, that the question cannot be Keeler v. McNierney. determined in this action it being brought simply for the foreclosure of the mortgage. In Emigrant Ind. Savings Bank v. Goldman (75 N. Y. 127) and in Payn v. Grant (23 Hun, 134), it was in effect decided that legal rights accruing prior to the mortgage were not cut off by a foreclosure, and this too although the parties holding such prior rights were made parties defendant with the usual allegation (9 N. Y. 502 ;* 64 N. Y. 77). The rights of parties under the recording act are legal rights and triable in the forum where legal rights are triable. They are not triable at special term unless the parties consent; that consent does not exist in the present case. Had the complaint set out the facts in regard to this question and claimed its adjudication here, the complaint would have been demurrable (2 Barb. 20;† 75 N. Y. 132). The statute prescribes what title shall pass to a purchaser on foreclosure (3 R. S. 6 ed. 199, § 102; Code Civ. Pro. § 1632) and does not embrace interests which are paramount to the title of the mortgagor and mortgagee at the date of the mortgage (75 N. Y. 132;‡ 9 N. Y. 502§). If the opinion of Judge ALLEN in Brown v. Volkening (64 N. Y. 76), is deemed an authority in the light of the subsequent cases, it may be said that in that case equitable not legal rights were involved; this being the situation, I think that I have no right to determine in this action, whether or not the mortgagee was a purchaser in good faith and for a valuable consideration. It does not follow, I think, that the complaint should be dismissed as to the defendant McNeirney. He may have rights subsequent to the mortgagee, and if so as to those the foreclosure should *Lewis v. Smith. + Holcomb v. Holcomb. Emigrant's Ind. Savings Bank v. Goldman. § Lewis v. Smith. Smith . Fogarty. be operative, and it can be so only by his remaining a party defendant. This is the logic of the case of Frost v. Koon (30 N. Y. 428, 443). This decree, however, should contain a special provision that any rights of these defendants, prior to the mortgages, should not be deemed to be in a any way affected by the foreclosure. The defendants who defend are not in my opinion entitled to costs. It is at least probable their rights would have been fully protected without answer, and besides, they unnecessarily put at issue the existence of the mortgage and assignment. The plaintiff is entitled to a judgment of foreclosure in the usual form, adding, however, a separate provision as above suggested. SMITH ET AL. v. FOGARTY. CITY COURT OF NEW YORK, SPECIAL TERM, SEPTEMBER, 1884. Attachment. SS 435, 436, 437, 636, 1216. When affidavit on which granted insufficient.—Substituted service of summons.— When time to answer expires.— When order for set aside.-Proof on entry of judgment on. Where the affidavit upon which an attachment was issued stated as the ground for issuing the attachment "that the defendant has sold and mortgaged a portion of or all of his property for the purpose and with the intent to cheat and defraud his creditors and particularly the plaintiffs. . . .; that deponent was informed and verily believes that the defendant is largely in debt; and that the defendant keeps himself concealed, as deponent believes, with the intent to hinder, delay and defraud his creditors aud with the intent of evading service of process," and that a notice had appeared in the Herald of August 8, that the defendant was missing since "last Tuesday," with a description of his person, and no other facts or statements were set forth, showing fraud,-Held, that the affidavit was insufficient and the attachment should be set aside. |