judge, from his examination, or other proof, that there is danger that he will leave the State, or conceal him. self, and that he has property, which he has unjustly refused to apply to the satisfaction of the judgment; the judge may make an order, requiring him to give an undertaking, with one or more sureties, in a sum fixed and within a time specified in the order, to the effect, that he will, from time to time, as the judge directs, attend before the judge, or before a referee, appointed or to be appointed in the proceedings; and that he will not, until discharged from arrest by virtue of the warrant, dispose of any of his property, which is not exempted from seizure by section 2463 of this act. If he fails to comply with the order, the judge must forthwith, by warrant, commit him to prison, there to remain until the close of the examination, or the giving of the required undertaking; except that the judge may direct the sheriff to produce him, from time to time, as required in the course of the proceedings.

Code of Proc., part of 292, subd. 4, amended.

§ 2441. Order to examine person having property, etc., of judgment debtor. Upon proof, by affidavit, or other competent written evidence, to the satisfaction of the judge, that an execution against property has been issued, as prescribed in section 2458 of this act, and either that it has been returned wholly or partly unsatisfied, or that it has not been returned; and also that any person or corporation has personal property of the judgment debtor, exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars; the judgment creditor is entitled to an order, requiring that person or corporation to attend and be examined concerning the debt, or other property, at a time and place specified in the order. The judge may, in his discretion, require notice of the subsequent proceedings to be given to the judgment debtor, in such a manner as he deems just. But a receiver shall not be appointed without such a notice, except as otherwise prescribed in article second of this title. See 8 Daly, 106.

Code of Proc., 294; see 2458, post; and, also, People v. Norton, 4 Sandf. 640; 2469, post; Sherwood v. Buffalo & N. Y. C. R. R. Co., 12 How. Pr. 136; Gibson v. Haggerty, 37 N. Y. 555, Lowber v. Mayor, 5 Abb. 261; s. c., id. 248; McBride v. Farmers' Branch Bank, 7 id. 347 B. C., 28 Barb. 476; Courtois v. Harrison, 3 Abb.; s. c., 12 How. 359; I Hilt. 110; Lathrop v. Clapp, 40 N. Y. 328; s. c., 23 How. 423; Foster v.

Prince, 18 id. 258; s. c., 8 Abb. 407; Seely v. Garrison, 10 id. 460; Ward v. Beebe, 17 id. 1; s. c., 15 id. 373; Roy v. Baucus, 43 Barb. 310; Hauptman v. Catlin, 1 E. D. Smith, 730; Brett v. Browne, 1 Abb. N. S. 155; Lee v. Heirberger, 1 Code R. 38; Van Wyck v. Bradley, 3 id. 157; Town v. Safeguard Ins. Co., 4 Bosw. 683; People v. Hulbert, 5 How. 446; Catlin v. Doughty, 12 id. 459; Corning v. Tooker, 5 id. 19; Woodman v. Goodenough, 18 Abb. 265; Kemp v. Harding, 4 How. 178; Barker v. Johnson, 4 Abb. 435; Holmes v. Jordon, 15 id. 410, note; Parker v. Hunt, id.; Ward v. Beebe, id. 372; Hanson v. Tripler, 3 Sandf. Sup. Ct. 733; People v. Norton, 4 id. 640; Hind v. Canandaigua and Niagara Falls R R. Co., 10 How. 487; Lynch v. Johnson, 48 N. Y. 27; Smith v. McNamara, 15 Hun, 447: Graves v. Lake, 12 How. 33; Day v. Lee, 52 How. Pr. 95; 1 Abb. N. C. 72; Grassmuck v. Richards, 2 id. 359; Sebrauth v. Dry Dock Sav. Bank, 20 Alb. L. J. 197.

2442. Either order may require attendance before a referee. An order, requiring a person to attend and be examined, made pursuant to any provision of this article, must require him so to attend and be exam. ined, either before the judge to whom the order is returnable, or before a referee designated therein. Where the examination is taken before a referee, he must certify, to the judge to whom the order is returnable, all the evidence and the other proceedings taken before him.

Code of Proc., 296; Hatch v. Weyburn, 8 How, 163, 313; 11 id. 446; Conway v. Hitchins, 9 Barb. 378; Allen v. Starring, 26 How. 57; Hol lister v. Spafford, 3 Sandf. 742; s. c., 1 Code R. 120; Dickinson v. Van Tine, 1 Sandf. Sup. Ct. 724; Hudson v. Plets, 11 Paige, 180; Kaufman v. Thrasher, 10 Hun, 438; Dorr v. Noxon, 5 How. 29; Corning v. Tooker, id. 16; Redmond v. Goldsmith, 2 Law Bulletin, 19; Sickles v. Hanley, 4 Abb. N. C. 231; Kennedy v. Narcott, 54 How. 87; Lewis v. Penfield, 39 id. 490.

2443. Reference may be ordered at any time.—At any stage of the proceedings, the judge to whom the order is returnable may, in his discretion, make an or der, directing that any other examination, or testimony, be taken by, or that a question arising be referred to, & referee, designated in the order. Where a question is so referred, the referee may be directed to report either the evidence or the facts.

Code of Proc., 300. See Dorrv. Noxon, 5 How, 29; and see cases cited under 2 2442, ante.

2444. Proceedings upon examination; adjournment.-Upon an examination under this article, each answer of a party or witness examined must be under oath. A corporation must attend by, and answer under the oath of, an officer thereof; and the judge may, in his discretion, specify the officer. Either party may be examined as a witness, in his own behalf, and may pro

duce and examine other witnesses, as upon the trial of an action. The judge or referee may adjourn any proceedings, under this article, from time to time, as he thinks proper.

Substituted for Code of Proc., 292 and 296, or such parts thereof as relate to examinations. Canavan v. McAndrew, 20 Hun, 46; Kaufman v. Thrasher, 10 id. 438; Mason v. Lee, 23 How. 466; Orr's Case, 2 Abb. 457 Lockwood v. Wartzell, 15 id. 430 n; People v. Marston. 18 id. 257; Carter v. Clarke, 7 Rob. 490; Hudson v. Plets, 11 Paige, 180; 3 N. Y. Leg. Obs. 120; Allen v. Starring, 26 How. 57; Graham v. Colburn, 14 id. 52; 6 Duer, 678; Morrell v. Hey, 15 Abb. 430; 24 How. 48; Corning v. Tooker, 5 id. 16; Sherwood v. Dolen, 14 Hun, 191; Lathrop v. Clapp, 40 N. Y. 328; Sandford v. Carr, 2 Abb. 462; Graves v. White, 12 How. 33; LeRoy v. Halsey, 1 Duer, 589; Williams v. Carroll, 2 Hilt. 438; Wicker v. Dresser, 14 How. 465; Forbes v. Willard, 37 id. 193; 54 Barb. 520.

2445. Referee to be sworn.-Unless the parties expressly waive the referee's oath, a referee, appointed as prescribed in this article, must, before entering upon an examination, or taking testimony, subscribe and take an oath, that he will faithfully and fairly discharge his duty upon the reference, and make a just and true re port, according to the best of his understanding. The oath may be administered by an officer designated in section 842 of this act, and must be returned to the judge, with the report or testimony.

New. See 1016, ante.

2446. Order permitting person indebted to pay debt to sheriff.-At any time after the commencement of a special proceeding, authorized by this article, and before the appointment of a receiver therein, or the extension of a receivership thereto, the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, upon proof, by affidavit, to his satisfaction, that a person or corporation is indebted to the judgment debtor, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, permitting the person or corpora tion, to pay to a sheriff, designated in the order, a sum, on account of the alleged indebtedness, not exceeding the sum which will satisfy the execution. A payment thus made is, to the extent thereof, a discharge of the indebtedness, except as against a transferee from the judgment debtor, in good faith and for a valuable consideration, of whose rights the person or corporation had actual or constructive notice, when the payment was made.

Code of Proc., 293, amended. See Calkins . Packer, 21 Barb. 275, 283; Richardson v. Ainsworth, 20 How. 521; Leyman v. Cartwright, 3 E. D. Smith, 117; Robinson v. Weeks, 6 How. 161; Countryman v. Boyce, 3 id. 386; Huse v. Guyot, 3 T. & C. 790; Bishop v. Garcia, 14 Abb. N. S. 69; Hale v. Olney, 65 Barb. 27; Mallory v. Norton, 21 id. 424; Davenport v. Ludlow, 3 C. R. 66; Handly v. Greene, 15 id. 601; Baker v. Kenworthy, 41 N. Y. 215; Duffield v. Norton, 73 id. 218; Adams v. Welch, 43 N. Y. Super. 52.

2447. Order requiring delivery of money or property to sheriff or receiver.-Where it appears, from the examination or testimony taken in a special proceeding authorized by this article, that the judgment debtor has, in his possession or under his control, money or other personal property, belonging to him; or that one or more articles of personal property, capable of delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person; the judge, by whom the or der or warrant was granted, or to whom it is returnable, may, in his discretion, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, directing the judgment debtor, or other person, immediately to pay the money, or deliver the articles of personal property, to a sheriff, designated in the order, unless a receiver has been appointed, or a receivership has been extended to the special proceeding, and in that case to the receiver.

Substituted for Code of Proc., 297. Lynch v. Johnson, 48 N. Y. 27; Potter v. Low, 16 How. 549; Atkinson v. Lewine, 11 Abb. N. S. 384; Stewart v. Forster, 1 Hilt. 505; McCormick v. Kehoe, 7 N. Y. Leg. Obs. 184; Westside Bank v. Pugsley, 47 N. Y. 368; 8. C., 12 Abb. N. S. 28; Campbell v. Foster, 35 N. Y. 361; Locke v. Mabbett, 2 Keyes, 457; Graff v. Bennett, 31 N. Y. 9; s. c., 2 Rob. 54; 25 How. 470: Genet v. Foster, 18 How. 50; Woodman. Goodenough, 18 Abb. 265; Watrous v. Lathrop, 4 Sandf. 700; Ten Broek v. Sloo, 2 Abb. 234; s. c., 13 How. 28; Davenport v. Ludlow, 3C. R. 66; s. c., 4 How. 337; Hudson v. Plets, 11 Paige, 180: Sands v. Roberts, 8 Abb. 343; Browning v. Bettis, 8 Paige, 568; McCoun v. Dorsheimer, Clarke, 144; Ireland v. Smith, 1 Barb. 419; Caton v. Southwell, 13 id. 335; Stewart v. Martin, 5 id. 439; Moak v. Coates, 33 id. 498; Beamish v. Hoyt, 7 Rob. 307; Gerregant. Wheelwright, 3 Abb. 264; Barnes v. Morgan, 3 Hun, 703; Bush v. White, 12 Abb. 21; Tripp v. Childs, 14 Barb. 85; Cummings v. Timberman, 49 How. 236; Martin v. Sheriden, 2 Hilt. 586; Van Vechten v. Hull, 14 How. 436; Cox . Stafford, 15 id. 519; Tillotson v. Wolcott, 48 N. Y. 188:81394, ante; Bunn v. Fonda, 2 C. R. 70; Baily r. Ryder, 10 N. Y. 363; Jenner v. Sanborn, 37 Barb. 610; Alexander v. Richardson, 7 Rob. 64; Sandford v. Moshier, 13 How. 163; People v. Cowles, 34 id, 481; Crounse v. Whipple, id. 333; Peters v. Kerr, 22 il. 3; Hall v. McMahon, 10 Abb. 103; Gasper v. Bennett, 12 How. 307: Clapp v. Lathrop, 40 N. Y. 328; 8. c., 23 How. 423; Teller v. Randall, 26 id. 155; Barnard v. Kobbe, 54 N. Y. 516; s. c., 3 Daly, 372; Beebe v. Kenyon, 3 Hun, 73; Rodman v. Henry, 17 N. Y. 484: Teller v. Randall, 40 Barb. 242; Havens v. Nat. City Bank of Brooklyn, 4 Hun, 131; Glenville Woolen Co. v. Ripley, 43 N. Y. 206; Reynolds v. McElhone, 20 How. 454; Kearney's Case, 13 Abb. 459; Holstein v. Rice, 15 id. 307; Joyce v. Holbrook, 7 id. 338; Hautman v. Cat

J

lin, 1 E. D. Smith, 130; Gibson v. Haggerty, 37 N. Y. 558; Waldheim v. Bender, 36 How. 181; Mosier v. Lees, Daily Reg., Aug. 24, 1878; Hentz v. McGee, 1 Law Bull. 3.

§ 2448. Duty of the sheriff. If the sheriff, to whom money is paid, or other property is delivered, pursuant to an order made as prescribed in either of the last two sections, does not then hold an execution upon the judgment against the property of the judgment debtor, he has the same rights and powers, and is subject to the same duties and liabilities, with respect to the money or property, as if the money had been collected, or the property had been levied upon by him, by virtue of such an execution; except as otherwise prescribed in the next section.

Code of Proc., 2297; see cases cited under last section. Baker v. Kenworthy, 41 N. Y. 215; Adams v. Welsh, 43 N. Y. Super, Ct. 52.

§ 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 inoney 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 & 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.

Code of Proc., 28 297 and 298. People v. King, 9 How. 97; Dickinson v. Van Tine, 1 Sandf. Sup. Ct. 724, 728; Kearney's Case, 13 Abb. 459; Rodman v. King, 17 N. Y. 482 Goodyear v. Betts, 7 How. 187; s. c., 1 Duer, 65; 5 How. 29; Corning v. Tooker, id. 16; see, also, cases cited under 2447, ante.

§ 2450. Balance to be paid or delivered to judgment debtor, etc. Where money is paid, or property is de livered, 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,