5 N.Y.S. 703 | N.Y. Sup. Ct. | 1889
Lead Opinion
The respondent, T. Bussell Dawson, recovered a judgment against Isaac Sickle, and, upon the return of the execution unsatisfied, obtained the usual order for the examination of the judgment debtor concerning his property. In these proceedings supplementary to execution he caused a subpoena to be served upon Herman Cantor, the appellant, to appear and testify therein, and to produce certain books in the custody of the witness as assignee of the judgment debtor. Mr. Sickle was first examined, and testified that he made an assignment for the benefit of his creditors on November 16, 1887. Mr. Cantor was then sworn as a witness, and stated that he was the assignee of Mr. Sickle, and had taken possession of the books in his store, all of which he produced at the hearing. One of these he identified as Mr. Sickle’s cheek-book. He also stated that he had a number of checks in his possession that had been drawn by Mr. Sickle prior to the assignment. At the instance of counsel for the judgment debtor, however, the witness declined to answer the question whether any of these checks were drawn in November, 1887, or how many were drawn within two months of the assignment, or how many were drawn within two weeks thereof, to the order of Mr. Sickle, or the order of any of his sons, or of any person identified with him in business, or to bearer. The witness also declined to turn to the check-book and checks that he had produced, and give the dates and amounts thereof; or to state whether there was any entry on the stub of the check-book of a check drawn by Mr. Sickle in November, 1887, to his own order, or cash, or to the order of one of his sons, for $800 or $850 or $950. The objections to these questions, or rather the reasons which the witness gave for declining to answer them, under the advice of the counsel for the judgment debtor, were subsequently discussed before Mr. Justice Lawrence, who directed that the witness should answer them all. Thereupon the questions were again put to Mr. Cantor, and he again declined to answer. Por this refusal he has been adjudged guilty of contempt by the order from which the present appeal is taken.
In the brief for the appellant it is stated that Mr. Dawson, the judgment creditor, after instituting the present supplementary proceedings, commenced a creditors’ action to set aside the general assignment made by Mr. Sickle to Mr. Cantor. I do not find anything in the appeal papers to show that such a suit has been instituted, but, inasmuch as the case appears to have been disposed of below upon the assumption that such was the fact, the existence of such an action may as well be assumed for the purposes of this appeal. The appellant insists that by electing to bring an action to invalidate the as
I find nothing in this proceeding which is in conflict with the provisions of section 1914 of the Code of Civil Procedure. That section provides that an action cannot be maintained to obtain a discovery under oath in aid of the prosecution or defense of another action. But this is not such an action. It is simply a supplementary inquiry, conducted for the sole purpose of ascertaining whether the judgment debtor has any property lawfully applicable to the payment of the judgment against him. The witness is properly examined concerning matters pertinent to such inquiry, and the fact that what he says may be useful in another litigation does not deprive the judge of jurisdiction to examine him. In such a proceeding, the fact that the questions asked of a judgment debtor or of a witness tend to show that the judgment debtor has made a fraudulent assignment is no valid reason why such questions should not be answered. Lathrop v. Clapp, 40 N. Y. 328. The questions asked of the appellant in this proceeding were proper; it was his duty to answer them, and his refusal to do so was a contempt for which he has been none too severely punished. The order appealed from should be affirmed, with costs and disbursements.
Concurrence Opinion
I concur in the opinion of Justice Bartlett for the reasons he has given, and for that mentioned by the presiding justice, and for the further reason that, as long as the first order remains unappealed from and unreversed, it cannot be assailed by this appeal from the order directing the punishment of the witness. By that order the witness was directed to answer, and he could not after that decline to do so as long as that remained in force.
Concurrence Opinion
I concur. The witness could not raise the objection that the judgment creditor had commenced proceedings to set aside the assignment. If that fact was a bar to this proceeding, the judgment debtor could only avail himself of it by a proper motion, to dismiss the proceeding. Witnesses are not accorded the privilege of putting in answers for defendants.